The Gazette 1990

GAZETTE

A PRIL 1990

Does the Irish criminal justice system work?

what he might have been trying to achieve as he conjured up a hundred different circumstances in which the same basic offence could be committed. 1861 as we all know was one of the vintage years in the mother of parliaments. Luckily there have not been too many such years. Among the allegedly reforming and consoli- dating measures inflicted upon us in that year and with which we still have to struggle daily were a Larceny Act, a Forgery Act, an Accessories and Abettors Act, an Offences against the Person Act and a Malicious Damage Act. Above all a Malicious Damage Act. Did you know that under Section 3 if you were over 16 years you could be awarded penal servitude for life or not less than three years or (a common alternative provision in Victorian statutes) imprisonment for not more than two years with or without hard labour and solitary confinement, for setting fire to a hopoast or a hovel or a fold. I might mention that if you were un-

It seems to me that with a captive audience of lawyers, it would be a pity to miss the opportunity of riding one or two of my hobby horses, of reminding ourselves of the nature and structure of the Irish criminal justice system and of seeking to identify its strengths and its weaknesses. The question I am going to consider is - "Does the Irish criminal justice system work?" In an address such as this it is the 19th century. In so urging, I am

obviously not possible to give a comprehensive description of the system or an all embracing answer to the question. Some aspects of the system obviously do work. I propose to refer only to two of the main elements in the system and to examine briefly whether or not they are adequate to their task. In doing so, I will not enlarge on what is arguably the most important obser- vation that can be made about the Irish criminal justice system - that, sadly, it is not in fact Irish at all in any real sense. The reason for my silence on that point is that I have already spoken at some length about it on more than one occasion, notably in an address which I had the honour to give at the Cearbhaill O'Dalaigh Memorial Dinner in 1988 and in addresses last year to the American Bar Association and to the University College Galway Law Graduates Association and I don't wish to become repetitious on the matter. I would however urge upon this Society, which collectively is such a repository of jurisprudential wisdom and experience, the pressing need for a justice system which is the product of native genius and responsive to native needs and conditions. The system we have was not designed for and never suited the problems it was supposed to address in Ireland. In my opinion it no more suits them today than it did in the middle of

not of course suggesting that we should not be responsive to legal thinking and developments in other jurisdictions and systems. Even if that were desirable, which it is not, it would not be possible in this day

by Eamonn M. Barnes Director of Public Prosecutions

and age. Indeed the more cross- fertilisation there is between legal systems the better. But the basic system should accurately reflect both the nature and the needs of the society which it serves. Regrettably, I believe that that is not the case. That general com- ment made, let us look a little more closely at two of the constituent parts of the system. The first of these is the criminal law itself. From the prosecutor's point of view, and I suggest from that of the citizen also, the criminal law is in urgent need both of modernisation and of codification. A very great deal of the day to day commerce of my office is con- cerned with imprecise and ancient common law concepts and offences, some described in Norman French or Elizabethan English by Messrs Coke, Hale and Blackstone, or else with overly precise definitions and delineations by that extraordinary animal, the mid-19th century legislative draftsman. It is difficult to fathom

"Address

by Mr Eamonn M. Barnes,

Director

of Public Prosecutions,

to the

Incorporated

Law Society

on May 4, 1990 in the

Hotel

Eamonn M. Barnes.

Europe,

Killarney.

161