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

• Author: Dermot Walsh
• Position: Professor, School of Law, University of Limerick
• Pages: 44-59

Judicial Studies Institute Journal [2007:1

44

THE CRIMINAL JUSTICE ACT, 2006:

A CRUSHING DEFEAT FOR

DUE PROCESS VALUES?

PROFESSOR DERMOT WALSH∗

INTRODUCTION

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

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∗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 200645

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.

I. POLICE POWERS

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.

3Dunne v. Clinton [1930] I.R. 366 (H.C.).