The Gazette 1979

GAZETTE

JULY-AUGUST 1979

Address by Garda Commissioner,

Patrick McLaughlin, to the Conference of

The Incorporated Law Society

3/6 May, 1979

We in the Garda Siochana have held the Incorporated

Law Society in the highest esteem, albeit sometimes

tinged with envy. Your skilled advocacy has not only

been very successful in getting your clients off but has

highlighted how ineffective our criminal justice system is

as a means of fact finding and protecting society from the

ravages of crime and over the years has bit by bit pressed

the Courts into a straight jacket where they cannot

investigate, cannot ask the accused whether he is guilty or

not.

You probably could do more than anyone to influence

the making of laws and establishing an effective criminal

justice system. We regard you as a cardinal element in

encouraging what is right and discouraging what is

wrong.

It is both a distinction and a pleasure for me to be here

but I would have enjoyed myself a lot more if I had not to

address you.

Some of the things I am going to say on the subject

'that the law is unduly weighted in favour of the criminal'

will not be acceptable to some of you and even less

acceptable to some other organisations. There is no need

for me to emphasise how crime has increased both in

volume and gravity. It would not be possible in the time

available to cover all aspects of the law which favours

criminals, but in the matter of Fraud and False Pretences

many deeds which are now blatantly fraudulent do not

infringe the law. For example, dishonest persons, with a

small deposit obtain a cheque book which they retain

for a time and then in the space of a couple of days cash

all the cheques for the maximum amount of the guarantee

card. The bank is obliged to honour all the cheques issued

yet no offence is committed by the person issuing the

cheques. This, Ladies and Gentlemen, is surely absurd.

The same position obtains in relation to the issuing of

cheques subsequently dishonoured, for work done or

services rendered which do not come within the definition

°f 'goods', 'chattels' or 'valuable security'.

There is no power of arrest for such offences as:—

False Pretences;

Fraudulent Conversion;

Credit by Fraud (Debtors Ireland Act 1872)

or Forgery (Forgery Act 1913)

but the Prevention of Offences Act, 1851 confers on a

member of An Garda Siochana the power to arrest

anyone found committing an indictable offence in the

night time, i.e. 9 p.m. to 6 a.m. This creates the

anomalous situation that a person could be arrested for

obtaining credit by fraud at five past nine but may not be

arrested for the same offence at five to nine.

The Bankers Books Evidence Act 1879-1959 lays

down, 'A party to a legal proceeding may apply to a Court

for an order to inspect a bank account'. This leaves the

^riminal in the happy position that his account cannot be

'nspected until legal proceedings have commenced. In

many instances the sole or main evidence that a person is

wilfully and deliberately issuing worthless cheques is his

banFaccount. But this evidence cannot be obtained until

a charge is laid in Court and a charge cannot be laid if the

evidence cannot be inspected.

Many youths in their early teens who have never been

employed are known to have sizeable bank accounts

because they realise that their houses can be searched

under warrant whereas they are aware that bank accounts

cannot be inspected until court proceedings have

commenced. Of course the position is even worse when

the thief deposits his ill-gotten money in one of the

Building Societies. As the law stands at present there is no

means whatever whereby such accounts can be examined.

By way of illustration let me recount briefly a happening

of fairly recent origin (names not disclosed to protect the

guilty). The crime was a suspected False Pretence and the

amount involved was about £100,000. The suspects were

two male persons and a female secretary who between

them operated a business. Initial enquiry revealed that the

secretary was involved but in order to obtain evidence it

was essential to inspect certain bank accounts. To get

Court proceedings started it was necessary to get a

warrant for her arrest and then apply for the order to

inspect the Bank Account. This revealed that it was likely

there was documentary evidence available at the

Company's office and that the company manager was

perhaps involved in the fraud. But there was no means of

obtaining a warrant to search the Company Office. It

therefore, became necessary to arrest the secretary at the

office in order to give effect to a common law right to

search. As it happened no objection was raised to the

search and an abundance of evidence was found in the

office. As if that was not enough, two further problems

were created because of the investigators ingenuity (1) as

the secretary was now in custody in relation to the crime

it was not possible to interview her further and (2) because

of the enforced early arrest pressures were created by the

Courts for the production of a 'Book of Evidence'.

Each and everyone has an obligation to prevent crime

but when crimes are committed the Gardai have the

responsibility of investigating them. We are regularly

criticised for not being more successful, for not being

painstaking enough in our enquiries, for not discovering

crucial witnesses, for not developing adequate criminal

Contributors to this issue

Patrick McLaughlin,

Comm i s s i o n e r, A n Ga r da

Síochána.

John F. Buckley,

Solicitor, practising in Dublin.

Seán P. Bedford,

.G.

Anthony Kerr,

Assistant Lecturer in Law, U . C . D.

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