Criminal Justice (Amendment) Bill 2009

Lawyers are not liked as a group and any proposal which they generally oppose is very likely to become more, rather than less, popular because of their opposition. A little over ten years ago the Bail Referendum, was opposed, among others, by a relatively small group of lawyers and was decisively approved by the people and the present Criminal Justice Bill is no different. The proverbial man on the Blanchardstown omnibus isn't bothered by such laws as he thinks that they'll apply to criminals in Limerick and not him. Of course we all know that civil liberties only apply to decent law-abiding middle class types and not gangland criminals from Limerick.

Ireland has always had an ambiguous relationship with jury trials. Historically Grand Juries were detested as being the creatures of the Protestant Ascendancy which passed doubtful indictments on Catholics while refusing to indict their own when the evidence was stronger. In fact one of the first things we did after independence was to remove their remaining judicial powers, thereby abolishing them completely. The Petit Jury remained only to face competition from various military tribunals, the most notorious of which was undoubtedly the Constitution (Special Powers) Tribunal which was empowered, among other things to inflict any punishment it saw fit upon conviction before the Tribunal for any criminal offence whatsoever. As far as draconian legislation goes, we are unlikely to even dream up anything quite so severe these days.

We are now faced with the Criminal Justice Bill which allows for the conviction for membership of a criminal gang before the non-jury Special Criminal Court (the successor to the Special Powers Tribunal) by the uncorroborated evidence of any member of the Garda Síochána. But is it Constitutional? I think the answer is probably yes for the following reasons:

1. Separation of Powers. One of the best arguments against the Bill is that there's no reason for the sudden rush and that we can wait until the autumn when a more expansive examination of the Bill can be performed. However this not a reason for unconstitutionality as the courts will not enquire into the adequacy of debate in the Oireachtas concerning any particular bill.
   
   
2. Under the Presumption of Constitutionality, it's up to those who wish to challenge the Bill to prove that non-jury trials are not warranted. Were this not the case the Government would face the difficult task of showing that the "ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order." I have not yet heard of any reported case of jury – as opposed to witness – intimidation, and I'm not sure if the Government have either.
   
   
3. Interpretation. The Courts will try and save the Bill by interpreting it in such a way as to avoid any potential unconstitutionality. Thus in the absence of any clear statement that an accused person can be convicted on the uncorroborated evidence of a member of the Garda Síochána, the Courts will interpret to say that individuals either can't be convicted on the basis of uncorroborated evidence, or that the Courts should be very reluctant to convict anyone on the basis of such evidence. In short the opposite of what it purports to say.
   
   
4. The get-out-of-jail-free clause. The Bill includes a provision which says:
   

   "Nothing in [this Bill] prevents a court, in proceedings thereunder, from excluding evidence that would otherwise be admissible if, in its opinion, the prejudicial effect of the evidence outweighs its probative value".

   This allows the Courts to say that any potential unfairness brought about by the Bill can be mitigated by trial judges by excluding otherwise prejudicial evidence. It might also, of course, allow trail judges to completely undermine the operation of the Bill, but that’s a matter for another day.