Criminal Justice Act, 2007

johnnyskeleton

I just came across this in the Dail debates. For me it is indicative of the madness that might be unleashed on us:

Mr. McDowell: Section 43...An offence is committed where a person has possession of an article in circumstances that give rise to a reasonable inference that they have it for purposes of committing one of the offences listed. It is a defence for the person to show that he or she did not possess it for the commission of an offence. Therefore, if a person had plastic bags, weighing scales and sugar piled up in a flat in Dublin, in circumstances that would give rise to a reasonable inference that they were preparing to engage in drug dealing, this section would criminalise that behaviour. It would be open to a person to say they had the items for some other reason — perhaps he or she is a baker.

Mr. Howlin: Selling sugar.
Mr. McDowell: Selling sugar or whatever.
Mr. Cuffe: Baking a cake, possibly.

dermot_sheehan

I'm more concerned with the mandatory sentencing provisions under section 24. It's basically similar to the three strikes and you're out law that exists in many american jurisdictions, commit a scheduled offence within 7 years of a conviction for one of scheduled offences in the act (for which you recieved a penalty of at least 12 months in prison, whether suspended or not), and you're in for a mandatory 10 years.

Leaving aside the desirability of such a policy, if the state wants to implement such a statute, they should start building prisons now or there will be an overcrowding crisis within the next 2-3 years in our prisons.

Tom Young

I find most of the bill quite worrying.

At a macro level, we are borrowing a lot from the US in the Gardai and also various legislation, as well as judgements, e.g., A v. Governor of Arbor Hill Prison (SC appeal) judgement of Murray, CJ. quoting Cardozo J. and ordering rearrest on policy grounds. This is something of a controversial example but the whole thrust is awfully worrying. I don't wish to start a debate on that particular case as a topic.

My post really is commenting that as a nation rushed legislation is a problem, I have worked three ill drafted and constructed bills in most recent weeks:

1. CJ Bill 2007.
2. Consumer Bill 2007 (Sections 48 to 53).
3. Communications Regulation (Amendment) Bill (Generally conveying competition powers on a regulator).

Some might say its blatant electioneering. Civil Servants last after natural lifespans of elected governments, thus do draft bills constructed by same said, and in most cases talented Civil Servants. Any rushed legislation is really not useful.

Tom

johnnyskeleton

I agree that the whole bill is pretty scary, but this little interchange brought home to me how ridiculous some of the provisions are, and the seeming inability of the Minister to understand this.

Lets say that you are a juror, and the evidence is that the gardai enter a premises and find plastic bags, weighing scales and sugar piled up but no actual drugs. The accused gives believable evidence to the fact that they are just normal kitchen implements. The Gardai cannot contradict the defence's assertion (how can you say that scales, plastic bags and sugar are not normal kitchen instruments).

There are, in my opinion, two possible possibilities:
1) He is a baker, and therefore innocent
2) He is a criminal, but there is no way to prove that he is not a baker, therefore he gets the benefit of the doubt.

On the face of it, it does not seem possible to get a conviction on these grounds alone. So we would need:

A) one of those casual slips from the garda - "the accused man is known to me from numerous other occasions, judge", which lets the jury convict.
the jury to assume that because the gardai obtained a warrant on "confidential information" that there is no smoke without fire, and therefore convict on suspicion.
C) the jury to be invited to disbelieve the accused "because he's a clearly a drug dealer" and convict on that basis.

If this bill passes, you can keep your weighing scales and your plastic bags, your weighing scales and your sugar, or your plastic bags and your sugar, but no citizen in Ireland can keep all three of these normal household items without risking criminal conviction.

maidhc

johnnyskeleton wrote:

If this bill passes, you can keep your weighing scales and your plastic bags, your weighing scales and your sugar, or your plastic bags and your sugar, but no citizen in Ireland can keep all three of these normal household items without risking criminal conviction.

Well just be glad the FG amendment wasn't accepted or your local garda could break down the door of your dwelling withouth a warrant, catch you red handed making a cake, and still secure a conviction.

Madness, fecking hysteria. It was good though to see on Prime time the other night most of the audience thought things needed to be slowed down a bit.

I was also dissappointed that M McD stooped to the level of "what about the human rights of the victims". It is sad to see a senior counsel talk in tabloid rhetoric.

Our man in Havana

The supreme court will be kept busy by this. Do you reckon there may be an article 26 inquiry into the bill at the behest of Úachtaran na hÉireann?

Tom Young

Given the presidents past i.e., former Reid Professor of Criminal Law, it would be nice to think she'd refer this. I am fairly glad that the letter from the law library was sent forward. The low amount of signatures worries me slightly but on the other hand its possibly putting aspects of reality and concern on the record.

johnnyskeleton

Bond-007 wrote:

The supreme court will be kept busy by this. Do you reckon there may be an article 26 inquiry into the bill at the behest of Úachtaran na hÉireann?

Well, I should first say that (with all due respect) our current president has not been mad about art. 26 references on any of the other dubious recent acts (EAW, Sex Offences, etc) so I don't see why she'll start now.

If the bill passes an art. 26 reference, it cannot be challenged again. Going on hypothetical objections without the specific circumstances of prejudice is always hard (notwithstanding the clear difficulties with this bill). However, one bad provision will knock back the whole bill which is much better than challenging it piecemeal.

I'm kinda hoping that it will be put back until after the election, or voted down for political gains, but if it makes it to the supreme court I'll be fairly worried.

Our man in Havana

Would they be likely to strike it down?

johnnyskeleton

Tom Young wrote:

The low amount of signatures worries me slightly but on the other hand its possibly putting aspects of reality and concern on the record.

The low amount reflects the speed at which signatures were collected. There was an updated list with much more signatures, but didn't draw much extra publicity.

Bond-007 wrote:

Would they be likely to strike it down?

The're amending the hell out of it at the moment, so who knows what it will look like when passed by the oireachtas. I would like to think that if it could breach the constitution in any possible way it will not pass an art. 26 reference. In an ideal world...

maidhc

johnnyskeleton wrote:

I would like to think that if it could breach the constitution in any possible way it will not pass an art. 26 reference. In an ideal world...

If I was the president I would be very wary about an Art 26. The judiciary are getting a lot of flak about being soft on crime. Of course it shouldn't influence them, but if they did find it constitutional it would then be immune from further challenge.