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INCORPORATED LAW SOCIETY OF IRELAND
GAZETTE
Vol. 78 No. 5
June 1984
An "Unbalanced" Bill
W
HILE our legislators are to be commended for the
unusual thoroughness with which the Criminal
Justice Bill is currently being debated, the minor
amendments which the Minister for Justice has either
introduced or accepted still leave the Bill open to
considerable criticism. This journal has already expressed
grave reservations about the central features of the
proposed legislation insofar as it represents a major
intrusion on the doctrine of the presumption of innocence
and the right to silence. The amendments, welcome
though most of them are, have done little to remedy this
intrusion.
The Law Society, in its submissions to the Minister on
the Bill, drew particular attention to the fact that the
powers of detention proposed are capable of applying not
merely to cases where genuinely serious offences are being
investigated but also to many offences which, although
falling within the category bearing the possibility of a
sentence of five years imprisonment, would not generally
be regarded as serious. Many of these offences are not
remotely similar to the kind of crimes, such as mugging,
drug-dealing or the stealing of cars, which the proponents
of the legislation have argued would be more easily
tackled once the Bill became law. It was particularly
disappointing to find Professor John Kelly, T.D.,
apparently failing to appreciate how wide a category of
offences would fall within the ambit of the detention
provisions.
Access by a solicitor to his client, or, more significantly,
access by the client to his solicitor, is still not adequately
covered. It will still be possible for a person to be
deliberately detained for questioning on a Friday night so
as to render more difficult the contacting of a solicitor
expeditiously.
In other jurisdictions, panels of solicitors are available
to attend, on a rota basis, at police stations or courts
where persons are arrested or charged outside normal
office hours. A development of this sort may now be
necessary in Ireland, certainly in the major population
centres. It was encouraging to see Dr. Michael Woods,
T.D., putting such a proposal forward and the Minister
agreeing to examine it.
It is unfortunate that proponents of the Bill, including
the Minister, have continued to put forward the argument
that powers of questioning similar to those proposed in
the Bill are available to almost all other police forces in
Europe. Such powers are not part of the ordinary law in
England, being the jurisdiction which shares most closely
our legal system. In other European countries where
suspects can be questioned, it is not done by police
officers but by examining magistrates. While there must
always be reservations about the wisdom of introducing
procedures from one type of legal system into another, it
certainly would be worthy of detailed consideration that,
if questioning of suspects in detention is to be allowed,
such questioning should be done independently of the
Gardai.
Notwithstanding what has so far been written and said
on the Bill since it was first introduced, one still ends up
asking the question, whether the offered "panacea" will
turn out to be worse than the perceived "illness". Why is it
that lawyers, a conservative group in the main, have been
at the forefront of the criticism of the main provisions of
the Bill? Surely lawyers, like everyone else in our society,
are not immune from being mugged or burgled or having
their cars stolen, and should, therefore, welcome the offer
of a "solution"? Perhaps the explanation is that lawyers,
by training, rarely see simple answers to complex
problems and reject solutions which they perceive as
tending to create greater problems.
Our criminal legal system has, up to now, been
carefully moulded by judicial decisions and by statute to
produce that "balance" (the Minister's adopted word)
between the rights of the individual on the one hand and
the rights of society (including the Gardai) on the other.
To alter radically that "balance", as the Bill proposes to
do, may leave us without an effective "scales of justice".
At this late stage the Goddess Themis should be asked to
remove her blindfold and join in the debate!
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