Why are we regressing on police reform?
David Byrnes
Barrister | Employment & Whistleblower Law Specialist | Human Rights | Planning & Environment
By David Byrnes BL
The High Court ruling in DPP v Davitt (31 May 2022) has mandated the cessation of the long standing practice of gardaí prosecuting cases on behalf of their colleagues in the District Court. These gardaí, typically sergeant or inspector rank, are known as Court Presenters.
In flagrant disregard for its Programme for Government, the executive intends to introduce emergency legislation to patch the gap, before a temporary stay on that ruling expires on 16 June. The Government presented its programme to govern as the “key part” of its “Social Contract with Citizens”.
The 2018 Report of the Commission on the Future of Policing in Ireland set out a blueprint for the reform of policing. It recommends:
The Commission agreed with the position adopted in comparable jurisdictions where it is recognised that investigation and prosecution processes should be kept separate. It recognised that gardaí in charge of prosecutions in the District Court are not trained to the level of defence lawyers. It reasoned that it is unjustified to take gardaí away from front line duty to prosecute cases in the District Court.
The Commission received and considered submissions from the Policing Authority, Garda Inspectorate and An Garda Síochána.
Significantly, An Garda Síochána called for court prosecutions, as one of several ancillary functions that is “not aligned to its core policing roles”, to be transferred to other State departments or services. It recognised that these functions “present particular resource and extraction issues for An Garda Síochána and the outsourcing of these functions will generate considerable extra policing capacity”.?
The Garda Inspectorate took a similar approach and said it is "primarily about putting gardaí on the front line" which it based on three reports it completed. The Policing Authority called for "greater separation between policing and prosecution" in the District Court. It promoted the repeated attention drawn by the Garda Inspectorate "to the inefficiencies involved in the current system for garda attendance at court". The Policing Authority sought "greater involvement of the state prosecution service in cases before the District Court" citing other advantages from an "ethics and human rights perspective".
In December 2018 the Government endorsed the Commission's Report and agreed to accept all recommendations. It committed to implementation within four years - ending in 2022.
The Programme for Government accepted these reforms as being “essential” to the public trust in the nations police force. It contains an unqualified commitment to “rapidly implement” these and all other reforms recommended by the Commission. It upholds the Commission’s Report as providing the “clear pathway” for the defining role of the basic function of An Garda Síochána – to protect citizens. An then, an elaborate implementation plan was put in train to include:
All of this presents as unified agreement with the Commission. An all hands-on-deck approach.
However, in September 2020, at the direction of the Government, the Department of Justice established a High Level Review Group (chaired by a former Secretary General to the Government) to conduct a re-examination of the role of gardaí in the public prosecution system.
A public request for tender was invited by the Department of Justice to “research” the matters recommended by the Commission. The tender document stated the Commission’s recommendation was accepted “in principle by Government, subject to further evaluation”.
Under Head 9 of General Scheme of the Policing, Security and Community Safety Bill, published by the Minister for Justice, which will repeal and replace the Garda Síochána Act, 2005, it aims to retain and continue the practice of gardaí investigation and prosecuting summary cases in the District Court.
This undermines the Commission’s recommendations and the social contract made by the Government with the people of Ireland. It seems this reform, described as “essential” in the Programme for Government, has been or will be overruled or set aside.
Two interim reports submitted by the HLRG in 2021 to the Minister for Justice have not been published, despite the promise for transparency.
And now, the Government will legislate against its own programme and implementation plan even before the HLRG will submit its final report and make its recommendation - expected by year end.
A press release by the Department of Justice on 9 June confirmed that the Minister for Justice, Helen McEntee T.D., had received Cabinet approval to bring forward emergency legislation to amend the Garda Síochána Act, 2005 to restore the practice of Garda Court Presenters. The Minister stated: “I hope that the Bill can pass through all stages in the Oireachtas by June 16th.”
Minister McEntee is quoted as saying: “The system of Garda court presenters is a well-established one, enabling more efficient use of police resources by reducing the need for individual gardaí to attend court to prosecute every criminal offence they detect.” This is in clear conflict with the rationale for the reform proposed by the Commission.?
And so it appears, that in a blink of an eye, and despite an elaborate and detailed implementation plan and even the unfinished evaluation of a specifically established HLRG, that an essential element of the social contract made between the Government and Citizens of Ireland has unilaterally been swept away, in a knee-jerk reaction to what was a well-considered and reasoned issue.
The Policing, Security and Community Safety Bill, as currently framed, will not implement this "essential" reform.
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Donncha O’Connell (Professor of Law at NUI Galway and former member of the Commission) has said it is “very disappointing” that the Minister is legislating against the clear recommendation of the Commission. He said this recommendation was made to end the “undesirable practice” of gardaí prosecuting cases in the District Court and that what “is so egregiously disappointing is that the minister gives no indication of short to medium-term reform plans for this area [on which a review group is deliberating] nor any indication of her or the Government’s thinking on the commission’s recommendation". (Irish Examiner 10/06/2022)
The Minister has sought to justify the situation by saying: “If remedial legislation is not put in place to allow for the continued use of court presenters, it is expected there would be significant disruption to the operation of the District Courts throughout the country”.
A press release by the Oireachtas Justice Committee on 10 June states: “The committee has granted a waiver of Pre-Legislative Scrutiny given that the courts have been forced into deadlock at local level due”. This occurred on foot of a "request" from the Minister. However, there has been no deadlock in the District Courts.
This noise about court disruptions ignores the fact that lawyers were drafted in to present cases and the wheels of summary justice continued to turn again, almost seamlessly following the initial aftermath of the High Court ruling. Effectively, the gap has already been filled until a permanent solution has been established. Members of the Garda Síochána prosecute in the name of the Director of Public Prosecutions. DPP solicitors prosecute criminal cases in District Courts, but not in all cases. There is no published policy for this division of prosecution responsibility.
This situation raises the important distinction between emergency and temporary legislation. The emergency legislation proposed by the Government should contain a sunset clause since it is being presented as a gap filler. It will otherwise be notoriously difficult and complex to unwind a permanent measure at a future point. Legislating for emergency situations is never desirable. And yet, this was a live and foreseeable problem.
At the heart of this matter is the cost to the taxpayer. The Minister also based the urgency of the position on the “significant costs involved in putting in place alternative arrangements.” However, the Government has provided no empirical (or any) analysis to support that proposition. The?Spending Review Report (November 2021), published by the Government in pursuit of the reforms, do not show these costings.
The salaries, training and support staff for Court Presenters inherently involve significant expenditure. Court Presenters are generally attended in court by a rank and file member. The budget for this has never been published. No comparison between expenditure for the existing summary prosecution system and one based on the reforms recommended by the Commission has been published.
Surely the Minister is not attempting to compare costings based on the current state of the grossly underfunded criminal justice legal aid system. Just last week, the Minister received, a petition, signed by almost 300 practicing barristers calling for an urgent review of “unsustainable” and “uneconomic” legal aid fees in the District Court. The petition seeks the “immediate full and long overdue unwinding of cuts to rates of pay for criminal legal aid services”.
More and more barristers are leaving criminal practice in Ireland and the UK. In March of this year, members of the Criminal Bar Association in England and Wales voted overwhelmingly (94%) in favour of industrial action protesting against stagnant fees. Almost 2,000 barristers are participating in that action which commenced in April. A similar strike by barristers in this jurisdiction would cause significant disruption to the summary criminal justice system. But there is no emergency (or any) legislation being canvassed to remedy this problem.
In 2014, the European Commission for the Efficiency of Justice reported on the annual budget for criminal legal aid per capita. At €18.4, Ireland ranked the lowest amongst our common law neighbours. This is 75% lower than Northern Ireland (€73.53).
A barrister typically receives €25.20 for a remand, €50.40 for a plea in mitigation at a sentence hearing and €67.50 to run a full hearing of a contested trial. Expenses for defence lawyers traveling to and from courts are well below that provided to public servants. There is significant delay in receiving fees and expenses.
Unless the District Court Judge specifically certifies that legal aid should extend to include a barrister (pursuant to a non-statutory scheme established following the Supreme Court decision in Carmody v Minister for Justice) fees are discharged for solicitor only, which is then shared with the barrister. This involves a system based on a long standing convention between solicitors and barristers. This desperately needs reform.?
What this means in practice is that people of insufficient means, who are accused of committing a criminal offence and are presumed by the Constitution to be innocent, often depend on overworked and underpaid lawyers to represent them in court. It is entirely unclear how the Government expects the requirement for constitutional justice to be served.
The former President of the Circuit Court, Mr. Raymond Groarke, has previously issued a warning to the Minister concerning the underfunding of legal aid. The former Minister for Justice, Charlie Flanagan T.D., told the Law Society that “cuts to criminal legal aid should be reversed as soon as possible” and would be dealt with by Cabinet “shortly” (Law Society Gazette June 2018). It failed to materialise.?
In a press release by the Department of Justice on 2 June, the Minister for Justice announced that the former Chief Justice, Frank Clarke, was appointed to carry out a review of legal aid for civil cases as part of the Justice 2022 Plan. No similar review has been triggered for criminal legal aid. Surely legal aid should involve a unitary approach. The 2018 Spending Review Report, published by the Department of Justice, shows criminal legal aid consumes a meager 2-3% of the overall budget in the criminal justice system.
The Department acknowledged the increase of complexity in criminal cases. This does not reflect in the reality of legal aid fees which have remained stagnant since 2002. It somehow concluded that Ireland “compares quite favourably to similar jurisdictions in Northern Europe”.
And so, Garda Court Presenters, as non-qualified lawyers, would be trying to keep pace with increasingly complex laws and legal issues. Another press release by the Department of Justice on 9 June represents that Court Presenters are members of An Garda Síochána who "specialise" in District Court work and "deal with important procedural matters" including "bail applications and presenting a summary of evidence in guilty pleas" on behalf of the DPP. A criminal hearing for bail and sentencing are not procedural matters. Court Presenters run full criminal hearings, conduct witness examination and make legal submissions to the court. Complex rules of evidence are required to be applied strictly in criminal cases.
Any notion of police being specialist prosecutors or training police to also act as lawyers in court is non-sensical. It would defeat the rationale of the reform recommended by the Commission.
The problems in the criminal justice system are wide spread. The Independent Review Group, established by then Minister for Justice and T.D. Francis Fitzgerald, made key recommendations in its 2014 Report for fundamental reform in the Department of Justice. The culture of the Department was found to be closed and unnecessarily secretive which has resulted in an inward looking organisation with limited learning capacity and reduced openness to new ideas. The culture has not changed or adapted to the world in which it now operates.
It is difficult to avoid the conclusion that the criminal justice system is dysfunctional, in my view.
The Examiner published a version of this article on 13 June 2022