The Gazette 1992

MARCH 1992

GAZETTE

Criminal Law in the 1990s - a European Perspective

Depending on how the jurisprudence develops in this area, this case could in years to come be considered to be of crucial importance in the criminal law sphere. For the first time, the Court has ruled that the EC Treaties impose duties on the Member States in the area of criminal law. Despite its importance, this case would not necessarily be widely known by criminal law practitioners. Protection of Rights - English Law Michael Mansfield QC spoke about the protection of rights, with particular reference to English Law. He referred to certain basic rights which he claimed had been eroded in the United Kingdom in the last 10 years. He called for the inclusion of these basic rights in a Bill of Rights. Much of what he said was common- place for Irish lawyers. Indeed, his proposals in relation to the right to bail were not as "radical" as the principles laid down by the Supreme Court in the O'Callaghan case in the 1960s, and which have recently been reaffirmed. For example, Mr. Mansfield was willing to accept that bail could be refused where there was a likelihood that further offences would be committed on bail. Another proposal that would be familiar to Irish lawyers was that confession evidence should be automatically excluded if an accused is denied access to his lawyer. Mr. Mansfield adopted a somewhat more radical approach on the right to trial by jury. He proposed that such a right should exist for 90% of cases. He suggested, for example, that a person charged with drunk driving or failing to pay an underground fare should have the right to jury trial. Doubts in France about Civil Law System Antoine Comte, a prominent French

system. It is interesting to note that the French are having doubts about their own Civil Law system at a time when many in the Common Law world wonder whether such a system might provide a panacea to all our difficulties. He said that certain questions have been raised as to government. As a number of cases in recent years have shown, the Irish judiciary is resolutely independent of the other branches of government in the discharge of its duties. A number of features of the French system are noteworthy from a civil liberties point of view. For example, most suspects are held in police custody for 48 hours; this is extended to 4 days in drugs and terrorist cases. During his period of custody the suspect has no access to a lawyer. Furthermore, if he is remanded in custody by the Examining Magistrate, the latter can control who visits him in prison - if even to the point of excluding members of his immediate family. The accused has no right of appeal against the magistrate's decision. It is also interesting to note that the role of the jury is very limited. Drugs offences and conspiracy whether French judges are sufficiently independent of offences (attracting a maximum penalty of 20 years and 10 years respectively), are examples of a wide range of offences which are tried without a jury by a panel of three judges. The third speaker was the Director of Public Prosecutions Mr. Eamonn Barnes. He delivered a closely argued address on the right to silence with particular reference to fraud prosecutions. His speech was given wide publicity at the time and led to a very useful debate on this part of our criminal justice system; it has already been the subject of an article by Michael Staines, solicitor, in last month's Gazette. (Cont'd on page 56) 55

On the 16 November, 1991 the Criminal Law Committee of the Law Society organised a one-day Seminar under the above title. The theme was chosen for two reasons. First, it was felt that any discussion of our criminal justice system should take account of developments in other European countries, including those with a Civil Law tradition. Inadequacies in our own system have frequently been attributed to the inherent weaknesses in the adversarial system. It was hoped that the Seminar would examine whether these criticisms were fair and discover what the alternative system had to offer. The second reason for the choice of theme was the increasing importance of criminal law in the context of the European Communities. This was touched on by the Attorney General, Harold A. Whelehan SC in his opening address. He explained that the substantial and worrying level of fraud against community funds, (sometimes estimated as being as high as 10% - 15% of the community budget), had led to a fresh examination of the criminal law of the Member States from a community perspective to see whether a contribution could be made to combating fraud by revising the law. The Attorney General also referred to the draft Treaty of 1976 which permitted the adoption of common rules on the protection under criminal law of the financial interests of the Communities and the prosecution of infringements of the Treaties. The 1976 proposals finally ran to ground 10 years later. The Attorney mentioned the 1989 judgment of the European Court of Justice in the Greek Maize case.

defence lawyer, gave a lucid exposition of the French legal