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g a z e t t e
a p r i l 1991
m the President
J^arábrief
Ptaétice Notes
Solicjtc
^ f f e <
J ^ H h g e r Members News 115
People and Places
116
In
this
Issue
Viewpoint
99
Agreement to waive set
off - an unfortunate
difference of opinion
101
105
107
liqitor's Duties under
CAT Amnesty
1 1 1
1 1 2
Witbo ut prejudice or
ithout effect?
119
Mandatory Liability Fund -
/ A n
American Experience 124
Regulation of Insurance
Intermediaries
125
ook Reviews
129
Professional Information
133
Executive Editor:
Mary Gaynor
Committee:
Eamonn G. Hall, Chairman
Michael V. O'Mahony, Vice-Chairman
John F. Buckley
Patrick McMahon
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save where otherwise indicated, are the
views of the contributors and not
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Published at Blackhall Place, Dublin 7.
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Viewpoint
Miscarriages of Justice
What have we learned
from
Guildford and Birmingham?
Everyone who truly cherishes the
fundamental core values of our
legal system - respect for justice
and the rule of law. - will rejoice at
the collapse of the case against the
Birmingham Six and their long -
delayed release by the English
Court of Appeal, just eighteen
months after the release, in similar
circumstances, by the same Court
of the Guildford Four.
We extend to the Birmingham Six
our congratulations at their final
vindication and, in doing so, we
salute all those, including, in
particular, the principal defence
solicitor involved Ms. Gareth Peirce,
who have worked so tirelessly on
their behalf. Seventeen years was
far too long but, then, conspiracies
to pervert the course of justice are
not easy to break down and this, of
course, was no ordinary conspiracy.
It was, by any of the normal
standards against which we judge
matters of this kind, an extra-
ordinary case - a unique coming
together in one remarkable time-
frame of a series of incidents, facts,
circumstances and people which,
on the surface and at the time, gave
the case a plausibility that was
always going to be difficult to
shake. The "appalling vista", from
which Lord Denning so publicly
recoiled, has now come to pass. As
we write, those charged w i th
responsibility for the police and the
main elements of the courts system
in England have begun another re-
examination to see what further
lessons can be learned. A Royal
Commission is to sit.
It is not unreasonable to ask
what we, in this country, have
ourselves learned from these t wo
tragic occurrences. Soon after the
Guildford Four were released, the
Gove r nment appointed Circuit
Judge Frank Martin to head a
committee to examine the implica-
INCORPORATED
LAWSOCtEif
ELAND
Vol. 85 No. 3 April 1991
tions of that case for our system.
That Committee reported, w i th
commendable speed, in March,
1990. We have heard very little
since. We still have no means of
judicially reopening a conviction
here - in similar circumstances -
even where there is new evidence.
More recently, public concern has
been voiced f o l l ow i ng judicial
remarks (in the context of the dis-
missal of a murder charge against a
young person) querying in a critical
way an apparent conflict of evidence
of the circumstances surrounding
the making of an inculpatory state-
ment by the accused. It may be
recalled, that, during the course of
its passage through the Oireachtas,
the Bill, which became the Criminal
Justice Act 1984, was amended to
insert a provision which, the then
Minister for Justice promised, was
intended to facilitate the introduction
of the tape recording or video re-
cording of the interrogation of
suspects in police custody. The
Minister said, at the time, that he
had set up a Committee (another
Committee ?) to examine this. May
we ask what became of this promise
made all of eight years ago now?
We would ask whether it is not
abundantly clear by now that it is
highly unsatisfactory to expect
juries to determine issues of guilt or
innocence in cases involving serious
offences when the main - or only -
plank of evidence is a disputed
confession and the dispute centres
on the manner in which the alleged
confession was taken from the
accused person in police custody.
Given the availability and compara-
tive low cost of audio/video record-
ing equipment nowadays, there is
little excuse for this. Independent
verification of what exactly was
said by an accused person in a
statement and the circumstances
surrounding the taking of the state-
ment by the police must be available
to the court, in the interests of both
defence and prosecution.
(Contd. on p. 104)
99