New law will eliminate Double Jeopardy.

Irlbo

Deleted User wrote: »

If all the gang members, every last one of them, went to prison but in order to make sure that happened you had to accept that about 25 innocent people were going to end up in jail too so you didn't miss any of the gang members would that be acceptable?

People are always glib about civil liberties until they need them.

Spot on,explained it better then I ever could

Liam Byrne

Deleted User wrote: »

If all the gang members, every last one of them, went to prison but in order to make sure that happened you had to accept that about 25 innocent people were going to end up in jail too so you didn't miss any of the gang members would that be acceptable?

People are always glib about civil liberties until they need them.

Fair enough, and you're right, but you're also scaremongering.

Again, go back to what's proposed; it's by no means aimed at normal innocent people.

If it were some sort of internment based on suspicion, fair enough, but it's where (a) there was enough evidence for a court case and (b) the court case fell through under suspicious circumstances and (c) significant additional evidence was found.

If you can show me an example of an innocent person that satisfies a, b & c, then I'll take your objection seriously.

Liam Byrne

Liam Byrne wrote: »

If you can show me an example of an innocent person that satisfies a, b & c, then I'll take your objection seriously.

Every single person accused of a crime is innocent until proven guilty. No matter how guilty you "know" they are.

Also, how am I scaremongering exactly? With the gang member's analogy? It has been a central idea of the legal system in Ireland and England for 5 centuries that it is better to see 10 guilty men go free than see a single innocent man suffer.

Mostly I have a pretty big problem with your logic. "Innocent people have nothing to fear". This is a terrible justification for your position. How about you try this one instead: The State should, so as to ensure the proper administration of justice, have the ability to ask the court to re-try an issue where they can show that there is substantial evidence, unavailable to the prosecution at the material time of the initial substantive trial, that would rebut the defence of autrefois acquit.

The benefit of this line of logic is that it is the exact line of logic which the Irish courts have been using for a good number of years now. Good men with good intentions should not set precedents for bad men with bad ones. The logic of "the innocent have nothing to fear" means that there is literally no civil liberty which cannot be impinged upon. Domestic surveillance of all homes (who cares if the Government hear what you say, only the guilty have something to fear), polygraph tests for everyone yearly to make sure they have broken no crimes; after all only the guilty will have something to fear, and so on and so forth.

You can accuse me of scaremongering in that last paragraph if you like. However, it is the ultimate conclusion of the logic you espouse. There are better ways to formulate the necessary framework for double jeopardy than your logical proposition.

Liam Byrne

Deleted User wrote: »

Mostly I have a pretty big problem with your logic. "Innocent people have nothing to fear".

And given the requirement for significant additional evidence than was available during the initial case (possibly due to witness intimidation) I'll stand over that statement.

Deleted User wrote: »

How about you try this one instead: The State should, so as to ensure the proper administration of justice, have the ability to ask the court to re-try an issue where they can show that there is substantial evidence, unavailable to the prosecution at the material time of the initial substantive trial, that would rebut the defence of autrefois acquit.

I'm not particularly au fait with what "autrefois acquit" means, but other than that, what's the difference between what you posted and what's proposed ?

the DPP can apply to have cases retried following an acquittal where compelling new evidence later emerges.

Please tell me the difference, because I can't see one.

Deleted User wrote: »

The logic of "the innocent have nothing to fear" means that there is literally no civil liberty which cannot be impinged upon. Domestic surveillance of all homes (who cares if the Government hear what you say, only the guilty have something to fear), polygraph tests for everyone yearly to make sure they have broken no crimes; after all only the guilty will have something to fear, and so on and so forth.

You're now quoting me out-of-context in order to support your stance.

In what's proposed, the innocent have nothing to fear. Once again, you're stretching my statement beyond that in order to scaremonger and support your rejection.

Deleted User wrote: »

You can accuse me of scaremongering in that last paragraph if you like. However, it is the ultimate conclusion of the logic you espouse. There are better ways to formulate the necessary framework for double jeopardy than your logical proposition.

How did you know I'd do that ? Probably because it is NOT "the ultimate conclusion of the logic" I "espoused". It's the conclusion of your extension of the logic I espoused.

I've made it clear MANY times in this thread, but you've ignored it. IF a witness is intimidated, then the change will improve things, and my statement was that innocent people wouldn't intimidate a witness, and so have nothing to fear; also "compelling new evidence" (not vague, not hearsay, not trivial - compelling) could hardly become available (because if they're innocent, there couldn't be any) so again the innocent have nothing to fear from this.

Please stop misrepresenting me and implying that I'm blanketly saying "the courts can do what they like and innocent people won't be affected". This discussion is about 2 items that were clearly referenced in the initial post:

The Director of Public Prosecutions is to be given new powers to seek a fresh trial for a crime suspect if the initial case ends in an acquittal due to witness intimidation or perjury.

The Bill will include another measure.....the DPP can apply to have cases retried following an acquittal where compelling new evidence later emerges.

And in that context I stand over my statements 100%.

If you want to discuss that, fire away. But stop extending my opinions to the point of misrepresenting them.

Liam Byrne

Liam Byrne wrote: »

And in that context I stand over my statements 100%.

If you want to discuss that, fire away. But stop extending my opinions to the point of misrepresenting them.

3 things:

1) My post, if you'd read it, stated that what the government is proposing is already the law. I have no problem with it being the law. I have a problem with the way you justify it.

2) I am not "misrepresenting" your position. I am simply trying to show you where that line of logic can be made to go. My argument is not with your agreement with the proposals, it is with the thinking which underlines your agreement. It is dangerous. As I stated in a previous post; good men with good intentions should not set precedents for bad men with bad ones. I am sure your intentions are pure but others can follow your precedent and twist it. That is why we must be careful how we frame these things. This is not scaremongering, this is common sense. Anyone who thinks logic like this cannot be twisted to other ends should read Nietzsche and his influence on the 20th century.

3) Autrefois acquit means previosuly acquitted. It is a defense to another trial being brought against the same person for the same crime where they have been acquitted previously but can be rebutted by the methods I have mentioned previously.

Liam Byrne

Deleted User wrote: »

3 things:

1) My post, if you'd read it, stated that what the government is proposing is already the law. I have no problem with it being the law. I have a problem with the way you justify it.

My argument is not with your agreement with the proposals, it is with the thinking which underlines your agreement. It is dangerous.

I don't see how, because my thinking is in a specific context as stated / proposed. Saying "it's dangerous if extended" is misrepresenting me because a number of posts already imply that I'm in favour of extending it, or that extending it is a natural progression of my thinking.

If I say that I think Gardai should be entitled to shoot a known criminal who's armed, before someone innocent gets shot / hurt, because someone shouldn't be armed, then that's my opinion.

I do not extend that thinking to other scenarios - it is a specific scenario where the scum should be responsible for his actions, and I'd prefer to see them dead than an innocent bystander, regardless of whether the scumbag was "going to" shoot. Who knows what's in a psycho scumbag's mind ? Easy say afterwards that they weren't going to shoot - then why have a gun ? If a cop says "drop it" and they don't, and it's a known criminal, then shoot.

And although you could say "if you extend that thinking.....", there's no reason to. I'm not proposing extending it, or condoning extending it, or anything else.

So ALL of my comments are based on the precise scenario described and I stand over them.

Saying "but that might lead to...." is odd, considering you choose not to acknowledge what changing nothing might lead to.

I am sure your intentions are pure but others can follow your precedent and twist it.

It seemed to me like you were doing that yourself. Maybe that was to show where it could lead to if extended and abused, but I never proposed or condoned extending or abusing it.

And the thread was skewed by the fact that some posters seemed more capable of giving the benefit of the doubt to scum rather than Gardai......Gardai are obviously a lot less likely to abuse anything than scum who already abuse people and systems and couldn't care less.

Are Gardai perfect ? Is anyone ?

Yes, we need some safeguards but - as I've said all along - what's proposed is required and fair.

OK. You really cannot seem to get what I mean.

Once more, in answer to the last line of your post. This law will change NOTHING. The law, as proposed, is the way the law works already.

Your opinion is fine. I obviously cannot explain this to you so here is my point as clear as I can make it.

When people begin to accept the idea of laws being ok because innocent people have nothing to fear from those laws then it opens the door to people who will move that line slowly towards a more dangerous place.

We cannot accept that innocent people having nothing to fear is a reasonable justification for this law. There are reasonable justifications, just as the Supreme Court used when they established the law in this area, but that is not among them.

Liam Byrne

Deleted User wrote: »

OK. You really cannot seem to get what I mean.

Your opinion is fine. I obviously cannot explain this to you so here is my point as clear as I can make it.

When people begin to accept the idea of laws being ok because innocent people have nothing to fear from those laws then it opens the door to people who will move that line slowly towards a more dangerous place.

And I cannot seem to be able to explain to you that there's currently a wide open door that's taking us to a FAR more dangerous place.

I NEVER proposed opening any other doors, or opening any doors further.

I fully support what is proposed (both items quoted) - no more, no less.

Dyr

Just out of curiosity what's the conviction rate for murder's in this country in comparison with other European countries?

I don't think that we should reward the gardai and state's prosecution services for their failure to secure convictions by lowering the net further for them. Especially in light of McBrearty.

Liam Byrne

Liam Byrne wrote: »

And I cannot seem to be able to explain to you that there's currently a wide open door that's taking us to a FAR more dangerous place.

Care to elaborate? Do so without resorting to scaremongering.

I am not saying I disagree that gangs are a serious problem in our society, nor am I saying that this legislation is essentially bad. (Although I do think that it's redundant given it is the law anyway)

What I am saying is that people who accept the idea that the Government can enact laws like this because innocent people will have nothing to fear are more dangerous in the long run to our democracy than the gangs are. If you do not understand why legal protections exist then educate yourself, you might need them someday.

sid4lev

Is this not in potential breach of Article 6 ECHR (i think A6 is the one that deals with fair trial etc...)? However, i do think that in light of substantial new evidence there is no reason why an acquitted person should not be re-tried, especially in instances of witness/juror tampering. It will be interesting to see though, the actual standard of evidence relating to such tampering, required to re-try under the new bill.

johnnyskeleton

Deleted User wrote: »

The State can hold back evidence from the court and produce "new and substantial" evidence to drag out a process that takes years as it is. I am not saying this would happen, simply pointing out that the law is certainly apt to being abused.

Most likely the test for a new trial will be significant evidence that was not available at the time of the original trial or which could not have been obtained with reasonable diligence. So new evidence that could have been discovered at the time of the first trial won't be enough.

I still think that this new law, if introduced, will be used very rarely in practice.

johnnyskeleton

johnnyskeleton wrote: »

Most likely the test for a new trial will be significant evidence that was not available at the time of the original trial or which could not have been obtained with reasonable diligence. So new evidence that could have been discovered at the time of the first trial won't be enough.

That's how the law is used currently because this is the law. My hypothetical was really a very over-exaggerated scenario to show how it could potentially abused but in practise the courts would never allow this.

johnnyskeleton

Liam Byrne wrote: »

but if witnesses are being intimidated and convictions falling through BECAUSE OF THAT, then that implies the guy is guilty and something needs to be done.

Something does need to be done, but something isn't anything at all. If witness intimidation is the biggest problem in your view, then how does abolishing the rule against double jeopardy assist? If important potential witnesses are being intimidated, it is very likely there will be no trial at all and if witnesses are being intimidated during trial we have s.16 which plugs that hole nicely. Are you suggesting that the abolition of this rule will somehow make intimidated witnesses no longer intimiated?

Liam Byrne wrote: »

If anyone wants to have a reasoned discussion, fair enough; mind you with pathetic comments like "police facist state Ireland" flying around, I shouldn't be surprised.

At risk of blowing my own trumpet, I made a reasoned contribution earlier about how I think this proposal would only have a minor impact on the criminal justice system, but you didn't respond to that. Instead you chose to respond to what (I'm taking another liberty here) you percieve to be a liberal point of view so that you can attack it with your populist nonsense. No one here is saying they want to see actual criminals not being punished, but you have gone off on a rant.

Liam Byrne wrote: »

Ireland has a problem with serious criminals, and it needs to be sorted NOW!!! Actually, it needed to be sorted ten years ago when FF promised "zero tolerance", but that was just an election ploy that they abandoned as soon as they got in.

Is the abolition of the rule against double jeopardy really going to deal with this? The "problem" of crime cannot be legislated away, but to deal with crime you need provide resources and make substantial contributions to the criminal justice system. One glaring aspect of how illogical these attempts to legislate away crime are is that this proposal would mean more prosecutions. But the DPP is underfunded to the point of reducing the number of prosecutions. Indeed, all these new acts which are often of marginal benefit, are a waste of resources as the DPP has to get the CPS & gardai au fait with the changes.

sid4lev

sid4lev wrote: »

Is this not in potential breach of Article 6 ECHR (i think A6 is the one that deals with fair trial etc...)? However, i do think that in light of substantial new evidence there is no reason why an acquitted person should not be re-tried, especially in instances of witness/juror tampering. It will be interesting to see though, the actual standard of evidence relating to such tampering, required to re-try under the new bill.

No because, as I have already pointed out, the "double jeopardy" rule is not a bar to future re-trial, simply a very strong defence to it.

David Goldberg SC in an article in the Irish Law Times entitled "How Many Trials to Babylon?" (published 2008) points to the recent decision, mentioned by me in a previous post, of the Supreme Court in DS v District Court Judges of Cork. There is no bar to double, or even triple jeopardy, once; according to Justice Susan Denham, all the relevant facts of the case have been considered.

There has been no Constitutional argument on this issue under Art. 38.1 but given the courts stance on this matter it is unlikely it considers its own procedures to be unconsitutional.

johnnyskeleton

Deleted User wrote: »

That's how the law is used currently because this is the law. My hypothetical was really a very over-exaggerated scenario to show how it could potentially abused but in practise the courts would never allow this.

Well it's actually the test for the CCA / SC to allow new exculpatory evidence to be used to get a retrial after a conviction.

As the law stands, an acquittal is an acquittal.

johnnyskeleton

johnnyskeleton wrote: »

Well it's actually the test for the CCA / SC to allow new exculpatory evidence to be used to get a retrial after a conviction.

As the law stands, an acquittal is an acquittal.

Or after an acquittal. Autrefois acquit is the same defence as autrefois convict for all intents and purposes.

johnnyskeleton

Deleted User wrote: »

No because, as I have already pointed out, the "double jeopardy" rule is not a bar to future re-trial, simply a very strong defence to it.

David Goldberg SC in an article in the Irish Law Times entitled "How Many Trials to Babylon?" (published 2008) points to the recent decision, mentioned by me in a previous post, of the Supreme Court in DS v District Court Judges of Cork. There is no bar to double, or even triple jeopardy, once; according to Justice Susan Denham, all the relevant facts of the case have been considered.

That was where there were jury disagreements. Where someone has been acquitted by a jury, by direction of the trial judge or the DPP enters a nolle in certain circumstances, there is no going back.

As an aside, I think a with prejudice appeal against a direction of a trial judge is probably a good thing.

johnnyskeleton

Deleted User wrote: »

Or after an acquittal. Autrefois acquit is the same defence as autrefois convict for all intents and purposes.

No, the state don't have a right to appeal an acquittal, even if there is new evidence.

Liam Byrne

johnnyskeleton wrote: »

If important potential witnesses are being intimidated, it is very likely there will be no trial at all

Maybe that's a possibility, but it definitely isn't the only outcome! In the Gerry McCabe case, the only way to secure ANY conviction was to accept manslaughter, mainly because potential witnesses changed their story as a result of suspected intimidation.

Those responsible were convicted of manslaughter, but the option of trying them for murder would still remain if this new law was in and additional evidence was discovered to compensate for what that witness would have said.

johnnyskeleton wrote: »

Are you suggesting that the abolition of this rule will somehow make intimidated witnesses no longer intimiated?

Question answered above, but that question is ridiculous! For the record I never said anything so stupid.

johnnyskeleton wrote: »

At risk of blowing my own trumpet, I made a reasoned contribution earlier about how I think this proposal would only have a minor impact on the criminal justice system, but you didn't respond to that.

Every "minor impact" in a positive direction is welcome at this stage.

johnnyskeleton wrote: »

Instead you chose to respond to what (I'm taking another liberty here) you percieve to be a liberal point of view so that you can attack it with your populist nonsense. No one here is saying they want to see actual criminals not being punished, but you have gone off on a rant.

Re your post - you're right in many respects; I didn't ignore it, but it didn't need to be expanded on - as with most issues (Dell being the latest) FF are great setting up task forces or being seen to do something while actually doing nothing meaningful. So I agree with that aspect of what you said.

But accusing me of "populist nonsense" ???? Sorry, that's bull**** of the highest order. Firstly, it's not "populist", it's MY view. I don't care whether other people have the same view or not. You're not dealing with some pathetic sheep here who can't form their own opinion.

It's also not "nonsense"; I have the opinion, as stated, and I've explained it as well as its limits.

Secondly, re "No one here is saying they want to see actual criminals not being punished", there were plenty of examples which at least appear to have that slant:

For myself, I'd rather take my chances with criminals.

Welcome to police state facist Ireland.

johnnyskeleton wrote: »

The "problem" of crime cannot be legislated away, but to deal with crime you need provide resources and make substantial contributions to the criminal justice system.

Agreed. But like I said above any improvement in the armoury against organised crime, however small, is an improvement for society in general.

Finally @ Kayroo:

Deleted User wrote: »

Care to elaborate [re the "currently a wide open door that's taking us to a FAR more dangerous place"] ? Do so without resorting to scaremongering.

The first murder of an innocent bystander in Limerick over Christmas; that following the same result for an innocent carpenter plumber in Dublin earlier in the year. A guy getting his hand cut off with a Samuri sword in broad daylight in a pub in Dublin. The Gerry McCabe case originally mentioned in the newspaper snip.

Whatever about the drug-dealer shot in broad daylight in Dublin during the week (the less of those around the better) that's a clearly worsening scenario under the current "door", with events taking place in broad daylight and affecting innocent people.

johnnyskeleton

Liam Byrne wrote: »

Maybe that's a possibility, but it definitely isn't the only outcome! In the Gerry McCabe case, the only way to secure ANY conviction was to accept manslaughter, mainly because potential witnesses changed their story as a result of suspected intimidation.

Those responsible were convicted of manslaughter, but the option of trying them for murder would still remain if this new law was in and additional evidence was discovered to compensate for what that witness would have said.

If such a case arose today, because formal statements were made, s.16 CJA 2006 can be used to introduce those statements in evidence.

However, if the current proposal was passed, they wouldn't be able to retry the accused as they pleaded guilty to manslaughter and this was accepted by the DPP. To allow the DPP to now prosecute them for murder is not intended by the current proposal, and if it were, it would be riding roughshod all over the accused's rights which would most likely be unconstitutional. If it were the case that the DPP could accept a guilty plea and then later try them for a higher offence, it would destroy the legal system as no one would plead guilty and criminal trials would be backed up until 2015.

Liam Byrne wrote:

Question answered above, but that question is ridiculous! For the record I never said anything so stupid.

My point is that this proposal will not have any major impact on criminal justice, and there is little point discussing the problems of witness intimidation and gangland crime in relation to this proposal, when it doesn't really address those issues. For the government to suggest it is an effort to tackle serious gangland crime is equally without any real basis.

Liam Byrne wrote:

Every "minor impact" in a positive direction is welcome at this stage.

Re your post - you're right in many respects; I didn't ignore it, but it didn't need to be expanded on - as with most issues (Dell being the latest) FF are great setting up task forces or being seen to do something while actually doing nothing meaningful. So I agree with that aspect of what you said.

Not to me. I'm not happy with the government's superficial efforts to deal with crime. I don't want a minor positive step, I want a major positive step. However, that means the government has to spend money on gardai, prisons, courts & protecting witnesses. They don't want to spend the money on this, they are much happier bailing out their mates and giving the people any old legislative reforms so that they can pretend they are tough on crime. They're not.

Liam Byrne wrote:

But accusing me of "populist nonsense" ???? Sorry, that's bull**** of the highest order. Firstly, it's not "populist", it's MY view. I don't care whether other people have the same view or not. You're not dealing with some pathetic sheep here who can't form their own opinion.

It's also not "nonsense"; I have the opinion, as stated, and I've explained it as well as its limits.

Secondly, re "No one here is saying they want to see actual criminals not being punished", there were plenty of examples which at least appear to have that slant:

I'm not saying that everything you have said is populist nonsense, but a lot of what you are saying is contrary to the presumption of innocence. Comments like this:

Liam Byrne wrote:

(a) there was enough evidence for a court case and (b) the court case fell through under suspicious circumstances and (c) significant additional evidence was found.

If you can show me an example of an innocent person that satisfies a, b & c, then I'll take your objection seriously.

Liam Byrne wrote:

Under what circumstances exactly would you see the judicial system coming back to court with significant and substantial additional evidence if the person was innocent ?

suggest that you think that if the state has evidence then the person must be guilty. However, there have been numbers cases where the evidence was incorrect or even fabricated (Frank Shortt, Birmingham 6 for example). So merely having evidence is not enough, the jury must be satisfied that the person is guilty beyond reasonable doubt. Unless and until the jury find that person guilty, they are innocent.

Liam Byrne wrote:

The first murder of an innocent bystander in Limerick over Christmas; that following the same result for an innocent carpenter plumber in Dublin earlier in the year. A guy getting his hand cut off with a Samuri sword in broad daylight in a pub in Dublin. The Gerry McCabe case originally mentioned in the newspaper snip.

Whatever about the drug-dealer shot in broad daylight in Dublin during the week (the less of those around the better) that's a clearly worsening scenario under the current "door", with events taking place in broad daylight and affecting innocent people.

No law will get rid of all crime, and I don't see how the current proposal or any of the other minor government will change that. Just because crime happens or seems to be worse now than before is no reason to reduce the rights of the accused - each proposal must be based on correcting a specific problem in the system. To combat crime we need more Gardai and resources. Simple as.

Liam Byrne

johnnyskeleton wrote: »

I'm not happy with the government's superficial efforts to deal with crime. I don't want a minor positive step, I want a major positive step.

Then we agree on the major steps being required. I take your point about the current Goverment mindset being "sure if we make a minor one, it'll get the public off our backs for a while", and I wish that weren't the case; but because it is, I do think minor steps should be put in place while we still lobby for the major ones.

johnnyskeleton wrote: »

Each proposal must be based on correcting a specific problem in the system.

Witness intimidation is a specific problem; I'd see this as a small step to helping with that, if actual evidence is later found to replace a witness that copped out. You quoted another way of handling that, and I don't know the details, so maybe you're right that this is no longer required; if so, I'll bow to superior knowledge on that, but you can see where I was coming from.

johnnyskeleton wrote: »

To combat crime we need more Gardai and resources.

100% agreed. Beverly Cooper Flynn's €41K would have put an extra Guard on the beat.

johnnyskeleton

Liam Byrne wrote: »

Witness intimidation is a specific problem; I'd see this as a small step to helping with that, if actual evidence is later found to replace a witness that copped out. You quoted another way of handling that, and I don't know the details, so maybe you're right that this is no longer required; if so, I'll bow to superior knowledge on that, but you can see where I was coming from.

If a witness has made a written statement but doesn't give their evidence or changes their evidence in court because of intimidation, that statement can be used as evidence of the facts contained in it. In years to come we might see this system being abused.

Liam Byrne wrote: »

100% agreed. Beverly Cooper Flynn's €41K would have put an extra Guard on the beat.

Bailout for Anglo Irish Bank (most of which will be lost) = €1.5 billion.
Total cost of running the gardai including paying all the gardai = €1.5 billion.
Total cost of the DPP's office for all prosecutions = €50 million.

That's why I get angry with these legislative proposals which allow them to talk big, but really make little difference to the criminal justice system, and IMO will make no difference whatsoever in terms of on the ground crime fighting.

CDfm

I am totally against this as there are many cases where the evidence does not support a conviction.

IMHO - when this is removed for criminal trials it will trickle into all trials and be used as the lowest common denominator standard.

You have the special criminal court which itself dilutes human rights and does not give rights to a jury trial. The conviction rates in courts such as this worldwide that are presided over by a judge or judges without a jury tend to have much higher conviction rates.

In addition to this take the McBrierty case -surely we are not that gullible and trusting that we believe oour sytem cannot be abused by prosecutors.

CDfm

Liam Byrne wrote: »

100% agreed. Beverly Cooper Flynn's €41K would have put an extra Guard on the beat.

Which beat and male or female?

I was in town over Xmas and saw 2 female Gardai on Dame Street on what can only be described as out for a nice stroll. They were so relaxed I was sure there was no crime and Christianity was adopted by the whole country.

My female companion also noticed them and thought the same.

There is a place for women police - but they have to be effective and not decoration.