The Gazette 1979

GAZETTE

JULY-AUGUST 1979

In England, the New Judges Rules, as they are called, permit the police to question a suspect, even in custody without caution, until they have evidence for suspecting that he committed an offence. After.being cautioned he may be questioned until such time as he is charged. These Rules are much less restrictive than ours, especially when we take our Constitution and Case Law into consideration yet they are regarded as too restrictive by prominent people such as Sir John Foster Q.C., the chairman of the International Commission of Jurists who said, 'Innocent People must not be convicted, but these rules go far beyond that . . . . they reflect the sporting principles in English law under which the criminal must not only be given a fair run, but an absurdly advantageous system for the guilty, a system which results in more guilty peisons remaining unpunished should be changed'. We would be delighted to be relieved of the interrogation of suspects which is imbued with all sorts of sinister connotations and results in allegations of torture, misbehaviour and other excesses by the Gardai. I want to make it absolutely clear that I condemn the use of any form of threats, torture or violence by our members and I have continually down the years warned members not to use such tactics, not only because they are legally and morally wrong, but also because every investigator worthy of the name knows that they are totally unproductive and ineffective. No matter how correct our members' conduct is, the fact that such interrogation must take place in private as pointed out by the Supreme Court of the United States in the Miranda case — 'The principle psychological factor contributing to a successful interrogation is privacy, being alone with the person under interrogation' — exposes our members to allegations of brutality, threats and oppression and leaves them vulnerable to staking their credibility against the natural prejudices of others. If the prosecution makes an allegation they must prove it but if the defence makes allegations the prosecution must disprove them. The investigation of such allegations is subject to the same restrictive rules as any other criminal investigation with the Garda suspect being aware of all the tricks used by the hardened criminal to baulk an investigation but if we do not succeed in getting sufficient evidence we are open to the accusation that dog will not eat dog. Why continue a system to which all parties are so vulnerable? It is time to give serious consideration to this enormous and profound problem which needs to be fundamentally and informatively re-examined, maybe on the lines of the French Inquisitorial system. Perhaps the s> stem could be altered so as to have a full disclosure of all the facts where the prosecution and the defence would not find themselves engaged in a full confrontation searching for errors and proofs but rather in a genuine effort to establish the truth. If they could combine, albeit by their different ways, to extract the truth at every trial this would ensure that the innocent are always acquitted and the guilty convicted. It is usually argued that because we have a very sophisticated system of law here based on the adversary system where the State must prove and satisfy the Jury beyond reasonable doubt and the Defence is entitled to make them do that, there is a grave danger that for the purpose of dealing with an urgent pressing problem, if we 113

innocent or not, who is suspected, not to answer questions or make any statement, definitely helps the guilty to get off but does not always help to clear the innocent of suspicion, can heighten die suspicion against them, does not relieve them from being interrogated and, while it may prevent them from being charged or convicted in Court, it very often leaves them convicted among their neighbours and in the eyes of many local people. If a genuinely innocent person either on his own or through his solicitor were to co-operate with us, we will do everything in our power to help establish his innocence as quickly as possible; save him from embarrassment by neighbours; save him the anxiety of awaiting a Court trial which may acquit him but does not clear him in local opinion. Such a system would be a much greater safeguard for the wrongly suspected innocent, would relieve them of anxiety much quicker and would save us considerable waste of time and effort which we could use to concentrate on the real culprits. The law on questioning those whom we know were involved or whom we strongly suspect is rather complex. The first of the Judges Rules authorises questioning — 'When a police officer is endeavouring to discover the author of a crime, there is no objection to his putting questions in respect thereof to any person whether suspected or not, from whom he thinks that useful information may be obtained'. But this questioning cannot take place in a vacuum. It cannot be done at his home because in most instances we won't be let in to the house. It cannot be done at his place of work, if he has any, and it cannot be don,e on the side of the street. He cannot be brought to a Garda station unless he is arrested. Contrary to the general belief we would prefer to do this questioning at any place other than a Garda Station because if it is done elsewhere we don't have to caution the suspect until we have made up our minds to charge him under Rule 2, but if he is taken to a Garda Station he is deemed to be in custody and must be cautioned before being asked any questions. In addition, as soon as he is taken to a Garda Station he can ask to have his solicitor notified. Practically all solicitors will advise him not to answer any questions or make any statement. The position is further complicated by the ruling Dunne v. Clinton which states inter alia, 'It is the duty of the police officer arresting him to take him with reasonable expedition before a P.C., any question of time necessary to investigate the offence, or to obtain evidence upon which to found a charge is quite irrelevant'. This decision which was somewhat dormant for a number of years was re-activated by the decision in The People v. Ronan Stenson which stated, 'That the accused was not brought before a P.C., Justice of the District Court or the Special Court as soon as conveniently possible after his a rrest'. . . consequently the Court is of the opinion that at the time he is alleged to have made the statement which the prosecution seek to have admitted in evidence against him, the accused was in unlawful custody'. Whereas heretofore evidence could be given of articles found as a result of a statement (even though such statement was deemed inadmissible) but evidence discovered consequent upon a person not being brought speedily enough to a Court or as a result of a delay in Permitting access to a solicitor or as a result of searching the wrong house cannot be given as it is deemed ^constitutional.