Justice Being Done?

Adrian Hardiman assesses the proposed Criminal Justice Bill.
Just as we are all presumed to favour motherhood and apple pie, so are we all against crime. Politicians are notoriouslyready to express such uncontroversial sentiments in the hope of getting the credit for them. In hard times, when it is difficult to imagine any government announcement raising a cheer, the cry "get tough on crime" is an obviously sound political ploy. So effective is it that many of those whose function it is to provide connstructive opposition are daunted and content themselves by saying "too little too late" as they pass the measure on the nod.

This is the likely fate of the Crimiinal Justice Bill. Released only last week, it has been previewed for months in ministerial speeches - in a highly selective fashion. It was portrayed as a simple measure to give the gardai obviously needed powers to deal with serious crime. Some of the more clearly popular measures like the five-year sentences for car

thieves were highlighted. So also was the proposal that defendants relying on alibis should give notice of them to the prosecution.

These measures, in principle at least, are unexceptionable (overdue in the case of sentences for car theft), and relatively easy to legislate for. So easy, indeed, that the minister did not feel it necessary to seek consulltation with the legal professional bodies. Public comment has focused on these and other high-profile aspects, such as consecutive sentences for crimes committed on bail. But these are not the only, or even the main, provisions of the Bill.

The unpublicised sting in the tail in this Bill is found in Sections 16 to 18, entitled "Inferences from Accused's Failure to Mention or Account for Certain Matters". It is impossible to overstress the size of the revolution these sections would effect in the laws of evidence, the conduct of trials and the role of the police. These changes would be for the worse, not the better. To explain why this is so, a little ltackground is required. ,

For some ten years past, the invesstigation of serious crimes has centred to an unhealthy extent on alleged voluntary confessions made by accused persons to gardai, usually in garda stations. Frequently these were the only evidence presented. Frequently they were absolutely repudiated by the accused once he or she ceased to be in custody. Sometimes, especially in the case of juveniles confessing to a series of, say, burglaries, they conntained admissions to crimes which the I <<accused could not have committed since he or she was in custody at the time of the crime.

TWo cases crystallised the disqUi~t which was widely felt about the over-use of this type of evidence. One was the well-known Sallins train robbbery case in which two of the three men convicted were freed by the Court of Criminal Appeal, despite "volunntary confessions". Then, in February 1981 the Supreme Court quashed the conviction of one Christophel Lynch for a murder in Sandyrnount, Dublin. The prosecution relied on a "voluntary statement" made after 22 hours of questioning with no opporrtunity to rest, sleep or contact any relative or independent person. Apart from technical grounds, the judgeements pointed out:

(a) that there was clear evidence that the deceased was alive some hours after the accused "admitted" to killing her;

(b) that he "admitted" to stranggling her with wire, whereas a scarf was used; .

(c) that there was no motive proved and only a ridiculous one suggested in the statement; ,

(d) that the accused's account at the trial was supported by indepenndent evidence.

Yet this man had been convicted and sentenced to penal servitude for life. '

Even before this, anxiety in this area had led to the establishment of the O'Brian Commission on treatment of persons in custody. This body made detailed recommendations which were ignored. Instead, we have this Bill. .

Looking at Section 16 of the Bill (see box) in this context, its impliications are disturbing. Firstly, it applies to every offence, even 'a parking ticket and not merely to "serious crimes". Secondly, it enviisages questioning by gardai, quite informally, with no recording or independent verification and no legal advice. Thirdly the person need not be even a suspect at the time of the questioning.

More serious by far is that "such inference(s) as appear(s) proper" may be drawn from a "failure to mention" a particular matter. Now, many people are quite unable to say what is or is not material to their defence. Even with the most careful advice and preparation lengthy consultation is necessary to elicit all material facts. Yet a person is by this section obbliged to live up to an objective stanndard of legal reasonableness, or face "such inference as appear proper" being drawn against him or her.

In other words he or she is being tried not only for the offence (for which there may be only the flimmsiest other evidence) but for his or her skill or lack of it in answering quesstions, perhaps about technical matters. Even this assumes that the conversaation is honestly and accurately recorrded. Yet there is no obligation on the garda even to write it down.

Section 17 is a similar provision about explanations of "objects, substances or marks" on a person, his or her clothing, in his or her possession or in a place where he or she is. Failure to explain may give rise to the u biquiitous "inference" against the defendant. Section 18 is another similar provision about failure to explain one's presence in a place. While Section 16 only requires mention of a fact which one might "reasonably be expected to mention", Sections 17 and 18 have no such limitation, so that mere ignorance can tell against a person.

When this is contrasted with the present law, the extent of the revoluution effect is apparent. The making of oral enquiries and the taking of statements are governed by the Judge's Rules. These enshire the obligation to caution a person if the garda decides to charge him or her and to say that what he or she says will be taken down in writing and may be given in eviddence. He or she is then invited to sign the written version.

These safeguards have been shown to be inadequate. Far from being strengthened, they are being abolished. The present rules require a parent or guardian to be present when a juvenile is questioned. This also goes in the situation envisaged by these sections. Most fundamental of all, the present rules require that no threat or induceement be offered to procure a stateement. In the Bill, it is proposed that enquiries be preceded by a statement "in ordinary language" that a failure or refusal to mention a fact which may be relied on in a hypothetical future defence to a hypothetical prosecution may lead to "inferences" being drawn.

Furthermore, this "mention" must be made to the agent of the adverse party who may or may not write it down. The effect of this will be that more and more criminal trials will turn into swearing matches, not about hard evidence, but about what was or was not said by a person to a garda.

If it is desired to introduce an inquisitory system of criminal justice - which is what these provisions do it should be done in' an open and considered way. Above all, the quesstioning must take place formally before an independent person and be recorded verbatim. These sections will turn most contested trials into crediibility contests with no impartial corroboration available. They will institutionalise the "verbal". They will certainly increase allegations of pure invention by the gardai.

Under the legal aid system, an impecunious accused is entitled to one, two or even three lawyers to defend him or her. This is because of the complexity of the law and facts, and the fact that the prosecution will have a similar team. But under the Bill, accused persons must make their own defence fully and accurately, without notice or advice, or risk .having their failure to do so made part of the evidence against them.

There is nothing so startlingly novel in the rest of the Bill, but it is noteworthy that Sections 3 and 25 markedly extend the power to detain without charge. Section 3 does this expressly, for offences punishable by five year's imprisonment or more. This includes the great majority of nonntrivial offences. A person can be deetained for six hours, or a further six if authorised by a Chief Superintenndent. This requirement is hardly a safeguard, for experience under the Offences Against The State Act suggests that such authorisation will not be refused.

Experience also suggests that this "power of detention" for questioning is wasteful, inefficient and oppressive. Under the English Prevention of Terrorism Act, 25 persons are deetained for every one subsequently prosecuted for a terrorist offence. Irish statistics are not so· detailed but a reply by the Minister for Justice in March to a Dail question revealed that, in normal figures, nine persons are arrested and detained under the Offences Against The State Act for every one charged with any offence. This is because under the Offences Against The State Act, as under this Bill, only "reasonable suspicion" of a garda is required for detention and the reasonableness of this suspicion cannot be checked because privilege will always be claimed. So the situaation will continue in which up to 80% of detentions do not meet their purrpose and cause great misery to innoocent people.

Apart from this power of detenntion, Section 25 (3) allows a person arrested on warrent after l Opm or arrested without warrant but charged after that hour to be held without being brought to court or before a Peace Commissioner up to (depending on court sittings) noon the next day. This appears to be almost an invitation to make arrests' on "holding charges" at a late hour and question the person then without even the safeguards provided for a person detained under Section 3. Only the integrity of the gardai will prevent abuse of this disingenuous provision.

Safeguards are provided in the Bill. Chief amongst them is a statement by the Minister for Justice that the Bill will not be brought into force until an independent complaints procedure is established. Such a procedure would be welcome, but only if it is fast, equipped with its own independent investigators, and with power to connduct oral hearings. It will be powerless to investigate complaints of abuse of the detention system unless it can override claims of privilege. For this purpose it must have power to sit in private, otherwise it should be public. There is as yet no indication from the Minister as to what he proposes. Such an indication should be given before the Bill proceeds further.

There is also power (no compullsion) for the Minister to provide for tape-recording of questioning. This could be vital in rendering acceptable what would otherwise be a mere swearing match. But it is also proviided that a failure to tape record, will not lead to evidence being excluded and this, in practice, will render the safeguard nugatory. There should also be a provision that any statement under the extraordinary Sections 16618 must be repeated on tape in order to be admissible. It is noteworthy that when, as a result of the Bennett report, video cameras and tape recorrdings were introduced into Northern Ireland's detention centres, the RUe effectively ceased large-scale reliance on "verbals" and confessions.

Finally, there is an obligation on the gardai to tell a detained person of his or her right to a solicitor. But there is no way of checking that this is done, which will again lead to swearing matches. It would have been simple to provide for the establishhment of a central register of detained persons, so that their whereabouts could be checked by 'phone. This, and a duty panel of solicitors would mitigate many difficulties in this area.

This article may seem to have been written from a standpoint of suspicion of the gardai. In fact the writer believes that the gardai are as worthy of trust as any institution of the state, and more so than many of them. But no power should be given without supervision, checks and balannces. Suppose the independent commplaints procedure is established with its own investigating force. Suppose that force were given, over gardai, the powers that the gardai are given in this Bill over the rest of us. Powers of arrest and detention, of search and seizure, to demand instant defences without advice. Would not the Garda Representative Association be loud in i demands for safeguards and repeal of the more obnoxious provisions? Quis custodient? Who guards the guardians?

*** Panel: Section 16  ***********************************

16.-(1) Where in any proceedings against a person for an offence evidence is given that the aceused-

(a) at any time before he was charged with the offence, on being quesstioned by a member of the Garda Siochana endeavouring to asscertain whether an offence had been committed, or by whom, or (b) when being charged with the offence or informed by a member of the Garda Siochana that he might be prosecuted for it,

failed to mention any fact relied on in his defence in those proceedings, being a fact which in the circumstances existing at the time he could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, then the court, in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or, subject to the judge's directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the. failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material, but a person shall not be convicted of an offence solely on an inference drawn from such failure.