If a solicitor is informed of illegal activity are they obliged to report it

krd

If a solicitor is informed of illegal activity, are they obliged to report it to the Gardai?

bobblepuzzle

krd wrote: »

If a solicitor is informed of illegal activity, are they obliged to report it to the Gardai?

If it's a client no...

Bosco boy

yes, if its illegal and they are an officer of the courts!

krd

bobblepuzzle wrote: »

If it's a client no...

There are limits to solicitor-client confidentiality.

As I've been told. If a solicitor is contacted by a client who is looking for assistance to launder money. The solicitor is obliged to contact the gardai without even having a obligation to inform their client.

There are limits to the confidentiality. A solicitor can not assist a client in commissioning a crime. Though I'm not sure how enforcing that works.

I'm not sure how it works for many reasons. One example would be when a file is sent to the DPP for a possible fraud - like Seanie Fitzpatrick of Anglo. I've never heard of the lawyers who were involved being up for a similar prosecution or lawyers coming forward to report wrong doing. And similarly, accountants involved in the process.

krd

Bosco boy wrote: »

yes, if its illegal and they are an officer of the courts!

Is it a normal occurrences for solicitors to report their clients to the gaurds?

Not looking for specific examples but would you be aware if this is common occurrence or if it ever happens at all.

Bosco boy

krd wrote: »

Is it a normal occurrences for solicitors to report their clients to the gaurds?

Not looking for specific examples but would you be aware if this is common occurrence or if it ever happens at all.

I have no personal experience of it, I would imagine if a solicitor was approched to do something illegal they would do one of two things, 1) decline and advise the person the actions are illegal and not represent them or 2) less likely - get involved and partake in the crime. In the first case its likely the crime has not occurred yet and there would be no obligation on them to report, I'm sure there are a few solicitors who might have a word in a gaurds ear and point him/her in the right direction if they felt it serious enough and they were concerned.

krd

Bosco boy wrote: »

I have no personal experience of it

So it's not a common occurrence. If it ever happens at all. I think I've heard of it happening once.

I would imagine if a solicitor was approached to do something illegal they would do one of two things, 1) decline and advise the person the actions are illegal and not represent them or 2) less likely - get involved and partake in the crime.

The real service a solicitor can provide a client who wishes to commit a criminal act is coaching to avoid prosecution. This kind of advice can be very useful if a client wishes to commit fraud. A solicitor can prepare a client to the point it will be virtually impossible for the client to be prosecuted without a confession.

In the first case its likely the crime has not occurred yet and there would be no obligation on them to report,

Are you sure about that? If I went to my solicitor and said I was considering robbing a bank and needed advice on laundering the money - would the solicitor be obliged to report me.

I'm sure there are a few solicitors who might have a word in a gaurds ear and point him/her in the right direction if they felt it serious enough and they were concerned.

Have you ever heard of that happening? This sounds worse. A client is entitled to fair representation - even if they have committed wrong doing. A solicitor may have prejudices against their own client - by whispering in a guards ear, the solicitor is effectively coaching the guard in convicting their own client. It's neither fair nor ethical.

In a real world criminal conspiracy, most of the conspirators may be required to do very little, or next to nothing, for the crime to be successful.

If, I was a psychopath and wanted to carry out a major fraud, having solicitors, accountants, and bankers who just turn a blind eye would be incredibly useful. Basically, it's impossible to commit a major fraud without their assistance.


I have heard of English solicitors being prosecuted for facilitating in criminal activity. I've never heard of it happening here.

_JOE_

krd wrote: »

Are you sure about that? If I went to my solicitor and said I was considering robbing a bank and needed advice on laundering the money - would the solicitor be obliged to report me.

Solicitors are be required to conduct their anti-money laundering obligations in accordance with the 2010 Anti Money Laundering Act 2010. These include inter alia an obligation to monitor client behaviour on an ongoing basis using a risk-based approach and the ability for authorities to issue directions, orders and authorisations.

Wolfe Tone

What happens if a barrister is defending a murderer, yet the accused pleads not guilty and the defendant admits he did it to the barrister before proceedings begin? Does the Barrister try to get him off, and if so how does he sleep at night?

krd

MUSSOLINI wrote: »

What happens if a barrister is defending a murderer, yet the accused pleads not guilty and the defendant admits he did it to the barrister before proceedings begin? Does the Barrister try to get him off, and if so how does he sleep at night?

As far as I am aware. Though you'd need a barrister or a solicitor to confirm this. If a barrister is made aware by their client, that the client is guilty of murder. The barrister cannot get up in court and lie on the clients behalf.

I'm not sure how legal or ethical it is for a barrister or a solicitor to explain this to the client before hand. Like:"whatever you do, don't tell me that you've committed a crime. Let me just sort through the prosecutions evidence and see if I can get you off"


The legal representative does however under all circumstances have an obligation to represent their client to the best of their abilities. This would stretch to trying to get their client a reduced sentence or to even getting them off on a technicality.

I would be interested to know how the ethics of getting someone, who's obviously guilty, off an technicality works.


An example would be the recent murder of Rebecca French. The murder charge against the four men responsible for her death was dropped due to a technicality. The guards extracted a confession while the men were under the influence of alcohol. Their confession was inadmissible. So they were only prosecuted for burning her body.

http://www.independent.ie/national-news/courts/judge-says-bodyinboot-men-deserved-to-get-20-years-in-jail-2456948.html


On appeal they may even have their sentences reduced.

Now. I'm not sure whether the DPP solely made the decision not to accept the original pleas of manslaughter, or if there was another influence. But these guys were literally caught red-handed (with blood literally on their hands) - burning the body. Their house was covered in blood. There was likely enough evidence to successfully prosecute without a confession.

I'm sure the guards involved feel very guilty. They should have been more careful. But at the same time there is something really wrong in the system in failing to have these guys prosecuted for murder.

Does the Barrister try to get him off, and if so how does he sleep at night?

On sheets of the finest Egyptian cotton. They count money, not sheep.

A people thing, not really a solicitor/garda/criminal thing. Some people get a kick out of being bad and doing bad things. There's no pathology to it. There are people who take pleasure in seeing bad guys get away and innocent people punished.

krd

_JOE_ wrote: »

Solicitors are be required to conduct their anti-money laundering obligations in accordance with the 2010 Anti Money Laundering Act 2010. These include inter alia an obligation to monitor client behaviour on an ongoing basis using a risk-based approach and the ability for authorities to issue directions, orders and authorisations.

That's interesting. Section 49 - tipping off. As I interpret it, would mean that any person made aware of money laundering or terrorism financing is obliged to report it to the guards. (Any person, I would assume means designated persons).

How tight is the Irish definition of money laundering? Just looking at wikipedia, the US version is quite broad.

any financial transaction which generates an asset or a value as the result of an illegal act

My interpretation of this definition, would cover instances of false accounting - where accountants and lawyers involved would knowingly partake in actions to create value and assets by deception. Like a green jersey transfer of cash from one bank to another.

johnnyskeleton

krd wrote: »

If a solicitor is informed of illegal activity, are they obliged to report it to the Gardai?

Outside of money laundering no. But they cannot participate in illegal activity because that would make them part of the joint enterprise. Equally, they cannot conceal an illegal act or evidence thereof because that would be accessory after the fact/peverting the course of justice.

Bosco boy wrote: »

I have no personal experience of it, I would imagine if a solicitor was approched to do something illegal they would do one of two things, 1) decline and advise the person the actions are illegal and not represent them or 2) less likely - get involved and partake in the crime. In the first case its likely the crime has not occurred yet and there would be no obligation on them to report, I'm sure there are a few solicitors who might have a word in a gaurds ear and point him/her in the right direction if they felt it serious enough and they were concerned.

There is an old offence of misprison of a felony i.e. not reporting a serious offence. For various reasons (I think there's a thread on it somewhere around here) it does not seem to apply anymore.

krd wrote: »

The real service a solicitor can provide a client who wishes to commit a criminal act is coaching to avoid prosecution. This kind of advice can be very useful if a client wishes to commit fraud. A solicitor can prepare a client to the point it will be virtually impossible for the client to be prosecuted without a confession.

A solicitor cannot do that, nor would they even have the relevant expertise to do so. There is an exception however - where a solicitor has been instructed to deal with proceedings already in being in relation to a fraud, a solicitor can give them legal advice as to their rights e.g. remaining silent, refusing to disclose certain information etc which might incriminate them. However, that only arises once proceedings have commenced or are in serious contemplation.

krd wrote: »

Are you sure about that? If I went to my solicitor and said I was considering robbing a bank and needed advice on laundering the money - would the solicitor be obliged to report me.

No more than any other person would be obliged to report them. However, a solicitor would not be able to give them advice on laundering the money.

krd wrote: »

In a real world criminal conspiracy, most of the conspirators may be required to do very little, or next to nothing, for the crime to be successful.

Any minor act in furtherance of the criminal offence makes a person an accessory. If my friend starts to beat someone up, I am not liable. However, if I cheer him on, I am liable.

krd wrote: »

If, I was a psychopath and wanted to carry out a major fraud, having solicitors, accountants, and bankers who just turn a blind eye would be incredibly useful. Basically, it's impossible to commit a major fraud without their assistance.

No its not. Remeber, anyone with a mind to do so can access any legal, accounting or finance information from textbooks that are readily available. Much of it is also available on the internet.

MUSSOLINI wrote: »

What happens if a barrister is defending a murderer, yet the accused pleads not guilty and the defendant admits he did it to the barrister before proceedings begin? Does the Barrister try to get him off, and if so how does he sleep at night?

The barrister advises him to plead guilty. If the client rejects this advice and there is sufficient time before the trial to get a new barrister, the barrister will remove himself from the case. If the client rejects this advice and there is not sufficient time before the trial to get a new barrister, the barrister can remain in the case but only fight it on the legal points i.e. where the state's case does not add up. In practical terms, a person who admits to their barrister that they are guilty has three options - 1) plead guilty, 2) test the proofs but don't put forward any positive defence or 3) get a new legal team and tell them something different.

krd wrote: »

As far as I am aware. Though you'd need a barrister or a solicitor to confirm this. If a barrister is made aware by their client, that the client is guilty of murder. The barrister cannot get up in court and lie on the clients behalf.

A barrister or solicitor cannot lie on their client's behalf in any circumstances.

krd wrote: »

I'm not sure how legal or ethical it is for a barrister or a solicitor to explain this to the client before hand. Like:"whatever you do, don't tell me that you've committed a crime. Let me just sort through the prosecutions evidence and see if I can get you off"

Perfectly ethical. A person comes to a lawyer and says "I'm charged with a criminal offence, what's the story". The lawyers can tell them what they think of the prosecution evidence's strengths and weaknesses. If the client wants to add anything to that they can, or if they want to remain silent they can. It would be doing the client a disservice not to explain to them how the legal process works, seeing as how a lawyer's raison d'etre is to transfer as best they can their legal knowledge to the client.

krd wrote: »

I would be interested to know how the ethics of getting someone, who's obviously guilty, off an technicality works.

There is no such thing as obviously guilty. Someone is only obviously guilty if you believe everything that the state says without question. A lawyer's job is to question everything that the state says. Therefore, a lawyer will start by assuming that the prosecution case is all lies and that their client is obviously innocent. There's a long thread on here about what "getting someone off on a technicality" means. To gardai, it means not ticking a box. To a lawyer, it means that the state has failed to prove its case. The phrase technicality is often misused as it is often confused with the difference between a technical and a substantive defence to a charge. Technicalities are very often a matter of ambiguous evidence, insufficient evidence, or a breach of constitutional rights.

krd wrote: »

An example would be the recent murder of Rebecca French. The murder charge against the four men responsible for her death was dropped due to a technicality. The guards extracted a confession while the men were under the influence of alcohol. Their confession was inadmissible. So they were only prosecuted for burning her body.

http://www.independent.ie/national-news/courts/judge-says-bodyinboot-men-deserved-to-get-20-years-in-jail-2456948.html

This old chestnut. Look, the power of the gardai to extract a confession is a technical way of obtaining evidence. It has the potential to be very unfair. If there is a mistake which means that they are unconstitutionally detained when they make their confession, that confession should not be allowed. Arguably, confessions should never be allowed unless someone walks up to a garda station and says "I killed her, I want to make a statement". Otherwise, assessing their voluntariness is hard. In that case, the only evidence they had was the confession. If they had other evidence, it would have gone to the jury. This just shows how inherently unreliable a prosecution based solely on a confession is.

krd wrote: »

Now. I'm not sure whether the DPP solely made the decision not to accept the original pleas of manslaughter, or if there was another influence. But these guys were literally caught red-handed (with blood literally on their hands) - burning the body. Their house was covered in blood. There was likely enough evidence to successfully prosecute without a confession.

No there wasn't. That's the point.

krd wrote: »

A people thing, not really a solicitor/garda/criminal thing. Some people get a kick out of being bad and doing bad things. There's no pathology to it. There are people who take pleasure in seeing bad guys get away and innocent people punished.

Who are the bad guys? Are they the ones who actually do the deed? Or, are they ones who make the false accusations? Who is to say? There is no absolute right or wrong, the best we as a society can do is have both sides argued before a jury and let them make up their minds. Not perfect, but I haven't heard anyone suggest a better system (better as in fairer, not better at achieveing a goal of locking up anyone who is accused of being a "bad guy".

Bosco boy

Op, my personal experiece should be taken for what it is a personal experience, I cannot speak for the other 14,000 gardai so your conclusion may be a bit flawed!

detective

johnnyskeleton wrote: »

Arguably, confessions should never be allowed unless someone walks up to a garda station and says "I killed her, I want to make a statement". Otherwise, assessing their voluntariness is hard.

You cannot be serious. I presume by your use of the word "arguably" then you're not implying that you would argue on the side of this comment?

krd

Bosco boy wrote: »

Op, my personal experiece should be taken for what it is a personal experience, I cannot speak for the other 14,000 gardai so your conclusion may be a bit flawed!

No, I'm fully aware that you're personal experience is only your personal experience. I would warn you, not to trust your assumptions. What you may assume, and what may seem logical even, may be very far from the reality. I have heard stories of the bent right-wing solicitor who whispers in the guards ears to help bang up their own clients. But nothing concrete. And to be honest - I doubt it ever happens. Where is the incentive for the solicitor.

krd

johnnyskeleton wrote: »

Outside of money laundering no. But they cannot participate in illegal activity because that would make them part of the joint enterprise. Equally, they cannot conceal an illegal act or evidence thereof because that would be accessory after the fact/peverting the course of justice.

Has there been any recent convictions of solicitors for the perversion of justice or for assisting in money laundering. And do not say this does not happen. There's a high profile case of a solicitor who's in trouble, whose major clients are well known Dublin criminals. And his business would appear for all purposes to be a money laundering operation. If anti-money laundering law was effective - it should be virtual impossible for a criminal to buy anything larger than a second hand car with the proceeds of crime. They certainly should not be able to employ a solicitor as an intermediary. This is not what has happened. They've been able to buy property all over the place. The CAB has seized little bits here and there. But the problem is that once money has been well laundered it's difficult to prove that it's dirty money or that assets are dirty.

Any minor act in furtherance of the criminal offence makes a person an accessory. If my friend starts to beat someone up, I am not liable. However, if I cheer him on, I am liable.

No. I do not believe this is true. In the real world. If your friend beats someone up on the street, you're not likely to be prosecuted. If though your friend grabbed a girl and started rape her and you stood there with your hands in your pocket, you could find yourself prosecuted.

And to think you're only morally culpable for your own actions is flawed ethical thinking. An act of omission can make you as equally culpable as and act of commission.

Originally Posted by krd View Post
If, I was a psychopath and wanted to carry out a major fraud, having solicitors, accountants, and bankers who just turn a blind eye would be incredibly useful. Basically, it's impossible to commit a major fraud without their assistance.

No its not. Remeber, anyone with a mind to do so can access any legal, accounting or finance information from textbooks that are readily available. Much of it is also available on the internet.

Yes, a fraudster could in theory avoid needing the services of a lawyer or accountant to commit fraud.

They could go and study law or accountancy. They could practically become lawyers and accountants.

In reality. A lay persons knowledge of the law or accountancy is not going to be at the level of a professionals.

If you're dealing in a major fraud, where you're dealing with considerably large amounts of money, you will have to deal with lawyers and accountants. If anything, to give an impression of probity. "Oh, I do all my own legal and accounting work...I learned it from a book" will not get you very far. Using the services of professionals gives an air of legitimacy in itself. If you're in the business of committing major corporate fraud, the more accountants and lawyers in sharp suits the better.

And it is not easy to find material on the internet - 'how to' fraud instructions. Once you could - The Bad Guys database was a source. Google now suppress search information for criminal skills websites.
[/I]

Perfectly ethical. A person comes to a lawyer and says "I'm charged with a criminal offence, what's the story". The lawyers can tell them what they think of the prosecution evidence's strengths and weaknesses. If the client wants to add anything to that they can, or if they want to remain silent they can. It would be doing the client a disservice not to explain to them how the legal process works, seeing as how a lawyer's raison d'etre is to transfer as best they can their legal knowledge to the client.

It's not "perfectly" ethical. There is a dilemma there. It's ethical to give the client the best representation to your ability. It is not ethical to assist someone who is guilty of a crime avoid prosecution. There is a conflict there. It's not resolved. It would be ethical for a solicitor to tell a client "If you're guilty - make a full confession", it would be unethical for the solicitor to advise their client "If you've done anything really bad, don't tell me"

It would be highly unethical for a lawyer to coach their client.

There is no such thing as obviously guilty. Someone is only obviously guilty if you believe everything that the state says without question.

Those guys were obviously guilty of murder. The were caught red handed. They were prosecuted for disposing of the body. They admitted to disposing of the body. They had even initially confessed to the murder. Their confession was ruled inadmissible. Not because of torture - because technically they were drunk while giving the confession. I don't believe the guards strong armed it out of them. People usually confess when caught covered in blood with a burning corpse in the boot of a car. It's just too difficult to talk your way out of it. "I know this looks bad, but..." it's not going to work.

Had the guards put their evidence forward without the confession they would have got a conviction for murder. Instead they got a conviction for disposing of the body.

The guys were guilty. They got off. And no one who assisted them in getting off can have a clear conscience because they found a box incorrectly ticked.

A lawyer's job is to question everything that the state says. Therefore, a lawyer will start by assuming that the prosecution case is all lies and that their client is obviously innocent. There's a long thread on here about what "getting someone off on a technicality" means. To gardai, it means not ticking a box. To a lawyer, it means that the state has failed to prove its case. The phrase technicality is often misused as it is often confused with the difference between a technical and a substantive defence to a charge. Technicalities are very often a matter of ambiguous evidence, insufficient evidence, or a breach of constitutional rights.

This old chestnut. Look, the power of the gardai to extract a confession is a technical way of obtaining evidence. It has the potential to be very unfair.

There's the potential for unfairness in collecting any evidence. It's neither here nor there.

Arguably, confessions should never be allowed unless someone walks up to a garda station and says "I killed her, I want to make a statement".

Otherwise, assessing their voluntariness is hard.

I think it's perfectly legitimate for gardai to use trickery and dishonesty to extract the truth.

It's highly illegitimate to use duress to extract a confession because it's convenient for the guards.

It's not legitimate to use trickery and dishonesty to fit someone up - just because the guards believe they're responsible for a crime.

In that case, the only evidence they had was the confession.
If they had other evidence, it would have gone to the jury. This just shows how inherently unreliable a prosecution based solely on a confession is.

No. In this case. The murder charge was struck out by the DPP's office. The jury had nothing to do with it. There was plenty of evidence. The jury did not get to decide on the murder charge as it had been struck out.

Something that really bothers me about prosecution fraud is the burden of proof needed. For a murder, once you have your body, your axe, and your man covered in blood - you have a conviction. With fraud you have to prove the axe didn't accidentally fall and chop up the victim all by itself.

Who are the bad guys? Are they the ones who actually do the deed? Or, are they ones who make the false accusations? Who is to say? There is no absolute right or wrong,

That's are morally relativistic view. I wouldn't agree. I don't believe right or wrong needs to be absolute. In the real world it never is.

the best we as a society can do is have both sides argued before a jury and let them make up their minds.

It's a complex process. Getting people into court in the first place is the trick. There seems to be no problem processing hordes of petty criminals for minor nuisance crimes. You're far more likely to end up in court if you steal a bar of chocolate from a shop than if you steal a few million from the bank.

Not perfect, but I haven't heard anyone suggest a better system (better as in fairer, not better at achieveing a goal of locking up anyone who is accused of being a "bad guy".

I think it's a weak argument to suggestion the system is perfect because there is no alternative. The system isn't perfect. There are many flaws in the system.

Like the thinking; Our professionals are good, because they are never convicted. If they are never convicted, they never commit crimes. If our professionals never commit crimes than we should never pursue them - because it would be unfair to pursue innocent and good people.

The system in Ireland is not good. Many of our bankers would be in jail already had they been in England. The system is not perfect anywhere.

The main function of prison is deterrence. Had we thrown a banker or two in jail in the 80s for the DIRT scandal we wouldn't be where we are now.

When people are not being prosecuted it doesn't mean there isn't crime happening. It's usually a sign of lawlessness.

Bosco boy

If you visit any of the courts in Ireland on any given day they are jammed with people being prosecuted for various offences, there are files with the dpp in relation to the banking scandals and it's very likely prosecutions will result. I accept it's taking more time than people would like but the investigation is complex and it's better that it's not rushed for the sake of the media and political parties and loop holes left that result in non convictions. When it gets to court we will see how serious the courts deal with White collar crime in Ireland. To date I belive it has failed and this in part has encouraged it and is part of the reason we're in the mess we are in. Just my opinion!

johnnyskeleton

detective wrote: »

You cannot be serious. I presume by your use of the word "arguably" then you're not implying that you would argue on the side of this comment?

Why should gardai be allowed to cajole people into confessing to a crime? There is no logical reason for it, other than that it is expedient. If a confession is voluntary that is a different story, but why a person should ever confess is utterly beyond me. And the powers to draw inferences from silence are even more disturbing.

johnnyskeleton

krd wrote: »

Has there been any recent convictions of solicitors for the perversion of justice or for assisting in money laundering. And do not say this does not happen. There's a high profile case of a solicitor who's in trouble, whose major clients are well known Dublin criminals. And his business would appear for all purposes to be a money laundering operation. If anti-money laundering law was effective - it should be virtual impossible for a criminal to buy anything larger than a second hand car with the proceeds of crime. They certainly should not be able to employ a solicitor as an intermediary. This is not what has happened. They've been able to buy property all over the place. The CAB has seized little bits here and there. But the problem is that once money has been well laundered it's difficult to prove that it's dirty money or that assets are dirty.

Not that I'm aware of. But the problems with regard to proceeds of crime is in the initial detections rather than the subsequent investigation. The paper trail will usually be there, but very often the CAB would have no means of knowing where to look.

krd wrote: »

No. I do not believe this is true. In the real world. If your friend beats someone up on the street, you're not likely to be prosecuted. If though your friend grabbed a girl and started rape her and you stood there with your hands in your pocket, you could find yourself prosecuted.

And to think you're only morally culpable for your own actions is flawed ethical thinking. An act of omission can make you as equally culpable as and act of commission.

OK, well you can disbelieve it all you like, but that's the law. An omission can make you culpable, but simply standing idly by is not, as such, an omission. You only omit to do something when you have a duty to do so.

I also find your view that a violent assault and a sexual assault are qualitatively different to be odd.

krd wrote: »

If you're dealing in a major fraud, where you're dealing with considerably large amounts of money, you will have to deal with lawyers and accountants. If anything, to give an impression of probity. "Oh, I do all my own legal and accounting work...I learned it from a book" will not get you very far. Using the services of professionals gives an air of legitimacy in itself. If you're in the business of committing major corporate fraud, the more accountants and lawyers in sharp suits the better.

I'm sorry, but you don't have a particularly good head for crime. One of the most important parts of the successful criminal mind is discretion and secrecy. Where accountants and solicitors are necessary, it would make more sense to dupe them rather than let them in on the crime.

krd wrote: »

It's not "perfectly" ethical. There is a dilemma there. It's ethical to give the client the best representation to your ability. It is not ethical to assist someone who is guilty of a crime avoid prosecution. There is a conflict there. It's not resolved. It would be ethical for a solicitor to tell a client "If you're guilty - make a full confession", it would be unethical for the solicitor to advise their client "If you've done anything really bad, don't tell me"

I never suggested that they should assist someone in avoiding a prosecution. In fact I said they should not do that. You're making a straw man argument. There is nothing unethical about explaining the ethical guidelines to the client. In fact, it would be unethical not to explain the position to the client, because then the client would be mislead as to what service is being provided for them. Of course solicitors would not tell their clients what you have suggested in such blunt terms, but they do have to inform them that if they confess to them that they can only act in a limited capacity.

But professional ethics is not a matter of opinion, it is a matter of fact. Look at rule 10.10 of the Barrister's code of conduct:

http://www.lawlibrary.ie/documents/memberdocs/CodeOfConductAdopted050710.pdf

There is a similar provision for solicitors, but you may need to have access to their website.

krd wrote: »

It would be highly unethical for a lawyer to coach their client.

Of course. Who suggested that? You seem to be just ranting about non specific issues you don't like.

krd wrote: »

Those guys were obviously guilty of murder. The were caught red handed. They were prosecuted for disposing of the body. They admitted to disposing of the body. They had even initially confessed to the murder. Their confession was ruled inadmissible. Not because of torture - because technically they were drunk while giving the confession. I don't believe the guards strong armed it out of them. People usually confess when caught covered in blood with a burning corpse in the boot of a car. It's just too difficult to talk your way out of it. "I know this looks bad, but..." it's not going to work.

Had the guards put their evidence forward without the confession they would have got a conviction for murder. Instead they got a conviction for disposing of the body.

You should ring up Mr. Justice Barry White immediately and tell him that he made a serious mistake in law and should have let the confession go in. Then you should ring the DPP personally and tell him that in your legal view he should have let the murder charge go to the jury. Thank god we have you to set them straight on what the law is.

krd wrote: »

The guys were guilty. They got off. And no one who assisted them in getting off can have a clear conscience because they found a box incorrectly ticked.

The lawyers would have a very clear conscience because it is not just a matter of a box being incorrectly ticked. The lawyers would not have a clear conscience if they let their dislike of the clients prejudice their defence of the case. Yet that is what you are advocating.

krd wrote: »

I think it's perfectly legitimate for gardai to use trickery and dishonesty to extract the truth.

It's highly illegitimate to use duress to extract a confession because it's convenient for the guards.

It's not legitimate to use trickery and dishonesty to fit someone up - just because the guards believe they're responsible for a crime.

I believe it is. In fact, it is grossly unethical for a garda to trick someone into confessing. And I don't mean unethical in your wishy washy "I don't think it is right way" I mean it in the very real sense that the garda code of conduct specificly prohibits it:

As investigators, it is our clear public duty to
work conscientiously and diligently to establish all of the facts
relevant to the issues under investigation, in an honest, objective, fair
and impartial manner, with a view to providing other decision
makers in the justice system with an objective, comprehensive and

impartial picture of all of the issues.

http://www.garda.ie/Documents/User/declarationvalues.pdf

krd wrote: »

No. In this case. The murder charge was struck out by the DPP's office. The jury had nothing to do with it. There was plenty of evidence. The jury did not get to decide on the murder charge as it had been struck out.

I really don't get what you are saying. I said that the evidence didn't go to the jury and you said no, but you are agreeing with me that it didn't go to the jury. Make up your mind please.

krd wrote: »

Something that really bothers me about prosecution fraud is the burden of proof needed. For a murder, once you have your body, your axe, and your man covered in blood - you have a conviction. With fraud you have to prove the axe didn't accidentally fall and chop up the victim all by itself.

That has to be proved for murder cases too. It's the exact same burden of proof. Please stop making up the law to suit your argument.

krd wrote: »

That's are morally relativistic view. I wouldn't agree. I don't believe right or wrong needs to be absolute. In the real world it never is.

I'm sorry, I really don't get your point. My point was that it is impossible to know for sure who is telling the truth and who is lying, and that the jury system is the best way of figuring this out. You don't agree with that, but you also don't believe in absolutes. What are you talking about?

krd wrote: »

It's a complex process. Getting people into court in the first place is the trick. There seems to be no problem processing hordes of petty criminals for minor nuisance crimes. You're far more likely to end up in court if you steal a bar of chocolate from a shop than if you steal a few million from the bank.

I don't necessarily agree. You seem to base this on the fact that there are lots of district court prosecutions, but very few multi million euro theft cases. However, there have been several notable prosecutions of that nature, the tiger kidnapping trials for example. I would hazard a guess that a higher percentage of the multi million euro bank robberies are prosecuted than the number of minor offences that are prosecuted.

However, even if you are correct, the problem there lies with lazy gardai.

krd wrote: »

I think it's a weak argument to suggestion the system is perfect because there is no alternative. The system isn't perfect. There are many flaws in the system.

I really am finding it hard to take you seriously. I said that the system is NOT perfect. NOT perfect. That's right, NOT PERFECT. But it's the best thing we have in practice.Why you feel the need to pretend that I said that it was perfect and that I justify that because there is no alternative is beyond my knowing. Why would you deliberately misrepresent what I said?

krd wrote: »

Like the thinking; Our professionals are good, because they are never convicted. If they are never convicted, they never commit crimes. If our professionals never commit crimes than we should never pursue them - because it would be unfair to pursue innocent and good people.

I don't know whose thinking that is, but it is certainly not one I have come across in the real world.

krd wrote: »

The system in Ireland is not good. Many of our bankers would be in jail already had they been in England. The system is not perfect anywhere.

Rubbish. Who has gone to jail in the UK for a banking crisis similar to ours? Even in the US, there is a big problem with bankers being acquitted. Bernie Madoff is one of the few that were convicted, and he pleaded guilty.

krd wrote: »

The main function of prison is deterrence. Had we thrown a banker or two in jail in the 80s for the DIRT scandal we wouldn't be where we are now.

Again, this is nonsense. AFAIK, prosecutions were not even brought. This is a failing of the gardai and the DPP, and has nothing to do with the courts and prison sentences. The courts never had an opportunity to throw "a banker or two in jail".

krd wrote: »

When people are not being prosecuted it doesn't mean there isn't crime happening. It's usually a sign of lawlessness.

What is your evidence of this, and of what possible relevance does it have to what was being discussed. Lack of prosecutions is usually a sign of a failure on the part of the prosecuting and investigative authorities. Nothing more.

krd

johnnyskeleton wrote: »

Why should gardai be allowed to cajole people into confessing to a crime? There is no logical reason for it, other than that it is expedient.

Expedient for the purposes of law and order. Expedient for the purposes of justice.

If a confession is voluntary that is a different story, but why a person should ever confess is utterly beyond me. And the powers to draw inferences from silence are even more disturbing.

Any voluntary action is for a reason. If someone believes they can get away with something by keeping their mouth shut - they'll keep their mouth shut. If they're told one of their confederates has confessed and nailed them, they may be more likely to talk. You're familiar with the prisoners dilemma. It's a real world dilemma.

It's only moral to tell the truth. Lying through omission is as equally immoral as outright lying.

What's wrong with tricking someone into tell the truth?

Beating a confession out of someone is something completely different. Torture someone, they'll confess to anything.

Logic cannot be applied to morality. If it is, it gives the impression that given two options, one is moral and the other is immoral. This isn't the case. Both options could be immoral - one could be slightly less immoral than the other.

A lawyers dilemma, is they're morally obliged to give their client the best representation. If they encourage their client to lie through omission, then they're acting immorally, even though it's the best option for their client. It does not absolve the lawyer. And guilt is not absolved by a failure of the law to find guilt. Innocent in the eyes of the law, just means innocent in the eyes of the law.

johnnyskeleton

krd wrote: »

Any voluntary action is for a reason. If someone believes they can get away with something by keeping their mouth shut - they'll keep their mouth shut. If they're told one of their confederates has confessed and nailed them, they may be more likely to talk. You're familiar with the prisoners dilemma. It's a real world dilemma.

It's only moral to tell the truth. Lying through omission is as equally immoral as outright lying.

What's wrong with tricking someone into tell the truth?

Beating a confession out of someone is something completely different. Torture someone, they'll confess to anything.

Logic cannot be applied to morality. If it is, it gives the impression that given two options, one is moral and the other is immoral. This isn't the case. Both options could be immoral - one could be slightly less immoral than the other.

A lawyers dilemma, is they're morally obliged to give their client the best representation. If they encourage their client to lie through omission, then they're acting immorally, even though it's the best option for their client. It does not absolve the lawyer. And guilt is not absolved by a failure of the law to find guilt. Innocent in the eyes of the law, just means innocent in the eyes of the law.

So you think it is perfectly moral for a garda to deceive someone into confessing to a crime that they might not even have committed, but it is morally wrong for a lawyer to tell them that they don't have to say anything and they can let the state prove their case (if they can)? All because that would be more efficient in locking people up? If your view is common, that would be a very poor thing indeed for democracy. Although I can see how it would be common for the same people who vote for Bertie Ahern and FF time and time again - forgiving of corruption and an inability to do things correctly.

Bosco boy

johnnyskeleton wrote: »

Why should gardai be allowed to cajole people into confessing to a crime? There is no logical reason for it, other than that it is expedient. If a confession is voluntary that is a different story, but why a person should ever confess is utterly beyond me. And the powers to draw inferences from silence are even more disturbing.

a confession is a pain in the hole for a solicitor or barristor, gardai have the legal right to detain and interview suspects in realation to a crime in order to investigate it, the judges rules allow them to ask questions of anyone when investigating a crime. The reason people are arrested is because there is a reasonable suspicion that they are involved in the crime, evidence gathered in the investigation can be put to them, often when they see evidence stacking up against them they will admit. An admission alone is rarely adquate, there are nearly always physical or forensic evidence as well. These files go to the dpp and they decide if it should proceed and they are barristors and solicitors. I have sat in many interview rooms with suspects and investigated crime and abided by all regulations and often i have got statements of admission and I find your comment about gardai who take a statement of admission to be decieving people to be ill informed and actually insulting.

Reloc8

Aaaaarrrgh.

lol.

Where to start ?

MUSSOLINI wrote: »

What happens if a barrister is defending a murderer, yet the accused pleads not guilty and the defendant admits he did it to the barrister before proceedings begin? Does the Barrister try to get him off, and if so how does he sleep at night?

Two questions here, first, does the barrister try to get him off ?

Well, the way the question is posed discloses the fairly obvious bias here, but to answer directly, yes.

That is to say, in the event of the client wishing to plead not guilty, the barrister must follow his or her instructions and proceed to do their best to raise reasonable doubt in the mind of the jury.

However, the barrister can not conduct a case in a manner which is inconsistent with his instructions on the facts. In other words if a client says 'I was there when it happened' he cannot seek to raise an alibi. If the client instructs he was there but later changes his mind for no apparent good reason aside from a tactical decision the barrister must refuse to act on those instructions and advise the client to procure new counsel if they wish to proceed in that way.

That's a brief summary of a very complicated ethical situation but reasonably accurate. The underlying reason for proceeding in this way is that its not for the barrister to decide whether his or her client is guilty or not guilty.

Further, anyone on a charge is entitled to test the strength of the case made against them by the prosecution on a plea of not guilty.

Second question how do they sleep at night.

*yawn* fairly well. Depends. You know. Almost like a normal person. Next.

krd wrote: »

As far as I am aware. Though you'd need a barrister or a solicitor to confirm this. If a barrister is made aware by their client, that the client is guilty of murder. The barrister cannot get up in court and lie on the clients behalf.

There is no connection between the absolute prohibition on a barrister telling lies on a client's behalf and the difficult situation where a client instructs that he or she believes themselves to be guilty of murder.

krd wrote: »

I'm not sure how legal or ethical it is for a barrister or a solicitor to explain this to the client before hand. Like:"whatever you do, don't tell me that you've committed a crime. Let me just sort through the prosecutions evidence and see if I can get you off"

Nothing wrong with that. What do you think a barrister/solicitor is ? A member of the police ?

'now Mr. Jones, can you just tell me as best you can what it is you are guilty of so I can go and let the judge know.'

krd wrote: »

The legal representative does however under all circumstances have an obligation to represent their client to the best of their abilities. This would stretch to trying to get their client a reduced sentence or to even getting them off on a technicality.

I would be interested to know how the ethics of getting someone, who's obviously guilty, off an technicality works.

No offence to you but you have an awful lot to say about this stuff with no apparent practical or theoretical base of knowledge about it.

There is in truth no such thing as a technicality in law, if you want to call it that, or rather no significance. A person is either legally guilty or legally not guilty.

You start all of your posting in this thread on the basis that the client is 'obviously guilty'. Who are you to say that ? Who is the barrister or solicitor to say that ? An awful lot of criminal charges and the factual background to them are not straightforward to the extent that the client is ill-equipped to say accurately whether they are guilty or not guilty, although they will usually know of what they have or have not done as a matter of fact.

krd wrote: »

An example would be the recent murder of Rebecca French. The murder charge against the four men responsible for her death was dropped due to a technicality. The guards extracted a confession while the men were under the influence of alcohol. Their confession was inadmissible. So they were only prosecuted for burning her body.

http://www.independent.ie/national-news/courts/judge-says-bodyinboot-men-deserved-to-get-20-years-in-jail-2456948.html

This is the point where to be honest your post begins to ignore me.

'dropped due to a technicality'

Quite. The Judge decided that the administration of their custody was not lawful so as to render admissible statements made during that detention.

In the absence of that evidence, there was insufficient evidence to prove murder.

This is an awful long way off what anyone would consider 'dropped due to a technicality'. It was not in substance 'dropped' for a start.

krd wrote: »

On appeal they may even have their sentences reduced.

Which is true in all cases and has nothing whatsoever to do with what appears to be the duscussion here.

krd wrote: »

Now. I'm not sure whether the DPP solely made the decision not to accept the original pleas of manslaughter, or if there was another influence. But these guys were literally caught red-handed (with blood literally on their hands) - burning the body. Their house was covered in blood. There was likely enough evidence to successfully prosecute without a confession.

No. you're not sure. Because you don't know. Because you don't know anything except what has been glibly reported in the newspaper.

'There was likely enough evidence to successfully prosecute without a confession'

Jesus H. C...you can say that can you ? From your informed position here on boards.ie ? If only they'd stuck up a thread on the case here before making the decision :

'eh not looking for legal advice here but say if you were the DPP and you had the following evidence but it turns out they were locked when they confessed what would you do mods please don't close'

krd wrote: »

I'm sure the guards involved feel very guilty. They should have been more careful. But at the same time there is something really wrong in the system in failing to have these guys prosecuted for murder.

They were prosecuted. The evidence however did not support the charge sufficiently. What you're really asking for is no trial, just convict on what the gardai can put together.

krd wrote: »

No. I do not believe this is true. In the real world. If your friend beats someone up on the street, you're not likely to be prosecuted. If though your friend grabbed a girl and started rape her and you stood there with your hands in your pocket, you could find yourself prosecuted.

Presume that was exactly the evidence against you. You would not be prosecuted. You are wrong. Again you seem to conflate what the actual legal position is (because you don't appear to know what it is) with what you think it should be on a moral basis, and represent the latter as being an absolute fact.

krd wrote: »

It's not "perfectly" ethical. There is a dilemma there. It's ethical to give the client the best representation to your ability. It is not ethical to assist someone who is guilty of a crime avoid prosecution. There is a conflict there. It's not resolved. It would be ethical for a solicitor to tell a client "If you're guilty - make a full confession", it would be unethical for the solicitor to advise their client "If you've done anything really bad, don't tell me"

Again you're just wrong, apparently confusing again what you think the position should be with what it is. It is perfectly ethical for a solicitor to tell their client that they should not confess to the solicitor as it may impair the solicitor's ability to act for the client to the best of their ability. Same goes for a barrister.
It is also perfectly ethical for a solicitor to tell the client that they are not obliged to tell the gardai anything.

There is of course the need to give full competent advice concerning the benefit of co-operation with the authorities if a guilty plea will be entered in due course, and also the effect of certain legislative sections which affect the right to silence.

Anyway, seriously, what do you think solicitors and barristers say to their clients in consultations ? 'Tell me everything you've done ?'

krd wrote: »

I think it's perfectly legitimate for gardai to use trickery and dishonesty to extract the truth.

It's highly illegitimate to use duress to extract a confession because it's convenient for the guards.

It's not legitimate to use trickery and dishonesty to fit someone up - just because the guards believe they're responsible for a crime.

Do you read your own posts ?

Anyway the courts disagree with you. And not just in this country. Perhaps they are all wrong and you are all right.

krd wrote: »

Something that really bothers me about prosecution fraud is the burden of proof needed. For a murder, once you have your body, your axe, and your man covered in blood - you have a conviction. With fraud you have to prove the axe didn't accidentally fall and chop up the victim all by itself.

Jaysus. Havn't you just posted about a crime involving a homicide not dissimilar to your hypotheses. What was the outcome again ?

As has been observed the burden of proof is the same irrespective the crime. And by the way you really should be talking about the standard of proof in the context of the difficulty in proving fraud cases.

Bosco boy wrote: »

a confession is a pain in the hole for a solicitor or barristor,

Its really not. Its the client's hole that's involved.

Bosco boy wrote: »

The reason people are arrested is because there is a reasonable suspicion that they are involved in the crime, evidence gathered in the investigation can be put to them,

Not every arrest is valid, morally or legally.

Bosco boy wrote: »

I have sat in many interview rooms with suspects and investigated crime and abided by all regulations and often i have got statements of admission and I find your comment about gardai who take a statement of admission to be decieving people to be ill informed and actually insulting.

Ara get over yourself. No one's saying you're part of the heavy squad. Abuses do happen during detention and the rules are not always observed. Admissions are often procured during robust interviews which are upheld by the court and often by trickery which is not.

The statement was not ill informed, in point of fact, and you have no reason to be insulted by it on the basis that you've always abided by the rules.

detective

johnnyskeleton wrote: »

Why should gardai be allowed to cajole people into confessing to a crime? There is no logical reason for it, other than that it is expedient. If a confession is voluntary that is a different story, but why a person should ever confess is utterly beyond me. And the powers to draw inferences from silence are even more disturbing.

Police all over the world are allowed to question suspects arrested for the proper investigation of the offence for which they have been arrested for, not just in this country. So are you arguing that one should not be arrested for an arrestable offence, except maybe to photograph, fingerprint them and show them evidence that we want to put to them but that they cannot be questioned about their crime?

People confess because they feel badly for what they have done and it gives them a sense of relief. Cooperating with Gardai will also knock a fair bit off of a sentence when the Judge is deciding punishment. Trust me, it's not just to pee off their solicitor. Solicitors are obliged to inform their clients of this also but it doesn't always happen.

I agree with you about many of the recently enacted inferences going too far, but not all of the inferences altogether as a whole.

detective

To everyone on this thread from all sides,

Please stop commenting on the Rebecca French case. What has been said so far is both misleading and inaccurate. This is a great thread where people concerned with the legal profession and their law enforcement counterparts can discuss their opinions and certain facts. But in relation to this case those facts that have been presented in this case, they are wrong.

Reloc8

There have been no facts presented about that case. Just poor summaries of third hand reportage which somebody appears to have skimmed, half-digested, and then applied the results in support of their arguments for

a) what the legal/ethical position in respect of solicitors and barristers is, and

b) what it ought to be.

Why they would do that, I don't know.

detective

Reloc8, I also mentioned what has been said was misleading and inaccurate and I would include some of your statements in this regard.

Reloc8

Actually I would like to correct something - I said they made admissions while drunk, in fact they were under the effect of alcohol when first detained but not while questioned.

The errors were in the manner in which the detention was subsequently administered and were in fairness more technical in nature than my previous post conveyed.

johnnyskeleton

Bosco boy wrote: »

a confession is a pain in the hole for a solicitor or barristor,

Not really - in fact from a purely cynical point of view nothing would make life easier and more profitable for solicitors and barristers if everyone confessed and pleaded guilty. The problem with confession evidence is that it is unreliable and has proved over time to be unreliable. Yet we still insist on relying on it.

Bosco boy wrote: »

gardai have the legal right to detain and interview suspects in realation to a crime in order to investigate it, the judges rules allow them to ask questions of anyone when investigating a crime.

It is legal to execute someone in Sinapore if they are convicted of drug smuggling. Does the fact that it is legal make it right?

Bosco boy wrote: »

The reason people are arrested is because there is a reasonable suspicion that they are involved in the crime, evidence gathered in the investigation can be put to them, often when they see evidence stacking up against them they will admit.

Traditionally, the reason to arrest someone was because there was enough evidence to charge them. The process of extracting a confession started informally and then became enshrined in the law.

Bosco boy wrote: »

An admission alone is rarely adquate, there are nearly always physical or forensic evidence as well.

No there isn't. If you really are a member of an garda siochana, you would know that very few cases have physical or forensic scientific evidence. There are many cases where someone is convicted on a confession alone.

Bosco boy wrote: »

These files go to the dpp and they decide if it should proceed and they are barristors and solicitors. I have sat in many interview rooms with suspects and investigated crime and abided by all regulations and often i have got statements of admission and I find your comment about gardai who take a statement of admission to be decieving people to be ill informed and actually insulting.

It was krd who advocated obtaining a confession by trickery. But you're kidding yourself if you think gardai never use inducements to make a person confess.

detective wrote: »

Police all over the world are allowed to question suspects arrested for the proper investigation of the offence for which they have been arrested for, not just in this country. So are you arguing that one should not be arrested for an arrestable offence, except maybe to photograph, fingerprint them and show them evidence that we want to put to them but that they cannot be questioned about their crime?

They should only be arrested for the purposes of being charged. Everything else is an invasion of their constitutional rights. If the gardai must be given such powers, then they must exercise those powers with great care. So it's all very well to say that people are getting off on a technicality, but since the confession is gained from a legal technicality anyway, having it ruled inadmissible because of a mistake is eminently sensible.

detective wrote: »

People confess because they feel badly for what they have done and it gives them a sense of relief. Cooperating with Gardai will also knock a fair bit off of a sentence when the Judge is deciding punishment. Trust me, it's not just to pee off their solicitor. Solicitors are obliged to inform their clients of this also but it doesn't always happen.

Again, there is no handier money for a solicitor than a client who wants to plead guilty and shows genuine remorse. If solicitors acted out of pure self interest, everyone would plead guilty and would be encouraged to do so by their solicitors. However, solicitors also can have great concerns about how justice is administered in the courts.

But as to why people confess - this is due to many reasons. Being interrogated for long hours can cause people to admit to things that they didn't do. Some people confess just to get out of detention, others because they are out of their heads on drink and drugs.

detective wrote: »

I agree with you about many of the recently enacted inferences going too far, but not all of the inferences altogether as a whole.

It's just a way of stiching someone up. At least there is some protection in that inferences alone cannot result in a conviction, but that is cold comfort for most people.

detective wrote: »

To everyone on this thread from all sides,

Please stop commenting on the Rebecca French case. What has been said so far is both misleading and inaccurate. This is a great thread where people concerned with the legal profession and their law enforcement counterparts can discuss their opinions and certain facts. But in relation to this case those facts that have been presented in this case, they are wrong.

Why don't you set out the reasons why it is wrong then? I for my part have been responding to the scenario that krd has set out for that case, not any particularly knowledge on my part.

Bosco boy

Johnny, you obviously don't spend much time around the courts or have any experience of trials, forensics are a bit part of many cases, witnesses are also, phone evidence, CCTV, seized weapons, property or drugs relating to cases where applicable, you are quite simply ill informed!

johnnyskeleton

Bosco boy wrote: »

Johnny, you obviously don't spend much time around the courts or have any experience of trials, forensics are a bit part of many cases, witnesses are also, phone evidence, CCTV, seized weapons, property or drugs relating to cases where applicable, you are quite simply ill informed!

If all you have is a vague claim to have greater experience of the courts that I do then I'm afraid you haven't very much way way of logical argument.

Equally, however, it would be remiss of me if I did not back up my ill informed views, so here ya go:

A mere 13.5 percent of the murder cases reviewed actually had physical evidence that linked the suspect to the crime scene or victim. The conviction rate in those cases was only slightly higher than the rate among all other cases in the sample. And for the most part, the hard, scientific evidence celebrated by crime dramas simply did not surface. According to the research, investigators found some kind of biological evidence 38 percent of the time, latent fingerprints 28 percent of the time, and DNA in just 4.5 percent of homicides.

http://sigmundcarlandalfred.wordpress.com/2010/11/08/the-case-against-evidence-from-fingerprints-to-high-tech-csi-forensic-science-plays-a-much-smaller-role-than-you-would-think/

Bosco boy

johnnyskeleton wrote: »

If all you have is a vague claim to have greater experience of the courts that I do then I'm afraid you haven't very much way way of logical argument.

Equally, however, it would be remiss of me if I did not back up my ill informed views, so here ya go:


http://sigmundcarlandalfred.wordpress.com/2010/11/08/the-case-against-evidence-from-fingerprints-to-high-tech-csi-forensic-science-plays-a-much-smaller-role-than-you-would-think/

Have you any reliable satistics relevant to Ireland, I don't think satistics relevant to a USA state are reliable, you mentioned singapore earlier, I'm taking about Ireland, i'm in the courts week in week out as a Garda, that's where I base my experience from, what's yours?

detective

johnnyskeleton wrote: »

1.
They should only be arrested for the purposes of being charged. Everything else is an invasion of their constitutional rights. If the gardai must be given such powers, then they must exercise those powers with great care.

2.
Again, there is no handier money for a solicitor than a client who wants to plead guilty and shows genuine remorse. If solicitors acted out of pure self interest, everyone would plead guilty and would be encouraged to do so by their solicitors. However, solicitors also can have great concerns about how justice is administered in the courts.

3.
But as to why people confess - this is due to many reasons. Being interrogated for long hours can cause people to admit to things that they didn't do. Some people confess just to get out of detention, others because they are out of their heads on drink and drugs.

4.
It's just a way of stiching someone up. At least there is some protection in that inferences alone cannot result in a conviction, but that is cold comfort for most people.

5.
Why don't you set out the reasons why it is wrong then? I for my part have been responding to the scenario that krd has set out for that case, not any particularly knowledge on my part.

1.
Can you name me one jurisdiction where the police can only arrest for the purpose of charge? Of course the Gardai must exercise their powers with great caution, and in my experience they do.

2.
A solicitor does not make as much money for a one appearance early guilty plea as he would if there was a full contest. Solicitors if they acted in their own interests therefore would not advise all their clients to plead guilty. Of course they are concerned by the courts process. We all are - it must be fair to all sides.

3.
Yes there are many reasons why people confess but two in particular, the ones I previously outlined, are directly linked to their well being - a shorter sentence and an ability to clear their conscience. Are they under pressure whilst in custody. Yes of course they are. Its not meant to be easy. They will be asked very difficult questions at a time when they could be suffering from extreme stress.

4.
Our current inferences are very draconian in my opinion but some make sense (accounting for possession of stolen property is one instance where it is in the suspects interests anyway to account as the jury will hear of the said possession regardless, unless the warrant is thrown out on a technicality ha ha).

5.
Because it's not my place. As a proud member of Ireland's police force I will not comment on any individual case before all appeals have been lodged and heard. As a legal representative perhaps you should try and find out like reloc8 has and I had to so that going forward I will know not to make that mistake and reloc8 will spot it if it ever comes up in one of his cases. But I'm glad that you've never made an error.

krd

Reloc8, I had a long response to you. But decide not to post it.

You're being pompous and punctilious.

A technicality may not be a precise legal term, but it's a widely used term that everyone understands the meaning of.


As for the Rebbeca French case. The guys were prosecuted for deposing of the body. They didn't just find the body on the side of the road and decide to get rid of it, like people go picking up crisp packets after litter bugs.

It's facetious to suggest given the circumstances that there was anything other than a technical failure in not having them prosecute for murder. There was no other narrative.

Morality and ethics are another argument. In some countries it's moral, ethical, and even effectively legal, to beat your wife to death if she displeases you.

I am not certain of the situation in Ireland. In the US and in some other countries - like Italy. It is legal for the police to lie to suspects when gathering evidence.

I don't have the link - but I have seen a lecture given by an American law professor and an American policeman on the subject of talking to police on arrest and how they can question you, and how they can trick you into confessing or incriminating yourself. In a given situation the people who this form of questioning is most dangerous to is bull****ters. A bull****ter is liable to inadvertently incriminate themselves by fibbing. There are plenty of people who are compulsive fibbers - a fib can get you in big trouble with the law.

And omission is also unethical and can be an offence, if my reading of the 2001 fraud act is correct. Establishing a mens rea I imagine could be difficult. But to me, even a concept like mens rea is a little fuzzy and imprecise.

Reloc8

krd wrote: »

Reloc8, I had a long response to you. But decide not to post it.

You're being pompous and punctilious.

Thank you

punc·til·i·ous (pngk-tl-s)adj.1. Strictly attentive to minute details of form in action or conduct. See Synonyms at meticulous.
2. Precise; scrupulous.


As regards pomposity - speak to the post, if you can, rather than chucking insults.

I otherwise will simply take it that you don't have a response, beyond using words which you don't appear to understand the meaning of :cool: but then as noted above you've been tossing out statements concerning matters which you don't seem to have much of a knowledge of either.

We won't fall out over it

krd

Reloc8 wrote: »

Thank you

punc·til·i·ous (pngk-tl-s)adj.1. Strictly attentive to minute details of form in action or conduct. See Synonyms at meticulous.
2. Precise; scrupulous.

How about anal. As in anally retentive.

I am a lay person and this is not a court of law.

As regards pomposity - speak to the post, if you can, rather than chucking insults.

Read your own posts. You're dishing it out.

I otherwise will simply take it that you don't have a response, beyond using words which you don't appear to understand the meaning of :cool: but then as noted above you've been tossing out statements concerning matters which you don't seem to have much of a knowledge of either.

We won't fall out over it

No, we could get waylaid into tangents.

Like I don't want to get in a discussion on ethics with you. As I think you're coming from the 'If you can get away with it, and they can't prove it, it's ethical' school of ethics.


Absence of a prosecution is not absence of a crime. We've had glaring systemic failures in this country. The tragedy of those failures is not an academic argument.

I may have an advantage over you in one respect. I have been arrested and questioned by the guards - though I was completely innocent of any crime - in that instance I know my personal experience. They were on a fishing expedition and they caught the wrong fish - so they threw me back. They do use intimidation and psychological tricks - not much of a problem for me - but I can imagine some people freaking out and denouncing their own mothers. I do know of instances of the guards harassing people because they've got nonsense information from somebody.

Tom Young

Now, this ends here. Stop the sniping and cloaked abuse please.

Reloc8

krd wrote: »

I am a lay person and this is not a court of law.

No but you're tossing out assertions regarding what is and is not permissible for a solicitor and even what the law is. You can't expect not to be corrected on that. At least now you're providing context so that anybody reading your posts can form a view on whether they are or are likely to be correct.

krd wrote: »

Like I don't want to get in a discussion on ethics with you. As I think you're coming from the 'If you can get away with it, and they can't prove it, it's ethical' school of ethics.

It doesn't concern me whether you want to get in a discussion on ethics with me or not. You've been making lengthy posts on legal ethics before I ever got here.

Don't characterise my 'school of ethics' like that - it should be, frankly, abundantly clear that what I have done is answer the question posed by the OP, regarding the obligations of a solicitor in certain circumstances.

That is a description of the legal considerations involved, not my view on what they ought to be. Those legal considerations are not movable feasts they simply are what they are.

krd wrote: »

I may have an advantage over you in one respect. I have been arrested and questioned by the guards - though I was completely innocent of any crime - in that instance I know my personal experience. They were on a fishing expedition and they caught the wrong fish - so they threw me back. They do use intimidation and psychological tricks - not much of a problem for me - but I can imagine some people freaking out and denouncing their own mothers. I do know of instances of the guards harassing people because they've got nonsense information from somebody.

No you don't. Your personal experience is anecdotally interesting but I can't see where your advantage lies.

I'm not dishing it out - you just don't like to be corrected. Unfortunately some of your posting was so heavily inaccurate that it more or less had to be corrected. But in that regard, as I said, we're not going to fall out over it.



edit : posted just as Tom's post above came up - just clearing the air with krd I hope, not looking to snipe or abuse.

Tom Young

Tom Young wrote: »

Now, this ends here. Stop the sniping and cloaked abuse please.

<- Read the quoted text.

krd

Reloc8, let's stop the sniping.

As far as I am concerned, there are serious ethical problems in Irish life, as a whole. Some people would disagree - but I would see that as a major part of the problem.

The reason I started this thread was to ask a very specific question.

We've had a catastrophic systemic failure in this country. Every man, woman, child, and dog, is being made to pay for it.

We've had instance like the golden circle Anglo deal - where if the same wheeze had been tried in New York, all the participants and their lawyers and accountants would be in jail right now.

The only way we may see a successful prosecution of Seanie Fitz and David Drumm may be through the US SEC.

UncleSamm

Section 19 Criminal Justice Act 2011 requires reporting these things to Gardai.

Lentil Soup

https://www.boards.ie/discussion/comment/69758472#Comment_69758472

Before section 4 of the Criminal Justice Act people were illegally held by Gardai and were jailed for murder even though the illegal detention was brought up in court.

Some cases in https://www.amazon.com/Unless-Invitation-Crimes-Shocked-Ireland/dp/1909974005

Jim_Hodge

https://www.boards.ie/discussion/comment/120389313#Comment_120389313

13 year old thread?????