Criminal Justice Amendment Bill 2009

DCTF

Just wondering on what the legal eagles views are on this proposed legislation? The seanad passed it on the initial vote this afternoon. Any views comments?

Tom Young

Very mixed on it. Some concerns over rights, I think its widely acknowledged that it is infringing certain rights/protections and needs to be reviewed/monitored closely.

servicecharge

I'm broadly supportive of it but I have concerns with:

- any garda giving evidence of gang membership. This is open to abuse, the Donegal situation shows how dangerous the word of Gardai can be if safeguards in place; and
- the private applications of the DPP. The justification was very weak, a few corrupt solicitors apparently. Like Gardai have never been corrupted!

I have no problems with juryless trials, they work on the continent. A tribunal of judges is far superior. Juries are outdated in serious crime cases and too easily influenced. 30 years ago it was very hard to find people. Now most people can be found by a simple internet search.

legal eagle 1

I am abit weary of the new Bill simply because the whole thing seems to be extremely rushed and it is trying to change a fundamental part of our legal system that has been around for years and forms the basis of our common law system. That said similar legislation regarding non jury trials have been put in place in England several years ago and this has only been put into effect in one case very recently. So i think time will tell how far reaching this legislation will be and how many cases it will effect!

McCrack

It's the bloody Surveillance Bill that I have more of a problem with but that's for another thread.

http://oireachtas.ie/documents/bills28/bills/2009/1609/b16b09d.pdf

I really think the government should be putting more money into the Garda and others re equipment/training and recruitment (as promised but as usual reneged on) rather than these knee-jerk PR stunts.

Badly thought out is the nicest way I can put it.

dermot_sheehan

Juryless trials are constitutional provided ordinary courts are unable to secure the effective administration of justice. The Oireachtas' determination in this matter is not subject to judicial review.

Whether this is wise policy is another matter.
No one has provided evidence that the special criminal court is more prone to erraneously convicting innocent people then a jury. And unlike a jury's verdict, the special criminal court's finding as to fact is reviewable by the Court of Criminal Appeal.

Although there is no evidence that removal of jury trials will lead to more incorrect verdicts, it does remove a very important safeguard on the exercise of state power in a wider number of cases so although there is no evidence more innocent people will be convicted, it does remove a safeguard that stops a person being persecuted by the establishment.

Opinion evidence of a garda is just that, evidence. The weight to be given to it if any at all is for the trier of fact to decide. Opinion evidence of a senior garda as to whether an accused is a member of an illegal organisation is currently allowed and constitutional in trials before the special criminal court, the idea being the three judges can more accurately decide how much weight to be given to it then 12 laymen.

I think the secret detention hearings for extensions of detention maybe unconstitutional. Although the oireachtas is entitled to provide that court hearings maybe otherwise then in public, the problem is the constitution guarantees the right to habeas corpus under article 40. If a person's detention is extended by a district court judge hearing evidence in secret, that person could petition the high court under article 40. The high court would have to be satisfied that the person is being held in accordance with law and that includes the evidence before the district judge when he extended the detention. There is no provision in the act for article 40 hearings from such detentions to be heard without the accused and his legal advisers present and there is a serious issue whether such a law would be constitutional. Section 45 of the Courts Supplemental Provisions Act 1961 allows for urgent writs of habeas corpus to be heard otherwise in public but I don't think that could apply to exclude the detained person since when a conditional writ is granted it commands a jailer to bring the detained person before the court.

In summary, I'm fairly sure most of the provisions of the new bill are constitutional, whether they are wise policy is another matter. Restricting jury trials and allowing opinion evidence is likely to result in more convictions by restricting the occurrence of jury tampering and providing new evidence, against that is the risk that a few innocent people could be wrongfully convicted in future due to a mistake by the justice system or malfeasance by the establishment. Such a determination of where to strike the balance in ensuring the rule of law is upheld and innocent people are not convicted, and that the rule of law and authority of the state is upheld and guilty people do not terrorise society is one to be made by our elected representatives and is not a matter that lawyers' views matter above and beyond the rest of the population.

We see the system in action, and the potential risks for miscarriages. We don't generally see the communities affected by rampant gang culture. It is not as if the legal profession is under represented in the government or legislature. Other then hazarding a guess based on our knowledge of the law as to whether the bill might be unconstitutional, I don't think there is anything special we can add to the debate.

Carawaystick

If one section of the law is found unconstitutional does it all fall? or can it be like a contract with a clause to say if any section doesn't hold, the rest does?

dermot_sheehan

If its an Article 26 reference by the President, the whole law fails as the Supreme Court directs her not to sign the bill.

If it is after the bill is signed and becomes an act, and someone challenges the constitutionality of the law, the High Court and Supreme Court on appeal can declare sections of an act to be unconstitutional while the other sections remain in force.