Abstract
This chapter documents the role past criminal records play in the investigation of crimes. The lack of empirical data in Ireland makes it difficult to assess the true impact of past record upon police work, thus the chapter comprises a number of elements in order to evaluate the significance of a past conviction in this area. This includes a look at the nature and extent of police powers and targeting practices towards particular groups of offenders. The chapter assesses the potential effect of targeting practices upon ex-offenders in Ireland and elsewhere. It also examines the criminal record databases that exist both in Ireland and internationally including Interpol, Europol, the Schengen Information System (SIS), and the European criminal records information system (ECRIS).
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Notes
- 1.
Foucault, M. Discipline and Punish: The Birth of the Prison, Translated by Sheridan, A. (London: Penguin Books, 1977–1995, at p. 281).
- 2.
Another important factor is whether the Director of Public Prosecutions (DPP) decides to prosecute.
- 3.
One must of course acknowledge Garda accountability (Garda Siochana Act 2005) and the important function of the Garda Siochana Ombudsman Commission. One must also acknowledge the role of the courts in safeguarding the rights of the suspect or detainee.
- 4.
See the Irish Prison Service Annual Reports available at www.irishprisons.ie.
- 5.
A centralised system for accessing criminal records nationally was established by the Probation Service, in their Head office in Athlumney House, Navan, where contact between the Probation Service and the Garda Vetting Unit is co-ordinated. The Probation Service have reported that this system has been very effective and efficient and has meant greater communication between services. The Probation Press, Vol. 3 (1), August 2009.
- 6.
PULSE stands for Police Using Leading Systems Effectively. PULSE provides two-way access to central records at all Garda stations in Dublin and all divisional and district headquarters throughout the country. It plays an important part in facilitating police intelligence on crime and criminals.
- 7.
It is said that the main objectives of criminal record information are the “identification of suspects, aiding criminal investigations … determining how strict to apply a sentence in a criminal trial and clarifying and evaluating a person’s suitability for particular employments.” Joint Committee on Justice, Equality, Defence and Women’s Rights, 7 May 2008.
- 8.
Garland believes that in the era of new technology the detailed gathering of crime data has given rise to a new generation of ‘smart’ crime control. Garland, D. (2001). The Culture of Control: Crime and Social Order in Contemporary Society. Oxford: Oxford University Press, at p. 189.
- 9.
- 10.
By virtue of the Criminal Justice (Mutual Assistance) Act 2008, any country may make a request to Ireland for legal assistance in criminal investigations or criminal proceedings.
- 11.
Europol is a European security architecture which supports member states in dealing with terrorism, cybercrime, and other serious organised crime.
- 12.
Interpol is the world’s largest international police organisation, facilitating police cooperation amongst its members. In order to achieve its objectives of enhancing safety worldwide, Interpol provides targeted training, expert investigative support, data sharing, and secure communication across states.
- 13.
A SIS alert not only contains information about a particular person or object but also clear instructions on what to do when the person or object has been found.
- 14.
Gardaí can at present access this information under the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters, but must actively search for it. Under the ECRIS , member states are obliged to transmit such information, and equally obliged to store information received (EU Council framework decision, Article 4 and Article 5). The instigation for the establishment of this system was the increasing number of criminal convictions being received outside the member state of nationality (Joint Committee on Justice, Equality, Defence and Women’s Rights, 7 May 2008).
- 15.
Under article 5(2) of the Aliens Order 1946 (S.I. No. 395) a non-EEA national may be refused entry for, among other reasons, having a criminal record.
- 16.
See for e.g. www.govtregistry.com; www.criminal-check.com.
- 17.
A practice of seeking voluntary consent of detained persons had also emerged in Ireland. While administratively convenient for the Gardaí, the problem is that the use and retention of such data would then fall outside the protection of the relevant legal provisions in operation. See also DPP v Boyce [2008] IESC 62.
- 18.
See Heffernan, L. (2008) A DNA Database. Irish Criminal Law Journal 18(4), 105–111.
- 19.
- 20.
Then Minister for Justice, Mr Dermot Ahern, Dáil Debates, 2 February 2010.
- 21.
R(S) and Marper v The United Kingdom—30562/04 [2008] E.C.H.R. 1581 (4 December 2008). For an in-depth analysis of this case and its implications see Heffernan, L. (2009). The Retention of DNA and Fingerprint Data. In Bacik, I. and Heffernan, L. (eds.) Criminal Law and Procedure: Current Issues and Emerging Trends. Dublin: First Law, at pp. 163–173. See also Johnson, H. (2015) Data retention—scope of police powers: R (on the application of Catt) v Commissioner of Police of the Metropolis and Anor and R (on the application of T) v Commissioner of Police of the Metropolis [2015] UKSC 9” Communications Law, 20(2), 56–59.
- 22.
Council Decision 2008/615/JHA and Implementing Council Decision 2008/616/JHA.
- 23.
Section 60 provides that the database system may only be used for the investigation and prosecution of criminal offences, in order to address concerns that the Database might be accessed by third parties or be made the subject of discovery orders in non-criminal matters. A further safeguard is that disclosure of information relating to biological samples or information on the database is a criminal offence triable summarily or on indictment.
- 24.
The retention periods allowed are 6 years in the case of adults and 3 years in the case of children.
- 25.
Oversight Committee is to be chaired by a former judge of the Circuit Court and include a representative of the Data Protection Commissioner.
- 26.
Mark Kelly from the ICCL (2010, January 19) Rights watchdog to scrutinise privacy safeguards in DNA Database Bill. Irish Council for Civil Liberties Press Release.
- 27.
Brogden, M. (1994) “Gatekeeping and the Seamless Web of the Criminal Justice Process” In McConville, M. and Bridges, L. (eds.) Criminal Justice in Crisis (London: Edward Elgar, at p. 153).
- 28.
Glasbrook Brothers Ltd. v Glamorgan County Council [1925] A.C. 270.
- 29.
Glasbrook Brothers Ltd. v Glamorgan County Council [1925] A.C. 270, at p. 277.
- 30.
DPP (Stratford) v Fagan [1993] 2 I.R. 95.
- 31.
In the case the Court accepted that a garda would be able to stop a motorist on the basis of a general suspicion that drink-driving laws are being breached by the driver.
- 32.
DPP v Cowman [1993] 1 I.R. 335.
- 33.
It was confirmed in DPP (Stratford) v Fagan [1993] 2 I.R. 95, that the Gardaí could stop the driver under the section even though no reasonable suspicion existed for doing so.
- 34.
The court in DPP (Goodman) v Weir [2008] I.E.S.C. 268 (per O’Neill J.) considered this to be a departure from the norm, since it authorises the Gardaí to carry out random checks without having to form an opinion about the driver or vehicle and to arrest and detain the individual for breath-testing purposes. Proof of written authorisation is essential for a prosecution under the section, to ensure that the evidence was obtained in accordance with law.
- 35.
The person and/or his vehicle or vessel may be searched, and examination and seizure of anything found (which appears to the Garda to be something required as evidence) is also permitted.
- 36.
Section 21 (4) further provides that it is an offence to impede or obstruct a member of the Gardaí or other authorised person in the lawful exercise of a power under the Act.
- 37.
O’Callaghan v Ireland [1994] 1 I.R. 555. The challenge was made on the basis of Articles 40.3 and 40.4.1 of the Irish Constitution.
- 38.
Ryan v Attorney General [1965] I.R. 294, at p. 312.
- 39.
O’Callaghan v Ireland [1994] 1 I.R. 555, at p. 563. O’Malley argues that there are difficulties/ambiguities remaining with this statement (i.e. convincing the court that the individual has been harassed, identifying when this has happened to an unnecessary degree and what the appropriate remedies actually are). See O’Malley, T. (2009). The Criminal Process. Dublin: Thomson Reuters, Round Hall, at pp. 347–348.
- 40.
DPP (Stratford) v Fagan [1993] 2 I.R. 95, per O’Flaherty J.
- 41.
DPP v Rooney [1992] 2 I.R. 7. In the case, O’ Hanlon extended this principle which pertained to the power of arrest (Christie v Leachinsky [1947] A.C. 573) to the power of search under the Police Act 1842.
- 42.
Farrelly v Devally [1998] 4 I.R. 76.
- 43.
DPP v O’Donnell [1995] 3 I.R. 551.
- 44.
DPP v O’Donnell [1995] 3 I.R. 551, at p. 556.
- 45.
Section 30 permits a Garda to stop, search, interrogate, and arrest any person whom he suspects of having committed or being about to commit an offence under that Act or a scheduled offence.
- 46.
Sanders, A. and Young, R. (2007) “From Suspect to Trial” In Maguire, M., Morgan, R., and Reiner, R. (eds.) The Oxford Handbook of Criminology, 4th ed. (Oxford: Oxford University Press, at p. 956).
- 47.
DPP v McCreesh [1992] 2 I.R. 239, at p. 250. Physical apprehension is insufficient unless accompanied by words indicating to the person that he is under restraint: People (DPP) v McCormack [1999] 4 I.R. 158.
- 48.
Bunreacht Na hÉireann, Article 40.4.1.
- 49.
The European Convention on Human Rights, Article 5 (1).
- 50.
It was established in the case of Christie v Leachinsky [1947] A.C. 573 that a person must be informed of the reason for which he is being arrested, and this has been consistently adopted by the Irish Courts (Re O’Laighleis [1960] I.R. 93). The duty to communicate the reason for the arrest is to ensure that the person is “aware of his rights and may have regard to his rights in order to use then as speedily as possible to regain his liberty.” People (DPP) v Towson [1978] I.L.R.M. 122, at p. 124.
- 51.
In DPP v Mooney [1992] 1 I.R. 548, the accused had blown into the breathalyser and the results were positive. Thus the reason for the arrest was obvious.
- 52.
People (DPP) v McCormack [1999] 4 I.R.158.
- 53.
Per Walsh, J. in People v Shaw [1982] I.R. 1 at p. 29.
- 54.
For example, The Misuse of Drugs Act 1977, section 25, and the Offences Against the Person Act (OASA), 1939, section 30.
- 55.
A limited power to detain existed under the OASA 1939. Detention for further questioning or investigation was not recognised under common law: Dunne v Clinton [1930] I.R. 366 (HC).
- 56.
This Act does not affect the common law power to arrest for breach of the peace: section 4(6) provides that the arrest powers conferred by that section shall not prejudice any power of arrest otherwise conferred by law.
- 57.
The Criminal Law Act 1997 section 2 (1). This section has been amended by section 8 of the Criminal Justice Act 2006 to bring common law offences carrying a term of imprisonment of five years or more for which there is no statutory penalty within the definition of ‘arrestable offences.’
- 58.
Other statutory powers of arrest include under the Road Traffic Act 1961, sections 49–50 (drunken driving); the Criminal Justice (Public Order) Act 1994, section 24 (supplements the common law power to arrest for breach of the peace); the Criminal Justice (Sexual Offences) Act 1993, section 13.
- 59.
There are four conditions listed, one of which is that the Garda has reasonable cause to suspect that the person will abscond or obstruct the course of justice. The courts are cautious of construing such power strictly.
- 60.
The test for compliance with statutory procedure is judged objectively and must be proved by the prosecution.
- 61.
A relevant offence is an offence under any provision of the Act or a scheduled offence.
- 62.
People (DPP) v Quilligan [1986] I.R. 495, at p. 507.
- 63.
DPP v Finn [2003] 1 I.R. 372, at p. 380.
- 64.
By virtue of the Offences Against the State (Amendment) Act 1998, s.10.
- 65.
Note that the Gardaí are obliged to keep a record of the detention and interviews of a suspect, which includes particulars of the arrest and charge, authorisation for the detention and any extension, and requests for a solicitor. For in-depth discussion of the law on detention see O’Malley (2009) op. cit., at pp. 307–337; Ryan, A. (2000) Arrest and Detention: A Review of the Law. Irish Criminal Law Journal 10(1), 2–10; White, J.P.M. (2000b) The Confessional State-Police Interrogation in the Irish Republic: Part I. Irish Criminal Law Journal 10(1), 17–20; White, J.P.M. (2000a) The Confessional State-Police Interrogation in the Irish Republic: Part II. Irish Criminal Law Journal 10(2), 2–6.
- 66.
The section is amended by the following provisions: Criminal Justice (Miscellaneous Provisions) Act 1997, s.2; Criminal Justice Act 1999, s.34; Criminal Justice Act 2006, s.9 (this provision raised the maximum period of detention from 12 to 24 hours); Criminal Justice Act 2011. The provision applies only to offences carrying a maximum of five years imprisonment or more and the member in charge must have reasonable grounds for believing that detention is necessary for the proper investigation of an offence. In the case of People (DPP) v Reddan [1995] 3 I.R. 560, the court determined that the detention should not be solely for questioning but for the ‘proper investigation of the offence.’
- 67.
See also s.7 of the Criminal Justice Act 2011 which amends s.4 of the Criminal Justice Act 1984 in relation to the suspension of detention.
- 68.
The necessary belief may be sustained through information given to the member in charge before or after the arrest is made: DPP (Dillane) v Alcock [2008] 1 I.R. 200.
- 69.
The same as for arrestable offences.
- 70.
DPP (Dillane) v Alcock [2006] I.E.H.C. 437.
- 71.
For more see Ryan (2000) op. cit., at pp. 7–10.
- 72.
The Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987, and Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) (Amendment) Regulations 2006. See People (DPP) v Boylan [1991] 1 I.R. 477; People (DPP) v Cleary, unreported, High Court, December 7, 2001. Contrast with People (DPP) v O’Toole, unreported CCA, 25 March 2003. Note that in the context of the Custody Regulations, failure to abide by them will not necessarily render the detention unlawful or lead to the exclusion of evidence or quashing of a conviction. A judge has discretion as to whether to exclude the evidence obtained as a result of a breach (People (DPP) v Spratt [1995] 1 I.R. 585; People (DPP) v O’Shea [1996] 1 I.R. 556).
- 73.
People (DPP) v Boylan [1991] 1 I.R. 477.
- 74.
Once a person is detained, regard must be had to the custody regulations. Both Article 8 of the Regulations and s. 5 (1) of the Criminal Justice Act 1984 require the member in charge to immediately inform the detainee of his right to consult a solicitor, and to have notification of his detention sent to one other person. This right to be informed is merely a legal right. The right to access to a solicitor, on the other hand, was determined by the Supreme Court in DPP v Paul Healy [1990] 2 I.R. 73, to be a constitutional right. The right to a solicitor is limited to right of ‘reasonable access.’ Police practice is to define this as amounting to one hour in every six hours of detention. There is also a constitutional right to silence (Heaney v Ireland [1994] 2 I.L.R.M), although this right has been severely curtailed in recent years. Statutory encroachments on the right to silence include the following: Offences Against the State Act 1939 s.52; Criminal Justice Act 1984, ss.18–19 (adverse inferences); Offences Against the State Act 1998, s.5 (adverse inferences).
- 75.
‘Any person’ includes citizens as well as Gardaí, but if the arresting individual is not a Garda they may arrest only if an offence has been or is being committed, and only if they suspect the individual will resist or is resisting Garda arrest.
- 76.
People (DPP) v Tyndall [2005] 1 I.R. 593, at p. 599. See also DPP v Rourke [2009] I.E.H.C. 314.
- 77.
Dallison v Caffrey [1964] 2 All E.R. 610, at p. 619.
- 78.
Note that although a Garda may make and arrest on order from a superior officer, the requisite suspicion must be founded on something more than the order, and the arresting officer must have “some understanding of the underlying rationale or basis for the arrest.” Per Murray CJ in Walshe v Fennessy [2005] 3 I.R. 516, at p. 518.
- 79.
Walshe v Fennessy [2005] 3 I.R. 516, at p. 536. This is similar to what the court determined in O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 All E.R. 129. As there was very little material before the court in the case as to what information the arresting officer had, the court considered what was in the arresting officer’s mind was sufficient to satisfy the standard.
- 80.
DPP (Dillane) v Alcock [2008] 1 I.R. 200.
- 81.
O’Hara v United Kingdom [2002] 34 E.H.R.R. 32, at para. 34. If the circumstances mandated a swift approach to arrest the suspect then the courts may be more lenient than if there had been sufficient time to make proper investigations.
- 82.
See Walsh, D. (2016) Criminal Procedure. 2nd ed. Dublin: Thomson Round Hall. Walsh further notes that failure to take into account the relevant force guidelines could be a factor in determining whether the arrest was an unlawful exercise of discretion.
- 83.
If the power is exercised for a purpose alien to that for which it is granted this is an unlawful exercise of discretion. This is also the case where the power is exercised in bad faith.
- 84.
DPP v Keogh [1998] 4 I.R. 416.
- 85.
- 86.
This being the other basis upon which the Garda had formed his suspicion.
- 87.
The issue was the accused’s compliance with the direction of the Garda.
- 88.
See Zuckerman, A.A.S. (1992). Miscarriage of Justice-A Root Treatment. Criminal Law Review 323–345. McConville et al. have argued that the police objective often becomes one of tying the suspect to the narrative that has been constructed. See McConville, M. Sanders, A., and Leng, R. (1991) The Case for the Prosecution. London: Routledge, at p. 80 (republished online 22 November 2017). Also see Leng, R. McConville, M., and Sanders, A. (1996). Researching the Discretions to Charge and to Prosecute. In Sanders, A. (ed.) Prosecution in Common Law Jurisdictions. Aldershot: Dartmouth, pp. 119–243.
- 89.
Rottman, D.B. The Criminal Justice System: Policy and Performance (Dublin: National Economic and Social Council, 1984, at p. 64).
- 90.
McConville et al. (1991) op. cit., at p. 80.
- 91.
Wilson, J.Q. Varieties of Police Behaviour: The Management of Law and Order in Eight Communities (Harvard: Harvard University Press, 1968), at p. 7.
- 92.
Whether through proactive or reactive policing.
- 93.
Jowell, J. (1989) “The Rule of Law Today” In Jowell, J. and Oliver, D. (eds.) The Changing Constitution, 6th ed. (Oxford: Oxford University Press, at p. 19).
- 94.
King v AG [1981] I.R. 233, at p. 257.
- 95.
McConville et al. (1991) op. cit., at p. 14.
- 96.
It is possible for the police to use such a rule because either: (a) the law as applied is a product of State agencies, the police in particular, or (b) the law is sufficiently flexible to accommodate what the police want to do. Sanders, A. and Young, R. (1994) “The Rule of Law, Due Process and Pre-trial Criminal Justice” C.L.P. 47: 125, at pp. 128–129.
- 97.
Carey, G. (1998) ‘The Rule of Law, Public Order Targeting and the Construction of Crime,’ I.C.L.J. 8(1): 26, at p. 34.
- 98.
In England, racial targeting is hugely prominent and research shows that young black males are more likely to be stopped and searched than other ethnic groups; Willis, C. (1983) The Use, Effectiveness and Impact of Police Stop and Search Powers. London: Home Office.
- 99.
Sanders, A. and Young, R. “From Suspect to Trial” in McConville et al. (2007, at p. 960).
- 100.
Officer quoted in McConville (1991) op. cit., at p. 26. It should be noted that previous convictions alone cannot be used as reasonable grounds for suspicion: Police and Criminal Evidence Act 1984, Code A.
- 101.
- 102.
McConville et al. (1991) op. cit., at p. 23. It can also trigger arrest for a trivial offence where a background check reveals the past conviction.
- 103.
- 104.
McConville et al. (1991) op. cit., at p. 23. This officer felt that it would be valuable to spend time with prisoners and get to know them in order to recognise them in the future.
- 105.
Farrell, R. and Swigert, L. (1978) Prior Offence Record as a Self-Fulfilling Prophecy. Law & Society Review 12(3), 437–453, at p. 445.
- 106.
See also Schulenberg, J. (2016) Police Decision-Making in the Gray Zone. Criminal Justice and Behavior, 43(4), 459–448.
- 107.
Brogden writes that stops are counterproductive in the long term, leading to wider alienation from the criminal justice process amongst those stopped and their peers and in some cases to criminal careers from within that group. Brogden, M. (1994) Gatekeeping the Seamless Web of the Criminal Justice Process. In McConville, M. and Bridges, L. (eds.) Criminal Justice in Crisis. London: Edward Elgar.
- 108.
It is observed that “[a]lthough the discretion to arrest is legally restricted, in practice, when enforcing the law, the police exercise enormous discretion to arrest.” “The Impact of Arrest Records on the Exercise of Police Discretion” Law and Contemporary Problems, 47 (4) (1984), 287–302, at p. 292.
- 109.
LaSota, J.A. and Bromley, G.W. Release of Arrest and Conviction Records: Project on Law Enforcement Policy and Rulemaking (Arizona: Arizona State University, 1974), at p. 23. Thus even an arrest record can impact greatly on the individual in future processes.
- 110.
Sanders et al. (2010), at p. 192.
- 111.
Some studies have shown that targeting for whatever reason makes many (young males in particular) feel discriminated against, resulting in social unrest and a spiral of more policing and more unrest. Keith, M. (1993). Race, Riots and Policing: Law and Disorder in a Multi-Racist Society. London: University College London Press; Macpherson, W. (1999). The Stephen Lawrence Inquiry, Report of an Inquiry by Sir William Macpherson of Cluny, Cm 4262-1. London: Stationary Office.
- 112.
In Ireland, the effect of area or geographic location has been examined more generally; O’Donnell, I., Teljeur, C., Hughes, N., Baumer, E., and Kelly, A. (2007). When Prisoners go Home: Punishment, Social Deprivation and the Geography of Reintegration. Irish Criminal Law Journal 17(4), 3–9; Bacik, I., Kelly, A., O’Connell, M., and Sinclair, H. (1997). Crime and Poverty in Dublin: an analysis of the association between community deprivation, District Court appearance and sentence severity. Irish Criminal Law Journal 7, 104–133.
- 113.
McCullagh, C. Crime in Ireland: A Sociological Introduction (Cork: Cork University Press, 1996, at p. 66).
- 114.
See McCullagh, C. (1995) Getting the Criminals We Want- The Social Production of the Criminal Population. In Clancy, P., Drury, S., Lynch, K., and O’Dowd, L. (eds.) Irish Society: Sociological Perspectives. Dublin: Institution of Public Administration, at p. 410; McCullagh, C. (2010) Two-Tier Society; Two-Tier Crime; Two Tier Justice. In Kilcommins, S. and Kilkelly, U. (eds.) Regulatory Crime in Ireland. Dublin: First Law.
- 115.
Women make up around 3.8% of the prison population of Ireland, which is relatively low by international standards. See Irish Penal reform Trust website (www.iprt.ie/women-offenders. Last accessed 13/09/2018; Bacik, I. (2002) Women and the Criminal Justice system. In O’Mahony, P. (ed.) Criminal Justice in Ireland. Dublin: Institute of Public Administration, at p. 145. The fact that such a small percentage of prisoners are female may to some extent reflect the chivalry ethos with which women are treated by the justice system and that the police can overlook certain offences by women unless particularly serious or unfeminine. This is an example of how the Garda use their powers discriminatory.
- 116.
- 117.
See O’Donnell, I. (1997). Crime, Punishment and Poverty. Irish Criminal Law Journal (7) 2 134 –151, at pp. 146–147.
- 118.
Garda quoted by Regan, L. (1995). Taken Down in Evidence. Dublin: Gill & Macmillan, at p. 75.
- 119.
The Department of Justice has recognised the lack of research into stereotyping by the Gardaí as an impediment to a more empirically founded criminal justice system. Department of Justice and Equality (1997). Tackling Crime: Discussion Paper. Dublin: Stationary Office, at p. 45.
- 120.
Such concerns were raised in the Dáil Debates on the 1994 Act: for example, Deputy Joe Costello, 433 Dáil Debates Cols. 1006 et seq. In particular, concerns were raised regarding the provisions (sections 8, 11–13) providing for trespass and move-ons against young people from the lower-economic groups, the homeless, and other indigent people.
- 121.
O’Donnell and O’Sullivan found that there is a marked contrast between the policing of the poor and socially inadequate and the time devoted to investigating white collar crimes for example or sexual offences which often take place in private spheres not subject to aggressive policing. O’Donnell and O’Sullivan (2001) op. cit., at pp. 53–59.
- 122.
Section 184 of the Criminal Justice Act 2006 amends s.23 of the Criminal Justice (Public Order) Act 1994, by inserting after s.23, s.23A.
- 123.
See the Institute of Criminology (2003). Public Order Offences in Ireland: a report by the Institute of Criminology, Faculty of Law, University College Dublin for the National Crime Council (Dublin: Stationary Office).
- 124.
McCullagh has argued that crimes of financial dishonesty have a pervasive presence in Irish society, but this is not reflected in official statistical reports on crime or in the prison population, which are both dominated by crimes of burglary and property theft committed by offenders from the recognised, marginalised ‘criminal classes.’ McCullagh, C. (1996). Crime in Ireland: A Sociological Introduction. Cork: Cork University Press, at p. 66. Kilcommins et al. have argued that when it comes to crimes like theft or corporate fraud “the golden handshake and silence are preferable to the iron handcuff and public awareness.” Kilcommins et al. (2004) op. cit., at p. 107. See also the National Crime Forum (1998). Report of the National Crime Forum. Dublin: Institute of Public Administration; McCullagh, C. (2002) How Dirty is the White Collar? Analysing White Collar Crime. In O’Mahony (2002) op. cit., at pp. 155–175.
- 125.
O’Donnell and O’Sullivan argue that while white collar crime like tax evasion might not be as threatening as physical assault, crime such as pollution, the mass marketing of defective drugs, or the deliberate neglect of safety standards do pose very real dangers to society. O’Donnell and O’Sullivan (2001) op. cit., at p. 22.
- 126.
See further O’Loingsigh, G. (2004). Getting Out, Staying Out: The experiences of prisoners upon release. Dublin: Community Technical Aid.
- 127.
Moreover, it is suggested that the targeting of lower socio-economic classes augments their chances of receiving a criminal record, which in turn makes it probable that the Gardaí will inevitably end up policing a higher number of ex-offenders. O’Mahony has observed that suspicion is more likely to attach if past convictions are present, and furthermore that being the associate of a known criminal makes a person a target. See O’Mahony, P. (1993). Crime and Punishment in Ireland. Dublin: Round Hall Press, at p. 224.
- 128.
This is perhaps most visible in relation to driving offences or drink-driving offences (proactive policing). The availability of in-car computers and mobile phones enables Gardaí to check if the individual has a prior record and this can influence the decision of whether to arrest and detain.
- 129.
This certainly makes sense from the point of view of efficiency. Efficiency, meaning the justice system’s “capacity to apprehend, try, convict and dispose of a high proportion of criminal offenders” (Packer 1964, p. 10) is the main criteria of the Crime Control Model of the criminal process according to Packer. The use of criminal record meshes well with this model, hinged upon the values of speed, finality, and an underlying presumption of guilt. Efficiency is not always a good thing however. It shortcuts around reliability in that it is tolerable of error to a certain extent. As opposed to the Due Process Model which insists upon the elimination and prevention of mistakes even at the expense of finality, the primal role of efficiency within the Control Model ensures that rights (esp. personal freedom and privacy) are not as important as repressing crime. See generally Packer, H.L. (1964) Two Models of the Criminal Process. University of Pennsylvania Law Review 113, 1–68.
- 130.
Sir James Stephen stated in 1883: “It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence.” Sir James Stephen, History of criminal law (New York: Norton WW, 1952, at p. 1883).
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Fitzgerald O’Reilly, M. (2018). Policing the Criminal Record. In: Uses and Consequences of a Criminal Conviction. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-59662-8_3
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