David Byrnes: Why are we regressing on reform?

Mon, 13 Jun, 2022 - 02:00

David Byrnes

It is now beyond doubt that the State will not be appealing the High Court ruling in DPP v Davitt, which mandated the cessation of the long-standing practice of gardaí prosecuting cases on behalf of their colleagues in the district court.

These garda, typically sergeant or inspector rank, are known as court presenters.

A temporary stay on that ruling expires on June 16. In flagrant disregard for the programme for government, the Coalition intends to introduce emergency legislation to patch the gap.

Remember that the Government presented its programme to govern as the “key part” of its “social contract with citizens”.

The 2018 Report of the Commission on the Future of Policing in Ireland set out a blueprint for the reform of policing. It recommends that prosecution decisions should be taken away from gardaí, and more distance between the courts and the gardaí.

The commission agreed with the position adopted in comparable jurisdictions, where it is recognised that investigation and prosecution should be kept separate.

It noted gardaí in charge of prosecutions in the district court are not trained to the level of defence lawyers. It reasoned it is unjustified to take gardaí away from frontline duty to prosecute cases.

The commission received and considered submissions from the Policing Authority, Garda Inspectorate and An Garda Síochána.

An Garda Síochána called for court prosecutions, as one of several ancillary functions that is “not aligned to its core policing roles”, to be transferred to other State departments or services. It recognised that these functions “present particular resource and extraction issues for An Garda Síochána and the outsourcing of these functions will generate considerable extra policing capacity”.

The Garda Inspectorate took a similar approach and said it is "primarily about putting gardaí on the front line" which it based on three reports it completed. The Policing Authority called for "greater separation between policing and prosecution" in the District Court.

It promoted the repeated attention drawn by the Garda Inspectorate "to the inefficiencies involved in the current system for garda attendance at court". The Policing Authority sought "greater involvement of the state prosecution service in cases before the District Court" citing other advantages from an "ethics and human rights perspective".

The programme for government accepted these reforms as being “essential” to the public trust in the police force. It contains a commitment to “rapidly implement” reforms recommended by the commission.

It upholds the commission’s report as providing the “clear pathway” for the defining role of the basic function of An Garda Síochána — to protect citizens.

Elaborate plan

So an elaborate implementation plan was put in train.

The Government published ‘A Policing Service for the Future’, a committed and step-by-step implementation of the commission’s recommendations, commencing in 2020.

An implementation group on policing reform was established to achieve this reform — within four years.

A high-level steering board was established to act as a “clearing house” for issues not resolved by the implementation group.

A policing reform implementation programme office was established within the Department of the Taoiseach, resourced with the “appropriate expertise” for the purpose of “driving implementation” of the plan and making progress reports to the Cabinet — in the interest of “complete transparency”.

It is only transparent, of course, if it does not attract executive privilege.

The 2022–2024 strategy statement of An Garda Síochána contains an unequivocal commitment to implement the reforms.

All of this presents as unified agreement with the commission — an all hands-on-deck approach.

But now it seems that is not necessarily the case.

In September 2020, the Department of Justice established a high level review group (chaired by a former secretary general to the Government), to re-examine the role of gardaí in the public prosecution system. A public tender was invited to research the matters recommended by the commission (to be completed within a strict three month period).

The high-level group has yet to make any recommendation to Government. The two interim reports, submitted by the group to the minister for justice in 2021, have not been published — despite the commitment for transparency.

The tender document stated the commission’s recommendation was accepted “in principle by Government, subject to further evaluation”.

This undermines the commission’s recommendations and the social contract made by the Government with the people of Ireland.

It suggest this reform, described as “essential” in the programme for government, could be overruled.

On June 9, the Department of Justice confirmed that Justice Minister Helen McEntee had received Cabinet approval to bring forward emergency legislation to amend the Garda Síochána Act, 2015 to restore garda court presenters.

The minister has sought to justify this by saying: “If remedial legislation is not put in place to allow for the continued use of court presenters, it is expected there would be significant disruption to the operation of the district courts throughout the country”.

However, lawyers were drafted in to present cases, and the wheels of summary justice continued to turn again, almost seamlessly following the initial aftermath of the High Court ruling.

The minister also based this decision on the “significant costs involved in putting in place alternative arrangements.”

However, the Government has provided no empirical analysis to support that proposition.

The Spending Review Report (November 2021), published by the Government in pursuit of the reforms, does not show costings.

The salaries, training, and support staff for court presenters inherently involve significant expenditure.

The budget for this has never been published.

No comparison between expenditure for the existing summary prosecution system and that based on the reforms recommended by the commission has ever been published.

Surely the minister is not attempting to compare costings based on the current state of the grossly underfunded criminal justice legal aid system.

Last week, the minister received a petition, signed by almost 300 practicing barristers calling for an urgent review of “unsustainable” and “uneconomic” legal aid fees in the district court.

The petition seeks the “immediate full and long overdue unwinding of cuts to rates of pay for criminal legal aid services”.

In 2014, the European Commission for the Efficiency of Justice, reported on the annual budget for criminal legal aid per capita.

At €18.4, Ireland ranked the lowest amongst our common law neighbours. This is 75% lower than Northern Ireland (€73.53).

A barrister typically receives €25.20 for a remand, €50.40 for a plea in mitigation at a sentence hearing, and €67.50 to run a full hearing of a contested trial.

Travel expenses are well below that provided to public servants. There is significant delay in receiving fees and expenses. This is a system based on a long-standing convention between solicitors and barristers which requires reform.

What this means in practice is that people of insufficient means, who are accused of committing a criminal offence and are presumed by the Constitution to be innocent, often depend on overworked and underpaid lawyers to represent them in court.

It is entirely unclear how the Government expects the requirement for constitutional justice to be served.

The former president of the Circuit Court, Raymond Groarke, has previously issued a warning to the minister concerning the underfunding of legal aid.

The 2018 Spending Review Report, published by the Department of Justice, shows criminal legal aid consumes just 2-3% of the overall justice system of €3bn.

The department acknowledged the increase of complexity in criminal cases, but the legal aid budget has effectively remained stagnant since 2002.

It somehow concluded that Ireland “compares quite favourably to similar jurisdictions in Northern Europe”.

The former chief justice, Frank Clarke, was recently appointed to carry out a review of legal aid for civil cases. No similar review has been triggered for criminal legal aid. Surely legal aid should involve a unitary approach.

And so, non-qualified lawyers (garda court presenters) are trying hard to keep pace with increasingly complex laws and legal issues. The complex rules of evidence are required to be applied strictly in criminal cases.

Any notion of training police to also act as lawyers in court is nonsensical, and it would defeat the rationale of the reform recommended by the commission.

The problems in the criminal justice system are not confined to the gardaí.

The independent review group, established by then minister for justice Francis Fitzgerald, made key recommendations in its 2014 report for fundamental reform in the Department of Justice.

The culture of the department was found to be closed and unnecessarily secretive, which has resulted in an inward-looking organisation with limited learning capacity and reduced openness to new ideas.

The culture has not changed or adapted to the world in which it now operates.

It is difficult to avoid the conclusion that the criminal justice system is dysfunctional.