The Cedar Lounge Revolution

Janus like the IT faces both ways – again. Consider it’s editorial yesterday on the Criminal Justice (Amendment) Bill. After outlining the nature of the problem and suggesting that ‘our existing criminal code seems inadequate’ it continues:

This is the context in which the letter sent to this newspaper by 133 lawyers who are directly involved in both prosecuting and defending those accused of crime raises serious questions about the appropriateness of the response proposed by the Government in the Criminal Justice (Amendment) Bill.

Among their concerns is that allowing a conviction on the uncorroborated opinion of a garda may be unconstitutional; that it marks a departure from the principle of jury trial not thought necessary by countries who are faced with the threat of international terrorism; that it permits secret detention hearings; and that many of the issues raised by the Government in promoting the Bill have been addressed in previous legislation.

The signatories to this letter include many lawyers who act as counsel for the Director of Public Prosecutions in seeking to convict those accused of committing serious crimes. They are in daily contact with the victims of crime, who frequently also have to appear in court as witnesses for the prosecution. As they state in their letter, they see at first hand the effect of crime, particularly violent crime, on individuals and communities. They also have a close-up view of the criminal justice system with all its strengths and failings. It is significant that so many prosecutors do not appear to think this Bill, if it becomes law, will make their task easier.

Well, it’s unlikely, despite the glib heading of the editorial – given the seriousness of the topic, ‘Criminal lawyers’, that the lawyers are in this one for the money. Perhaps, just perhaps they feel that there’s a problem here. So what are we to make about the final paragraph…

The signatories also warn of the impact this “impetuous legislating” might have on respect for the rule of law. It is an unusual, but not an unprecedented, step for practising lawyers to air their views in the public interest on pending legislation. They call for the Bill to be withdrawn to allow a short consultation period for reasoned debate. It would have been helpful, and more useful, if these practitioners had offered their alternative to deal with a serious problem.

Hmmm… well, now I wonder about that particular formulation in the final sentence. Look back at the sentenced in the second paragraph which argues that somehow the gangland situation dismal as it is doesn’t warrant measures thought excessive in states which face international terrorism. It is entirely reasonable for a group of lawyers to argue that a proposal brought forward is unworkable or in some sense inapplicable. It moves things to an entirely different basis for them to be proposing ‘alternatives’. That’s not exactly their function and they’d be open to charges of undue activism if they did so.

But all that was but a curtain raiser for the following today, an article in the Irish Times by Stephen O’Byrnes, late of the Progressive Democrats and a man who I had some dealings with many years ago. He’s a nice guy, no doubt about it, but to my mind he’s seriously wrong in his analysis of the Bill.

As with the Irish Times editorial he argues that:

For years now, the vast majority of decent law-abiding people have cried out for similar action to be taken to combat gangland criminals, the drugs godfathers and their hired killers. This cry went up especially after the murder of Donna Cleary, Anthony Campbell, Baiba Saulite, and the Limerick trio of Brian Fitzgerald, Shane Geoghegan and Collins. And it was the murder of Collins that finally tipped the balance. Belatedly, in the eyes of most citizens, the Minister for Justice last week brought forward a new Criminal Justice Bill transferring various “organised crime” offences to the Special Criminal Court where the gardaí can offer expert evidence on the activities of the defendants. Clearly the gardaí will also be greatly assisted by the new Surveillance Act which will allow for the admission of surveillance evidence, and convictions can be secured on that basis, without having to rely on witnesses.

But again, what of jurors? How do no-jury trials assist this, where is the evidence that jurors have been suborned by criminals? How does the Bill protect witnesses. In fact he notes that it is witnesses who are the obvious weak link in this chain…

So while it is clear the gardaí have the intelligence, they find it impossible to bring prosecutions because people are terrified to assist them and/or to offer witness evidence in court. Where witness statements are secured, these are often withdrawn in court, due to intimidation of these witnesses or their families. And if there are individuals brave enough to come forward and give evidence, other gang members will sit in the court intent on intimidating jury members.

There is an argument there, and I find it compelling, for having court proceedings largely in camera, open only to the press. But that’s not the argument he’s making.

He continues with what is an absolutely bizarre reading of the situation…

Yet, notwithstanding the growing criminal mayhem of recent years, and the scandalous level of non-prosecutions in gang murders, this vital reform has been roundly condemned by bodies that profess concern for human rights.

The Irish Human Rights Commission, whose website opens by declaring solemnly that “the protection and promotion of human rights is [its] core value”, states that the new Bill is “not human rights compliant”. The Irish Council for Civil Liberties proclaimed that Ahern’s Bill “tramples on the rule of law”.

A search of the websites of these august bodies, however, reveals no public statements following the murder of Campbell, or Cleary, or Collins; nor was there any chain letter from the Four Courts. The Collins murder was the particular atrocity that put the human rights of every law-abiding citizen under threat, and which the Minister admitted was the tipping-point for the new legislation. Such selective concern for the human rights of citizens engaged in criminal activity from human rights and civil liberties bodies nauseates most right-thinking people, and does serious damage to the reputation of these organisations.

How is it selective for a Human Rights group whose interaction is with the state and its legislation to concentrate their focus on that state and that legislation? What possible point is served by such groups issuing statements that no-one – bar O’Byrnes – expects or would read? They have no influence on the ground one way or another. And the same holds true of the critique by the lawyers. They have no rhetorical influence on those who commit these crimes

O’Byrnes concludes by taking a lash at the Oireachtas and the Opposition…

But what did the Oireachtas make of the new Bill which, if it operates as envisaged, should, at long last, tip the balance of justice in favour of law-abiding society and away from the gangland criminals whom it has heretofore clearly favoured? After all the special debates of the last atrocity of the past decade, with Opposition parties pleading with the Government to take effective action, here surely was the time for virtual unanimity.

Sadly, when the Bill was debated in the Dáil last Friday this did not happen. Echoing a lot of the media commentary to date, various Opposition politicians extolled a jury system that is demonstrably incapable of functioning in the exceptional circumstances of today’s criminality. Deputies suggested witness protection programmes (is that where law-abiding citizens want to end up), and repeated daft and impractical proposals from the Human Rights Commission, such as having an anonymous jury (whatever that is), screening the jury from public view, or linking the jury by video to the court.

And there were repeated protests about the time allocated to consider the Bill, which is set to pass all stages tomorrow.

As if the case for this reform has not been debated up and down the land for at least the past decade, in the Oireachtas, the media and among the public.

Well, that – unfortunately – is nonsense. These particularly contentious measures have not been debated up and down the land for the past decade and it’s specious of him to claim otherwise. The debate, such as we’re having, has already lapsed into unwise anecdote.

The ideas raised such as screening the jury are neither ‘daft’, impracticable or perverse in their outcomes. The issue of a strong witness protection programme is a necessity, not some sort of outrageous imposition on citizens. It is precisely the way to break the back of gangland crime because it attacks the foundations for it from within the community demonstrating both the primacy of the state and the inability of gangs to combat those around them who want them dealt with.

It’s surprising to see him so willing to pull away the oversight function, limited as it is, of the Oireachtas from this issue. Curious that he cannot seem to see that if the Opposition is generally perturbed by this legislation there might be more to that perturbation than political opportunism. Odd that he can so easily dismiss the concerns of tranches of expert opinion well beyond those who might ordinarily be liable to make noises.

Still, O’Byrne’s piece is drafted from Olympian heights as compared to that of Kevin O’Connor, a former RTÉ journalist from Limerick who writes that ‘lawyers’ are, as the heading suggests ‘Using Constitution to mask self-interest’ and then proceeds to berate the legal profession for all manner of misdemeanours.

Neither do the well-paid lawyers, who yesterday made alarmist invocations of the Constitution’s alleged “protection of the jury system”, to defeat this Bill. Excuse me while I yawn [?], but is this the same Constitution which failed to guarantee the “right to life” of some 20 of its citizens this year – three citizens a month gone to graves, failed by the Constitution of this little state of anarchy?

Or maybe the lawyers have in mind another Constitution, which does not protect that shopkeeper and the hundreds of people, similarly oppressed, who took to the streets of Limerick – and were filmed and recorded by the gangsters the opponents of the Bill seek to protect. That Constitution did not protect three decent men in that city from the ultimate sanction of the gangs.

He continues…

Let us name them: Collins, Geoghegan and Fitzgerald.

Men, whose deaths, in my view, are sullied by lawyers who deliver obstruction of a Bill designed to convict gangsters more speedily. The Bill would allow the Special Criminal Court to hear “opinion” police evidence and deliver sentencing without recourse to a jury.

Oddly, the opponents seem not to reason how the Special Criminal Court was brought about by fear of the IRA.

Why is it, when the little Republic was rampaged by armed groups who murdered its servants, it was alright to have a non-jury court – but not alright when the citizens of Limerick are threatened?

Is it because lawyers and politicians, sheltering comfortably in well-paid careers, feared militant republicans – who might remake their lives totally had they succeeded in controlling the State – more than gangs of drug dealers. Odd is it not?

Odd, too, they have amnesia about the acquittals before the non-jury courts – because judges in their collective wisdom felt it unsafe to convict, even when presented with a weight of evidence that a jury might be disposed to accept.

Being lawyers, the round-robin writers of yesterday’s letter to this newspaper are “judicially” selective in their evidence. In spite of their high moral ground, this is a game to them and they know how to play it, as shown by their inflated language about Ireland “being shamed before the international community”. What? The “international community” does justice better than Ireland?

And he concludes…

Altogether self-regarding in my opinion, is their opposition to a Bill designed to protect the majority – at some cost, it must be conceded, to the civil liberties of a minority charged with serious criminal offences.

Lawyers’ arguments are essentially technical, exploiting pedantry and linguistics to oppress the other side. In other words, lawyers make arguments separate from morality or fair play, on behalf of their customers.

On the rare occasions they invoke “morality” or “fairness”, it’s with a client’s interest in mind and not with the meaning of such concepts as understood by ordinary people.

So then, with some weariness, I regard this lobby rather on the same level, as say, publicans pitching for changes in licensing laws. By all means let their views feed into the debate in the Dáil, the peoples’ forum, with all its faults of mediocrity and silliness. But spare us their assumptions of superior morality or infallible knowledge about law and democratic process.

So there you go. A straw man constructed from curious assumptions about lawyers is created and then demolished in a manner which goes no way to addressing the actual concerns raised by the lawyers. The proposition is that lawyers are a self-interested and self-regarding lot, distanced from the troubles of mere mortals, etc. That their concerns are equally self-regarding.

And saying that I don’t want to in any respect diminish the embedded nature of the problem faced by communities riven by such violence.

Nor is it that I’m somehow beyond the scope of this violence. Myself and at least three or four others who regularly comment on here all live within a stones throw of a number of gun crime murders and the shooting of a Gardá. Campaigning for Tony Gregory, being involved in community groups and attending Garda community liaison meetings tends to blow away any overly idealistic views of these matters.

If ever I thought Tony Blair got it right it was in the ‘tough on crime, tough on the causes of crime’ formulation, if that had been carried through with any consistency. And that demands the centrality of community in all this in an active fashion. It demands protections for that community. Speaking of Tony Gregory, some were surprised some years back to hear his grudging support for ASBO like instruments where necessary.

But even if it weren’t the case that I believe in a multi-pronged approach, or that me and mine are growing older and growing up in an area that by any reckoning has its fair share of gun crime, it wouldn’t invalidate the proposition that this requires considerable caution and more than the Government has given it.

Bad laws don’t improve matters. Often they make them worse. What we need are protections for witnesses, not rhetoric about jurors (although that should be taken as read), the moving of trials to more secure locations, better intelligence gathering and surveillance by the Gardai and so forth. This legislation doesn’t address those issues in a coherent fashion and in some of its formulations is actively problematic in progressing the situation.

I think, for what it’s worth, that in this instance the lawyers (and I’m not their biggest fan) have done the right thing by pointing out what they consider to be intrinsic problems with this proposed legislation. The next step would be that of the state to reconsider that legislation in light of the criticisms. That’s genuinely being ‘more useful’.

Speaking of intriguing, check out the letter – under the heading ‘Trial by Jury’, from Eoin O’Malley of the School of Law and Government in DCU….