The Gazette 1983

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. 77 No. 9 November 1983 More Law — Less Justice? O NE of the most worrying aspects of the Criminal Justice Bill is not to be found in its pages. It is the manner in

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. •

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