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GAZETTE
MARCH 1992
Criminal Law in the 1990s -
a European Perspective
On the 16 November, 1991 the
Criminal Law Committee of the Law
Society organised a one-day Seminar
under the above title. The theme was
chosen for two reasons. First, it was
felt that any discussion of our
criminal justice system should take
account of developments in other
European countries, including those
with a Civil Law tradition.
Inadequacies in our own system have
frequently been attributed to the
inherent weaknesses in the
adversarial system. It was hoped that
the Seminar would examine whether
these criticisms were fair and
discover what the alternative system
had to offer.
The second reason for the choice of
theme was the increasing importance
of criminal law in the context of the
European Communities. This was
touched on by the Attorney General,
Harold A. Whelehan
SC in his
opening address. He explained that
the substantial and worrying level of
fraud against community funds,
(sometimes estimated as being as
high as 10% - 15% of the
community budget), had led to a
fresh examination of the criminal
law of the Member States from a
community perspective to see
whether a contribution could be
made to combating fraud by revising
the law.
The Attorney General also referred
to the draft Treaty of 1976 which
permitted the adoption of common
rules on the protection under
criminal law of the financial interests
of the Communities and the
prosecution of infringements of the
Treaties. The 1976 proposals finally
ran to ground 10 years later. The
Attorney mentioned the 1989
judgment of the European Court of
Justice in the
Greek Maize
case.
Depending on how the jurisprudence
develops in this area, this case could
in years to come be considered to be
of crucial importance in the criminal
law sphere. For the first time, the
Court has ruled that the EC Treaties
impose duties on the Member States
in the area of criminal law. Despite
its importance, this case would not
necessarily be widely known by
criminal law practitioners.
Protection of Rights - English Law
Michael Mansfield
QC spoke about
the protection of rights, with
particular reference to English Law.
He referred to certain basic rights
which he claimed had been eroded in
the United Kingdom in the last 10
years. He called for the inclusion of
these basic rights in a Bill of Rights.
Much of what he said was common-
place for Irish lawyers. Indeed, his
proposals in relation to the right to
bail were not as "radical" as the
principles laid down by the Supreme
Court in the
O'Callaghan
case in the
1960s, and which have recently been
reaffirmed. For example, Mr.
Mansfield was willing to accept that
bail could be refused where there
was a likelihood that further
offences would be committed on
bail. Another proposal that would be
familiar to Irish lawyers was that
confession evidence should be
automatically excluded if an accused
is denied access to his lawyer.
Mr. Mansfield adopted a somewhat
more radical approach on the right
to trial by jury. He proposed that
such a right should exist for 90% of
cases. He suggested, for example,
that a person charged with drunk
driving or failing to pay an
underground fare should have the
right to jury trial.
Doubts in France about Civil Law
System
Antoine Comte,
a prominent French
defence lawyer, gave a lucid
exposition of the French legal
system. It is interesting to note that
the French are having doubts about
their own Civil Law system at a time
when many in the Common Law
world wonder whether such a system
might provide a panacea to all our
difficulties. He said that certain
questions have been raised as to
whether French judges are
sufficiently independent of
government. As a number of cases
in recent years have shown, the Irish
judiciary is resolutely independent of
the other branches of government in
the discharge of its duties.
A number of features of the French
system are noteworthy from a civil
liberties point of view. For example,
most suspects are held in police
custody for 48 hours; this is extended
to 4 days in drugs and terrorist cases.
During his period of custody the
suspect has no access to a lawyer.
Furthermore, if he is remanded in
custody by the Examining Magistrate,
the latter can control who visits him
in prison - if even to the point of
excluding members of his immediate
family. The accused has no right of
appeal against the magistrate's
decision. It is also interesting to note
that the role of the jury is very
limited. Drugs offences and conspiracy
offences (attracting a maximum
penalty of 20 years and 10 years
respectively), are examples of a wide
range of offences which are tried
without a jury by a panel of three
judges.
The third speaker was the Director of
Public Prosecutions Mr.
Eamonn
Barnes.
He delivered a closely argued
address on the right to silence with
particular reference to fraud
prosecutions. His speech was given
wide publicity at the time and led to
a very useful debate on this part of
our criminal justice system; it has
already been the subject of an article
by
Michael Staines,
solicitor, in last
month's
Gazette.
(Cont'd on page 56)
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