Extended Garda powers will not prevent white-collar crime

Mon, Sep 3, 2012, 01:00

IT WAS ONLY a matter of time before the inordinate delay in bringing criminal charges in respect of the financial mismanagement in this country would spawn calls for expanded Garda powers of detention.

It is a familiar refrain in which the political and law-enforcement authorities seek cover under what can appear a superficially attractive option. The reality is that it represents at best a lazy, outdated and blunt approach to criminal investigation, and at worst an oppressive device that sacrifices fundamental values of personal liberty and due process to the voracious appetite of an autocratic State.

Statutory provision permitting gardaí to detain persons arrested in respect of “ordinary” crime was first introduced in this country in 1984. It was sold at the time as striking a reasonable balance between the individual’s right to liberty and the State’s interest in effective criminal investigation. The detained person could be held for questioning without charge for up to 12 hours and would benefit from a comprehensive body of safeguards.

At the time, I and many others argued that this was only the thin end of the wedge; that a rubicon had been crossed and the safeguards would prove illusory. Since then the detention power has expanded remorselessly. Now, a person can be held for up to 24 hours, although this can actually amount to 40 hours depending on the time of arrest and whether the person avails of overnight rest periods. For some offences such as murder or drug-trafficking, the period is up to seven days, while for withholding information about the activities of others it can be up to 72 hours.

As with the current proposals in respect of “white-collar” crime, these developments were presented as necessary to give gardaí the tools they needed to respond to certain criminal threats. Incredibly, the draconian measures were expanded again and again without any attempt to justify them with reference to empirical evidence or by reasoned argument beyond a repetitive and blind appeal to “balance”. The same omission affects the “white-collar” crime proposals. In particular, there is no suggestion that their advocates are seriously engaging with their consequences in shifting the focus of the criminal process away from its traditional venue in the courtroom to the oppressive environment of the Garda station.

The spectre of the police station as a foreboding venue where citizens can be detained incommunicado for several days in a spartan and dank cell to facilitate a police investigation is a distinctive hallmark of the totalitarian state. Effectively cut off from the outside world and meaningful psychological and material supports, the detained persons’ bodies and minds are vulnerable to the direction and control of the police. Undoubtedly, such an environment is conducive to extracting information from those held there, but is such information reliable, and should it be used as a primary means of securing a conviction against the persons concerned?

In Ireland, we have no grounds to be complacent about the use of detention in Garda custody as a primary tool of criminal investigation. It has already produced some disturbing examples of false confessions, including the confession by the late Dean Lyons to the double murder of two elderly women at Grangegorman. The frequent use of oppressive interrogation methods is also a matter of public record, including cases where they have produced confessions. The “safeguards” patently failed to protect

against them and there is no suggestion that any post-Morris reforms will make a significant difference in that regard.

Ultimately, it must be asked why we wish to retain and expand the use of such oppressive methods at the heart of our criminal justice system. They represent the methodology of the 19th and 20th centuries. Today, there are more civilised and sophisticated alternatives available. Several continental European jurisdictions, for example, place more emphasis on questioning before a judge or prosecutor. Even our nearest neighbours have embraced the need for much tighter regulation of police detention and interrogation by, for example, permitting the prisoner to be accompanied by their solicitor during questioning.

Instead of proceeding blindly down the familiar road of expanding police powers of detention, the Government might be better advised to step back and consider just how effective or ineffective these measures have been over the past 40 years. Perhaps the time is ripe for a more radical and creative approach to criminal investigation; one that consigns blunt, outdated and primitive methods to the past where they belong.


Prof Dermot PJ Walsh is director of the Centre for Criminal Justice at the University of Limerick

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