The Gazette 1983

INCORPORATED LAW SOCIETY OF IRELAND

GAZETTE

Vol. 77 No. 9

November 1983

More Law — Less Justice?

NE of the most worrying aspects of the Criminal Justice

Bill is not to be found in its pages. It is the manner in

which it is being presented to the public as a solution to the

problems of rising crime. It is nothing of the sort. It has been

said previously in these pages that there will be no diminution of

the level of crime until there is greater public support for the

Gardai, a greater sense of civic responsibility, the lessening of ill-

concealed approval for illegal activity and, most important of

all, the devotion of greater resources, both financial and

technical, to the Gardai. In addition, improvement in the

training of the Gardai and in their methods of operation are

badly needed.

Recent statistics show extremely low levels of detection of

urban crime in Ireland. There is ample anecdotal evidence that

much petty crime is investigated in a perfunctory manner. There

is similar evidence that a substantial amount of such crime is

never even reported to the Gardai, which makes the detection

rate even less acceptable.

Our Police Force has in the main served the community well,

but unfortunately it does not seem to have adapted itself

sufficiently speedily to the changing environment. The failure to

provide, except on the "security" side, increased financial

resources is a factor, but not the only one. Training at induction

level is inadequate and further training has not been mandatory

for promotion to higher levels. Experience is invaluable in the

development of a police officer, but it must be matched by

continuing in-service training of a high order.

Even if higher levels of detection are achieved, more

convictions obtained and the longer sentences prescribed in the

Bill for certain offences imposed, what benefit can this bring so

long as our jails are so over-crowded that some prisoners have to

be released in order to permit other newly sentenced prisoners to

be admitted? There is an element of hypocrisy in the situation,

not confined to this jurisdiction, in which public demand for

increased incarceration is matched by equal reluctance to

provide the necessary resources for a proper prison system.

The Bill itself gives grave cause for disquiet. While it contains

a number of changes which should improve the criminal justice

process, their merits are unfortunately outweighed by the

principal provisions, many of which are unacceptable in a legal

system based on the Anglo-American model. The presumption

of innocence and the obligation placed on the Prosecution

to establish its case against a Defendant without that

Defendant's assistance will be greatly eroded by the proposals in

the Bill.

It is difficult to avoid the conclusion that detection is to be

replaced by detention as the prime means of criminal

investigation. The obtaining of incriminating statements,

instead of the discovery of incriminating evidence, is apparently

to be the order of the day. Two recent cases have given particular

cause for concern in this area. In the

D.P.P.

-v-

Lynch,

the

accused, having undergone questioning for a period of some

twenty-two hours, confessed to having committed a murder.

Subsequently, evidence was given by unimpeachable

independent witnesses to the effect that a number of significant

elements in the confession could not be true. In a recent

prosecution of a Miss McShane, her solicitor, having been

informed that Miss McShane had been taken into custody,

visited a Garda Station where she thought her client might be

likely to be detained. The client was not there, being still en route

to that Station from another Garda Station, but her solicitor

found in that Garda Station, and at a time before the

questioning of her client had ended, a type-written document in

the form of a statement purporting to have been made by her

client.

The

Lynch

case is a clear example of the danger that a person,

totally unfamiliar with the atmosphere of the Garda Station, cut

off from family and lawyer may, after many hours of detention,

be so affected by the intimidatory process as to be willing to

make an incriminating statement solely to end the intimidatory

process. The

McShane

case is even more disturbing, raising fears

that the temptations provided by the new proposals would

prove too great for the increasing number of Gardai, anxious to

produce results.

The provisions in the Bill relating to the right of a detained

person to the notification of a lawyer are a complete sham,

primarily because they do not provide for the lawyer to have a

right of access to his client during detention, but also because the

only obligation on the Gardai, and then only on request, is to

cause the Solicitor "to be notified as soon as possible". It is not

difficult to see this provision being construed, in the case of an

arrest on a Friday evening, as notification on the following

Monday morning. There is nothing in the Bill to limit the

"station switching" of suspects, which the Courts have

criticised. If the detention powers of the Bill are to be

introduced, the introduction of a "Duty Solicitor" system in

larger urban centres will become essential.

The Minister has given an undertaking that the new

Legislation will not be introduced until a satisfactory system for

complaints against the Gardai has been introduced. It is

difficult to describe this undertaking as anything more than a

red herring. The faults in this Bill are not related to the abuse by

the Gardai of their powers, but to their proper use in accordance

with the provisions of this Bill. The Bill would leave a person

who cannot establish to the satisfaction of the Gardai that he is

driving a particular motor car with the permission of the owner

liable to detention for up to twenty hours and it is not difficult to

envisage circumstances in which an innocent citizen might find

it difficult to furnish immediate evidence of his right to drive the

particular car to the satisfaction of the Gardai.

Even in respect of those provisions of the Bill which are

welcome such as majority verdicts, notification of alibis, the

creation of the offence of failing to surrender to bail and others,

there are serious drafting defects. There should be no question

of this Legislation being guillotined at the Committee Stage.

Every section must be carefully considered, as the citizen's right

to liberty is dependent on a coherent and well drafted criminal

code.

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