Pressure on the government on the organised crime bill continues

Yesterday saw a letter in the Irish Times signed by 133 lawyers critising the government’s Criminal Justice (Amendment) Bill. The letter raises concerns about the manner of the introduction of the Bill:

It has been introduced without any research to support its desirability and without canvassing expert opinion or inviting contribution from interested parties on the issues.
It appears now that it will be passed without proper debate in the Dáil because such debate has been guillotined by the Government.
It is quite simply astounding that we as a society would jettison ancient rights and rules of evidence in such a manner and seemingly without regard to the effect such impetuous legislating might ultimately have on the respect for the rule of law in this country.

And goes on to point to the problems in removing the right to jury trials in organised crime cases, the use of Garda opinion evidence, and the manned in which extentions to periods of detention can be obtained “in secret”.

The letter does not reject outright the need to take action, but ultimately calls on the government to “withdraw this Bill and instead provide for a short consultative period during which reasoned debate can be heard.”

The response from Minister of Justice Dermot Ahern was unbending:

“They are entitled to their opinion. I don’t agree with them when they say that this was introduced without any research without canvassing expert opinion.”

Rather than introducing any amendments to respond to the growing criticism from criminal law experts and human rights organisations the Minister introduced a further measure to allow former gardaí to give uncorroborated opinion evidence at trial.

And just to reassure people further of the terrible state of emergency the country faces Willie O’Dea, Minister for Defence, added to the hype about gang crime by stating that the use of the Special Criminal Court were justified because “gangland crime posed a greater threat to the State than terrorism ever did”.

The approach being taken by supporters of the Bill is that if you criticise the proposal, somehow you are only interested in the human rights of criminals and could care less about the victims. To oppose action that will undermine the rule of law and age-old mechanisms to safeguard people from the risk of miscarriages of justice, is not to be self interested. In fact, most of the critics of the Bill are not saying do nothing. Rather they are asking for time and a reasoned debate. As Carol Coulter rightly pointed out in the Irish Times yesterday:

It is not clear what is to be gained by such haste, other than the appearance of doing something about serious crime.
The courts will rise for two months at the end of this month, with only the District Court sitting, so there will be no trials for serious crime during that period anyway. Postponing the finalisation of the Bill until after the summer recess will have little practical impact on the fight against the criminals, but could allow time for a reasoned debate about a comprehensive response to the problem of serious crime and ruthless criminals, with an input from all those with relevant experience.

The haste seems more about being seen to take action. Yet the results of a legislative process that will have taken only 10 days since publication to pass into law will have a significant impact on the criminal justice system and may well see Ireland in breach of its international human rights law obligations.

Passionate words on being judged by a jury

A case close to my heart, both environmentally and geographically, has just been concluded in Leeds, UK. The Drax 29 were charged under the Malicious Damage Act of 1861 with obstruction of a train carrying fuel to the Drax power station in June 2008. In a highly organised protest the climate change campaigners boarded a coal train, offloaded its contents onto the railway track and caused serious disruption to rail services.

The activists never denied that they acted to stop the train, but attempted at thier trial this week to justify their actions based on “genuine and deeply felt motives”, in other words arguing that they had a lawful excuse for their actions. the judge had initially refused to allow them to raise their excuse of climate change but in the end agreed a deal with the defenants whereby some evidence and argument was allowed on the issue. However, the judge made it clear that the defence of necessity was ultimately not available to the protesters.

Today the defendants were found guilty and will be sentenced later, although the judge has indicated that they are unlikely to face imprisonment.

All of this is interesting and prompts consideration of issues such as the right to protest, the ambit of necessity defences and significantly the interrelationship between law and dempcracy. In the context of the debate currently going on in the Dáil regarding trial by jury the closing statement for the defence is a very compelling document. The statement relates specifically to the role of the jury in relation to cases of direct action where laws are broken on the basis of deeply held beliefs, and the right of a jury to decide a case based on the facts, regardless of the legal direction made by the judge. But the principles eloquently presented in the context of the Drax case should reinforce the significance of the jury not only to the criminal justice system, but also with regards justice and the overall effective health and wellbeing of a nations democracy.

Some highlights are reproduced below, but follow the link to read in full:

“You’ve heard it said already I think, that the judge decides about the law, but the jury decide about the facts. What does that mean? It means you the jury can decide as you see fit. You the jury have a constitutional right to follow your own judgement and not necessarily follow the judge’s directions to find us guilty. In other words, you get to make the final decision. In law this principle is called the jury’s power of nullification, and it’s been a right that has been regularly used over the years when juries have felt the law has been applied harshly, or inappropriately, or unjustly, or incorrectly.

The freedom that you have is what enables the law, where necessary, to move forward. It is what allows you to look beyond the confines of this court to the wider world, and to make a judgement based not just on law, but to make a judgement based on justice. Justice is the force that underpins and breathes life into the law, and it is your role as the jury to see that justice as you see it is done.

We are happy to be judged by you, the jury.”

Trial by Jury to be removed for organised crime offences

The government has now published its latest piece of criminal justice legislation, the Criminal Justice (Amendment) Bill 2009, which is being touted as being “anti-gang” and designed according to the Minister for Justice Dermot Ahern to protect Irish citizens and “ensure the rule of law”. The Bill is due to be debated in the Dáil today.
As Carol Coulter pointed out in an analysis piece in the Irish Times the next day, this is “not the first time gangs have been targeted in law”. Yet it is clear that the government is championing this legislation as taking “those involved in criminal gangs … head on”. Are we to therefore conclude that the measures passed in the Criminal Justice Act 2006, also in response to gang activity, have failed to provide the authorities with enough powers to deal with organised crime? Have the Garda been calling for more powers?

The answer is no. In fact, in the aftermath of the murder of Shane Geoghegan in Limerick in November 2008, Garda Commissioner Murphy in an Irish Times interview stated

“[t]here has been a whole plethora of legislation enacted in the last three years and I am confident – and in my briefing with the Taoiseach this morning I discussed that part of it – and I am happy that there is sufficient legislation in place.”
“The issue for us is to get the evidence. We have the tools, we have the specialist units, but these crimes are not easy to solve and there is a small core of ruthless killers living in this city that have to be brought to justice.”

What is more surprising, given his recent promotion of the 2009 Bill is that Minister Ahern agreed, noting that “t[]he gardai have all the legislation. What they really need is hard evidence.”

The legitimacy of this earlier position is supported by the fact that someone has now been charged with the murder of Shane Geoghegan, and a trial date set for April 2010.
However, despite the attempts at a measured response following the death of Shane Geoghegan, something seems to have changed in recent months and the government has decided to push forward with legislation in the area providing additional powers to combat organised crime. The key measures include:
  • a new offence of directing or controlling a criminal organisation with a maximum sentence of life imprisonment (section 5);
  • a broad definition of “criminal organisation” is (section 3);
  • the categorisation of organised crime offences as “scheduled offences” which means that they will be brought with in the scope of the Offences Against the State Act and can therefore be tried in the Special Criminal Court unless the DPP directs otherwise (section 8);
  • reduction in evidence thresholds on garda evidence on the existence and operations of criminal gangs will be admissible in evidence, including hearsay evidence (section 7);
  • an increase in punishment for witness and juror intimidation from 10 to 15 years’ (section 16).

The government claims that the 2009 Bill is “groundbreaking legislation”.

Human rights organisations have, however, been quick to criticise the proposed legislation, and have in fact offered clear and very thorough critiques of the dangers of the 2009 Bill. The Irish Human Rights Commission have described the powers as “disproportionate and unnecessary” questioning why it was necessary to rush the new law through the Oireachtas thus preventing adequate debate and analysis into such significant changes in the law.

A central criticism of the proposed legislation has been the decision to create new “scheduled offences” in order to bring most organised crime offences before the non-jury Special Criminal Court. Ireland has already been criticised by the UN Human Rights Committee for its use of this system. The proposed changes to the law further undermine the right to trial by jury, so central to the idea of a fair trial in the criminal justice system. However, the evidence of the existence of jury-tampering is largely anecdotal. In fact the main problem arises in relation to witness intimidation, and this will not be solved by a Judge only trial.

It is interesting to note that much reference has been made to the law in England and Wales on dealing with jury intimidation. This is perhaps because the Court of Appeal in London last month ruled that the case of John Twomey and three other defendants should be the first case in that jurisdiction to be heard without a jury because of a “very significant” danger of jury tampering. Section 44 of the Criminal Justice Act 2003 had allowed for a case to heard by a judge sitting without a jury in serious or complex fraud cases and in those cases where there is a danger of jury tampering. However this is subject to the legal requirement that the court must consider whether alternative arrangements could be made to ensure justice, including moving a trial, and providing anonymity for jury members. In the Twomey case there does appear to be a significant issue of jury tampering with three previous trials having already failed as a result of such interference. In those cases jurors withdrew from the case citing stress, sickness and intimidation. The High Court had previously ruled that arrangements needed for a fourth jury trial included up to 60 police officers and a cost of between £1.5m and £6m. The Court of Appeal concluded that this might still not guarantee the protection of jurors. Lord Judge in the Court of Appeal concluded that such arrangements were an “unreasonable” drain on the public purse and police time.

Yet there has been some significant criticism of the decision in the UK. The judge himself noted “trial by jury is a hallowed principle of the administration of criminal justice”. Common law jurisdictions have traditionally regarded the jury as essential to ensuring a fair trial, and decisions to place defendants before a judge only have tended regarded as undermining that right. In an article in The Guardian Afua Hirsch raised concerns about the move:

“Human rights lawyers working in countries undergoing democratic transitions say they aspire to the England and Wales model of jury tria
l, echoing the now notorious sentiments of former master of the rolls Lord Devlin, who described it as “the lamp that shows freedom lives”. Somebody had better tell them that in England it just got a little darker.”

Where does this leave the issue of trial by jury in Ireland? Is organised crime so big a threat that we need to remove the right to a jury trial from anyone involved in this type of offence? The answer is we do not know. There is little or no evidence as to whether there is any difference in the outcome of such cases if they are heard before a jury or a single judge. What is clear though is that it will make no difference to witnesses who fear intimidation. Judge or jury, they will still fear the power of gang members within their own communities. So perhaps the issue is not one of criminal justice, or garda powers, or special courts, but in fact one of how communities are served, protected and resourced in order to reduce the power of a criminal minority. But that is a welfare issue rather than a criminal justice issue, and in a recession it is easier to pass laws than fund services.

And as for the principle of trial by jury? If (and it is a big if) we conclude that there are some cases where a jury trial is simply not possible because of a real risk of intimidation then the way to make those decisions needs to uphold the due process rights of the defendants. Perhaps that is why critics of the Criminal Justice (Amendment) Bill have been pointing to the English approach. The law there starts from a presumption in favour of a trial by jury and allows for deviation from this fundamental principle only where the Crown Court concludes that there is “evidence of a real and present danger that jury tampering would take place”. The proposed changes in section 8 of the 2009 Bill state that the ordinary courts are “inadequate to secure the effective administration of justice” and therefore take the reverse approach starting from a position of trial by judge only. The fact that the provision is time limited to 12 months does little to reassure given the history of normalisation of emergency powers in criminal justice systems globally.