Friday, 3 July 2009

Trial by Jury to be removed for organised crime offences

The government has now published its latest piece of criminal justice legislation, the Criminal Justice (Amendment) Bill 2009, which is being touted as being “anti-gang” and designed according to the Minister for Justice Dermot Ahern to protect Irish citizens and “ensure the rule of law”. The Bill is due to be debated in the Dáil today.
As Carol Coulter pointed out in an analysis piece in the Irish Times the next day, this is “not the first time gangs have been targeted in law”. Yet it is clear that the government is championing this legislation as taking “those involved in criminal gangs … head on”. Are we to therefore conclude that the measures passed in the Criminal Justice Act 2006, also in response to gang activity, have failed to provide the authorities with enough powers to deal with organised crime? Have the Garda been calling for more powers?

The answer is no. In fact, in the aftermath of the murder of Shane Geoghegan in Limerick in November 2008, Garda Commissioner Murphy in an Irish Times interview stated

"[t]here has been a whole plethora of legislation enacted in the last three years and I am confident - and in my briefing with the Taoiseach this morning I discussed that part of it - and I am happy that there is sufficient legislation in place."
"The issue for us is to get the evidence. We have the tools, we have the specialist units, but these crimes are not easy to solve and there is a small core of ruthless killers living in this city that have to be brought to justice."

What is more surprising, given his recent promotion of the 2009 Bill is that Minister Ahern agreed, noting that "t[]he gardai have all the legislation. What they really need is hard evidence."

The legitimacy of this earlier position is supported by the fact that someone has now been charged with the murder of Shane Geoghegan, and a trial date set for April 2010.

However, despite the attempts at a measured response following the death of Shane Geoghegan, something seems to have changed in recent months and the government has decided to push forward with legislation in the area providing additional powers to combat organised crime. The key measures include:
  • a new offence of directing or controlling a criminal organisation with a maximum sentence of life imprisonment (section 5);
  • a broad definition of “criminal organisation” is (section 3);
  • the categorisation of organised crime offences as “scheduled offences” which means that they will be brought with in the scope of the Offences Against the State Act and can therefore be tried in the Special Criminal Court unless the DPP directs otherwise (section 8);
  • reduction in evidence thresholds on garda evidence on the existence and operations of criminal gangs will be admissible in evidence, including hearsay evidence (section 7);
  • an increase in punishment for witness and juror intimidation from 10 to 15 years’ (section 16).

The government claims that the 2009 Bill is “groundbreaking legislation”.

Human rights organisations have, however, been quick to criticise the proposed legislation, and have in fact offered clear and very thorough critiques of the dangers of the 2009 Bill. The Irish Human Rights Commission have described the powers as “disproportionate and unnecessary” questioning why it was necessary to rush the new law through the Oireachtas thus preventing adequate debate and analysis into such significant changes in the law.

A central criticism of the proposed legislation has been the decision to create new “scheduled offences” in order to bring most organised crime offences before the non-jury Special Criminal Court. Ireland has already been criticised by the UN Human Rights Committee for its use of this system. The proposed changes to the law further undermine the right to trial by jury, so central to the idea of a fair trial in the criminal justice system. However, the evidence of the existence of jury-tampering is largely anecdotal. In fact the main problem arises in relation to witness intimidation, and this will not be solved by a Judge only trial.

It is interesting to note that much reference has been made to the law in England and Wales on dealing with jury intimidation. This is perhaps because the Court of Appeal in London last month ruled that the case of John Twomey and three other defendants should be the first case in that jurisdiction to be heard without a jury because of a "very significant" danger of jury tampering. Section 44 of the Criminal Justice Act 2003 had allowed for a case to heard by a judge sitting without a jury in serious or complex fraud cases and in those cases where there is a danger of jury tampering. However this is subject to the legal requirement that the court must consider whether alternative arrangements could be made to ensure justice, including moving a trial, and providing anonymity for jury members. In the Twomey case there does appear to be a significant issue of jury tampering with three previous trials having already failed as a result of such interference. In those cases jurors withdrew from the case citing stress, sickness and intimidation. The High Court had previously ruled that arrangements needed for a fourth jury trial included up to 60 police officers and a cost of between £1.5m and £6m. The Court of Appeal concluded that this might still not guarantee the protection of jurors. Lord Judge in the Court of Appeal concluded that such arrangements were an "unreasonable" drain on the public purse and police time.

Yet there has been some significant criticism of the decision in the UK. The judge himself noted “trial by jury is a hallowed principle of the administration of criminal justice". Common law jurisdictions have traditionally regarded the jury as essential to ensuring a fair trial, and decisions to place defendants before a judge only have tended regarded as undermining that right. In an article in The Guardian Afua Hirsch raised concerns about the move:

“Human rights lawyers working in countries undergoing democratic transitions say they aspire to the England and Wales model of jury trial, echoing the now notorious sentiments of former master of the rolls Lord Devlin, who described it as "the lamp that shows freedom lives". Somebody had better tell them that in England it just got a little darker.”

Where does this leave the issue of trial by jury in Ireland? Is organised crime so big a threat that we need to remove the right to a jury trial from anyone involved in this type of offence? The answer is we do not know. There is little or no evidence as to whether there is any difference in the outcome of such cases if they are heard before a jury or a single judge. What is clear though is that it will make no difference to witnesses who fear intimidation. Judge or jury, they will still fear the power of gang members within their own communities. So perhaps the issue is not one of criminal justice, or garda powers, or special courts, but in fact one of how communities are served, protected and resourced in order to reduce the power of a criminal minority. But that is a welfare issue rather than a criminal justice issue, and in a recession it is easier to pass laws than fund services.

And as for the principle of trial by jury? If (and it is a big if) we conclude that there are some cases where a jury trial is simply not possible because of a real risk of intimidation then the way to make those decisions needs to uphold the due process rights of the defendants. Perhaps that is why critics of the Criminal Justice (Amendment) Bill have been pointing to the English approach. The law there starts from a presumption in favour of a trial by jury and allows for deviation from this fundamental principle only where the Crown Court concludes that there is “evidence of a real and present danger that jury tampering would take place”. The proposed changes in section 8 of the 2009 Bill state that the ordinary courts are “inadequate to secure the effective administration of justice” and therefore take the reverse approach starting from a position of trial by judge only. The fact that the provision is time limited to 12 months does little to reassure given the history of normalisation of emergency powers in criminal justice systems globally.

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