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7.) Crime and punishment in 20th century Ireland.
Volume 2: A Description of the Criminal Justice System (CJS) 1950-1980
What We Always Wanted To Know About Our Criminal Justice System But Were Afraid To Ask … Sean: I heard you’re writing a book about the Irish Criminal Justice System? About time. The statistics in this country are in an unmerciful mess. I hope you have cleared up the mess? Seamus: I hope so, too, but I doubt it. The mess is too deep, too Irish and – which is the same thing – too obscurantist. Sean: Give us an example. Seamus: Look at Table 216 and you’ll see the incredible mess in which Irish prison statistics were couched. The Prison system managed to lose hundreds of people every year and no one gave a cabaiste. These figures, by the way, were for the benefit of Parliament. TDs never bothered to read them, did they? And if they didn’t read them, no one else did either. The clergy never believed in quantifying anything, not even their wealth. So, who was going to read them? Even presently the most celebrated and paid members of the community who bothered to write books about the Criminal Justice System had no notion whatsoever of accounting for the system in particular or as a whole. Back in the ‘70s the country at that time, as you know, was full of purple prose about Human Rights and the like, and no one gave a cabaiste about counting the number of persons housed in Irish prisons. This was a time, of course, when the nation’s incarcerated children (not to mention the law-abiding school-going children) were abused by the Clergy, the Clergy ran everything, appointed everybody and made sure that no one ever said anything without consulting them first. And this applied (and applies) to Professors more so than to the fearful rank-and-file. Sean: Well, that’s what I was going to say; for the period 1968 and 1975 -- which is a long time ago. I know how imperative you feel it is that the role of historical understanding in these things should be foremost in any analytical enterprise, but how can we proceed to deal with improving the complexity of these things? Seamus: I suppose we should understand the nature and the possibilities of Irish society in these regards. I think it all goes back to where we are socially. I mean the most basic precondition of our existence at this time. – and particularly since Whitaker -- is the ongoing creation of an Irish secular middle class. It is a process that is not only absolutely necessary, but it is also absolutely unstoppable. And, as you know, what is necessary cannot be immoral.
Sean: I know you have always maintained that the real struggle in Ireland has been the struggle to become and remain secular, and that talk about class in Ireland was a borrowed sense of Irish narcissism and totally inappropriate as a construct by which to examine Irish phenomena. But is he creation of class necessary to arrive at a secular and more masculine state? Seamus: I think so. There is no ‘other’ force in Irish society except the RC church. The Protestants have been as defeated as the Gaels, and in so far as the Southern Protestants have not been defeated, they are wets and irrelevant. And in any event, they are merely Christian in orientation, that is, they present no real modern sense of ‘otherness’ apart from the otherness of governing the Christian conquest in the same fashion as the RC church, or what is even more unimaginable, governing it as the Established Church did in the nineteenth century. Sean: Well, what about the Northern Protestants? Seamus: Well, they are not ‘in’ Irish society. They are a considerable force for change, but again, they are co-defendants and joint-partners in the Christian conquest, and when a few reforms and accommodations have been made, they will soon be humming and hymning phalangist Christian numbers together – the Christian comrades in total harmony in the one Green and Gold submarine, the Masons and the Opus swapping their respective stories of daring do. What a prospect! Such is the present limit and horizon of Irish social life. To me it is another reason why the creation of a Southern secular middle class is absolutely necessary. We generate our own history or we perish in the Holy Roman bog we have been pickled in for the past fifteen hundred years. We remove the deadwood and show our selves, or go back to the dead womb of mediaeval obscurity.
Sean: But how is class related to bad criminal statistics? Seamus: It is because we have non-class, non-secular but religious substandard, secrecies and preFrench Reformation privileges, that the clerical abuses on our children, as well as the reparations made by the taxpayers (via the good Catholics like Ruari Quinn, Michael Woods, et al), have occurred. It is because of the self-same phenomena that the AIB Bankers can rob with impunity, that a substantial number of institutions in Ireland operate a medieval consciousness in a modern capitalist environment. So why do you thinks that criminal statistics should be compiled in an environment that is different to the norms than childcare, financial banking, planning authorities? What you see in them is precisely the absence of secular standards and secular morality – the same, let me add, which unfortunately feeds and informs our so-called universities and Departments of State including the Department of Justice. Axiomatic of recent Irish academic know-how, for example, is the recognition that one can say absolutely anything about anything in Ireland with impunity. Foremost amongst these are the ‘Experts’, and there are no Experts like those who talk about the Criminal Justice System (CJS) in Ireland. Do you not agree?
Sean: I know that long before the Morris Tribunal the Garda Siochana had to be made the whipping boys for all and sundry, especially the experts, whether they just set up their Jesuitical shop in UCD (and TCD), attached themselves to the Department of Justice, or simply sniffed about the prisons declaring that they were somehow as foreigners more concerned than everybody else. It’s a little like trying to uphold the intellectual status of the Parish Priest. In order to take the Sagart Paroiste seriously – no matter what kind of insufferable babble he indulges in – it is easiest when everyone else is reduced collectively to the mental capacity of a flock of sheep. This principle, I suppose, applies equally to the Church’s State-experts in their rantings about criminology in general and about the Commissioner of the Garda Siochana’s Annual Report in particular. In order to make what they say credible, everyone else must be lied to repetitively. How do we know that they are experts? Because the Department of Justice, the Church’s moral secular mouthpiece, tells us so. But if you look at the track record, if we ask to consult the volumes and reports that these experts have presumably consulted, if we look for the references they individually and collectively have left us to ponder, the enormous works they have swatted over to prove their passion for criminal statistics, and the unerring analysis of their Oeuvre, what do we find? Seamus: What, indeed? The British, whose legacies we have totally disinherited, were great administrators. On the question of accountability, they were second to none. Marx even commended them on their diligence and intelligence. To this day our archives are still struggling to make their excellent records available for public scrutiny. And the least said about that effort the better. Amongst the achievements of the British was their expertise in the maintenance of creditable statistics on crime. So much of that British inheritance that remained was, up to quite recently, to be found in the scaled down version of the Garda Commissioner’s Annual Report on
Crime. And these reports, coupled with what Judicial Statistics there were dating back at least to 1863, coupled again with the various Prison Reports, and, what is a derivative of the foregoing, the Statistical Abstracts, made up for the most part our statistical knowledge of crime in Ireland. The main stay of all these reports was, of course, the Garda Commissioner’s Annual Report on Crime. These Reports had some faults that required adjustments. Some thirty years ago they were highlighted and criticised by me for some of their shortcomings, but others, anxious to take a high ground, invariably misinterpreted this criticism in its scope and nature. Unfortunately, the ESRI and thereafter every visitor to the shores of Irish penology thought it wise to repeat and amplify the criticisms amplified it unduly. The result, of course, has been that the Commissioner’s Annual report has been criticised so often and so dismissively -- particularly by those who were appointed to comprehend and improve them – that their unreliability has become a cliché. This is mostly because one or two earlier dabblers (tourists!) in the area never comprehended them in the first place. Not unusually foreigners hardly ever understood the social content of the society they are hired to study. Sean: So what did they do? Seamus: They litanised their shortcomings, borrowing for their criticism the remarks of others who preceded them. David Rottman (of the ESRI), for example, an American, who basically didn’t know his A from his E, worked tremendously hard at trying to comprehend the Commissioner’s Reports. True, as foreigner he had to learn his way around a new culture; but then everyone it seems in the business of Irish ‘ criminology’ comes from somewhere else. How the Irish expect foreigners to know more about their own history than they themselves do is one of the mysteries attaching to the quaint Irish personality through the workings of Catholicism and The Dermot Mac Murrough Syndrome. It is a bit like Fianna Fail’s hiring of Martin Mansergh to inform them of their history -the historical meaning of their own experiences of Irish life. Or the Labour Party hiring an American to tell them about Irish Arts, or the Government of the day employing a non-Gaelic-speaking Minister over the Gaelteacht. The whole idea of having a resident historian (in situ, as it were) might in some peoples’ view exacerbate rather than explain the problem of history for the Irish. The foreigners appointed to key positions in a country so small as to support only ONE such appointment, is not the problem of foreigners (in or out of the social sciences), it is most primarily a problem the Irish have with the Irish, or rather the Catholic Irish have with the Irish. Sean: Be that as it may, you must admit that Dr Rottman, with some legal assistance, did much excellent work at compiling extra Garda Statistics and analysing them. Seamus: That is true, but unfortunately it is not the whole truth or, indeed, the truth we need in order to move matters forward or to put them in their proper perspective. For it is also true that in effect he regurgitated the police figures on Indictable Crime at the recorded and detected levels – but he never really succeeded in penetrating their content much further – not at any rate in any convincing or accountable way. That is, he could not see how or with what frequency they entered or exited the courts, or how they accounted for the sentences that people received. He never deduced the numbers and types of convictions there were, what types of sentences were handed down, what numbers was incarcerated, and, most importantly, what the annual recidivist rate was. Indeed, he never came i bfhoisceacht scread asail of a recidivist rate, or how many recidivists there were. Indeed, what was wrong with the statistics, he summarised as follows: “ The most fundamental recommendation that can be made is that a handbook be prepared stating the rules operative in counting and classifying offences for all the categories listed in the Report on Crime…To summarise, the crime statistics should be placed on a sound bookkeeping basis”. While everyone agreed with this complaint -- indeed, everyone before Dr Rottman had made it -- it was at the level of this old complaint that the improvement of the existing Garda statistics was conceived. No one imagined that it was any reason to abolish the Commissioner’s Annual Report or the method of collecting the statistics as a whole or that the exercise was – or had been for years – useless. Now, I am not saying that the Department of Justice hasn’t got its own agenda of reasons to abolish the collection of these statistics, but in so far as their advisers have stated, there is no valid reason for so doing. Further, no one wished to leave us in a no-man’s-land regarding the collection of
criminal statistics. Unfortunately, however, when Dr Rottman felt that there was no platform in Ireland for resisting what he said, he went further. He felt that: “The most serious limitation (in the available statistics) is the inability to take those individuals arrested and follow through what happened to them: how many were proceeded against, what pleas were entered, how many were convicted, and what manner of sentence they received. It should also be possible to establish where and how individuals were removed from the criminal justice process, as well as the characteristics of the persons involved.” It was most unfortunate that Rottman could not read the Annual Reports adequately, for the very things he thought were not present in the figures were. With a little application, he could have found his way to mapping out the whole ensemble and then, if he had followed anything of the history of collecting and appraising criminal statistics in Ireland, he could have made his mark by improving upon what was in large measure under his nose. Indeed, as is amply demonstrated hereafter, the total figure for Indictable Crimes in 1975 from the time that they are recorded to the sentences that are handed down in respect of them are perfectly amenable, not just in respect of total crime, but in respect of each category of crime or group of crimes. The interpretation and description of this event is evidenced in Figure 2.1 and Model ‘75 delineated anon.
Sean: I take the point that Dr. Rottman’s work and, indeed, most of that which followed, as well as most of what emanates from the ESRI is especially a-historical. In a way economic studies, left wing-studies and biblical studies al have the same abstract methodology: and every one is looking for something to pour into a computer, as if the computer will then deliver Irish reality back to them. I don’t suppose that Immanuel Kant – no more than Darwin -- will ever become relevant to the Irish mind. What a pity! Seamus: You mean that the computer is a substitute for the analytic truths Kant championed over the synthetic truths of mathematical and other forms of abstraction? Sean: Yes; but that kind of reasoning nowhere applies here. The illusions of synthetic logic march hand in hand with the abstractions of Christianity, and march more militantly in Catholicism. In any event selfdiscourse based on experience is anathema to the Irish, since when they actually imagine that foreigners (people outside their culture – The Dermot MacMurrough Syndrome – knows more about them than they do!) can experience life for them, or ,failing that, can know of their experiences better than they do. Could anything be more absurd! Is this the direct consequence of Catholic teaching? Seamus: In the Irish context, yes. We can see this quite clearly by examining what happens in Irish Criminology; for characteristic of what happens, apart from the intractability of Irish obscurantism, is the unfortunate manner in which successive ‘ criminologists’ have repeated Rottman’s criticisms. Blindly and without as much as acknowledging the good work that he did –for apart from the criticisms voiced above, he worked hard, diligently and ingeniously on Irish statistics -- they have unfortunately and uncritically followed the same dismissive line without as much as demonstrating a ‘tourist’s’ status in the area. How a whole society, fond of regarding itself as‘ modern’, can be duped into believing the most Talibanian and nonsensical things about itself is a matter for comedy. That it encroaches upon the serious matter of the social sciences can only be left to others – possibly foreigners – to judge. Maybe then, they, too, can come to appreciate the Joycean strategy of fleeing a culture so ignoble and paralysed to any native improvement. Rottman’s mistake has been repeated ad nauseum by the most questionable of Experts, and the Irish interest is yet again the slave to obscurantism. As is demonstrated anon, the whole system of criminal justice could be worked out from the Garda Commissioner’s Annual Report, but the experts felt safer if they could have a new start, one without a cumbersome history – a tabula rasa, as it were, where they could perhaps shine, a stratagem that would protect their expertise, lest their short-comings be discovered by the more critical eye. The result is that we have a system called the PULSE and no one – new experts included -- can hope to work any useful information at all from what is euphemistically called the Irish Criminal Statistics. The experts have managed to create the worst of all possible scientific worlds – the world of God, wherein nothing is accounted for, nothing is known about the Criminal Justice System and all are dependent upon the Minister
for Justice, (etc) to give them this and that piece of unquestioned and unquestionable information about the general conditions of things criminal when and in what manner he pleases.
Sean: And what about the Expert Group on Crime Statistics? Seamus: These are the most recent body to misunderstand Irish criminal statistics if you read their report, you will observe that after much magic they ‘pass the buck’ forward yet again. In the ‘70s there was the expectation that the ESRI knew something about criminology, then there were various groups from UCD who were going to do the bold thing and unravel the mess. Then there was a National Crime Forum and a National Crime Council, then there was much-to-do about prisoners’ rights and psychology, and then the Jesuits wanted a whole Institute of Criminology all to themselves in UCD, which would carry out ‘independent research’ and teach us how to count crime, at an estimated start-up cost of £300,000. They used pounds back in 1998 and no one knew better the pre-buggery value of a Roman-pound than the Opus-acculturated Jesuits. The last effort in this whole sorry incomprehensible saga devolved then upon Mr McDowell’s Expert Group On Crime Statistics. Having pointed up the biblical defects in collecting crime statistics the Expert Group passed the book on to another unborn child called the CCSU. If you held your breadth in the expectation that the Expert Group was going to say anything original, you would be sadly disappointed. Among its telling (and most intelligent) observations is the one that recommends (Surprise! Surprise!) -2.1 …the establishment of a Central Crime Statistics Unit (CCSU) within the Department of Justice, Equality and Law Reform. This Unit should have professional independence and should compile and publish enhanced crime statistics based mainly on data derived from An Garda Síochána PULSE system. Indeed, so confident was the Minister in the group, that from the outset he disturbingly harnessed their concerns to the PULSE only. This means that in one or two fell swoops, all British and Irish history – all the sad efforts of the last eighty years by Garda Commissioners (who, obviously weren’t ‘Expert’-enough for the Department) were set at nought. Yet again Ireland, by Ministerial Command, and by a very questionable testimony of virgin experts, has decided quite biblically that Ireland has had no history before the year 2000 and no expertise in the gathering and analysis of criminal statistics. (That one might expect criticism or opposition of a party political type would be to misunderstand the nature of religion in Ireland; for none is conceived, and if conceived, can only be conceived towards an end that is perfectly in accord with the theatre of the RC church’s Republic.) In the meantime – which, unfortunately, is where most of us live most of our lives – one doesn’t dare ask the Department of Justice (etc.) or the Department’s Expert Group for anything in the nature of ‘ a conviction rate’ for any crime or court in the land, a proof rate, a recidivist rate, a rape rate, a juvenile female participation rate, or for any account beyond the ice-cream superficiality of the number of indictable crimes Recorded and Detected -- figures whose reproduction the Institute of Jesuitical Criminology in UCD have turned into a chalk-like and meaningless industry.
Seamus: Because of the significance of getting these things right, the following Webpage deals in a substantial way with the essential issues affecting the CJS. As will be appreciated the CJS has many features, some of which have never been fully realised. To obviate the issues involved this Webpage is divided quite purposefully into three essential parts. Sean: So how should we best proceed to understand and – if possible – eliminate these deficiencies in the Criminal Justice System. Seamus: Since we can’t change a culture we can expect to eliminate deficiencies arising from that source. What we can do, however, is lay our stall. We have already demonstrated what is wrong. Let us now show what is correct and what is possible. We can do this in three Parts, all of which are available in 7. Crimes and Punishment in Twentieth Century Ireland Volume 2: The Criminal Justice System (CJS), 1950-1980 For our present purposes Part One the’ hard work’ part attempts to delineate both the manner in which the component parts of the CJS ought to be initially and critically examined before they can be grouped together as part of a system of criminal justice. Their individual conspectus precedes their collective analysis. The problems involved in delineating the CJS’s individual agencies are fraught with difficulties. But once these difficulties are overcome, the agencies can be described
amassed together in a way that allows us to investigate their interdependability. Part Two coincides with what it is we do when the full schema is mapped out quantitatively and to our satisfaction; for then and only then can we enter the second phase – which is to chose its more constant elements, describe them, and for the first time examine their history with meaningful relevance to each other and to the whole system. We should soon come to realise that this is what the whole exercise has been about; for now, and only now, can we come to analyse the CJS properly, as a system, and over time, with visible overall repercussions which transform all and any of its individual parts. But the story of the Criminal Justice System is still not finished. Part Three calls for an imaginative interpretation of what uses the CJS can be put, not just in Ireland but universally wherever Parliamentary Democracy operates. To recap therefore: Part One begins at first by looking at some critical and preliminary concerns arising out of The Commissioner’s Annual Report On Crime. These include reference to (7.a.) Parliament, (7.b.) The Police, (7.c.) The Courts, (7.d.) Probation, and (7.e.) Prisons Part Two (1950-80) depicts by way of Figure 2.1 a simplified picture of the main indices comprising the CJS for the years 1950 – 1980. This overall figure demonstrating the distributive flows of Indictable crimes over the period is analysed. A synopsis of Parts One and Two were first published in two articles published in Aimsir Nua in Irish, so that their substance might readily be available to those who claimed to be interested in the integrity of Irish criminal accountability. Nothing could have been more conceited. The only people who read it was Opus Dei and they had no concern for such tings beyond their interest in those who would criticise holy church. Only one of these articles is reproduced at the end of this Webpage (As Gaeilge). The Third or ‘’Reflective’ Part is the most creative part in that it presupposes the existence of Part One and Part Two and builds upon their necessary elements and looking to interpolate their real, democratic and universal possibilities. The computer and econometric possibilities of Model ’75 envisages a projectory for criminal justice that has never been conceived except incipiently. Nevertheless, one hopes that the project is self-explanatory and that in contemplating it, one recognises at last the quite backward and artificial objections the Irish invariably raise to an enterprise so secular, so old and so paralysed. This following text-book on the Criminal Justice System is aimed at correcting most of the above short-comings and criticisms of the Irish CJS and is available at: http://www.upublish.com/book.php?method=ISBN&book=1581125496 7. Crimes and Punishment in Twentieth Century Ireland Volume 2: The Criminal Justice System (CJS), 1950-1980
Lecture 1: “A Pattern Of Our Own Designing” Lecture 2: Criminal Statistics 1 29 61 90 116 147 188
Lecture 3: The Garda Siochana
Lecture 4: The Courts and the CJS – Section A Lecture 5: The Courts and the CJS – Section B Lecture 6: The Disposal System
Lecture 7: Towards A Political Economy Of Irish Crime, 1950 - 1980
Lecture 8: Epilogue Bibliography Index
228 238 248
b. The Police (or An Garda Siochana) Police powers are quite extraordinary. Yet the traditional view is that the policeman is merely another citizen in uniform. This lecture, in the main, attempts to describe the organised structure and orientation of the Garda Siochana. In so doing, it recognises three levels of police reality. One concerns the garda as an individual person. This is the traditional view and interest in his powers tends invariably to dominate any delineation of the status in society. But there is also the Garda Siochana, as a structured, powerful organisation. In both these cases we shall argue that the garda, whether individually or collectively, defies the simple “citizen-equation”. Then there is the locus of the police within the CJS, where its influence is primary, not just – as we have already
seen – to provide the basic figures for wrongdoing in our society – and upon which all our discourse depends – but also to influence each part and totality of the whole system of criminal justice. While these three aspects or perspectives on the gardai cannot be addressed at once, this lecture attempts to focus attention on the primacy of the latter aspect, while supporting the notion that each member of the force enjoys and exercises privileged legal rights, whether compared with either the Irish citizen or the British constable.Moreover, while we have committed ourselves to the business of configuring the CJS as a whole for one year (1975) (see centrefold pages) and to a description of its respective parts over the period 1950-80 period, it should be reiterated that since 1980 the Garda Siochana, as with all the other institutions that comprise the CJS, has changed and been changed radically. It is because these changes have been so institutionally uncompromising that this work -- particularly since the late ‘70s -- is divided into three separate volumes. Each set of lectures tries to address three different time spans, three different realities; and the police, as an institution, like that of the courts, the prisons and the probation service, has changed such at each conjuncture that they are hardly recognisable as emanating from one chronological continuum. In dealing with the 1950-80 period, therefore, there is the tendency to think that it is hermetically sealed from its predecessor as well as its successor. This, of course, cannot be the case, but to understand our yesteryears it is necessary that we revisit those arguments and limitations, which consumed and concerned us then.In 1967 , the British Parliament decided that the categorisation of crimes into Felonies, Misdemeanours and minor offences was more trouble than it was worth. They brought in legislation regulating crimes in terms of arrestable offences., that is, in terms both of police powers and the citizen’s liberties. This seemed like a simple and sensible thing to do. Indeed, every sensible person gave a great sigh of evolutionary relief when it happened. In ??? the Dail followed suit.Prior to this event, when a Garda or constable made an arrest without a warrant, he could justify it on the grounds that he had “reasonable cause for suspecting that the accused had committed a felony “(10). A private citizen may exercise the same right, but he must further prove that a felony had in fact been committed. And even if the the force (however the force may have been exonerated), the picture is not as healthy as one might wish.Part 2: The Structure and Development of the Garda Siochana In describing the constitutional status of the Garda Siochana an attempt was made to democrat some of the basic relationships around which the force organises itself. Before going on to examine the functions of the force as investigators, prosecutors, etc., it is desirable that something be said of their strength and structure. Over whom has the Commissioner general direction and control?In 1924 it was enacted that “The Garda Siochana shall be distributed and stationed in such manner as the Minister (for Justice) shall direct”. (54) A year later the Garda Commissioner’s control of the force was outlined and a Garda strength which was not to exceed 7,222 officers and men was authorised. (55)Between 1925 and 1951 the actual strength of the force fluctuated mildly upwards but never reached the 7,500 mark even though the government had periodically approved figures in excess of this number. In the fifties and sixties (e.g. 1955/59/61 and ’64) Garda strength fluctuated downwards and stabilised at 6,500 until the early seventies when a marked increase took place. Between 1971 and 1978 manpower rose by 39% from 6,612 officers and men to 9,181 and the distribution of Districts Stations and men as between the DMA and the rest of the country changed with the geographical extension of the hitherto comprising the DMA. (56) The Twentieth Dail (1973 – ’77) legislated heavily in favour of greater police power and increased manpower. The estimated cost of policing the Republic rose from £22,500,000m. in 1973 to £52,000,000m. in 1975. From the twenty first to the twenty fourth Dail (1977 – ’82) successive governments have continued to strengthen the Gardai, but whether the object here was to ‘fight crime’ or, partially at any rate, to reduce unemployment and boost aggregate demand is difficult to say. Dublin versus The Rest One thing is apparent, indictable crime within the DMA has made3 the metropolitan Gardai more crime-intensive than elsewhere. The effects of the increase in crime on the scale and organisation of the DMA Gardai are noteworthy. In 1951 21% of the Garda Siochana recorded 62% of indictable crime in the Republic, and, with a comparatively small supervisory staff, detected 44% of the nation’s indictable crime, and processed almost half of the nation’s serious crime through the courts (See Table 3.1). Since 1979 these proportions were reduced somewhat. Nevertheless, the Gardai in the DMA, since 1979, with proportionately the same supervisory staff as the rest of the country, recorded over half of national indictable crime, and detected half of the national number of detections.Moreover, since 1979 the number of detections made in the DMA increasingly exceeds
the number of crimes processed nationally by the courts. private citizen was legally justified at the arrest stage, on what grounds can he hold the suspect in custody?He cannot, observed Lord Denning, take the suspect “around the town seeking evidence against him (11)”. On the contrary, a private person must hand the suspect over to the constable as soon as he reasonably can. The constable on the other hand, can investigate the matter and support his suspicion by seeking further evidence (12); he can “… Take the person suspected to his (the suspect’s) own house to see whether any of the stolen property is there; else it may be removed and valuable evidence lost. He can take the person suspected to the place where he said that he was working, for there he may find persons to confirm or refute his alibi. The constable can put the suspect up on an identification parade to see if he is picked out of the witnesses”. These are obvious differences between the powers of the citizen and the policeman. In the Irish context the Oireachtas, by commission and omission, has a tendency to exaggerate this difference. By commission the Oireachtas enacts new crimes (e.g. kidnapping) (14), it gives the police (sometimes at Inspector and Superintendent level) increased powers (15) (e.g. under the Emergency Powers Legislation (16)). Parliament’s omission to review and codify older borrowed British law is very pertinently to be found in the current use of the concept ‘felony’ (17) (abolished in the U.K. (18) ), the Larceny Acts (updated in the U.K. 919) ), the law relating to juvenile offenders (reviewed several times in the U.K. (20) 0, and a host of ancillary areas that are too numerous to mention.On this reasoning, therefore, it would appear that there are quite definite differences between the citizen and the policeman, and more so between the citizen and the policeman, and more so between the citizen and a member of the Garda Siochana. Moreover, within the force Gardai in the DMA (Dublin Metropolitan Area) enjoy wider powers under the Dublin Metropolitan Act, 1942, than their counterparts outside Dublin, and, as we shall see, perform on average more criminal functions than their counterparts outside the DMA.As to the second Lord Devlin’s propositions, “that the prosecution of crime is a local affair”, the Royal Commission claimed that there is no master and servant relationship between the crown and the constable, or between the Chief Constable and the local police authority (20). This denial has led the courts “to assert the independent character of the office (22)” – a line of argument which carries with it the notion that the constable exercises ‘original’ rather than ‘delegated’ authority (23). As Professor Marshall has observed, “The step from original to discretionary powers is by no means a logically necessary one, and yet the transition has been easily made”. (24)It would seem that the more we assert the ideal independence of the police (not unlike that of the judiciary at an earlier stage of legal development), the more we must logically incline toward the view that they must enforce all laws and are only answerable to the law. (25) Conversely, the more we retire from the ideal or abstract position and assert their accountability, say to X, the more X becomes a usurper of executive power.By contrast the ‘X-factor’, as we shall see, is quite different in the Republic than it is in England and Wales. In England and Wales, this executive power is balanced by a distribution of nominal and real checks (26) between the Home Secretary, the Police Authorities, and the Chief Constables. One of the most direct assertions of this balance of power was to be found I n the Police Act, 1964, about which Professor Marshall wrote: “… It makes plain (what was always the case) that police forces are under the direction and control of their Chief Officers. But it is silent on the precise extent to which the Chief Officer himself is under the superintendence of the Police Authority. This has to be collected from a number of other piece-meal provisions made in the Act. The net effect of them has probably been to strengthen the hands both of the Home Officer and of the Chief Constable at the expense of the local authorities” (27). But what of the Garda Siochana? How does the Garda’s constitutional status differ, if at all, from the English constable?There are at least four central differences between England and Wales and the Republic with respect to their Police:They differ in size and scale; (28) Unlike the Chief Constable, the Garda Commissioner’s general direction and control of the force and his independence is circumscribed by statutory provisions which allow him to be removed
at any time (whether he is the servant of the executive or not). The Police in England and Wales come under local government (for the most part); the Garda Siochana are entirely centralised and nationally unified. In the Republic there is a lack of any real checks and balances similar to those obtaining in England and Wales; It could well be argued that all these points are merely different forms of the same theme. One could argue, for example, that Ireland is small and the U.K. is large, and by virtue of size and scale, centralisation is essential to the Republic’s requirements. Consequently, neither the Commissioner nor the Gardai should be independent of executive power, not should local government be involved in the business of policing. Nevertheless, despite the tremendous and rather unique character of the Police in Irish history, their role has not merited any attention in either the 1922 or the 1937 constitution. Our ‘written’ constitution, therefore, does not help us explicitly to demarcate the Garda Siochana’s powers in the jurisprudential scheme of things. And while legal logic permits of a U.K./Irish comparison with regard to their constitutional status, a brief historical review might serve us better to appreciate the real differences, which such legal logic disguises. Historical ReviewIn the eighteenth century the police were indeed the object of constitutional concern (29). But this concern was not formulated into any explicit doctrine. The notion of the ‘separation of powers’ (30), for example, which supported, inter alia, the independence of the judiciary (and which was made explicit in the Irish Constitution (31)) did not concern itself directly with police functions, though the police in effect kept the King’s peace.Traditionally, the police came under the aegis of the Justice of Peace, who, at a local level, served the interests of central government (32); and with the industrial revolution and the concomitant increase in the number of capital statutes (33) enacted to protect the property of the new seventeenth and eighteenth century bourgeois formation, the reorganisation of the old Watch and Ward system into a modern force appeared to be possible and necessary.This reformulation was resisted in London and accomplished in Dublin in 1786. A series of police acts followed in Ireland which tended to wean the conditional power of the police from the J.P.’s and simultaneously vest it in central government (34). In any event, the localised nature of prosecutions, though somewhat remaining with the Police Authorities in England, even after the nineteenth century by central government (35).In effect the police in general retained a sort of quasi-judicial or executive residue of power. This discretion or power may have come from an earlier theory of the Monarchy and the Divine Right of Kings, whose peace in the temporal world the constable had the practical obligation of keeping. Nowhere is this residual power or discretion more apparent than when the policeman exercises his power to arrest another citizen, about which Lord Devlin has made the following statement: “It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised (36). It means that there is an executive discretion” Despite the separation of powers doctrine, it could be argued that the police bridge both quasijudicial and executive power, and this, to some extent, would help to explain the shifting principles regarding arrest, search, seizure, the non-legal status of the Judges Rules, etc. It has been suggested by Marshall that “If it is accepted that law enforcement may have aspects which place it closer to the executive than the judicial function, it cannot in its entirety demand the isolation and immunity accorded to purely judicial decisions”. (37)In Ireland the relationship between the police and the executive was no different in kind to the relationship between parliament and people. In 1962, O Dalaigh C.J. maintained that the tripartite separation of governmental power in the constitution was not “…unconnected with our previous experience under an alien government whose parliament was omnipotent and in whose executive lay wide reserves of prerogative power (38)”.More pertinently the Conroy Commission noted: “For historical reasons the development in Ireland before 1922 of a Police Force differed from the process in England. In Ireland at all times the emphasis was on the maintenance of the Union with England. Unified control of the Police facilitated this and the legislature was not troubled by the argument so common in Britain
that central control placed too much power in the hand of the Government”. (37) Under the British administration the police were divided into two forces, the Dublin Metropolitan Police, a civil police force, and the Royal Irish Constabulary, a semimilitary force. In 1922, when the organising committee under General Richard Mulcahy (Minister for Defence) prepared a report advising the then government to set up a new police force outside the DMA, the committee advised that “This force should not be centrally controlled and responsible to the government”. (40)What did the Irish then do? They centralised the police like never before. Following the Police Amalgamation Act, 1925, the Dublin Metropolitan Police joined the Civic Guard to become one national force, namely, the Garda Siochana, as it exists today.Commissioners are generally nice fellows. They listen a lot to psychologists, who say that before we can love others, we must love ourselves first. Their men do not always love commissioners – see the evidence of the GRA against Mr. Edmund Garvey (????) But when Commissioners win the favour of their men, they are allowed to be photograph for the Garda Review. On one occasion the Garda Commissioner’s photograph appeared no less than thirty times in the one Review (See Garda Review of the ??? )While the ‘general direction and control’ of the force invested in the Commissioner, (41) the regulations as t its ‘internal management’ comes under ministerial responsibility. (42) Included also under ministerial responsibility is the Minister’s right to appoint all officers not above the rank of Chief Superintendent, to dismiss, promote or degrade ranks; and the Commissioner can do the same under regulations made by the Executive. (43)Though many of the broad regulatory rights given to the Minister (subject to the approval of the government) may be curtailed by other constitutional rights arising out of the constitution itself, e.g. the right to natural and constitutional justice, there is very little argument in the Republic over who controls what.In substance the issue in the Republic as to how the Commissioner can exercise ‘general direction and control’ simultaneously with the government’s right to regulate ‘internal management’ is almost impossible to differentiate. What, for example, can the Commissioner do that the Minister or the Government cannot undo? This distinction between the Commissioner and the Minister is similar to the English dilemma with this important rider; the organisational structure of power between the Police Authorities, Chief Constables, local government and central government, are more differentiated in England.Given our ‘written’ constitution, is the Garda Commissioner himself more independent of the executive than the Chief Constable? And given the centralised and unified police power under his ‘general direction and control’, is the Garda Commissioner, unlike the Chief Constable, the servant of the Government?Section 6 sub-section 2 of the Police Forces Amalgamation Act 1925 provides that: “…The Commissioner of the amalgamated force shall from time to time be appointed by the Executive Council, and every Commissioner … may at any time be removed by the Executive Council”. It is within this primary constraint that the Garda Commissioner has ‘general direction and control’ of the national police force, a constraint which has proven to be more active than passive.It is apparent from this section that hegemony over the police lies squarely at the feet of the executive arm of government. When Commissioner Eoin O’Duffy was dismissed in 1933, the Oireachtas brought the Garda Siochana (Pensions) Act into force. The Act was entitled “An Act to provide for the granting of Pensions to Commissioners of the Garda Siochana who have or shall be removed from office otherwise than for incapacity”. More recently two other Garda Commissioners vacated their office under controversial circumstances. Commissioner Edmund Garvey was removed and Commissioner Patrick McLaughlin resigned. Garvey V IrelandIn January 1978 Commissioner Edmund Garvey was removed from office by the then government, by which time, under section 4 of the Constitution (Consequential) Provisions Act 1961, the ‘Executive Council’ has become the Government. On the face of it, Edmund Garvey had little option, given the ‘sudden and brusque’ manner of his purported dismissal, but to contest his removal in the courts. And when the pleadings against Ireland, the Government and the Attorney General were closed, two preliminary issues arose for judicial determination:Does the Police Forces (Amalgamation) Act 1925 empower the Government of Ireland to terminate the office of the Commissioner of the Garda Siochana at any time:without prior notice without giving reasons
Without giving the holder of the office an opportunity of making representations thereto? Are the provisions of Section 6 sub-section (2) of the Police Forces (Amalgamation) Act 1925 inconsistent with the Constitution of Ireland? (25)In the High Court Mr. Justice McWilliam answered ‘No’ to question 1; and having done so was further of the view that no question of an inconsistency with the Constitution arose. “These findings”, said Kenny J., “meant that the Plaintiff had been wrongfully removed from the office which he held and was at least entitled to damages. The Defendants have now appealed to this court (the Supreme Court) on the ground that the trial Judge’s answer to the first issue was wrong”. (46)In any event it was agreed by all that the Government could dismiss the Commissioner, nor was it ever in issue. It was further agreed that the Commissioner had been denied natural justice. But it was the State’s case that the Commissioner was not entitled to natural justice. According to the State the Commissioner was appointed at the pleasure of the Government and for reasons of State security and public policy, the Government not only had the right but the duty to dismiss him without giving reasons.The Supreme Court delivered a four-to-one majority judgement in favour of Garvey, the dissenting judgement of Kenny J. favouring the Government’s right to dismiss him summarily. Two closely connected matters emerge from the court’s reasoning. One is the departure from British constitution to which the court is bound, and the other is the status of the Garda Commissioner. Constitutional TheoryIn the absence of any ‘modern’ decision bearing directly on the problem as he saw it, Henchy J. was loath to revert to a consideration of the older judicial authorities on the notion of Royal Pleasure (“… for in the main they exemplify or are derived from the concept in British Constitutional theory…”) (47). Consequently, the Irish Constitution became the ‘starting point’ for the inquiry into the alleged unfair dismissal; and the Irish Constitution’s guarantees had to be upheld. Griffin J. also made the traditional/modern distinction and found it “difficult to see how in modern times public policy or executive necessity requires that tenure of an office held at pleasure should be capable of being determined without giving the office holder the right to be heard on his own behalf”. (48) And O’Higgins C.J., in reciting that pre- 1937 statutes continue in force to the extent to which they are not inconsistent with the Constitution added that they were also ‘subject’ to the Constitution. All three judges were emphatic about vindicating the personal guarantee in the Constitution.What makes Kenny J.’s judgement out from those of his fellow Judges is the absence of any deliberation on the constitutional implications of following traditional authority. Indeed, Mr. Justice Kenny’s judgement does not directly countenance a traditional /modern dichotomy at all. On the contrary, he preferred to support his view by calling on no less than “five Irish decisions extending from 1846 to 1918” which he felt were “coercive on the question at issue in this case”. (49)He further traced the history of the declaratory action to support the view that the Commissioner, as holder of an office at will or pleasure, could not successfully sue Ireland or the Government in respect of his removal. Moreover, in Mr. Justice Kenny’s view, the Court could not rule as it has done, unless it ignored what he regarded as ‘the plain meaning’ of S.6(2) and overruled the five Irish cases mentioned in his judgement. On this view the Commissioner was an officeholder, and in view of the terms of S.6(2), he was under the circumstances dismissible at ‘any time’.The Commissioner’s relationship with the Government If the real factor determining the Supreme Court’s (majority) decision was located within the traditional/modern axis of constitutional theory, there was also an 23 intermediate – if sometimes chimerical – distinction made concerning the relationship between the Government and the Commissioner.Since the State argued that the Commissioner held office at the pleasure of the Government and that, consequently, the principles of natural justice ought mot to apply to his dismissal, it was s only reasonable to expect that much should be made of the phraseology of S.6(2) and other comparable statutes providing for appointments at the ‘will’ or ‘pleasure’ of the Government. On this whole point, however, there is much variation.Chief Justice O’Higgins reasoned that the relationship was neither one where master and servant obtained nor one in which the Commissioner was appointed merely at the pleasure of the Government. On the contrary, S.6(2) created a ‘statutory office’ the ultimate consequence of which was that the rules of natural justice did apply to the Commissioner’s removal.Griffin J., on the other hand, held that the Commissioner was the holder of an officer at pleasure, notwithstanding the fact that the word ‘pleasure’ was not used in S.6(2). For Mr. Justice Henchy “the problem in this case does not arise in the interpretation of the words” in S.6(2). Indeed there was no necessity to consider whether the relationship between Government and Commissioner was one of master and servant or otherwise. For Henchy J., as for O’Higgins C.J. and Griffin J., the matter was eventually one of fair procedures.In the main, however, Mr. Justice Kenny relied on the instrument creating the Commissioner’s office and the fact that there was no
safeguarding provision of any kind, which the Commissioner could call in aid of his dismissal. Neither could the Commissioner call in aid the principles of natural justice.In contrast to Mr. Justice Kenny’s underplay of any post-1937 constitutional factors and his heavy reliance on precedent and the limits of the creating instrument, is Mr. Justice Henchy’s constitutional emphasis. Mr. Justice Henchy conceived the law “to be that when a person holds a whole time pensionable office (whether under statute, statutory instrument, charter, deed or trust, or otherwise) from which he may be removed at any time, the power of removal may not be exercised without first according him natural justice…” (50)In conclusion, therefore, the Supreme Court held that the Government was not empowered to terminate the office of the Garda Commissioner without prior notice, etc. In other words, Government has a wide discretion to appoint and dismiss the Commissioner if they abide by just procedures as to the manner in which they do it. Moreover, the question of the master and servant relationship is somewhat academic if the removal is done in a manner that is in accord with natural justice. On this point, there are two riders, one by Griffin J. and the other by Henchy J., that are of some consequence. According to Mr. Justice Griffin:“The importance of the distinction between invalidating a dismissal on substantive rather than procedural grounds, is that whilst in the case of a substantive ground there cannot be a second dismissal based on the same grounds, in the latter case a second dismissal is valid provided that the correct procedure is adopted”. (51) According to Mr. Justice Henchy, while a reason by virtue of natural justice must be given for the proposed dismissal, “that reason need not always be a specific or particularised reason. It will usually be sufficient if it indicates in general terms the ground on which the Government propose to exercise their dismissal (e.g. because of ill-health, to improve the efficiency of the Force, because the Commissioner has lost the confidence of the Government); but if the reason is specific misconduct, the Commissioner should be accorded an opportunity of dealing adequately with the complaint”. (52) Summary Thus far we have argued that the theory equating the citizen with the policeman is anachronistic and unreal when appealing to their respective individual powers of arrest. The growth and development of penal statutes and of the organisation of the police has exacerbated this equation out of all proportion both in England and Wales and in the Republic.Moreover, when we compare some characteristics of the police in England and Wales with that of the Garda Siochana, we have argued that the Gardai are (a) organised by central government, (b) nationally unified, (c) regulated by statute law, (d) lacking in comparatively real counterbalances or internal intermediary checks between it and executive control, and (e) are generally directed and controlled by the Garda Commissioner who can be appointed and dismissed at any time for reasons stated if in accordance with natural justice.To say that we are a small country, and that the police-population, as well as the population in general, bears no comparison whatsoever to that obtaining in the U.K., or that for historical reasons, we have to organise things as we organise when, means something. It is by no means, however, a satisfactory explanation.The characteristics, which the organisation of the Garda Siochana exhibits, are neither good nor bad. Smallness in itself is neither good nor bad. But when we add certain other characteristics to the ones already enumerated, caution rather than complacency must be emphasised.What other characteristics? We know that the Gardai provide us with our only source of information regarding national crime up to and including their determination in court. We know that they mould public opinion, that they rarely if ever refer to the prosecutorial rate of proof over the years, and that this rate is predominantly secured in the lower courts, once known as police courts. We know that over 70% of all Irish litigation is criminal in content. We also know that Irish Government up to quite recently is dominated for long periods by one-party administration. And if we add to this the probable increase in the homogeneity of the higher ranks within the force following the removal of Commissioner Edmund Garvey, the expressed sympathies of the Garda Representative Body before this removal, (53) and the complaints of brutality against THE GARDA SIOCHANA Summary1. The Garda Siochana, individually or collectively, does not enjoy any constitutional status under the 1937 Constitution.2. In legal theory the individual Garda is regarded as a ‘common informer’. As such, he has the same legal status as any other citizen. Historically, however -- and organisationally, and for all practical purposes -- the Garda has
accumulated powers, duties and functions, which make him different to other citizens.3. As a force, the Garda Siochana is: (i). Organised by central Government, (ii). Nationally unified, (iii). Regulated by statute law, (iv). Lacking in comparative intermediary checks between it and executive control, and (v). Is generally directed and controlled by the Garda Commissioner who can be appointed and dismissed at any time for stated reasons and in accordance with natural justice. 4. Gardai serving the DMA (The Dublin Metropolitan Area) are conferred with additional powers and duties under the Dublin Metropolitan Police Act 1842. They are also more crime-intensive than their non-DMA counterparts both at the investigative and detection stages, and, of necessity, at the charge, prosecution, and evidential stages of the criminal process. 5. In contrast to the DPM (Due Process Model) of the courts, the Gardai -- it has been suggested -- operate a CCM (Crime Control Model). Those who operate a CCM adopt a managerial outlook, they have to make discrete decisions with speed and finality, and are organised on an assembly-line basis. Consistent with their organisational pressures is the necessity to make an early determination has been made that there is more evidence of guilt than of innocence, it is consistent with this model that all further activity is based on the view that the suspect is probably guilty. 6. Police decisions to invoke or not to invoke the criminal process largely determine the outer limits of law enforcement. Where the criminal process is invoked the Gardai make several low-visibility decisions throughout the continuum of the whole process. In particular, they perform the several functions of investigators, prosecutors, and (sometimes in the lower courts) advocates and witnesses. Their cumulative functions, based on the belief of guilt, are formidable. Perhaps a more instructive way of appreciating how the caseload of the Dublin Garda has changed since the fifties is to compare to the average number of crimes committed and detected per Garda, per DMA-Garda and per non DMA-Garda (See Table 3.2). In 1951 there were two indictable crimes committed per Garda in Republic and 1.2 crimes detected. This meant that the DMA Garda had, on average, to investigate almost six crimes for every one investigated on average by the non-DMA member. By 1974 the national average for crimes committed increased to 5, and, for crimes detected, it doubled to 2.4. Even though the disparity between the DMA Garda and his country colleagues narrowed between 1974 and 1981, in 1981 the metropolitan Garda had to investigate twice as many crimes as his country colleague (or 12.9 to 6.2). The DMA Garda also detected 1.4 crimes for every one detected by the non- DMA Garda. Moreover, if we look closer at the redistribution and deployment of staff concurrent with the extension of the DMA in the seventies, we find that the redistribution in favour of the DMA has been supervisory in nature (See Table 3.3). Throughout the seventies the DMA, for the first time, bears the same proportion of supervisory staff to gardai with approximately 15 districts and 43 stations to administer, as does the rest of the country with 88 districts and 657 stations to administer. I say ‘administer’ because Garda duties and functions have hitherto been concerned with other matters besides ‘fighting’ crime. They police all kinds of socio-criminal matters, e.g. traffic, schoolattendance, fire-arms licences, and, generally, by their presence, keep the peace. At one time they collected the ‘agricultural statistics’, and they generally make returns on a daily, weekly, monthly, quarterly, half-yearly and yearly basis on assorted matters. Nevertheless, up to the seventies the basic structure of the force remained the same i.e. a third of the force was stationed in the DMA where well over half the national indictable crime was committed, and two thirds of the force was stationed throughout the rest of the country where less than half the number of indictable crime was committed. This, of course, does not necessarily mean that if the force was otherwise deployed the crime rate would be lower, or, indeed, more efficiently dealt with.
In 1933 there were 110 Garda districts, comprising 809 garda stations, manned by an active force of 7,060 members, and an incidence of indictable crime, which did not exceed 10,000 per annum. In 1978 there were 103 districts, comprising 700 stations, manned by 9,182 members and there were 62,000 crimes recorded. For the purpose of compiling Table 3.3, we have taken the seven grades in the Garda Siochana - Officers at Headquarters in Dublin, Chief Superintendents, Superintendents, Inspectors, Station Sergeants (a rank which numbers 3), Sergeants and Guards 0 and for the sake of convenience, we have included any member above the rank of garda in the supervisory category. On this basis we can say that while DMA manpower has increased, particularly since the late sixties, the shift has been mainly one at the supervisory level and from the rest of the country. Apart from the Headquarter staff, which has been increased from 6 to 8 over the force’s history, the ratio of DMA Chief Superintendents to non-DMA Chiefs has increasingly changed from 1/25 (in the early years) to 4/23 (in the sixties) to 6/29 (in the early seventies) to 21/17 in 1978. In 1933 the Superintendent ration was 8 DMA/125 non-DMA members, in 1978 it was 50/92. And at Inspector level the ratio was 30/47 in 1933, and 130/71 in 1978. The ratio for sergeants also changed from 187/1,060 in 1933 (i.e. including Station Sergeants in the DMA figure) to 591/961 in 1978. Summary We can say, therefore, that the DMA Garda operates on a more crime-intensive level at both the commission and detection stages and, of necessity, at the charge, prosecution and evidential stages. These latter stages – particularly when members must make court appearances – diminish considerably DMA investigative and detecting resources. The organisational assumptions consistent with this metropolitan intensity imply, on the one hand, a more than average pressure to dispatch cases and, on the other, to secure a plea of guilty. This type of pressure is, as we shall see presently, very consistent with the notion that the police operate a Crime Control Model (CCM), i.e. that they are expected to, and do, behave in a particular manner in order to cope with their own and the public’s expectations. b. The Courts The whole of the CJS appears to be greater than the sum of its parts. It is inconceivable that the high guilty rate achieved and sustained is the outcome of accident. On the face of it, it implies that the personnel involved in the CJS have entered into defined relationships to produce the high conviction rate. What constitutes in aggregate the autonomous interests which secure this annual guilty rate are the respectively structured decisions of the actors involved. Put another way, the constantly high rate of proof obtained in the lower courts gives credence to the notion that there is an active and autonomous organisation of normative values shared by the actors comprising the CJS and which are annually reproduced and reflected in the guilty rate. Neither the Police nor the Courts could process the annual number of offences detected without the certain knowledge that of the numbers they process each year, many of them will, first of all, opt for summary trial, and, secondly, plead guilty or be found guilty in the lower courts. The converse of this argument is that if all offenders who had the option decide to be tried by way of judge and jury, and accordingly, pleaded ‘not guilty’, the financial and administrative demands made thereby would make the system difficult, if not impossible, to administer in its present form. The general contention in Packer’s theory1 is that the operative model of the police (CCM) is different in kind to the operative model of the courts (DPM). Between the crime control orientation of the police and the due process orientation of the judiciary reposes some real antagonism is formally the case, both models converge at a normative level of knowledge shared by the State’s agents. Facilitating this convergence are several procedural factors, notably, the administrative distinction made between indictable and summary offences, the formal operation of the due process model of the courts, the probable propensity of offenders to confess, and the possible summation of earlier decisions in the practice of pleabargaining and pleading guilty. This lecture is divided into three parts. These are as follows: The Administration of Indictable and Summary Offences (Part I); The Operation of the Due Process Model (DPM) (Part II); The Question of Plea-Bargaining (Part III)
PART I: The Administration of Indictable and Summary Offences There are several legal avenues by which a citizen may find himself compelled to attend court to defend himself. Ordinarily a complaint (which includes an ‘information’ or a sworn written complaint) is made to a Justice, a Peace Commissioner or a Justice’s Clerk, concerning an alleged offence. Following such a complaint, a warrant, or, more usually, a summons may issue. Generally speaking any person may be a complainant. In practice members of the Garda Siochana prosecute as members of the public capable of giving information in respect of the commission of an offence.2 In particular cases a warrant for the arrest of a defendant may be requested by a Justice or a Peace Commissioner – in which case the complaint is made by way of information, i.e. on oath and in writing. Also, warrants may issue from the courts or, indeed, from certain supervisory ranks of the Garda Siochana statutorily authorised to do so, directing searches and arrests and evidential seizures where suspects are involved.3 Besides the issue of summonses and warrants the Gardai (or, on rare occasions, other citizens) may lawfully arrest persons found committing certain offences or reasonably suspected of committing them. Since the “making of a complaint or the laying of an information forms the basis of a Justice’s jurisdiction in summary proceedings 4”, a Justice cannot enter on a case until such a complaint being made, that bridges the CCM and DPM. It is one of the most controversial areas, from a legal standpoint, in the CJS. Ordinarily, the Gardai on arresting a citizen are obliged, inter alia, to charge and, under certain conditions, caution suspects. But charging a suspect on a ‘charge sheet’ at a Garda station does not of itself constitute a complaint or an information because, as yet, it has not been made before a Justice, a Peace Commissioner or a Clerk. The duration, therefore, between the time of arrest and the time the suspect is brought before a Justice is of vital importance. He may make incriminating statements or a confession. Once the suspect is brought to court the process of the DPM begins. What happens within the Court System largely depends upon the type of offence with which he is charged. It is this basic distinction that has historically divided the District Court jurisdiction from that of the higher courts. The written Constitution of 1937 upholds this distinction in theory, but, in practice, as we have already noted, the District Court not only deals with all non-indictable offences but with circa. 90% of indictable one also. Lady Wooton, a British criminologist, has described this distinction as “legal and arbitrary – a monument to British tradition or to historical accident, rather than a reasonable device for distinguishing ‘real’ crime from technical or minor offences”. 5 The remaining 10% of indictable offences are spread throughout a very wide tapestry of jurisdictions. Before returning to this basic distinction between ‘indictable’ and ‘minor or summary’ offences, it is advisable to enquire very briefly into the court system. There are seven basic functions which the District Court discharges with respect to criminal matters: It deals with all non-indictable offences; It deals with all indictable offences scheduled in the Criminal Justice Act 1951 if, “(i) the court is of opinion that the facts proved or alleged constitute a minor offence fit to be so tried, and (ii) the accused, on being informed by the Court of his right to be tried with a jury, does not object to being tried summarily”. 6 These scheduled offences include most offences of larceny and, therefore, most of the indictable offences annually recorded and detected by the gardai. In some cases the consent of the D.P.P. is required, e.g. where the property involved exceeds £200. It deals with all indictable offences (including scheduled offences but excluding some crimes like murder, treason, piracy, genocide and war crimes) if the accused wishes to plead guilty, if the court is satisfied that he and if the DPP consents. If the accused signs a plea of guilty the Court may send the accused forward for a sentence in excess of the District Court’s jurisdiction, where the accused has the right to change his plea. It sits as a Children’s Court and deals with the vast preponderance of offences committed by children and young persons under the age of 16.
Where the accused does not plead guilty and the case is not tried summarily, The Justice conducts a ‘preliminary examination’. He then ordinarily decides to send the accused forward for trial by judge and jury (to either the Circuit Court or the Central Criminal Court) or by three adjudicators (to the Special Criminal Court). The Special Criminal Court, which is governed by Part V of the Offences Against the State Act, 1939, became effective by Government proclamation, made in May 1972, to the effect that the ordinary courts were inadequate within the meaning of the Constitution. The Court of Criminal Appeal, comprising three judges, one Supreme and two High Court judges, can hear appeals by way of transcript evidence, and fresh evidence in exceptional cases, from the Circuit Court, the Central Criminal Court and the Special Criminal Court. If the Justice does not decide to send the accused forward for trial as outlined above he may order the accused to be discharged or, indeed, he may find that the evidence discloses some other offence or offences other than those with which the accused is charged. In any event, whether the Justice sends the accused forward or not, he shall cause the accused to be charged with the offence or offences so disclosed, and if a summary offence only is disclosed, and the DPP consents, he may deal with the case accordingly. Where the accused is either found guilty or admits guilt, the District Court may send the accused forward for sentence. It deals with the matter of granting or refusing a remanded person bail. Within the Constitutional and legal structure, therefore, the District Court acts as a clearing house for most of the other courts in the CJS. The High and Supreme Courts are of the utmost importance, particularly in matters concerning law, bail, the procedure of the lower courts, cases states, appeals, state-side procedures, and the general policy of the law at both reviewing and creative levels. Nevertheless, the District Courts annually hear 90% of all indictable offences, and it is in the light of this fact, that we must look closer at the distinction between ‘indictable’ and minor indictable or ‘summary’ offences. Indictable and Summary Offences The historical description of indictable and summary offences necessarily incorporates two fundamental areas of theoretical controversy, namely, the classification of crimes,7 and the connection between law and morals. 8 There are a selection of ways in which offences have been traditionally and legally described (See Table 4.1, number 5 being a more recent British addition). Table 4.1 Offences Description by: 1. Source 2. Procedure 3. Punishment 4. Administration Indictable Common Law Jury Trial Felony Serious Summary_ Statute Law Non-Jury Trial Misdemeanour Less Serious
5. Police Power Arrestable Non-Arrestable These descriptions are by no means exhaustive. We have already pointed out that the police, for statistical purposes, classify crimes as against the person, as against property with and without violence, and other types of crime. Emile Durkheim classified crimes as against collective notions like religion, the state, the work ethic, and as against individual humans. And other criminologists have tried to weight the ‘seriousness’ of crimes by scaling the opinions of observers and criminal administrators.9 None of these five descriptions or classifications are mutually exclusive. Historically, they all emerge in one way or another, out of the social and moral notions of the English people. Nor is the distinction between indictable and summary crime removed from the religious idea of mortal and venial sin. The separation of law from ethics in this respect was first made possible by the social contract theorists like Locke, Hobbes, Montesquieu, and the eighteenth century classical criminologists like Beccaria. “A crime is a crime”, wrote Hobbes, “consisting in the committing (by deed or word) of that which the law forbiddeth, or the omission of what is commanded. So that every crime is a sin; but not every sin a crime…10” This distinction was necessary at the time to establish the administration of positive criminal law and the principle
of ‘non-retroactivity’. As Hobbes put it, “no law made after a fact alone can make it a crime… and a positive law cannot be taken notice of before it be made…”. 11 Description 1 to 4 inclusive have been part and parcel of Irish law before and after 1922. Article 38.5 of the 1937 Constitution provides for procedural differences. “No person shall be tried on any criminal charge without a jury”, except in the case of minor offences, military offences tried by court-martial, and in emergency circumstances. Describing crimes by the punishment they attract is not only to pre-judge the trial, but also to resort to an outmoded significance between what constitutes a felony, a misdemeanour, and a nonindictable offence. This type of classification is charged with traditional moral connotations and marks, in many respects, the secularisation of religious ideas of sin. Historically, the felon forfeited his property to the Crown (abolished in 1870), he received the death penalty (abolished in most cases after 1827), he was not entitled to counsel (up to 1836), and in early days of the common law clergymen could claim exemption from the criminal process under the privilege of ‘Benefit of Clergy’ (which, by the fourteenth century meant that they could read). This classification into felonies, misdemeanours, etc. has been abolished in the U.K. and replaced by the more realistic distinction of arrestable offences 12, that is, in terms of police powers. The failure of the Republic to describe crimes in these terms is significant from the point of view of police practice – an issue which will be dealt with anon. For the moment it is desirable to trace the legal machinery providing for the summary trial of so many indictable offences. Through an evolutionary process Parliament authorised Justices to seal summarily with felonies ordinarily dealt with on indictment. In Ireland these measures were made law by the Indictable Offences Act 1849 (which applied to the more urban areas, Dublin), and the Petty Sessions Act 1851 (which applied outside Dublin). In 1924 the Grand Jury (before whom formal written accusations or ‘Bills of Indictment’ were placed in order to determine in a preliminary way whether the accused should be put on trial) was abolished and replaced by the office of the Attorney General.13 In 1974 the DPP was authorised to perform all the functions formerly attached to the criminal side of the A.G.’s office, 14 and in 1977 the Supreme Court held that summary prosecutions could be instituted in the name of “The People at the suit of the DPP”. 15 Prior to the Courts of Justice Act 1924, however, all indictable offences were tried by way of judge and jury. But the 1924 Act gave a limited jurisdiction to the District Court to try certain indictable offences summarily as if they were non-indictable ones. By 1951 this incursion was substantially extended by listing and scheduling indictable offences thus tri-able. These have been extended further in 1967 and in 1976 16. In 1967,17 when a new form of criminal procedure was introduced (mainly in order to reduce the amount of judicial time taken up by taking depositions in long hand), the 32 function of preparing these statements of evidence was passed to the police. And while the right to make depositions is still open and availed of, for the most part the procedure is that the prosecution must prepare a ‘book of evidence’ (i.e. a statement of the charges, a copy of sworn informations, a list of witnesses and exhibits and a statement of evidence of each witness). It is on this ‘book of evidence’ and, where necessary, depositions, that the Justice conducts a preliminary examination as to whether there is a prima facie case against the accused. For our purposes it is sufficient to point out that before the book of evidence is compiled and, therefore, before any preliminary examination is conducted, the accused is remanded in custody or on bail. In other words, it is quite likely that a person accused of an indictable offence who insists on being tried by way of judge and jury may spend some weeks or months in custody or on bail waiting for the book of evidence to be prepared. In itself this very probable prospect may well induce a confession or a plea of guilty – in which case, procedural delays are no longer necessarily or likely. Indeed, an accused person, if he pleads guilty, may be sentenced there and then to a custodial sentence that might be considerably less than the pre-trial by judge and jury. In this regard it is to be noted that the maximum penalty which the District Court can impose is twelve months imprisonment and/or fine usually of £100 18. This power, vested in one person without a jury, is not to be taken for granted 19. Perhaps this explains why, in recent years, practising lawyers have been attacking the Oireachtas’ encroachment on the accused’s traditional right to trial by judge and jury.
What the lawyers have tried to shatter is the concept of what a ‘minor offence’ represents. They claim that some of those offences which are tried summarily as minor ones are deserving of a jury trial. In 1962 20 a plaintiff, having been charged with 15 offences of butter-smuggling for which the Revenue Commissioners elected to proceed for a penalty of £100 in respect of each charge, sought a declaration on the grounds that he ought to have been tried by judge and jury rather than before a District Court. The Supreme Court held that the offences were criminal in nature but were minor offences. 21 In 1965 22 a plaintiff, charged with ‘drunken driving’ before the District Court, sought a similar declaration. The Supreme Court, having considered inter alia the punishment prescribed and the moral guilt involved, held again that drunken driving (under section 49 of the Road Traffic Act 1961) was a minor offence and, therefore, summarily tri-able. Mr. Justice Walsh pointed out that ‘the primary consideration in determining whether an offence be a minor one or not is the punishment which it may attract 23 . The punishment for drunken driving included a maximum of six months imprisonment and/or a fine of £100, and a minimum disqualification period of 12 months for a first offence, or for 3 years for a subsequent one. The Court further distinguished between ‘primary punishment’, such as the loss of liberty or the deprivation of property, and ‘the unfortunate consequence’, which appeared “too remote in character to be taken into account in weighing the seriousness of an offence by the punishment it may attract”,24 such as losing one’s livelihood by being disqualified from driving. John Kelly, on this later point, thought the distinction between ‘primary punishment’ and its potential side-effect ‘excessively legalistic’ 25. In 1966 (26) an offence which allowed a summary court to order the detention of an offender between the ages of 17 and 21 for 3 years in St. Patrick’ Institution was held not to be a minor offence and, therefore, ought to have tried by judge and jury26. But the Supreme Court also pointed out that it was unnecessarily to determine the period of imprisonment that would make a minor offence tri-able on indictment. 27 In 1977 28 an offence of having no insurance under section 867 of the Road Traffic Act 1961 (as amended in 1968), was met with a penalty which included damages totalling £606.55, and was held on appeal to be a non-minor offence. The same year the question as to whether ‘contempt of court’, which can attract a punishment of an indefinite period of detention, until the defendant ‘purges his contempt’, arose. It was held that the court could summarily adjudicate cases of criminal contempt as, indeed, it could for civil contempt 29. And in 1978 30 an offence which carried a penalty of £100 fine and confiscation of the defendant’s fishing gear was held on appeal not to constitute a minor offence. SUMMARY Thus far, then we can make several statements concerning the administration of Indictable Offences. The lower courts deal with all non-indictable offences and circa. 90% of indictable ones. They also act as a clearinghouse for the other 10% of offences which are eventually sent forward for trial. Because of its licencing and preparatory indictable work, we can say that lower courts carry out a great deal of quasiadministrative functions as well as purely judicial ones. Furthermore, the Oireachtas, particularly since 1924, has increasingly made it possible for indictable offenders to be dealt with summarily, whether by way of trial or on a plea of guilty. There is evidence to show that there has been an increasing number of those summarily dealt with appealing their cases to the Circuit Court (see Table 4.2). Indictable Offenders exercising their constitutional right to be tried by way of judge and jury have to wait until a book of evidence is prepared and served on them. Between the time of arrest and their being sent forward for trial they must be remanded. Remands may be several and for long periods, and the accused may be remanded in custody or on bail. It is to be inferred that these administrative delays are conductive to some offenders to plead guilty. Finally, it is doubtful that the lawyers’ several attacks on the summary mode of trial, even if successful, would substantially influence the annual and systematic proportion of indictable offences dealt with summarily. c. Probation
To break the criminal cycle, it is clearly necessary to enlighten ourselves about the disposition of the weaker members of our society. The‘ recidivist rate’ is sufficient demonstration of the need for help and advice of a type that is not simply legal on the part of those offenders who are continually given custodial sentences. Such a service is the Probation and Welfare Service. The Probation and Welfare Service is attached to the Department of Justice. In 1961 it had a staff of four, in 1969 it had a staff of nine and in 1980 it had a staff of 145, 45 of whom are attached to the 23 District Court areas throughout the country. The part hitherto played, therefore, y this service in the whole CJS is self-evident. The notion of assistance or rehabilitation for the criminal was virtually non-existent – a simple and concrete fact that any criminological theorist must explain within a society which arrogates to itself and its State the dual characteristics of being ‘Christian and democratic’. The aims of the service are, inter alia, ‘to reduce criminality and to prevent and remedy social breakdowns in the interests of both society and the individual’. (76) Towards this end officers attend on the courts, where, on request, they carry out presentencing assessments. They also supervise offenders referred to them by the courts and those conditionally released by the prisons and detention centers. They also provide ‘a counseling service’ to offenders and their families’, (77) and are also involved in non-criminal family law cases. In their Report for 1980 a total of 1,121 cases arising out of indictable offences were referred to the Services by the District Courts, and almost half of them (530) were in the 14 to 17 year age group. Officers attached to the prisons and detention centers, apart from helping the offenders to cope with personal and family problems, ‘try to help them re-settle in the community and to secure accommodation, employment and training for employment’. In 1980 252 offenders were placed in employment and a further 348 were placed in training for employment. In their 1980 Report the Service recorded the difficulty in obtaining accommodation for offenders, and while 220 offenders sought such assistance, 65 were placed in hostels. The Service is also involved in supervising prisoners on release from custody, whether by way of ‘full temporary release’, ‘week-end release’, ‘one-day release’, ‘day-to-day release’, or under an intensive supervision scheme commenced in 1979 and operating in Dublin, cork and Limerick. The Service is also involved in the running if Special Schools, Hostels, Youth Encounter Projects, Experimental Projects, and Community Projects and Workshops. Being so infant in their industry, it is much too premature to try and assess their impact on the CJS. And while any bona fide attempt to analyze and alleviate the socio-logic of the system is to be welcomed, the Probation and Welfare Service must increasingly find itself compromised between the CCM of the police and the DPM of the courts. In effect, the Service must operate between the tail end of the criminal cycle and its renewal, particularly where recidivist children and juveniles are concerned. Whether it curtails, or contributes to, the recycling of offenders is a matter of premature speculation. According to the 1980 Report on Prisons, the Service made a significant contribution during the year to the inter-service meetings which were held regularly in all the prisons and places of detention to review individual offenders’ cases’. Be this as it may, the real criticism of the Probation and Welfare Service, including its underdevelopment for almost a century, is its paralysis in the face of clerical paedophilia. The innumerable and continuous abuse of children in care was first of all the responsibility of the Probation and Welfare Service, which over the years never heeded the signs and warnings. It remained purposefully opaque. Indeed, it even prevented scrutiny of its anaemic ranks. For some twenty years Rathmines ran the only Postgraduate course in Criminology and few if any of those in the Probationary Services showed the slightest interest. Had they attended they might have learned something about their responsibilities, the primary one being the need for selfcriticism, an asset that they were never to obtain under the shadow of the Catholic Church. Indeed, the service , like so many other services, has lived much too close to the Catholic Church and has been too easily manipulated by the Church and the several churchmen and churchwomen who , quite ignorant of secular and of the more healthy norms necessary to the child-care endeavour, claim hegemony over child care.
How the RC Church jealously bullies its way to power in these areas is no secret no more than it is a surprise; but what makes them think that their inveterate and unhealthy celibacy makes them experts in the area of familial mores is a mystery. The dreadful buggery scandals come as no surprise , nor more than their refusal to submit themselves to either a criminological discipline or an open discourse on their‘ received’ wisdoms. What is surprising is the incidence of such scandals, the duration of their secrecy (since the ‘30s at least) and the preparedness of the Bishops to go to such lengths to deceive the people over such a period. Is there anything that one can say to redeem the Irish Probation and Welfare Service from its medieval locus? d. Prisons The manner in which persons against whom criminal offences have been proved are dealt with by the State and its organs forms an integral and organic part of the CJS. In general it marks the end, and – paradoxically – the beginning of the criminal justice cycle. Even a cursory examination of the disposal system in the Republic will reveal that, in many respects, it has been least visible to public or academic scrutiny, least examined and most neglected. Perhaps this is due, in part at least, to the inadequacy and indecipherability of the data available over the period under consideration. Yet we find that what is available has never been rigorously examined. Though sometimes inscrutable, inaccurate and unreliable, there is, nevertheless, an abundance of detail contained in the various reports published by the former Department of Justice (now the Department of Justice, Equality and Law Reform). And if it is with some temerity that we dare make any reliable statements on the various aspects of the disposal system, it is equally true that the available data demonstrated a consistency which, when analysed with a little industry, bears some rewards. Before continuing further it is imperative that we understand the revolutionary change in the Prison system in Ireland. It is too early to assess the radical changes carried out in the Prison service since 1980. For the year 2002 the Prisons Bill came to !298m. This figure , if borne in mind when considering the data exhibited anon, gives us an indication of the enormity of the changes, financial and otherwise, which has gripped the disposal system in the late twentieth century. Whether such sums bear any worthwhile relationship with the ends anticipated is a study for another day. Our resolute aim here is to examine what we know of the available data for the period 1950-1980, that is, before the Prison Service became a virtual industry monitoring and driving the enormous changes that the Celtic Tiger invoked. In attempting to follow the CJS through to its final phases, we are predominantly concerned with the disposition of persons against whom criminal offences have been proved. We are particularly concerned with trends throughout the seventies in respect of the number of persons annually sentenced, the numbers generally committed to one form of custodial institution or another, and the numbers committed to prison on conviction (see Figure 6.1) While committals in general and committals on conviction do not necessarily follow either the increase in crime or the annual numbers found guilty, it is particularly noticeable how constantly low the level of committals on convictions have remained throughout the seventies. The more immediate relationships between these three essential variables, however, are somewhat complicated. In attempting to unfold them, this book, as we have already pointed out in detail, is divided into five parts. The following topics are briefly discussed: Punishment and the State (Part I); The Sentence of the Courts (Part II); Persons Sentenced and Committed (Part III); The Rate of Recidivism (Part IV); The Probation and Welfare Service (Part V). Part I: Punishment and the State In the absence of any formulated policy on either punishment or sentencing one of the main obstacles in assessing the efficacy of sentencing is its apparent lack of objectivity. Why do we punish people at all? And what in particular is punishment in its varied forms meant to achieve? Opinions on these matters differ so widely that it is futile to recount them in detail.1 Since, however, our notions of punishment are inextricably bound up with our notions of the State and the nature of
the social contract, consensus and conflict theorists invariably differ in a punishment 2. We shall briefly sketch some aspects of these theories and their possible relevance to Irish Society. Consensus Theorists At their best, consensus theorists rationalise the history of the social contract in evolutionary terms. On this view the State’s right to punish is contractually enforced albeit in a progressively reformative manner. At their worst, some consensus theorists are seen to brutalise the criminal and barbarise themselves. John Locke,3 for example, in contrast to Hobbesian and Machiavellian theory of how the formulation of the State was based on power struggles, saw the relationship between the citizen and civil government as one of contract. On this view, man had ‘natural rights’ to life, liberty and property, and as civil society emerged from its precivil state, man forfeited his natural right to punish and entrusted it s provisionally to legitimate government to exercise fairly on his behalf. According to Locke, whose notions influenced Voltaire, Montesquieu, Rousseau, and the wording of the Declaration of Independence in America in 1776, citizens had the right to rebel and remove any government which broke the social contract and failed to fulfil its obligations.4 Within this legitimisation of civil society is the corresponding need for the Rule of Law and the punitive imperative. Other writer, notably Immanuel Kant, developed the theory of our obligation to obey the rule of law on moral grounds, the legitimacy of State punishment being justified on the basis that it is necessary to free man from the violence attending him in the state of nature.5 Unlike Locke, Kant saw the moral obligation to obey the law as total and absolute, even if citizens have “to endure even the most intolerable abuse of supreme authority”, according to Kantian theory man is never morally justified in revolution or resistance.6 Kant also thought that it is morally right that criminals be given their deserts. The State should ensure it. Punishments aimed at reducing crime, therefore, such as ‘making an example’ of a particular criminal, or putting offenders on probation, were immoral.7 Indeed, even if civil society willingly decided to dissolve and everyone agreed to emigrate thereafter, Kant believed that before so doing the last murderer remaining in prison must first be executed. The reason for this is that there is a fixed duty on those dispersing to insist on carrying out the punishment, and if they fail in this moral duty, they, in effect, become accomplices ‘in the public violation of legal justice’. 8 Other consensus theorists carried the notion of the State (and with its notions regarding the rule of law and punishment) much further. Hegel, for example, (and Bosanquet) in the tradition of idealism, which placed the Church, the State and society above the individual, and invariably stressing duties rather than right, exalted the State as the creator of morality. 9 In his “Philosophy of
Right” (1821) Hegel equated the State with the Deity; the State was an end in itself. It has supreme authority over individuals, whose chief duty was to belong to the State. State leaders, he thought, do not arise by accident, but by unspecified forces of nature; they arise to realise the contemporary truths or ideas guiding the State, and they are responsible to no one. For Hegel all human history was cumulative and logical; it was guided by the dialectical process which had reached fulfilment in his own lifetime in the Prussian monarchy of Fredrick William the Third. According to Hegel all former philosophies were explained within, and contained in, his own philosophy of ‘dialectical idealism’, and within his theory of the Prussian State his philosophy of right and his justification for State punishment were integrated. Other consensus theorists, less philosophically gifted, ascribed certain attributes to notions like the ‘rule of law’ and the purpose of punishment. V. Dicey who, in 1885, coined the phrase, stressed that the ‘rule of law’ meant; inter alia, the absence of arbitrary government.10
He pointed out that no man was above the law, that all were subject to the ordinary law and under the jurisdiction of the courts. Even he Government according to Dicey, was subject to the law. Within the broad consensus theory of the State and punishment, divergent and competing aims have been put forward. The Utilitarians, for example, who emphasise political and legal reform in order to achieve the greatest happiness of the greatest number, advocate the prevention of crime, its deterrence, and the reformation of the offender as the aims of punishment. 11 Durkheim, on the
other hand, thought that expiation ought to be the end of penal discipline, and not retribution of deterrence.12 Other consensus theorist believe that retribution in its various forms justifies the State’s use of punishment on criminal offenders. One form of justification arises from a simplistic biblical source which advocates the taking of ‘an eye for an eye, and a tooth for a tooth’. Sir James Stephen, author of an excellent History of the Criminal Law, justified punishment on the ground that its use kept up people’s standards of morality. He wrote: “I think it highly desirable that criminals should be hated, that the punishments inflicted upon them should be so contrived as to give expression to that hatred, and to justify it so far as the public provision of means for expressing and gratifying a healthy natural sentiment can justify and encourage it”. 13 And Rupert Cross, in his work on The English Sentencing System, observed: “This book is written on the assumption that the aim of the penal system is to reduce crime by making as many people as possible want to obey the criminal law. It follows that the general practice of punishment by the state is only justified if it has two objectives, the reduction of crimes and the promotion of respect for the criminal law”.14 Nearer home, the Penal Commission claimed that “The aim of any sentence, custodial or otherwise, should be the eventual integration of the offender into society”. 15(15) The Commission also stated that “Very special efforts should be made to ensure that each offender, upon termination of his or her sentence, should be able to obtain employment and reasonably good housing conditions”. 16 Conflict Theorists At their best conflict theorists inform the behavioural sciences with a compelling historical perspective and an equally compelling humanist morality. At their worst they hasten history, they legitimate revolution and its attendant cruelties, and they sacrifice contemporary praxis to intellectual purity. In his Enquiry Concerning Political Justice, which appeared during the French Revolution and was overshadowed by it, William Godwin railed against ‘that brute machine’ government. 17 As an anarchist and not unconnected with the early romantics like Lord Byron and Percy Shelly, Godwin believed in Man’s desire to be free from organised religious, political and social constraints. Broadly speaking, anarchism for Godwin meant a society in which individuals were free to work at that which suited their personalities. Essential services would be provided by voluntary associations. Theoretically, anarchism 18 shares with some forms of communism, socialism ands liberalism, an essential enlightenment faith in the goodness of man. Society is historically seen as the corrupting influence, and the organisation of social production, whether under mediaeval manorialism, mercantilism, capitalism, or State communism, are merely degrees of the same evil. The force, power and coercion endemic in integrated socio-legal economics, no matter how wielded, or by whatever party, group or class, is seen as alien to man’s true sense of freedom and justice. Under anarchism, therefore, State punishment is not possible, because it is not contemplated. Tolstoy, for example, had strong and simple views on such laws: “… Political laws seem to me such prodigious lies… I regard all governments not only the Russian Government, as intricate institutions, sanctified by tradition and custom, for the purpose of committing by force and with impunity the most revolting crimes, and I think the efforts of all those who wish to improve our social life should be directed towards the liberation of themselves from national governments whose evil, and above all whose futility, is in our time becoming more and more apparent”. However unsuccessful anarchism is as a modus vivendi, it has been advocated in varying measures by thinkers like Proudhon, Kropotkin, and Henry David Thoreau. It is arguable that other conflict theorists in the Marxist tradition (and, indeed, Marx himself was at variance with the
Bakuninite anarchists in the International), sooner or later have to re-engage the anarchist themes of retreat – retreat from the organised division of labour, from the city and the metropolis, from competition and from materialism. The polarity of law and anarchy is tessellated with intermediary theoretical positions, and while anarchy, as a philosophical orientation is undefined, much of its perspective is to be found in the literature surrounding the controversial lives of its proponents. Perhaps the most notable case concerns the trial of Nicola Sacco and Bartolomeo Vanzetti, the two Italian immigrants to Boston who, in 1920, were charged with a payroll robbery and the murder of two guards. Both were executed in 1927. Fifty years later, and after several studies into the case, the Commonwealth of Massachusetts issued a proclamation acknowledging that there had been a miscarriage of justice. More recently Brian Jackson examined the extensive literature on the case and concluded that ‘almost without exception it assumes or argues innocence’. 20 A more engaging criticism of law (and, less directly, punishment) arises from the socialist tradition. Ever since Rudolf von Ihering, a late nineteenth century German jurist, proclaimed the jurisprudence of interests, the historical integrity of legal ideals (as opposed to social conflicts and interests) has been severely repudiated by those who insist on de-mythologizing and de-intellectualising law. 21 This modern trend to legal realism insists that law is neither above nor outside society, but is determined by competing social and sectional interests. Accordingly State-centred law is seen as only one means of settling disputes.22 Recent developments in anthropology 23 and sociology 24 have strengthened this perspective. According to this line of argument all societies have their own norms, rules, customs and procedures which precede, are co-existent with, and may be in inverse relation to, State-centred law. In this context some conflict theorists 25 (see law as only one form of domination or social control, and is not necessarily the best or the most precise worthy for. Others go much further. They reject law because it is produced by one class of society for its own specific interests. Twentieth Century socialist and sociological critiques tend to make law a servant of all rather than a master in the pay of the elite. On this view the crisis in law and legal ideas is not to be divorced from the economic crisis. Karl Marx, son of a lawyer, and himself a law student who successfully appeared to defend himself in court in Cologne against charges of slandering officials and inciting insurrection during the 1848 revolution, rejected law for economics. Within the relationships of production and reproduction Marx accorded to bourgeois law a very narrow ideological existence. In a truly human, self-managed society, according to Marx, the State itself would dissolve and within State-centred law. He did not expound or expatiate on law under socialism. Marx, and Engles, refused to take law as the subject matter of serious study. For them, law and order, codes, courts and constables, were not independent; they had no history of their own; they merely reflected and enforced socio-economic arrangements and relation-ships already determined by the class formation. Law, punishment, prisons, parliament and the courts, were ideological constructs, they enforced the will of the State; and the State was the instrument of the ruling class. Nevertheless, recent studies within marxology by marxists and non-marxists, demonstrate strong lines of difference within the conflictual camp. Althuserian marxists, for example, believe that law is to be understood in relation to three principal structures, namely, the economic, the ideological and the political. In this pursuit it never divorces itself from its dominant focus on the class struggle. 26 Two other enduring marxists, Karl Renner,27 President of the Austrian Republic after the Second World War, and Pashukanis,28 murdered by Stalin in the 1930’s, insisted, on different grounds, that law was not a mere ideology. Renner believed that Marx’s “Capital” fell into two legal categories, the institution of ownership and the contract of service. Pushukanis thought that the law created a world in its own image based on the categories of commodity production and market demands. Whether, the legal ‘aufbau’ is therefore divorced by class antagonisms (requiring Revolution) or increasingly reflective of ever widening social sentiments and interests (a description of evolution) is an ongoing concern within Marxism except to explain its historical forms. In general, however, Marxists do not focus on punishment, except to explain its historical forms in terms of capitalism’s controls over the working class. Otherwise they focus on the nature of deviance and the criminal actor, and again attempt to explain crime in terms of its politicaleconomic underpinning. Irish Theory
Irish intellectual activity appears to be singularly characterised by a very basic and ‘commonsensical’ view of the social sciences. In his ‘Assessment of Irish Sociology”, Tony Fahey defined ‘radicalism’ as ‘effective creative science’ and distinguished it from ‘political extremism’. Thereafter he wrote: “Is Irish sociology radical? Definitely, no. None of the work produced by sociologists in Ireland since the discipline arrived here really goes beyond the common-sense view of society or points to any problems which could not have been discovered by a good critical journalist. No attempt, good or bad, has been made to construct a theoretical framework for the analysis of Irish society”. 29 In law, as in sociology, there is no question of competing theories, whether conflictual or consensual. There is no formalised theory in Irish law or its penal institutions. Consequently, there are no relevant differentiations to be made within either of these orientations. As Fahy put it: “In Irish society there are no movements of dissent to challenge the sociologists’ intellectual security”. 30 What this means is that there is no one to challenge the RC Church’s hegemony over all Irish institutions, physical, financial, and social. The ‘intellectual’ is merely a fictitious addendum to a power bloc that is – and has always been a fait accompli. In reality most sociologists in Ireland -as in the Philippines and East Timor -- are not sociologists, but rather theologians -- Jesuits posing as sociologists. They not only occupy very scarce resources in sociology but they allocate these resources to the service of theology. Each academic Jesuit even has a faculty conferred on him. Invariably have nothing to say ,but are ever vigilant that others say nothing as well. Neither are there ‘movements’ in Ireland to assert or affirm sociology as a discipline, and, indeed, to talk of ‘movements’ in the same breadth as ‘radicalism’ is an unwarranted flattery. The rationale for Irish punishment, therefore, must be sought, not in the social sciences, but within the interstices of religious ideology and judicial practice. The most radical statement concerning criminological thought in Ireland is traceable to an Italian monk of the Middle Ages – St Thomas Acquinas. He is quoted as having said that if a person’s need is manifest and urgent “It is lawful for a man to succour his own need by means of another’s property, by taking it either openly or secretly; nor is this properly speaking theft or robbery”. 31 He is also quoted as saying, “All things are common property in the case of extreme necessity”. 32 Needless to say, this aspect of primitive communism is neither preached from pulpit nor pleaded in courts. It just languishes in the Catholic Church’s holdall until it is required to prove its sincerity about caring for the poor. Despite Ireland’s substantial penal experience33 the gap between ideology and action remains profound. It is to the courts and the judiciary that we must look to have the rationale of punishment explicated. In this context, some European concepts have had practical expression in the courts. It is not unusual for judges, before sentencing a convicted person, to refer to the prevalence of particular types of crime, the protection of society, and the interests of the public. We have already noted that ‘the primary consideration in determining whether n offence is a minor one or not is the punishment which it may attract’. 34 More particularly Mr. Justice Gannon has stated: “The first consideration in determining the sentence is the public interests which is served not merely by punishing the offender and showing a deterrent to others but also affording to reform. The punishment should be appropriate not only to the offence committed but also to the particular offender”. 35 Moreover, the Court of Criminal Appeal has disapproved of certain kinds of suspended sentences which, inter alia, compromise the offender’s right of appeal, commutation or remission, or, indeed, are not in accord with ‘correct principles of penology’. With reference to ‘correct principles’ the Court took into consideration the reformative and rehabilitative functions of custody, in the interests of which, it stated, ‘it is desirable that both the prison authorities and the prisoner should be in a position to plan for the date of release’.36 Part Two
There are many ways of looking at the CJS, but all of them , if properly analysed, lead to an overview of the system as a whole. To assist this overview it is convenient for us at present if we look at a representation of two aspects of the system. One demonstrates the major variables for the years 1950-80. Figure 2.1 shows the increase in indictable crimes over the period. But in showing the general increase in these recorded crimes, it also follows them year-upon-year in their distributive aspects. That is, the reported figures for indictable crimes are accompanied by the numbers of those detected, those processed through the courts and their outcomes, etc. If we are to believe half of what we read of so-called ‘Expert’ Reports on the CJS, these figures are a break-through. They extend so naturally beyond the usual fare of crimes recorded and crimes detected, which hitherto has been the constant creation and limitation of a host of well-meaning criminologists who have the most unreal and imaginary relationship with Irelands’ criminal and penal institutions. But Figure 2.1 notwithstanding, we feel we have not driven the analysis home. We need to follow the figures through to their completion, through the courts, past the sentencing outcomes, and, directly, if possible, to create a recidivist rate. A recidivist rate will show us how many are reentering the system: and without this, how can we possibly assess the efficacy of any of the agencies that comprise the CJS or ,indeed, the efficacy of the system as a whole? The simple answer is : we can’t! Without knowing how efficient or effective or how inefficient and ineffective all our penal institutions are, how can we make policy to improve it. This process, of establishing a full and total overview of the CJS, then, is a sine qua non for anyone who pretends to know what policies the government should be following in respect of each and all of the agencies involved and in respect of crimeand-punishment generally. We have been working in the dark so long, one begins to feel that people relish it! Model 1975 shows the full system and its potential for all indictable offences committed and processed in 1975. With it – and for the first time in Irish criminological history – we have a quantitative picture of what national crime looks like and how it has been processed by all the agencies involved. Needless to say , a similar portrait can be constructed for every crime or sets of crime in the whole criminal calendar, not just for the year 1975 but for every year that the Garda Commissioner has reported in the traditional fashion on crime in Ireland. It is only with the introduction of the PULSE (a computer system), coupled with the nonsense of the ‘Experts’ , that all this information and know-how has been destroyed. What does the PULSE replace all this invaluable information with? Nothing! Before going on to consider the virtues of Model ’75 let us say something of the analysis of Figure 2.1 First of all , these statistics -- totally produced by the Garda Siochana – give us a partial overview of the CJS in so far as the Gardai and the Courts are concerned. With them we can not only establish detection rates for the Gardai, but conviction and proof rates in the courts as well. Obviously, we need to examine these overall figures in further detail.
Figure 2.1 – CRIMINAL DYNAMICS In Part I we analysed how indictable crimes were processed through the courts for police-accounting year 1975. We also established a detection rate and a variety of conviction- and- guilty rates for the year. We saw, for example, that the guilty rate in the lower courts was 93.3% of offences tried in the court, and that of the 18,317 offences tried that year 95% of them were tried in the lower courts. Is this the case every year? And how in general do the variables in the CJS behave over time? Figure 2.1 shows the behaviour of five centrally structured variables and their interrelation-ships between 1950 and 1981. These variables are: 1. The number of crimes recorded 2. The number of crimes detected 3. The number of crimes tried in all courts 4. The number of crimes proved in the lower courts and,
5. The number of convictions in the lower courts.
It is proposed to examine these five variables briefly and numerically (a) over the 25-year period (1950-75), (b) over the 15-year period (1950-65), (c) over the 10-year period (1965-75), and (d) over the 5-year period (1976-81). The Overview In general what the overall movements in Fig.2.1 demonstrate is that as the number of crimes committed have steadily and steeply increased, with local minima in 1950/55/61/65/73 and 1978, the other four variables, almost linear in form, and each a function of the annual number of crimes committed and its more immediate preceding function in the process, have followed the general rise. Nevertheless, an increasing gap has developed over the period between the number of crimes annually committed (line 1) and annually heard (line 3) by the courts, particularly since 1975. As one might expect, crimes tried are almost perfectly elastic with respect to crimes detected, i.e. they respond with almost perfect accord to the rise in the number of crimes annually detected. At least this is so up to and including 1975, after which there was an entire dislocation in the relationship between these variables. What one might not so readily expect is the very close response that convictions (line 5) and crimes proved in the lower courts (line 4) bear to the annual number of crimes tried (line 3). Throughout the whole period, and notwithstanding the dislocation that occurred in 1975, this high constant rate of proof presents us with a criminological curiosity that calls for more detailed enquiry. For the moment, however, we must examine the trends and changes that occurred in the five selected variables over time. Between 1950 and 1981 recorded indictable crime increased from 12,231 to 89,400, an increase of 77,169 or 631%. For the same period crimes detected increased from 7,430 to 32, 754, an increase of 25,325 or 341%. It is apparent from Fig.2.1 that these respective increases occurred at different times and at different rates. Perhaps the most dramatic aspect of the whole movement is the manner in which crimes recorded and detected increased since 1975 while, at the same time, crimes tried in the courts declined. Of the total increase in crimes detected 36% occurred in the same period. Given these dramatic increases, one would intuitively expect a corresponding increase in the number of crimes heard annually by the courts. Since 1976, however, the number of crimes heard in all courts bears little relation to the number detected. After 1975 the courts return to administering a turnover quota which was less than what they annually heard for any year between 1968 and 1975 inclusive when the number of crimes being committed was less than half what they were between 1975 and 1981. Obviously, if we cannot explain this development the whole matter of our analysis and the consistency of the statistics contained in the Commissioner’s Annual Report on Crime must remain seriously suspect. We shall, therefore, return to this question anon. For the moment we can only accept the figures that we have, and for reasons that shall be forthcoming, we will deal with the period 1976 to 1981 separately.
Part Three EpilogueProperly understood the individual institutions of Parliament, the Police, the Courts and the Prisons, the Probation Service, etc are better understood as contributing services, and.—as we shall argue – cannot really be seen in their proper light until they are first juxtaposed and then amalgamated with each other to form a whole. It is only then that we can properly comprehend the CJS as a whole. Such an overview, it is argued, has enormous advantages to our understanding of justice, and in order to illustrate these matters we have summoned the aid of two separate models. The two models presented (overleaf) represent two different systems of criminal justice. The one is taken from the Florida State University’s website (at http://www.criminology.fsu.edu/Ci.html), ingeniously constructed by Cecil Greek, and the other is a worked replica of indictable crimes in Ireland for the year 1975 compiled by the author. Both models, it should be said, were inspired by The Challenge of Crime In A Free Society, compiled by the President’s Commission on Law Enforcement and Administration of Justice as early as 1967. The 1975 model, therefore, was constructible some eight years after the President’s Commission (though, theoretically, it was constructible at any time since the Garda statistics were compiled), while the Bureau of Justice Statistics revised the Florida model in 1997 after a Symposium on the 30th Anniversary of the President’s Commission. (The irony that Florida State University is one of the largest schools of criminology in the US, and the DIT –- the Dublin Institute of Technology -- could not bestow one penny piece on criminology between the years 1993 and 2003 has not been lost on the author!)
These models are meant to elucidate the ramifications of the criminal justice system - - that is, to elucidate the jurisdictional moves as well as the legal steps, which the system envisages for wrongdoers. With the assistance of several guesstimates we have tried to fit the American model to Irish data in 1975, bridging the hitherto inestimable lacunae between the Gardai, the Courts and the custodial institutions. Each of the steps taken in this procedure may not be as seamless as we might desire. Nevertheless, the ’75 model is illustrative of the programmatic ends the Government and the Civil Service – not to mention those seriously concerned with criminology -- should be pursuing.Notwithstanding its lack of design, even this rough sketch captures for the first time our view of the concatenation of the main institutions of the CJS assembled in overview. This tadpolelooking picture encapsulates all the serious (indictable) crimes of the nation. Together with their respective punishments throughout the year, these crimes are condensed into a single frame of justice, which depicts the Republic of Ireland’s sense of criminal justice. What it does not capture but hopes to stimulate is Ireland’s consciousness of that sense of justice or, as the case may well be, injustice.Obviously there are aspects of this model that could stand up to greater scrutiny, seams where the stitching could be smoother, aspects that do not run from institution to institution in the way we would like, but which nevertheless provide us with a portrait of the nation’s guilt. And whether— somewhat like the portrait of Dorian Grey – this picture gets better or worse from year to year, depends (according to the Labellists) upon Irish administration as much as upon any innate disposition of the Irish psyche to live in vice or virtue. Both models present us with a flowchart of cases, one generically and the other specifically for the Republic of Ireland in the year 1975. Both demonstrate the complexities of the CJS and both bear remarkably similar contours – the contours of two common-law countries with a bifurcation between serious or juryiable offences and non-juryiable ones. Where the models agree in contour, is -- one suspects -- precisely at those nodal points already noted in the Irish system; and one might hazard a guess that the American system, or any common law system, will similarly exhibit a high differential between the number of trials processed by way of judge and jury and the number of serious crimes processed under certain conditions without a jury. Similarly, one would expect this to be coupled with high conviction or proof rate, at least in the lower courts, but possibly in all courts. This high conviction or proof rate, one further suspect, is produced by an “autonomy of interests”, this time American interests, and it is that, possibly bourgeois attraction which criminologists should be inquiring into.Where the models differ in detail would require a study of a more calculating type. But already we know of some differences. The Florida model accommodates the handy Internet device of being able to press an artery in the system and be instantly transported to another raft of information concerning that artery. This, one might bear in mind, would be a most useful tool in the illustration of the system developed hereafter. One can imagine, for example, that when perfected in the Irish model, the viewer presses “Garda Siochana”, and the essential facts of Lecture 2 can be distilled and instantly displayed Or, better still, that items which Lecture 2 has not conceived of, police projections in manpower, indictable offences per Garda, the cost of the service and the next marginal Garda, forecasts as to time spent in court etc. All these can be worked out and made available on demand not just for the police, but also for the courts, prisons and any incidental contributory to the CJS.A more significant difference between the models relates to their substance. A note at the bottom of the Florida model reminds us as that: “The weights of the lines are not intended to show actual size of caseloads.” The Florida model is merely meant to demonstrate the intricate and complex processual steps operative in the CJS for the various categories and ages of defendant, an exercise not to be underestimated, as any lecturer in legal administration with agree. The Irish model, on the other hand, is specifically value-laden, and feels that without such a quantitative input the model becomes perfectly emasculated and fails to fulfil its promise. (This is not, by the way to say that the Florida model does not envisage such analysis elsewhere in its own schema)The President’s Commission, as was said before, marks a landmark in our consciousness of the CJS and it surpasses by far efforts made elsewhere – not just in Ireland – but also in Europe generally, to come to terms with their own experiences or understanding of the CJS. Notwithstanding the fact that the model has not been widely appreciated in Europe and elsewhere, the question nevertheless remains, for Americans and Europeans alike – does the model deliver on its promise? Does it go logically far enough? Does it exhaust its potential in the service of the justice? We emphatically say “No” to these questions; we believe that the potential of the CJS, however first conceived, has now fallen into desuetude mostly because of misconceptions concerning its essential significance. Before examining the model’s potential, however, we need to complete the picture, which the President’s Commission began; for as yet it has not been completed. It needs a finishing touch.Recidivism We know from experience that the system, though presented, as a snake-like flowchart is really somewhat circular, because some criminals will repeat their crimes and re-appear within the system. How many persons renter the system depends, therefore, on the recidivist rate for any
given year. For our part we cannot complete the picture until we hazard an opinion as to the role of recidivism in the system as a whole.What we must try and imagine in this respect is the connection of both ends of the CJS, where the number of recidivists re-enter the next annual cycle of recorded crimes, which begins the process anew. These numbers signify the failure of the CJS, especially the prison service.So, how many recidivists are there in any given year?We confess we cannot answer this question precisely. Nor need we do so. Let us, instead, leave it to those with more time and more resources – the legions of civil servants, prison officers and schools and universities that have the funds and foresight to spend on science, or, indeed, others whose business it is to run the CJS.What we can do, however, is to point out that when we turned the models (American and Irish) on their legs, noticed some similarity. But here we have to abandon the Florida model, which is merely suggestive, in favour of what we know to be the factual case in the Republic. Before doing so, however, we might observe that while the Florida model suggests a low rate of custodial detention, it envisages some intervention by way of social services for prisoners on release. No such assistance is envisaged in the Irish system. And if proof is further needed of this fact, it might be recalled that as recently as July, 2003, in the inaugural report of Mr Justice Dermot Kinlen, the Irish Republic’s first Inspector of Prisons and Places of Detention, the afterrelease services were criticised. The Governor of Mountjoy Prison, Mr Loner a more or less agreed with the criticism, confiding that the Inspectors observations merely repeated what he had been saying for years. After-release services were, in effect, “nonexistent”, he said – a matter that should be of concern to everybody. (See The Irish Times, Friday July 4, 2003)Not surprisingly, then, the very place in the system where we feel there should have been investment, where the social sciences might intervene productively, there was none, and to the present day, there is none; while every other part of the service thrives financially with costs and outlay rising exponentially and without any serious review as to effectiveness. Where intercession was most needed to help criminals and protect the Irish taxpayer, it was withheld. And neither the National Council on Crime nor the new Institute of Criminology in the bishop’s own college of UCD has, apparently, ought to say of the CJS, no more than they (in league with the Department of Justice) had ought to say about the incidence of clerical paedophilia, except, of course, to object to the introduction of the registration of paedophiles as proposed by the European Parliament. Again the place where character was most needed to protect Irish children (as opposed to the Church’s interests), it was inscrutably withheld! In this regard all one can do is note the shared ultra-conservative interests the Department of Justice, Equality and Law Reform has with the new Institute of Criminology at UCD.From the foregoing it would appear that the whole aufbau of the Irish CJS is balanced precariously on rather thin legs, suggesting a disproportionality between the number of custodial
wrongdoers eventually receiving a custodial sentence and the enormous industry of policemen, lawyers, court and prison personnel -- a virtual bureaucracy – that they engender. On the behavioural outcome of a small number of inmates depends the entire block of crimes committed and detected, the employment of the Gardai, the lawyers, and the court-andcustodial personnel. And when we convert these services into cash, we arrive at a positively insane industry, an industry that grows and expands on the notion that it wants to do something about crime and offenders. Surely it is equally true that this exponential industry depends on the opposite. It is more than likely that we spend an enormous sum of money on a few dysfunctional families upon whose welfare we spend nothing.Further, in Lecture 6 (and with reference to Table 6.6) we said: “In 1976 no less than 62% of those committed by the courts had already served one sentence of imprisonment (Table 6.6). In 1981 the rate of recidivism was 65%. In other words, of those committed on conviction in respect of those years, only 38% and 35% of them had been imprisoned for the first time. This does not mean that they were ‘first time offenders’. On the contrary, it is probable that they had several previous convictions before they were given their fist custodial sentence. Thus defined, therefore, the rate of recidivism is highly conservative.” We also said that one of the shortcomings of Table 6.6 was that it does not inform us of the exclusivity of committals from year to year. In other words, the courts may be committing some persons to relatively short terms of imprisonment year after year. This we do not know; we can only speculate on the fact that between 1976 and 1981 an annual average of over 30% of all those imprisoned on conviction had already served over five other sentences of imprisonment. “ Similarly, a smaller but increasing proportion of inmates sentenced to a custodial term in St. Patrick’s Institution exhibits a disconcerting rate of recidivism (see Table 6.7). Given the ages of persons at risk (16 to 21), and given the further fact that over half of those sentenced in 1980 and 1981 were between 16 and 18 years of age, the rate of recidivism for those years (46% in 1980 and 48% in 1981) must compel us to question the purpose and organization of criminal justice as well as the efficiency of custodial sentences.” Here then is the extraordinary picture of the CJS -- where the recidivist rate, under the most conservative estimates, confirms the notion that a small number of wrongdoers gives rise to an army of bureaucrats throughout a system that is blissfully determined to grow like an enormous boil on the taxpayer’s wallet, without, it appears, ever realizing its own inadequacies or its essential purpose within the broader scheme of things. Are the National Crime Council and the Institute of Criminology at UCD, neither of whom seems capable of developing a critical faculty, just two more unimaginative bureaucratic white elephants? c. To analyse its potential It will be recalled that in our account of overall indictable crimes in Lecture 2, we noted that the same principles of accountancy could be applied to each crime in the calendar. Indeed, to balance the police figures it was necessary that this should be the case. With a little reflection it will become apparent that there is no reason whatsoever why model ’75 cannot be implemented in respect of other entities, more particularly the following: i. Any single crime or group of indictable crimes; ii. All Non-indictable offences or any single or group of non-indictable offences, and iii. An aggregate of all crimes in the Republic of Ireland, that is, a model reflecting both Indictable and Non-Indictable (Arrestable and NonArrestable Offences, or in any event Offences triable by Judge and Jury and Offences otherwise tried), or any group or combination of such crimes. There is nor reason why additional or special concerns – like drugs, traffic, domestic violence, juvenile offenders, etc – cannot be factored into model ’75. Indeed, it invites such calculations, begging that the model as a whole, first, and thereafter its parts and sections, be monitored from year to year. Better still, projections of in respect of the incidence of crime and related topics ought to me made from a moral (or legislative point of view) as well as from a financial or budgetary point of view.There is no reason why the Department of Justice and/or colleges that claim to be seriously devoted to the study of criminology should not annually predict the numbers and kinds of crimes that will be committed, the types and location of such crimes, and the costs of processing them from start to finish in the criminal justice system. Any adjustments that need to be taken into consideration should follow adjustments in the system. In this way the system as a whole can be seen to work as a civilising force in society. Indeed, properly equipped institutions should be disposed to draw up a competing budget with the Department of
Justice and thereby keep government alive to valuable criticism and supervision.That no one has been interested in such progressive ideas is more to do with the very deep suspicious nature of Departments of Justice generally as well as their inimical attitudes to the social sciences.So, what uses can model ’75 and other models like it is applied?|While the answers to this question are several, we might point out that with it we can: a) Create real policy, and monitor strategies for policy implementation; b) Compare past and present performance, and c) If we cannot predict the future, we can make projections with that end in mind, and d) We can do these things for every part of the system as well as the system as a whole. There is only one snag! We need to know what a desirable – a healthy -- CJS in overview should look like. How can we find that out? And why do we need to know it?If we haven’t got an overall idea of what a healthy CJS should look like, then our ambivalence will be reflected in our formulation of all lesser policies and , at the level of implementation, will severely paralyse and possibly negate advisable action. There are very likely to be conflicting policy aims, as, for example, when we look at the allocation of scarce resources generally or, more particularly, when we look, for example, at the purpose of the Republic’s prisons.Should prisons, for example, be fundamentally deterrent or rehabilitative? Or should we follow the history of British prisons since the Gladstone Committee of 1895? Or, again, how should we implement the findings of the Kinlen Report on Prisons? And how do such proposals affect the overall CJS?Undoubtedly, the outer limit of how crime is defined rests on the limitation of scarce resources as well as on the unfettered imagination of politicians to bring in new legislation. It would be enormously beneficial if the latter had some information about the former before punitive schemes were implemented. But these outer limits, no less that the inner workings of the system, the aims, goals and policies, affecting the lesser down-the-line issues in the CJS, are perfectly dependent on what we conceive the CJS as a whole to be.So, again, we ask: what is the purpose of the CJS as a whole?It is commonly conceived that in examining the CJS as a whole the desired end should ever and always be the abolition of the sysem itself in part and in whole; for when there is no crime, it is commonly thought, there is then no need for punishment, and without either crime or punishment the institutions that comprise the CJS become redundant.Such a view, generally associated with moralists and criminal lawyers, and those of an absolute turn of mind is quite in error. Christians unequivocally go to either Hell or Heaven and criminals are invariably found totally guilty or totally not guilty. In this vein absolute notions tend to be simplistic, pernicious, and without any sociological support. Suffice it to say that they are theoretically suspect, deriving their force from mere logic, rather than from socio-logic or criminologic. In any event, one is inclined to think that there is always a better way than deterrence besides resorting either to fear or violence.A more enduring goal for the CJS as an overall construct would be the reduction of State services to a minimum level of expenditure that simultaneously accords with an optimum level of social health and/or the minimum level of social pathology. This , of course, will not hold in all cases, but is desirable in respect of most. In realising this goal absolutes of any kind, and from whatever source and wherever amplified, should be regarded with suspicion. Phrases like “abolishing crime”, “annihilating paedophilia”, “ excising fraud”, “eradication drugs” etc. are of little avail and might better be avoided. Our aim, to the contrary, should be to achieve a balance. And the best balance proceeds from a scrutiny of our own values, and our own experiences of what works in the CJS.Already in model ’75 we can see the internal disproportions we have been building into the system for years; and though this present work is not directly concerned with events after the 1980s, it is apparent that these disproportions have become gross and unacceptable, Why the National Crime Council and the Institute of Criminology in UCD preside over such matters with such indifference is as much in need of explanation as the CJS is.So, now that we have an aim in mind for the CJS as a whole, of what assistance can it be?Past Performance, Social Policy, and PredictionOne of the most coveted objects of all science is its ability to understand the circumstances precipitating certain phenomena. As far as the social sciences are concerned this ability cannot excel the practice of predicting and/or reproducing social behaviour or the preconditions therefore. The renewed interest and phenomenal strides of biology in this respect are now legion, and while the social sciences cannot compare with the Genome project, they can nevertheless facilitate their application. Moreover, more modest enterprises ought not to be ignored. In this regard it must become apparent at this stage that assessing past institutional performance is one thing, predicting future requirements is another. Between the two lies the business of policy formation. And it is within the interstices of these enterprises that the CJS can be best developed.We might, for example, consider how we go about creating Legislative and Financial Policy (for Politicians), Police Policy (for the Commissioner of the Gardai), Legal Policy (The Minister for Justice, Equality and Law Reform), a Courts’ Policy (for the Courts Service), a Sentencing Policy (for Judges), a Prisons Policy (for the Prisons’ Service), a Probationary Policy (for the Probation Service), and a CJS Policy (for everyone interested in Irish society). The obvious advantages of reformulating and augmenting model ’75 with an econometric model, as well as yearly comparisons with itself, are to be highly commended. All of these areas can benefit from an overview of the CJS. Indeed, the overview makes policy creation a simple task. The use of econometrics, queueing theory and a host of statistical techniques can more obviously be brought into the service of the CJS to expedite and inform it about its abundant parts. Even sentencing policy, one of the most difficult
areas of social policy , can only benefit from an overview. Why sentencing policy is so difficult is because it at once unites what is social and what is individual in a uniquely discrete manner located in the personality of ‘this’ and ‘that’ judge. Even with the best of intentions ‘this’ judge cannot compensate for class antagonisms, nor can he translate what is social, scientific and healthy -- presuming he knew what these things meant – to a convicted criminal through a narrow medium of punishment.Because such an infinite and unmanageable number of details surrounds the person of the accused as well as the Judge, sight of what ought to be a fair sentence becomes either lost or impossible to formulate. Moreover, the competing aims of deterrence, rehabilitation, public safety, etc., complicates matters at the very discrete and personal level, such that without recourse to something more collective, sentencing is apt to be haphazard and uneven.If, for example, we have different Judges in different rooms looking into their hearts in order to come up with a sentence for this thief, this rapist and this arsonist, one can be sure that of one thing – none of them will get it right! They cannot get it right, because there is no right ‘to get’; nor can they know what is right until they categorise the types of rapist, thief, arsonist etc. they presume to judge with respect to those that have already been judged in the past. It is only on past performance that guidelines can in respect of these categories and the rehabilitation of these offenders can be laid down – guidelines within which the Judges themselves can benefit from their own history. Of course, everyone is different and there are endless personal details relating to gender, age, circumstances, familial, financial, personal etc. All these must be considered; but such considerations are of no avail unless they can be related to a common standard, and a common standard cannot be conceived outside of a model which houses such phenomena. In other words, if sentencing policy is to mean anything, it must be with respect to past performance, future expectations and consistency of policy aims across all courtrooms – which is precisely why these statistical matters have to be collected, reviewed and collated with reference to other phenomena comprising the system. In other words, how can a Judge know what works until he reviews the outcome of past experiences, that is, taking social workers and specialist advices into consideration? How can he know what the State can afford without being appraised of the probable numbers of cases in any given time-period?Essentially, then, what we are saying is that there can be no sentencing policy without an overview of the CJS. Neither, by the same token, can there be a Police Policy, a Probation’s Policy, a Custodial Policy or, indeed, a Legislative Policy. One might hope that the necessity for such a model was already apparent in the past seven lectures, each of which obtains by virtue of observations made narcissistically about whatever agency was being for the moment examined. Any other kind of statement – particularly statements purporting to formulate policy in any of these areas -- would, in the absence of an overall blueprint for the CJS, have been at best fortuitous and at worst redundant. And the more one considers the salutary effects of having a quantitative model, the more one realises its utility and its necessity. Moreover, badly needed national and international comparisons are impossible without a thorough quantitative account of the CJS. Without an overview all policy is impossible – which is why any policy in respect of the CJS has, historically speaking, been nonexistent. Why credible policy has been non-existent follows from the absence of a CJS in overview. Why a CJS in overview has been non-existent is another matter. Before attempting to answer this question, however, let us look at model ‘75’s most radical facility.Legislative PolicyWe can all see the sense in a policy aimed at distributing policemen in such a way as to optimise detection and prevention rates. We can also see why the courts should allocate their services in an optimum manner, and we can see why the prisons and correction services, coupled with the Probation Services, should meet the annual needs of the system as a whole in a prepared way. Equally, we can see that the taxpayer should be informed about what he is paying for and why the costs all these agencies, individually or collectively, should not be transparent to the point of predictability. In other words , when we produce a full and operative accountancy system of criminal justice, there is no reason why government departments – and hopefully more enlightened schools of criminology – cannot make projections throughout the CJS as well as for the CJS as a whole.There is , in other words, no reason why legislators cannot predict the effects of their legislative proposals.And now that we have a model to go by, these predictions can be plotted and improved upon. By statistical means it is not too difficult to envisage a group of scholars making projections in respect of the main variables in the CJS, including the number of offences likely to follow annual trends, with provisions made for new legislative norms, and/or the number of persons who are likely to be affected by way of being investigated, prosecuted, and found guilty, and/or the number of persons likely to be imprisoned, and/or the costs of all these matters in part and in whole to the taxpayers. Further it is not too outlandish to anticipate that these measures should have a financial aspect and be costed in their various expeditions through the CJS. In this way the cost to the taxpayer can be estimated in advance.Such forecasts might become the norm when politicians contemplate new legislation. Predictions as to the effects of such legislation before it is brought into effect are devoutly to be wished. Moreover, how such legislation is regulated into the future on the basis of adjustments made to the initial calculations can be an edifying experience for politician and public alike. In this way we can learn to appreciate what a powerful tool for good government the CJS-model is. With the proper attention it can rank with any economic or econometric model upon which, as we all know, so much time, energy and cash is spent in our Universities, financial institutions and State departments.This is what the CJS means and if it is not used in this connection then what meaning has it? The number of augmenting institutions have not added one whit to our knowledge of any of the aspects involved in the CJS, and yet we see no reason why every institution – whether it be the
Department of Justice, an institution of social or criminological enquiry, or the National Crime Council, who, one presumes, are meant to be more than an apology for the Church and the State – why they cannot get a team consisting of a lawyer, an administrator, a statistician and an economist to prognosticate the Department of Justice’s budget for each year, and why they cannot otherwise set out what such a budget should look like at optimum allocation, and thereby spell out what the CJS should look like at optimum levels of operation. This is what the interdisciplinary aspect of criminology means at the rockface; and yet, to the author’s certain knowledge, even to propose such a scheme for the largest college in Dublin, namely, the Dublin Institute of Technology is regarded as anathema. Any Crime Council worth its salt should study the criminal justice system minutely and be familiar with every aspect of it, so that its advices will be more meaningful than hitherto they have been. Any institute of criminology cannot be engaged in dressing up police figures without having either a theory or a comment or an explanation for any phenomena they regurgitate from those figures. Surely criminology. Even Catholic criminology – even if incapable of being critical -- must nevertheless display a rationale in order to sustain some semblance of social science.By its nature the CJS is no more than a piece of accountancy technology and does not lend itself to theory. One virtue that might arise when the CJS is fully implemented is a raising of the level of observations made in respect to the system as a whole. Indeed, institutions of social research, together with journalists who write on criminological subjects, might raise the hitherto vacuous accounts on crime and punishment -- accounts that are more calculated to inflame the senses than appeal to the intellect. And journalists familiar with the system might learn to criticize the failure of the other institutions to produce a very legible, transparent and accountable system of criminal justice.