Crime control, the security state and constitutional justice in Ireland

Publication Date01 Oct 2016
DOI10.1177/1365712716656863
AuthorShane Kilcommins
SubjectArticles
Article
Crime control, the security
state and constitutional
justice in Ireland: Discounting
liberal legalism and
deontological principles
Shane Kilcommins
University of Limerick, Ireland
Abstract
It is clear that Ireland has witnessed evidence of a ‘tooling up’ of the state in the fight against
crime over the last two decades. Crime control analyses—often relying upon the use of stark
juxtaposition—are very useful in describing this trend. They can, however, also conceal the
complexities that exist underneath the illusory comfort of binary labels such as ‘crime control’,
‘security state’, ‘actuarial justice’ or ‘Rule by Law’ governance. In employing examples of recent
case-law relating to terrorism and sexual offending, this article will argue that crime control
analyses fail to properly account for particular legal liberal properties such as rights as trumps,
deontological reasoning, fidelity to precedent, the coordinated and hierarchical features of law,
and the last ‘authoritative voice’ possessed by the judiciary in dispute resolution. These
properties continue to possess institutional and epistemic authority in Ireland, and need to be
written in to any ‘history of the present’ of the Irish criminal justice system.
Keywords
constitutional liberalism, due process, rights of the accused, crime control
Introduction
‘Here, I think we are touching on ...one of the most harmful habits in contemporary thought ...: the analysis
of the present as being precisely, in history, a present of rupture ...The solemnity with which everyone who
engages in philosophical discourse reflects on his own time strikes me as a flaw ...I think we should have the
modesty to say to ourselves that ...the time we live in is not the unique or fundamental or irruptive point in
history ...We must also have the modesty to say, on the other hand, that the time we live in is very
interesting: it needs to be analysed and broken down, and that we could do well to ask ourselves ‘‘What is
the nature of our present?’’’ (Foucault, 1994: 126).
Corresponding author:
Shane Kilcommins, School of Law, University of Limerick, Castletroy, Co. Limerick, Ireland.
Email: shane.kilcommins@ul.ie
The International Journalof
Evidence & Proof
2016, Vol. 20(4) 326–342
ªThe Author(s) 2016
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DOI: 10.1177/1365712716656863
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Ireland’s criminal justice system is showing some signs of drift in the direction of an ‘assembly line’
model of justice in which the state-individual balance is increasingly tipped in favour of the former. This
is been achieved by dismantling some of the previous ‘ceremonious rituals’ which cluttered up the
process of justice and succeeded in blinding Damocles. This ‘tooling up’ of the Irish state is evident, for
example, in the law of search and seizure; in the expansion of the pre-trial detention powers of the Gardaı´
(Irish police); in restrictions on the right to silence and the right to privacy; in the expansion in the range
of hybrid offences which, at the option of the prosecutor, deny the right of an accused to a jury trial; in
curtailments in the right to bail; and in increased attempts being made to reduce the art of sentencing in
Ireland to a Procrustean formula which mechanically fits punishment to crime. The whole centre of
gravity of the criminal process, as Walsh has suggested, ‘is moving rapidly away from the open public
forum of the court and into the private closed demesne of the police station’ (Walsh, 2005). The same
author noted: ‘[i]ncreasingly guilt will be determined by executive processes in the closed secrecy of the
police station rather than by judicial processes in the public transparency of the courtroom. Judicial
territory is being ceded to the police to achieve a further streamlining and bureaucratisation of the
criminal process’ (Walsh, 2006). The employment of criminal law as the monopoly mechanism for
dealing with deviant behaviour is also beginning to fragment and blur. In particular, the diversification
and diffusion of the state into the civil sphere as a means of crime control—through, for example, the
taxation and confiscation of the proceeds of crime even in the absence of a criminal conviction—is
becoming more visible in Ireland (Campbell, 2008; Kilcommins and Vaughan, 2006).
The direction and thrust of all of these various traits appear consistent with Packer’s crime control
model of justice, which adopts an instrumental logic that favours the primacy of the public over the
individual, promotes the need for efficiency as regards criminal justice operations and outputs (Fitzger-
ald O’Reilly, 2013; Kennedy, 2013; O’Dwyer, 2012; Sweeney, 2015; Twomey, 2012), emphasises at
every turn the exercise of authoritarian state power, and has as its validating authority a hyperactive
legislature ‘more concerned to subject penal decision making to the discipline of party politics and short-
term political calculation’ (Garland, 2001: 13). Moreover, this erosion of institutional restraints and
balances appears to be carved out on the back of political expediency, as a means of ‘governing through
crime’ (Simon, 1997: 171–189).
The crime control analyses identified above are thus very useful in describing the thrust and direction
of these various trends, particularly given the tendency in such literature to review events through the
lens of stark juxtaposition: from sovereign to disciplinary power (Foucault, 1991); due process to crime
control (Packer, 1968); modernity to late modernity/postmodernity (Lea, 2002); penal welfarism to a
culture of control (Garland, 2001); a constitutional state to a security state (Hudson, 2003: 170);
individualised justice to actuarial justice (Feeley and Simon, 1994); an inclusive to an exclusive society
(Young, 1999); civilising to decivilising trends (Pratt, 1998); correctionalist criminology to criminolo-
gies of everyday life (Garland and Sparks, 2000); liberalism to communitarianism/neo-liberalism/neo-
conservatism (O’Malley, 1999); and Rule of Law to Rule by Law modes of governance (Dyzenhaus,
2006). Such juxtapositions are designed to facilitate analogies, contrasts and generalisations. This serves
the very useful purpose of highlighting ruptures, discontinuities and dissimilarities with orthodox prac-
tices and ways of thinking. It can pinpoint various contemporary threads in contemporary justice—
relations with the accused, victims, the state, policing, politicians, the media and society—and demon-
strate the ways in which they are being unravelled from familiar patterns. All of this forces us to look at
the bigger picture—at the ‘structural properties of the field’—in Ireland and consider the consequences
and implications of the changes occurring.
There is a danger, however, in pursuing an agenda of juxtaposition too far. In only seeking to gather
evidence of dramatic dissimilarities and discontinuities, crime control analyses often overlook strong
patterns of similarity, stability and continuity. Though it is tempting and indeed exciting to be swept up
in the grand narrative of such analyses, particularly their nihilistic overtures, they may not accurately
depict the complexities of the criminal process (Hamilton, 2014: 30; Matthews, 2005; Zedner, 2002:
341–366). This is particularly true in relation to the field of law which continues to play a vital role in the
Kilcommins 327

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