ONE OF the State's most senior law officials has asked if the liberal criminal justice system and restrictions on gardai stem from notions of abuse and suppression - dating from the colonial era.
Mr Barry Galvin, State Solicitor for Cork, legal adviser to the Criminal Assets Bureau and, latterly, a temporary tax inspector for the purposes of issuing tax demands to organised criminals, also called into question Government proposals on altering the bail laws.
He was addressing the conference on criminal justice organised by the Association of Chief Superintendents, in Malahide, Co Dublin. He said alterations to the bail laws, the subject of a referendum next month, ignored professional, habitual criminals like burglars and muggers but would provide preventative detention for someone who carried out a murder or sexual assault in a fit of passion and who was unlikely to pose a threat to the community.
Mr Galvin also called for a streamlining of the criminal justice system of laws. At present the courts faced lists of "misdemeanours, indictable misdemeanours at Common Law, statutory offences, indictable statutory offences, felonies at Common Law and felonies at statute.
"As the law presently stands there is confusion and contradiction. For example, a youth caught red handed stealing a 35p bar of chocolate is entitled at his own petition without any reason to have a trial by judge and jury.
"Yet, a serious criminal damage charge involving say £1,500 must be tried in the District Court if the DPP so decides unless the District Judge decides that the facts of the offence amount to a crime, which is not a minor offence fit to be tried summarily."
Gardai had no power of arrest for an assault while there was power of arrest in the case of a person who refused to leave a public place.
"It is absolute nonsense that he does not have the power of arrest for the more serious thing of an assault whether committed in his presence or in respect of which he has a reasonable suspicion. He has to rely on the fiction of arresting a person for a breach of the peace and this, of course, has to be committed in his presence.
Mr Galvin called for legislation "setting out the offences where common sense and the modern dictates of a police authority, who have a duty to enforce law and order in public, should have the power of arrest.
"Officers should have the power of arrest for offences which are invasive of property or person or which do not carry a possible five year sentence and where there is not already a power of arrest in the various statutes." He added: "It is difficult to justify why such powers are not given to the gardai. I have heard the explanation that this reflects the abuse and suppression by the occupation forces of the Irish people pre1922.
"However, we are now in a different era where a large number of would be gougers have a total lack of respect for the gardai.
"The law should now reflect the confidence and trust which the gardai enjoy from the people of Ireland at large and give the gardai full legal backing."
He also questioned the proposed changes to the bail laws which would refuse bail to those charged with murder, grievous bodily harm, rape and sexual assault.
From my own experience, I would have thought that the multiple repeat offenders in the areas of burglaries, robberies, joyriding, etc should be the people targeted.
"The Bill specifies murder, grievous bodily harm and rape and sexual assault.
Apart from the recent new phenomenon of contract or professional killings, most murders in Ireland were isolated and I cannot think of any case where preventative custody would have been necessary in a murder case.
"In any grievous bodily harm cases, apart from the occasional riot type case when, in any event, bail would normally be refused because of possible intimidation of witnesses, I cannot think of any grievous bodily harm cases where I could have used a possible repeat offender argument to seek to refuse bail.
"Again, in rape and sexual assault cases, I cannot recollect any one case where I could have produced the appropriate evidence to oppose bail on preventative detention basis. I do know there have been one or two.
"On the other hand, I have been present in court for thousands of cases for professional burglars, joyriders, muggers who walked out of court with as many as 20 or 30 charges pending in the certain knowledge that the suspect in question would commit further similar crime, if not on the way home from the court, certainly within the subsequent 24 hours.
"In the course of the debate on what offences should be included in the new bail regime, I strongly urge the Minister to consider including the relevant offences I have mentioned above."