The law relating to the arrest of suspects is complex.

Every arrest must be in accordance with law. Members of the Garda Síochána have extensive powers of arrest, but do not have a right to arrest on a whim, or for a wrongful purpose.

Members of the public have a power of arrest in some circumstances, but this post does not deal with that.

It is a criminal offence to resist a lawful arrest, but not an unlawful arrest. Some unlawful arrests are plainly that; more often than not they are seen to be unlawful with hindsight.

Therefore, as a practical matter, even if a person believes that his/her arrest is unlawful, it is wiser to submit and challenge the arrest and its consequences later. (See Section 18 (6) Non-Fatal Offences against the Person Act 1997).

The general purpose of an arrest is to charge the suspect with a crime and bring him/her before the courts.

In Ireland, there are exceptions to this. (Strictly, these exceptions should be thought of as “detention” rather than “arrest”).

Under Section 30 of the Offences against the State Act 1939 (as amended), a Garda may arrest a suspect (whom it is suspected has committed one or more of certain offences) and take him/her to a Garda Station for questioning.

Likewise, under Section 4 of the Criminal Justice Act 1984 and Section 2 of the Criminal Justice (Drug Trafficking) Act 1996 a Garda may arrest a suspect and take him/her to a Garda station.

These detentions are subject to rules and regulations. Commonly, suspects are released without charge after such detentions; but equally commonly the suspect is charged with an offence and brought before a court.

The charging document may be a charge sheet or it may be a summons. The charge sheet will be delivered to the suspect at the Garda station whereas the summons will be delivered later when it issues from the District court.

A person charged on a charge sheet needs bail; no bail is needed on a summons.

The Gardaí may give bail or the court may determine the bail when the accused appears there.

(This bail will be a personal bail; a promise to pay a sum of money if default in appearance in court occurs, or it may be that AND a similar promise from a third party). The Irish bail system is unlike the system in the USA.

Equally unlike the USA, in Ireland we do not have “the Perp Walk”.

I mentioned HERE the likelihood of CPD courses on the Criminal Justice (Surveillance) Bill 2009.

The Bill has been heavily marketed as a method of securing convictions for “organised crime”. This idea of organised crime (as an offence) is to be found in the Criminal Justice Act 2006. There have been no convictions under Section 72 of that Act, to date. It reads:

72.— (1) A person who, for the purpose of enhancing the ability of a criminal organisation to commit or facilitate—

(a) a serious offence in the State, or

(b) in a place outside the State, a serious offence under the law of that place where the act constituting the offence would, if done in the State, constitute a serious offence,

knowingly, by act—

(i) in a case to which paragraph (a) applies, whether done in or outside the State, and

(ii) in a case to which paragraph (b) applies, done in the State, on board an Irish ship or on an aircraft registered in the State,

participates in or contributes to any activity of the organisation is guilty of an offence.”

If nothing further were to be done it would be impossible to get a conviction under Section 72. The burden of proof under the Section would be formidable. The prosecutor, in terms of the Section, would have to prove;

A) The accused committed an act;

B) The accused “knowingly” so acted “for the purpose of enhancing the ability…”;

C) The act of the accused “participates in or contributes to…”

D) “any activity…” directed towards committing or facilitating…;

E) a “serious offence…”

In addition, the prosecutor would have to prove that all of this was connected with the activities of a “criminal organisation”. That’s defined as:

“ criminal organisation ” means a structured group, however organised, that—

(a) is composed of 3 or more persons acting in concert,

(b) is established over a period of time,

(c) has as its main purpose or main activity the commission or facilitation of one or more serious offences in order to obtain, directly or indirectly, a financial or other material benefit;”

The mind boggles at the difficulties this throws up, not to speak of the ironies to be unfolded from it. However, to make life easier for prosecutors Section 72 goes on in sub-section (2);

“(2) In proceedings for an offence under subsection (1) , it shall not be necessary for the prosecution to prove that—

(a) the criminal organisation concerned actually committed a serious offence in the State or a serious offence under the law of a place outside the State where the act constituting the offence would, if done in the State, constitute a serious offence, as the case may be,

(b) the participation or contribution of the person concerned actually enhanced the ability of the criminal organisation concerned to commit or facilitate the offence concerned, or

(c) the person concerned knew the specific nature of any offence that may have been committed or facilitated by the criminal organisation concerned.”

It is doubtful that this really helps the prosecutor, particularly where paragraph (c) of sub-section (2) implies the necessity of there having been the actual commission of an offence.

All of this is the context for the introduction of the Criminal Justice (Surveillance) Bill of which there will be more here in due course.

However, what springs to mind, as a contrast to all this, is RICO, one response to “organized crime”.

RICO has the merit of escaping (or not) from its authors’ intentions and is a flexible response to crime at every level of society.

Somehow, one doubts that Part 7 of the Criminal Justice Act 2006 or the Criminal Justice (Surveillance) Bill are directed to suppressing Irish criminal conspiracies per se.

In Ireland, (and the UK) the listener is required to know what is meant in addition to what is said. It is the intention that matters, not the statement.

What has been happening in Ireland, after all in the case of the McCracken, Moriarty, Mahon, and Morris Tribunals, but the investigation of criminal conspiracies?

Will we ever see Part 7 of the Criminal Justice Act 2006 or the Criminal Justice (Surveillance) Bill deployed against conspiracies like those?

Doubtful.

In 1984 President Ronald Reagan visited Ireland. There were public protests and demonstrations at his visit. He stayed for a time in the residence of the US ambassador in the Phoenix Park. A number of women took up position in a grassy area across the road from the entrance to the ambassador’s residence with the apparent intention of signaling their protest to President Reagan as he entered and left. He never saw them. They were arrested by the Garda Siochana and held for two days without bail. When they were released President Reagan had left Ireland. The women were charged with stated offences; when they came before the court one week after their arrest the charges were dropped.

This incident was never publicly resolved. The dropping of charges could only mean, to the mind of everybody in Ireland, that there was no substance to the charges in the first place.

If that was an accurate perception, great damage was done to the citizens of Ireland. In 1984, as now, an arrested and detained person was entitled to be brought before a court at the earliest opportunity. In 1984 an arrested person was entitled to bail unless a court had grounds for believing the person either would not turn up for his/her trial or would interfere with witnesses.

In 1984 the Taoiseach was Garrett Fitzgerald. His government took no steps to inquire into or explain this incident. Indeed, if the incident were to happen today the only additional feature might be the involvement of the Garda Ombudsman Commission.

In 1984 as now, a person had a constitutional right to protest and to exercise free speech. The latter right has been recently affirmed, although in less than convincing terms, by the High Court.

Now, as then, the effective guarantee of vindication of the rights of a person wrongly arrested is a civil action by the arrested person. It is not usual for the individual agent of the State to be a defendant in those proceedings. There is therefore, no effective sanction against, say, a member of the Garda Siochana who abuses the rights of a citizen.

Ireland was one of the original signatories to the European Convention on Human Rights.
Under the Convention a person may only be detained in specified circumstances; to serve a sentence upon conviction; to be brought before a court for trial; to be denied unlawful entry to the country and to be lawfully deported.

Because Ireland is a dualist state, that is, a state wherein international obligations become part of the domestic law only when specifically adopted and incorporated into domestic law, the Convention is not part of Irish law.

Ireland “incorporated�? the Convention into Irish law in an oblique manner by virtue of the European Convention on Human Rights Act 2003. Rights under the Convention may now be pleaded in Irish courts. The courts are obliged to interpret legislation, insofar as possible, compatible with the Convention. The High Court and the Supreme Court are empowered to declare law not to be compatible with the Convention and the Plaintiff may apply to the Attorney General for compensation, ex gratia, for loss or damage suffered due to the operation of the offending law. Thus, the European Convention on Human Rights, which represents the “gold standard�? for civilized treatment of citizens and persons across the European Union members, is not accorded validity in Ireland to the degree to which the Constitution is. What is at issue is the identity of the interpreters of these documents; only the High Court and the Supreme Court may interpret the Constitution; the interpretation of the European Convention on Human Rights takes place in the European Court of Human Rights in Strasbourg.

I unintentionally caused a post to be private. I have now made it public. It retains its date order in the website but can be seen HERE.

The greater proportion of criminal proceedings in Ireland is conducted in the District Court. The jurisdiction of the District Court is limited in the penalties it may impose. It is a court of summary jurisdiction. Summary jurisdiction means that the court may, pursuant to statute, deal with the charge against the defendant without recourse to a jury trial.

Under Article 38 of the Constitution of Ireland, a trial of an offence, which is not a minor offence, must be before a jury. Therefore, to invoke the summary jurisdiction of the District Court an offence must be a minor offence. There is no settled definition of a minor offence. It has been accepted by the Supreme Court that an offence attracting a maximum of 12 months in jail is a minor offence. The Supreme Court, obversely, has declared that an offence attracting a maximum of 2 years in jail is not a minor offence. (Mallon v Minister for Agriculture, Food and Forestry [1996] 1 IR 517).

In a summary trial of a non-minor offence, the District Court’s sentencing power is limited to 12 months’ imprisonment and a fine of €1,270 ( s.17 of the Criminal Justice Act 1967).

However, it is open to a District Court judge to impose a sentence consecutive to a previous sentence, subject to a limit of two years in total. (Section 5 of the Criminal Justice Act 1951 (as amended by s. 12(1) of the Criminal Justice Act 1984)).

Solicitors predominate in the supply of defence legal representation in the District Court. Typically the solicitor is on the Legal Aid panel. In the major cities he/she may specialise in criminal law practice, effectively to the exclusion of other types of business.

Where the court accedes to a request to certify an entitlement to Legal Aid for a defendant, it will almost invariably assign the solicitor of the defendant’s choice. In The State (Freeman) v. Connellan [1986] I.R. 433 the High Court found that the placing on the defendant of an onus to establish why he wanted a particular solicitor was “unnecessarily and unreasonably restrictive”.

A summary charge is not always a straightforward one. In addition, a trial may involve the consideration of many charges against a defendant. Where the defendant is paying for his/her defence and can afford the expense, it is open to him/her to engage the services of a barrister experienced in criminal law proceedings, in addition to the solicitor.

However, where the defendant is entitled to Legal Aid and has chosen his/her solicitor for representation in summary proceedings, under Section 2 of the Criminal Justice (Legal Aid) Act, 1962, he/she is not entitled to representation by a barrister.

This was the issue in Carmody v Minister for Justice, Equality and Law Reform [2005] IEHC.

The court found that as a matter of probability, a defendant will be afforded a fair trial in summary proceedings in the District Court while represented solely by a solicitor.

The Plaintiff had sought a declaration of incompatibility of Section 2 of the Criminal Justice (Legal Aid) Act, 1962 with the European Convention on Human Rights, specifically articles 5, 6 and 14 of the Convention and article 1 of Protocol No. 11. The court found that the substance of the Plaintiff’s claim was in respect of the right to a fair trial provided under article 6.

The court declined the declaration of incompatibility and went on to find that Section 2 of the Criminal Justice (Legal Aid) Act, 1962 was not in breach of the provisions of the Irish constitution specifically Articles 38.1, 40.1, 40.3.1, 40.3.2, and 40.4.1.

Abuse of power is very old. King David arranged the death of Uriah to conceal the King’s rape of Bathseba.

Gordon Brown and his Home Secretary, Jacqui Smith say they want pre-charge detention of terror suspects to be extended from 28 to 42 days. The BBC reported the Home Secretary thus:

Ms Smith told the BBC there was a “serious and consistent threat from terrorism”.

She added: “In order to ensure we prosecute people who want to cause murder and mayhem on our streets, we may well need to hold them longer to do that.”

Ms Smith also said: “We need to legislate now for the exceptional circumstances that there might be in the future.”

We now know that there is and was no basis in fact for making these claims. The only support has come from Alex Carlile, a government appointee and Sir Ian Blair, Commissioner of the London Metropolitan Police, a man himself in need of political support and friends.

The proposal is a recipe for injustice. They are saying that they want to imprison people for up to 42 days while they search for evidence upon which they could charge them with an offence.

The claimed justification is an operational one. The preferring of charges is central to the operations.

The preferring of charges is the job of the Director of Prosecutions (“DPP�?). The man with that job is Sir Ken Macdonald QC.

Sir Ken not only disagrees with Gordon Brown and Jacqui Smith, he actually opposes them. He has no difficulty preferring charges within 28 days, the current limit and nobody, he says, has been held for longer than 14 days in the nine months prior to April 2008.

It is rumoured the Brown-Smith position is simply to draw a “favourable�? contrast between the Labour position on “security�? and the Conservative position.

Are there any standards by which to judge Gordon Brown and Jacqui Smith?

Yes, and they are not moral. Jurisdiction aside, would they not be guilty of a breach of 18 U.S.C. § 1001(a), which makes it a crime for a person to “knowingly and willfully�?:

• falsify, conceal, or cover up by any trick, scheme, or device a material fact;

• make any materially false, fictitious, or fraudulent statement or representation; or

• make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry

�?in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.�?

The punishment for violating section 1001 is a fine, imprisonment for up to 5 years, or both.

Regrettably, power drives the Judicial system, as it does the Executive. How else to explain the case of Mr. Goldstein?

Mr. Goldstein was (is) an Orthodox jew in Manchester. He wrote a cheque in favour of his business colleague in London, to whom he owed money. He had owed the money for some time and was, on one valid view, making payment late.

He put the cheque in an envelope. He also put in some table salt. The salt was a coded joke and was a reference to the fact that the payment was late.

In the postal system the envelope leaked; the leaking salt was discovered by a worker who handled it. This frightened the worker whose managers closed the postal unit until the nature of the salt was discovered. (Inspection revealed its nature). (Emphasis was placed on the fact that a system of a daily double postal delivery was reduced to one delivery that day, discommoding the public).

Mr. Goldstein was charged on indictment and was convicted. Conviction was affirmed in the Court of Appeal.

Luckily for Mr. Goldstein he had two assets; the will and opportunity to keep fighting and a good lawyer.

He appealed to the House of Lords where he was vindicated and his conviction was quashed.

The judgment is of interest to lawyers; it clarifies the crime of public nuisance. But the court went further. It pointed out that, on the known facts, Mr. Goldstein had committed no crime.

A calm, fair-minded person ought to have been able to see this; Mr. Goldstein had no Mens Rea,
no malicious intent. Why enclose a piece of paper with your name on it, in the envelope with the salt, if the intention was to cause a scare? (Of course, it was not incumbent on Mr. Goldstein to prove he had no such intent; it was for the prosecution to prove he did).

To explain what happened to Mr. Goldstein it is necessary to see the legal system as, in single instances, (that is, the individual cases) an expression of a process. The process is driven by power. The people who start and operate the process want it to have an outcome. The process can bring about the equivalent of “type-casting�? in the film and theatrical worlds. An actor who plays the villain finds only villainous roles are offered to him/her. In a criminal trial the role of the villain is always allocated to the accused, it seems.

The system (the operators) wants a conviction more than it wants an acquittal.

Something new HERE and further evidence of deficiency in my legal education.

However, I look forward to the case where I inform a court that my client will so plead.

The House of Lords has just endorsed the decision in R v Morais (1988) 87 Cr App R 9. In that case the judge had given leave to prefer a voluntary bill against the accused, who was arraigned on six counts in the bill. The accused pleaded not guilty, was convicted on four counts and was sentenced. Relying on the Administration of Justice (Miscellaneous Provisions) Act 1933, he appealed on the ground that the bill had never been signed by the proper officer: without a signature, he argued, there could be no indictment, and without an indictment there could be no valid trial.

In Morais the Court of Appeal agreed with the submission. The court endorsed a statement of Peter Pain J in an earlier case:

It seems to us that it is impossible for a criminal trial to start without there being a valid indictment to which the defendant can plead, and that the bill of indictment does not become an indictment until it is signed”.

In Ireland the relevant legislation is the Criminal Justice (Administration) Act 1924. It mandates the form of the indictment in the Act and in the First Schedule to the Act. The choice of indictment is limited to the charges expressed or implied in the documents known as the “Book of Evidence�? served on the accused.

The 1924 Act permits amendment of an indictment before the conclusion of the trial but neither this power nor the restriction on the defence to take issue with the form of the indictment will avail if the situation in Morais is present, for the reason that, until it is signed, the indictment is not an indictment.

The date in the title is the date of the dissolution of the Red Headed League, as recorded by Dr. Watson in his almost eponymous account (“the Adventure of the Red Headed League�?).

What I had forgotten is that the landlord of 7 Pope’s Court Fleet St., the HQ of the League, recorded his tenant as being a solicitor, William Morris.

Morris was, probably, a counterfeit solicitor. Even so, as remarked by Dr. Watson’s companion, he had benefitted Mr. Wilson, the red-headed pensioner by £30, and a deep knowledge of every subject coming under the letter “A” in the Encyclopaedia Britannica, before abruptly dissolving the League and ending Mr. Wilson’s income.

On these facts, Holmes had difficulty discovering the meaning of the events.

As far as I have heard, it is impossible for me to say whether the present case is an instance of crime or not, but the course of events is certainly among the most singular that I have ever listened to.�?

Watson’s account is, thereafter, the account of the search for the meaning of the events, which, of course, was conditioned by the intentions of Morris, the solicitor, and his companions. That account should not be looked for here; it is better recorded by Watson.