Criminal Justice developments January 2010

The following is a found up of criminal justice news from January 2010. The material was first published in the January Edition of Firstlaw‘s Criminal Law Online Service.
The month of January was relatively quiet from a criminal justice perspective. Two stories in particular dominated the news, namely the number of homicides that have bloodied the month and the Eamonn Lillis trial. However additional stories of interest were the release of CSO crime statistics for 2009 and the publication by the Minister for Justice of the Criminal Justice (Forensic Evidence and DNA Database) Bill 2010.
The Lillis trial was interesting for a number of reasons, not least of which was the showcasing of the facilities in the new Criminal Courts of Justice complex. More members of the public were able to hear and see the court proceedings through the use of videolink to an overflow room. Videolink was also used to allow Mr. Lillis’s 17-year old daughter to testify, and Jean Treacy was protected from the media scrum by being allowed to use an underground entrance to and exit from the courts. Her use of the underground entrance attracted media claims that their “right” to be able to photograph witnesses in order to safeguard the interests of justice had been compromised. Yet the case of Re. R. Ltd is clear that “the [constitutional requirement to] administ[er] justice in public [simply] require[s] that the doors of the court must be open so that members of the general public may come and see for themselves that justice is done.” As such, images of witnesses or the accused being lead to the courtroom add nothing to the administration of justice and seem to be valuable exclusively as a means of selling papers. The media frenzy that ensued in the race to find an image of Ms. Treacy confirms this. Moreover, when he sentenced Mr. Lillis, Mr. Justice White criticised the media “scrum” that the Lillis and Cawley families had to endure on their entrance to and exit from the courts complex as “an affront to human dignity.” He also noted that one of the reasons Mr. Lillis received a seven-year sentence rather than a ten-year one was because of the intense media scrutiny the case received. It could therefore be argued that the media have in fact promoted their self-interest at the expense of the interests of justice.
The granting of the use of the underground entrance to one prosecution witness only raises other issues. It was suggested by the Minister of Justice that Ms. Treacy had been allowed to avail of the underground entrance in order to ensure her co-operation as a witness. Why this same privilege was not afforded to other witnesses or to the accused should be questioned. In light of the availability of the underground entrance, and remembering the Court of Criminal Appeal’s criticism of the practice of photographing the accused in the 2002 case of DPP v. Davis, it is worth considering whether this protection should become standard practice in all criminal trials. Michael O’Higgins SC, while critical of the use of the facility, noted that a precedent had now been set and that in future “it would have to be available to both sides in a case.” Alternatively, as some moderate voices in the media have suggested, it might be worth establishing a code of practice on the use of this facility so as to avoid preferential treatment being given to some witnesses over others.
The trial is also notable for the manner in which the jury returned their verdict. When they found Mr. Lillis guilty of manslaughter they explained that they felt that the State had not proved intent to kill or cause serious injury. What is remarkable is that this should be remarkable. Justice White thanked the jury for alerting him to their reasoning and noted that it would assist him when he sentenced Mr. Lillis. Arguably this information should always be provided to the judge to ensure that the jury’s verdict is given effect. Moreover it would be desirable if, as in the Lillis case, when there are three potential reasons for rendering a manslaughter verdict (gross negligence homicide, excessive self-defence or provocation) that the jury should identify which one they based their verdict on. There is a significant distinction in terms of culpability between these various categories of manslaughter and this distinction should be reflected in sentencing. The judge is unable to do this if the jury do not provide this information. In this case, it is clear that the jury rejected provocation as the basis for their manslaughter verdict, but it is not clear which of the other two categories was determinative. It is worth noting as an aside that there is a case currently before the European Court of Human Rights, Taxquet v. Belgium, on the issue of jury trials and whether their failure to provide reasons for their decisions impedes the accused’s right to a fair trial. The outcome of this case will be awaited with interest.
The relatively high number of reported homicides in the month of January has also been the subject of considerable media attention. In one weekend in January there were three gangland shootings in Dublin, followed by a fourth shooting the following weekend. A week later there was a fatal shooting in Cork with gangland/paramilitary links. There were also a number of non-gangland related killings. A former Defence Forces member was stabbed to death in Dublin after he complained about noise coming from a party and another man was stabbed in Tipperary following an altercation outside his home. A woman was found stabbed to death near the residence of the man believed to be implicated in her death with whom she was involved in a relationship. The death of a 10-day old infant in Meath was also being treated by the Gardaí as a murder. Nine killings in one month is not an auspicious start to the new-year. Predictably the gangland killings in particular led to warnings about a “surge in gangland crime” and criticism by Fine Gael of the government’s failure to provide sufficient resources to give effect to the gangland legislation introduced last year. However it is worth noting that while five of the nine killings were gangland related, increased resources for gangland crime or indeed ordinary crime would have had no impact on the remaining four deaths. Similarly, while there was an increase in the number of murders last year, generally speaking the homicide rate is falling and the murder rate is relatively steady. In 2009 a total of 80 homicide cases were recorded, 53 of which were murders. This represents a significant drop from 138 homicides/62 murders in 2006 or 132 homicides/77 murders in 2007. In 2008 there were 89 homicides/50 murders. Accordingly we are not in the midst of a national ep
idemic in relation to either homicide generally or murder specifically.
The CSO statistics for 2009 do show a significant rise in the number of burglaries (up 9%) and robberies (up 33.5%). This rise is predictable in a recession period given the general view that economic crimes tend to increase when legitimate avenues of obtaining revenue decrease. The 2009 statistics however also reveal an unexpected benefit of the recession, namely the decrease in drug (down 6%) and public order offences (down 8%). It is arguable that when there is less disposable income there is less money to spend on excessive consumption of alcohol (a key element in public order offences) or on drug use. In relation to crime generally it was found that overall the level of reported crime dropped by 5% last year but that the levels for a number of serious offences, including murder (up 6%) and rape (up 10%), increased.
Finally, the Minister of Justice published the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 in January. The proposed legislation would introduce a national DNA database to hold samples of those arrested for certain criminal offences. The Bill was lauded by the Ministry as “major step forward in the fight against serious crime” giving the Gardaí “access to intelligence on a scale and of a quality that has never before been available in this country”. The proposed powers include the ability to require a sample from anyone arrested for a violent crime. The DNA profile generated from that sample would then be placed on the database as would any sample collected from a crime scene. At the same time the legislation would, upon coming into force, require samples from anyone serving a sentence for a serious offence. The Minister stated that his desire was that “a significant proportion of the criminal community” would have their samples stored on the database and that this would “of itself, act as a deterrent for some.”
The Minister was quick to point out that the drafting of the legislation took account of the recent European Court of Human Rights decision of S and Marper v. UK in which the Court held that the indefinite retention of DNA samples, profiles and fingerprints taken from persons who are not charged or who are acquitted infringed the ECHR’s privacy provisions. As a result the Bill provides that the only samples to be stored indefinitely would be those taken from people convicted of a serious offence. Other samples would be held for three years and profiles for ten years, subject to the right of the person to apply to have their materials removed from the database. However the draft legislation has already drawn criticism from a number of sources including the data protection commissioner who stated that profiles of those not convicted of any offence should in fact be destroyed immediately.

Updates on information retention in the UK

Two important decisions have been announced in the UK today regarding the retention of information in the criminal justice area.

Firstly the Court of Appeal has ruled against an information tribunal ruling that data on old minor convictions must be deleted from police computers. The Court found that retaining information for police operational needs was far easier to justify than disclosing the information to others. To this end Lord Justice Waller stated

If the police say rationally and reasonably that convictions, however old or minor, have a value in the work that they do, that should, in effect, be the end of the matter

The case was brought because under the Data Protection Act which requires that information be relevant, up to date and not excessive. Five people had lodged complaints after their records showed up in checks when they applied for jobs. The type of conviction at the heart of the case were minor, and for the most part committed by the people when they were juveniles.

Under the present police policy, criminal records can remain on the national computer for up to 100 years.

The Association of Chief Police Officers welcomed the decision, clearly relieved that the Court of Appeal had decided in favour of retention of even minor data:

This data assists police officers in their work in preventing crime and protecting the public, and the loss of such valuable information would have been detrimental to that.

The issue is now to be subject to a review of the criminal conviction retention policy, to be carried out by an independent adviser following a request by the home secretary.

The second decision is that made by the United Kingdom’s Home Office to abandon its proposals to retain the DNA profiles of innocent people on the national database. In 2007 it had announced its intention to keep the DNA profiles of those arrested ‑ but never convicted of a crime ‑ for between 6 – 12 years, depending on the seriousness of the offence. However, the proposal is not to be included in the policing and crime bill currently going through the British Parliament.

Doubt had already been raised about its viability following the decision of the European Court of Human Rights in the case of S. AND MARPER v. THE UNITED KINGDOM, 4/12/2008, (Applications nos. 30562/04 and 30566/04) in which it held that the schemes for the retention of such samples in the UK is contrary to the right to respect for private life under Article 8 of the European Convention.

As reported today in the Guardian, a Home Office spokesman said:

We have now completed a public consultation on proposals to ensure the right people are on the database as well as considering when people should come off. Those proposals were grounded in the research and allowed us to respond to the judgment of the European court of human rights both swiftly and effectively.
The government will take the most expedient route to address the issue as soon as possible in order to comply with the European court’s judgment.

The decision comes after many felt that the UK government would have faced defeat in the House of Lords if it had kept to its DNA database plan. whilst the home Office spokesperson stated that they hoped to bring forward “further provisions” on DNA retention in the next policing and crime bill it will be interesting to see if the issue is considered significant enough to warrant another outing. Particularly as concern over data storage/privacy in the UK continues to mount.

CCTV, Surveillance and privacy – reports from Ireland and the UK

The Centre for Criminal Justice and Human Rights was pleased to welcome His Honour Judge Patrick J. Moran to the launch last week of CCTV as a Crime Prevention Strategy: A Review of the Literature by Dorothy Appelbe. The event took place on the 28th January 2009.

The report is the culmination of research funded by Allianz Ireland, Cork Chamber of Commerce and the Faculty of Law, University College, Cork.

CCTV is one of the most renowned weapons in the fight against crime. In Britain, which is said to be the most surveilled society, public area CCTV began its career as a crime prevention tactic in the 1970s. Since then, Britain has seen a massive proliferation of CCTV. The use of CCTV in the investigation such high profile cases as the abduction and killing of Jamie Bulger, the Admiral Duncan nail-bombing and the London bombings has undoubtedly fuelled the rapid spread of public area CCTV coverage.

By comparison, public area CCTV only really arrived in Ireland in the 1990s. While An Garda Síochána had been the driving force behind the roll-out of CCTV here, the institution of the Community-Based CCTV Scheme in June, 2005 has injected increased fervour into the expansion of CCTV surveillance in Ireland. The availability of various levels of funding to assist in the installation of CCTV has meant communities such as Blackpool in Cork, Clonmel and Tallaght have been able to introduce CCTV systems with a view to reducing the risk of anti-social and criminal activity.

The rationale behind the use of CCTV as a crime prevention strategy is that its presence increases the chances of detection and apprehension thereby deterring would-be offenders. It has also proven useful in the context of police resource allocation and investigation. Furthermore, there is the school of thought that CCTV promotes feelings of security and safety and consequently urban renewal in areas where it is deployed.

There are however a number of concerns surrounding the use of CCTV. While it may be said to deter would-be offenders, there is an argument that the presence of CCTV merely displaces offending rather than actually preventing it. Another criticism is that CCTV is instrumental in the perpetuation of a ‘fortress mentality’, whereby communities baton down the hatches in the face of non-conformity and difference. These aside, the most recognised concerns surrounding CCTV are its impact on privacy and the potential for abuse.

The report documents all of these issues and more and it examines the emergence of CCTV as a crime prevention strategy and the effectiveness it displays in this role.

A week after the launch of the report here in Ireland it is interesting to note that in the UK the House of Lords constitution committee has now published a report entitled Surveillance: Citizens and the State. The report confirms the fact that Britain has established one of the most extensive and technologically advanced surveillance systems in the world on the basis of claims about crime, terrorism and administrative efficiency. The country has an estimated 4m cameras and a national DNA database, with more than 7% of the population already logged compared with 0.5% in the America.

The peers fear that the resultant “surveillance society” risks undermining fundamental rights such as the right to privacy. The report concludes that privacy is an “essential prerequisite to the exercise of individual freedom” and the growing use of surveillance and data collection needs to be regulated by executive and legislative restraint at all times.

In recent years, up to 78% of the crime prevention budget having been spent on CCTV in recent years yet the report notes that there is a lack of clear understanding as to how beneficial the reliance on CCTV is in actually preventing crime. It therefore recommends the UK government undertakes an independent appraisal of research into its use. It also recommends new laws to regulate the use of CCTV in the public and private sectors and the development of “codes of practice that are legally binding on all CCTV schemes, and a system of complaints and remedies”.

The report makes more than 40 recommendations to protect individual privacy, including the deletion of all profiles from the national DNA database except for those of convicted criminals.
Clearly, as we in Ireland contemplate the move towards an increased use in CCTV and other surveillance methods, we are well placed to make sure we learn from the experience of the UK and other countries where surveillance has already become a significant part of strategies for ensuring public safety or detecting crime. Maintaining the correct balance between these issues and the right to privacy is essential to ensuring a healthy democracy and a sense of trust between citizens and the state.