The Gazette 1990

GAZETTE

PRIL

1990

with developments in society. This

need, common to all countries, has

become more pressing in recent

years. The world has changed a lot

since 1861 - even since 1916 the

year of the last substantial

enactment dealing with the

criminal law of dishonesty. The

intervening years have encom-

passed many happy hours spent by

criminal lawyers identifying the

essential distinction between

larceny by a trick and obtaining by

false pretences, or between

embezzlement, fraudulent conver-

sion and larceny by a clerk or

servant. These questions, however

fascinating and gripping, seem to

provoke a certain impatience in the

general citizenry, particularly when

some obvious crook is acquitted as

a result of a difference of opinion

between judge and prosecutor

regarding them. Now, since the

advent of automated banking, of

electronic book keeping and vast

credit transfers, of cheque

guarantee cards and walls which

speak money, the old dishonesty

laws are frequently inadequate or

irrelevant and it is possible to obtain

large sums or credits dishonestly

without breaking the criminal law,

at least in a provable way. I am

aware that the relevant authorities

here and in many other jurisdictions

are tackling this problem as a

matter of urgency. But at present

many undoubtedly dishonest

actions cannot be made the subject

of criminal proceedings. It may be

that we need a different approach

to the problem than that traditional-

ly offered by the Larceny Acts or

more recently in Britain by the Theft

Acts, one in which the general

concept of dishonesty would be

the dominant factor, criminally

actionable in addition to some

individually listed and specific

examples of dishonest dealings. I

do not know if it would be possible

to draft or enact such legislation.

What I do know is that the average

citizen can recognise dishonesty

when he sees it, and that without

such a general concept offence,

there will always be many who

succeed

in achieving

their

dishonest purposes while tech-

nically remaining just outside the

scope of a system composed only

of rigid and precise prohibitions. If

therefore we look at the question

does the system work - in the

context of the substantive criminal

law, I think that we would answer

"yes", but that it would work far

better and constitute a much more

effective deterrent to those inclined

to break the law if it were

simplified,

modernised

and

codified.

Review of Criminal Legal Process

The question - does the system

work - comes into somewhat

sharper focus in the context of the

Irish code of criminal procedure. I

do not here propose to describe

and contrast that system and the

inquisitorial system which is used

throughout continental Europe.

Again, having already done so on

more than one occasion, I would

simply call to mind and fully

endorse the observation of the

distinguished Scots writer, public

affairs commentator and passion-

ate fighter for justice, Mr Ludovic

Kennedy, when he stated that the

inquisitorial system seeks to find

the truth whereas the accusatorial

system seeks to find a winner.

While most, probably all, of you are

familiar with our accusatorial

system, it may be worth while to

recall a couple of its principal

features. First, it starts with an

accusation, which can be made

properly and lawfully only if the

prosecutor has sufficient evidence

upon which a court could conclude

beyond a reasonable doubt that the

accused is guilty, i.e. evidence

which is incompatible with any

reasonable hypothesis other than

his guilt. Now this is an extra-

ordinarily heavy handicap on the

prosecutorial process before it can

begin at all, one which does not

exist in the inquisitorial system. Its

significance is not properly appreci-

ated or debated, because it

operates out of public sight and the

public are almost entirely unaware

of it. There is a dangerous com-

placency about how effective our

system is, based on the misleading

impression which is created by the

cases which go to court. Undoubt-

edly there is a high conviction rate.

This is precisely because a

thorough filtering process has

taken place before the cases get to

court at all. In very many cases, the

gardai do not even bother to submit

a file to us, knowing what the

inevitable decision will be. In many

others we have to direct that there

be no prosecution, or that a

prosecution already initiated be

withdrawn. Yet in a great number

of these cases, neither the gardai

nor my office is in the slightest

doubt as to the guilt of the suspect.

The second feature of the

system of procedure to which I

want to refer is that the same

suspect, with one or two except-

ions which are of very limited

significance, is under no obligation

whatever to participate at all in the

search for the truth of the matter

Doyle Court Reporters

Principal:

Ái ne O'Far rell

Court and Conference Verbatim Reporting

Specialists in Overnight Transcription

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