We’ve given criminals and addicts the right to obstruct the course of justice

THE killing of Donna Cleary would seem to have been related to drugs. The chief suspect, Dwayne Foster, was reportedly high on a lethal cocktail of heroin and cocaine.

With his reckless lifestyle, he was never going to live very long. The great pity was that he took the life of a young woman with him.

Under our system of justice, a person is entitled to the presumption of innocence until proven guilty. He will never be proven guilty. But that does not mean that we should not face up to reality. Once he died, the media were openly describing him as a well-known armed robber, even though he had never been convicted.

Some people may think that this is a perversion of our legal system. But the real perversion is that the authorities can be so confident about the criminal activities of such people yet be unable to put them away because our system is weighted towards the protection of criminals.

The system is supposed to protect the innocent but it actually ensures more innocent people become victims.

A few years ago, a neighbour of Martin Ferris was burgled. The gardaí and many of the local people “knew” who was responsible but their hands were tied, so the victim went to Ferris and he went to the suspect and suggested that the stolen property be returned.

Ferris said that he did not threaten the individual, and nobody believes he did.

With his reputation, and that of his colleagues, he did not have to. Presumably the victim was grateful to get the property back. This kind of thing was certainly a significant factor in acquiring some of the votes that helped to elect Ferris to the Dáil. But we are going to be in dire trouble if society has to turn to Sinn Féin as a proxy for the provos for justice.

Ferris went to jail for his involvement in the Marita Anne gunrunning. The guns, which were transferred at sea, had been brought across the Atlantic from the United States in a large ocean-going fishing vessel called the Valhalla.

The criminal James “Whitey” Bulger was behind the American element of that shipment - but he was playing on both sides of the fence.

As soon as the Valhalla sailed from the Boston area, he telephoned the FBI. Part of his operation was pretending to be an FBI informant in order to cover up his criminal activities, which included at least 17 murders. He is now number two on the FBI’s most wanted list, coming just behind Osama Bin Laden at number one.

At times, Justice Minister Michael McDowell reminds one of the man who sheared a pig. He got plenty of squealing but no wool. McDowell has been making noise and provoking more than his share of squealing from various sectors of society, but he has not had much to show for it before this week. But if this week’s swoops result in criminal convictions, he will certainly deserve credit for taking on the criminals in the bandit country.

In relation to the drug problem, however, he has shown little initiative. There have been plenty of seizures, but that is only indicative of the volume of stuff available.

He has been particularly critical of the yuppie and trendy elements, people who dabble with cannabis and cocaine as recreational drugs. They have been funding the drug trade and affording it a kind of dangerous and distorted sense of respectability. But nobody is going after this white-collar element.

Instead, members of the Government have been saying the same things and making the same threats that they have been making in the US for the last 35 years. The Americans are even further from solving the problem now than when Richard Nixon declared a war on drugs in the 1970s. They failed and there is no reason why we should be any more successful with the same methods here, especially when we do not have the resources available to the American police.

When the Americans nailed some of their more famous criminals, like Al Capone, it was not for murder or racketeering, but for tax evasion.

MARTHA STEWART, one of the most famous television personalities in the US, was interviewed in 2003 by police investigating alleged insider trading.

In the course of her interview she lied, so she was tried convicted and jailed for obstructing the inquiry - not for actual insider trading.

She could have exercised her right of silence under the fifth amendment of the US Constitution but she chose to protect her reputation by lying, and she went to jail.

In this country when we were faced with the subversion of the State by the IRA, the Oireachtas passed legislation denying them the right to silence. During the 1950s people went to jail for “failing to give an account of their movements”.

The criminal gangs and crazed elements on drugs now present an even more pernicious threat to our democratic institutions.

Yet they are actually being accorded more than the right of silence. They are also effectively being allowed to silence witnesses through intimidation, as has already happened in a number of high-profile murder cases in recent years. This includes those who killed Garda Jerry McCabe. Remember his killers were not actually convicted of murder.

It has long been recognised that justice should not only be done, but that it must be seen to be done. But we have been witnessing culprits getting away with murder and then giving society the finger.

Many members of the IRA were at least motivated by a misguided sense of patriotism. The modern gangs are made up of depraved elements that are inspired only by evil and greed.

When the right to silence was introduced as part of the fifth amendment to the US Constitution in 1791, it was done to protect the innocent by ensuring that they were not stitched up with false confessions. But now we have the technology to record questioning in order to ensure that people are not stitched up.

What is the point in allowing the police to hold somebody for 48 or even 72 hours, if their interviewees can refuse to answer any questions during that period? Suspects and their legal representatives are being given a sporting chance to beat charges. The whole thing is being played out as some kind of game with little regard for the property and even the lives of citizens. The rules are stacked in favour of criminals and against the gardaí.

Our “right to silence” is bit of a misnomer. What it really entails is this: if you are interviewed by the gardaí and there is a subsequent court case, you’re guaranteed that adverse inferences cannot be drawn from your failure to communicate your defence to the gardaí.

If the right of silence were removed, somebody who lies or makes a false declaration to the gardaí could be charged with obstructing the inquiry. The police would be in a better position to secure convictions.

In a republic, citizens are supposed to co-operate with the enforcement of laws but we seem content to require only the innocent to co-operate, while culprits are allowed to pervert the system.

We have a serious problem already and if we keep playing these silly games, things will inevitably get worse.

The Taoiseach and the Justice Minister were talking about longer sentences during the week. But those are not a real deterrent, especially when it comes to drug criminals who have no respect for their own lives.

The real deterrent is to enhance the likelihood that culprits will be caught and punished for their crimes.