Criminal lawyers on justice and injustice

'Injustice by Giotto
by Giotto
via Wikipedia

I have heard it said that when you get two lawyers in a room, you get at least three opinions. This is, unfortunately, usually true. It is therefore all the more impressive when you can get 133 of them to agree on something. Here’s a letter in today’s Irish Times on the impact of the Criminal Justice (Amendment) Bill, 2009, which is to be subject to a legislative guillotine before the Dáil rises next week:

Criminal Justice (Amendment) Bill

Madam, – We the undersigned are lawyers whose practices include the area of criminal law. Many of us both prosecute and defend. We see at first hand the effect of crime, particularly violent crime on individuals and communities in our society and we also have a close up view of the criminal justice system with its strengths and its frailties.

We are extremely concerned then about the Criminal Justice (Amendment) Bill 2009 which, it appears, is likely to become law this week. It has been introduced without any research to support its desirability and without canvassing expert opinion or inviting contribution from interested parties on the issues. It appears now that it will be passed without proper debate in the Dáil because such debate has been guillotined by the Government.

It is quite simply astounding that we as a society would jettison ancient rights and rules of evidence in such a manner and seemingly without regard to the effect such impetuous legislating might ultimately have on the respect for the rule of law in this country.

While there are many aspects of the Bill that cause real and serious concern the most pressing are as follows: The abolition of jury trial for a range of new offences; the use of opinion evidence from any garda as to the existence of a criminal organisation; the failure to require that the garda opinion evidence be corroborated; the provision for secret hearings to extend detentions without the presence of the suspect or their lawyer.

Jurors who give up their time, as is both their right and duty, often come away with a deep appreciation of the process that must be applied in ensuring a fair trial for all and a realisation of the magnitude of the decision which has been entrusted to them. The right to trial by jury is enshrined in our Constitution, only to be taken away where it is determined that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

Are we as a nation at greater threat from “ordinary” criminals than other countries are from organised international terrorism? The US will allow jury trial of those within its territorial borders. In the UK they try “terrorist” offences in jury courts. Recent legislation in the UK has allowed for rare non-jury trials but it at least requires a hearing before such an order can be made. If this legislation is passed, all these new offences will go to the Special Criminal Court unless the DPP directs otherwise. The United Nations Human Rights Committee has already condemned the inequality of similar provisions as it applies to existing offences but now it is proposed that we widen the net of those accused who are to be denied the right to a jury trial.

Opinion evidence from a Garda must be understood as simply that – an opinion. No basis for such an opinion would be required by this Bill. No corroboration is required. A Garda on the beat – who may base it on a person’s previous convictions or from evidence upon which he/she will claim privilege and therefore not have to divulge where it came from – will be able to give an opinion which could result in conviction and sentence for a serious crime. The Constitution will surely not permit this, but even if it does, Ireland is likely to find itself shamed before the international community when the European Court of Human Rights or the United Nations Human Rights Committee are, inevitably, called upon to rule on the issue.

When seeking extensions of detention for the purpose of investigation the hearings may be heard in secret and not just in the absence of the person in detention and his/her lawyer but without even the judge’s clerk or prosecution lawyer if deemed appropriate. Secret hearings should be anathema to a system based on the rule of law. From the manner in which detention hearings are currently conducted, there is nothing to suggest that investigations would be compromised. In the main the court hears generalised evidence about the necessity for further time to carry out interrogations, forensic testing or assessment of evidence.

Finally we would draw attention to the fact that many of the issues that have been raised by the Government in promoting this Bill have already been addressed in previous legislation. For example, the intimidation of witnesses is met by both the use of out of court statements as evidence and the use of covert surveillance. Out of court statements have already been used before the courts and have resulted in successful prosecutions and the latter provisions regarding covert surveillance have to be given the opportunity to work before we rush headlong into unknown territory.

We the undersigned urge the Government to withdraw this Bill and instead provide for a short consultative period during which reasoned debate can be heard. – Yours, etc, [133 lawyers]

More: Leading lawyers call for Bill on gangs to be withdrawn (Mark Hennessy, front page of the Irish Times); Bill’s opponents are far from being the usual suspects (Carol Coulter, Irish Times); Criminal lawyers (Leader, Irish Times); Criminal Justice Bill to allow evidence from former gardaí (Breaking News, Irish Times); Lawyers call for withdrawal of justice bill (RTÉ news); Morning Ireland (RTÉ radio; scroll down to “Lawyers call for withdrawal of justice bill” and “Pressure on Dáil to pass bills”); Law Society calls on Government to defer Criminal Justice Bill for ‘proper debate’ (Law Society of Ireland press release).

On the lawyers’ claims as to the incompatibility of the Bill with international norms, see Fiona Donson‘s excellent Trial by Jury to be removed for organised crime offences, where she also discusses the English case of R v T & Ors [2009] EWCA Crim 1035 (05 June 2009) in which the Court of Appeal controversially applied section 44 of the Criminal Justice Act 2003 (which allows for a trial in the absence of a jury if there is a real and present danger that jury tampering would take place and that the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury).