Kenny goes electronic on crime, but he risks a short circuit to the system
He has stretched the lexicon of adjectives in order to convince us all that crime levels have reached outrageous/shameful/disgraceful/shocking/appalling levels, and are rising dramatically.
Thankfully, it has been possible usually to ignore O’Keeffe’s over-the-top rhetoric. However, when the same loose and exaggerated language about crime comes out of the mouth of the leader of the opposition in the course of his árd fheis speech, it can no longer be ignored.
Among the crazy, unworkable and meaningless proposals in the justice area announced by Enda Kenny last weekend was the electronic tagging and monitoring of people who are on bail.
Kenny deemed this policy necessary because FG found out, from an answer to a Dáil question, that 5,302 offences are alleged to have been committed by persons on bail in 2004 and 5,600 in 2005.
By repeatedly citing these figures FG has sought to suggest that crimes committed by persons on bail are a new and growing phenomenon.
There is no evidence to suggest this is the case and indeed there is much evidence to the contrary. For example, a search of the Dáil debates reveals that, in 1973, the House was told 1,775 crimes had been committed on bail. As the general crime rate and the population grew, so too did the number of crimes committed on bail. In 1983 the Dáil was told 8,295 offences were committed on bail.
Bail is refused when there is a risk the accused will not turn up for trial. Bail is also refused when there is a reasonable risk an accused will interfere with witnesses. Since legal and constitutional changes were introduced in 1997, bail can also be refused where there is a reasonable prospect the accused would reoffend before the trial.
In each case the gardaí must satisfy the court there is sufficient basis for the contention the accused will flee, interfere with witnesses or reoffend.
Of course, gardaí would like more people to be refused bail, but our constitution and our laws, thankfully, leave these decisions to the courts. If the gardaí establish to the satisfaction of a court that there is a reasonable prospect that the person would reoffend, then they can be kept in jail — so there is no need for the more costly and more cumbersome procedure of tagging and electronically monitoring them.
Any proposal to electronically tag people who have been given bail (and therefore about whom there is no reasonable risk of fleeing or reoffending) would fall foul of the constitution, even as amended in 1996.
Kenny also promised Fine Gael will introduce a new bail act “to establish in law all the factors to be taken into account by the courts before bail is allowed”.
However, the 1997 Bail Act already does this, and does it in great detail. Indeed that act was introduced by none other than the then Fine Gael Justice Minister Nora Owen. Kenny also got loud applause from his árd fheis delegates when he bellowed out the following passage — “When it comes to sentencing I want the people to have a voice. As it stands now the court will hear from the victim and from the criminal, but the judge hears nothing from the prosecution, who is the people’s representative in court.” He then added the following applause line: “In our courts the voice of the people is silent.”
This is a complete misrepresentation of what currently happens when sentencing is being dealt with in our courts. At the sentencing stage the first witness called to give evidence is the garda who investigated the offence. The garda is called by the DPP, and far from being silent, as Kenny suggests, the garda sets out the details of the incident, including the relevant aggravating factors — for example, what degree of violence was involved.
The garda also sets out the details of any physical, psychological or financial setback suffered by any injured parties and gives full details of the defendant’s previous convictions, if any.
Kenny went on to promise that Fine Gael would give the DPP new powers to argue in court for specific sentences. However, the DPP does not need new powers to do this. There is not now, and there never has been, any legal impediment to the DPP arguing for a specific sentence. However, there have been very good reasons why the tradition has been not to do so in most cases.
AMONG these is the reality that any view offered on what might be the appropriate sentence in a given case could only be that of the lawyer acting for the DPP in that particular case.
In 2001, the office of the DPP published new guidelines for the solicitors and counsel who act for the prosecution in court. Among the duties the guidelines imposed on the prosecutor is to ensure that the court has all available evidence relevant to sentencing beforehand.
The prosecutor must also make the court aware of all relevant case law and legislation that would assist it in determining the appropriate sentence. In addition, when the defence advances matters in mitigation which the prosecution can prove wrong, the prosecutor can contest it and, if necessary, call evidence in rebuttal.
There is also a mechanism whereby if the court seeks the DPP’s view on whether a custodial sentence is appropriate, the matter is adjourned and his office, having had a chance to review all the relevant material and transcripts, can offer a view to the court. More importantly, in recent years the DPP has had the power where he feels that a sentence may be unduly lenient to appeal it to the Court of Criminal Appeal. Hundreds of cases have already been appealed in this way, and in many of them longer sentences have been imposed.
In these and other cases the Court of Criminal Appeal has given a number of significant judgements which have set out guidelines for the lower courts on sentencing for different types of offences and on how the particular circumstance of the offence and of the accused should affect the sentence given.
Over the weekend, the FG leader repeatedly said that sentences must “reflect the people’s views”. What he did not say is how we are supposed to discern the people’s view on sentencing.
Are we to hold an opinion poll on each verdict, or is Fine Gael in government to look into its heart to decide what the appropriate sentence shall be?
What Kenny appears to be suggesting is that instead of our current system where the mitigating and aggravating factors are carefully considered by a court (and on appeal by another court), our legal system should be shaped by some discerned “people’s view” of the appropriate sentence.
The fundamental weakness in this suggestion is that too often the popular view of the appropriate sentence is informed by the partial and, at times, sensationalist reporting or analysis of those cases which are covered by the media. The people’s view on this recent batch of FG justice proposals should be shaped by a more careful and informed consideration of them than they appear to have got within Fine Gael. They may make good sound bites but, if implemented, they would make bad law and would have no real impact on tackling crime.
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