CRIME tends to be one of those areas where, to coin George Bush, you are either “with us or against us”.
You are either on the side of the State or on the side of criminals in what is a “war”. This is even more so when talking about organised or gangland crime.
There can be limited space — let alone much interest — in a more complex approach.
The issue has come under the spotlight recently with the conviction of Limerick crime boss John Dundon. He was handed a life sentence for ordering the murder of Shane Geoghegan, an innocent man who was gunned down mistakenly as he was walked home in Nov 2008.
But any analysis of crime is typically hampered by both a lack of detailed data and research on the topic, and a bipolar, intellectual field, framed by a traditionally liberal academia and a more crisis-response-mode among politicians and in the media.
However, a new book, by an Irish legal expert, has taken a more balanced, and highly informative, approach.
While clearly stating she is coming from a “liberal” stance, based on the protection of the rights of individuals and due process in the courts, Liz Campbell examines the subject in detail and accepts the genuine difficulty in investigating and prosecuting organised crime and the threat gangs pose to people, and the justice system itself.
The author, who is from Cork City and who completed her graduate, masters and doctorate studies in UCC, is now a senior lecturer at the School of Law in Edinburgh University.
In an interview with the Irish Examiner, she said: “In Ireland, there has been a heated reaction, but an understandable, heated reaction, to a legitimate problem. Ireland has moved from a period where there was no gun crime to where there were shootings on the street. The raft of laws that have been introduced have been drastic and are not proven to be effective.
“The approaches need to be tweaked to ensure civil liberties are respected. Rather than wholesale rejection of changes, I would like the changes to be more in line with traditional legal norms.”
Her book, Organised Crime and the Law, one of the first books of its type, examines the situation in both Ireland and Britain and compares the two jurisdictions.
Setting her stall out in the book, she said: “While there are unquestionable difficulties in investigating and prosecuting organised crime, and though the threat posed by organised crime to witnesses, jurors and the administration of justice overall is a real one, the more complex matter is how to address the problem in a measured way that is cognisant of due process.”
She said there have been “substantive” changes in the laws in Ireland and Britain, including: Greater surveillance powers; extended periods of detention; erosion in the right to a jury; dilution in the right to cross-examine witnesses; the admissibility of previous inconsistent statements of witnesses; acceptance of the evidence of accomplices and participants in witness protection programmes; imposition of minimum mandatory sentences, and the recovery of assets and monies from suspected criminals based on a lower, civil, level of proof.
Dr Campbell said that while there was plenty of talk of the “scourge” of organised crime there was no agreed definition of what organised crime was and argued that much of such crime in Ireland and Britain was actually “disorganised”.
On the subject of language, she said that, particularly in Ireland, criminals linked with organised crime were treated as having “no place in society” or “outside the bounds of humanity”, which, she said, rendered “palpable the slow and steady erosion of due process rights”.
She said the perception in Ireland that organised crime represented a criminal justice crisis appeared to be substantiated by the statistical rise in drugs and some firearms offences, the low detection and prosecution rates of gun homicides in particular and the incidental murder of bystanders.
She said that, in 2007, then justice minister Michael McDowell said “the drug and gun culture... poses as significant a threat to the wellbeing of the Irish State and Irish society as the paramilitaries did at any stage of their campaign for a quarter of a century”.
Dr Campbell said emergency powers, used to tackle the IRA, had moved from being temporary provisions to “being permanent aspects of the legal system” as part of the war on organised crime in Ireland. She said that the stance taken by the judiciary here in asserting its independence, seen in the way it has interpreted presumptive mandatory minimum sentences for drug dealing, together with the rights enshrined in the Constitution, have acted as a bulwark to many of the legal changes.
Dr Campbell said it was “difficult to identify a coherent logic” to the legal responses to organised crime, but said the current trajectory was a “move from fundamental liberal standards”, which highlight the primacy of the individual and the need to limit State power, to a “community-focused” approach, in which public protection and the rights of the community are emphasised.
Concluding, she said: “The drive to deal adequately and robustly with organised crime has tested and sometimes compromised the value of due process rights and protective norms.”
She said that while organised crime did pose “an unquestionable and grave danger” to the public and the administration of justice it is “often dramatised and sensationalised in the media”.
She said any changes to the laws “must be grounded on careful and considered political and popular debate”, with minimal changes to the right in question.
“While the underlying rationale for the increase in state capitals is understandable, predicated as it is on risk aversion and the desire to protect the public, this neglects to acknowledge the significance of due process, the underuse of existing laws, and the limitations of law as a primary means of dealing with the illusive yet potent notion of organised crime.”
* Detention periods: The standard detention period (24 hours) was extended to a maximum seven days for drug- dealing, then to organised crime and firearms offences. Secret hearings can be held during this time to extend custody. Dr Campbell said the increase in duration is a “fundamental shift”, argued on the basis that more time was needed to gather evidence. She said no evidence had been produced to support this claim and that, in 10 years, no one has ever been held for the full seven days. She said these powers seem to be more of a “symbolic” nature to demonstrate the State’s seriousness.
* Right to silence: This right has been “eroded incrementally”, allowing the court to make inferences, including where the accused fails to mention any fact on which he later relies, and where he fails to answer any question material to the investigation.
* Surveillance: Bugs can be placed on a person, his home, or on a thing on foot of a court order. Emergency surveillance can be taken for three days on authorisation of a senior officer. Tracking devices can be placed without a court order. Dr Campbell said resource implications mean surveillance is used carefully in targeted cases only and that there appeared to be no evidence of improper use. She said surveillance may be regarded as “a reasonable reaction to the threat of organised crime if regulated and supervised properly”.
* Communications: Phones, emails, and post may be tapped or intercepted on order of the justice minister. Mobile, internet, and email data can be accessed on order of a senior garda
* Informants: The use and supervision of informants and their handlers, while covered by a Garda code, isn’t covered by laws (unlike Britain). Dr Campbell said the Irish system appeared to contravene the European Convention on Human Rights and called for legislation.
* Non-jury trials: The Special Criminal Court, part of emergency measures to deal with the IRA, has become a permanent and expanded fixture to also deal with cases referred by the DPP. Further legal changes meant organised crime cases are automatically referred to the court, something Dr Campbell said is “especially contentious”. She said use of the court represents “disquieting evidence of seepage” of emergency legislation in to the ordinary law of the State.
* Accomplice evidence: Ireland operates on DPP guidelines rather than legislation. The Supreme Court and Court of Criminal Appeal have warned on the dangers of accomplice evidence. Dr Campbell said the use of such evidence appeared to be “an unavoidable aspect of prosecuting organised crime”.
* Witness Protection Programme: There is no legislation governing the WPP, which Dr Campbell said “arguably contravenes” Council of Europe guidelines. She said the Supreme Court has criticised its operation. She said the WPP needed “clearer rules and better recording”. She said while gardaí might like the flexibility of an informal system, any resulting prosecution runs the risk of being thrown out or appealed.
* Inconsistent statements: After the collapse of a Limerick gangland murder trial in which six prosecution witnesses refused to back their previous statements to gardaí, resulting in the accused walking free, laws were brought in allowing a court to accept the original statements in similar situations.
* Minimum terms: The executive enacted laws of presumptive mandatory minimum sentences of 10 years for drug offences (where drugs are worth €13,000 or more) and 5-10 years for firearms offences. Dr Campbell said this “impinges on judicial discretion” but that the judiciary had used the “exceptional circumstances” provision in the drugs laws to “circumvent the punitive intention” of the legislature.
* Asset recovery/tax demands: Dr Campbell said Ireland had “blazed a trail” in this area and was a model for other countries. She said the powers have been used more widely and more effectively in Ireland than the UK. She said the multi-agency nature of CAB was part of its success, whereas in the UK there was rivalry between different agencies.