The criminal justice act, 2006: a crushing defeat for due process values?

AuthorDermot Walsh
PositionProfessor, School of Law, University of Limerick
Judicial Studies Institute Journal [2007:1
Herbert Packer famously distinguished between two models
of the criminal process at polar opposite ends of a scale.1 At one
end is the ‘due process model’ where the goal of upholding the
rights and dignity of the individual is paramount. Guilt can be
proved only through a highly formalised, judicialised, public and
transparent procedure. The onus is wholly on the State to prove
guilt in accordance with this procedure. The individual can
remain silent and non-cooperative. A failure by the State to
comply fully with any step in the procedure will lead
automatically to acquittal. Judicial standards and process are
dominant throughout.
At the other end of Packer’s scale is the ‘crime control
model’ where the detection, prosecution and punishment of crime
is the paramount goal. The police, as the agency most closely in
touch with the coalface of crime, are at the heart of the process.
They know who the criminals are, and so they should be left with
the powers, resources and authority to establish guilt. The courts
are relegated to a secondary position in which their role is largely
to approve the case established by the police. In the crime control
model, therefore, the police are at the heart of the system, while in
the due process model it is the courts.
Traditionally the Irish criminal process has been located
firmly within the due process model. I will argue, however, that
the Criminal Justice Act 2006 is the culmination of a sustained
and successful attack on due process values by a dominant crime
Professor, School of Law, University of Limerick. Text of an address
delivered at the National Judicial Studies Institute Conference, on November
17 2006.
1 Packer, The Limits of the Criminal Sanction (Stanford: Stanford University
Press, 1968).
2007] The Criminal Justice Act 2006 45
and Due Process Values
control ideology over the past 22 years. This crime control victory
is reflected in the extent to which the criminal process has
become less judicialised and more bureaucratised. Key decisions
affecting the liberty, person, privacy and property rights of the
individual previously within the judicial domain are now
entrusted to Gardai. The centre of gravity of decision-making in
the criminal process is moving from the open transparency of the
courtroom to the closed, secret offices and cells of the Garda
station. Judicial authorisation and control is being displaced
rapidly by police discretion which is expanding and becoming
increasingly remote from judicial or independent supervision.
I will examine the contribution of the 2006 Act to these
developments by focusing in particular on some aspects of those
provisions dealing with: police powers of detention; investigation
at a crime scene; admissibility of witness statements; and anti-
social behaviour orders.
A. Detention
It is not that long ago that coercive police action impacting
on the liberty, person, privacy or property rights of the individual
was generally predicated on prior scrutiny and sanction by a
judicial or other independent body. This was so not just for
powers of entry, search and seizure but also for arrest and
detention. Apart from exceptional statutory measures to deal with
subversion or emergency situations,2 the law did not recognise a
police power to detain a suspect for investigation.3 Once they had
sufficient evidence to charge the suspect they had to arrest him,
not for the purpose of questioning or further investigation but to
bring him before a judicial authority. At this point the case passed
from the executive to the judicial sphere. It follows that executive
or police dominance in the progress of a case was displaced by
judicial dominance at a relatively early stage of the criminal
process. Any questioning of the suspect while in the custody of
the State would be done openly in the public courtroom under the
2 For example, Offences Against the State Act, 1939-1998, s.30.
3 Dunne v. Clinton [1930] I.R. 366 (H.C.).

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