Writer and Author

Tag: Criminal Justice (Amendment) Act

The Right to Vote

Today Ireland is going to the polls.  By the weekend we’ll have a new President, a new West Dublin TD and, possibly, two changes to the constitution. Since I don’t live in West Dublin, I got to vote in three ballots.  Five years ago I wouldn’t have got to vote in any.

I became an Irish citizen in 2006. One of the reasons I decided to finally take the plunge was because I was sick of feeling like an observer in the country I am happy and proud to call my home.  We have a lot of referendums in Ireland.  It’s something of a national sport.  Since I hit voting age there have been 18 ballots, on both national and European matters that can have a direct bearing on life in this country.  Today’s vote makes it 20.  I remember the feeling of frustration not being able to have a say in votes on divorce, abortion (twice), the death penalty or the right to citizenship. Subjects that were hotly debated every time friends met for a pint or colleagues stopped for a cuppa.  To have thrashed through the issues, teased out the pros and cons, argued the toss, then watched as all my friends headed for the ballot boxes.

Not every referendum is on a “sexy” subject of course.  Not every one will get pulses raised and beer slopped on tables in excited pub conversations.  Some of them are overdue housekeeping, others are labyrinthine pieces of European legislation, but here in Ireland you can usually find someone willing to argue the toss.  Failing any other argument, there will usually be some vociferous contingent who fear that X or Y change will sneak abortion in by the back door.  Not all of them will have a direct bearing on the way you or I personally lead our lives but all of them are important.  It’s not much of a democracy if people are denied a voice but it’s even worse if those that have a voice refuse to use it.

Take today’s votes.  For most of the month long lead in to this vote the focus has been on the circus that was the campaign for our next president.  It’s only been in the last couple of weeks that attention has shifted to the two referendums we also have a say in.  On the face of it these are two of the not-so-sexy subjects, it’ll be interesting to see the voter turn out.  But these are important votes.  One of them is concerned with whether or not judges can have pay cuts.  In these straightened times it sounds like a no brainer.  The Yes Campaign would argue that anyway.  Under the current constitution a judge’s pay cannot be cut while he or she is in office.  The amendment will allow for cuts to be made in line with other public servants.  The problem I have with it personally is that the new wording is as vague as hell.  The third section of the amendment should be punished for crimes against language. But it’s late in the day for arguments – I’ll leave that to Dearbhail McDonald of the Irish Independent.

The problem with both the ballots today is that people are likely to vote with a jerk of the knee towards crooked bankers and ivory tower fat cats.  Fair targets perhaps but there’s a real risk of throwing the baby out with the bathwater here.  I’m pretty sure the government were just as eager to see wrongs righted when they drew up these amendments but slinging a load of legalese into the mix, giving it a quick stir by way of debate and tossing it towards the populous for deliberation is all a bit slapdash.  The problem with slapdash is that it can have unforeseen consequences.  I’ve seen the effects of the unforeseen consequence in the day job.  I doubt very much whether those who drew up the Criminal Justice (Amendment) Act in 2009 to deal with the threat of criminal gangs foresee that the Act would get one of it’s first airings in court at the collapse of a trial of four men accused of killing a young mother and burning her body.  The trial of those accused of killing Rebecca French collapsed because of confusion over wording. This might be an extreme consequence but it’s a stark reminder why clear wording matters. Legal language might look vague but that’s frequently because it’s over precise.  Too much space for interpretation means years getting clarification through case law and is too open to abuse.

This isn’t the first time I’ve felt strongly about the result of a referendum but it’s the first time I’ve been able to act on that conviction. I incorrectly said on Twitter earlier that these were my first referendums. I’ve voted twice before, both for the same thing (Irish governments have had a tendency to keep asking questions until they got the answer they were looking for) but the Lisbon Treaty, important as Europe is, felt like a far more academic exercise.  Today is about having a say in Ireland, not Europe.  This is about having a say in the constitution that grew out of de Valera’s 1937 Bunreacht na hEireann, the document that crystallised the idea of a new sovereign state into a set of rules and guidelines. 

The Divorce Referendum in 1995 was the last time the vote went over 60%.  That means that more than 40% of the voting public couldn’t be bothered to have a say in their country.  That makes me angry. It’s always a yes/no answer, do you or don’t you?  This is why there should be debate, why there should be full and detailed explanations on ALL the arguments.  It’s no longer up to the Referendum Commission to provide the arguments but it should be a civic responsibility to find out as well.  It doesn’t matter how disenchanted you feel with the way things are or who’s running the show, things will never change unless people use their voice.  I waited long enough to get mine. I will always use it.

New Leaves for Spring

You would have to have been living in a hole, and a hole with no internet access or phone signal, to have missed the fact that Ireland has been in a bit of trouble lately.  The economy’s screwed, the government banjaxed and there’s talk of revolution (just talk mind you.)  Well finally there’s been a change and on Friday the Irish people took to the polling booths and voted in a new Government.

I was one of the few journalists in the country who wasn’t deployed to a count centre to watch the implosion of Fianna Fail play out in real time.  My job’s a little on the specialised side so I watched the election unfold along with the rest on the country, on TV, radio and Twitter.  They’re still counting the final votes today and in a week or so we’ll be watching different talking heads explaining why everything’s shagged on the nightly news.

It would be nice to believe that something will change, that this will be a much needed new beginning for a country on it’s knees, but I don’t believe in Santa Claus either.  For the next few weeks ambitious noises will be made and great plans will be discussed but it remains to be seen what actual, real change takes place.

For very pertinent reasons, everyone’s focused on the economy at the moment but I’m not a political hack or a business journalist.  I watch the cases that come through the courts, usually the criminal ones.  The Dáil circus doesn’t often encroach on my daily work.  That’ll continue to be the case with the new lot for the most part.

But there are exceptions.  Every now and then I find myself writing about things that have happened over there.  In recently years that’s usually been down to knee jerk pieces of legislation that need their rough corners smoothed by passage through the courts.  Most recently there was the case of Rebecca French, a young mother of two, whose badly beaten body was found in the boot of her burning car.  Four men were convicted of disposing of and trying to destroy her body but no one will ever be tried and convicted of her murder.  Two men, Ricardas Dilys and Ruslanas Mineikas stood trial, but the charges against them were withdrawn.  The trial judge ruled that they had been held unlawfully when gardai and a doctor became confused about the meaning of a clause in the 2009 Criminal Justice (Amendment) Bill, brought in to tackle gang land violence to much criticism. 

There were quite a few bits of legislation with rough edges during Fianna Fail’s tenure, but quite a few more things were simply not done.  The new government is going to have a lot of nuts and bolts governing to attend to, stuff that languished in the perennial to-do pile under the previous administration.  There’s the situation that prospective adoptive parents find themselves in for a start.  It took the last government years to get round to ratifying the Hague Convention, which rather sensibly ruled that intercountry adoptions could only take place where a bilateral agreement exists between Ireland and the country were the adoption is to take place.  The problem is that they didn’t actually put in place any new bilateral agreements with the countries people were adopting from so people going through the arduous process are now in a legal limbo waiting for something to be done.  The only country currently open for adoption is Bulgaria and domestic adoption isn’t an option, for reasons I’ll go into another time.

It would be nice to think that the new government will actually do some governing, rather than reacting to every hysterical front page with a piece of shoddy knee jerk legislation and putting everything else on the long finger but I’ll believe it when I see it.  Until then I’ll expect to see the fallout passing through the courts, which aren’t so very far from Leinster House after all.

A Busy Year…

It’s the last day of the year and the end of the decade to boot.  Time to take stock and look back over the last twelve months with mixed feelings…whatever else 2009 has been it’s seldom been boring.  There have been opportunities and set backs but on the whole I think we’re going out with a bang.  It may have been used as a curse in the past but I’d rather live in Interesting Times than dull ones!

In terms of the courts it’s been a very interesting year.  In terms of both trials, and legislation that will affect both how I do my job and what happens in the trials I cover, there’s been a lot fitted into the past 12 months.  I’ll try at touch the main points but feel free to comment if I’ve missed anything.  I’ve linked back to my posts on the subject where they exist.  With the longer trials the name of both the victim and the accused should be prominent in the tag cloud to the right.

The year started off quietly enough.  In January Brian McBarron pleaded guilty to the murder of his girlfriend, nurse Sara Neligan, daughter of the prominent former consultant surgeon, Mr Maurice Neligan.  Sara had planned to leave him so he stabbed her.  He told gardai “she belonged to me.”

The same month serial child rapist Philip Sullivan had his life sentence overturned by the Court of Criminal Appeal.

In February, a familiar face, Kathleen Mulhall, mother of the infamous Scissor Sisters, pleaded guilty to concealing evidence about her daughters gruesome murder of their mother’s Kenyan boyfriend, Farah Swelah Noor.  She was sentenced in May to five years in prison.

March began with the passing into law of the Legal Services Ombudsman Act 2009 setting up the office of Legal Services Ombudsman to oversee complaints by and about members of the legal profession.  The office will also be responsible for making the public aware of what complaint procedures are available against solicitors and barristers.

In the Central Criminal Court a run of high profile murder trials began in March with that of Gerald Barry, the brutal killer and rapist who would be sentenced to life for the murder of Swiss student Manuela Riedo.

The Barry trial was swiftly followed by that of wife killer David Bourke.  Bourke had murdered his wife, Jean Gilbert, when she left him for an old flame.

In April we entered the strange world of Ronnie Dunbar, the man on trial for the murder of Sligo teenager Melissa Mahon.  Melissa herself was a waif like figure throughout the trial as we heard about her infatuation with Dunbar, also known as McManus.  We heard how her short unhappy life spiralled out of control in a few months in 2006.  Dunbar was eventually found guilty of her manslaughter and later sentenced to a life term.

After that run of trials things got a lot quieter in the courts.  During the summer break I was working on my first novel and a world away from murder.  During July though a rash of legal legislation was written into law that will definitely have an impact on the day job.

First up was the Criminal Justice (Surveillance) Act which controversially allows for covert surveillance to be used in prosecutions.  This kind of evidence will undoubtedly become a major part of any gangland trials that come to court from now on.

A couple of weeks later the Criminal Justice (Miscellaneous Provisions) Act introduced new laws governing the owning and use of guns.  Aimed at tackling violent crimes it also introduced new laws on knives and gave gardai greater search powers.

Hot on it’s heels came two highly discussed Acts.  The Criminal Justice (Amendment) Act allowed for gangland trials to take place without a jury in the Special Criminal Court (previously used only for paramilitary trials).  The three Criminal Justice Acts will all have an effect on how gangland trials are conducted…it’ll be interesting.

Passing into law the same day as the Criminal Justice (Amendment) Act was the long awaited Defamation Act. I’m not going to go into a full analysis of the new Act, which replaces the 1961 Act but there are a few points of difference.  Slander and libel are no more, they’ve been replaced by the cover all term of defamation – which’ll make life easier for anyone studying law as part of a journalism course in the future.  The act also allows a judge to direct a jury on the amount of damages they can award and allows the defendant to make submissions to mitigate damages.

But where the Defamation Act really hit the headlines was the controversial clause that makes blasphemy a criminal offence for the first time in Ireland.  We’ll just have to wait and see if that clause has any practical implications but many people felt that simply writing in what is essentially a religious law in the 21st Century was a dangerous step backwards.

The biggest development of year, court reporting wise was probably the completion of the place where I will be working from now on.  The Criminal Courts of Justice are now finished and they’ve been given a test run and we’ll all be moving in once the new term starts in a little more than a week.

New Criminal Courts of Justice photo by Michael Stamp all rights reserved.

To go with the new courts a new piece of legislation, the Courts and Court Officers Act was brought in in November, to make changes to bail for those on trial and also to make provisions for those in custody in the same circumstances.  A final bit of t-crossing and i-dotting before the big move.

So that’s a round up of the trials and legislation that shaped my year.  2010 is getting off to a lively start with the trial of Eamonn Lillis, accused of the murder of his wife, former Bond girl Celine Cawley.  It’ll be the first big trial in the new courts so it looks like there will be more interesting times ahead.

I’ll be back tomorrow looking forward instead of back.  Until then, a very happy new year to all my readers.  I hope 2010 brings you everything you’re looking for.


Of Gangs and Justice…

Today Dermot Ahern published the Criminal Justice (Amendment) Bill 2009.  It’s the latest in a series of changes to criminal justice laws here in Ireland that have been published in the last couple of weeks.

Last month the minister published the Criminal Procedure Bill 2009 with removes the Double Jeopardy rule, under which a person cannot be tried twice for an offence for which they have been acquitted.  Under the proposed legislation there will be three exceptions to the rule; where new evidence becomes available, where a trial was “tainted” by intimidation of witnesses and perjury and where a judge gave a mistaken ruling on a point of law which subsequently led to an acquittal.

It’ll be very interesting to see if any familiar faces appear again in court if this legislation is passed.  There have been a couple of high profile murder acquittals in the past couple of years which I’m sure the gardai and the DPP would love to revisit if they can.

Today’s publication deals with another highly contentious issue – that of organised crime.  With gang violence a major problem in modern Ireland, gangland murder trials have become a fairly common occurrence.  You can always tell when there’s one coming up on a Monday morning because Court 1 suddenly has a garda checkpoint outside it and everyone’s bags are checked and pockets emptied.

Defendants like Gary Campion, convicted in April of the murder of “Fat” Frankie Ryan.  Campion is connected with the Dundon McCarthy gang in Limerick and was convicted in November 2007 of the murder of bouncer Brian Fitzgerald. Both these trials took place in Cloverhill Courthouse, a court where increased security is easier to arrange than in the historic Four Courts complex.

Under the new bill, which the Minister hopes to get passed into law before the Dail rises for the summer, those accused of gang crime, where there was a major problem with witnesses or juries being intimidated, could be tried by judge alone in the Special Criminal Court.

At the moment, the Special Criminal Court is reserved for paramilitary or terrorist crimes.  The idea of extending it’s use to include those involved in criminal gangs is not a new one.  Previous justice minister Michael McDowell had mooted it and there have been one or two of these cases tried there already.

In 1996, Brian Meehan, the only person tried for the murder of journalist Veronica Guerin, was convicted to life in the Special Criminal Court.   But there has always been a lot of opposition to the idea on the basis of civil liberties.  Almost as soon as it was published the Irish Council for Civil Liberties accused the bill of “trampling on the rule of law”.

I’ve heard arguments on both sides for the use of the Special Criminal.  I must admit though that when you’ve sat through a trial where witness after witness will barely admit to their name on the stand or changes their story at the last minute it’s easy to see the sense in a trial where gardai will be permitted to give evidence of what was claimed in these cases.  After all, is there that big a difference between some of the trials that have gone through the Special for those members of an “illegal organisation” and the facts of some of the cases that now take place under the gangland banner.

I remember being taught about the Diplock courts when I studied in Northern Ireland.  We were told that all offences that involved firearms were treated as “scheduled offences” and could be tried in the Diplocks.

I’m sure that we’ll hear all the arguments for and against the changes in the law when the legislation is debated in the next few weeks.  It’ll be a very interesting one to keep an eye on.

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