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GAZETTE
A
PRIL
1990
Does the Irish criminal
justice system work?
It seems to me that with a captive audience of lawyers, it would
be a pity to miss the opportunity of riding one or two of my hobby
horses, of reminding ourselves of the nature and structure of the
Irish criminal justice system and of seeking to identify its strengths
and its weaknesses. The question I am going to consider is -
"Does the Irish criminal justice system work?"
In an address such as this it is the 19th century. In so urging, I am
obviously not possible to give a
comprehensive description of the
system or an all embracing answer
to the question. Some aspects of
the system obviously do work. I
propose to refer only to two of the
main elements in the system and to
examine briefly whether or not they
are adequate to their task. In doing
so, I will not enlarge on what is
arguably the most important obser-
vation that can be made about the
Irish criminal justice system - that,
sadly, it is not in fact Irish at all in
any real sense. The reason for my
silence on that point is that I have
already spoken at some length
about it on more than one
occasion, notably in an address
which I had the honour to give at
the Cearbhaill O'Dalaigh Memorial
Dinner in 1988 and in addresses
last year to the American Bar
Association and to the University
College Galway Law Graduates
Association and I don't wish to
become repetitious on the matter.
I would however urge upon this
Society, which collectively is such
a repository of jurisprudential
wisdom and experience, the
pressing need for a justice system
which is the product of native
genius and responsive to native
needs and conditions. The system
we have was not designed for and
never suited the problems it was
supposed to address in Ireland. In
my opinion it no more suits them
today than it did in the middle of
"Address
by Mr Eamonn M. Barnes,
Director
of Public Prosecutions,
to the
Incorporated
Law Society
on May 4, 1990 in the
Hotel
Europe,
Killarney.
not of course suggesting that we
should not be responsive to legal
thinking and developments in other
jurisdictions and systems. Even if
that were desirable, which it is not,
it would not be possible in this day
by
Eamonn M. Barnes
Director of
Public Prosecutions
and age. Indeed the more cross-
fertilisation there is between legal
systems the better. But the basic
system should accurately reflect
both the nature and the needs of
the society which it serves.
Regrettably, I believe that that is
not the case. That general com-
ment made, let us look a little more
closely at two of the constituent
parts of the system.
The first of these is the criminal
law itself. From the prosecutor's
point of view, and I suggest from
that of the citizen also, the criminal
law is in urgent need both of
modernisation and of codification.
A very great deal of the day to day
commerce of my office is con-
cerned with imprecise and ancient
common law concepts and
offences, some described in
Norman French or Elizabethan
English by Messrs Coke, Hale and
Blackstone, or else with overly
precise definitions and delineations
by that extraordinary animal, the
mid-19th century
legislative
draftsman. It is difficult to fathom
what he might have been trying to
achieve as he conjured up a
hundred different circumstances in
which the same basic offence
could be committed. 1861 as we all
know was one of the vintage years
in the mother of parliaments.
Luckily there have not been too
many such years. Among the
allegedly reforming and consoli-
dating measures inflicted upon us
in that year and with which we still
have to struggle daily were a
Larceny Act, a Forgery Act, an
Accessories and Abettors Act, an
Offences against the Person Act
and a Malicious Damage Act.
Above all a Malicious Damage Act.
Did you know that under Section 3
if you were over 16 years you could
be awarded penal servitude for life
or not less than three years or (a
common alternative provision in
Victorian statutes) imprisonment
for not more than two years with
or without hard labour and solitary
confinement, for setting fire to a
hopoast or a hovel or a fold. I might
mention that if you were un-
Eamonn M. Barnes.
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