87 / 322
GAZETTE
APRIL. 1984
admissability of statements is interesting, and I was glad
to note that the authors exhibited a welcome scepticism
towards confessions which unfortunately most of our
Judges do not possess. They quote at length from a
Judgment given by Cave J., in the last century, when he
wondered why "voluntary" confessions were usually only
produced in cases where there was no other evidence, and
why if these confessions were freely made, prisoners
wished to recant them immediately they appeared in
Court. The authors make the very important point that of
all the stages of immersion in the Criminal Process, the
accused is more vulnerable in the Police Station, because,
as stated earlier, this is the one occasion when, suspected
persons are not provided with legal aid and assistance.
When the new Criminal Justice Bill becomes law, this
lacuna will become even more important.
I was disappointed with the chapter dealing with the
procedures in the District Court. The authors quote
liberally from the relevant Statute law, but do not refer to
some of the important case law.
There is no mention for instance of
McFadden's
case
which in effect altered procedures which had been long
standing in the District Court, because they did not meet
the fundamental requirements of fairness under the
Constitution. Similarly, depositions are dealt with in
detail, without even mentioning the fact that the
procedures for taking depositions have changed radically
over the past couple of years. These new procedures are
discussed in
Sherry's
case.
From a student's point of view, the chapters on the
arraignment and trial are excellent, and certainly any
student who wishes to understand the procedures on trial
by indictment need only read the chapter to gain a good
understanding of what is going on. From the practitioners
viewpoint, however, I felt it glossed over several of the
problems. For instance, it does not deal with the question
of whether an accused person ought to give evidence first,
before any of his witnesses are called if it is, in fact
intended that he should give evidence. Secondly, there is
no discussion as to whether applications for separate
trials must be made to the actual Trial Judge who will be
hearing the case. This would appear to be the legal
position, and so can cause great difficulties. For instance,
in the Dublin Circuit Criminal Court, it is often
impossible to know in advance which particular Judge
will hear which particular case. As adjournments are very
rarely granted, both the accused person and their
witnesses must be prepared to go ahead with their Trial on
that day for fear that the actual Trial Judge will not grant
the application for separate trials. One way of
overcoming this problem is to ask the President of the
Circuit Court to nominate his Trial Judge, thus enabling
the Defence to apply some days beforehand. The section
on plea bargaining does not reflect what actually goes on,
in my opinion. The authors state that the Prosecution
should never either offer to accept a plea of guilty to a
lesser offence, or even invite the Defence " to treat". As
Trials in the Central and Circuit Criminal Courts are
conducted invariably by Barristers, they have a great
opportunity to discuss the case beforehand and arrange a
satisfactory deal.
The authors also touch on another problem, which in
my opinion has far graver consequences than actual plea
bargaining. It is generally accepted that persons who
plead guilty are, and indeed ought to be, dealt with more
leniently than persons who are convicted after a Trial.
There is nothing wrong in principal with this unwritten
rule, and indeed its existence is to be welcomed, provided
accused persons who would otherwise plead not guilty, do
not feel constrained to plead guilty. Recently, however, it
has been the experience of Defence lawyers that certainly
in relation to one or two specific types of crimes, such as
the supply of drugs, the difference in sentencing is so great
that accused persons are constrained to plead guilty to
the offence. In some cases, they do so despite the fact that
there is very little evidence against them in relation to the
charge of
supplying
drugs, but they are afraid to take the
chance of conviction with the huge sentence that would
almost invariably be meted out to them. Indeed, many
persons who have pleaded guilty to possession with intent
to supply have been dealt with much more leniently than
those who have been acquitted of this offence, and
convicted merely of simple possession of drugs.
There are many other aspects of this book 1 would like
to have discussed. I would differ with the authors
somewhat on their analysis of the legal position of State-
ments taken in contravention of the Judges' Rules. I
cannot understand how they could have written
concerning the State Side Order of Certiorari without
mentioning the case of
Roehe
-v-
Delap,
which has
drastically curtailed the use of this remedy. On the other
hand, however, the law has changed so quickly and so
much that small lapses must be forgiven. At no stage do
the authors attempt to look at the Criminal Process from
a criminological prospective, and there is therefore no
discussion accorded to academic or practical considera-
tions of what constitutes crime itself and what makes
some acts criminal and others not, or the usefulness or
otherwise of the various penalties and places of incarcera-
tion which have evolved to deal with criminal behaviour.
Both authors have put a large amount of work and
effort into producing this book, and I would recommend
it to both practitioners and students alike. Unfortunately,
from the authors' viewpoint, the new Criminal Justice Bill
will have the effect of changing the Criminal Law Process
even more radically than it has changed in the last few
years, and it may be that in two or three years, much of
this book will have to be re-written.
•
Michael Staines
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