It is often claimed the pendulum has swung too far in favour of the accused in criminal trials, but the trial facts suggest otherwise, writes Carol Coulter, Legal Affairs Correspondent
At the annual prosecutors' conference last weekend, leading criminal lawyer Paul Anthony McDermott suggested that the criminal justice system "from start to finish seems to come down on the side of the accused".
If this is so, we would expect to see hordes of criminals walking free from the courts, unpunished and unrepentant, free to commit fresh crimes and expecting to get away with them. The prophets of doom would be right - we would not be safe either in our beds or on the streets, and would be faced with the unappealing choice of shivering at home in terror or braving the anarchy outside.
Fortunately, statistics from the Director of Public Prosecutions (DPP) do not bear out this frightening picture. According to the latest available figures, 95 per cent of all prosecutions on indictment (in the circuit or central criminal courts) end in the conviction and sentencing of the accused. This is largely accounted for by the fact that 90 per cent of those prosecuted plead guilty, presumably because they know from the weight of evidence they are unlikely to win.
Of the remaining 10 per cent of cases that go to full trial by judge and jury, half are convicted by the jury. Three per cent are acquitted by the jury, and the remaining 2 per cent are acquitted by direction of the trial judge, normally because he or she rules that there is not enough evidence to go to a jury, or such evidence is inadmissible. The acquittal of 5 per cent of those prosecuted for serious crimes does not suggest a criminal justice system that is not working for the prosecution on behalf of the people.
The core of Mr McDermott's criticism of the present system is that the rule excluding evidence improperly obtained is applied too strictly by the courts, and this puts the prosecution at a disadvantage. DPP James Hamilton, also criticising this rule, pointed out that such evidence is excluded even when the breach is an innocent one and could have been put right at the time. The rights of victims may be infringed here, he suggested, and Ireland may be in breach of the European Convention on Human Rights.
Mr McDermott began his talk with the story of a detective inspector who stopped a car containing two suspected drug dealers. While they were being questioned, the mobile phone of one went off and the inspector answered it, not identifying himself as a garda. The resulting conversation led to an attempt by the caller to buy drugs. In due course, the caller was prosecuted and convicted. He appealed to the Court of Criminal Appeal on the grounds his conversation should not have been admitted as evidence, as it was improperly intercepted by the Garda Síochána. The Court of Criminal Appeal, presided over by Mr Justice Hardiman, allowed his appeal.
The law in question in this case is the Postal and Telecommunications Services Act of 1983. This came into being following a public outcry over Garda tapping of telephones, notably the telephones of journalists Geraldine Kennedy and Bruce Arnold, who later successfully sued the State. In giving the judgment, Mr Justice Hardiman was undoubtedly aware of the context of the legislation, and the abuses it was seeking to prevent. He did suggest there was a lacuna in the Act which worked against the inspector in this instance. Thus it was up to the Oireachtas to amend the Act to ensure it was not used to protect the commission of a crime. So far, this has not been done.
According to Mr McDermott, the fault lies in the judiciary not giving due weight to the right of the people to have a successful prosecution mounted in their name. However, the investigation and punishment of crime begins not in the court room but with the Garda Síochána. They investigate, question suspects and assemble evidence which then goes to the DPP. He takes over the prosecution and presents the evidence to the court. The balance between prosecution and defence begins with the Garda Síochána.
Michael O'Higgins SC, a criminal barrister who works for both prosecution and defence, says that to allow looser interpretation of the rules excluding wrongfully obtained evidence would be to encourage lower standards.
He pointed to the passage in the key Supreme Court judgment on exclusion of evidence obtained in contravention of a suspect's constitutional rights, DPP v Kenny. It states: "To apply the absolute protection rule of exclusion . . . incorporates . . . a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution."
"It's based on the idea that there may be a price to be paid on the individual case, but they'll get it right the next time, and this will improve standards," said Mr O'Higgins. He suggested that the high number of guilty pleas, and the 50:50 chance of a conviction on the 10 per cent of cases going to court, allowed for investigative work that fell below desirable standards. A garda could conduct his investigation secure in the knowledge that his evidence had a 90 per cent chance of never being tested by a court. This created room for less than rigorous adherence to best practice in the Garda.
He also feels some of the outcry about criminal cases being thrown out on "technicalities" is a little unbalanced, and contrasts with the apparent lack of concern about the number of road traffic cases that are thrown out on technicalities.
"There have been cases testing whether it matters if a garda said 'unfit to drive' or 'incapable of driving', and a case that went all the way to the Supreme Court on whether it mattered that the accused got the top copy or a carbon copy of the document with the blood/alcohol reading." Prof Dermot Walsh of the University of Limerick says the pendulum has swung in the direction of the prosecution over the past decade in the massive extension of the powers given to the Garda Síochána.
"You now have longer detention periods, restrictions on the right to silence, the right to take intimate samples, access to documents, including documents in the possession of third parties.
Anyone who says the State is fighting with one hand tied behind its back is not living in the real world. Once you recognise that reality, the requirement on the State to gather evidence correctly becomes much more important."
Mr O'Higgins says that concern about maintaining the standards of Garda investigations has been shown to be justified. "The Morris Tribunal shows that standards were slipping. That was just in one division. If that's the way things are in the Garda Síochána, why would you embark on a new policy by saying we're less inclined to punish a garda [ by losing a case] for not doing it right?"
Maintenance of the exclusionary rule about improperly obtained evidence is essential, says Prof Walsh. "Having given the police all these powers, if you get rid of the exclusionary rule, there will definitely be miscarriages of justice."