The quashing of Dermot Laide's manslaughter conviction has raised public concern about the justice system, writes Carol Coulter
The pain and shock are still raw for the parents of Brian Murphy, who lost their son to a brutal assault outside Dublin's Burlington Hotel four and a half years ago. Their grief and anger has focused increased attention on our criminal justice system.
About 50 people die violently at someone else's hands every year. The majority are killed by someone they know, often in a domestic context. The killing of a young man by a group of other young men is unusual, though unfortunately not unknown. The fact that a large number of people saw it happen makes many wonder why, now that the only conviction for manslaughter has been overturned, no one has been convicted of killing Brian Murphy.
Evidence is gathered in many ways. The main source of evidence is interviews with witnesses, and some 140 people were interviewed in connection with the killing of Brian Murphy. One feature of the trial was the lack of any clear identification of those actually involved in the kicking of the victim as he lay defenceless on the ground.
There could be many explanations for this. The fatal incident took a short time. Many of the witnesses were drunk. Some may not have been able to see what was happening. There were a number of fights going on.
It has also been suggested that a kind of omerta prevailed among the middle-class youngsters who were present at the scene, many of whom knew each other and those involved in the fighting. This is possible.
But if so, it would not be unusual. A murder trial relating to a gangland killing in Limerick collapsed because witnesses said they could not recall what happened. And has everyone forgotten how members of the Garda Síochána were unable to recall seeing colleagues hitting demonstrators at the 2001 Reclaim the Streets demonstration, in broad daylight and, presumably, sober?
The prosecution can only go to court with the evidence gardaí have been able to gather. This depends on the level of co-operation they receive. It is a fact that in all walks of life people can be reluctant to give information that will get their friends into trouble.
The trial process itself has come in for criticism from the Murphy family and many who sympathise with them. It certainly revealed to the public, in more detail than usual because of the extensive media coverage, how our system works, and the fact that it sometimes fails to get to the truth.
We inherited an adversarial legal system from Britain, as did the United States, Canada, India, Australia and the other countries in the common law world. Like other legal systems in the civilised world, it is based on the idea that society as a whole, not the families of the victims of crime, take responsibility for investigating a crime and punishing the wrongdoer. This task is assumed by institutions of the state, notably the police and criminal justice system.
But because the state is potentially all-powerful, with the power to incarcerate and inflict other punishments, citizens' rights are also protected by law. In Ireland many of these rights are written down in the Constitution, and undoubtedly historical experience of the abuse of people's rights by a foreign state power informed the formulation of some of those rights.
ONE SUCH CONSTITUTIONAL right is the sanctity of a person's home, which can only be violated in accordance with law. That is why strict rules are laid down for the issuing of search warrants and other tools that permit the Garda Síochána to enter a person's home. Those rules, as we have seen in a number of recent cases, are not always observed. In the Murphy case, this led to the quashing of Desmond Ryan's conviction for violent disorder. If the rules are not followed, our courts have imposed a heavy penalty on the State institutions involved, and disallowed evidence obtained.
Some suggest that this seems unduly weighted in favour of a wrongdoer. But we should contemplate the alternative - allowing the Garda to pursue evidence without any legal or procedure framework.
Gardaí are human. They are regularly under pressure to produce results in a criminal investigation. It would be surprising if they were not tempted to use shortcuts from time to time. The annals are full of the miscarriages of justice that ensue when police forces do this.
By a bitter irony, the week of the quashing of the Laide conviction also saw an apology to the family of Dean Lyons, the homeless drug addict from whom a confession was extracted to the brutal murder of two women psychiatric patients. It later emerged that he was innocent. No explanation for his confession has been offered alongside the apology, but one can only conclude that his rights were not adequately protected.
The truth about a crime does not automatically make its way into court in the form of admissable evidence. The truth concerning the crime may not be fully known by any witness; it may be known, but the witness or witnesses may not be willing to reveal it; they may have revealed it, but in circumstances where their rights were not observed, and therefore their testimony should not be used; the accused may have made a truthful confession, but under duress, and the confession should then also not be used.
Once in court, the accused benefits from the presumption of innocence, which means that the prosecution must prove its case beyond reasonable doubt. It is the job of the defence to cast doubt on the evidence presented by the prosecution.
This may appear like a game to observers, and there is no doubt that barristers often display a competitiveness that can be upsetting to victims' families. But they are trained to uphold the integrity of the legal system, and to ensure that the rules are kept. If they find breaches of the rules on the part of the prosecution, they will use this in defending their clients.
This does not mean the prosecution is weak. It has the full resources of the Garda at its disposal. Only last week the Minister for Justice introduced new measures to strengthen the hand of the Garda Síochána in investigating crime, some of these measures were seen as excessive even by Government backbenchers.
The balance between the rights of those facing investigation and prosecution by the State, and the powers of those doing the investigating on behalf of victims of crime and society as a whole, is constantly being fine-tuned by the legislature.
THERE WILL ALWAYS be differences of opinion as to where that balance lies. But it is far from certain that there is a better system out there.
In France, for example, where an inquisitorial rather than an adversarial system operates, an examining magistrate drives the case. He or she examines the initial evidence and decides if there is enough to recommend to the prosecutor that suspects go to trial or not.
Suspects who do not co-operate with the system can have that held against them. Critics point out that this means vulnerable suspects are more likely to confess. A three-judge court will then decide, on the balance of probabilities rather than beyond reasonable doubt, whether the accused committed the crime.
As the criminal justice systems in the EU are drawn closer, co-operation between them will increase. But even the justice ministers in those countries that adhere to the common law tradition, who can rarely be accused of being soft on criminals, have little enthusiasm for abandoning it in favour of the inquisitorial system favoured by a majority of EU member states.
The adversarial system, with all its faults, has stood the test of time.