Drawing together the myriad bits of criminal law legislation offers much-needed clarity, writes TOM O'MALLEY
CENTRAL TO the idea of the rule of law is the requirement that the law itself should be clear and accessible.
Unfortunately, the present corpus of Irish criminal justice legislation is anything but accessible because of the frequency with which it has been amended in recent years.
Any body of law regulating such fundamental matters as the conditions under which persons may be deprived of their liberty through arrest or detention, the grant of bail, entitlement to jury trial, the admissibility of evidence, and the penalties to which convicted persons are liable should be free of ambiguity and readily accessible.
Until fairly recently, most aspects of criminal procedure were governed by a few key statutes such as the Offences Against the State Act 1939, the Criminal Justice Act 1951, the Criminal Procedure Act 1967 and the Criminal Justice Act 1984. This has now changed dramatically and the volume of statute law enacted over the past five years has made it difficult even for experienced lawyers to navigate their way through the maze of current criminal justice legislation.
Two options immediately suggest themselves: codification and consolidation. Either would be welcome but in the present circumstances, consolidation is probably the more realistic approach.
A complete code of criminal procedure would, of course, be tremendously helpful and it is something which we should aspire in the longer term. Meanwhile, however, there is a more urgent need to consolidate the existing legislation into a few comprehensive statutes.
A useful beginning might be made by drawing up draft consolidated versions of the main statutes, starting with the Criminal Justice Act 1951. Consideration could then be given to re-organising the various provisions into a few major statutes.
One possible strategy would be to have a Criminal Procedure Act, a Criminal Justice Act, a Criminal Evidence Act and a Sentencing Act. The first of these might be modelled on the Criminal Procedure Act 1967 and cover the various matters contained in that statute together with all later developments in the relevant areas. A Criminal Justice Act would cover search powers, arrest and detention powers, remand provisions, the gathering of forensic evidence and so forth.
A Criminal Evidence Act might bring together the various statutory provisions, which are not all that numerous, relating to evidence in the criminal trial process, including such matters as the drawing of adverse inferences from silence and the use of previous inconsistent statements. The Sentencing Act would obviously bring together all existing statutory provisions on sentencing and ancillary penalties.
This would be a modest but very useful beginning. The four statutes just suggested might not include all of the existing legislation relevant to criminal procedure and sentencing, but they would certainly cover the vast bulk of it.
Another possibility, of course, would be to adopt a single consolidated Criminal Justice Act covering all matters of procedure, broadly construed, which are currently dispersed among a large number of statutes. (This would amount, for all practical purposes, to a code.) Consideration should also be given to a consolidated Summary Jurisdiction Act bringing together legislation from the mid-19th century onwards dealing with the criminal jurisdiction of the District Court.
One objection sometimes made to statutory codification and consolidation exercises is that they have a limited shelf-life, and quickly become outdated as result of further amendments. This, however, is a weak argument. The Oireachtas undoubtedly has a right and a duty to legislate in response to loopholes in the existing law and emerging social problems. The great value of periodic consolidation is that lawyers and others can confidently rely on a particular statute as stating the entire law up to a given date after which the usual checks must be made to identify any later amendments.
The Minister for Justice and Law Reform has recently indicated his intention to introduce a consolidated Bail Act. This is certainly a welcome announcement in light of the extensive patchwork of amendments to the Bail Act 1997.
A similar exercise is needed in respect of other core areas of criminal procedure and, if it amounted to no more than consolidation, it could be undertaken without too much trouble or expense.
Tom OMalley is barrister and a senior lecturer in law at NUI Galway. The above article is based on the foreword to his book, The Criminal Process, recently published by Round Hall Press.