Elements of Criminal Justice Bill do not stand up to scrutiny

A referral by the President is needed to examine the role of the judiciary in several key areas, writes John Rogers.

A referral by the President is needed to examine the role of the judiciary in several key areas, writes John Rogers.

There are good reasons to oppose provisions of the Criminal Justice Bill 2007 and it is surprising that members of the Opposition voiced support for the Bill at second reading.

With the general election only weeks away, it may be that the rhetoric of the Minister for Justice scared the Opposition into believing the electorate would think them soft on crime were they to oppose the Bill in principle. Well, let's hope they don't stay scared because there are real reasons of principle to oppose the Minister's proposals.

This Criminal Justice Bill is wide-ranging and touches on areas of criminal law and pre-trial powers as disparate as bail, the right to silence, sentencing for drug trafficking and firearms offences, seven-day detention and crime prevention orders. Until the Government had a change of mind last week, it was intended that the details of these far-reaching proposals would be debated and amended in a matter of a few hours. In the event, the time allocated didn't permit more than a fraction of the Bill to be considered, so some more time is to be allowed this week.

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But why the rush? Is it an attempt to salvage a political reputation or to secure urgent early enactment of much-needed though far-reaching amendment of our criminal law? If the Minister's Bill is urgent now, it was urgent for the past five years. Are there some measures proposed that, despite their far-reaching consequences, require immediate enactment without adequate debate?

Is it so urgent that the Taoiseach, through his role in the Council of State, will be advising the President that the Bill should not be referred to the Supreme Court under Article 26 of the Constitution? There is a thread running through a number of the Bill's provisions that raises serious questions of constitutional propriety about the role given to the judiciary in relation to seven-day detention, crime prevention orders and bail.

Section 47 gives a power of detention for seven days to An Garda Síochána. The power is limited to certain crimes, including murder.

An initial detention for six hours may be effected by a member in charge of a Garda station, and this may be extended by further consecutive periods of 18 and 24 hours at the direction of a superintendent and chief superintendent respectively, if these officers have reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.

So, subject to the safeguards that there be written records of such detention directions, it is proposed that a suspect may be held for 48 hours by direction of gardaí of the designated rank.

Under the Bill, the chief superintendent who has reasonable grounds for believing that such further detention is necessary will be authorised to apply to a judge of the Circuit Court or the District Court for a warrant authorising the detention of the suspect for a further period of 72 hours. The section provides that "the judge shall issue a warrant authorising the detention of the person to whom the application relates for the period not exceeding 72 hours if, but only if, the judge is satisfied that such further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously".

The section then provides that application may be made for a further detention warrant of 48 hours, thereby allowing detention on suspicion for a total period of seven days. The judge will have to hear submissions or evidence adduced by or on behalf of the detainee at such applications if requested to do so.

Under the Constitution, the judges are appointed to administer justice. Does the procedure envisaged, whereby judges will be asked to extend the period of detention by five days, constitute the administration of justice? The question is whether the jurisdiction to issue a warrant for detention on suspicion and on the basis that such detention is necessary for the proper investigation of an offence is a jurisdiction that can properly be given to the courts. The power to detain without charge preferred or conviction by a court for an offence is traditionally and properly designated an exercise of an executive power rather than a judicial power.

In practice, judges to whom application for detention warrants will be made will have to rely on the opinion evidence of a chief superintendent that the detention is necessary for the proper investigation of the crime, and that the investigation is being conducted diligently and expeditiously. Reliance on opinion evidence in such an application gives rise to the question of how gardaí have arrived at such opinion, and inevitably this will lead to an answer wherein gardaí will say they are relying on intelligence in respect of a source of which they must claim privilege.

So the judge will be left to rely on an opinion, the validity of which the judge cannot test or examine in any meaningful way. It is difficult to see any good reason why the judges of the Circuit and District Courts should be placed in the position of authorising five days of detention of a suspect when they will not be able to test the opinion evidence on which they will have to rely. The truth is that the real basis for the detention will be the opinion of gardaí, and not the opinion of the judge arrived at after hearing satisfactory evidence. In effect, the judge's detention warrant will validate an opinion of gardaí that may well be groundless.

The Emergency Powers Bill 1976 permitted detention on the direction of a chief superintendent for seven days of a person suspected of having committed an offence under the Offences Against the State Act. When the Bill was referred to the Supreme Court by the President under Article 26 of the Constitution, the attorney general asked the Supreme Court to deal with the reference on the basis that the seven-day detention provision in the Bill would be repugnant to the Constitution if it were not saved by Article 28.3.3 of the Constitution, which saves from invalidity any law expressed to be for the purpose of securing the public safety and preservation of the State, where it is resolved by each of the houses of the Oireachtas that a national emergency exists.

The Supreme Court held that the exemption provided by Article 28.3.3 was the decisive factor in deciding the Bill was not repugnant, and it is plain that otherwise the principal provision of the Bill providing for seven-day detention grounded on Garda suspicion that the detainee had committed a scheduled offence would have fallen foul of the Constitution.

This important decision makes it difficult to see how it could be argued now that there is not a major constitutional impediment to the enactment of Section 47 of the current Bill.

If enacted, the Bill will also confer on the courts a power to make a "crime prevention order". The court will have power to make such orders where an offender other than a person under 18 is convicted of a scheduled offence and is sentenced to a term less than the prescribed maximum for the offence. The court's power is to specify such conditions as the court considers necessary for the purposes of ensuring "that persons that are likely to be affected by the presence of the offender are protected" and the offender will not commit any further offences.

The duration of a crime protection order will not extend beyond the maximum term of imprisonment that might have been imposed for the offence and in any event not beyond 10 years.

It will be seen that the power conferred on the courts in this instance is vague and uncertain. Apart from duration, there is no limitation on the nature and extent of the conditions the court will be empowered to impose on an offender who has already been punished by serving what was considered to be the appropriate sentence of imprisonment. In fact, the courts will be given little or no guidance by the Bill as to how they are to exercise their power to make crime prevention orders.

For instance, who are the persons "likely to be affected by the presence of the offender"? Is this restricted to the offender's victims or may an order be made to protect, say, neighbours from the "outrage" of the offender returning to live among them? Further, it is not clear how the making of a crime prevention order is to be triggered. On the face of it the section appears to leave its operation and the making of such orders entirely to the discretion of the judges; there is no provision that gardaí or the Director of Public Prosecutions are the appropriate applicants for such orders.

All of this points to a lack of clear guidance in the provision as to what is the proper role of judges in exercising this far-reaching new power involving potentially significant restrictions on offenders' freedoms.

The Bill also proposes amendment of the Bail Act 1997 so that where a chief superintendent gives evidence of a belief that the refusal of the application for bail is reasonably considered necessary to prevent a serious offence being committed by the applicant for bail, such a statement "is evidence that refusal of the application is reasonably considered necessary for that purpose".

This provision appears to place the Bail Court in a position of being statutorily obliged to accept the opinion evidence that has been put before it. The provision appears on the face of it to require bail judges to suspend their judgment on the satisfactoriness of the evidence grounding an objection to bail where a chief superintendent gives evidence that refusal of bail is "reasonably considered necessary" to prevent the commission of a serious offence.

Enacting these measures could leave us with a lasting legacy conferring on judges novel and far-reaching powers normally associated with executive, and which may not be revisited other than on a case-by-case basis unless the Bill is referred by the President to the Supreme Court.

John Rogers SC is a former attorney general