Extending the Admissibility of Hearsay Evidence. Criminal Justice Overhaul.
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Sunday October 22, 2006 20:08
by Chris Murray
Mc Dowell gets his Fingers on the the Criminal Justice System
Rebalancing Criminal Justice-Remarks Made by Tanaiste in Limerick.
The Tanaiste is up-grading the statutes to do away with the Right to Silence, though he asserts that the right to the presumption of innocence and trial by jury will remain.
The Killer in his press release is this Quote:
'Many of the legal principles and values have become the cornerstones of our law and are almost sacrosant in how we perceive and interact with them. Those same principles have originated and developed from a different era when many defendants could not read or write and it was necessary for the legal system to devise means and ways(!) to ensure that safeguards were available'.
http://www.justice.ie
So He is reviewing the right to silence-which is phrased as the right to silence against self-incrimination.
It does not say how 'truths' will be extracted...
Since it is enshrined in the European Convention of Human Rights (article 6), he has some work to do.
' Has the time come to consider broadening out the circumstances which an inference can be
drawn from the failure of the accused to respond to fair questioning recorded, as
sufficent proof of guilt-but as corraborative of other evidence of guilt?
Things remaining (apparently) are:
The right to open-trial, jury trial and adversial trial-where the judge does not act as an' inquistitor'.
"but the constitutional right to trial by jury and to trial in due course
of law exists to serve the common good and not as an end in itself".
Other aspects of the Criminal Justice Law to be reviewed includes:' Extending the admissibility
of hearsay evidence'
The whole text of the speech-which is more a warning shot across our collective
bows is on www.justice.ie , the heads of the Bill have not been launched, fanfared
or published.
It also looks like more constitutional reforms or changes would accompany any changes to the statutes.
The last text released from the Dept of Justice was on the 10th of October, when Mr Mc Dowell signed the Protection aspect of the Immigration, Residence and Protection Bill 2006 into Irish Law. This was under an EU directive and had to be Transposed into Law on that date.
The Corrosive aspects of the Bill in relation to Human Rights, such as the issuing of Bio-metric ID's have not yet been transposed into Irish Law.
Comments (12 of 12)
Jump To Comment: 1 2 3 4 5 6 7 8 9 10 11 12Hate to find myself agreeing with McDowell but there’s a good case to be argued. Consider the following example. Admittedly it is quite contrived, but none of the individual elements of the scenario are in any way unrealistic……
Man and woman are at party in mutual acquaintances house. Woman has quite a lot to drink and starts to feel drunk and dizzy. Host invites her to lie down and rest in a bedroom. She does. Man notices and makes his way to bedroom. She is unable to fend him off and he rapes her. He also inflicts several cuts and bruises. He positions his mobile phone so that the inbuilt camera records the proceedings. On rejoining the party he high fives a number of men, boasting that “I gave it to her good and hard – she was so drunk she couldn’t do a thing to stop me.” He suggests they might wish to take similar advantage.
Woman makes complaint to Gardai. Fellow guests make statements confirming his comments after leaving the room. Man is found to have two previous convictions for violent rapes. Man is invited to assist the gardai with their enquiries and volunteers to do so. At the station he spins a yarn about consensual sex and after some time the Garda, who seems sceptical, begins to leave the room. Man suddenly realises the compromising evidence on his mobile phone and starts to delete it. Belatedly the Garda realises this and snatches the phone from him and views the video files of the rape. When confronted with this, man makes a full signed confession and pleads for leniency. He is then arrested and required to give a DNA sample which (naturally) confirms that his semen matched that found on the victim.
The case goes to trial. In the absence of the jury the seizure of the mobile phone is deemed unlawful (no warrant, no prior arrest) and therefore the video images from it must be excluded from evidence. As the confession flowed from the discovery of the images, it too is tainted with illegality and must also be excluded from the evidence. His arrest and subsequent DNA test – you guessed it – also flowed from the initial illegal seizure and is inadmissible. His post-rape triumphant boasts to fellow party-goers are, of course, hearsay evidence and cannot be admitted to evidence. And of course his previous convictions can’t even be mentioned. The sole evidence placed before the jury is the victims statement and testimony; unfortunately she is rather hesitant and unsure in the witness box and contradicts herself on some minor details. The accused gives evidence that he, as a qualified first-aider, was concerned about the woman’s condition and merely visited the bedroom to check that she was ok. He claims no intercourse, yet alone rape took place. It comes a surprise to everyone when the accused calls the woman’s ex-boyfriend who testifies that she once made a rape claim against him and subsequently retracted it. (It was in another country, the allegation was false and was made while suffering from a severe psychiatric disorder and was quickly retracted and never taken seriously, but he doesn’t mention this.) Meanwhile the prosecution don’t know the background and are unable to bring out these details in cross-examination.
Jury retire. The inevitable not guilty verdict rolls in 20 minutes later. Has justice been done? Might McDowell have a point after all?
Mc Dowell asserts that doing away with the right to silence is a way of protecting the victim-
1. What if the victim is someone who has been criminalised by dicky legislation?
At the moment the people of Bellanaboy are having evidence- hearsay and recorded
collated about the protest. To secure a conviction, say for Trespass- or anti-social
behaviours, the Garda's power has increased to admit hearsay evidence and
the 'criminal' (who has been criminalised by a corrupt regime) has had his/her
right to silence eroded by a legislature that isn't exactly known for its
equality in relation to crime.
2. Turn it round again- the victim impact assessments, figures in organistaions
which deal with women victims of crime suggest that the numbers of violent
attacks are increasing. I could cite Rosemary (mercer's Street-the trial of the
perpetrator collapsed on a technicality), Meg walshe, and the other female victims.
The DRCC figures show that rapists are not brought to justice, the judiical
system (including new legislation) mitigate against the victim.
Thus in an ideal world the victim could be protected against violence or
seek justice through proposed legislation to amend the right to silence
- but in actuality the victim in crime is nt at the moment getting
fairness or parity. Removing the right to silence and expanding the
admissibility of hearsay is not protecting or ameliorating the impact
of crime on communities or rape victims- it is simplifying the
job of the Gardai and eroding the rights of the individual.
With further legislations such as Privacy/defamation ,the Immigration,
Residence and Protection Bill and this one- the basic accepted rights of individuals are
subject to consistent erosion.
It is becoming incredibly easy for people to be criminalised and for the
State to secure convictions- the means and methods of collation are
evident for all to see in Mayo.
Are you a criminal because you were shafted by the PPP process
which is weighted against the community?
The point is that if victims were allowed their rights to confront through the
process of law their attackers , then this indeed would be an interesting piece of
legislation but the figures do not back up the Department of Justice ideology.
Hi Chris,
I think there are two separate issues at stake here. If people are being unfairly criminalised for certain behaviours (eg exercising their right to peaceful protest or protecting their communities from unjust corporate behaviour or defying harsh and unjust immigration laws) then the answer is to CHANGE those laws that criminalise the behaviour and NOT to arrange the law so that it is extremely difficult to secure convictions in all criminal cases and extremely easy for clever lawyers to get people off on a technicality. If you go the second road, then all law-breakers benefit. Rich law-breakers with access to money and resources will particularly benefit, being able to hire the best solicitors and barristers and throw endless amounts of money to contest everything. You seem to be suggesting that rather than getting rid of the "dicky legislation" we should just make it harder to secure a conviction under it?
I completely agree that the current system doesn't adequately protect victims of crime, particularly the ones you mention. But part of this is the protections that the perpetrator enjoys and can abuse. Some re-balancing is needed.
Wherin the law seems guaranteed to protect some whilst detracting from the basic civil rights of others.
There has been little in the way of redress for the families of victims of serious crime. The prison system is being run into the ground. Criminalisation of ordinary protestors under legislations that facilitate the crony lobby
(The SIB/Housing Bill, Miscellaneous Provisions 2002- The 'Trespass Law')
In order to redress the balance ,in issues such as violence against women there needs to be a commitment to the issue- In the nine years of this regime , which involved the ministery of John O Donoghue and Michael Mc Dowell- there has not been a commitment to the issue of violence, to victim support or to prisoner rights.
That said- there is no guarantee within the comments on the proposed legislation that this law
will not impact on the person who falls foul of Irish Law through protest or indeed Journalism-
Check out the Privacy and Defamation laws.
The point of the series of comments here, and the piece is to point out that legislation without
commitment to putting in place support structures for the victims is paying lip service to the issue of
the right to silence without the support structure.
The new Criminal Law (Sex Laws) seek to criminalise the young, whilst also putting the
victim on the stand- (section 5). A sixteen year old boy can be criminalised for sexual activity,
his right to silence is , under this law, no longer in operation. We are talking about a raft of Laws
from the Deprtment Of Justice which criminalise ordinary people- who have little recourse to basic rights.
The structures to ensure those rights and freedoms have not been put into place, nor
has the commitment to the victim or the family- it is a Law, therefore that erodes the
right to presumed innocence and the right to victim support.
Can you not do both: ie improve facilities and resources for victims AND cut off the loopholes through which petpetrators escape. Eg judge curtin escaped on a technicality - the search warrant was found to be ever-so-slightly out of date. This is manifestly wrong and I think the evidence obtained should be admissible. I don't see how this could damage victims. Surely one of the most effective way to help victims is to ensure they don't become victims in the first place. If the likelihood of getting away with an offence is high, this is an incentive to commit crime. EG we have huge rates of sexual offences against children - less than 3 in a thousand lead to a conviction (source, CARI/DRCC/1in4 et al) - surely the low probability of a conviction leads to incresed abuse. Similarly with tax evasion - it is almost impossible to be jailed for it - it's a licence to plunder.
The issue of victim support and violence against women- in the context of last week,
One conviction of a husband (Rachel O Reilly's Husband- two years after the fact)
Meg walshe's Murder, Rosemary (Mercer's Street). The run-down of the prisons
wherin All funding to education and re-hab has been cut, slopping out is still practised.
In that context where there are manifest failings in supports to victims of crime, how
can the present Tanaiste and Minister for Justice seek to pass a law which he
claims to aid the victim of serious crime whilst ignoring the rights of that
victim and family survivors in the 'real world'. The Bill will only ameliorate and
lessen the burden of pagework for the Gardai.
The Numerous Bills passed in the FF/PD administration (numbering 80) have not
alleviated the situation wherin husband abusers and committers of serious assault
have walked completely scot-free, in that analysis therefore they do not have anymore the
right to silence but the judicial system and the funding for victim impacts and supports
is a paucity. It's paper law- the kids of these women are seeing the per[etrators bailed
often released because the issue of reasonable doubt could not be proven. There is not
an equivalent commitment to victims of crime as there is to the upgrade/overhaul
of the jurisprudence system. The victim, therefore, is not given an equality of treatment
by the present government.
How many families in the state are still looking for answers with regard to loved ones?
I can think of at least ten, including families of kids and young men beaten to death on
our streets. The right to silence overhaul can be used in the criminalisation of ordinary
people, as in Bellanboy- and meantime the judicial system allows for the release of
people who admit of murder. The refusal to put individual rights at the heart of legislations
is damaging our civil rights. This governemnt has had 9 years to deal with the issue
of abuse/manslaughter/rape/murder- it has failed. This re-structuring is paying lip-service to the
families of victims whilst not ensuring that the large amount of rape cases never go to trial,
underfunding victim supports and widening the definition of criminalisation:
through corrosive and demeaning laws such as those propounded by the the Department of Justice
in relation to the Sex Laws.The Privacy and Defamation Law. The Trespass Laws. The
Fast-track Planning Laws.
If there were a seriousness about appraoching the issue of the impact of crime on victims
Rape and abuse convictions would be up and the people charged with assault would be in the
admittedly medieval prisons, not released on technicalities.
Or In other words: Our laws are criminalising ordinary people and the right to silence may be
their only defence (despite collated Visual or hearsay evidence). Our 'ordinary decent criminals'
have good lawyers-who is going to suffer from these erosions of citizen rights?
In the debates on the sex laws on June 2nd 2006- The Minister for Justice regected the
notion of the 'Sunset Clause', introduced a bill which is not gender neutral therby opting
for an entire section which is open to constitutional challenge.
The 'Appalling Vista' promulgated by the Laffoy decision to release Mr 'A' led to a
constitutional crisis which saw the present Government criminalising young boys for having sex.
The right-wingers could not decide to lay down a fine of 1000 euros for unlawful carnal
knowledge and instead opted for the five years hard time option, which is solely at the discretion of the DPP.
Not alone has the Minister for Justice introduced a whole new class of criminality onto the
statutes but he has introduced legislation into the Dail which did not deal explicitly with the issue
of rape -but of criminalising sexual activity amongst experimenting kids.
The section in question is not gender neutral therby opening it to challenge, because the discretion
on prosecution is solely in the hands of the DPP . This then is the man who intends to do
away with the right to silence and reform jurisprudence to the extent that we are allowing as a society for
kids to go to Mountjoy for sexual activity. The two week long crisis resulted alone:
* In the re-instatement of the 1935 act.
*The placing of rape victims on the stand to justify dress .
* The retention of the honest mistake defence.
This fucked up government and impotent opposition has allowed for erosion of basic civil rights-
what then of the suspect in a statutory rape , age of 16-17 (who was just messing around)
When faced with a garda and tried as an adult?
Is his right to silence invalidated by a constitutional crisis wherin an entire administration
covered the ass of a Minister who did not react on time to a situation that was flagged
months before the Laffoy decision?
That is one example of how the erosion of basic rights can impact an individual.
"I do not know what amendments are being produced. As far as the government and I are concerned
we have inserted a counter-balancing measure, which provides that The DPP must consent to the prosecution of the boy of that age. The DPP, considering the preamble to the Constitution about charity and justice, will not , in those circumstances and using his common law discretion, prosecute the boy where he would not prosecute the girl, that is as good as I can do".
16 years.
No 'sunset clause'
No right to silence.
5 years hard time.
This what in effect can happen under the laws that have been introduced by the Department of Justice in June of this year.
Double standards, example Britain under Thatcher started this ball rolling, and abolished it for everyone. As silence is to be taken as an admission of Guilt. Mark thatcher was an instigator in a Mercenary plot in an Oil rich state in Africa, and was Tried in absentia, he claimed the Right of Silence and was bailed out by his mother again ,along with other Etonians. He should have claimed the Right of Sandline, Channel Islands Mercenary Group, not coverd by the Geneva Convention. I will leave the scrutiny to the Best Legal Minds Eire has. Flynn O Flynn
Our Td's, except one have 'privilege' to speak and say what they want.
If they are caught scamming they can afford the best lawyers.
The right to silence is a human right's issue.
The Dept of Justice is criminalising kids- they lose that right and have to answer Garda
questions= one sixteen year old kid in trouble, and no rights.
Which big money lawyer is going to defend a kid with not even the right to earn?
Folks, let's be honest about this, laws are being made that effectively make it easier to criminalise men whether they are guilty or not. In the case of rape trials, it seems that they want to bring about a situation whereby it is easier to get a conviction against the accused. Basically this means that they would prefer a situation where it would assumed to be okay that an innocent man go to prison rather than a guilty man go free. I would also like to know why it is so easy for a woman to accuse a man of rape, i think this is going to become worse over time. i also am of the belief that their are many men in prison that are innocent of this accusation.
In relation to the act dealing with violence against women, I think the real crime is that a bill was introduced that seemed to be influenced by a myth that only men are violent. We need to be able to face up to the facts that women are just as violent and in many cases are more violent and abusive........Still can't believe that the bill only recognises violence against women (pure sexest).
But when dealing with Mc Dowell's last push to shore up PD votes (and remember the PD's put the squeeky clean in the regime that is only important in that it greases FF sleaze) he will play several "emotive" rather than "thinking" cards. Try and seperate the threads again. Deal with each one seperately and test it seperately. One reason Mc Dowell has been so succesful is his ability to confuse issues and needs which can quickly with "a complaint opinion poll massaged electorate" find case confirmation & spin in the media.
So - at its basest lowest common denominator - we know the electorate don't like sex crime.
- we know the electorate fears US style mafia or organised crime "going yankee or like New York".
- we know the electorate in many places has a hostile attitude to eastern europeans.
That's what McDowell will play on. It's what he's playing on. By this weekend chances are we will have a big bust to illustrate it.
I would be very annoyed indeed at having received a letter from Minister
Mc Dowell who canvassed my area.
The letter has a photo and contact details.
it went through the free-post system in an oireachtas envelope
with a little harpie on the top.
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