Criminal Law

Much of everyday speech is inaccurate, so inaccuracy is not a big deal in everyday life. However, Government ministers do not inhabit our banal everyday world. In the case of the Minister for Agriculture and Food this means at least two things; he should not say “appraise” when he means “apprise,”  and he should not undermine criminal investigations by diminishing the facts being investigated which he does when he says he is investigating “mislabeling”. To say that selling horsemeat as beef is mislabeling is to imply inaccuracy, merely, by the seller.

Sometimes even inaccuracy is very serious. When an auditor finds a discrepancy of €1.5 euros in the accounts he/she keeps looking for the cause of that discrepancy. If they do not, they may find they are answerable for a very large fraud.

The Minister for Agriculture and Food is running that risk.

He should read Section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001. It reads:

“6.—(1) A person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception induces another to do or refrain from doing an act is guilty of an offence.”

The definitions section of the act says this:

““dishonestly” means without a claim of right made in good faith;”

The finding by the Food Safety Authority of Ireland of horse meat in frozen beef burgers invokes the following legal provisions:

A)            Articles 14 (1) and 16 of Regulation (EC) N° 178/2002 on General Food Law;

B)            Regulations 5 (1) and 6 of the European Communities (General Food Law) Regulations 2007.

Under Article 14 (1) of Regulation No. 178/2002, “Food shall not be placed on the market if it is unsafe”. “Unsafe” includes food unfit for human consumption.

The Regulation goes on…

“In determining whether any food is unfit for human consumption, regard shall be had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.”

So, food is contaminated if it contains extraneous matter.

Article 16 of Regulation No. 178/2002 provides;

“Without prejudice to more specific provisions of food law, the labelling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers.”

Under Regulation 5 (1) of the European Communities (General Food Law) Regulations 2007;

“A food business operator is guilty of an offence if the food business operator places unsafe food on the market or otherwise contravenes Article 14 of the EC Regulation.”

Under Regulation 6 of the European Communities (General Food Law) Regulations 2007;

“A food business operator is guilty of an offence if the food business operator fails to comply with Article 16 of the EC Regulation in the labelling, advertising or presentation of food.”

So, citizens will want to know if there will be prosecutions for the Irish beef burger incident.

When the Food Safety Authority of Ireland tested a range of Irish frozen beef burgers, purchased from Irish and British supermarkets, it found evidence that they contained horse meat and/or pig meat.

It found that the source of the offending meat was the respective manufacturer of the beef burger. In the case of Silvercrest Foods Ltd. almost 30% of one burger constituted horse meat.

These facts were sufficient evidence to prosecute the various manufacturers (and the retailers).

Prosecutions are necessary because of the overriding objective of securing the safety of consumer food in the EU. If you are a manufacturer it is easy to ensure the safety of the food produced in your factory; you make sure that your sources are safe.If you fail to do this you should be prosecuted.

Under EU law Ireland is obliged to prosecute for breaches of EU law and the known facts were evidence of breaches of EU law and Irish law. The person responsible for ensuring there are prosecutions is the Minister for Agriculture and Food. That means there will be no prosecutions because he has shown he does not agree with the law.

He thinks that negligence is insufficient to get a conviction or even to bring a prosecution. He implies that proving knowing and deliberate adulteration of food is what is required to bring a prosecution and get a conviction but this is not and should not, be the case.

His is the latest in a long line of Irish failures. Ireland is an extreme example of a noted problem; regulatory capture. When a regulated industry (such as banking) exerts sufficient influence, its regulator becomes its champion and defender instead of its regulator.

Here we go again.

This writer is reading a book with the same title as this post. The author of the book is Clive Stafford Smith, a lawyer with a very unusual legal practice. He represents, inter alia, persons on Death Row in the USA. I recommend the book. It is well written and an excellent Christmas present for most lawyers.

The subject of the book is the wrong that is a judicial death sentence. Even in a Europe without the death penalty, this is not an easy proposition to advance or defend. Instead, the ostensible subject of the book is how it is possible to be convicted of a crime you did not commit.

Because of his personal experience the author has settled and very interesting views about forensic or expert evidence. He denies the validity of forensic ballistics and hair comparison but he goes much further; he points out how improbable it is that a defence lawyer will find a ballistics or hair comparison expert who will belittle those “sciences”. After all, nobody would study those issues unless they were convinced, in the first place, they were valid.

The author remarks how lawyers are not likely to challenge these experts. He says the lawyers made their choice of profession because they were incapable of understanding the science subjects that are required for the practice of medicine and are too easily intimidated by the “scientists” of ballistics and hair comparison.

His views on ballistics are persuasive. The manufacturers of microscopes helpfully have produced one permitting the examination and comparison of two bullets at the same time. The expert is seeking the unique pattern of grooves generated by the passage of the bullet through the barrel of the gun. What Clive Stafford Smith denies is this; that there is a unique pattern of grooves generated by the passage of a bullet through the barrel of a gun. Guns are mass produced, therefore the barrel of one gun is very like the barrel of another gun and it is not the case that the pattern of grooves generated by the passage of the bullet through the barrel of the gun is unique to any particular gun.

His views on finance for the law are even more persuasive. If a defendant cannot afford to pay the economic cost of a proper defence in a criminal trial, or the state fails to allocate funds for that purpose, the accused will be convicted even though innocent. What is the economic cost of a proper defence? Inevitably, it will vary from case to case, but Clive Stafford Smith estimates that 1,000 hours will be needed for the task. That’s 83 days. Now assume an hourly rate for the lawyer at €300 (because that is less than the rate allowed by the Irish High Court for some company liquidators) and we can work out the cost of the defence, – €300,000.

Is that what Irish criminal lawyers get paid? No.

The Right Honourable Kenneth Clarke MP QC

Secretary of State for Justice

Ministry of Justice

102 Petty France
London
SW1H 9AJ
United Kingdom

RE:  The Minister for Justice & Equality v GN

Dear Minister,

We refer to the above. Your administration reference is, we believe, Criminal Appeal Office Reference Number 200702371 A8; Indictment Number T20057096.

The respondent, GN is our client.

We act for him arising from a request from the UK Serious Organised Crime Agency for his extradition. As you no doubt know, in Ireland, requests for extradition are processed in the High Court at the behest of the Minister for Justice and Equality.

This has now been concluded in the case of our client and the High Court has declined to order our client’s extradition to the UK.

We are sending the judgment of the High Court to you under closed cover and commend it to you.

The issue in the case was the legal standing of indeterminate sentencing in the UK. We are aware that this is a current and controversial issue in UK politics and public administration.

We urge you to accept the conclusions of the Irish High Court and to act accordingly. In short, we urge you, on behalf of our client, to cease any further efforts to seek his extradition to the UK.

This will have the beneficial effect of relieving Ireland of any implied obligation to appeal the High Court judgment to the Supreme Court. This course of action will also relieve our client of stress and anxiety while the outcome of any such appeal is awaited. It will also relieve Ireland of the expense of prosecuting and defending any such appeal.

We look forward to your favourable responses.

Yours faithfully,

________________

McGarr Solicitors

To a lay person, hearing that somebody has been sentenced to life imprisonment, it might appear that the prisoner will never be released. This will rarely be the case.

A life sentence is an indeterminate sentence.

The constitutionality of this particular indeterminate sentence was endorsed in Lynch v Minister for Justice [2010] IESC

McGarr Solicitors represent a client, in his challenge to a variety of indeterminate sentence, before the High Court, and will report the outcome of the case in due course.

What is one to make of the implied threat from the Minister for Justice and Equality? He has suggested that the proposed Legal Aid strike by members of the Criminal Law Practitioners Organisation is of doubtful legality. This may just be bluster. If it is not, he will, presumably, contemplate a range of options. He might:

a)              Remove solicitor strikers from the Legal Aid practitioners’ panel; and/or

b)             Refer solicitor strikers to the disciplinary processes of the Solicitors’ Disciplinary Tribunal;

(Barristers are chosen by solicitors; consequently they, to partake in the strike, need only have a private conversation with their solicitor benefactors advising them that they are not available for work. The Minister would have his work cut out for him to access the content of such conversations, if not their effect).

He will not choose b); the Tribunal has expressed disappointment that the Minister has tabled proposals to replace them when they have, to paraphrase it, an unblemished record of doing their work.

He may not react at all. His Press Office, HERE, expresses the peculiar language adopted for such happenings;

“The threatened withdrawal of services seems to apply only to defence lawyers operating under the criminal legal aid scheme…”

Well, yes.

They were the very people whose incomes were being cut by the Minister and who made the complaint to him. His response was to cut the incomes of other lawyers, as if the substance of the initial complaint was a demand for absolute fairness, even in misery.

Those other lawyers are barristers briefed by the State. No solicitor on the Legal Aid panel works for the State in prosecution work and vice versa. State prosecutions are taken by various solicitors appointed for that purpose in, effectively, County districts around the country. For good and obvious reasons they do not offer services to the general public for defence work.

The Minister says:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the cost of Criminal Legal Aid whilst continuing to ensure that the rights of alleged offenders are being protected.”

This is provocative. The Minister means by this:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the [fees paid to criminal law practitioners…]”

The Minister’s mode of expression is a “first strike” in a blame game where the Minister’s antagonists are weak and disparate and their work is obscure to most citizens.

This writer has an iPhone, but is not an enthusiast of it. Peering into BAILII on the small screen, to read Ireland’s Road Traffic Acts, say, is not to be recommended, particularly if a court hearing is in the offing.

Consequently, the proposal to introduce “the paperless office” to Norwich prosecutors is looked at with a jaundiced eye.

That same eye, being in private practice, is distantly threatened with strain; if the prosecutor has a tablet, the defence counsel must have one also.

The interesting issue is, however, not the tablet; it is the prosecutor and the prosecutor’s mind-set. Does it matter a fig (assuming it to be true) that some money will be saved by the use of tablets? Many administrators would be able to find other ways of saving money in the conduct of criminal trials. Why should they not be given their wish?

A criminal trial is, supposedly, not about the convenience of the prosecution; it is, reputedly, a search for justice.

When it is not that, it is a fraud. It is a fraud because its procedural approach is deceitful. The elaborate procedure of a criminal trial is intended to vindicate the State as it punishes a human being. If the State has some other agenda it is the State that should be in the dock, not the accused.

What kind of impermissible agenda could a State have?

Well, levying terror on its own military forces is one.

Needless to say, there will be no evidence of impermissible agendas in prosecutors’ tablets. To find that kind of stuff, defence counsel must walk, as it were, behind the false wall of the prosecutor’s case and find the real evidence. That will become more difficult without ready access, without quibble, to all the prosecution material, particularly the stuff the prosecutor deems not relevant or necessary to his/her case.

If that is what the defence requires and needs, there will develop a new stage in a paperless prosecution; the inspection in situ of prosecution paper. We know how important it is to be skeptical of conventional wisdom; now we must be skeptical of prosecutorial WYSIWUG.*

* “What You See Is What You Get”, Apple’s reprobation of Microsoft’s interface (before Windows).

“It will be convenient to have a name for the ideas which are esteemed at any time for their acceptability, and it should be a term that emphasizes this predictability. I shall refer to these ideas henceforth as the conventional wisdom.”

So wrote John Kenneth Galbraith in 1958 when he coined the phrase “conventional wisdom”.

The idea is so good that he was not the first to recognize the truth in the phrase; that much of what passes for ideas is real only because it has been agreed to be so.

If that truth were to be again forgotten a criminal legal aid lawyer would be a prime candidate to re-discover its force. As a solicitor on the Legal Aid panel I feel the power of dislocation it engenders when I read HERE that some of my predecessors have had to represent pigs, goats, rats and other animals.

“All over Europe, throughout the middle-ages and right on into the 19th century, animals were, as it turns out, tried for human crimes. Dogs, pigs, cows, rats and even flies and caterpillars were arraigned in court on charges ranging from murder to obscenity. The trials were conducted with full ceremony: evidence was heard on both sides, witnesses were called, and in many cases the accused animal was granted a form of legal aid — a lawyer being appointed at the tax-payer’s expense to conduct the animal’s defence. …”

A lay person might (on reflection) wonder (or not, on reflection) how the lawyer is to take instructions from the client, a phrase and concept itself wonderfully conventional. We lawyers don’t need the client to tell us what we are to do; we tell the client what the client needs and proceed to do that. So, if a pig is facing a murder rap we undermine the evidence and so on, depending on the character of the charge, not the character of the accused.

Nobody knew this better than Socrates. He lived an unconventional life and the first charge against him read;

“Socrates does wrong and is too concerned with enquiring about what’s in the heavens and below the earth and to make the weaker argument appear the stronger and to teach these same things to others”

This was an accusation that he, Socrates, was a non-conformist, something he consciously sought to be. In effect, it accused him of being himself.

There are some charges you just can’t beat; being a pig must be one.

Like many solicitors we at McGarr Solicitors are attending our Continuous Professional Development seminars. Solicitors have a quota of CPD work to complete to meet professional requirements.

Often, it is similar to chewing on sawdust. But not last night. The writer attended a seminar on firearms and fingerprints.

Fingerprints were a Victorian “discovery”. They are not really appreciated by Irish judges, who tend to think of them as assimilated with witness identification which is still treasured despite the formal warnings judges are obliged to deliver to juries about the dangers of visual identification.

In fact fingerprints are material for heavy duty intellectual analysis. See Henry Templeman HERE for a glance at the subject.

Templeman quotes a comment on the results of a proficiency test applied to156 fingerprint experts;

“’Errors of this magnitude within a discipline singularly admired and respected for its touted absolute certainty as an identification process have produced chilling and mind- numbing realities. Thirty-four participants, an incredible 22% of those involved, substituted presumed but false certainty for truth. By any measure, this represents a profile of practice that is unacceptable and thus demands positive action by the entire community.”

In fact, there is more art than science in fingerprinting. Zealotry is a danger; we do not want Dodge City cleaned up at all costs. No enthusiastic prosecutors, please.