Criminal justice conference:A Supreme Court judge yesterday strongly criticised the make-up of an expert review group set up by former minister for justice Michael McDowell to examine if the law needs to be changed in order to rebalance criminal justice. He said it was part of a sustained process which was eroding individual rights in the criminal justice system.
Mr Justice Adrian Hardiman said he found it "quite remarkable" that the review group set up last November did not include a single practising criminal lawyer and yet the group was expected to come up with proposals regarding changes to the criminal justice system.
"The rebalancing committee was a body of people, not one of whom had five minutes' experience of prosecuting or defending in a criminal court. I have great respect for many of its members, but they laboured under that singular disadvantage," he said.
Mr Justice Hardiman instanced the challenge which faced the group on the issue of a defendant's previous record being disclosed and said that he could not understand how anyone who was never involved in a criminal trial could estimate the effect of such disclosure.
"I shall be submitting that it is part of a very obvious and very sustained procedure to change the assumptions as to criminal justice," said Mr Justice Hardiman, who added that the word "rebalancing" had worrying echoes of some of the "Blairite" changes introduced in the UK.
Tony Blair was on the record as saying that he believed the social contract in the UK was being rewritten because the average citizen there now places more emphasis on security than on liberty, and he feared something similar was being attempted here in Ireland.
"What are you rebalancing - something that isn't working? You've made a massive assumption, and this is actively used by those who adopt a Tony Blair approach - I never thought I would liken Michael McDowell to that particular approach, but we have used it here."
Mr Justice Hardiman, who was speaking at a conference organised by the Centre for Criminal Justice and Human Rights at UCC, also criticised a lack of informed debate. He said he had become greatly concerned about the tone, content and context of the debate about the Irish criminal justice system and said that it was marked by "over-simplification and populism", which had led to great public misunderstanding of the issues involved.
Among the two most worrying developments was the presumption now prevalent that those charged with an offence were guilty of that offence, and this was reflected in a recent election campaign slogan by one political party promising tougher bail for criminals.
Such a promise ignored the fact that those seeking bail had not yet been convicted of any crime, said Mr Justice Hardiman.
"The difficulty with a system dominated by an approach like that is that it is very difficult to find any scope at all for a proper acquittal," he warned.
The second fundemental flaw in public debate about the changes was an assumption that such changes affected only the rights of criminals and not ordinary citizens.