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.

It is currently unchallenged, in Ireland, that an accused person is entitled to access to the evidence, prior to trial, that the State intends to adduce against him/her at trial.

In Ireland, for many years, the procedure to secure that entitlement for the accused was set out in the Criminal Procedure Act 1967. That Act conferred a role on the District Court, in indictable cases, in deciding whether to send a person forward for trial to the Circuit Court or not; the District Justice had to be satisfied that there was a sufficient case to put the accused on trial before sending the accused forward.

The Book of Evidence, which the State was required to serve on the accused, was the main basis for the judgment to be made by the District Justice.

The Criminal Justice Act 1999 changed that position.

The obligation to serve the Book of Evidence persists, but the District Justice has lost his/her assessment role. That assessment now rests with the Circuit Court. The 1999 Act made provision in Section 9 for application to be made to the Circuit Court:

(1) At any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused.

(2) Notice of an application under subsection (1) shall be given to the prosecutor not less than fourteen days before the date on which the application is due to be heard.

(3) The trial court may, in the interests of justice, determine that less than 14 days notice of an application under subsection (1) may be given to the prosecutor.

(4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.

In Cruise v Judge O’Donnell the accused was charged with drugs offences. He was facing a minimum sentence of ten years on conviction. His lawyers believed the prosecution case was defective, in that the search warrant on foot of which the evidence against the accused was obtained was defective and invalid (and consequently the evidence located on foot of the warrant was unlawfully obtained and inadmissible). The accused applied to Court under Section 9 (1). The Notice to the prosecution did not refer to the basis for the application. The prosecution protested that they did not know on what basis the accused was making the application. The Court directed the accused to reveal to the prosecution the basis for the application in the Notice.

The accused applied to the High Court on Judicial Review to reverse this and lost.

The Director of Public Prosecutions opposed the propositions of the accused, arguing that the meaning of Section 9 did not allow the accused to make a case to strike out the charges against him before the Circuit Court judge, in the absence of the calling on for trial of the proceedings against the accused.

The accused appealed to the Supreme Court and won.

The Supreme Court confirmed that an accused person has no obligation to assist the prosecution. Furthermore there was nothing in the 1999 Act indicating the Oireachtas
intended such an obligation by requiring the accused to conform to “case management� directions of the Circuit Court Judge. As the Supreme Court acknowledged, many defences will consequently be canvassed in this application procedure in the future, without the need for the empanelling of a jury and/or the scheduling of witnesses and at much greater speed than if the accused was compelled to await the listing of the trial.

The current Irish law on “shoplifting” is to be found in Section 8 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The side note for the Section descriptively reads “Making off without payingâ€?.

The Section provides:

8. —(1) Subject to subsection (2), a person who, knowing that payment on the spot for any goods obtained or any service done is required or expected, dishonestly makes off without having paid as required or expected and with the intention of avoiding payment on the spot is guilty of an offence.

Shoplifting is a form of theft and could also be charged as theft under Section 4 of the Act, which provides:

4. —(1) Subject to section 5 , a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.

The relevant differences between Section 8 and Section 4 are that the penalty under Section 4 is considerable; a fine or imprisonment for a term not exceeding 10 years or both.

The penalty under Section 8 is smaller: a fine not exceeding £3,000 or imprisonment for a term not exceeding 2 years or both.

In addition, Section 8 makes specific provision for the circumstances in which a suspected shoplifter may be arrested in a “citizen’s arrest�. It provides:

An arrest other than by a member of the Garda Síochána may be effected by a person under subsection (3) only where the person, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána.

In Fitzpatrick v DPP [2007] IEHC the High Court examined, inter alia, the provisions of Section 21 of the Road Traffic Act 1994 which reads:

21. —(1) A duly completed statement purporting to have been supplied under section 17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him by or under this Part prior to and in connection with the supply by him pursuant to section 17 (2) of such statement.”

This section is, of course, of immense benefit to a prosecutor. It permits the proof of two matters in one fell swoop, each of which, if required to be proved in some other fashion would generate multiple occasions or opportunities for the prosecutor to slip on the proverbial banana skin.

In Fitzpatrick, the prosecution, for undisclosed reason, did not produce the Lion Intoxyliser machine certificate. (the Section 17 certificate). Instead, the prosecutor gave evidence of the readings obtained from the machine.

The High Court was asked to rule on the proposition that the readings could only be proved by the production of the machine readout.

The court said no. Secondary evidence could be given of the reading.

However, referring to Primor plc v Stokes [1996] 2 I.R. 459 the judge pointed out that the prosecutor, in meeting the burden of proof with secondary evidence was obliged to first establish the circumstances in which such proof could be availed of. Those circumstances are set out in Primor as follows:

The contents of a document may be proved by secondary evidence if the original has been destroyed or cannot be found after due search. Similarly, such contents may be proved by secondary [evidence] if production of the original is physically or legally impossible…�

The prosecution, in failing to prove the circumstances in which the certificate was not produced was not to be permitted to give secondary evidence of the reading.

The judge also referred to Section 30 of the Criminal Evidence Act 1992, which reads:

where information contained in a document is admissible in evidence in criminal proceedings, the information will be given in evidence, whether or not the document is still in existence, by producing a copy of the document or of the material part of it, authenticated in such a manner as the court may approve….�

Thus, if the prosecution had lost the original readout but had a copy, the copy (duly authenticated) would have been admissible under Section 30.