The Gazette 1982

INCORPORATED LAW SOCIETY OF IRELAND

GAZETTE

Vol. 76. No. 2

March 1982

Law and Order — or Justice ?

T is salutary that Mr. Justice Henchy has recently suggested that

there are wide areas of our Criminal Law and procedure which

are in need of far reaching review. There is a danger that the

favourable reception given by many politicians and the media to the

arguments of the Commissioner of An Garda Siochana for changes in

our criminal procedures may lead to an uncritical acceptance that the

Garda proposals are well founded.

Relations between the legal profession and the Gardai have con-

sistently been good, each side recognising, if not always approving,

the different concerns which the prosecution and defence have in

Criminal matters. It is with the aim of maintaining such good relations

that it is suggested that a more critical look at the Commissioner's

proposals is desirable, not only in the public interest, but also in the

interest of the force itself.

The two principal suggestions for change in criminal procedure are

for a restriction on the right to bail and for the removal or weakening

of the suspect's right to silence during police questioning. Since the

clarification by the Supreme Court of an accused's right to bail,

spokesmen for the Gardai have from time to time alleged that crimes

are regularly being committed by those who are on bail on other

charges. If this is indeed the case, then it would be a strong argument

for introducing an additional restriction on the right to bail. Unfor-

tunately, statistical evidence to support the case has been notably ab-

sent. If it exists, it is perhaps symptomatic that it has not been produc-

ed.

However much lawyers might like to claim that, as is often alleged,

skilled lawyers find technical defects in the prosecution's case, thus

enabling the guilty to escape, it has to be confessed that on many occa-

sions the cause of "not guilty" verdicts is the failure of the prosecu-

tion to marshall the evidence that ought to be at its disposal, rather

than the forensic skill of the defence lawyers.

The right to remain silent in the face of police questioning is a pro-

tection for the innocent and any general diminution of this right

would not be in the public interest. Not everyone who is suspected of a

crime is actually guilty of that crime - to permit unsupervised police

questioning, without the suspect having the right to remain silent, is to

endanger the innocent without, in all probability, having any great

effect on the guilty, particularly if they are not used to such question-

ing might well, on some occasions, not be resisted by police officers. If

ing might well, on some occasions, not be resisted by police officer. If

there is to be any diminution of the right to remain silent, then it can

only be in the context of the presence of persons other than police of-

ficers at the questioning. The Scottish legal system and certain con-

tinental systems restrict the right to silence where the questioning is

either carried on by or in the presence of lawyers who will later be in-

volved in the prosecution process. Consideration might be given to the

introduction of such systems, though subject to the usual warning that

transplants of practices from one country to another are not always

successful.

Other suggestions which have been made for reducing the current

level of crime include longer or mandatory prison sentences and an in-

crease in the number of the Gardai. Our prison population is, partly

because of subversive crime, at a high level. It is an extremely expen-

sive system - the old jibe that "the law is open to everyone - like the

Ritz Hotel" has a new twist when the cost of keeping a prisoner in jail

exceeds the cost of staying in a five star hotel - and there is little

evidence that our penal system really works. Apart from subversive

and other violent criminals, who may have to be kept in detention to

protect the public, there is little or no evidence that our prison system

does anything to rehabilitate anyone who is unfortunate enough to be

committed to prison on more than one occasion. Other European

countries (the United Kingdom excluded) have low prison populations

and no higher incidence of crime than this country. Solutions other

than fines or prison sentencing should be sought and the concept of

community service orders, mooted in a White Paper issued by the

Department of Justice in June 1981, is clearly a solution worthy of

serious consideration.

Are more Gardai the answer? Perhaps it is the generally high in-

tegrity which characterises our police force which raises the presump-

tion that its efficiency reaches the same level. It is notorious that only

the special demands of "security" which have arisen since 1968 have

brought to the Gardai the level of equipment which they themselves

had sought for many years, but there are areas In which the force itself

has been lacking. The question has to be raised whether exclusive

recruitment at school leaving age, even with suitable training and

experience, will necessarily provide the level of expertise and skills

needed to officer a modern police force. The question cannot readily

be answered because there must be considerable doubt as to whether

sufficient attention has been made to the advance training of Garda

officers. Until very recently no "staff - college" type of training ex-

isted at all in the force and while its introduction, even on a limited

scale, must be welcomed, it appears to the outside observer that there

is an element of "tokenism" about the present level of such training.

There is very strong evidence that the level of intelligence and skill in-

volved in criminal activities has increased considerably in recent years

and no effort should be spared to ensure that such skill and in-

telligence is more than matched on the police side. It should be, as it is

in our defence forces, a firm rule that promotion to the higher ranks

should be limited to those who have successfully passed intensive

"staff - college" type courses.

Finally, it has to be said that none of the recommendations

eminating from any source will achieve the desired results unless there

is considerable support for the police from the general public. We can-

not expect to be protected by a police force if we are not at the same

time prepared to offer positive assistance to the Gardai. "Not wanting

to get involved" is an attitude which is too prevalent in Ireland in

general and in our urban areas in particular. The positive commitment

of the average citizen to the maintenance of the rule of law must be the

best recipe for success in this area.

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