Despite some welcome amendments, the Criminal Justice Bill remains flawed, argues Brendan Grehan.
Lawyers traditionally welcome new laws for one good reason. New laws invariably mean more work. As a rule, we rarely take the time or effort to scrutinise, much less publicly comment on, pending legislation. In general, we are content to keep our heads below the parapet and let the Oireachtas do its job, secure in the knowledge that whatever the outcome, it is likely to be "good for business".
On Tuesday evening, a colleague and I sat in the public gallery of the Dáil as the Criminal Justice Bill of 2006, under guillotine, concluded its report stage at 10pm. We were the only members of the public present. A lone journalist sat in the press gallery. A handful of deputies were in the Dáil chamber to participate in the debate.
The vote, when called, attracted a substantial gathering of deputies but the Government easily won the day with Labour and Fine Gael abstaining. And so with scarcely a whimper - never mind a proper debate - the most fundamental changes to our criminal justice system in ages have been rushed past another crucial stage on their journey on to the statute book.
The Bill now moves to the Seanad which is scheduled to conclude its consideration of its contents by tomorrow.
The measures which caused most concern when over 200 barristers (mostly involved in criminal cases) wrote to Minister for Justice Michael McDowell last month were: mandatory sentencing; curtailing the right to silence, and seven-day detention.
In response to criticism that mandatory sentencing was likely to lead to injustice, Mr McDowell immediately proposed changes to exclude some offences and limit its effects on others. The objection that remained to this proposal was one of principle. It undermined the independence of the judiciary by removing its power to impose sentences which were proportionate to the circumstances of the case. As such the provision was of dubious constitutionality and was also possibly in breach of Article 5 of the European Convention on Human Rights as it constituted an arbitrary punishment.
The Minister has now taken these objections on board as well and has left the courts with some discretion in sentencing thus avoiding a constitutional collision course with the judiciary. Given that the Minister, as a lawyer himself, must have known the constitutional problems with his original proposals and the ease with which he amended his proposals, one wonders whether the whole exercise was simply part of the megaphone diplomacy the Minister has been engaged in with the judiciary over sentencing policy since late last year.
Was his original proposal a warning to the judiciary to get their house in order or else this is what will happen? Whatever the reasons, the Minister's change of heart in this regard is to be welcomed.
Curtailing the right to silence has been defended by the Minister by reference to similar changes introduced to the law in England in recent times. However, in his proposals he has failed to introduce the strong protections of the right to legal advice which have been incorporated into the English measure.
This is absolutely necessary if the rights of citizens are to be protected because the effect of this provision will be to shift the focus from what now happens in the courtroom to the Garda station. The seven-day detention provisions have not been debated at all in the Dáil. This is deeply disappointing and represents a black mark against our legislators in their role as defenders of our civil rights.
One has only to recall the furore which attended the debate and the introduction of the Criminal Justice Act of 1984 which introduced detention provisions for all of 12 hours! As recently as last year, the Oireachtas saw fit to extend that period of detention to effectively two days.
This change only came about from last December. Now for a whole range of offences, this is deemed by the same Oireachtas to be inadequate - and this without a whiff of evidence to suggest that last December's innovation is inadequate, and indeed in such a short period of four months, how could there be?
The justification for seven-day detention is that it is being introduced as an emergency response to tackle gangland crime. If this is really the case, it should automatically lapse unless renewed after a period of, say, one year, when its effectiveness and continued necessity can be properly debated. At the very least, there should be some procedure in the Bill whereby the Oireachtas should have to review it in the future.
However, none of these safeguards apply. Instead it is being enshrined by the terms of this Bill into the permanent law of the State and will therefore require a further Act to remove it. The history of the erosion of civil rights is that once lost they are rarely, if ever, recovered. After the right to life, the right to liberty is one of the most fundamental rights of all citizens.
It is to be regretted that as serious a restriction as this on such a right can be passed into law without any discussion on its merits in the Dáil. That responsibility has now passed to the Seanad.
Let us hope, for all our sakes, that this proposal in particular receives more scrutiny there and that it is not left as the permanent legacy of this industrious Minister's tenure in office.
Brendan Grehan, senior counsel, specialises in criminal law