Reconfiguring the Pre-Trial and Trial Processes in Ireland in the Fight against Organised Crime

Published date01 July 2008
Date01 July 2008
DOI10.1350/ijep.2008.12.3.298
RECONFIGURING PRE-TRIALS AND TRIALS AGAINST ORGANISED CRIME IN IRELAND
Reconfiguring the
pre-trial and trial
processes in Ireland in
the fight against
organised crime
By Liz Campbell*
Lecturer in Law, University of Aberdeen
Abstract This article describes and analyses the changes which have occurred to
pre-trial detention and interrogation and to the trial process in Ireland as a
result of the apparent threat posed by organised criminality. The templates for
these measures often derive from extraordinary tactics first used against
subversive paramilitary groups. However, while incursions have been made on
protective procedural rights and rules, important safeguards remain which
counterbalance such trends.
Keywords Due process rights; Rules of evidence; Organised crime; State of
emergency
ecent years in Ireland have heralded increased concern about
serious and organised crime1and a concomitant surge in legislative
action. The notable rise in ‘gangland’ killings2and gun-related
doi:1350/ijep.2008.12.3.298
208 (2008) 12 E&P 208–233 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
R
1Although ‘criminal organisation’ was defined for the first time in s. 70 of the Criminal Justice
Act 2006, terminology such as ‘organised crime’ was already in frequent use in legislative
debates, political discourse and police and policy reports without any analysis of its precise
meaning.
2While ‘gangland killing’ generally refers to a planned homicide effected with the use of a firearm,
the previous Minister for Justice, Equality and Law Reform (hereafter the Minister for Justice)
*Email: liz.campbell@abdn.ac.uk. I would like to thank Pete Duff and Shane Kilcommins for their
comments on previous drafts of this article.
crime,3coupled with low conviction rates4and high-profile incidents, like the
murders of Garda Jerry McCabe and journalist Veronica Guerin in 1996, have
precipitated considerable political rhetoric and demands for legislative action.
The widely held belief in political and popular discourse is that the procedural
rights which accrue to the individual suspect or accused must be reconsidered, as
the undue concern with due process rights is to the detriment of the effective
pursuit of crime control and the safety of the law-abiding public. The President of
the Association of Garda Sergeants and Inspectors has stated that:
the criminal justice system has swung off balance to such an extent
that the rules are now heavily weighted in favour of the criminal,
murderer, drug trafficker and habitual offender.5
The Garda Commissioner has argued, to similar effect, that the system is:
in need of examination, with the burden of proof on the prosecution
now set so high as to be, in most prosecutions, almost unachievable
and the search for truth being sacrificed in a web of technicalities.6
The rights of the individual in the Irish criminal process
The threat of organised crime in Ireland has resulted in the abrogation of various
rights of the accused throughout the criminal process. Although the Irish
Supreme Court has stressed that ‘in accordance with the values on which our
system of law rests, the acquittal of the guilty is not of the same order of injustice
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 209
RECONFIGURING PRE-TRIALS AND TRIALS AGAINST ORGANISED CRIME IN IRELAND
noted that the term does not correspond to police classifications (see Dáil (lower house of
Parliament) Debates, 13 April 2000, vol. 518, col. 388, per Minister for Justice, Mr McDowell).
Nevertheless, the Minister has used such an expression himself (see e.g. Dáil Debates, 14 December
2006, vol. 629, col. 1677; and Department of Justice Press Release, 19 December 2006). 18.9 per cent
of homicides in Ireland from 1972 to 1991 were committed with a firearm, and this figure
increased to 27.3 per cent between 1992 and 1996. E. Dooley, Homicide in Ireland 1972–1991
(Stationery Office: Dublin, 1995) 26; E. Dooley, Homicide in Ireland 1992–1996 (Stationery Office:
Dublin, 2001) 15.
3The number of murders involving firearms has increased, while incidents of firearm possession
and discharge of firearms have more than doubled since 2000. An Garda Síochána, Annual Report of
An Garda Síochána 2005 (Stationery Office: Dublin, 2006) 20 et seq.
4From 1992 to 1996, there was a 20 per cent conviction rate for homicides related to
gangland/organised crime, in comparison to 57.6 per cent for the study as a whole. See Dooley,
above n. 2 at 16–17, table 12.
5President of the Association of Garda Sergeants and Inspectors, ‘Submission to the Joint
Committee on Justice, Equality, Defence, and Women’s Rights’, 8 December 2003.
6‘Garda chief warns on court “imbalance”’, Irish Times, 23 March 2005.

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