The Gazette 1979

GAZETTE

JULY-AUGUST 1979

Address by Garda Commissioner, Patrick McLaughlin, to the Conference of The Incorporated Law Society 3/6 May, 1979

many instances the sole or main evidence that a person is wilfully and deliberately issuing worthless cheques is his banFaccount. But this evidence cannot be obtained until a charge is laid in Court and a charge cannot be laid if the evidence cannot be inspected. Many youths in their early teens who have never been employed are known to have sizeable bank accounts because they realise that their houses can be searched under warrant whereas they are aware that bank accounts cannot be inspected until court proceedings have commenced. Of course the position is even worse when the thief deposits his ill-gotten money in one of the Building Societies. As the law stands at present there is no means whatever whereby such accounts can be examined. By way of illustration let me recount briefly a happening of fairly recent origin (names not disclosed to protect the guilty). The crime was a suspected False Pretence and the amount involved was about £100,000. The suspects were two male persons and a female secretary who between them operated a business. Initial enquiry revealed that the secretary was involved but in order to obtain evidence it was essential to inspect certain bank accounts. To get Court proceedings started it was necessary to get a warrant for her arrest and then apply for the order to inspect the Bank Account. This revealed that it was likely there was documentary evidence available at the Company's office and that the company manager was perhaps involved in the fraud. But there was no means of obtaining a warrant to search the Company Office. It therefore, became necessary to arrest the secretary at the office in order to give effect to a common law right to search. As it happened no objection was raised to the search and an abundance of evidence was found in the office. As if that was not enough, two further problems were created because of the investigators ingenuity (1) as the secretary was now in custody in relation to the crime it was not possible to interview her further and (2) because of the enforced early arrest pressures were created by the Courts for the production of a 'Book of Evidence'. Each and everyone has an obligation to prevent crime but when crimes are committed the Gardai have the responsibility of investigating them. We are regularly criticised for not being more successful, for not being painstaking enough in our enquiries, for not discovering crucial witnesses, for not developing adequate criminal Contributors to this issue Patrick McLaughlin, Comm i s s i o n e r, A n Ga r da Síochána. John F. Buckley, Solicitor, practising in Dublin. Seán P. Bedford, K .S .G. Anthony Kerr, Assistant Lecturer in Law, U . C . D.

We in the Garda Siochana have held the Incorporated Law Society in the highest esteem, albeit sometimes tinged with envy. Your skilled advocacy has not only been very successful in getting your clients off but has highlighted how ineffective our criminal justice system is as a means of fact finding and protecting society from the ravages of crime and over the years has bit by bit pressed the Courts into a straight jacket where they cannot investigate, cannot ask the accused whether he is guilty or not. You probably could do more than anyone to influence the making of laws and establishing an effective criminal justice system. We regard you as a cardinal element in encouraging what is right and discouraging what is wrong. It is both a distinction and a pleasure for me to be here but I would have enjoyed myself a lot more if I had not to address you. Some of the things I am going to say on the subject 'that the law is unduly weighted in favour of the criminal' will not be acceptable to some of you and even less acceptable to some other organisations. There is no need for me to emphasise how crime has increased both in volume and gravity. It would not be possible in the time available to cover all aspects of the law which favours criminals, but in the matter of Fraud and False Pretences many deeds which are now blatantly fraudulent do not infringe the law. For example, dishonest persons, with a small deposit obtain a cheque book which they retain for a time and then in the space of a couple of days cash all the cheques for the maximum amount of the guarantee card. The bank is obliged to honour all the cheques issued yet no offence is committed by the person issuing the cheques. This, Ladies and Gentlemen, is surely absurd. The same position obtains in relation to the issuing of cheques subsequently dishonoured, for work done or services rendered which do not come within the definition °f 'goods', 'chattels' or 'valuable security'. There is no power of arrest for such offences as:— False Pretences; Fraudulent Conversion; Credit by Fraud (Debtors Ireland Act 1872) or Forgery (Forgery Act 1913) but the Prevention of Offences Act, 1851 confers on a member of An Garda Siochana the power to arrest anyone found committing an indictable offence in the night time, i.e. 9 p.m. to 6 a.m. This creates the anomalous situation that a person could be arrested for obtaining credit by fraud at five past nine but may not be arrested for the same offence at five to nine. The Bankers Books Evidence Act 1879-1959 lays down, 'A party to a legal proceeding may apply to a Court for an order to inspect a bank account'. This leaves the ^riminal in the happy position that his account cannot be 'nspected until legal proceedings have commenced. In

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