The Gazette 1990

GAZETTE

PRIL

1990

Employment Law Reports

This new series of law reports is designed to meet

the needs of Solicitors, Barristers, Professional

Advisers and all those concerned with the rapidly

developing area of employment law.

The reports aim to cover all important decisions of

the Employment Appeals Tribunal and appeals

therefrom to Circuit and Higher Courts. Decisions of

the Labour Court and recommendations of equality

officers will also be reported from time to time.

Many decisions are contained in

ex tempore

judgments and the ELR thus aims to preserve

valuable legal findings which might otherwise be lost.

The current issue reports thirteen judgments,

including the case of

Vavasour v

Bonnybrook

Unemployment

Action Group

and decisions of the

High and Supreme Court in

Halal Meat

Packers

(Ballyhaunis)

Ltd v Employment

Appeals

Tribunal.

Published quarterly. ISSN 0791-2560

Volume 1 (4 issues + index) £95.00

THE ROUND HALL PRESS

Kill Lane, Blackrock, Co. Dublin

Tel: 892922 Fax: 893072

or to contribute to such search in

any way. He can pick a spot on the

wall and stare silently at it for the

period of any questioning or

detention and he can do so with

almost total immunity from adverse

consequences including comments

by the prosecutor in court. Now

this may be a very good thing.

There is the feeling that somehow

it isn't cricket to expect, still less

oblige, anybody to tell the truth if

by doing so he may disclose that he

has broken the law. I repeat that

this may be the correct approach

for us to adopt. There are however

two points which I would make

about the related topics of the

burden of proof and the right to

silence during an investigation or

trial. The first is that as far as I am

aware there has been no serious

examination of them at academic,

judicial or political level since the

foundation of the State and that

therefore we are, almost without

question or thought, operating an

inherited, indeed an imposed, sys-

tem designed for circumstances

elsewhere which may or may not

have any relevance here. The

second point is that there is little

public awareness or means of

awareness of the price paid in

unsolved or unpunished serious

crime by the continuation of our

present system. All too often, and

I mean very frequently indeed,

cases stop dead at a desk in my

office which would in another

system proceed to a judicial inves-

tigation designed to seek and keep

seeking for the truth.

I do not wish to appear to be an

extreme right winger, whatever

that is. By personal inclination I

would put a very high premium on

personal freedom and the import-

ance of ensuring that no innocent

person suffers. In the eyes of some,

my office seems obsessed with

doing precisely that and nothing

else. Yet we merely operate, and

faithfully operate, the system

which we are given. But if that

system fails, and is seen to fail, in

its primary purpose - the deterring

of crime and its swift punishment

when it is committed - then there

is an obligation on us all to look

hard at it and see if it can be

improved or if perhaps it may need

to be changed fundamentally and

radically. The first duty of the

political entity known as the State

- its primary

raison d'etre

- is the

protection of its citizens. I fully

appreciate that the cause of crime,

particularly those crimes accom-

panied by senseless violence, are

complex and varied and that we

should beware of simplistic

solutions of them. My point is,

however, that while those causes

are being identified and eliminated

by other agencies, it is the business

of the criminal justice system

efficiently to detect and convict

offenders so that they can be

temporarily prevented, and others

deterred, from committing further

serious crimes. Failure to do this

must inevitably exacerbate the

problem whatever its social causes

may be. And we have a very serious

problem. The most basic rights, to

walk the streets, to park a car, to

the inviolability of one's own home,

are regularly and brutally invaded,

and can no longer be taken for

granted as they were a few short

years ago. As a society, we have

become almost resigned to this

state of affairs. Meanwhile, the

chances of the robber and the

burglar and the rapist beating the

system and escaping scot free are

in my view simply too high to be

acceptable.

In these circumstances, I regret

that from my perspective I have to

answer "no" to the question "does

our system of criminal procedure

work?"

Conclusion

Finally, could we spare a thought

for the victims of crime, particularly

of violent crime. I am not here

referring to the question of com-

pensation for victims of these

crimes which we are unable to

prevent. That is a matter for other

authorities who have to consider

difficult questions of priorities of

demands on limited public funds.

Meanwhile, however, all of us

involved in the criminal justice

system should bear in mind cons-

tantly the extraordinarily traumatic

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