Upcoming - Bringing the Penal State Back In

The next meeting of The Differential Association will take place:

Date: Thursday the 22nd of March
Venue: Mulligans Pub on Poolbeg Street, in the back room
Time: 6pm

We'll be looking at an on-line lecture, Bringing the Penal State Back In, where Loic Wacquant and Nicola Lacey argue their distinct view points regarding how we understand the use of punishment.

All are welcome, whether you work in the area, or are just interested to find out more!

The Presumption of Innocence and Irish Criminal Law - Whittling the Golden Thread

Hamilton, C (2007) The Presumption of Innocence and Irish Criminal Law –Whittling the Golden Thread, Dublin: Irish Academic Press.

This week was the Differential Association's 1st birthday, and to mark the occasion we decided to read The Presumption of Innocence and Irish Criminal Law - Whittling of the Golden Thread, and the author Claire Hamilton very kindly agreed to join us for some birthday cupcakes and a lively debate!

When reading any book or article the members of the DA always try and analysis the findings in the Irish context, so it was a welcome change that we had a book that chronicled subjects that pertained to particular issues in the Irish criminal justice system.

The presumption of innocence is a core tenet of our criminal justice system as it underpins fundamental rights and procedures. As Hamilton notes, ‘in its narrowest sense, the presumption can be viewed as merely giving expression to the most prosaic evidential rules that the prosecution bears the burden of proof and that guilt must be proved beyond a reasonable doubt’. Therefore, the presumption should not be viewed as a rhetorical right, but be enshrined at the centre of our justice system.

However, recent criminal justice legislation – the Criminal Justice (Public Order) Act 1994, the anti-crime package of 1996/7 and the Criminal Justice Act 2006 – have all done a great deal to not only undermine, but erode the presumption in Irish law.

We spent most of our time discussing the provisions in the 1996/7 crime package, which we all agreed have made a significant impact on the presumption of innocence and the rights that are underpinned by it. The impetus for this raft of legislation was the murders of Garda Jerry McCabe and prominent crime journalist, Veronica Guerin. Ireland has traditionally been noted as a country which isn’t overtly perturbed by crime, yet these murders shook the nation. However, an additional crucial factor is one of timing. These murders happened just prior to a general election, and this confluence of events seemed to turn the area of criminal justice into a political battleground. While the core of the package was made up of six acts, here Hamilton examined the Bail Act 1997, the Proceeds of Crime Act 1996 and the Criminal Justice (Drug Trafficking) Act 1996.

Firstly, the Proceeds of Crime Bill eroded the presumption as it denied people access to procedural rights. The basis of this Act is that it creates a means to forfeit material and financial gains made through criminal activity. However, the Act is a civil one, consequently, through its configuration it deprives people’s right to due process protections which are afforded in criminal law. In addition, the standard of proof is on the balance of probabilities rather than beyond a reasonable doubt.

Another right connected with the presumption, the right to silence, was further downgraded in the Drug Trafficking Bill, which quite shockingly allows the court to draw inferences from the defendant’s failure to mention certain facts, facts which they later rely on as part of their offence.

However, the Bail Act has been one of the most significant and detrimental acts brought in during this wave of legislative fervour. This act allows for preventative detention, which means that a defendant can be placed in custody pending trial; this is to prevent the accused from committing further offences. This completely contradicts that presumption, the defendant has not been convicted of a crime, yet they are denied their right to liberty. The seriousness of this point should not be underestimated; the deprivation of liberty is the harshest sanction available to the state, yet people are imprisoned based on a suspicion that they may have an intention to commit a crime, which certainly does not constitute a crime. As Hamilton pointed out, this does not provide an adequate base on which to detain someone. We worried that this sort of legal assessment transposes the presumption of innocence with a presumption of guilt.

This act also has some very serious practical ramifications for our prison system. Over the last 10 years we have seen a worrying increase in our prisoner population, and it wouldn’t be too much of a leap to make some connection between this and an increase in remand prisoners. A cursory glance at Scotland's prison population should sound a serious alarm about the slippery slope of preventative detention. Scotland is a country with a similar size population to Ireland, but their prison population swelled to over 8,000 recently, which has been linked to a troubling reliance on preventative detention. In fact, right now there are more people detained in the Scottish prison system on remand than there are under sentence. This results in prisons becoming overcrowded by short term prisoners, which is hugely detrimental to the creation of meaningful penal regimes. And this is to say nothing of the economic and social cost of over-crowded prisons.

While there are those who would argue that this is a reasonable price to pay for the protection of the public, research from both Ireland and Scotland shows that only 50% of remand prisoners end up receiving a custodial sentence. Surely this evidence shines a light on the dubious foundation and unjust character of the Bail Act?

2006 saw further erosions to the presumption with the introduction of a new Criminal Justice Act. This was an extensive Bill; however, one of the most worrisome features was the provision for behaviour orders, a close to relation to its English counterpart, the ASBO. Like the Proceeds of Crime Bill, these behaviour orders were tied into civil, rather than criminal law; so the standard of proof here rests on the balance of probabilities. This has serious ramifications on the fundamental values of the justice system. In these circumstances a person is accused of what could be considered criminal activity, yet the state never has to bear the burden of proof as hearsay evidence from a Garda is considered enough to prove the alleged behaviour. Moreover, if the order is breached there is the potential to receive a custodial sentence, but because it is a civil proceeding they are not granted the due process rights inherent in criminal law. These perturbing developments have created what Hamilton refers to as a shadow legal system.

When you piece these extensive changes together: diminished right to silence; reduced procedural props; civil orders with the potential to be imprisoned without any due process rights; hearsay evidence, the picture becomes the stuff of dystopian fiction, it certainly would not be out of place in the work of Orwell or Kafka.

The question we all asked was how to row back on such harsh legislation, and re-establish the presumption of innocence at the centre of our justice system? Some people highlighted findings that showed that if the public were given more information they are actually more lenient than the judges. Or research which finds that, contrary to intuition, increased civic engagement and democratisation of the policy-making process could help develop a fairer justice system.

A significant barrier to any change is that in Ireland these laws are founded on the believe that the criminal justice system had tipped too far in favour of the defendant, and that in fact, by undermining the presumption of innocence we are actually strengthening our justice system. Michael McDowell, who was quite unrelenting in achieving his vision of law reform, succinctly stated when it came to the criminal justice system, ‘the balance has shifted too far in favour of the accused’. The rights of the accused have been placed in direct opposition to the rights of society, and it appears that the presumption of innocence has borne the brunt of this antagonistic discordance. Essentially, the legislative changes that are detailed in the book appear to be premised on the notion of the criminal 'other'; this seems to be a fundamental driving force behind the devaluation of the presumption. As such, there is no need to be concerned about diminishing due process rights and procedural props, as that is the law for them, it won’t affect us, the law abiding public. As a result, trying to muster up the political appetite for these legislative row backs will prove to be a sizeable challenge as long as we understand our criminal justice system in such clear-cut dichotomous terms.

However, we also wondered if part of the problem was a lack of political comprehension about the importance of fundamental principles such as the presumption of innocence. Of course it would be easy to decree that such harsh and punitive outcomes are solely the result of harsh and punitive intentions; however many DA members believed that this didn’t provide a full explanation of how the presumption of innocence has been incrementally reduced to a paper tiger. The 1996/7 crime package certainly provides plenty of material for debate, given that it contained provisions that were among the most destructive to the presumption. However, this moral panic emerged shortly before a general election, it was suggested that given the timing, opportunistic opposition politicians made a land grab. Rather than being motivated by a punitive ideology, politicians viewed criminal justice as a valuable area of public interest, and potential votes. Perhaps if the murders that incited the media frenzy had happened at a time more removed from a general election a more considered and measured response could have been employed. If this had been the case, the terrain of Irish criminal justice could look very different; with the presumption of innocence remaining a strong pillar of our justice system. An important lesson to be taken from this is that short-term moral crusades can yield long-term damages to our civil liberties.

Another important thread that emerged from our conversation (one that appears to be becoming an emergent trend in DA discussions) was about how important it is to root studies of these types of dramatic policy change in their local contexts; whether they be cultural, political or historical. While similar changes to the presumption of innocence may be simultaneously occurring in other western jurisdictions, the character and the nature of these changes were distinctively Irish; they were driven by events and changes in public mood and temper that were uniquely Irish, and shaped by Irish political actors. There was a broad consensus that despite a trend towards convergence in criminological explanations of penal and legislative transformation, that policy-making remained rooted in the local factors; and that to understand changes in criminal justice procedures we must foreground our research in the national context.

Surely this is one of the most important contributions of Claire Hamilton’s book, it is an informative and insightful contribution to the burgeoning area of criminology and criminal justice studies in Ireland. Moreover, it is evident that the erosion of the presumption of innocence has had some very serious consequences, and it should not disappear without at least an attempt at an informed debate. We hope that by shining a much needed investigative light on this issue, that Whittling the Golden Thread may contribute to a wider discourse about the fundamental values of the Irish criminal justice system.

This month's blog was written by Louise Brangan.

The views expressed in this blog are the author's alone.