What We Always Wanted To Know About Our Criminal Justice System But Were Afraid To Ask …

Sean: I heard you’re writing a book about the Irish Criminal Justice System? About time. The statistics in this country are in an unmerciful mess. I hope you have cleared up the mess?

Seamus: I hope so, too, but I doubt it. The mess is too deep, too Irish and – which is the same thing – too obscurantist.

Sean: Give us an example.

Seamus: Look at Table 216 and you’ll see the incredible mess in which Irish prison statistics were couched. The Prison system managed to lose hundreds of people every year and no one gave a cabaiste. These figures, by the way, were for the benefit of Parliament. TDs never bothered to read them, did they? And if they didn’t read them, no one else did either. The clergy never believed in quantifying anything, not even their wealth. So, who was going to read them? Even presently the most celebrated and paid members of the community who bothered to write books about the Criminal Justice System had no notion whatsoever of accounting for the system in particular or as a whole. Back in the ‘70s the country at that time, as you know, was full of purple prose about Human Rights and the like, and no one gave a cabaiste about counting the number of persons housed in Irish prisons. This was a time, of course, when the nation’s incarcerated children (not to mention the law-abiding school-going children) were abused by the Clergy, the Clergy ran everything, appointed everybody and made sure that no one ever said anything without consulting them first. And this applied (and applies) to Professors more so than to the fearful rank-and-file.

Sean: Well, that’s what I was going to say; for the period 1968 and 1975 -- which is a long time ago. I know how imperative you feel it is that the role of historical understanding in these things should be foremost in any analytical enterprise, but how can we proceed to deal with improving the complexity of these things?

Seamus: I suppose we should understand the nature and the possibilities of Irish society in these regards. I think it all goes back to where we are socially. I mean the most basic precondition of our existence at this time. – and particularly since Whitaker -- is the ongoing creation of an Irish secular middle class. It is a process that is not only absolutely necessary, but it is also absolutely unstoppable. And, as you know, what is necessary cannot be immoral.

Sean: I know you have always maintained that the real struggle in Ireland has been the struggle to become and remain secular, and that talk about class in Ireland was a borrowed sense of Irish narcissism and totally inappropriate as a construct by which to examine Irish phenomena. But is he creation of class necessary to arrive at a secular and more masculine state?

Seamus: I think so. There is no ‘other’ force in Irish society except the RC church. The Protestants have been as defeated as the Gaels, and in so far as the Southern Protestants have not been defeated, they are wets and irrelevant. And in any event, they are merely Christian in orientation, that is, they present no real modern sense of ‘otherness’ apart from the otherness of governing the Christian conquest in the same fashion as the RC church, or what is even more unimaginable, governing it as the Established Church did in the nineteenth century.

Sean: Well, what about the Northern Protestants?

Seamus: Well, they are not ‘in’ Irish society. They are a considerable force for change, but again, they are co-defendants and joint-partners in the Christian conquest, and when a few reforms and accommodations have been made, they will soon be humming and hymning phalangist Christian numbers together – the Christian comrades in total harmony in the one Green and Gold submarine, the Masons and the Opus swapping their respective stories of daring do. What a prospect! Such is the present limit and horizon of Irish social life. To me it is another reason why the creation of a Southern secular middle class is absolutely necessary. We generate our own history or we perish in the Holy Roman bog we have been pickled in for the past fifteen hundred years. We remove the deadwood and show our selves, or go back to the dead womb of mediaeval obscurity.

Sean: But how is class related to bad criminal statistics?

Seamus: It is because we have non-class, non-secular but religious substandard, secrecies and pre-French Reformation privileges, that the clerical abuses on our children, as well as the reparations made by the taxpayers (via the good Catholics like Ruari Quinn, Michael Woods, et al), have occurred. It is because of the self-same phenomena that the AIB Bankers can rob with impunity, that a substantial number of institutions in Ireland operate a medieval consciousness in a modern capitalist environment. So why do you thinks that criminal statistics should be compiled in an environment that is different to the norms than childcare, financial banking, planning authorities? What you see in them is precisely the absence of secular standards and secular morality – the same, let me add, which unfortunately feeds and informs our so-called universities and Departments of State including the Department of Justice. Axiomatic of recent Irish academic know-how, for example, is the recognition that one can say absolutely anything about anything in Ireland with impunity. Foremost amongst these are the ‘Experts’, and there are no Experts like those who talk about the Criminal Justice System (CJS) in Ireland. Do you not agree?

Sean: I know that long before the Morris Tribunal the Garda Siochana had to be made the whipping boys for all and sundry, especially the experts, whether they just set up their Jesuitical shop in UCD (and TCD), attached themselves to the Department of Justice, or simply sniffed about the prisons declaring that they were somehow as foreigners more concerned than everybody else. It’s a little like trying to uphold the intellectual status of the Parish Priest. In order to take the Sagart Paroiste seriously – no matter what kind of insufferable babble he indulges in – it is easiest when everyone else is reduced collectively to the mental capacity of a flock of sheep. This principle, I suppose, applies equally to the Church’s State-experts in their rantings about criminology in general and about the Commissioner of the Garda Siochana’s Annual Report in particular. In order to make what they say credible, everyone else must be lied to repetitively. How do we know that they are experts? Because the Department of Justice, the Church’s moral secular mouthpiece, tells us so. But if you look at the track record, if we ask to consult the volumes and reports that these experts have presumably consulted, if we look for the references they individually and collectively have left us to ponder, the enormous works they have swatted over to prove their passion for criminal statistics, and the unerring analysis of their Oeuvre, what do we find?

Seamus: What, indeed? The British, whose legacies we have totally disinherited, were great administrators. On the question of accountability, they were second to none. Marx even commended them on their diligence and intelligence. To this day our archives are still struggling to make their excellent records available for public scrutiny. And the least said about that effort the better. Amongst the achievements of the British was their expertise in the maintenance of creditable statistics on crime. So much of that British inheritance that remained was, up to quite recently, to be found in the scaled down version of the Garda Commissioner’s Annual Report on Crime. And these reports, coupled with what Judicial Statistics there were dating back at least to 1863, coupled again with the various Prison Reports, and, what is a derivative of the foregoing, the Statistical Abstracts, made up for the most part our statistical knowledge of crime in Ireland. The main stay of all these reports was, of course, the Garda Commissioner’s Annual Report on Crime. These Reports had some faults that required adjustments. Some thirty years ago they were highlighted and criticised by me for some of their shortcomings, but others, anxious to take a high ground, invariably misinterpreted this criticism in its scope and nature. Unfortunately, the ESRI and thereafter every visitor to the shores of Irish penology thought it wise to repeat and amplify the criticisms amplified it unduly. The result, of course, has been that the Commissioner’s Annual report has been criticised so often and so dismissively -- particularly by those who were appointed to comprehend and improve them – that their unreliability has become a cliché. This is mostly because one or two earlier dabblers (tourists!) in the area never comprehended them in the first place. Not unusually foreigners hardly ever understood the social content of the society they are hired to study.

Sean: So what did they do?

Seamus: They litanised their shortcomings, borrowing for their criticism the remarks of others who preceded them. David Rottman (of the ESRI), for example, an American, who basically didn’t know his A from his E, worked tremendously hard at trying to comprehend the Commissioner’s Reports. True, as foreigner he had to learn his way around a new culture; but then everyone it seems in the business of Irish ‘ criminology’ comes from somewhere else. How the Irish expect foreigners to know more about their own history than they themselves do is one of the mysteries attaching to the quaint Irish personality through the workings of Catholicism and The Dermot Mac Murrough Syndrome. It is a bit like Fianna Fail’s hiring of Martin Mansergh to inform them of their history -- the historical meaning of their own experiences of Irish life. Or the Labour Party hiring an American to tell them about Irish Arts, or the Government of the day employing a non-Gaelic-speaking Minister over the Gaelteacht. The whole idea of having a resident historian (in situ, as it were) might in some peoples’ view exacerbate rather than explain the problem of history for the Irish. The foreigners appointed to key positions in a country so small as to support only ONE such appointment, is not the problem of foreigners (in or out of the social sciences), it is most primarily a problem the Irish have with the Irish, or rather the Catholic Irish have with the Irish.

Sean: Be that as it may, you must admit that Dr Rottman, with some legal assistance, did much excellent work at compiling extra Garda Statistics and analysing them. Seamus: That is true, but unfortunately it is not the whole truth or, indeed, the truth we need in order to move matters forward or to put them in their proper perspective. For it is also true that in effect he regurgitated the police figures on Indictable Crime at the recorded and detected levels – but he never really succeeded in penetrating their content much further – not at any rate in any convincing or accountable way. That is, he could not see how or with what frequency they entered or exited the courts, or how they accounted for the sentences that people received. He never deduced the numbers and types of convictions there were, what types of sentences were handed down, what numbers was incarcerated, and, most importantly, what the annual recidivist rate was. Indeed, he never came i bfhoisceacht scread asail of a recidivist rate, or how many recidivists there were. Indeed, what was wrong with the statistics, he summarised as follows:

“ The most fundamental recommendation that can be made is that a handbook be prepared stating the rules operative in counting and classifying offences for all the categories listed in the Report on Crime…To summarise, the crime statistics should be placed on a sound bookkeeping basis”.

While everyone agreed with this complaint -- indeed, everyone before Dr Rottman had made it -- it was at the level of this old complaint that the improvement of the existing Garda statistics was conceived. No one imagined that it was any reason to abolish the Commissioner’s Annual Report or the method of collecting the statistics as a whole or that the exercise was – or had been for years – useless. Now, I am not saying that the Department of Justice hasn’t got its own agenda of reasons to abolish the collection of these statistics, but in so far as their advisers have stated, there is no valid reason for so doing. Further, no one wished to leave us in a no-man’s-land regarding the collection of criminal statistics. Unfortunately, however, when Dr Rottman felt that there was no platform in Ireland for resisting what he said, he went further. He felt that:

“The most serious limitation (in the available statistics) is the inability to take those individuals arrested and follow through what happened to them: how many were proceeded against, what pleas were entered, how many were convicted, and what manner of sentence they received. It should also be possible to establish where and how individuals were removed from the criminal justice process, as well as the characteristics of the persons involved.”

It was most unfortunate that Rottman could not read the Annual Reports adequately, for the very things he thought were not present in the figures were. With a little application, he could have found his way to mapping out the whole ensemble and then, if he had followed anything of the history of collecting and appraising criminal statistics in Ireland, he could have made his mark by improving upon what was in large measure under his nose. Indeed, as is amply demonstrated hereafter, the total figure for Indictable Crimes in 1975 from the time that they are recorded to the sentences that are handed down in respect of them are perfectly amenable, not just in respect of total crime, but in respect of each category of crime or group of crimes. The interpretation and description of this event is evidenced in Figure 2.1 and Model ‘75 delineated anon.

Sean: I take the point that Dr. Rottman’s work and, indeed, most of that which followed, as well as most of what emanates from the ESRI is especially a-historical. In a way economic studies, left wing-studies and biblical studies al have the same abstract methodology: and every one is looking for something to pour into a computer, as if the computer will then deliver Irish reality back to them. I don’t suppose that Immanuel Kant – no more than Darwin -- will ever become relevant to the Irish mind. What a pity!

Seamus: You mean that the computer is a substitute for the analytic truths Kant championed over the synthetic truths of mathematical and other forms of abstraction?

Sean: Yes; but that kind of reasoning nowhere applies here. The illusions of synthetic logic march hand in hand with the abstractions of Christianity, and march more militantly in Catholicism. In any event selfdiscourse based on experience is anathema to the Irish, since when they actually imagine that foreigners (people outside their culture – The Dermot MacMurrough Syndrome – knows more about them than they do!) can experience life for them, or ,failing that, can know of their experiences better than they do. Could anything be more absurd! Is this the direct consequence of Catholic teaching?

Seamus: In the Irish context, yes. We can see this quite clearly by examining what happens in Irish Criminology; for characteristic of what happens, apart from the intractability of Irish obscurantism, is the unfortunate manner in which successive ‘ criminologists’ have repeated Rottman’s criticisms. Blindly and without as much as acknowledging the good work that he did –- for apart from the criticisms voiced above, he worked hard, diligently and ingeniously on Irish statistics -- they have unfortunately and uncritically followed the same dismissive line without as much as demonstrating a ‘tourist’s’ status in the area. How a whole society, fond of regarding itself as‘ modern’, can be duped into believing the most Talibanian and nonsensical things about itself is a matter for comedy. That it encroaches upon the serious matter of the social sciences can only be left to others – possibly foreigners – to judge. Maybe then, they, too, can come to appreciate the Joycean strategy of fleeing a culture so ignoble and paralysed to any native improvement. Rottman’s mistake has been repeated ad nauseum by the most questionable of Experts, and the Irish interest is yet again the slave to obscurantism.  As is demonstrated anon, the whole system of criminal justice could be worked out from the Garda Commissioner’s Annual Report, but the experts felt safer if they could have a new start, one without a cumbersome history – a tabula rasa, as it were, where they could perhaps shine, a stratagem that would protect their expertise, lest their short-comings be discovered by the more critical eye. The result is that we have a system called the PULSE and no one – new experts included -- can hope to work any useful information at all from what is euphemistically called the Irish Criminal Statistics. The experts have managed to create the worst of all possible scientific worlds – the world of God, wherein nothing is accounted for, nothing is known about the Criminal Justice System and all are dependent upon the Minister for Justice, (etc) to give them this and that piece of unquestioned and unquestionable information about the general conditions of things criminal when and in what manner he pleases.

Sean: And what about the Expert Group on Crime Statistics? Seamus: These are the most recent body to misunderstand Irish criminal statistics if you read their report, you will observe that after much magic they  ‘pass the buck’ forward yet again. In the ‘70s there was the expectation that the ESRI knew something about criminology, then there were various groups from UCD who were going to do the bold thing and unravel the mess. Then there was a National Crime Forum and a National Crime Council, then there was much-to-do about prisoners’ rights and psychology, and then the Jesuits wanted a whole Institute of Criminology all to themselves in UCD, which would carry out ‘independent research’ and teach us how to count crime, at an estimated start-up cost of £300,000. They used pounds back in 1998 and no one knew better the pre-buggery value of a Roman-pound than the Opus-acculturated Jesuits. The last effort in this whole sorry incomprehensible saga devolved then upon Mr McDowell’s Expert Group On Crime Statistics. Having pointed up the biblical defects in collecting crime statistics the Expert Group passed the book on to another unborn child called the CCSU. If you held your breadth in the expectation that the Expert Group was going to say anything original, you would be sadly disappointed. Among its telling (and most intelligent) observations is the one that recommends (Surprise! Surprise!) --

2.1 …the establishment of a Central Crime Statistics Unit (CCSU) within the Department of Justice, Equality and Law Reform. This Unit should have professional independence and should compile and publish enhanced crime statistics based mainly on data derived from An Garda Síochána PULSE system.

Indeed, so confident was the Minister in the group, that from the outset he disturbingly harnessed their concerns to the PULSE only. This means that in one or two fell swoops, all British and Irish history – all the sad efforts of the last eighty years by Garda Commissioners (who, obviously weren’t ‘Expert’-enough for the Department) were set at nought. Yet again Ireland, by Ministerial Command, and by a very questionable testimony of virgin experts, has decided quite biblically that Ireland has had no history before the year 2000 and no expertise in the gathering and analysis of criminal statistics. (That one might expect criticism or opposition of a party political type would be to misunderstand the nature of religion in Ireland; for none is conceived, and if conceived, can only be conceived towards an end that is perfectly in accord with the theatre of the RC church’s Republic.)

In the meantime – which, unfortunately, is where most of us live most of our lives – one doesn’t dare ask the Department of Justice (etc.) or the Department’s Expert Group for anything in the nature of ‘ a conviction rate’ for any crime or court in the land, a proof rate, a recidivist rate, a rape rate, a juvenile female participation rate, or for any account beyond the ice-cream superficiality of the number of indictable crimes Recorded and Detected -- figures whose reproduction the Institute of Jesuitical Criminology in UCD have turned into a chalk-like and meaningless industry.

Seamus: Because of the significance of getting these things right, the following Webpage deals in a substantial way with the essential issues affecting the CJS. As will be appreciated the CJS has many features, some of which have never been fully realised. To obviate the issues involved this Webpage is divided quite purposefully into three essential parts. Sean: So how should we best proceed to understand and – if possible – eliminate these deficiencies in the Criminal Justice System. Seamus: Since we can’t change a culture we can expect to eliminate deficiencies arising from that source. What we can do, however, is lay our stall. We have already demonstrated what is wrong. Let us now show what is correct and what is possible. We can do this in three Parts, all of which are available in 7. Crimes and Punishment in Twentieth Century Ireland Volume 2: The Criminal Justice System (CJS), 1950-1980

For our present purposes Part One the’ hard work’ part attempts to delineate both the manner in which the component parts of the CJS ought to be initially and critically examined before they can be grouped together as part of a system of criminal justice. Their individual conspectus precedes their collective analysis. The problems involved in delineating the CJS’s individual agencies are fraught with difficulties. But once these difficulties are overcome, the agencies can be described amassed together in a way that allows us to investigate their interdependability. Part Two coincides with what it is we do when the full schema is mapped out quantitatively and to our satisfaction; for then and only then can we enter the second phase – which is to chose its more constant elements, describe them, and for the first time examine their history with meaningful relevance to each other and to the whole system. We should soon come to realise that this is what the whole exercise has been about; for now, and only now, can we come to analyse the CJS properly, as a system, and over time, with visible overall repercussions which transform all and any of its individual parts. But the story of the Criminal Justice System is still not finished. Part Three calls for an imaginative interpretation of what uses the CJS can be put, not just in Ireland but universally wherever Parliamentary Democracy operates. To recap therefore: Part One begins at first by looking at some critical and preliminary concerns arising out of The Commissioner’s Annual Report On Crime. These include reference to (7.a.) Parliament, (7.b.) The Police, (7.c.) The Courts, (7.d.) Probation, and (7.e.) Prisons Part Two (1950-80) depicts by way of Figure 2.1 a simplified picture of the main indices comprising the CJS for the years 1950 – 1980. This overall figure demonstrating the distributive flows of Indictable crimes over the period is analysed. A synopsis of Parts One and Two were first published in two articles published in Aimsir Nua in Irish, so that their substance might readily be available to those who claimed to be interested in the integrity of Irish criminal accountability. Nothing could have been more conceited. The only people who read it was Opus Dei and they had no concern for such tings beyond their interest in those who would criticise holy church. Only one of these articles is reproduced at the end of this Webpage (As Gaeilge). The Third or ‘’Reflective’ Part is the most creative part in that it presupposes the existence of Part One and Part Two and builds upon their necessary elements and looking to interpolate their real, democratic and universal possibilities. The computer and econometric possibilities of Model ’75 envisages a projectory for criminal justice that has never been conceived except incipiently. Nevertheless, one hopes that the project is self-explanatory and that in contemplating it, one recognises at last the quite backward and artificial objections the Irish invariably raise to an enterprise so secular, so old and so paralysed.

This following text-book on the Criminal Justice System is aimed at correcting most of the above short-comings and criticisms of the Irish CJS and is available at:

http://www.upublish.com/book.php?method=ISBN&book=1581125496

7. Crimes and Punishment in Twentieth Century Ireland Volume 2: The Criminal Justice System (CJS), 1950-1980

Part One

CONTENTS

b. The Police (or An Garda Siochana)

Police powers are quite extraordinary. Yet the traditional view is that the policeman is merely another citizen in uniform. This lecture, in the main, attempts to describe the organised structure and orientation of the Garda Siochana. In so doing, it recognises three levels of police reality. One concerns the garda as an individual person. This is the traditional view and interest in his powers tends invariably to dominate any delineation of the status in society. But there is also the Garda Siochana, as a structured, powerful organisation. In both these cases we shall argue that the garda, whether individually or collectively, defies the simple “citizen-equation”. Then there is the locus of the police within the CJS, where its influence is primary, not just – as we have already seen – to provide the basic figures for wrongdoing in our society – and upon which all our discourse depends – but also to influence each part and totality of the whole system of criminal justice. While these three aspects or perspectives on the gardai cannot be addressed at once, this lecture attempts to focus attention on the primacy of the latter aspect, while supporting the notion that each member of the force enjoys and exercises privileged legal rights, whether compared with either the Irish citizen or the British constable.Moreover, while we have committed ourselves to the business of configuring the CJS as a whole for one year (1975) (see centrefold pages) and to a description of its respective parts over the period 1950-80 period, it should be reiterated that since 1980 the Garda Siochana, as with all the other institutions that comprise the CJS, has changed and been changed radically. It is because these changes have been so institutionally uncompromising that this work -- particularly since the late ‘70s -- is divided into three separate volumes. Each set of lectures tries to address three different time spans, three different realities; and the police, as an institution, like that of the courts, the prisons and the probation service, has changed such at each conjuncture that they are hardly recognisable as emanating from one chronological continuum. In dealing with the 1950-80 period, therefore, there is the tendency to think that it is hermetically sealed from its predecessor as well as its successor. This, of course, cannot be the case, but to understand our yesteryears it is necessary that we revisit those arguments and limitations, which consumed and concerned us then.In 1967 , the British Parliament decided that the categorisation of crimes into Felonies, Misdemeanours and minor offences was more trouble than it was worth. They brought in legislation regulating crimes in terms of arrestable offences., that is, in terms both of police powers and the citizen’s liberties. This seemed like a simple and sensible thing to do. Indeed, every sensible person gave a great sigh of evolutionary relief when it happened. In ??? the Dail followed suit.Prior to this event, when a Garda or constable made an arrest without a warrant, he could justify it on the grounds that he had “reasonable cause for suspecting that the accused had committed a felony “(10). A private citizen may exercise the same right, but he must further prove that a felony had in fact been committed. And even if the the force (however the force may have been exonerated), the picture is not as healthy as one might wish.Part 2: The Structure and Development of the Garda Siochana In describing the constitutional status of the Garda Siochana an attempt was made to democrat some of the basic relationships around which the force organises itself. Before going on to examine the functions of the force as investigators, prosecutors, etc., it is desirable that something be said of their strength and structure. Over whom has the Commissioner general direction and control?In 1924 it was enacted that “The Garda Siochana shall be distributed and stationed in such manner as the Minister (for Justice) shall direct”. (54) A year later the Garda Commissioner’s control of the force was outlined and a Garda strength which was not to exceed 7,222 officers and men was authorised. (55)Between 1925 and 1951 the actual strength of the force fluctuated mildly upwards but never reached the 7,500 mark even though the government had periodically approved figures in excess of this number. In the fifties and sixties (e.g. 1955/59/61 and ’64) Garda strength fluctuated downwards and stabilised at 6,500 until the early seventies when a marked increase took place.

Between 1971 and 1978 manpower rose by 39% from 6,612 officers and men to 9,181 and the distribution of Districts Stations and men as between the DMA and the rest of the country changed with the geographical extension of the hitherto comprising the DMA. (56) The Twentieth Dail (1973 – ’77) legislated heavily in favour of greater police power and increased manpower. The estimated cost of policing the Republic rose from £22,500,000m. in 1973 to £52,000,000m. in 1975. From the twenty first to the twenty fourth Dail (1977 – ’82) successive governments have continued to strengthen the Gardai, but whether the object here was to ‘fight crime’ or, partially at any rate, to reduce unemployment and boost aggregate demand is difficult to say.

Dublin versus The Rest

One thing is apparent, indictable crime within the DMA has made3 the metropolitan Gardai more crime-intensive than elsewhere. The effects of the increase in crime on the scale and organisation of the DMA Gardai are noteworthy. In 1951 21% of the Garda Siochana recorded 62% of indictable crime in the Republic, and, with a comparatively small supervisory staff, detected 44% of the nation’s indictable crime, and processed almost half of the nation’s serious crime through the courts (See Table 3.1). Since 1979 these proportions were reduced somewhat. Nevertheless, the Gardai in the DMA, since 1979, with proportionately the same supervisory staff as the rest of the country, recorded over half of national indictable crime, and detected half of the national number of detections.Moreover, since 1979 the number of detections made in the DMA increasingly exceeds the number of crimes processed nationally by the courts.  private citizen was legally justified at the arrest stage, on what grounds can he hold the suspect in custody?He cannot, observed Lord Denning, take the suspect “around the town seeking evidence against him (11)”. On the contrary, a private person must hand the suspect over to the constable as soon as he reasonably can. The constable on the other hand, can investigate the matter and support his suspicion by seeking further evidence (12); he can

“… Take the person suspected to his (the suspect’s) own house to see whether any of the stolen property is there; else it may be removed and valuable evidence lost. He can take the person suspected to the place where he said that he was working, for there he may find persons to confirm or refute his alibi. The constable can put the suspect up on an identification parade to see if he is picked out of the witnesses”.

These are obvious differences between the powers of the citizen and the policeman. In the Irish context the Oireachtas, by commission and omission, has a tendency to exaggerate this difference. By commission the Oireachtas enacts new crimes (e.g. kidnapping) (14), it gives the police (sometimes at Inspector and Superintendent level) increased powers (15) (e.g. under the Emergency Powers Legislation (16)). Parliament’s omission to review and codify older borrowed British law is very pertinently to be found in the current use of the concept ‘felony’ (17) (abolished in the U.K. (18) ), the Larceny Acts (updated in the U.K. 919) ), the law relating to juvenile offenders (reviewed several times in the U.K. (20) 0, and a host of ancillary areas that are too numerous to mention.On this reasoning, therefore, it would appear that there are quite definite differences between the citizen and the policeman, and more so between the citizen and the policeman, and more so between the citizen and a member of the Garda Siochana. Moreover, within the force Gardai in the DMA (Dublin Metropolitan Area) enjoy wider powers under the Dublin Metropolitan Act, 1942, than their counterparts outside Dublin, and, as we shall see, perform on average more criminal functions than their counterparts outside the DMA.As to the second Lord Devlin’s propositions, “that the prosecution of crime is a local affair”, the Royal Commission claimed that there is no master and servant relationship between the crown and the constable, or between the Chief Constable and the local police authority (20). This denial has led the courts “to assert the independent character of the office (22)” – a line of argument which carries with it the notion that the constable exercises ‘original’ rather than ‘delegated’ authority (23). As Professor Marshall has observed, “The step from original to discretionary powers is by no means a logically necessary one, and yet the transition has been easily made”. (24)It would seem that the more we assert the ideal independence of the police (not unlike that of the judiciary at an earlier stage of legal development), the more we must logically incline toward the view that they must enforce all laws and are only answerable to the law. (25) Conversely, the more we retire from the ideal or abstract position and assert their accountability, say to X, the more X becomes a usurper of executive power.By contrast the ‘X-factor’, as we shall see, is quite different in the Republic than it is in England and Wales. In England and Wales, this executive power is balanced by a distribution of nominal and real checks (26) between the Home Secretary, the Police Authorities, and the Chief Constables. One of the most direct assertions of this balance of power was to be found I n the Police Act, 1964, about which Professor Marshall wrote:

“… It makes plain (what was always the case) that police forces are under the direction and control of their Chief Officers. But it is silent on the precise extent to which the Chief Officer himself is under the superintendence of the Police Authority. This has to be collected from a number of other piece-meal provisions made in the Act. The net effect of them has probably been to strengthen the hands both of the Home Officer and of the Chief Constable at the expense of the local authorities” (27).

But what of the Garda Siochana? How does the Garda’s constitutional status differ, if at all, from the English constable?There are at least four central differences between England and Wales and the Republic with respect to their Police:They differ in size and scale; (28)

Unlike the Chief Constable, the Garda Commissioner’s general direction and control of the force and his independence is circumscribed by statutory provisions which allow him to be removed at any time (whether he is the servant of the executive or not). The Police in England and Wales come under local government (for the most part); the Garda Siochana are entirely centralised and nationally unified. In the Republic there is a lack of any real checks and balances similar to those obtaining in England and Wales;

It could well be argued that all these points are merely different forms of the same theme. One could argue, for example, that Ireland is small and the U.K. is large, and by virtue of size and scale, centralisation is essential to the Republic’s requirements. Consequently, neither the Commissioner nor the Gardai should be independent of executive power, not should local government be involved in the business of policing. Nevertheless, despite the tremendous and rather unique character of the Police in Irish history, their role has not merited any attention in either the 1922 or the 1937 constitution. Our ‘written’ constitution, therefore, does not help us explicitly to demarcate the Garda Siochana’s powers in the jurisprudential scheme of things. And while legal logic permits of a U.K./Irish comparison with regard to their constitutional status, a brief historical review might serve us better to appreciate the real differences, which such legal logic disguises. Historical ReviewIn the eighteenth century the police were indeed the object of constitutional concern (29). But this concern was not formulated into any explicit doctrine. The notion of the ‘separation of powers’ (30), for example, which supported, inter alia, the independence of the judiciary (and which was made explicit in the Irish Constitution (31)) did not concern itself directly with police functions, though the police in effect kept the King’s peace.Traditionally, the police came under the aegis of the Justice of Peace, who, at a local level, served the interests of central government (32); and with the industrial revolution and the concomitant increase in the number of capital statutes (33) enacted to protect the property of the new seventeenth and eighteenth century bourgeois formation, the reorganisation of the old Watch and Ward system into a modern force appeared to be possible and necessary.This reformulation was resisted in London and accomplished in Dublin in 1786. A series of police acts followed in Ireland which tended to wean the conditional power of the police from the J.P.’s and simultaneously vest it in central government (34). In any event, the localised nature of prosecutions, though somewhat remaining with the Police Authorities in England, even after the nineteenth century by central government (35).In effect the police in general retained a sort of quasi-judicial or executive residue of power. This discretion or power may have come from an earlier theory of the Monarchy and the Divine Right of Kings, whose peace in the temporal world the constable had the practical obligation of keeping. Nowhere is this residual power or discretion more apparent than when the policeman exercises his power to arrest another citizen, about which Lord Devlin has made the following statement:

“It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised (36). It means that there is an executive discretion”

Despite the separation of powers doctrine, it could be argued that the police bridge both quasi-judicial and executive power, and this, to some extent, would help to explain the shifting principles regarding arrest, search, seizure, the non-legal status of the Judges Rules, etc. It has been suggested by Marshall that “If it is accepted that law enforcement may have aspects which place it closer to the executive than the judicial function, it cannot in its entirety demand the isolation and immunity accorded to purely judicial decisions”. (37)In Ireland the relationship between the police and the executive was no different in kind to the relationship between parliament and people. In 1962, O Dalaigh C.J. maintained that the tripartite separation of governmental power in the constitution was not “…unconnected with our previous experience under an alien government whose parliament was omnipotent and in whose executive lay wide reserves of prerogative power (38)”.More pertinently the Conroy Commission noted:

“For historical reasons the development in Ireland before 1922 of a Police Force differed from the process in England. In Ireland at all times the emphasis was on the maintenance of the Union with England. Unified control of the Police facilitated this and the legislature was not troubled by the argument so common in Britain that central control placed too much power in the hand of the Government”. (37)

Under the British administration the police were divided into two forces, the Dublin Metropolitan Police, a civil police force, and the Royal Irish Constabulary, a semimilitary force. In 1922, when the organising committee under General Richard Mulcahy (Minister for Defence) prepared a report advising the then government to set up a new police force outside the DMA, the committee advised that “This force should not be centrally controlled and responsible to the government”. (40)What did the Irish then do? They centralised the police like never before. Following the Police Amalgamation Act, 1925, the Dublin Metropolitan Police joined the Civic Guard to become one national force, namely, the Garda Siochana, as it exists today.Commissioners are generally nice fellows. They listen a lot to psychologists, who say that before we can love others, we must love ourselves first. Their men do not always love commissioners – see the evidence of the GRA against Mr. Edmund Garvey (????) But when Commissioners win the favour of their men, they are allowed to be photograph for the Garda Review. On one occasion the Garda Commissioner’s photograph appeared no less than thirty times in the one Review (See Garda Review of the ??? )While the ‘general direction and control’ of the force invested in the Commissioner, (41) the regulations as t its ‘internal management’ comes under ministerial responsibility. (42) Included also under ministerial responsibility is the Minister’s right to appoint all officers not above the rank of Chief Superintendent, to dismiss, promote or degrade ranks; and the Commissioner can do the same under regulations made by the Executive. (43)Though many of the broad regulatory rights given to the Minister (subject to the approval of the government) may be curtailed by other constitutional rights arising out of the constitution itself, e.g. the right to natural and constitutional justice, there is very little argument in the Republic over who controls what.In substance the issue in the Republic as to how the Commissioner can exercise ‘general direction and control’ simultaneously with the government’s right to regulate ‘internal management’ is almost impossible to differentiate. What, for example, can the Commissioner do that the Minister or the Government cannot undo? This distinction between the Commissioner and the Minister is similar to the English dilemma with this important rider; the organisational structure of power between the Police Authorities, Chief Constables, local government and central government, are more differentiated in England.Given our ‘written’ constitution, is the Garda Commissioner himself more independent of the executive than the Chief Constable? And given the centralised and unified police power under his ‘general direction and control’, is the Garda Commissioner, unlike the Chief Constable, the servant of the Government?Section 6 sub-section 2 of the Police Forces Amalgamation Act 1925 provides that:

“…The Commissioner of the amalgamated force shall from time to time be appointed by the Executive Council, and every Commissioner … may at any time be removed by the Executive Council”.

It is within this primary constraint that the Garda Commissioner has ‘general direction and control’ of the national police force, a constraint which has proven to be more active than passive.It is apparent from this section that hegemony over the police lies squarely at the feet of the executive arm of government. When Commissioner Eoin O’Duffy was dismissed in 1933, the Oireachtas brought the Garda Siochana (Pensions) Act into force. The Act was entitled “An Act to provide for the granting of Pensions to Commissioners of the Garda Siochana who have or shall be removed from office otherwise than for incapacity”. More recently two other Garda Commissioners vacated their office under controversial circumstances. Commissioner Edmund Garvey was removed and Commissioner Patrick McLaughlin resigned. Garvey V IrelandIn January 1978 Commissioner Edmund Garvey was removed from office by the then government, by which time, under section 4 of the Constitution (Consequential) Provisions Act 1961, the ‘Executive Council’ has become the Government. On the face of it, Edmund Garvey had little option, given the ‘sudden and brusque’ manner of his purported dismissal, but to contest his removal in the courts. And when the pleadings against Ireland, the Government and the Attorney General were closed, two preliminary issues arose for judicial determination:Does the Police Forces (Amalgamation) Act 1925 empower the Government of Ireland to terminate the office of the Commissioner of the Garda Siochana at any time:-

without prior notice

without giving reasons

Without giving the holder of the office an opportunity of making representations thereto?

Are the provisions of Section 6 sub-section (2) of the Police Forces (Amalgamation) Act 1925 inconsistent with the Constitution of Ireland? (25)In the High Court Mr. Justice McWilliam answered ‘No’ to question 1; and having done so was further of the view that no question of an inconsistency with the Constitution arose. “These findings”, said Kenny J., “meant that the Plaintiff had been wrongfully removed from the office which he held and was at least entitled to damages. The Defendants have now appealed to this court (the Supreme Court) on the ground that the trial Judge’s answer to the first issue was wrong”. (46)In any event it was agreed by all that the Government could dismiss the Commissioner, nor was it ever in issue. It was further agreed that the Commissioner had been denied natural justice. But it was the State’s case that the Commissioner was not entitled to natural justice. According to the State the Commissioner was appointed at the pleasure of the Government and for reasons of State security and public policy, the Government not only had the right but the duty to dismiss him without giving reasons.The Supreme Court delivered a four-to-one majority judgement in favour of Garvey, the dissenting judgement of Kenny J. favouring the Government’s right to dismiss him summarily. Two closely connected matters emerge from the court’s reasoning. One is the departure from British constitution to which the court is bound, and the other is the status of the Garda Commissioner. Constitutional TheoryIn the absence of any ‘modern’ decision bearing directly on the problem as he saw it, Henchy J. was loath to revert to a consideration of the older judicial authorities on the notion of Royal Pleasure (“… for in the main they exemplify or are derived from the concept in British Constitutional theory…”) (47). Consequently, the Irish Constitution became the ‘starting point’ for the inquiry into the alleged unfair dismissal; and the Irish Constitution’s guarantees had to be upheld. Griffin J. also made the traditional/modern distinction and found it “difficult to see how in modern times public policy or executive necessity requires that tenure of an office held at pleasure should be capable of being determined without giving the office holder the right to be heard on his own behalf”. (48) And O’Higgins C.J., in reciting that pre- 1937 statutes continue in force to the extent to which they are not inconsistent with the Constitution added that they were also ‘subject’ to the Constitution. All three judges were emphatic about vindicating the personal guarantee in the Constitution.What makes Kenny J.’s judgement out from those of his fellow Judges is the absence of any deliberation on the constitutional implications of following traditional authority. Indeed, Mr. Justice Kenny’s judgement does not directly countenance a traditional /modern dichotomy at all. On the contrary, he preferred to support his view by calling on no less than “five Irish decisions extending from 1846 to 1918” which he felt were “coercive on the question at issue in this case”. (49)He further traced the history of the declaratory action to support the view that the Commissioner, as holder of an office at will or pleasure, could not successfully sue Ireland or the Government in respect of his removal. Moreover, in Mr. Justice Kenny’s view, the Court could not rule as it has done, unless it ignored what he regarded as ‘the plain meaning’ of S.6(2) and overruled the five Irish cases mentioned in his judgement. On this view the Commissioner was an officeholder, and in view of the terms of S.6(2), he was under the circumstances dismissible at ‘any time’.The Commissioner’s relationship with the Government If the real factor determining the Supreme Court’s (majority) decision was located within the traditional/modern axis of constitutional theory, there was also an 23 intermediate – if sometimes chimerical – distinction made concerning the relationship between the Government and the Commissioner.Since the State argued that the Commissioner held office at the pleasure of the Government and that, consequently, the principles of natural justice ought mot to apply to his dismissal, it was s only reasonable to expect that much should be made of the phraseology of S.6(2) and other comparable statutes providing for appointments at the ‘will’ or ‘pleasure’ of the Government. On this whole point, however, there is much variation.Chief Justice O’Higgins reasoned that the relationship was neither one where master and servant obtained nor one in which the Commissioner was appointed merely at the pleasure of the Government. On the contrary, S.6(2) created a ‘statutory office’ the ultimate consequence of which was that the rules of natural justice did apply to the Commissioner’s removal.Griffin J., on the other hand, held that the Commissioner was the holder of an officer at pleasure, notwithstanding the fact that the word ‘pleasure’ was not used in S.6(2). For Mr. Justice Henchy “the problem in this case does not arise in the interpretation of the words” in S.6(2). Indeed there was no necessity to consider whether the relationship between Government and Commissioner was one of master and servant or otherwise. For Henchy J., as for O’Higgins C.J. and Griffin J., the matter was eventually one of fair procedures.In the main, however, Mr. Justice Kenny relied on the instrument creating the Commissioner’s office and the fact that there was no safeguarding provision of any kind, which the Commissioner could call in aid of his dismissal. Neither could the Commissioner call in aid the principles of natural justice.In contrast to Mr. Justice Kenny’s underplay of any post-1937 constitutional factors and his heavy reliance on precedent and the limits of the creating instrument, is Mr. Justice Henchy’s constitutional emphasis. Mr. Justice Henchy conceived the law “to be that when a person holds a whole time pensionable office (whether under statute, statutory instrument, charter, deed or trust, or otherwise) from which he may be removed at any time, the power of removal may not be exercised without first according him natural justice…” (50)In conclusion, therefore, the Supreme Court held that the Government was not empowered to terminate the office of the Garda Commissioner without prior notice, etc. In other words, Government has a wide discretion to appoint and dismiss the Commissioner if they abide by just procedures as to the manner in which they do it. Moreover, the question of the master and servant relationship is somewhat academic if the removal is done in a manner that is in accord with natural justice. On this point, there are two riders, one by Griffin J. and the other by Henchy J., that are of some consequence. According to Mr. Justice Griffin:“The importance of the distinction between invalidating a dismissal on substantive rather than procedural grounds, is that whilst in the case of a substantive ground there cannot be a second dismissal based on the same grounds, in the latter case a second dismissal is valid provided that the correct procedure is adopted”. (51)

According to Mr. Justice Henchy, while a reason by virtue of natural justice must be given for the proposed dismissal, “that reason need not always be a specific or particularised reason. It will usually be sufficient if it indicates in general terms the ground on which the Government propose to exercise their dismissal (e.g. because of ill-health, to improve the efficiency of the Force, because the Commissioner has lost the confidence of the Government); but if the reason is specific misconduct, the Commissioner should be accorded an opportunity of dealing adequately with the complaint”. (52)

Summary

Thus far we have argued that the theory equating the citizen with the policeman is anachronistic and unreal when appealing to their respective individual powers of arrest. The growth and development of penal statutes and of the organisation of the police has exacerbated this equation out of all proportion both in England and Wales and in the Republic.Moreover, when we compare some characteristics of the police in England and Wales with that of the Garda Siochana, we have argued that the Gardai are (a) organised by central government, (b) nationally unified, (c) regulated by statute law, (d) lacking in comparatively real counterbalances or internal intermediary checks between it and executive control, and (e) are generally directed and controlled by the Garda Commissioner who can be appointed and dismissed at any time for reasons stated if in accordance with natural justice.To say that we are a small country, and that the police-population, as well as the population in general, bears no comparison whatsoever to that obtaining in the U.K., or that for historical reasons, we have to organise things as we organise when, means something. It is by no means, however, a satisfactory explanation.The characteristics, which the organisation of the Garda Siochana exhibits, are neither good nor bad. Smallness in itself is neither good nor bad. But when we add certain other characteristics to the ones already enumerated, caution rather than complacency must be emphasised.What other characteristics? We know that the Gardai provide us with our only source of information regarding national crime up to and including their determination in court. We know that they mould public opinion, that they rarely if ever refer to the prosecutorial rate of proof over the years, and that this rate is predominantly secured in the lower courts, once known as police courts. We know that over 70% of all Irish litigation is criminal in content.

We also know that Irish Government up to quite recently is dominated for long periods by one-party administration. And if we add to this the probable increase in the homogeneity of the higher ranks within the force following the removal of Commissioner Edmund Garvey, the expressed sympathies of the Garda Representative Body before this removal, (53) and the complaints of brutality against