The Gazette 1976

GAZETTE

March 1976

INTER-VARSITY LAW CONGRESS

by Jacqueline Maloney

About forty law students from the University Colleges

of Dublin, Cork and Galway and Queen's University,

Belfast, attended an Inter-Varsity Law Congress which

was held in the Talbot Hotel, Wexford, on Saturday

14th and Sunday 15th February 1976. The Congress

was held in order to promote good relations and co-

operation between law students from the various

universities and it is hoped that the practice will be

continued. The general title of the Congress was

"The

Erosion of our Constitutional Rights"

which we felt to

be an important and urgent topic in need of some

examination. The first lecture was delivered by Mr.

Brian Gallagher, solicitor, on

"Powers of Arrest and

Detention and Police Discretion".

The lecturer first quoted Art. 40 (4) (1) of the Consti-

tution, "No citizen shall be deprived of his personal

liberty, save in accordance with law." The phrase "in

accordance with law" appears to mean "the law as it

exists at the time when the legality of the detention

arises for determination", but this can be tested again

in the present Supreme Court, which only exists since

1961.

Both Gardai and citizens alike have powers of

arrest.

Gardai can arrest when they see a felony being

committed or on reasonable suspicion that one has been

committed but arrest for one's own protection, as

Connors v. Pearson — (1921) 2 IR

— demonstrates, is

illegal. Modern statutes have greatly increased Gardai

powers of arrest but the fact remains that an illegal

arrest may render the Gardai liable for an action in

false imprisonment.

There are several constituents of a lawful arrest.

Firstly

the person or preferably the Garda must have a

power of arrest either at Common Law or by statute.

The speaker noted some Gardai powers of arrest under

the Dublin Police Acts of the nineteenth century, some

of which are ludicrous.

Secondly,

at the time of the

arrest the person must be informed why he is being

arrested unless he can be taken to know it. What is

worrying is not the law, but the manner in which the

law is being enforced, since, in many cases, Gardai do

not

inform the person why he is being arrested nor

caution him. The trend in modern statutes such as the

Prohibition of Forcible Entry and Occupation Act, 1971

which gives the Gardai power to arrest persons "in

occupation of property illegally" is for increased Gardai

powers. This, coupled with the Supreme Court judg-

ment in

People v. O'Brien, 1965,

makes the Gardai a

very powerful body indeed. This case allowed the

admissibility of evidence to be the product of an illegal

search as long as there was no conscious and deliberate

violation of constitutional rights or if greatly attenu-

ating circumstances existed. (The articles were found in

118,

Captain's Road, Crumlin, but the premises were

described as

118,

Cashel Road, Crumlin.) A Garda is

only under a

duty

to arrest when a felony is com-

mitted in his presence but in

all

other circumstances

powers are discretionary. In the law there is no power

of detention except under the Offences against the

State Act,

1939.

Under the Criminal Justice Act,

1951,

the person arrested must be brought before the District

Justice immediately and if remanded or sentenced,

brought to a proper place of detention, which does not

include Garda Stations. This provision is often abused.

As regards police discretion, it is very wide indeed

and it appears from the two English Brogden cases that

ordinary citizens cannot get injunctions to compel the

police to prosecute. The fact that some Garda stations

will prosecute husbands who beat their wives and

others absolutely refuse to do so, is police discretion at*

its worst. The speaker proposed and the persons present

afterwards concurred in, the setting up of an Inde-

pendent Complaints Board, similar to the Race Rela-

tions Board in England to review police action and

investigate complaints.

The second lecture entitled "The

Criminal Law

(Jurisdiction) Bill 1975"

was delivered by Mr. Brian

Doolan, B.L. He first remarked that the Bill is the latest

in a long line of repressive measures adopted by various

governments since the foundation of the State. Intern-

ment, military tribunals and Special Criminal Courts

had been used time and again displaying abuse of the

rule of law and eagerness to disregard constitutional

rights. The Bill greatly increases the jurisdiction of the

Special Criminal Court to deal with a whole range of

offences while the Court continues in operation and

there is strong danger that the Bill will

institutionalise

the Special Criminal Court. The continued operation

of a

non-jury

court trying a whole range of offences

must be of great concern to the legal profession and to

the public alike, especially at a time when the Supreme

Court are ruling that the duty to serve on juries will

be much more widespread. Some recent convictions in

the Court have caused comment among the legal pro-

fession and sentences are often considered excessive.

The Court is becoming a secret court since (I) the

oppressive atmosphere, (2) the screening of visitors to

the public gallery including personal identification and

body searching, coupled with the strong suspicion that

a secret camera photographs visitors, has almost led to

a secret code, and, should the press cease attending,

this would be the result.

The speaker then noted a comparison between the

rules of evidence applicable in the District Court and

in the Special Criminal Court. Those in the District

Court had the benefits of the Criminal Procedure Act,

1967.

I'his provided for a preliminary hearing before a

District Justice who could refuse to send the defendant

forward for trial. The defendant could also call wit-

nesses and have a sworn deposition taken. Thus the

evidence could be challenged and the credibility of

witnesses assessed. A person appearing before the

Special Criminal Court could not avail of these impor-

tant safeguards.

The third and final lecture was delivered by Mr.

Louis McRedmond, Head of Information and Publi-

cations, R.T.E., on the topic

"Controls on Broadcasting

—Cui Bono".

The speaker first explained that one of

the main innovations of the Broadcasting Authority

(Amendment) Bill,

1975,

is that the R.T.É. Authority

will be afforded some "security of tenure", whereas at

the moment it is dismissible at the whim of the Govern-

ment. He felt that the public's right to know should not

be obstructed merely because it was felt that undesirable

consequences could follow. The new Bill provides more

comprehensive guidelines for the broadcaster. Mr.

McRedmond pointed out that if too many requirements

were written into law, the effect would be detrimental

to the flexibility of broadcasting. If broadcasters felt

insecure about certain types of coverage as to whether

this would be in the public interest or not, this could be

very detrimental to the individual. The speaker

favoured leaving it to the broadcaster to work out how

best to meet the fundamental requirements in a parti-

cular situation and develop broadcasting potentiality.

The provision for the

Complaints Advisory Com-

mittee

in the Bill seems unnecessarily detailed and

spells out in more detail than is helpful what the

balance of the programmes should be.