32 / 462
GAZETTE
JANUARY/FEBRUARY 1992
Prosecuting Fraud in a Common Law
Jurisdiction —A Reply
On the 16 November, 1991 the
Criminal Law Committee of the
Law Society hosted a seminar on
the topic of "Criminal Law in the
1990s". There were several well
known speakers from different
countries. One speech, however,
garnered most of the headlines in
the public press. This was the
address of
Eamonn Barnes,
the
Director of Public Prosecutions.
The paper he delivered was a well
thought out dissertation on the
difficulties encountered by the
prosecution authorities, particularly
in the area of fraud. The reason he
was featured in the headlines,
however, was because he claimed
that many criminals were not even
charged, let alone conv i c t ed,
because the " r i ght to silence" of a
s u s pe ct h i nde r ed t he proper
i n v e s t i ga t i on of c r imes and
because he suggested that this
right be severely curtailed if not
completely eliminated. Whereas I,
and no doubt other de f ence
lawyers, would agree w i th much of
the content of his speech, I wish to
take issue in this article w i th these
views.
Retention of the right to
silence
The first point made by Mr. Barnes
was that the question or otherwise
of the retention of the right to
silence "has not been seriously and
sufficiently addressed at any level
academic, judicial or legislative in
these islands". This is just not
correct. The whole question has
been c on s i de r ed by va r i ous
committees and individuals both
here and in the United Kingdom.
One can instance the Criminal Law
Revision Committee 1972 and the
Royal Commission on Criminal
Procedure 1981 in the UK, the
O'Briain Committee 1978 and to a
lesser extent the Martin Committee
1990 in Ireland and numerous
articles by such well k n own
academics as Professor
Rupert
by
Michael Staines
Solicitor
Cross
and Professor
Glanville
Williams.
There are regular calls by
both the police and prosecution
authorities for its abolition. For
instance such a call was the main
plank of the Garda Representative
Association's submission to the
Martin Committee at the beginning
of 1990. Furthermore a debate was
initiated by a speech made by the
t hen As s i s t ant Commi s s i oner
McLaughlin
at the Law Society
some years ago and this debate
culminated in the Criminal Justice
Act, 1984 which has curtailed the
right to a large extent. Despite the
steady and persistent calls for its
abolition neither of the legislatures
in these islands was prepared to
completely abolish the right though
inroads have been made in relation
to certain types of offences. This I
believe is an acknowledgement by
the t wo parliaments that the right
to silence still serves a fundamental
purpose in our society.
Tackle fraud loopholes
As indicated earlier, I can agree
with much of what Mr. Barnes says
about other aspects of our criminal
law and procedures. He specifically
declared at the beginning of his
speech that he accepted the
principle of the presumption of
innocence both in relation to actual
court hearings and indeed to bail
applications. He notes that the
effect of this acceptance is an
acknowledgement that bail must
not be refused to an individual even
if it appears likely that he will
c omm i t c r ime in t he f u t u r e.
Secondly, one must agree with him
that there are several inadequacies
in our substantive criminal law.
( " " ?
r »
Michael
Staines
There is no adequate statutory
code concerned w i th fraud. There
should be. Unfair difficulties are
caused to t he
p r o s e c u t i on
particularly in fraud cases by out-
da t ed rules aga i nst hearsay
evidence which were developed in
an era when computers did not
exist. I can see no difficulty in
having these rules amended. I do
disagree w i th him however, when
he moves on to discuss what he
describes
as the " p a u c i t y" of
powers entrusted to the police in
Ireland. He states that as a general
rule a Garda can only arrest a
person for the purpose of bringing
him before a court and that he
cannot be arrested for any other
purpose such as questioning. In
practice the statutory exceptions to
this rule have had the effect that
the "general rule" applies only to
a small category of offences.
Section 30 of the Offences Against
the State Act, 1939 allows a Garda
to arrest a person and have him
detained for a period of 48 hours.
Arrestable offences under this
Section are set out in the Schedule
to the Act and include mainly
offences of subversive nature and
fire-arm type offences. It does not
extend to such serious crimes as
rape, murder or burglary. It was
because there were no "detention"
provisions for those serious crimes
that the prosecution authorities
sought and were granted the
detention provisions contained in
Section 4 of the Criminal Justice
Act, 1984. These provisions apply
13