The tone of the debate on criminal law and its reform is in danger of undermining legal standards in all areas, according to Supreme Court judge Mr Justice Adrian Hardiman.
In a stinging attack both on recent government policy and on the policies advanced by the main opposition parties, Mr Justice Hardiman says that over the past number of years he has become gravely concerned about the tone and content of the debate on criminal law topics.
In an article in the recent issue of the Judicial Studies Institute Journal, published biennially by the judicial body that organises seminars and conferences for judges, he acknowledges the grave concern that exists over the rise in gangland shootings and other aspects of crime.
"These are serious problems which require rigorous, focused, fact-and-figure-based debate, not sloganeering or self-interested vocation or ideological demands for more power for the State, fewer rights for citizens and an ever more all-seeing 'Big Brother'," he writes.
"Many steps in these directions have already been taken, without bringing about any reduction in crime rates." There is a tendency to presume that those charged with an offence are guilty of that offence, he said.
"This was perfectly exemplified in a campaign slogan used in the course of the recent general election which promised 'tougher bail for criminals'. The fact is, of course, that in our system those seeking bail are typically not criminals; they are persons resisting being imprisoned, perhaps for years, pending the resolution of the question of whether they are criminals or not."
This leads to a state of mind in which "only convictions are a meaningful result of the criminal process; acquittals have therefore to be regarded as a malfunction or, at best, as meaningless." As a result the rights of accused people are no longer seen as human rights, "but as a cluster of technicalities which for some reason, not fully or properly understood, has grown up for the protection of 'criminals', in the overbroad sense identified above.
"They are not rights which attach to you or me or other respectable members of society: they are 'rights' of others, outsiders, outlaws. They serve no useful purpose and should be extirpated from the criminal justice system."
He points out that there has been a huge amount of criminal law "reform" in the past 25 years. "It has all been in one direction: all directed at assisting the gardaí and the prosecution and at handicapping the defendant. Every defendant, no matter how technical the offence or how good his previous record, is treated as though he were, at least potentially, a gangland crime boss and his rights duly attenuated."
Referring to a committee on "the rebalancing of the criminal law" set up by the former minister for justice, Michael McDowell, he says that it was a remarkable feature of this committee that not a single member of it "had significant experience of either the prosecution or the defence of criminal cases to conviction or acquittal".
These developments have been combined with "the near total absence of rigorous parliamentary opposition to law reform proposals. It would appear that many public representatives, even those with a tradition of concern about civil liberties, are afraid of suffering political damage if they are seen to stand up for 'criminals' rights', as it would no doubt be misrepresented."
Referring to recent certified cases of miscarriages of justice, he states: "The State has, so far as I know, failed wholly to examine [ them] so as to learn what short cuts precisely we are prone to and where they have gone wrong."
He warns that complacency about such developments in the criminal law will lead to a grave coarsening of procedural fairness in the law generally, so that "respectable citizens, who can reasonably hope that they will never be directly affected by the criminal law", will find that the standards of law in matters such as tax and social welfare, health and safety or tort and contract, will have been adversely affected.
The members of the Balance in the Criminal Law Review Group, to which Mr Justice Hardiman refers in his article in the Judicial Studies Institute Journal, were:
Review group: members
Dr Gerard Hogan, SC, Law School, Trinity College, Dublin - chairman; Dr Richard Humphreys, barrister; Prof David Gwynn Morgan, UCC; Nora Owen, chairwoman of the Justice Group of the Institute of European Affairs; Barry Donoghue, deputy director, Office of the Director of Public Prosecutions; Caitlín Ní Flaithearthaigh, Office of the Attorney General; Ken O'Leary, assistant secretary in the Department of Justice, Equality and Law Reform; and Tony McDermottroe, assistant secretary in the Department of Justice, Equality and Law Reform.