The Gazette 1983

GAZETTE

JULY/AUGUST

1983

from the perspective of critical moral philosophy involved in constitutional analysis. Thirdly, the O Callaghan 2 premise resists an attempt to collapse the distinction between criminal punishment and civil commitment. In a criminal case, the subjective approach does not employ all the factors relevant to the mental composition that might suggest future dangerousness. The judicial process focuses on a definite quality — the offender's intent — associated with a past occurrence. Without an awareness of this attribute the court would be incapable of framing conclu- sions as to the harm-producing potential of the conduct, the blameworthiness of the offender, nor even the magnitude of the harm caused to the victim. Accordingly, the very factors that compelled the Supreme Court to question preventive detention in O'Callaghan would make it morally troublesome to eschew the concern with subjec- tive intention. Conclusion This article is not intended to suggest that correct principles of criminal justice emerge full-blown from the Constitution. It is common sense that constructive analysis of constitutional principles in the domain of criminal justice begins in medias res. For example, we adhere to many important carryovers from common law doctrine. w However, my stance has been that all elements of our system of criminal justice must be evaluated in the light of basic constitutional values. Central values are the freedom and dignity of the individual as a morally autono- mous personality. Implicit in this is the view that those who assert that the Constitution should be kept off-limits in a review of the criminal process have matters askew. Recently, attacks have been directed at the constitutional constraints on police powers on the basis that they diminish the efficiency of the criminal law and its enforce- ment. 40 Disregarding the point that that is precisely what the Constitution is designed to do, the critics also fail to take the moral philosophy of O'Callaghan seriously. And, as I have attempted to show, the moral perspective operative in that case governs the legislative power with regard to the definition of crime. • Footnotes M wish to thank Raymond Byrne, BCL, LLM, Barristcr-at-Law, who contributed to my understanding of the matters considered in this article. I, of course, am solely responsible for its faults. 1. See J. M. Kellv, The Irish Constitution , pp. 286 IT. 2. [1966| I.R. 501. 3. IhiJ., at 513-4. 4. IN J., at 508-9. 5. Ibid., at 513 (emphasis is added). 6. Laurcncc H. Tribe, "An Ounce of Detention: Preventive Justice in the World of John Mitchell", (1970) 56 l'a. I.. Rev. 371, 404. 7. Ibid. , at p. 379. 8. [1966] I.R. 501, 517. 9. In our legal system the principle has been regarded as a more or less self-evident requirement of justice: scc/LG. r. Cunningham [1932| I .R. 28, where O'Byrne J. declared that the court "must have regard to the fundamental doctrine recognised in the courts that the crimi- nal law must be certain and specific, and that no person is to be punished unless and until he has been convicted of an offence recog- nised bv law a£ a crime and punishable as such". See also The People v. Edge [1943] I.R. 125. 10. Unreported, High Court (McWilliam J ), 24 October 1 -9/8; and unreported, Supreme Court, 31 July 1980. II. As amended and applied in Ireland by the Prevention of Crimes Act, 1871, and the Penal Servitude Act, 1891. 12. At p. 12 McWilliam J.'s judgment. 13. The majority invalidated three of the claimants' convictions. McWilliam J. had invalidated two. 14. At pp. 7 and 8 of Hency J.'s judgment (Griffin and Parke JJ. con-

curring). 15. See The Moralitv of Law (1964) p. 53. 16. 283 U.S. 25, 27 (1931).

17. See, e.g., People v. Murray [1977] I.R. 368 (homicide); People v. MacEoin [ 1978] I.R. 365 (manslaughter) and People v. Dwver [1972 I.R. 416 (self-defence). 18. H.L.A. Hart, Punishment and Responsibility, (Oxford, 1968) p. 182 19. Ibid., at p. 140; see also the judgment of Stephen J. in R. v. Tolsot. (1889) 23 Q.B.D. 168. 20. Ibid., at p. 147. 21. Ibid., at pp. 150-151. 22. An example of an excuse is the defence of insanity. Self-defence is an example of a justification. 23. See Barbara Wooton, Social Science and Social Pathologv, esp. Ch. VIII. 24. Hart, Punishment and Responsibility, p. 181. 25. See Doyle v. Wicklow County Council [1974] I.R. 55. See also R. J. O'Hanlon, "Not Guilty Because of Insanity" 3 /r. Jur. (N.S.) 61. In The People (Attorney General) v. Hayes (Central Criminal Court, 30 November 1967), Henchy J., noting that "legal sanity does not necessarily coincide with what medical men would call insanity", said "but if it is open to the jury to say, as say they must, on the evidence, that this man understood the nature and quality of his act, and understood its wrongfulness, morally and legally, but that nevertheless he was debarred from refraining from assaulting his wife fatally because of a defect of reason, due to his illness, it seems to me that it would be unjust, in the circumstances of this case not to allow the jury to consider the case on these grounds". 28. [1963) I.R. 170. 29. Ibid., at 182-183. 30. Ibid., at 182-183. 31. See Cesare Beccaria, An Essay on Crimes and Punishment 26 (London 1767). 32. See George Fletcher, Rethinking Criminal Law (Boston 1978). 33. Ibid., at pp. 115-116. Fletcher argues, for example, that "manifest criminality" requires that larceny be found only where the conduct "bears the mark of a forcible or stealthful act of thieving" (at p. 86). 34. Ibid., at p. 118. 35. Ibid., at p. 389. 36. Ibid., at p. 120. 37. Ibid., at p. 170. 38. Ibid., at p. 171. 39. e.g., the presumption of innocence. 40. See McLaughlin "Legal Constraints in Criminal Investigation" (1981) XVI Ir. Jur. (NS) 217. Safeguard 26. State (Heah) v. Donoghue [1976| I.R. 325, 353. 27. In Melling V. O Mathgamhna [1962| I.R. 1, at 48.

ISm Business 'Hr Systems SAFEGUARD SYSTEMS IRELAND LTD.

LUCAN, CO. DUBLIN Telephone 01-282904/5. Full provision for V.A.T.

The Alternative to the Computer

A Safeguard Solicitors Accounting System in- corporating our unique Cheque Application will give you instant Book-keeping with full arithmetic control. Please write or phone for our free accounting manual and further infor- mation without, of course, any obligation. Comp l i es fully with the Solicitors' Accounts Regulations.

124