BLUNDERS IN JUSTICE LEAD TO BAD LAWS DRIVING OUT GOOD
By Dara Robinson

Is something seriously amiss in the Department of Justice? If so, how
should we respond to the radical measures contained in John O'Donoghue's
new Criminal Justice Bill, Fianna Fail's first shots in the war on drugs
and crime.

The department has a lot of explaining to do. It is solely responsible for
the Judge Dominic Lynch fiasco, the controversy over the appointment of
District Court registrars, and the too casual abolition of the offences of
common assault and false imprisonment, all of which have caused chaos in
various parts of the criminal justice system.

The department must also accept primary responsibility for the sloppy, and
often incomprehensible, drafting of statutes over recent years. On that
basis, fault for the recent row over the repeated arrest and release of
alleged drug dealers lies there. Less well known to the public, but a
ticking timebomb in the system, are flawed provisions of the Miscellaneous
Provisions Act, another departmental product.

The massive output of the department in recent years is in many ways driven
by ambitious politicians anxious to demonstrate to the voters that they
will be tougher on crime, usually drugs, than their predecessors. The very
size of that output has surely contributed to the plethora of blunders.

There is another, more sinister, aspect to all of this. Real public debate
on the need to proceed cautiously with reform, in terms both of procedures
and of substantive changes in criminal law, has been virtually
nonexistent. Broadly speaking, the department has neither contributed to
nor stimulated informed public debate on the many substantial changes over
this period.

It is not a good time to be urging caution on officials and politicians.
The public mood, if such a thing exists, would appear to be driven
substantially by the inclination to jail deviants, preferably for as long
as possible, with the minimum safeguards, so as to deny their lawyers the
opportunity to dig them out of a hole. Yet, as Judge Kinlen recently
observed in the Hanahoe case, everybody is entitled to be defended.

Against this background, enter the new bill. Three main sets of proposals
are contained in it. Tucked away in its rear pages is a quiet attempt to
overturn an established judicial saw, that an accused is always entitled to
credit on sentence for a guilty plea. The bill would abolish that
principle, for some years now a settled tenet of sentencing.

There has been no public debate on this issue, and by slipping this clause
in alongside other procedural changes of a minor nature, none is being
encouraged.

Over half of the bill concerns the abolition of preliminary examination.
This is the process whereby cases are prepared in the District Court for
return to the Circuit or Central Criminal Court. Theoretically, weaker
cases are weeded out at this stage, although the desperate underfunding of
the District Court section of the Chief State Solicitor's Office means that
many prosecutions fall by the wayside for want of solicitors to prepare
them or secretaries to type them up.

The proposed changes will have the effect of transferring the entire
process of preliminary examination to the Circuit Court, where presumably
it will result in that court being clogged up with needless remands for
months on end pending the preparation and service on the accused of the
prosecution evidence.

The present absolute entitlement of the defence to call a deposition, that
is to have one or more of the prosecution witnesses give evidence in person
in the District Court even though the case is to be tried on indictment, is
to be diluted to a discretionary entitlement. Absurdly, if the proposed
changes become law, a case would have to be sent back to the District Court
for a deposition.

To make these changes work, a substantial switch and increase in resources
within the prosecution services is essential. Such an increase would, were
it put in place now, make the system as it is work perfectly well. As
things stand, a process which has worked well for decades, and which is
regarded as an essential safeguard for defendants, is proposed to be
abolished at a stroke without any evidence of the need for change, and
without proper public discussion.

But the provisions of the bill which have attracted most publicity are the
proposed minimum 10year sentences for those found dealing in drugs to a
value of £10,000 or more. It may not generally be realised, but judges in
the Circuit Courts, where all such cases are currently heard, already have
such powers of sentence. The crucial distinction is that the present powers
are discretionary, and permit judges to tailor the sentence according to
the culpability of the accused. The proposal is that 10 years will be
mandatory.

There has been no impetus from within the judiciary for this change. Their
views have not been canvassed, so far as any public utterances would
suggest. The drive for these proposals is populist, and may be
illconsidered.

The bill provides that gardai or customs officers can indicate to the court
what the 'market value' of the drugs is, but such values are extremely
variable, and may bear little resemblance to the real value of the drugs.
There is a notorious tendency for gardai, for PR purposes, to inflate
valuations.

These proposals are no more likely to snare the major dealers than existing
law. The likely target of 10year sentences will be courieraddicts in the
case of heroin, middlemen in the case of nonaddictive or stimulant drugs.

As Dr Paul O'Mahony has written elsewhere, the bill makes no distinction
between heroin, a drug of proven destructive capacity, and other drugs,
such as cannabis or ecstasy. This is a serious flaw.

Perhaps the many fiascos of recent times might serve to concentrate minds
on the fact that hasty, illconsidered change carries its own risks.