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Our last, best hope for civil liberties September 13, 2007

Posted by franklittle in Crime, Ethics, Ireland, Irish Labour Party, Irish Politics, Judiciary, Sinn Féin.


Yes, it’s Sinn Féin. I am as astonished as you are, and I am being a little tongue in cheek, but it is worth noting just how little commentary there has been on Gilmore’s Prime Time interview last Tuesday night and the implications it has for the traditional position of Labour as a defender of civil liberties and human rights.

Gilmore was being interviewed about the murder of Donna Cleary in March 2006, and specifically the failure of anyone to be charged in relation to her death. Cleary was killed while attending a 40th birthday party when a man refused entry to the party earlier sprayed the house with gunfire. The identified shooter died in police custody a couple of days later but according to reports there is insufficient evidence to positively identify or charge the two men who were in the car with him.

Gilmore was interviewed by Mark Little, possibly following up on the speech he made at the first hustings for the Labour deputy leadership contest, his first major speech since his election, where he emphasised freedom as a core Labour value, defining it as freedom from criminal activity  and gangland crime. Nothing hugely controversial in his speech but perhaps slightly odd for the Labour leader to lead off with that topic, something one might have expected to be more likely to be a Fine Gael speech. But then, maybe that was the point.

During his interview Gilmore made two interesting points, both of which suggest a change in Labour criminal justice policy. The first was his statement that ‘membership of a violent gang should be a crime’, claiming that this is the case in the United States and Canada. This is something McDowell considered, but ruled out in 2003 arguing that such measures were unconstitutional. It was also something addressed by the Bar Council in its submission to the Joint Oireachtas Committee on Justice, Equality and Law Reform on the Criminal Justice System and Organised or Gangland crime. It is worth quoting in some detail:

“It is also worth observing that when charges of membership of an unlawful organisation are brought the organisation referred to is invariably an organisation in respect of which the Government of the day has made a Suppression Order. The organisations involved are paramilitary groups, oath bound, operating under a Constitution and Standing Orders. In contrast those involved in organised crime or gangland activity would usually be much more informal, much more unstructured and much more unregulated in nature. The obstacles to creating such an offence such as being a member of a criminal gang are very considerable and probably insurmountable.”

The DIrector of Public Prosecution, in his submission,  warned such measures “…would  amount to a weakening of the jury system…” and in Section 18 of his submission points to a number of technical difficulties with such a measure.

In fairness, common sense should be kicking in by now. How do you define an organised gang? Do you have to specify the gang in legislation? Could we end up with someone charged with the offence of being a member of the ‘McCoy’s tavern gang’? Comparisons with the US and with Canada are false in firstly overstating the gang problem we have in Ireland, but also in misunderstanding the gang culture. Gangs in the US identify themselves through colours and body art. Gangs in Ireland identify themselves chiefly through extended family connections. It is possible, even for someone whose knowledge of gangland in the US extends to watching cop shows, for a person to identify gang members in Los Angelus or New York, but not in Dublin.

As for the right to silence, well here we have a basic principle of the criminal justice system stretching back hundreds of years that is even now under assault when it comes to subversive or terrorist offences. If the suggestion by Gilmore is to restrict the right to silence so that an inference can be drawn by the refusal to answer questions, as is the case with suspected paramilitarism, again we are back to people being members of designated and clearly distinct organisations that have been specified in law.

As the Irish Council for Civil Liberties put it:

“The right to silence is crucial to the most fundamental principle of our legal system – the presumption that everyone is innocent until proven guilty. It is an essential protection for people who have already suffered the trauma of being arrested and find themselves in the unfamiliar and frightening surroundings of an interrogation room.

“Even the strongest personality can become alarmed and confused in such circumstances. Nervous and vulnerable people and those who are drug or alcohol addicted can easily break down and admit to things they never did. We should learn the lessons of the Birmingham Six, The Guildford Four and Judith Ward cases in Britain. And we have had our own examples of false confessions in the recent past in the Sallins and Kerry Babies cases.

“Restrictions on the right to silence combined with longer detention periods is a sure-fire recipe for a number of wrongful convictions that will eventually damage confidence in the justice system…”

So, what’s Gilmore up to? Well to an extent he is killing two birds with one stone. He is trying to reconnect with Labour’s working class vote, located in the estates that see the worst of this kind of violence, and at the same time move the party to the right. A far cry from his call for an alliance of the broad left in the previous leadership election.  He is indulging in the same dishonest macho posturing that characterised the McDowell era of criminal justice, which I have previously described as ‘never mind whether it works, look at the poll numbers.’

In other words, it doesn’t matter whether making membership of an illegal organisation is a good idea, unconstitutional or even technically possible. It sounds good. It makes Eamon Gilmore look tough, a bit hard. It doesn’t matter if the right to silence is a basic civil liberty there to protect citizens from the actions of the state. It sounds good. It makes Eamon Gilmore look like one of those Dirty Harry, hard boiled TV cops shouting ‘Damn your procedures Captain, I want justice’ as he takes on the racially different drug kingpin.

At one level, this is not out of character. Labour have supported a number of McDowell ‘Don’t get tough on crime, appear tough on crime’ measures such as the discredited and largely unused Anti Social Behaviour Orders and the retention of emergency legislation. But the party has always had an image, a connection with those who have argued for civil liberties, largely because when they chose to do so, they were alone in that. What does it say about the new Gilmore Labour party, that even this has changed?

And Sinn Féin’s role in all of this? Well at this point they’re the political party arguing most strongly for protections against Garda abuse, for the maintenance and extension of civil liberties. As I said before, “The Shinners, and Aengus Ó Snodaigh in particular, are excellent on civil rights issues in Leinster House and in opposing McDowell’s criminal justice legislation, but the party’s support for the IRA’s campaign make it hard for many to accept Sinn Féin as defenders of human rights.”

But with the IRA shuffling off the scene, are they now the party to look to for the defence of our hard won and greatly under threat civil liberties.


1. chekov - September 13, 2007

Personally I thought the shittest bit of the speech was the very core of it. He declared that nowadays the biggest impediment to freedom was crime. Now, of course, viewing things through the prism of freedom was never a traditional labour way of looking at the world – and he’s definitely borrowing more from the right than from the anarchists here too 😉 – but the thing that really stinks is that it’s just total bullshit.

Economics is the one and only meaningful restricting factor on freedom in our society – if you have money there is no damn way that crime is going to interfere in a major way with your ‘freedom’ to do whatever you like. If you don’t have money, you don’t have freedom to do all sorts of stuff, no matter how much crime there is around you. The idea that freedom exists independently from economics is something that Thatcher or Harney would be reluctant to state.

A totally amazing and wild swing to the crowded populist right – what’s the point of that anyway? It’s not going to work and even if it does it’s just doing the far-right’s work for it.


2. John Green - September 13, 2007

Perhaps he was thinking of Brecht:

“What is the crime of robbing a bank when compared to the crime of founding one?”

Hmm. Maybe not.


3. Pidge - September 13, 2007

I certainly agree that Labour (or, at least, Gilmore) have dropped the ball on this one, but I wonder about SF being the best protectors of civil liberties. (Incidentally, on Politics.ie, this argument would take the form of: “But they kneecapped people! Where were their civil liberties then?”)

You quite rightly say that some SF TDs have been “excellent on civil rights issues”, but I wonder about the motivation of such excellence. Take, for example, the recent SF call to disband the SDU/Branch. Is that out of a concern for civil liberties, or out of a sense that the Branch are the old enemies, who can be taken apart by SF’s newfound political respectability? Not being at all involved in SF, I can’t say. The same argument applies to SF’s opposition to nasty, draconian legislation such as the Offences Against the State Act. It’s difficult to regard SF’s opposition to these things as selfless concern, when SF were largely the targets of this legislation.

Without meaning to prattle on too much, there’s a comparison which springs to mind. Two doors down from the shop I work in (Spar), there’s talk of a similar shop opening up (Centra). The owner of the Spar is assembling a group of people to object to the rezoning of the building. Now, it could be argued that the Spar owner is a great conservationist, but in reality, she’s mostly protecting her own interests. I wonder (again, I’m guessing) if the same applies to SF.


4. Pidge - September 13, 2007

Do posts have to be approved now? (If the answers yes, don’t feel the need to approve this. 🙂 )


5. WorldbyStorm - September 13, 2007

Nah, posts don’t need to be approved. Or do you mean comments. Although sometimes the spam filter is a bit greedy. Anyhow, like Chekov and JG, and indeed FL, I was astounded by the comments. It’s just populist nonsense of the worst kind.


6. Pidge - September 13, 2007

That’s annoying. A rather long comment didn’t get through, so.


7. Mick Hall - September 13, 2007

“He is trying to reconnect with Labour’s working class vote, located in the estates that see the worst of this kind of violence, and at the same time move the party to the right”.


I’m probably missing your point, but your not suggesting that it is the working classes who support doing away with the right to silence are you, for if so I think you way off beam. Not least because working class people have more experience of the criminal justice system at the sharp end and in my experience value the right to silence, whereas the middle class are forever wining about criminals getting off etc.

Christ mate you will be telling us next that we workers are more racist than the middle classes, a class I might remind you that institutionalized racism in organization like the police and armed force in both the south and UK.

Personally I do not believe there are votes in abolishing the right to silence. [name any large section of public opinion that demands its abolition] This is just another example of politicians bending to the plod lobby and aping the idiots across the Irish sea at Westminister with their infantile ‘war on terror’.


8. frank little - September 13, 2007

Mick, maybe I’m not explaining it well.

I don’t think workers or working class people are intrinsically predisposed to eroding civil liberties. My point is that they are the communities that suffer the most from criminal and anti-social behaviour. They want ‘something’ done, even if there is a lack of clarity about what it should be.

Some time ago when the ASBOs issue arose most people in working class communities instinctively supported it until it was explained to them exactly what it did, locking people up without a trial. But the notion of ‘something’ being done to attack anti-social behaviour does have an appeal with people most likely to suffer from it and those people are most likely to be living in working class estates.

I doubt working class people support the death penalty either, but get a Sinn Féin activist in Dublin or Kerry alone and honest and they’ll acknowledge that the tough stance on drugs taken by republicans earned them votes. And ‘tough’ does not mean strongly worded press releases.

I think Gilmore has come to the conclusion that the important thing is to be seen to be taking on these criminal elements. He is bright enough to know his proposals are daft and the politics appalling, but he thinks taking this tack will allow Labour to portray itself as tough on crime and reap the benefits of votes.

There is no-one calling for the abolition for the right to silence among the general public. There is a demand for the state to do something. Gilmore’s picked this as the pretend solution.


9. Mr T - September 13, 2007

The Labour party truly is heading into new depths, not seen perhaps since the days of Mick O’Leary. A leader who in 2002 fought for the ‘principle’ of left alliance, now running away from any such idea at speed and only elected due to a back door deal with his partner in crime since student days which wrong footed the rest of the party. Now irony of irony a man whose political career was launched in a movement that had a somewhat more developed sense of the economic factors behind crime, and used this sense to their benefit, now making a half arsed freedom equals a no crime, and not a peep about Bertie. I think the term that can be used for such a person is CAREERIST.


10. WorldbyStorm - September 14, 2007

I don’t think it’s quite that bad Mr. T (he has yet to declare for FG), but any more of this nonsense and then you won’t be far wrong.

Pidge, hope that the comment came through…


11. conor mccabe - September 14, 2007

No chance, then, of the Irish labour party becoming the political vangard of a new consensus in Ireland, a la Gramsci? you know, merging with irish studies, TASC, the religious in Ireland?


12. ejh - September 14, 2007

It makes Eamon Gilmore look like one of those Dirty Harry, hard boiled TV cops

The least convincing part in Dirty Harry, which in a number of ways is a great film (if also an unpleasant one) is where Clint starts frothing because either the DA or the Mayor (I can’t recall) tells him that the suspect he’s assaulted has “rights”. It’s not at all convincing, because of course whether he liked it or not he’d be completely aware that the suspect had rights. Eastwood, who’s a rightwinger, wouldn’t like it either, but, I reckon, is too good an actor not to realise that, which makes it hard for him to give a convincing performance in the scene. Hence the pop-eyed effect he actually produces.


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