Michael McDowell's legislation has more to do with the impending election than combating gangland and organised crime, writes Gráinne Malone.
Earlier this year a heroin addict in his 20s, let's call him Dave, used a knife to hold up a chemist's shop in Dublin. A regular offender, Dave was well known to the Garda but, under the influence of the drug, he made little attempt to conceal his identity from either the staff or the shop's close circuit television camera.
Within hours of viewing the footage gardaí had arrested him and he was taken to his local station. Here, a drill with which he was all too familiar kicked in. If he declined to co-operate, Dave knew, he might be deprived of methadone and even tobacco for a prolonged period of time. Ultimately, the officers dealing with his case might end up objecting to bail for, given his record, they could quite reasonably expect a judge to accept that he was likely to offend again while he awaited trial.
If, on the other hand, he confessed Dave knew he was likely to be released. Sure enough, this is the course of action he chose. Within hours he was back on the streets and six weeks later he committed another robbery. The Garda, meanwhile, sent a file to the Director of Public Prosecutions and 12 months later Dave was finally charged with an offence.
The story is not only true, the sort of scenario involved is rather common in some of Ireland's less affluent urban areas and is routinely encountered by legal practitioners whose clients sometimes include some of the country's most marginalised individuals.
Given the near consensus within the media that gardaí are ill equipped legally to deal both with the challenges they face during the course of their day-to-day duties and the growing competition between politicians to look "tough on crime", the victims of the offences committed by somebody like Dave - while he is at liberty having already committed an offence - might be forgiven for believing that an overly liberal system lies at the heart of their problems.
The authorities certainly do not generally tell them that many such cases stem from a reluctance of the Garda to avail of those powers already open to them while they often struggle to obtain help or information from the hugely dedicated but overworked and improperly resourced Court Support Services (formerly Victim Support).
It is hard not to think of cases like Dave's whenever I consider Minister McDowell's Criminal Justice Bill, a piece of legislation currently being rushed through the Oireachtas almost without substantial opposition.
After a succession of previous moves to limit the rights of the accused and extend those of the Garda have failed to produce the promised results, we should be familiar with the drill by now.
In this instance, the right to silence - long regarded as a key cornerstone of our system - along with the associated right against self-incrimination is to be eroded, while the mere opinion of senior Garda officers may in future be accepted as evidence without any supporting facts when it comes to determining whether an accused is to be granted bail or not. Also proposed are extended initial periods of detention for questioning (despite the wholly inadequate facilities available at most stations) as well a wider range of mandatory sentences.
The Minister has described such significant changes to the criminal legal framework as a response to the likes of gangland, gun and organised crime. The reality, though, is that one of the Bill's most severe and far-reaching measures - the effective removal of the right to silence - already applied to just these types of crimes whereas it is now to be extended to all "arrestable" offences, a rather extensive list that can include the likes of shoplifting and criminal damage.
In the event that silence is maintained this can be viewed as "corroboration" of evidence to which the questioning relates. Here, the Minister's aim is to go beyond that which prevails in Britain where, contrary to the position in this jurisdiction, a person's solicitor is allowed to remain with their client during questioning.
The Bill, however, is viewed by many lawyers as lacking clarity. If lawyers find difficulty in deciphering it properly, it seems certain that problems lie ahead, whether it is with the Garda's interpretation of the new rules within which they must operate, their ability to make accused persons properly aware of those rules or, ultimately, the view taken by the courts in the light of the constitutional challenges that will inevitably be mounted against these provisions, if and when they are enacted.
In addition, none of the shortcomings in the safeguards currently in existence to protect the rights of the accused from abuse are in any way addressed by the new Bill. Videotaping of interviews will not be made mandatory but can be curtailed with the agreement of an often vulnerable suspect. The provision of legal advice to the suspect will only be available prior to questioning if his or her solicitor arrives in what the station's "member in charge" adjudges to be a "reasonable" period of time.
These are the sort of issues that have prompted a wide range of individuals and organisations with expertise in this area, ranging from the Law Society to the Human Rights Commission and including a considerable number of the Minister's former colleagues at the Bar, to criticise both the content of the Bill and the hurried nature of its introduction into law.
The reality is that the Bill fails to do anything to really advance the cause of victims of crime. Its supposed targets, meanwhile, seem less likely to be affected by its provisions than the likes of Dave, himself a victim of sorts of the type of criminals that the Minister insists he is really after.
Hard cases, as the Minister has been known to say himself, make bad law but so too, it seems, do impending election campaigns.
Gráinne Malone is a solicitor in Malone Hennessy solicitors.