The operation of Irish Criminal Law

Dan133269

Hello all I just have a few questions on different topics that I'd like to get more information on. Like a lot of people I feel that the way the crminal law system operates is shameful because of the following issues:

-why are sentences so lenient? I can't remember the name of the case but I remember in 2007 Paul Carney handed down a suspended sentence for a man convicted of rape. How can a judge allow a convicted rapist to walk free from the courtroom? Are there not protocols in place that prevent such a ludicrous sentence being handed down? I know the rapist eventually went to jail but that was for flicking his cigarette at the victim on the train journey home if i recall correctly.

Is it possible if there is a change in political will to pass legislation laying down minimum sentences for certain crimes? i.e. could a statute state that anyone convicted of murder must serve a minimum of 20 years in jail or a rapist must serve 15 years in jail regardless of having his sentence reduced for good behaviour. Would that legislation be found unconstitutional if the sentences laid down would appear to be a radical departure from the level of sentences currently imposed?

-Why is white collar crime not punished? The legislation is there isn't it, the Theft and Fraud Offences Act 2001. Why were no charges brought against that fella from Anglo Irish Bank? And similarly why were no charges brought against the management of Waterford Crystal who were putting pension contributions into other ventures resulting in the employees losing their money. Surely this is causing a loss by deception?

-Why is the Criminal Assets Bureau not used to take assets off members of the travelling community? Now please do not insult mine or anyone else's intelligence by suggesting that travellers do genuinely have the capacity to buy brand new audis, range rovers etc when I've met some of these people and they can't read. This is not me being prejudiced, I'm asking this question based on the factual observations from seeing these travellers with huge amounts of wealth at their disposal.

-A poster on this forum told a while ago how she was called for jury duty in a criminal trial and the trial was eventually struck out on the basis of delay by the accused. Is this possible? If so, this is an absolute travesty. I'm familiar with delay affecting one's right to a fair trial under the Constitution but surely the defendant cannot be allowed to delay himself out of criminal responsibility.

-I was once called for jury service but was not picked on the day. However in order to select one jury of 12 people, well over 100 people were present in the court. Why is this? I understand that a lot of people may not be able to make it due to reasonable excuses and they must ensure they have enough, but let's do the math, calling well over 100 people is not required to ensure a jury of 12 people.

This is just my motley gathering of thoughts on certain issues that I quite simply cannot get my head around. I've studied criminal law and academics and others seem concerned with debating and proposing amendments to the law relating to substantive issues of the law rather than how things actually work in the real world. Any information is appreciated

aftermn

-why are sentences so lenient?

In America they had a 'three strikes and your out' rule. After 3 felony convictions you got life.

We don't have that here for 2 reasons. 1) our prisons are already overflowing. 2) Think of all the money that would be lost to the legal profession if criminals could not get beyond their 3rd conviction.

in recent articles in the papers I have seen individuals with 80 and more convictions, back in court on some other matter. How much was earned by the profession in defending and prosecuting these cases?

Always follow the money.

MrMicra

Split the questions into different conversations and post them one at a time and you will get better answers.

dermot_sheehan

I'll try and give answers to these questions as best I can

Dan133269 wrote: »

-why are sentences so lenient? I can't remember the name of the case but I remember in 2007 Paul Carney handed down a suspended sentence for a man convicted of rape. How can a judge allow a convicted rapist to walk free from the courtroom? Are there not protocols in place that prevent such a ludicrous sentence being handed down? I know the rapist eventually went to jail but that was for flicking his cigarette at the victim on the train journey home if i recall correctly.

Two points, firstly people do get serious sentences in Ireland, it's just not always newsworthy and makes the papers, sentences that are perceived light sell more newspapers then tough ones.

Secondly, it is true that we incarcerate people for less time then the United States. I suppose it's due to our culture, we are less an eye for an eye like the Anglo Saxon americans and more into forgiveness.

We also as a society don't want large tracts of the population locked up, for both financial and ethical reasons. Prison should be used to the minimum extent to deter the commission of offences not to lock up large tracks of the population for extended periods of time.

Is it possible if there is a change in political will to pass legislation laying down minimum sentences for certain crimes? i.e. could a statute state that anyone convicted of murder must serve a minimum of 20 years in jail or a rapist must serve 15 years in jail regardless of having his sentence reduced for good behaviour. Would that legislation be found unconstitutional if the sentences laid down would appear to be a radical departure from the level of sentences currently imposed?

The mandatory sentence for murder is life. Whether someone is released from prison before serving a full life term is up to the Minister for Justice as advised by the parole board.

Capital Murder carries a mandatory 40 years before parole can be considered.

Aggravated Drug Trafficking (s. 15A Misuse of Drugs Act) carries a mandatory minimum of 10 years. Although there was some commentary in the first few years of operation that judges were not implementing the full ten years as the act has a provision where it's a first offence and the person co-operates with the gardai they can receive less then the minimum.


The law as clarified by the court of criminal appeal is that there is a mandatory penalty of ten years. For a first time conviction with a guilty plea, the court starts at 10 years and reduces it to between 6 and 8 years.

-Why is white collar crime not punished? The legislation is there isn't it, the Theft and Fraud Offences Act 2001. Why were no charges brought against that fella from Anglo Irish Bank? And similarly why were no charges brought against the management of Waterford Crystal who were putting pension contributions into other ventures resulting in the employees losing their money. Surely this is causing a loss by deception?

There is a vast gulf between mismanaging a business and committing a criminal offence and to convict a person of a criminal offence you have to convince a jury beyond a reasonable doubt of the intent to commit fraud.

-Why is the Criminal Assets Bureau not used to take assets off members of the travelling community? Now please do not insult mine or anyone else's intelligence by suggesting that travellers do genuinely have the capacity to buy brand new audis, range rovers etc when I've met some of these people and they can't read. This is not me being prejudiced, I'm asking this question based on the factual observations from seeing these travellers with huge amounts of wealth at their disposal.

I don't know? Maybe they are, Proceeds of Crime Act applications are heard in camera (in private), since making allegations in civil proceedings that a person is a crook could prejudice a future prosecution in front of a jury.

I suppose it's difficult to take assets that are not held in a bank account or consist of land. It's easy to garnishee a bank account and register a judgment against land, harder to enforce against other assets.

-A poster on this forum told a while ago how she was called for jury duty in a criminal trial and the trial was eventually struck out on the basis of delay by the accused. Is this possible? If so, this is an absolute travesty. I'm familiar with delay affecting one's right to a fair trial under the Constitution but surely the defendant cannot be allowed to delay himself out of criminal responsibility.

Delay which is the responsibility of the accused does not result in a trial being prohibited. Delay which is the responsibility of the state does since it can adversly affect the person's right to a fair trial.

-I was once called for jury service but was not picked on the day. However in order to select one jury of 12 people, well over 100 people were present in the court. Why is this? I understand that a lot of people may not be able to make it due to reasonable excuses and they must ensure they have enough, but let's do the math, calling well over 100 people is not required to ensure a jury of 12 people.

Several people might be unable to be jurors for the length of time required for the trial in question. Several people might know the accused/witnesses. etc etc. It;s the County Registrars that summon people for jury duty and they regard their role as ensuring there are an adequate number of jurors at all costs.

johnnyskeleton

Dan133269 wrote: »

Hello all I just have a few questions on different topics that I'd like to get more information on. Like a lot of people I feel that the way the crminal law system operates is shameful because of the following issues:

I wouldn't put much faith in what a lot of people think and would instead suggest you do your own analysis.

Dan133269 wrote: »

-why are sentences so lenient? I can't remember the name of the case but I remember in 2007 Paul Carney handed down a suspended sentence for a man convicted of rape.

That's one case, it does not speak for the majority of cases. My view is that an appropriate sentence will usually make the papers or cause a sensation - "Judge decides case fairly and correctly" is not news. Mistakes happen and judges err, but in that case the CCA increased the sentence significantly.

Dan133269 wrote: »

Is it possible if there is a change in political will to pass legislation laying down minimum sentences for certain crimes? i.e. could a statute state that anyone convicted of murder must serve a minimum of 20 years in jail or a rapist must serve 15 years in jail regardless of having his sentence reduced for good behaviour. Would that legislation be found unconstitutional if the sentences laid down would appear to be a radical departure from the level of sentences currently imposed?

Some statutes have minimum / presumptive minimum sentences, there's nothing unconstitutional about it. Murder is punishable with mandatory life (with a few minor differences) and it is the Government (i.e. MJELR through parole board / prison governors) who decide issues such as remission, temporary release and release on licence.

Absolute minimum sentences however are a bad thing as they have no scope for exceptional cases.

Dan133269 wrote: »

-Why is white collar crime not punished? The legislation is there isn't it, the Theft and Fraud Offences Act 2001. Why were no charges brought against that fella from Anglo Irish Bank? And similarly why were no charges brought against the management of Waterford Crystal who were putting pension contributions into other ventures resulting in the employees losing their money. Surely this is causing a loss by deception?

They are often punished, the Revenue commissioners for example bring many prosecutions each year. As to why no charges were brought against high profile cases, that's a case by case matter. Possibly they didn't actually commit an offence. Possibly the gardai didn't have the resources to investigate them. Possibly there is no political will at the top to encourage such prosecutions.

Dan133269 wrote: »

-Why is the Criminal Assets Bureau not used to take assets off members of the travelling community?

When a member of the travelling community has criminal assets and the CAB can prove it, they will usually seek confiscation. Not all assets owned by the travelling community are ipso facto proceeds of crime.

Dan133269 wrote: »

-A poster on this forum told a while ago how she was called for jury duty in a criminal trial and the trial was eventually struck out on the basis of delay by the accused. Is this possible?

Sounds strange, did she possibly misunderstand? Usually, delay in indictable crimes will be raised in judicial review proceedings, not at the trial. Also, indictable crimes are not "struck out".

Dan133269 wrote: »

-I was once called for jury service but was not picked on the day. However in order to select one jury of 12 people, well over 100 people were present in the court. Why is this?

Each accused and the prosecutor can challenge seven jurors with cause shown and an unlimited number without cause shown (e.g. they know the accused/a witness). Many jurors are also not available on the day. An individual trial with one accused could possibly go through a jury panel of over 100 depending on the circumstances. Very often, more than one jury is selected on any given day and/or it is not known how many juries are required. Therefore, it is better to call 100 even if only the first 12 actually serve, rather than call less and risk the trial not proceeding. If you can think of a better way you should contact the courts service.

Reloc8

aftermn wrote: »

-why are sentences so lenient?

In America they had a 'three strikes and your out' rule. After 3 felony convictions you got life.

We don't have that here for 2 reasons. 1) our prisons are already overflowing. 2) Think of all the money that would be lost to the legal profession if criminals could not get beyond their 3rd conviction.

in recent articles in the papers I have seen individuals with 80 and more convictions, back in court on some other matter. How much was earned by the profession in defending and prosecuting these cases?

Always follow the money.

I aaaaaaaaaaaaaaaaaalmost laughed when I read this - almost.