The Gazette 1982

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. 76. No. 2 March 1982 Law and Order — or Justice ?

I 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. •