New law will eliminate Double Jeopardy.

Danuogma

Under the guise of securing convictions against "gangland" criminals the Double Jeopardy rule is going to go out the window, people can now be tried several times for the same crime. This is wide open to all sorts of abuse.

Monday December 29 2008

Tom Brady Security Editor

The Director of Public Prosecutions is to be given new powers to seek a fresh trial for a crime suspect if the initial case ends in an acquittal due to witness intimidation or perjury.

The move is seen as a vital new weapon in the armoury of the prosecution, particularly where the trials involve major gangland figures or subversives.

In the recent past, criminal trials have been transferred to other locations because of the fear of tampering with the judicial process, while there have also been grounds for suspicion that witnesses or jurors have been 'got at' by associates of the accused.

During the trial of members of the Provisional IRA for the murder of Det Garda Jerry McCabe, who was shot dead outside a post office in Adare, Co Limerick, in June 1996, the prosecution was forced to accept a plea to manslaughter after it became clear a key witness had been intimidated.

The new powers for the DPP are included in a package of legislative measures that have now been approved by the Cabinet.

Justice Minister Dermot Ahern last night announced that he had been given clearance to press ahead with the package, which, he said, contained far-reaching reforms and groundbreaking proposals. They will be contained in the Criminal Procedures Bill, which will be published early in the New Year.

The DPP will also have the power to appeal against an acquittal and seek a new trial where he believes the acquittal was due to an error in law by the trial judge.

The Bill will include another measure, announced earlier this year by the minister, to eliminate the 'double jeopardy' rule. This means the DPP can apply to have cases retried following an acquittal where compelling new evidence later emerges.

Full:
http://www.independent.ie/national-news/dpp-gets-new--retrial-powers-if-witnesses-intimidated-1587143.html

Our civil liberty's are getting scrapped, one by one

Liam Byrne

Danuogma wrote: »

Our civil liberty's are getting scrapped, one by one

Doesn't sound like it to me...

where compelling new evidence later emerges

It's about time the "civil liberties" of repeat scumbags were eroded - if they don't live by society's rules, then we should be entitled to redefine those rules.

If the above said "on a whim", then fair enough - someone innocent could get "done". But I've no problem whatsoever with what's proposed above.

Honest people should have nothing to fear from either the justice system or from scum. And the above measures are being introduced because of intimidation from scum.

I'd prefer to be at the mercy of a justice system than scum; at least there's a reasonable chance that the justice system would be fair.

Kristopherus

Long overdue. There are umpteen examples of scumbags avoiding the clink on dubius grounds. If it weas my call, I would go back and retry some very high-profile cases, and send out a very clear message to one and all that intimidation/pergury/refusal to testify, etc., etc. will not be tolerated.

P. Breathnach

I never saw the point of the double jeopardy rule.

you could, and I believe sometimes did, have the phenomenon of a person being acquitted, then admitting to the offence, knowing that he or she was now safe from prosecustion.

Liam Byrne

Sure even the above example contained a SERIOUS anomaly; initially, SF/IRA SWORE BLIND that it WASN'T "official" and wasn't a breach of the ceasefire, but later when they wanted the scum released they started saying that it was covered because it WAS official.

And I've just thought of something; if someone gets intimidated by some scum, does the above mean that they could write their testimony into their will, so that when they died and were no longer at risk, the scum could be tried again and then convicted ?

Of course, if we didn't have a crap revolving-door system with scum committing crimes while out on bail on multiple crimes, then people mightn't be intimidated.

While the above is welcome, I'd prefer to see Fianna Fail actually introduce the zero tolerance proposal that helped them get elected ten years ago.....what the f**k happened that, or was it just another of their cons ?

johnnyskeleton

Also discussed here: http://www.boards.ie/vbulletin/showthread.php?t=2055451018

My view, in brief, is that while some of the reforms may be good, the reality is that this is just the government trying to look tough on crime without wanting to spend any more money on gardai, prisons, the DPP's budget, compensating victims etc. It's much easier to say "This new law is tough on crime" than it is to give over several billion to create a system that works well. That's forgetting any attempts to divert kids away from crime and drugs, which is equally important.

Also, most people are of the view that crime has increased significantly in recent years - while FF were in power. It is precicely because they try to paper over the cracks rather than pay for maintenance that we're in this situation, so more law is not what we need, we need more action on crime.

This is the politics forum, so this is perhaps the slant that should be discussed here. The more people go into this "hang 'em & damn 'em" or "bloodly [insert judges/lawyers/cops/prison guards/scumbags]", the more they are allowing FF to get away with not doing anything substantive to combat crime.

Does anyone else agree with me, or am I just pissing in the wind?

Kristopherus

Does anyone else agree with me, or am I just pissing in the wind?

Possiiby against the wind as well :rolleyes:

Victor

Danuogma wrote: »

New law will eliminate Double Jeopardy.

Surely you mean they are trying to implement double jeopardy?

That you mistook the concept entirely make me suspect you aren't too serious about it.

Ziggurat

Kristopherus wrote: »

Does anyone else agree with me, or am I just pissing in the wind?

Possiiby against the wind as well :rolleyes:

I'm one of those that believes the job of the Gardaí and legal system should be made as difficult as possible. It is their job to prove guilt, not the accused to prove their innocence.

Danuogma

Quinine wrote: »

I'm one of those that believes the job of the Gardaí and legal system should be made as difficult as possible. It is their job to prove guilt, not the accused to prove their innocence.

Yeah spot on. If the police and the courts have carte blanche to drag people into court as many times as they like for the same crime then they will abuse that power. Why does everybody have to give up rights for the sake of a few "gangland" (*copyright Paul Williams) scumbags?. They should set up a proper witness protection program, the one we have is an effen joke.

humanji

Did you even read the article? It doesn't give the gardai carte blanche at all. They have to get suitable grounds for a re-arrest. And you can pretty much rest assured that they won't do it lightly. If someone got off a conviction on a technicality, the gardai are going to make sure that they can fully prove guilt and that they cross all the T's and dot all the I's.

Liam Byrne

One other thing re the "erosion of civil liberties" that the OP perceived this as.......the civil liberties are ALREADY being eroded by the scumbags who are affecting the lives of many, many people........

If we, for a second, allow for the opinion that it might be (even though I don't think it is), who would the OP prefer erode our freedom and way of life ? Gardai or scum ?

And as for the poster who reckoned the Gardai's job putting away "people known to Gardai" and scum and repeat offenders should be more difficult......I'm actually speechless for once!

Ziggurat

If we, for a second, allow for the opinion that it might be (even though I don't think it is), who would the OP prefer erode our freedom and way of life ? Gardai or scum ?

I think I can safely say the OP would prefer neither. For myself, I'd rather take my chances with criminals. The damage they can do is nothing compared to a corrupt judicial system.

I'm sure Benjamin Franklin's famous quote has been oft repeated enough that I don't need to do so here.

And as for the poster who reckoned the Gardai's job putting away "people known to Gardai" and scum and repeat offenders should be more difficult......I'm actually speechless for once!

I stand by what I said. Though it was more a blanket statement, not just directed at this move. Anything that makes putting people away easier for the Gardaí should be opposed at every step; their job is made difficult to ensure innocent people aren't wrongly convicted either due to incompetence or corruption.

oscarBravo

Quinine wrote: »

I'm one of those that believes the job of the Gardaí and legal system should be made as difficult as possible. It is their job to prove guilt, not the accused to prove their innocence.

Would you approve of a proposal to reduce the number of Gardaí to, oh I dunno, let's say five? That would make their job all but impossible, which should fit nicely into your stated philosophy.

Ziggurat

I think that's a misrepresentation of my position, oB, or perhaps I wasn't being clear. Bringing a conviction should be made difficult, that is what I was referring to.

Irlbo

Welcome to police state facist Ireland,if a trial fails to secure the recommended conviction,due to witnesses being interfered that,thats the state and the gardais problem for not offering adequate proctection,if someone is tried and the state doesnt get the desired outcome,the end result is final,and if its a disapponitment,then they cant cry like a baby and demand new trials till they get a conviction,its a joke and Im sure is in breech of someones rights and against EU law

oscarBravo

Quinine wrote: »

Bringing a conviction should be made difficult, that is what I was referring to.

I disagree vehemently. I think it should be as straightforward as possible to obtain a conviction, with all necessary safeguards in place to make sure that such a conviction is safe.

If you were the victim of a crime, would you be as keen to make the Gardaí's and courts' jobs as difficult as possible?

oscarBravo

Irlbo wrote: »

Welcome to police state facist Ireland...

Dear gods.

...if a trial fails to secure the recommended conviction,due to witnesses being interfered that,thats the state and the gardais problem for not offering adequate proctection...

No, it's society's problem. If the state fail to secure a conviction against a violent criminal as a direct result of that criminal's violence, then society ends up with a violent person at large instead of in custody.

Of course, if you live in the delightfully black-and-white world where it's cops versus villains and the rest of us are spectators, then no harm done. You get to pick a side, and more and more often people are prepared to cheerlead for the forces of lawlessness and violence than for the forces of law and order. If you're one of those: shame on you.

...if someone is tried and the state doesnt get the desired outcome,the end result is final,and if its a disapponitment,then they cant cry like a baby and demand new trials till they get a conviction,its a joke and Im sure is in breech of someones rights and against EU law

A tenner says you won't be able to quote the EU law in question.

sceptre

Irlbo wrote: »

Im sure is in breech of someones rights and against EU law

Unfortunately for your case, I'm sure it's not.

Protocol 7, article 4 of the European Convention on Human Rights reads:

No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

Note the word "finally". What constitutes "finally" is a matter for the parliament in the particular country.

Koloman

Danuogma wrote: »

Yeah spot on. If the police and the courts have carte blanche to drag people into court as many times as they like for the same crime then they will abuse that power. Why does everybody have to give up rights for the sake of a few "gangland" (*copyright Paul Williams) scumbags?. They should set up a proper witness protection program, the one we have is an effen joke.

What rights will we have to give up? The Gardai need more powers not less in my opinion. I think people need to wake up and realise how tame and impotent the Police and courts are in this country compared to many of our EU neighbours, never mind the US.

Ziggurat

oscarBravo wrote: »

I disagree vehemently. I think it should be as straightforward as possible to obtain a conviction, with all necessary safeguards in place to make sure that such a conviction is safe.

I can understand your position, really I can, but I don't believe the judicial system is capable of such self-examination to ensure corruption and incompetence doesn't creep in. Yes, I'm aware you can extend that to practically every other human institution but there are some it is more relevant to than others.
Or maybe it is, and I'm being too cynical, or throwing the baby out with the bathwater.

If you were the victim of a crime, would you be as keen to make the Gardaí's and courts' jobs as difficult as possible?

Yes, I see what you mean. I'll have a think about what you've said.

Liam Byrne

Quinine wrote: »

For myself, I'd rather take my chances with criminals. The damage they can do is nothing compared to a corrupt judicial system.

Yeah - much better chance of getting on with your life if shot or stabbed to death by a scumbag than if you were accidentally convicted and then released. :rolleyes:

Anything that makes putting people away easier for the Gardaí should be opposed at every step; their job is made difficult to ensure innocent people aren't wrongly convicted either due to incompetence or corruption.

Who's talking about innocent people ? These are people who were tried (with some evidence that was originally thought to be enough to get a conviction) and they want to re-try because of ADDITIONAL evidence.

IN FACT, if you'd said "anything that makes putting innocent people away", I'd have agreed with you; in fact, I'd support anything that made it impossible to put innocent people away.

But known thugs who intimidate people and get off scot-free or commit additional crimes while on bail ? The more opportunities to put THEM away the better.

All people are created equal, and should have equal rights, but those who infringe on others' rights should have their own rights diluted proportionally.

Liam Byrne

Irlbo wrote: »

Welcome to police state facist Ireland,if a trial fails to secure the recommended conviction,due to witnesses being interfered that,thats the state and the gardais problem

It might be the state and Gardai's problem (and we the public ARE the state, so I'm glad that you recognise that the proposal is to help solve a problem of all of ours) but aren't you overlooking whose fault it is - i.e. the criminal being tried ?

Y'see, there's the fall-down in your argument as quoted above. IF it is (and it IS your precise quote) "fails to secure the recommended conviction,due to witnesses being interfered with", then you're saying that THE ONLY REASON for them not to be convicted is the interference - i.e. your statement says that the person is 100% guilty of the crime.

If they weren't, there would be no need to interfere, and the interference wouldn't be the ONLY REASON for a failure to convict. So if there's interference, the person is guilty of the original crime.

And your statement ALSO says that they're guilty of interfering with witnesses - ANOTHER crime by the same person.

And you're happier to have that person walk free than to help society and the Gardai and judges lock them up ?

Irlbo

Liam Byrne wrote: »

It might be the state and Gardai's problem (and we the public ARE the state, so I'm glad that you recognise that the proposal is to help solve a problem of all of ours) but aren't you overlooking whose fault it is - i.e. the criminal being tried ?

Y'see, there's the fall-down in your argument as quoted above. IF it is (and it IS your precise quote) "fails to secure the recommended conviction,due to witnesses being interfered with", then you're saying that THE ONLY REASON for them not to be convicted is the interference - i.e. your statement says that the person is 100% guilty of the crime.

If they weren't, there would be no need to interfere, and the interference wouldn't be the ONLY REASON for a failure to convict. So if there's interference, the person is guilty of the original crime.

And your statement ALSO says that they're guilty of interfering with witnesses - ANOTHER crime by the same person.

And you're happier to have that person walk free than to help society and the Gardai and judges lock them up ?

We need a fair and just judicial system,and what you mention above doesnt entitle us to that,and as someone else has already stated,I'd prefer to take my chances with crimianals then live in a country with a corrupt and unjust judicial system,the point you seem to be making is that its ok to get a conviction by any means as long as the big bad criminals are being locked up,thats all well and good,everyone wants to see scumbags who are a threat to soceities and communities taken off the streets,but what about the small amount of innocent people that will suffer as result this new 'law',should we not have a court system that is fair and impartial,I'll tell you what,instead of bringing in dubious methods to convict people who the state failed to prosecute,how about new laws and methods brought in to punish those in the upper tiers of society who are responsible for most of the crime that stems working class areas and are the real godfathers of crime,unscruplous greedy property developers,corrupt politicains and civil servants,and instead of having them driven to tribunials in limos to be asked a few questions,lets have them before the criminal courts for fraud,courruption and so on,and have them all go to prison,instead of making Frank Dunlop the scapegoat,who was treated with extreme leniacy despite robbing more then any of the armed robbers out there,we really need get our priorities right in this state,yes there are drug dealers and bank robbers and all sorts of scum out there,but thats to be expected,crime is something that never be completely erradicated,as you said above society is the state,shouldnt we be more worried about people in power that can do damage and get away with then people with none who cant?

Victor

Irlbo wrote: »

instead of making Frank Dunlop the scapegoat,who was treated with extreme leniacy despite robbing more then any of the armed robbers out there

In fairness Dunlop has effectively admitted guilt and is the star witness that may yet see people go to prison.

Its a principal of our justice system to show mercy to those who admit guilt and to grant bail to those who are low flight risks.

Liam Byrne

Irlbo wrote: »

We need a fair and just judicial system

True.

Irlbo wrote: »

the point you seem to be making is that its ok to get a conviction by any means as long as the big bad criminals are being locked up

Show me where I said "by any means", please. Otherwise stop misrepresenting me.

Irlbo wrote: »

what about the small amount of innocent people that will suffer as result this new 'law'

Under what circumstances exactly would you see the judicial system coming back to court with significant and substantial additional evidence if the person was innocent ?

And as far as I can see, this is aimed at situations where a witness has been intimidated, and - as I said already - I can't see a witness being intimidated by the poor unfortunate innocent person that you describe. Can you ?

Irlbo wrote: »

how about new laws and methods brought in to punish those in the upper tiers of society EVERYONE who are responsible for most of the crime.

Clarification : the bulk of the above quote is Irlbos, but the bolded "EVERYONE" is mine to replace the [crossed-out] highly selective proposal, because that's what I believe the court system should be doing. Why Irlbo is proposing that we leave the scum alone and focus on the white-collar criminals is beyond me. MY suggestion is that we focus on both, ensure they're locked up (or maybe preferably dead), and let law-abiding citizens get on with their lives.

Irlbo wrote: »

shouldnt we be more worried about people in power that can do damage and get away with then people with none who cant?

No. We shouldn't be "more" worried about them. We should be equally worried about them.

Oh, and re the "people with none who cant [get away with it]".....it's the fact that they CAN get away with it that is the very reason for this new law, so I can't for the life of me see where you're coming from with the above. Also, the way it's phrased, you're saying both do damage, but people with power get away with it and people with none don't ? So that argument has nothing to do with innocent people ? If that's the case, why are you so against locking them up ?

Liam Byrne:

Every legal student in the common law world learns 2 things within the first 2 weeks of their education:

a) It is better that 10 guilty men go free than one innocent man suffer;
b) When the individual is accused of a crime, with the full weight and power
of the State standing against them, he should never have to prove his
innocence. Rather the State shall have to prove his guilt beyond all
reasonable doubt.

The underlying principle of b) is that the law exists not to attack the individual accused of a crime but to protect them. One of these protections is that a person cannot have the law used by the State to attack them. Of course this law is prone to abuse. The State can hold back evidence from the court and produce "new and substantial" evidence to drag out a process that takes years as it is. I am not saying this would happen, simply pointing out that the law is certainly apt to being abused.

Furthermore, your argument that "the innocent have nothing to fear from this new law" is incredibly naive. It is that line of thinking that has lead to countless draconian laws being introduced in democratic states including, possibly the most famous example, the House Committee on Un-American Activies which destroyed the lives of everyone from office secretaries to Oscar nominated actresses. Oh and everyone is innocent until proven guilty, so by your logic nobody has anything to fear from this law, even those you would label criminals before anything has been proven.

Liam Byrne

FFS!! There's people posting about preferring to trust known thugs and criminals rather than give the Gardai the benefit of the doubt!

That's just WARPED!

Deleted User wrote:

The State can hold back evidence from the court and produce "new and substantial" evidence to drag out a process that takes years as it is. I am not saying this would happen, simply pointing out that the law is certainly apt to being abused.

WHAT ????? You're saying that the state wants to convict someone, has evidence that could possibly do it first-time, but holds it back to produce later, thereby weakening their original case and increasing the likelihood of the scum getting off ? Get real!

If it was an X-Files style "trust no-one", then fair enough, and ANYTHING is open to abuse, but if witnesses are being intimidated and convictions falling through BECAUSE OF THAT, then that implies the guy is guilty and something needs to be done.

If a bouncer frisked EVERYONE for guns on the way into some nightclub, I'd be a little worried about the clientele, but at least you know you'd be safe. And if it's EVERYONE, then no-one is being singled out or discriminated against.

The crap I've read above ("go after white collar criminals INSTEAD OF thugs", or "I'd trust and take my chances with criminals before I'd trust the Gardai) is sickening!!

If anyone wants to have a reasoned discussion, fair enough; mind you with pathetic comments like "police facist state Ireland" flying around, I shouldn't be surprised.

Ireland has a problem with serious criminals, and it needs to be sorted NOW!!! Actually, it needed to be sorted ten years ago when FF promised "zero tolerance", but that was just an election ploy that they abandoned as soon as they got in.

So no, I don't trust the Government either; but trusting them less than thugs and murderers is psychotic to say the least.

That's my last post on this because I've said my piece and the thread seems to have been hijacked by wannabe anarchists.

turgon

On this issue, some people get caught up with their personal liberty ideals. Look, if more of the gangs are going to get put in prison, what the hell is the problem?

Liam Byrne

Liam Byrne wrote: »

WHAT ????? You're saying that the state wants to convict someone, has evidence that could possibly do it first-time, but holds it back to produce later, thereby weakening their original case and increasing the likelihood of the scum getting off ? Get real!

Nope, never said that. In fact in the statement of mine you quoted I actually state that I am not saying that could happen, rather that theoretically it is open to abuse.

That abuse would not be in cases where the Gardai have sufficient evidence to convict someone but rather where they do not but wish to conduct a vindictive campaign against a person they believe to be guilty but cannot discharge the reasonable doubt burden of proof. Would you like to tell someone in Donegal that it is not possible for the Gardai to do this sort of thing?

Furthermore, at no point did I state that I want to see white collar criminals pursued instead of thugs. If you want to have a reasoned discussion I will but let's stick to what I actually said rather than what you think I said.

Lastly; your analogy with the bouncer frisking people entering a nightclub is not accurate. It is not a minor inconvenience to be falsely accused of a crime. Nor is it a minor inconvenience to go through the criminal justice system. Oh, and there is already double jeopardy in this country. As was noted in the Irish case of Registrar of Companies v Anderson

Chief Justice Murray wrote:

It has for a long time been a principle of the common law that a person cannot be prosecuted and punished for an offence of which he has already been acquitted or convicted. This is commonly referred to as the rule against double jeopardy. It is a rule which applies to the prosecution of criminal offences. The rule, or what also might be called the notion, of double jeopardy is not normally relied upon in express terms in the sense that if a person is prosecuted for an offence arising out of the same breach of the law or the same essential ingredients for which he has previously been tried and either convicted or acquitted, his defence to the second prosecution will be based on the pleas of autrefois acquit or autrefois convict. If either plea is successful the prosecution may proceed no further.

Furthermore in a case published this year the court further noted that Double Jeopardy was only a defence to a future conviction, not an automatic right to never be tried on that issue again. Double jeopardy gives rise to the defences of autrefois acquit and autrefois convict. In the case of either the prosecution* can rebut these defences.



OK, really the reason I am arguing with you is because you clearly do not know what you are talking about.

Take a look at the article at the opening of this thread. Have a good read of it. OK, ready for a real surprise????

That is the current law anyway. That is exactly how the courts approach this area of law as it currently stands since 2005. The legislature just want to give legislative authority to the DPP to do what the courts have already said is the exclusive prerogative of the Director. (See: McLoughlin -v- Tuite[1989] IR 82; Registrar of Companies -v- Anderson[2005]1 IR 21 and DS -v- District Court Judges of Cork and the Director of Public Prosecutions [2009]1 ILRM 16 )

When Dermot Ahern says his "new" measures will be far-reaching he is talking out of his backside. This is a lovely Government trick. Appearing to be active is better than actually being active. The judiciary will continue to exercise it's jurisdiction in this area exactly as it has been doing and this bill won't change that in the slightest. Oh, and if anyone feels up to it they can get the new bill struck down as unconstitutional as it arguably violates Art. 38.1.

*The "prosecution" was noted by the court in DS v Judges of the Cork Circuit Court & ors. to be the DPP. They are the appropriate authority to request re-trials and the courts will determine their validity.

turgon

turgon wrote: »

On this issue, some people get caught up with their personal liberty ideals. Look, if more of the gangs are going to get put in prison, what the hell is the problem?

If all the gang members, every last one of them, went to prison but in order to make sure that happened you had to accept that about 25 innocent people were going to end up in jail too so you didn't miss any of the gang members would that be acceptable?

People are always glib about civil liberties until they need them.

Irlbo

Deleted User wrote: »

If all the gang members, every last one of them, went to prison but in order to make sure that happened you had to accept that about 25 innocent people were going to end up in jail too so you didn't miss any of the gang members would that be acceptable?

People are always glib about civil liberties until they need them.

Spot on,explained it better then I ever could

Liam Byrne

Deleted User wrote: »

If all the gang members, every last one of them, went to prison but in order to make sure that happened you had to accept that about 25 innocent people were going to end up in jail too so you didn't miss any of the gang members would that be acceptable?

People are always glib about civil liberties until they need them.

Fair enough, and you're right, but you're also scaremongering.

Again, go back to what's proposed; it's by no means aimed at normal innocent people.

If it were some sort of internment based on suspicion, fair enough, but it's where (a) there was enough evidence for a court case and (b) the court case fell through under suspicious circumstances and (c) significant additional evidence was found.

If you can show me an example of an innocent person that satisfies a, b & c, then I'll take your objection seriously.

Liam Byrne

Liam Byrne wrote: »

If you can show me an example of an innocent person that satisfies a, b & c, then I'll take your objection seriously.

Every single person accused of a crime is innocent until proven guilty. No matter how guilty you "know" they are.

Also, how am I scaremongering exactly? With the gang member's analogy? It has been a central idea of the legal system in Ireland and England for 5 centuries that it is better to see 10 guilty men go free than see a single innocent man suffer.

Mostly I have a pretty big problem with your logic. "Innocent people have nothing to fear". This is a terrible justification for your position. How about you try this one instead: The State should, so as to ensure the proper administration of justice, have the ability to ask the court to re-try an issue where they can show that there is substantial evidence, unavailable to the prosecution at the material time of the initial substantive trial, that would rebut the defence of autrefois acquit.

The benefit of this line of logic is that it is the exact line of logic which the Irish courts have been using for a good number of years now. Good men with good intentions should not set precedents for bad men with bad ones. The logic of "the innocent have nothing to fear" means that there is literally no civil liberty which cannot be impinged upon. Domestic surveillance of all homes (who cares if the Government hear what you say, only the guilty have something to fear), polygraph tests for everyone yearly to make sure they have broken no crimes; after all only the guilty will have something to fear, and so on and so forth.

You can accuse me of scaremongering in that last paragraph if you like. However, it is the ultimate conclusion of the logic you espouse. There are better ways to formulate the necessary framework for double jeopardy than your logical proposition.

Liam Byrne

Deleted User wrote: »

Mostly I have a pretty big problem with your logic. "Innocent people have nothing to fear".

And given the requirement for significant additional evidence than was available during the initial case (possibly due to witness intimidation) I'll stand over that statement.

Deleted User wrote: »

How about you try this one instead: The State should, so as to ensure the proper administration of justice, have the ability to ask the court to re-try an issue where they can show that there is substantial evidence, unavailable to the prosecution at the material time of the initial substantive trial, that would rebut the defence of autrefois acquit.

I'm not particularly au fait with what "autrefois acquit" means, but other than that, what's the difference between what you posted and what's proposed ?

the DPP can apply to have cases retried following an acquittal where compelling new evidence later emerges.

Please tell me the difference, because I can't see one.

Deleted User wrote: »

The logic of "the innocent have nothing to fear" means that there is literally no civil liberty which cannot be impinged upon. Domestic surveillance of all homes (who cares if the Government hear what you say, only the guilty have something to fear), polygraph tests for everyone yearly to make sure they have broken no crimes; after all only the guilty will have something to fear, and so on and so forth.

You're now quoting me out-of-context in order to support your stance.

In what's proposed, the innocent have nothing to fear. Once again, you're stretching my statement beyond that in order to scaremonger and support your rejection.

Deleted User wrote: »

You can accuse me of scaremongering in that last paragraph if you like. However, it is the ultimate conclusion of the logic you espouse. There are better ways to formulate the necessary framework for double jeopardy than your logical proposition.

How did you know I'd do that ? Probably because it is NOT "the ultimate conclusion of the logic" I "espoused". It's the conclusion of your extension of the logic I espoused.

I've made it clear MANY times in this thread, but you've ignored it. IF a witness is intimidated, then the change will improve things, and my statement was that innocent people wouldn't intimidate a witness, and so have nothing to fear; also "compelling new evidence" (not vague, not hearsay, not trivial - compelling) could hardly become available (because if they're innocent, there couldn't be any) so again the innocent have nothing to fear from this.

Please stop misrepresenting me and implying that I'm blanketly saying "the courts can do what they like and innocent people won't be affected". This discussion is about 2 items that were clearly referenced in the initial post:

The Director of Public Prosecutions is to be given new powers to seek a fresh trial for a crime suspect if the initial case ends in an acquittal due to witness intimidation or perjury.

The Bill will include another measure.....the DPP can apply to have cases retried following an acquittal where compelling new evidence later emerges.

And in that context I stand over my statements 100%.

If you want to discuss that, fire away. But stop extending my opinions to the point of misrepresenting them.

Liam Byrne

Liam Byrne wrote: »

And in that context I stand over my statements 100%.

If you want to discuss that, fire away. But stop extending my opinions to the point of misrepresenting them.

3 things:

1) My post, if you'd read it, stated that what the government is proposing is already the law. I have no problem with it being the law. I have a problem with the way you justify it.

2) I am not "misrepresenting" your position. I am simply trying to show you where that line of logic can be made to go. My argument is not with your agreement with the proposals, it is with the thinking which underlines your agreement. It is dangerous. As I stated in a previous post; good men with good intentions should not set precedents for bad men with bad ones. I am sure your intentions are pure but others can follow your precedent and twist it. That is why we must be careful how we frame these things. This is not scaremongering, this is common sense. Anyone who thinks logic like this cannot be twisted to other ends should read Nietzsche and his influence on the 20th century.

3) Autrefois acquit means previosuly acquitted. It is a defense to another trial being brought against the same person for the same crime where they have been acquitted previously but can be rebutted by the methods I have mentioned previously.

Liam Byrne

Deleted User wrote: »

3 things:

1) My post, if you'd read it, stated that what the government is proposing is already the law. I have no problem with it being the law. I have a problem with the way you justify it.

My argument is not with your agreement with the proposals, it is with the thinking which underlines your agreement. It is dangerous.

I don't see how, because my thinking is in a specific context as stated / proposed. Saying "it's dangerous if extended" is misrepresenting me because a number of posts already imply that I'm in favour of extending it, or that extending it is a natural progression of my thinking.

If I say that I think Gardai should be entitled to shoot a known criminal who's armed, before someone innocent gets shot / hurt, because someone shouldn't be armed, then that's my opinion.

I do not extend that thinking to other scenarios - it is a specific scenario where the scum should be responsible for his actions, and I'd prefer to see them dead than an innocent bystander, regardless of whether the scumbag was "going to" shoot. Who knows what's in a psycho scumbag's mind ? Easy say afterwards that they weren't going to shoot - then why have a gun ? If a cop says "drop it" and they don't, and it's a known criminal, then shoot.

And although you could say "if you extend that thinking.....", there's no reason to. I'm not proposing extending it, or condoning extending it, or anything else.

So ALL of my comments are based on the precise scenario described and I stand over them.

Saying "but that might lead to...." is odd, considering you choose not to acknowledge what changing nothing might lead to.

I am sure your intentions are pure but others can follow your precedent and twist it.

It seemed to me like you were doing that yourself. Maybe that was to show where it could lead to if extended and abused, but I never proposed or condoned extending or abusing it.

And the thread was skewed by the fact that some posters seemed more capable of giving the benefit of the doubt to scum rather than Gardai......Gardai are obviously a lot less likely to abuse anything than scum who already abuse people and systems and couldn't care less.

Are Gardai perfect ? Is anyone ?

Yes, we need some safeguards but - as I've said all along - what's proposed is required and fair.

OK. You really cannot seem to get what I mean.

Once more, in answer to the last line of your post. This law will change NOTHING. The law, as proposed, is the way the law works already.

Your opinion is fine. I obviously cannot explain this to you so here is my point as clear as I can make it.

When people begin to accept the idea of laws being ok because innocent people have nothing to fear from those laws then it opens the door to people who will move that line slowly towards a more dangerous place.

We cannot accept that innocent people having nothing to fear is a reasonable justification for this law. There are reasonable justifications, just as the Supreme Court used when they established the law in this area, but that is not among them.

Liam Byrne

Deleted User wrote: »

OK. You really cannot seem to get what I mean.

Your opinion is fine. I obviously cannot explain this to you so here is my point as clear as I can make it.

When people begin to accept the idea of laws being ok because innocent people have nothing to fear from those laws then it opens the door to people who will move that line slowly towards a more dangerous place.

And I cannot seem to be able to explain to you that there's currently a wide open door that's taking us to a FAR more dangerous place.

I NEVER proposed opening any other doors, or opening any doors further.

I fully support what is proposed (both items quoted) - no more, no less.

Dyr

Just out of curiosity what's the conviction rate for murder's in this country in comparison with other European countries?

I don't think that we should reward the gardai and state's prosecution services for their failure to secure convictions by lowering the net further for them. Especially in light of McBrearty.

Liam Byrne

Liam Byrne wrote: »

And I cannot seem to be able to explain to you that there's currently a wide open door that's taking us to a FAR more dangerous place.

Care to elaborate? Do so without resorting to scaremongering.

I am not saying I disagree that gangs are a serious problem in our society, nor am I saying that this legislation is essentially bad. (Although I do think that it's redundant given it is the law anyway)

What I am saying is that people who accept the idea that the Government can enact laws like this because innocent people will have nothing to fear are more dangerous in the long run to our democracy than the gangs are. If you do not understand why legal protections exist then educate yourself, you might need them someday.

sid4lev

Is this not in potential breach of Article 6 ECHR (i think A6 is the one that deals with fair trial etc...)? However, i do think that in light of substantial new evidence there is no reason why an acquitted person should not be re-tried, especially in instances of witness/juror tampering. It will be interesting to see though, the actual standard of evidence relating to such tampering, required to re-try under the new bill.

johnnyskeleton

Deleted User wrote: »

The State can hold back evidence from the court and produce "new and substantial" evidence to drag out a process that takes years as it is. I am not saying this would happen, simply pointing out that the law is certainly apt to being abused.

Most likely the test for a new trial will be significant evidence that was not available at the time of the original trial or which could not have been obtained with reasonable diligence. So new evidence that could have been discovered at the time of the first trial won't be enough.

I still think that this new law, if introduced, will be used very rarely in practice.

johnnyskeleton

johnnyskeleton wrote: »

Most likely the test for a new trial will be significant evidence that was not available at the time of the original trial or which could not have been obtained with reasonable diligence. So new evidence that could have been discovered at the time of the first trial won't be enough.

That's how the law is used currently because this is the law. My hypothetical was really a very over-exaggerated scenario to show how it could potentially abused but in practise the courts would never allow this.

johnnyskeleton

Liam Byrne wrote: »

but if witnesses are being intimidated and convictions falling through BECAUSE OF THAT, then that implies the guy is guilty and something needs to be done.

Something does need to be done, but something isn't anything at all. If witness intimidation is the biggest problem in your view, then how does abolishing the rule against double jeopardy assist? If important potential witnesses are being intimidated, it is very likely there will be no trial at all and if witnesses are being intimidated during trial we have s.16 which plugs that hole nicely. Are you suggesting that the abolition of this rule will somehow make intimidated witnesses no longer intimiated?

Liam Byrne wrote: »

If anyone wants to have a reasoned discussion, fair enough; mind you with pathetic comments like "police facist state Ireland" flying around, I shouldn't be surprised.

At risk of blowing my own trumpet, I made a reasoned contribution earlier about how I think this proposal would only have a minor impact on the criminal justice system, but you didn't respond to that. Instead you chose to respond to what (I'm taking another liberty here) you percieve to be a liberal point of view so that you can attack it with your populist nonsense. No one here is saying they want to see actual criminals not being punished, but you have gone off on a rant.

Liam Byrne wrote: »

Ireland has a problem with serious criminals, and it needs to be sorted NOW!!! Actually, it needed to be sorted ten years ago when FF promised "zero tolerance", but that was just an election ploy that they abandoned as soon as they got in.

Is the abolition of the rule against double jeopardy really going to deal with this? The "problem" of crime cannot be legislated away, but to deal with crime you need provide resources and make substantial contributions to the criminal justice system. One glaring aspect of how illogical these attempts to legislate away crime are is that this proposal would mean more prosecutions. But the DPP is underfunded to the point of reducing the number of prosecutions. Indeed, all these new acts which are often of marginal benefit, are a waste of resources as the DPP has to get the CPS & gardai au fait with the changes.

sid4lev

sid4lev wrote: »

Is this not in potential breach of Article 6 ECHR (i think A6 is the one that deals with fair trial etc...)? However, i do think that in light of substantial new evidence there is no reason why an acquitted person should not be re-tried, especially in instances of witness/juror tampering. It will be interesting to see though, the actual standard of evidence relating to such tampering, required to re-try under the new bill.

No because, as I have already pointed out, the "double jeopardy" rule is not a bar to future re-trial, simply a very strong defence to it.

David Goldberg SC in an article in the Irish Law Times entitled "How Many Trials to Babylon?" (published 2008) points to the recent decision, mentioned by me in a previous post, of the Supreme Court in DS v District Court Judges of Cork. There is no bar to double, or even triple jeopardy, once; according to Justice Susan Denham, all the relevant facts of the case have been considered.

There has been no Constitutional argument on this issue under Art. 38.1 but given the courts stance on this matter it is unlikely it considers its own procedures to be unconsitutional.

johnnyskeleton

Deleted User wrote: »

That's how the law is used currently because this is the law. My hypothetical was really a very over-exaggerated scenario to show how it could potentially abused but in practise the courts would never allow this.

Well it's actually the test for the CCA / SC to allow new exculpatory evidence to be used to get a retrial after a conviction.

As the law stands, an acquittal is an acquittal.

johnnyskeleton

johnnyskeleton wrote: »

Well it's actually the test for the CCA / SC to allow new exculpatory evidence to be used to get a retrial after a conviction.

As the law stands, an acquittal is an acquittal.

Or after an acquittal. Autrefois acquit is the same defence as autrefois convict for all intents and purposes.

johnnyskeleton

Deleted User wrote: »

No because, as I have already pointed out, the "double jeopardy" rule is not a bar to future re-trial, simply a very strong defence to it.

David Goldberg SC in an article in the Irish Law Times entitled "How Many Trials to Babylon?" (published 2008) points to the recent decision, mentioned by me in a previous post, of the Supreme Court in DS v District Court Judges of Cork. There is no bar to double, or even triple jeopardy, once; according to Justice Susan Denham, all the relevant facts of the case have been considered.

That was where there were jury disagreements. Where someone has been acquitted by a jury, by direction of the trial judge or the DPP enters a nolle in certain circumstances, there is no going back.

As an aside, I think a with prejudice appeal against a direction of a trial judge is probably a good thing.

johnnyskeleton

Deleted User wrote: »

Or after an acquittal. Autrefois acquit is the same defence as autrefois convict for all intents and purposes.

No, the state don't have a right to appeal an acquittal, even if there is new evidence.

Liam Byrne

johnnyskeleton wrote: »

If important potential witnesses are being intimidated, it is very likely there will be no trial at all

Maybe that's a possibility, but it definitely isn't the only outcome! In the Gerry McCabe case, the only way to secure ANY conviction was to accept manslaughter, mainly because potential witnesses changed their story as a result of suspected intimidation.

Those responsible were convicted of manslaughter, but the option of trying them for murder would still remain if this new law was in and additional evidence was discovered to compensate for what that witness would have said.

johnnyskeleton wrote: »

Are you suggesting that the abolition of this rule will somehow make intimidated witnesses no longer intimiated?

Question answered above, but that question is ridiculous! For the record I never said anything so stupid.

johnnyskeleton wrote: »

At risk of blowing my own trumpet, I made a reasoned contribution earlier about how I think this proposal would only have a minor impact on the criminal justice system, but you didn't respond to that.

Every "minor impact" in a positive direction is welcome at this stage.

johnnyskeleton wrote: »

Instead you chose to respond to what (I'm taking another liberty here) you percieve to be a liberal point of view so that you can attack it with your populist nonsense. No one here is saying they want to see actual criminals not being punished, but you have gone off on a rant.

Re your post - you're right in many respects; I didn't ignore it, but it didn't need to be expanded on - as with most issues (Dell being the latest) FF are great setting up task forces or being seen to do something while actually doing nothing meaningful. So I agree with that aspect of what you said.

But accusing me of "populist nonsense" ???? Sorry, that's bull**** of the highest order. Firstly, it's not "populist", it's MY view. I don't care whether other people have the same view or not. You're not dealing with some pathetic sheep here who can't form their own opinion.

It's also not "nonsense"; I have the opinion, as stated, and I've explained it as well as its limits.

Secondly, re "No one here is saying they want to see actual criminals not being punished", there were plenty of examples which at least appear to have that slant:

For myself, I'd rather take my chances with criminals.

Welcome to police state facist Ireland.

johnnyskeleton wrote: »

The "problem" of crime cannot be legislated away, but to deal with crime you need provide resources and make substantial contributions to the criminal justice system.

Agreed. But like I said above any improvement in the armoury against organised crime, however small, is an improvement for society in general.

Finally @ Kayroo:

Deleted User wrote: »

Care to elaborate [re the "currently a wide open door that's taking us to a FAR more dangerous place"] ? Do so without resorting to scaremongering.

The first murder of an innocent bystander in Limerick over Christmas; that following the same result for an innocent carpenter plumber in Dublin earlier in the year. A guy getting his hand cut off with a Samuri sword in broad daylight in a pub in Dublin. The Gerry McCabe case originally mentioned in the newspaper snip.

Whatever about the drug-dealer shot in broad daylight in Dublin during the week (the less of those around the better) that's a clearly worsening scenario under the current "door", with events taking place in broad daylight and affecting innocent people.