Please see below a transcript of my speech:
I am delighted to be here and it is great to be back. Thank you for asking me to speak on this highly interesting and relevant theme.
Criminal law is one of the most intellectually challenging, complex and profound aspects of justice system. Concepts can be esoteric and difficult yet are honed through centuries of application. The academic beauty of common law system is that the most bizarre, obtuse cases typically reach the highest courts and thereafter are recorded, shaping the body of law that comes after and establishing precedent for practitioners and legal scholars alike.
Criminal Law deals with fundamental rights. The right to life, to liberty, to possession of worldly goods. And the consequences of interfering with same and the denial of such rights.
The panel discussion today considered penal policy and incarceration and alternatives. I may take a slightly broader look at elements of the overall theme this week. Use, if not poetic licence, political licence!
Of course, in terms of alternatives to incarceration, the obvious one is to not be found guilty – or not be subject to sanction without being found guilty. Especially if one is not guilty in the first place.
Presumption of innocence is the pillar that underpins entire criminal justice system.
Viscount Sankey articulated the fundamental principle in Woolmington v DPP in 1935, citing the duty inherent on the prosecution to prove the prisoner’s guilt beyond a reasonable doubt in what was to become a landmark statement on the presumption of innocence in the criminal justice system.
“Throughout the web of the English criminal law one golden thread is always to be seen – that it is the duty of the prosecution to prove the prisoner’s guilt”.
Sankey was a member of the UK supreme court, one of the Law Lords, and merely giving voice to what was already a long-established principle across common law world. And on British legal system on which most of common law world prided itself on following for best part of three centuries.
For the present discussion, it is also noteworthy that Sankey was the chair and author of the first declaration of human rights which was later to be absorbed into the Universal Declaration of Human Rights. Also interesting that at a time when the UK is determined to dismantle such obligations, as outlined by Theresa May even before becoming Prime Minister, that it was a British Judge created it.
Burden of proof / legal burden / state must prove its case. Is for the prosecution to prove. Accused enjoys right to silence. No onus on accused to prove innocence. (Elaborate on all this)
The presumption of innocence was held to be “a vital, constitutionally guaranteed right of a person accused in a criminal trial” by Justice Hardiman in the case of DPP v D. O’T (2003).
David and Goliath situation of state versus individual – first principles
However – last fifteen years have seen slow march from system predicated on presumption of innocence and rights of accused – to one concentrated on criminal containment and powers of control. Multiple new measures have served to erode these rights and pare them back.
In a recent paper, Dr. Yvonne Daly suggested that “our modern nation state has in fact moved on from an approach to criminal justice which bespoke the values of penal welfarism, liberal democracy and due process toward a position which represents populist punitiveness, political/legislative panic and the principles of a more crime control-oriented model”.
“Furthermore, it is submitted that a lack of clear, informed debate with regard to this important societal shift has allowed Irish society to fool itself into believing that we have not made such an ideological leap”.
She further says that “We have altered the rules of the game in order to thwart crime and criminals, but in so doing, we have allowed the basic tenets of our nation to be fundamentally changed as well”.
To what extent has the political interaction with the process and public pressures on same contributed to this situation? How stands the system from civil liberties today? And where to next?
In discussion today will consider whether political pressures and public demand for retribution have led to diminution of presumption of innocence.
Weigh the political and public influences on criminal justice system and whether for better or worse
Attitude to Judiciary
Race to bottom of populist court of public opinion.
At school last year spoke of onward march of Trump and Brexit.. both have come to pass A view that we have “had enough of experts”.
The judiciary and the legal system have not been immune from such corrosive opinions.
Consider UK press reacting to Brexit and court decision to refer to vote of parliament. The temerity of the court to reach a decision which did not accord with popular opinion or the red top press.
Daily Express “named and shamed” supreme court justices on front page. Those that dared reach a considered conclusion at odds with the views of the plain people were not guardians of the common good, but traitors in their own land ! “Enemies of the People”! Pol Pot would have been proud of such tirades.
Trump expressed similar views when the courts blocked his visa travel ban, referring to “so called Judges” who had found his order illegal.
At home, whilst perhaps not on the same level, we saw a fairly targeted attack upon the judiciary by Minister Shane Ross in his recent judicial appointments bill, and in fact was forced to apologise for comments he made at an earlier stage in the debate when he said judges may forget their oaths.
Judicial integrity must be understood to be respected. All the more abhorrent when those that should know better, curry favour through populism. Yeats immortal words from September 1913 have come to mind so many times of late..
“The Clever man who cries the catch cries of the clown”
‘Moral Panic’ and re-active legislation
We have also seen a trend where very often the reaction to a crisis of law and order is to introduce more onerous legislation and row back another element of due process safeguard on each occasion.
These periods of political and legal crises have been described by some legal and sociological scholars, including Ian O’Donnell, whom I believe visits here this week, as outbreaks of ‘moral panic’.
A measure that would normally provoke serious debate is fast tracked through as the prevailing emergency is sufficiently urgent. But the resulting legislation remains on the statute books and is seldom revisited in the cold light of day when the crisis has abated.
Indeed for any House of Cards fans out there, I hope I don’t betray any spoilers if I reference a recent episode – in urging the President to go to war, a consigliore points to shocking images in newspapers but cautions that only a 3-5 day window will exist before the public outrage recedes .. but the executive orders will remain in place.
Dublin and Monaghan bombings saw hastily voted in Offences against State Act provisions 1974
Guerin murder and Gilligan crackdown led to introduction of CAB 1996
Omagh bombings saw OASA provisions strengthened 1998
Mid noughties crime wars led to theft and firearms drug offences legislation 2006/7 mandatory minimum for over 100 offences
Recent gangland epidemic saw introduction of “mini CAB” 2016
Tough cases make bad law – what about tough politicians? What kind of law do they make?
In same vein, could note that national state of “emergency” lasted 56 years. From 1939 to 1995. Surely an exceptional circumstance ceases to be exceptional once it becomes the norm?
The definition of a “moral panic” is where the alarm outweighs the underlying level of threat. Whilst there has been some academic commentary to suggest this was so in some of the above scenarios, I will not retrospectively debate that here. It must also be submitted that sometimes a rapid reaction and show of strength is required to reassure the public and to put the offenders on notice.
When measures are necessary and proportionate to counter a real threat they are justifiable at that time.
What I will suggest however is that emergency legislation which is long lived is not a good idea and that some form of sunset or later review clause is important to protect the underlying value system.
Move from “due process” to “criminal control”
Right to a fair trial enshrined in Irish constitution (Art 38.1), European Convention of Human Rights (Article 6) and United Nations Convention on Human Rights (Article 10).
Imperative within the system is the right to a fair trial.
Yet in recent years we have seen an ongoing revision of many supporting provisions and a gradual redefinition of due process.
The introduction of adverse inferences within evidential rules. Can now draw adverse inferences from refusal to comment on certain items / situations. This is an erosion of the right to silence.
The advent of reverse onus clauses – similar to above, in these cases the evidential burden shifts onto the accused to prove how not guilty in a particular context.
Mandatory minimum sentences – removing or qualifying the discretion of a trial judge to consider the facts of a particular case and character of a particular defendant. 100 in CJA 2007.
Many measures which impose sanction without a finding of guilt (by a judge or jury).
These would include long periods of detention and questioning without charge. Forfeiture of assets, such as criminal assets bureau. Changes to Bail laws including bail referendum. Greater surveillance powers to Gardaí. Rules on admissibility of evidence.
In explaining the sheer volume of legislative changes which impacted upon criminal justice policy in the 1990s and early 2000s, often in reaction to perceived crises, Prof Dermot Walsh has said:
“It is submitted that the combination of these developments has, in the space of less than 10 years, achieved a radical realignment in the balance which had characterised the Irish criminal justice system during the previous 150 years”.
It is also submitted that there is a media bias towards sensationalism and crime related stories which may amplify public and political reaction and de-sensitise the public towards more onerous measures
Dr. Michael O’Connell carried out an examination of over 2,000 Irish newspaper reports on crime, and, as a result of this study, he proffered four ways in which the press skews the representation of crime:
– the bias towards extreme and atypical offences in terms of frequency;
– the bias towards those extreme offences in terms of newspaper space;
– the bias towards stories featuring vulnerable victims and invulnerable offenders;
and – the bias towards pessimistic accounts of the criminal justice system generally.
O’Connell has also concluded, elsewhere, that in Ireland, although the media do Focus on CAB, The Proceeds of Crime Act has been controversial though has also been widely hailed as a success. The key difficulty from a due process perspective is that a conviction for a criminal offence is not required prior to the grant of a forfeiture order. To this end, the Act is utilising civil procedures to assist with law enforcement measures “whilst bypassing the traditional protections of the criminal law forum.”
It has been described as a “a criminal process masquerading under the trappings of civil law.”
Granting additional powers and moving from a criminal to the lighter civil burden of proof will certainly produce results but should never be seen as a substitute for the proper detection, investigation and prosecution of crime. A shift in approaches from the criminal to the civil legal process should not become the norm, yet adding more powers in this domain risks that possibility – with the long term risk of allowing resource drain away from more traditional, and proven, crime prevention methods.
The law of unintended consequences can also come into play here – for example with the Criminal Assets Bureau staff composition spanning Revenue, Social Protection and Gardaí. Given the civilian mix, it is not clear what its relationship is to say GSOC or the Policing Authority or what jurisdiction one has over the other? In the event of an issue arising, who has authority to review whom exactly?
In no other area is rushed legislation regarded as a good thing – why should the criminal justice area be viewed differently?
It is of concern that the UN Committee on Torture performs annual reviews and in recent years Ireland has begun to be subject to some unfavourable findings. Indeed their most recent report, published just last Friday, has no fewer than 40 observations (many with multiple sub-headings) and only 6 of which are positive. Whilst some of these could be classified as social issues such as abortion and symphysiotomy, and thereby outside the realm of law and order, the extensive powers of detention without charge and similar have been queried as has the lack of a legal right to legal advice when in custody. While the judiciary have read in the existence of this right in both the ECHR and the Irish courts, the legislative have been slow to react. Legislation was actually drafted in 2011 but the section has not been enacted. UNCAT see these gaps as serious areas for concern.
Jobstown Trials & Public Commentary
The role of the criminal justice system in the context of politically motivated actions is something that we have not had to confront directly in recent decades. However the Jobstown trials gave us a sense of the difficulty for the Courts in labelling actions as criminal when a political motive exists.
I think it would be widely accepted that the way the Tánaiste was treated on that day was completely unacceptable and should be condemned. Whether that condemnation is best expressed via criminal charges and what type of charges remains a matter for debate. But politicians must defer to the DPP in those decisions.
What was even more remarkable about this trial however is the political campaign which surrounded the proceedings for over eighteen months. While historically, organised media outlets have been mindful of their limitations in commenting on ongoing court proceedings, the ‘democratisation’ of information through social media presents a new challenge to the criminal justice system. The Constitution, along with strong protections of freedom of expression and assembly, also speaks to a right to a trial free of unfair publicity. In deciding whether salacious media reporting poses a risk to the integrity of a trial, the court must consider the interest of the community in having a trial proceed. The ubiquitous commentary—led by national politicians—along with rallies and other campaigns advocating a particular determination by a jury presents an alarming precedent where simple rules of contempt are ineffective in ensuring the integrity of the trial. The community’s interest in ensuring against the intimidation, directly or indirectly, of members of juries is a strong one, particularly as the alternative is having no trial at all.
As highlighted recently by the Chief Justice, the manipulation of trials by social media is a danger which neither locking someone up for contempt of Court, nor lengthy civil proceedings for defamation, is adequate to prevent.
This principle applies equally to the Taoiseach’s comments in the immediate aftermath of the verdict, calling into question the evidence given by the Garda Síochána and the way it was dealt with by the judge. The courtroom procedures concerning how evidence is presented are built to recognise human frailty and deal specifically with flawed recollection and imagined recall. Direction by a Judge in such matters is no more remarkable than a Surgeon advising a medical team. Yet a commentary on the activities of an operating theatre would be no more acceptable than passing judgment on activities within a courtroom, and yet the Taoiseach felt the need to go there. For politicians to invite populist commentary about how courts operate only undermines the ability of our justice system to operate in the confidence that its ultimate results will be accepted.
Sentencing policy is another area where very often public opinion, and the press will express concern. Politicians can feed and in turn be fed by the baying crowd of public outrage.
A public outcry frequently arises after some high-profile defendant receives what is perceived to be lenient sentence. But that response may be disconnected from the sentencing rationale and purposes.
There have been some moves here, and the LRC have endorsed, an approach where a standard sentence exists for each offence with the potential to move up or down based upon a set of aggravating or mitigating factors. Cooperation with Gardaí, early plea of guilty, some degree of remorse and amends may be mitigating. Pre-meditation, extreme violence, vulnerability of victim may be aggravating factors.
More complex and more prescriptive systems exist abroad – state of Minnesota uses a matrix where one reads a chart like a set of coordinates on a map to arrive at the right sentence. This can be overly formulaic and misses the subtleties of every individual crime and every individual defendant.
Key is that public faith in the system is maintained and that justice is seen to be done. It is imperative that public confidence in the courts is strong and that there is at least some understanding of why a particular sentence is arrived at or how the process works and that it is fair.
UK have introduced a model where a sentencing council sits with a combination of mostly judges but also relevant lay people on the board. They consider different types of offences, and in consultation with public and stakeholders, issue guideline sentences for different levels of severity. One of the goals of such models is to engage with the public and press and to inform them on sentencing. As well as extensive consultation on each new sentencing guideline, they run mock trials online and in town hall workshops where the audience apply sentence. In most cases, despite the ongoing press image of judges going soft on crime, the public sentence was more lenient than the judges one.
We must also consider the purpose of sentencing? Retribution? Prevention? Rehabilitation? Deterrence for others?
Those of us that have seen the Shawshank Redemption are familiar with the tick-box model of parole hearings. Ironically it is only at the final try, when Morgan Freeman’s character, Red, has abandoned a façade that he finds favour and is released. While fiction may not mirror real life, it can be a difficult balance to strike.
While victims and their families will of course wish to see justice done, retribution is not the primary goal of society which must take the wider view. Again it is a function of each individual defendant and the realistic prospect of their rehabilitation into society or conversely, of future recurrence.
We are aware of the problem of repeat offenders. 62 percent of those released from our prison system will be convicted of another 13 offences within the next three years. Almost 80 percent will be reconvicted within a year, with burglary and assault offences most frequent.
The Prison Service in a recent report called for multi-agency cooperation to address the fact that incarceration, as we know it, is not helping steer the majority of prisoners from criminal activity.
Community rehabilitation has been noted by the Prison Service as greatly lowering the rate of recidivism among those who take part.
The fact that a prisoner costs as much as €67,000 per year to the Irish state should be enough of a political incentive to prompt a deeper examination of the purpose of incarceration in Ireland; and whether it would be more effective in satisfying that purpose if it were more rational and humane should also be persuasive.
It seems sensible to take an evidence based approach here to attain the most productive outcome for society, including financially; whilst recognising that categories of repeat offender need special sanction.
A final thought on sentencing is that commissions may issue guidelines – but any outside agencies must be careful not to fetter discretion of trial judges. Attempts to do so are seldom successful and often law of unanticipated consequences. E.g. s.15A misuse of drugs act – minimum 10 year sentence for drugs possession – unless “exceptional” circumstances. Judge always finds an “exceptional circumstance” in every case! Compassionate judges or two fingers to legislature?
Proposals at end
- Introduce sentencing commission to apply consistency and promote awareness
As per the LRC and the UK model, a commission to issue reference sentences, in consultation with the public can only be positive, with a greater awareness and understanding of the parameters and of society’s changing perspective, both for the general public and for those making the decisions.
- Reconstitute criminal law review groups to assess the pace of change
With the rapid pace of change in the criminal justice code over the past 20 years, it seems due to take stock and assess whether the traditional protections still hold. Without the right checks and balances no system should be adopted by an advanced society which could later be used against it. It seems reasonable to follow a period of rapid re-alignment with an objective audit of outputs. The Balance in the Criminal Law Group was established for exactly that purpose yet has not met for ten years. Let’s reconvene it rather than re-inventing the wheel.
- Introduce & standardise review mechanisms to controversial provisions
Argument can be made for most of the individual measures – yet sunset and review clauses are missing to relax once the crisis has passed. Also there are many varied approaches to review, some are laid before the houses of Oireachtas annually for vote, some are subject to report by a judge, some have no such review clauses built in. E.g. the Criminal Justice (Surveillance) Act 2009, which contains measures that provide for a review to be conducted at certain stages of the operation of the legislation with respect to how it is performing. A five-year review is built into the Defamation Act. Every five years, the Minister initiates a review of the operation of the legislation to consider if its implementation is successful, if changes are required and if simple checks and balances are in place. The ECHR Act has a similar provision. It would be a progressive step to examine and standardise the review formula for each and ensure more than a token review exists. This would be very useful and welcome measure in all such cases to ensure good governance and best practice
- Adopt updated set of court rules to cater for social media and external influences
The rules of contempt of court are there for good reason – to ensure the accused receives a fair trial. To elevate the importance of each piece of evidence presented in the courtroom setting, the goal is to exclude all other commentary and avoid any preconceived dispositions of innocence or guilt. This is the fundamental premise at the heart of every courtroom process and all supporting procedures. To ensure the presentation of content within the court alone, with all its attendant rules around admissibility, fair procedures and credibility of sources, are what determine the decision.
These and other measures may lead to a better-balanced climate.
Who watches the watchers? Quis custodiet ipsos custodes?
In case of complacency lets us recall 14,000 wrongful convictions discovered on traffic offences just this year! 14,000 golden threads snapped! The need is there for stronger checks within the system and better informed public engagement. A less reactionary political approach would reap better long term rewards. The Criminal Law Review Group sought to “strike a fair balance between the rights of the community and of victims of crime on the one hand and the rights of an accused on the other”
Of all people, devotees of Parnell know all about the injustices that can flow from a moral panic