Justice in Transition: Whittling the Golden Thread
Claire Hamilton
Ass. Lecturer in Criminology
Dublin Institute of Technology
chamilton@dit.ie
Introduction
The main theme of the current conference is “transition” and its application in
various contexts. The subject I wish to address this morning concerns a process
of transition in the Irish and English criminal justice system, namely, the
devaluation of the fairness of procedure rights or due process rights of accused
persons. Given the breadth of this topic and the limited time afforded me here
today I intend to limit my discussion to the impact of this transition on a
cornerstone principle of criminal procedure, namely, the presumption of
innocence or as it has been famously termed “the golden thread” running through
English and Irish criminal law. I will first conduct a brief survey of recent English
and Irish criminal legislation in order to substantiate my argument that a deprioritisation of the right to be presumed innocent has occurred before
proceeding to attempt to situate the process within a theoretical context and to
address its possible causes.
English Law and the Presumption of Innocence
In March 2002, the Prime Minister, Tony Blair, commented “It is perhaps the
biggest miscarriage of justice in today’s system when the guilty walk away
unpunished” and in one fell swoop sought to reverse the traditional legal axiom
that it is better that ten guilty persons go free than one innocent convicted. In
keeping with this mood New Labour’s flagship piece of criminal legislation-the
Criminal Justice Act 2003- was heralded as a means of “rebalancing the system
in favour of victims” (White Paper Justice for All). It is a complex and wide
ranging statute introducing extensive changes to police powers, bail, cautioning,
and pre-trial disclosure, as well as trial by jury and sentencing. It has also
overhauled mainstay principles of the criminal justice system such as the rule
against hearsay evidence; the double jeopardy rule and the rules on the
admissibility of bad character evidence. It is the provisions concerning the
operation of the latter two rules which form the focus of our discussion here today
given their relevance to the presumption of innocence.
Bad Character and the Presumption
The provisions concerning evidence of bad character are contained in Part 11 of
the Act. Section 101 of the Act provides that evidence of the defendant’s bad
character is admissible if it can pass through one of the seven “gateways” listed
in subsection 1. Many of these gateways will be familiar to English criminal
1
lawyers, such as situations where the defendant has attacked the character of
another or where the evidence is necessary to understand other important
evidence in the case. However, scrutiny of the core gateway- (d) - which allows
such evidence “where it is relevant to an important matter in issue between the
defendant and the prosecution”, reveals that the law has been radically reformed.
Whereas before bad character evidence was generally admitted where a “striking
similarity” or pattern of conduct in the incidents could be shown, s.101(d) (read
together with s.103(1)) allows such evidence to be adduced on the basis that the
accused has a general tendency to commit offences of this type. Further, even
where a previous conviction is not admissible under this provision to show
propensity, it may still be relevant to credibility.
Concern over the admission of such evidence is, moreover, compounded when
one considers the Act in even greater detail. “Bad character” under the Act is
essentially defined as misconduct which is in turn defined in s.112 as “the
commission of an offence or other reprehensible behaviour”. Thus, “misconduct”
includes not just previous convictions to be used in evidence against a
defendant, but previous allegations, acquittals and general behaviour as well. It
is difficult to see how the presumption of innocence may be maintained if
previous acquittals are allowed to play a role in determining guilt. Tapper 1 notes
the very serious erosion of the presumption of innocence represented by a
combination of ss.98 and 109 which mandates an assumption of the truth of bad
character evidence. He observes that cumulatively “these two provisions appear
to be capable of creating a presumption, at least for the purpose of determining
admissibility, that a person is guilty of and offence of which he has been
acquitted.” The presumption is thereby turned on its head.
The traditional exclusionary rule on the admission of evidence of the bad
character of the accused can be viewed as flowing inexorably from the
presumption of innocence.2
The presumption of innocence is obviously
undermined by the adduction of evidence of previous bad character, as, in reality
the defendant is being asked to prove his or her innocence. More specifically,
the presumption is undermined through what is known as “reasoning prejudice”
or “moral prejudice”. The first type of prejudice results in juries concluding that
the accused is the sort of person to commit a certain type of offence and convict.
This is reasoning of the “give a dog a bad name and hang him” variety. As noted
by the Law Commission,3 this reasoning may not be illogical, but results in jurors
or other fact finders placing undue weight on evidence that the accused has
engaged in previous wrongdoing and giving insufficient thought to the possibility
C. Tapper “The Criminal Justice Act 2003 (3) Evidence of Bad Character” [2004] Crim LR 533 at
548.
2 In Irish law this link has been made explicit. In King v. AG [1981] IR 233 McWilliam J. held “One
of the concepts of justice which the courts have always accepted is that evidence of character or
of previous convictions shall not be given at a criminal trial except at the instigation of the
accused, as that could prejudice the fair trial of the issue of the guilt of innocence of the accused.”
See also DPP v. Keogh [1998] 4 IR 416.
3 Law Commission Consultation Paper No. 141, paragraphs 7.7-7.9.
1
2
that the accused has reformed. Further, jurors who consider it too much of a
“coincidence” that the accused has been arrested for the current charge may fail
to allow for increased police scrutiny of known offenders and the continued
tendency of police forces to “round up the usual suspects”.
The second type of “moral” prejudice results in the tribunal applying a standard of
proof below that of beyond all reasonable doubt or, in its most extreme
manifestation, to seek to punish the defendant for earlier misconduct. This may
occur on the basis that a person such as the accused has less to lose than
someone without a criminal record or history of misdeeds and this in turn serves
to minimise the regret that juries feel in convicting.
Both these reasoning processes offend the presumption of innocence. This is
most obvious in relation to the second type moral prejudice through which fact
finders themselves employ a lower standard of proof for those with convictions.
However, it is submitted that the standard of proof may also be indirectly affected
by reasoning prejudice. If the prosecution uses bad character evidence to
bolster weak prosecution cases this may also have implications for the criminal
standard of proof. In his critical appraisal of the Act, Munday4 illustrates the
practical problem here when he gives the example of a defendant who is
prosecuted for burglary on the basis of some previous convictions and some
circumstantial evidence such as a footprint from a trainer similar to one worn by
the defendant and a lie told by the defendant as to his whereabouts on the date
of the crime. The defendant in that situation, if convicted, will really be convicted
on the basis of previous conduct rather than on the other evidence so that the
prima facie case, the lowest threshold of proof, is in effect elevated to the highest
form, that beyond a reasonable doubt.
It is noteworthy that some empirical support for the above theories has been
garnered from a recent study carried out by Dr Sally Lloyd Bostock in the
University of Oxford, albeit with mock jurors. Bostock found that particular types
of conviction, such as indecent assault on a child, can be particularly prejudicial
and also that recent similar convictions increase the perceived probability of
guilt.5 In the light of the findings, she has been critical of the reforms introduced
by the 2003 Act “I think not enough account has been taken of the psychology of
how people are going to use this information. A previous similar conviction,
especially a recent one, is psychologically a very powerful piece of information.” 6
Retrial for Serious Offences
Part 10 provides for a possible retrial where a person has been acquitted of a
“qualifying offence” on indictment or on appeal against a conviction in
R. Munday “’Round up the Usual Suspects!’ or What We Have to Fear from Part 11 of the
Criminal Justice Act 2003” 169 (2005) Justice of the Peace 328 at 330.
5 Law Commission op. cit. at Appendix D.
6 Quoted in H. Kennedy Just Law: The Changing Face of Justice and Why it Matters to Us All
(London, Chatto and Windus, 2004). at pp. 86-87.
4
3
proceedings on indictment. “Qualifying offence” is defined in Part 1, Schedule 5
of the Act and includes 29 offences, such as murder, manslaughter, rape, drugs
trafficking and some of the more serious criminal damage offences. This list is
much more extensive than that originally proposed by the Law Commission or by
the Home Office in “Justice for All” –it is therefore likely that the impact of this
legislative inroad into the double jeopardy rule will be considerable. The criteria
for the reopening of an acquittal are set down in ss.78 and 79 of the Act and are
applied by the Court of Appeal upon application by the Prosecution. The
prosecution must be able to point to “new and compelling evidence” defined as
evidence which is reliable, substantial and “highly probative of the case against
the acquitted person.” Section 79 adds the additional criterion that “it is the
interests of justice for the court to make the order” for a retrial.
Given that the retrial of the offence would be taking place against a background
of a determination by the Court of Appeal that new, substantial, highly probative
evidence had come to light, it is at least arguable that the second trial would
essentially be proceeding from a presumption of guilt rather than innocence. As
Helena Kennedy7 writes:
“The campaigns for retrial will inevitably attract huge publicity. How can
there be a fair retrial? A second jury might assume that, since our
cleverest judges find the new evidence highly persuasive, their role is
simply to endorse a conviction. The assumption at a retrial brought about
because of new and compelling evidence will be that the defendant must
be guilty. How does this square with the presumption of innocence?”
As a response to some of the concerns voiced, the Government has given
powers to the Court of Appeal to impose reporting restrictions to prevent a
substantial risk of prejudice to a retrial. By then, of course, the damage will have
been done given the likelihood of intense media coverage of the trial up to that
date.
The Irish Criminal Justice Bill 2004
In a manner redolent of the English Act, the current Irish Criminal Justice Bill
contains a plethora of reforms on disparate elements of the criminal justice
system which have given rise to considerable criticism in civil libertarian
quarters.8 Among other controversial provisions, the Bill seeks to bestow a
power on the Gardai to issue search warrants to themselves, without the
important safeguard of judicial supervision9 and amend the traditional rules
concerning the admissibility of previous inconsistent statements.10 Indeed, it has
been described by Prof. Dermot Walsh, a leading commentator on criminal
7
H. Kennedy op. cit. at p.81.
See for example Irish Council of Civil Liberties “Submission to Joint Oireachtas Committee on
Justice, Equality, Defence and Women’s Rights” (February 2005).
9 Section 5.
10 Section 15.
8
4
justice issues in Ireland, as “completing a crime control model of criminal
justice”11 in Irish law. It is also interesting to compare the rhetoric surrounding
both Acts: while Mr. Blunkett spoke of “rebalancing the system in favour the
victims”, the Irish Minister for Justice, Michael McDowell, also seeks to pit the
rights of the accused against those of society through the expression of his belief
that “the balance has shifted too far in favour of the accused.”12 Again, given my
specific concern with the presumption of innocence, it is proposed to examine
here only the measures dealing with periods of detention and anti-social
behaviour orders.
Anti Social Behaviour Orders
In addition to increased police powers, the Minister for Justice, in a classic
example of “a British legislative idea taken [to Ireland] and given a green outfit
with silver buttons to make it look native”13 has signalled his intention to provide
for Anti Social Behaviour Orders (ASBOs) later this year by way of an
amendment to the Criminal Justice Bill. Although the order preventing the
behaviour is civil in nature, the breach of an ASBO does not invoke the normal
contempt of court procedure for breach of a civil order, but in fact constitutes a
criminal offence punishable by a maximum penalty of five years imprisonment.
ASBOs were adopted by New Labour in 1998 as a deliberate policy choice to
“mix the best of the criminal and the civil law” 14 in order to more effectively target
anti-social behaviour perpetrated primarily by young people and groups of young
people. One of the main benefits of this hybrid structure, (which has been
described as “sailing as close to the wind as possible”),15 was that the civil rules
of evidence and procedure applied so that hearsay evidence from frightened and
intimidated people within the community could be adduced in court, without such
persons giving direct evidence. Another benefit clearly intended by New Labour
was the assessment of evidence according to the civil standard of proof, that is,
on the balance of probabilities, thereby circumventing the presumption of
innocence and the beyond a reasonable doubt standard. The main concern for
the purposes of the instant discussion, therefore, is whether the proceedings
under the Act are in reality criminal and the protection afforded by the
presumption has been rendered meaningless by a governmental sleight of
hand.16
D. Walsh “The Criminal Justice Bill: Completing a Crime Control Model of Criminal Justice?”
paper delivered at Conference on the Criminal Justice Bill 2004: Implications for Human Rights
and Legal Practice, Trinity College Dublin, 20th April, 2005.
11
12
Minister Michael McDowell, Dail Debates, 15 February 2005.
Deputy John Kelly Dail Debates, 3 May 1983 (Debates over Community Service Act 1983.)
14 Jack Straw, HC Debates Vol 287 Col 791 16th December 1996.
15 A. Ashworth “Social Control and ‘Anti Social Behaviour’: The Subversion of Human Rights?”
[2004] 120 LQR 263 at 289.
16 Indeed, while concerns here were originally centred around net widening and the use of
imprisonment for minor, non-criminal behaviour, six years of practice has shown that the orders
are primarily being used for acts which already fall within the statutory definition of criminal
behaviour such as burglary, criminal damage, theft and various forms of threatening and abusive
behaviour. See N. Padfield [2004] Crim LR 712 at 713 “In practice, the complaint is not that the
13
5
This question was considered recently by the House of Lords in R (on the
application of McCann) v. Manchester Crown Court17 who rejected the contention
that ASBO proceedings were, in “reality and in substance”,18 criminal, albeit with
the concession that the criminal standard of proof should apply. The House held
that the proceedings under the Crime and Disorder Act were civil, not criminal,
both for the purposes of domestic and Convention law. This conclusion was
based on various factors: proceedings were not brought by the Crown
Prosecution Service; there was no formal accusation of a breach of the criminal
law; ASBOs did not appear on criminal records; and there is no immediate
imposition of imprisonment. In this latter regard, the proceedings for breach of
an order, though undoubtedly criminal in character, should be considered
separately from the initial application.19 Perhaps most significantly, however, the
House held that ASBOs, unlike ordinary criminal penalties, are designed to
prevent anti-social behaviour rather than to punish the offender. In light of their
classification of the proceedings as civil, the Lords found that hearsay evidence
was admissible, although the standard of proof to be applied in application for
ASBOs was the criminal standard. This standard should be met, in the interests
of fairness, when the allegations of criminal or quasi-criminal behaviour were
made due to the “seriousness of matters involved”.20
A superficial reading of the legislation supports the lawlords’ conclusion. The
application must be made by complaint, which is a civil process; it may not be
made by the usual prosecuting authority or a member of the public; and a
successful application does not have any of the types of outcome that normally
follow criminal proceedings. It is submitted, however, that many of the above
elements, such as the absence of a formal charge and criminal record focus on
form rather than substance and as such should not have influenced the decision
of the lords. Moreover, on closer examination, it is clear that the original
application for an ASBO cannot be so conveniently separated from its criminal
counterpart in the event of a contravention of the order. One of the main reasons
for this, as cogently argued by McDonald,21 is that findings of fact from the initial
law is unduly oppressive on ‘sub-criminal’ behaviour but that the ASBO is being used to avoid the
due process protections of the criminal justice system in genuinely criminal cases.”
17 [2003] 1 AC 787.
18 D. Tausz “Anti Social Behaviour Order: Whether Proceedings are Civil or Criminal in Nature”
[2003] Crim LR 269 at 270.
19 As Lord Steyn noted “These are separate and independent procedures. The making of the
order will presumably sometimes serve its purposes and there will be no proceedings for breach.
It is in principle necessary to consider the two stages separately.”
20 It should be noted that the criminal standard of proof is only to be applied to the first part of the
test to be satisfied in ASBO proceedings, namely, whether the applicant has “acted ...in a manner
that caused or was likely to cause harassment, alarm or distress to one or more persons not of
the same household as himself” (s.1(1)(a)) and not to the second part of the test concerning
whether the order is necessary. Lord Steyn said “the inquiry under section 1(1)(b), namely that
such an order is necessary to protect persons from further anti-social acts by him, does not
involve a standard of proof: it is an exercise of judgment or evaluation.”
21 S. McDonald “The Nature of the Anti-Social Behaviour Order- R (McCann & Others) v. Crown
Court at Manchester” (2003) 66 MLR 630.
6
application may have a bearing on the sentence which will be ultimately imposed.
A person sentenced for breach of an ASBO will be punished, not just for one act
of defiance of the order, but for the previous anti-social acts committed by that
person which led to the imposition of the order.22 The fact that the behaviour
proven at the initial hearing contributes towards the criminal penalty finally
imposed would clearly suggest that a global approach should be taken to the
issue of the characterization of the proceedings and would suggest that, overall,
they do have a punitive element.
It must also be noted that the judgment appears contradictory in its conclusion
that the “seriousness of the matters involved” mandate a higher standard of
proof, yet similarly exacting standards are not required in relation to admission of
hearsay evidence. Indeed, it is a point of concern that the leading of hearsay
evidence in proceedings for an ASBO may subvert the application of the criminal
standard of proof by the House of Lords and deprive it of any practical effect.
This point was taken up by the Human Rights Commissioner Alvaro Gil-Robles in
his recent report on his visit to the UK: “for my part, I find the combination of a
criminal burden of proof with civil rules of evidence rather hard to square;
hearsay evidence and the testimony of police officers or ‘professional witnesses’
do not seem to me to be capable of proving alleged behaviour beyond
reasonable doubt.”23 The Commissioner’s argument would appear to be borne
out by statistics which show an overwhelming success rate for authorities in
obtaining ASBOs. Of the 2,035 ASBO applications notified to the Home Office
up to 30th June 2004, only 42 applications were refused, which constitutes a
success rate of 98 per cent.24 This would suggest that the added protection of a
higher standard of proof has not made any practical difference.
Detention Provisions
Brief mention should also be made of the detention provisions of the Bill. Section
8 of the proposed Criminal Justice Bill doubles the maximum period during which
a person suspected of having committed an arrestable offence can be detained
from the existing limit of 12 hours to 24 hours. [Section 7 of CJA 2003 extends
the maximum time of detention for an arrestable offence from 24 to 36 hours]
When allowance in made for these rest periods, the reality for a suspect,
therefore, may be detention for up 40 hours in a Garda station. Very little
justification has been offered for this extraordinary quantum leap in the period of
22
McDonald supports his argument with comments made by Labour spokeperson, Alun Michael,
in the Commons Standing Committee on the 1998 Bill. Mr. Michael was asked to explain the
maximum five year term of imprisonment for breach of an ASBO in light of the fact that the
maximum sentence for affray is only three years under the Public Order Act 1986. He explained
that affray “involves one incident” whereas breach of an ASBO involves “a pattern of behaviour
that is damaging people’s lives over a considerable period of time”. House of Commons Standing
Committee B Col 138 5th May 1998. See S. McDonald op.cit. at p.633, fn 6.
23 Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his Visit to the United
Kingdom, 4th-12th November 2004 for the attention of the Committee of Ministers and the
Parliamentary Assembly, Strasbourg, 8 June 2005, paragraph 115.
24 House of Commons Written Answers Col 1143W, 4th February 2005.
7
time for which a person can be detained without charge in respect of ordinary
criminal offences. No independent research has been commissioned by the
Minister for Justice into the need for such a measure. Rather the proposal has
as its genesis the Garda SMI Report25 and the subsequent Report of the Expert
Group26 appointed to consider the SMI recommendations, which both found that
the available period of detention is inadequate for the proper investigation only of
serious crimes such as rape and murder and for complex offences such as fraud.
Yet the legislation applies to all arrestable offences, regardless of severity.
What is the effect on the presumption of innocence? From a broad ontological
standpoint (adopted by ECtHR), the presumption applies equally to the pre-trial
stages of a criminal prosecution as at the trial and imposes reasonable limitations
on powers exercised by the police in their investigation of offences. To deny a
suspect his or her liberty on the grounds of “reasonable suspicion” is to deny the
presumption of its tangible effect.
Taking Prof Tribe’s definition of the
presumption as a “commitment by the State to the proposition that a man who
stands accused of crime is no less entitled than his accuser to freedom and
respect as an innocent member of the community”, 27 this commitment is
considerably weakened by dramatic, and apparently unjustified, increases in
detention periods.
Conclusion
The above analysis of some of the key provisions of recent criminal justice
statutes in Irish and English criminal law arguably result in a serious attenuation
of the right to be presumed innocent. This cornerstone principle of our criminal
law no longer seems to guarantee a trial on the criminal standard of proof, rather
than on the basis of previous misconduct; nor protection against a retrial where
the existence of highly probative evidence of guilt has already been determined
nor even a non-arbitrary and reasonable period of pre trial detention without
charge. Most disconcertingly of all, it seems the presumption itself is being
evaded by recourse to the civil law.
This begs the question as to the causes of this legislative trend on both sides of
the Irish Sea. Much has been written on the increased harshness of public policy
in the last twenty or thirty years mostly in relation to the United States as the very
avatar of this tendency. These explanations traditionally concern rising crime
rates, economic and social disruption, post-modernist angst and populist
punitivism. Yet, these explanations are insufficient on their own. Such forces
were also at work in countries such as Finland and Sweden yet the excesses in
penal militancy evident elsewhere did not occur there. All I seek to do here is to
25
Report of the Steering Group on Efficiency and Effectiveness of the Garda Siochana (Dublin
:Stationery Office,1997).
26 Expert Group Report of the Expert Group appointed to consider changes in the criminal law
which were recommended in the Garda SMI Report (Dublin : Stationery Office, 1998).
27 L. Tribe “Trial by Mathematics: Precision and Ritual in the Legal Process” 84 (1971) 1329 at
1370.
8
make a few suggestions as to the possible conceptual underpinnings of this
development, particularly from an Anglo- Irish point of view.
One of the more traditional explanations for repressive crime control measures is
Stanley Cohen’s28 concept of “moral panic” or a disproportionate societal reaction
to a given problem or event. A strong public reaction to a given crime can result
in more crime control oriented legislation and explain swings away from
safeguards such as the presumption of innocence. Yet, while the concept
continues to have an application to certain periods (for example the anti crime
package following Veronica Guerin’s murder in the ROI; the murder of Stephen
Lawrence in the UK), it fails to explain the routine development of legislation that
favours crime control rather than due process. In this regard, a more attractive
solution might be the more recent idea of what Beck29 calls a “risk society”. Beck
sought to highlight that a key feature of late modernity is risk and risk
management, particularly risks to health and the environment. In a risk society
dangers are ever-present “with new threats always lurking in the background”.30
Applying it to the instant discussion, risk society may be more attractive than
moral panic in some contexts as it is forward rather than backward looking,
reflecting the current preoccupation with prevention and control of offenders (as
manifested through ASBOs, and now control orders), and as suggested by some
commentators,31 it finds a particular resonance in legislation which is being
enacted in the course of the perpetual “war on terror”.
Another analysis may be provided by Garland’s32 “culture of control” which
suggests that society is indeed in transition – a reconfiguration is taking place in
which priorities have been realigned to focus on features such as offences
committed, the rationality of offenders and the utility of punishment goals such as
just deserts, incapacitation and retribution. Crime policy, Garland argues,
currently operates in two distinct manners. The first is what he terms the
“criminology of the other” and includes such familiar features as the politicization
of crime, and a shift in focus towards the needs of crime victims. Indeed, this
criminology of the other echoes the notion of moral panic and the creation of
folkdevils.
The second, more unfamiliar concept is what he terms the
“criminology of everyday life” where crime is now seen as normal and offenders
as rational choosers rather than disadvantaged and poorly socialised, and the
state as unable to ensure order and security. This is reflected in preventive
measures such as auto theft deterrent devices. Applying his theory to Irish
28
S. Cohen Folk Devils and Moral Panics: The creation of the Mods and Rockers, (London,
MacGibbon & Kee, 1972, 1980, 2002).
29 U. Beck Risk Society: Towards a New Modernity (Sage, London, 1992).
30 Ibid.
31 See for example and D. Filler "Terrorism, Panic and Pedophilia" (2003) 10(3) Virginia Journal
of Social Policy and the Law 345 at p. 349 and M. Welch “Seeking a Safer Society: America’s
Anxiety in the War on Terror”, paper delivered at the British Society of Criminology Conference,
Leeds, July 12-14 2005.
32 D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford
University Press, 2001).
9
criminal justice policy, Kilcommins et al33 have argued that it may be applicable
not only to state-offender relations (post conviction) but also to state-accused
relations (pre-conviction). They note that “in the same manner by which judicial
discretion is curbed to create a more efficient system of punishment, so too, in
the broader trial process are the fairness of procedure rights of accuseds limited
so as to allow for more result-orientated outcomes. Both of these increasingly
streamlined processes are part of the same over-arching continuum.”34
The twin concepts of the criminologies of the other and everyday life provide an
important framework within which the legislative developments noted above in
relation to the presumption of innocence can be scrutinised. The criminology of
the “other”, or to put it another way, the myth of the other acts as barrier to full
appreciation of the importance of the presumption of innocence and is key to
popular and political support for legislative incursions into the concept. It is often
assumed that only “criminals” will suffer, that the “innocent have nothing to fear”,
yet these rights belong to all citizens. To quote Helena Kennedy once more, “We
always think it is ‘other’ people’s liberty that is being traded, which somehow
makes it all right. We do not realize that liberty is not divisible in this way.” 35
Further, the “criminology of everyday” life, with its emphasis on maximising
control and minimizing risk may explain the shift to civil law mechanisms in the
punishment of offences. As Kilcommins et al note the ASBO must be viewed
against existing provisions relating to sex offender orders, confiscation orders
and civil forfeiture of property thought to be the proceeds of crime, all of which
reflect perceived limitations in the ability of the State to combat crime through
traditional initiatives.
The final theoretical framework I wish to explore today is what may be termed
Michael Tonry’s36 “sensibilities” thesis. His essential argument is that American
crime control policies are to a large part an outgrowth of American sensibilities or
ethos/zeitgeist of the past third of the twentieth century given that “the bottom
line…is that the public could not have been led someplace it was unwilling to
go”.37 His thesis can be succinctly described as “part-sensibilities, part moral
panic and part crime-trends”38. He argues that sensibilities in relation to crime
move in recurrent cycles of tolerance and intolerance just as Musto 39 described
cycles of tolerance and intolerance of alcohol and drug use in the US.
Paradoxically, intolerance becomes strongest during periods of declining use of
S. Kilcommins, I. O’Donnell, E O’Sullivan and B. Vaughan Crime, Punishment and the Search
for Order in Ireland (IPA, 2004).
34 Ibid. p.173.
35 H. Kennedy op. cit. at p.8.
36 M. Tonry, Thinking about Crime: Sense and sensibility in American penal culture (Oxford
University Press, 2004).
37 Ibid. p.4.
38 K. Lucken, “Book Review: Thinking about Crime: Sense and sensibility in American penal
culture” 7(3) (2005) Punishment and Society 331.
39 D. Musto, “The History of Legislative Control Over Opium, Cocaine, and their Derivatives” in R.
Hamowy, (ed) Dealing With Drugs. (Pacific Research Institute for Public Policy, 1987).
33
10
drugs. As people become aware of the dangers of drug abuse, and public
opinion begins to turn against drug use, individuals with more liberal attitudes
become afraid to speak out against a vociferous “moral majority”. So it is also
with crime generally. Moral panics also play a role in this theory by magnifying
the effects of these longer-term changes and providing “windows of opportunity”
for repressive measures.
In both an English and Irish context, Tonry’s theory has at least a ring of truth to
it. English and Irish societies have been prone to moral panics over crime,
specific examples of which have already been discussed. It is at least arguable
that such moral panics coincided with a general change in Anglo-Irish
“sensibilities” engendering increased intolerance of offenders. As O’Mahony40
has argued in Ireland “the crisis surrounding civil liberties in contemporary Ireland
is a crisis of the collective conscience…the problem is, most crucially, at the level
of ideas and attitudes.” Further parallels can be drawn between Ireland and
England and the US in that crime rates in the last twenty years have peaked and
fallen in a cyclical fashion and, most significantly, the harshening of legislative
programmes and in the use of imprisonment were introduced in periods of falling
crime rates.41
Whatever explanation may be put forward for the breaking of faith with due
process protections and, more specifically. as demonstrated here today, the
presumption of innocence, it remains clear that this is topic which should be
urgently addressed, not just by civil liberties groups but by researchers,
academics and politicians. Crime control is becoming more central to Western
societies, yet surprisingly little has been written on this in comparison with other
criminological issues. We ignore this trend, its causes, effects and dangers at
our peril.
P. O’Mahony Criminal Chaos: Seven Crises in Irish Criminal Justice (Round Hall Sweet and
Maxwell, 1996) at p.37.
40
See I. O’Donnell I. and E. O’Sullivan “The Politics of Intolerance-Irish Style” 43 (2003) Brit. J.
Criminol. 41 and M. Tonry “Symbol, substance and severity in western penal policies” 3(4) (2001)
Punishment and Society 517.
41
11