I don't understand our criminal justice system

Say I seriously assault someone.

A few days later the Gardai call to my door.

I am charged but I say nothing.

I go to court and I get bail.

A few years later I get a court case.

I plead not guilty.

I don't say anything in court.

I try to see if the passage of time makes it more difficult for the Gardai to succeed in their prosecution.

Even if I am found guilty I will probably get a light sentence or a suspended sentence.

Brendan

I don't see why I should have a right to silence.

When charged I should either plead guilty or not guilty immediately. If I say nothing, then I am simply guilty.

If I plead not guilty, I should be put in the dock and answer questions from the prosecution.

While there should be a presumption of innocence until proven guilty, if I remain silent, the presumption should be guilty until I prove otherwise.

Brendan

Well the changes in 2007 don't go quite so far as presumption of guilty, but inferences can be drawn for certain offences by your failure to answer.

Under the Criminal Justice Act 1984 as amended by Part 4 of the Criminal Justice Act 2007 inferences can be drawn from your silence in certain circumstances in any proceedings against you for an arrestable offence. An arrestable offence is an offence for which a person can be imprisoned for 5 years or more. Inferences can be drawn, if at anytime before being charged or when you are charged, or when informed by a Garda that you may be prosecuted for the offence, you fail or refuse to account for any object, substance or mark on your person, clothing or in your possession or in any place in which you were when questioned by a Garda. Similarly, inferences can be drawn if you fail or refuse to account for your presence at a particular place around the time the offence was committed. The Garda has to have a reasonable belief that the presence of the object, substance or mark, or your presence at the place, has a relevance to your involvement in the offence which is believed to have been committed...

However, the court or jury can take into consideration (when deciding on your guilt or innocence) the fact that you had failed or refused to answer the questions when asked by the Gardaí. If there is no other evidence put to the court or jury then they cannot convict you on the failure or refusal to answer questions alone. It can only be used to strengthen other evidence presented to the court or jury in the case.

OK, that is better than I thought but I would still go further.

So I beat someone up.
The Garda arrests me and I am brought in for questioning.
I repeatedly say "no comment".

I still don't see why I should get the benefit of a trial if I am not prepared to participate in it.

If I say "Sorry Garda, you are mistaken. That was not me. I was in London that day." then the Garda can move on with the investigation.

To get the presumption of innocence until proven guilty, I should have to plead not guilty from the very earliest opportunity.

Otherwise, guild should be presumed.

Brendan

My Opinion:- We have courts of law not courts of justice. That sentence alone is enough to give the perpetrator of any crime a head start when he/she is arrested and charged. The right to be silent, onus is on prosecution to prove guilt beyond a reasonable doubt, free legal representation and suddenly it's an "away" game for the prosecution. Teenagers can commit serious adult crime and face more lenient childrens' courts. Jurys are made up of anyone on the register of electors who likely will not have been beaten up, robbed, raped, scammed etc. And when everything is proved beyond a reasonable doubt we have the appeals system. Before that we have jury selection which is near to stand-up comedy.

I think we must overhaul our legal system and speed up the court system, cherish our gardaí and ensure criminals are jailed and answerable and made atone properly for their crimes.

We need more prisons currently prisoners are being fast tracked to early release just to make room for other prisoners. As a FG member I'm very disappointed in leadership. Build the prisons, if there aren't enough Gardai then put soldiers on the street. I'm not terribly bothered about implications of soldiers upholding law and order if there mere presence stops unlawful behaviour. Its at a point now where we are approaching Gotham style thuggery on our streets.

Brendan Burgess said:

I go to court and I get bail.

A few years later I get a court case.

Click to expand...

You've highlighted a key issue, or rather a key failure. Because of the delay ("a few years later") there is no direct connection between the crime and the sentence. In this situation sentencing is just a form of taxation levied on criminals for living a criminal life. There is no connection to show that you are receiving this sentence for a crime you committed last week, i.e. if you had not committed that particular crime you would be free now. So sentencing has a reduced or little preventative effect. The crime has been forgotten and its proceeds consumed. The sentence is just a tax the criminal pays for living a criminal lifestyle.

PMU said:

Because of the delay ("a few years later") there is no direct connection between the crime and the sentence.

Click to expand...

Agree. If I am tempted to kick a guy senseless, I might resist that temptation if I know that I will be picked up within a few days and not see the outside of a prison wall for 5 years. But if I know that if I get caught I will get bail so the prospect of prison is a long time away.

A major reason that we do not compel people to comment, plea, or testify is because over the centuries this activity is directly linked to torture and coercion. Legal scholars and historians can give you chapter and verse on the absolute Pandora's box this would open.

No matter who you are or how virtuous you live, as an individual you are extraordinarily vulnerable to the machinery of the state - ask anyone who has ever had the misfortune to be on the sharp end of the law. This is why history is littered with false confessions, lynchings of innocents, etc.

We should be sentencing fewer people and building fewer prisons. These are the remnants of failed populist policies.

arbitron said:

history is littered with false confessions, lynchings of innocents, etc.

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What has this got to do with the current situation.

Are all the Garda interviews not recorded now?

If the Gardai decide to beat a confession out of you, then the right to silence won't help a lot.

The law needs updating to reflect the 21st century and not the middle ages.

Brendan

So a Garda shows someone CCTV footage of him kicking a guy on the ground and robbing his wallet.
Or a Garda tells him that his DNA has been found on a rape victim.

He either pleads guilty or not guilty. And if he pleads not guilty, he explains why. "That is not me in the video, I was in jail at the time" .
"I had consensual sex with the alleged victim".

But refusing to plead either way or saying "no comment" when asked questions should lead to a presumption of guilt until proven otherwise.

At the same time someone who pleads not guilty and accounts for their behaviour should have the presumption of innocence.

Brendan

Brendan Burgess said:

So a Garda shows someone CCTV footage of him kicking a guy on the ground and robbing his wallet.
Or a Garda tells him that his DNA has been found on a rape victim.

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If the evidence is that strong, what difference does a comment make in these cases?

The difference is huge.
They say no comment.
They get charged.
They are presumed innocent.,
They are bailed.
And they get to court three years later.

The delay in justice is a huge incentive to crime.

Brendan

3 years is a huge delay. So surely that delay is the problem rather than their right to silence?

Why is there a huge delay?

It's because we have long long cases for people who have been caught red handed.

I spoke to a counsel the other day who told me that he was amazed when someone pleaded guilty to murder. He said that they got the mandatory 20 year sentence. They had nothing to lose by pleading not guilty and then appealing a guilty sentence to the Court of Criminal Appeal.

We need to change that system.

People who are guilty need to plead guilty immediately.

Brendan

You may serve less or more than 20 years for murder but surely the mandatory sentence for murder is life ?

Brendan Burgess said:

Say I seriously assault someone.

A few days later the Gardai call to my door.

I am charged but I say nothing.

I go to court and I get bail.

A few years later I get a court case.

I plead not guilty.

I don't say anything in court.

I try to see if the passage of time makes it more difficult for the Gardai to succeed in their prosecution.

Even if I am found guilty I will probably get a light sentence or a suspended sentence.

Brendan

Click to expand...

I am not answerable to the state for where I was at 3am last Tuesday, and it will be a sad day if that changes.

Brendan Burgess said:

So I beat someone up.

Click to expand...

I am under no obligation to persuade the state that I didn't beat anyone up.

No, but if you were in Temple Bar at 3 pm and you were seen beating someone up, I think you should explain yourself.

And if you say nothing , then you are guilty.

Brendan