SOME of the items in this rather hastily-collected package fortuitously link up with other more general developments in the legal system. For instance, the Government statement says that there will be a compulsory review of the refusal of bail if the accused person has been held in custody for longer than four months.
In addition, we are told that steps will be taken to reduce the amount of Garda time spent waiting for a case, or the stage of the case in which a particular garda is interested, to be heard. Each of these improvements sits rather well with the recommendations of the Denham Committee - on the streamlining of management of the courts - which were published some six weeks ago and on which the Government has promised action.
Of possibly greater interest is the promise to introduce legislation to ensure that "additional penalties" - or, to use the usual language of sentencing, "consecutive rather than concurrent periods of imprisonment" - are imposed for offences committed while on bail. This is significant because, if it becomes law, it would amount to one of the few instances in Irish law of the legislature attempting to influence sentencing beyond the fixing of a maximum sentence for each type of offence.
This is the very issue which is presently causing an unprecedented public disagreement between the British Chief Justice and the Home Secretary, Michael Howard. Irish judges might take the same view as the British judges, namely that the nuances of each case are so different that it must, as a matter of justice, be left to the judge who has heard the facts of each individual case to settle the sentence.
If they do take this view and express themselves as bluntly in public as the British judges, then there would be an extraordinary public clash between judges and the Government. In this case, given the high esteem in which our judges are held by the public, there is no doubt, in my opinion, that it would be the Government which would climb down.
The right to silence is a term which is used rather loosely. There are at least two broad senses in which the term may be used: first, in relation to the pretrial interrogation of an accused person by the gardai and the conditions which must be satisfied before any confession evidence may be admitted at the trial; secondly, the question of whether the accused person is obliged to give evidence in court so as to expose himself to cross-examination and the prosecution's right to draw it to the jury's attention if he omits to do so. The second meaning could be taken far enough to reverse the normal burden of proof, the imposition of which on the prosecution is a key feature of the trial and a great practical advantage to the accused person.
Against this wide background, the proposals by the Government - one of which is confined to drug-trafficking and the second of which only applies where the accused person is relying on matters in his defence which could reasonably have been expected to be mentioned during Garda questioning - recall the expostulation of Clive of India: "By God, at this moment I stand astonished at my own moderation."
Conspicuously missing from the proposals is any commitment to provide more prison places.
It is a fundamental tenet of our criminal justice system that it is vital for the guilt of an accused person to be proved before an open court. One might reasonably ask, in the case of the powerful criminals who hold parts of Dublin under their sway and against whom it is not possible to collect evidence which would satisfy a court, is it not acceptable simply to trust the gardai and the Minister?
Legislation is promised which will require people who stand bail for accused persons to put their money where their mouth is and to lodge cash as a guarantee that the accused person will refrain from crime before the trial. Lay readers, imbued with that uncommon thing called common sense, will ask why this was not done before. The short answer is that I do not know; but the common law is not always common sense.