ANALYSIS:The opposition of so many lawyers highlights the need for caution
WITHIN 24 hours, 133 lawyers, mainly members of the Bar, but including some solicitors, signed up to a letter expressing grave misgivings about the Criminal Justice (Amendment) Bill. The organisers stated that, due to time constraints, they had been unable to contact all their colleagues.
This is an unprecedented number of signatures to a letter of this nature, outstripping those who indicated their reservations about the Criminal Justice Bill 2006, which was also rushed through the Oireachtas.
There are a number of significant things about this letter. First, the sheer number of signatories indicates the depths of concern within the legal profession about this Bill. Last week the solicitors' professional body, the Law Society, also appealed for more time to debate it. Secondly, the names include may prominent prosecuting counsel, who are confronted daily with the task of putting criminals behind bars in the name of the Irish people. The fact that they have added their names to this letter indicates they do not feel it will strengthen their hand in the courtroom fight against crime, nor do they seem to consider it necessary to secure convictions.
Thirdly, the signatories consider that the Bill is likely to be unconstitutional. Referring to the provision that allows a conviction for a serious crime on the uncorroborated opinion evidence of a garda of any rank, it states: "The Constitution will surely not permit this", adding, "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."
The Minister for Justice has already stated in the Oireachtas that the Attorney General has given his opinion on the constitutionality of the Bill, as he must on all Bills. However, no attorney general, no matter how learned, is infallible, and the doubts expressed about the constitutionality of this Bill have been very widespread indeed.
Fourthly, the signatories point to the fact that the Bill has been introduced without any research and without canvassing expert opinion or inviting contributions from interested parties on the issues. It did go to the Human Rights Commission when published last week, which has a statutory mandate to comment on the compatibility of legislation with human rights requirements, and it made a submission very similar to the comments made here.
The signatories also point out that one of the other measures introduced to deal with serious crime, the Criminal Justice (Surveillance) Bill, which authorises the use of covert surveillance, has not yet had a chance to be used.
The main issue, however, highlighted by the signatories is the haste with which this is being rushed through the Oireachtas, through the imposition of a guillotine. It was only published a week ago, and is expected to become law by the end of this week, a mere 10 days after publication.
It is not clear what is to be gained by such haste, other than the appearance of doing something about serious crime.
The courts will rise for two months at the end of this month, with only the District Court sitting, so there will be no trials for serious crime during that period anyway. Postponing the finalisation of the Bill until after the summer recess will have little practical impact on the fight against the criminals, but could allow time for a reasoned debate about a comprehensive response to the problem of serious crime and ruthless criminals, with an input from all those with relevant experience.