The Gazette 1990

GAZETTE

A PRIL 1990

with developments in society. This need, common to all countries, has become more pressing in recent years. The world has changed a lot since 1861 - even since 1916 the year of the last substantial enactment dealing with the criminal law of dishonesty. The intervening years have encom- passed many happy hours spent by criminal lawyers identifying the essential distinction between larceny by a trick and obtaining by false pretences, or between embezzlement, fraudulent conver- sion and larceny by a clerk or servant. These questions, however fascinating and gripping, seem to provoke a certain impatience in the general citizenry, particularly when some obvious crook is acquitted as a result of a difference of opinion between judge and prosecutor regarding them. Now, since the advent of automated banking, of electronic book keeping and vast credit transfers, of cheque guarantee cards and walls which speak money, the old dishonesty laws are frequently inadequate or irrelevant and it is possible to obtain large sums or credits dishonestly without breaking the criminal law, at least in a provable way. I am aware that the relevant authorities here and in many other jurisdictions are tackling this problem as a matter of urgency. But at present many undoubtedly dishonest actions cannot be made the subject of criminal proceedings. It may be that we need a different approach to the problem than that traditional- ly offered by the Larceny Acts or more recently in Britain by the Theft Acts, one in which the general concept of dishonesty would be the dominant factor, criminally

actionable in addition to some individually listed and specific examples of dishonest dealings. I do not know if it would be possible to draft or enact such legislation. What I do know is that the average citizen can recognise dishonesty when he sees it, and that without such a general concept offence, there will always be many who succeed in achieving their dishonest purposes while tech- nically remaining just outside the scope of a system composed only of rigid and precise prohibitions. If therefore we look at the question does the system work - in the context of the substantive criminal law, I think that we would answer "yes", but that it would work far better and constitute a much more effective deterrent to those inclined to break the law if it were simplified, modernised and codified. Review of Criminal Legal Process The question - does the system work - comes into somewhat sharper focus in the context of the Irish code of criminal procedure. I do not here propose to describe and contrast that system and the inquisitorial system which is used throughout continental Europe. Again, having already done so on more than one occasion, I would simply call to mind and fully endorse the observation of the distinguished Scots writer, public affairs commentator and passion- ate fighter for justice, Mr Ludovic Kennedy, when he stated that the inquisitorial system seeks to find the truth whereas the accusatorial system seeks to find a winner. While most, probably all, of you are familiar with our accusatorial

system, it may be worth while to recall a couple of its principal features. First, it starts with an accusation, which can be made properly and lawfully only if the prosecutor has sufficient evidence upon which a court could conclude beyond a reasonable doubt that the accused is guilty, i.e. evidence which is incompatible with any reasonable hypothesis other than his guilt. Now this is an extra- ordinarily heavy handicap on the prosecutorial process before it can begin at all, one which does not exist in the inquisitorial system. Its significance is not properly appreci- ated or debated, because it operates out of public sight and the public are almost entirely unaware of it. There is a dangerous com- placency about how effective our system is, based on the misleading impression which is created by the cases which go to court. Undoubt- edly there is a high conviction rate. This is precisely because a thorough filtering process has taken place before the cases get to court at all. In very many cases, the gardai do not even bother to submit a file to us, knowing what the inevitable decision will be. In many others we have to direct that there be no prosecution, or that a prosecution already initiated be withdrawn. Yet in a great number of these cases, neither the gardai nor my office is in the slightest doubt as to the guilt of the suspect. The second feature of the system of procedure to which I want to refer is that the same suspect, with one or two except- ions which are of very limited significance, is under no obligation whatever to participate at all in the search for the truth of the matter

Doyle Court Reporters Principal: Ái ne O'Far rell Court and Conference Verbatim Reporting Specialists in Overnight Transcription 2, Arran Quay, Dublin 7. Tel: 722833 or 862097 (After Hours) f E7(cettence in Sporting since 1954

163