The promised review of the law and criminal justice system in the wake of the collapse of the Keane trial is unlikely to produce major changes, writes Carol Coulter, Legal Affairs Correspondent
Mr McDowell was quick to promise a review of the courts system, Garda resources and the law following the collapse of the trial of Liam Keane for murder on Monday, when the DPP decided not to proceed with the prosecution. This followed a succession of witnesses saying they were unable to recall the events of the night in question.
There has been understandable outrage that a man accused of murder has walked free from a court, still presumed innocent, because the case prepared by the DPP did not stand up in court. This has been accompanied by calls for action of various kinds, ranging from extended use of the Special Criminal Court to the formation of heavily-armed squads of gardaí to "take on" criminal gangs.
Hasty responses to perceived crises in the criminal justice system do not have a very good track record. A few years ago there was a huge outcry about the committing of crimes by people on bail, leading to a constitutional referendum on reducing the right to bail. This was overwhelmingly passed. Yet the law was not implemented for a number of years because of a lack of prison spaces. Meanwhile the crime rate fell anyway.
Last year there was understandable public outrage about the death of two gardaí in an accident involving two young joyriders. In response, the Government announced that it would establish a special detention unit in St Patrick's Institution for 14 to 15-year-olds, at an estimated cost of close to €10 million.
Despite substantial work being carried out on the new unit, it later emerged that it is not going to be used for this age group at all, but for 16 and 17-year-olds, part of the age group for which St Patrick's exists anyway. Although it was due to open this autumn, there is no sign of it opening its doors, and there are still no extra detention or other facilities for 14 and 15-year-olds who get involved in joyriding.
These are just two examples of deciding in haste and (hopefully) repenting at leisure, though some recent initiatives in the criminal justice area, like the criminal assets legislation, have been effective.
So what can the Minister do?
Yesterday he announced an extra €2 million for Garda initiatives in Limerick to tackle gang-related crime. He will examine a Canadian legal precedent where statements made to police can be used in court even if those who made them do not give direct evidence. He will also undoubtedly consult experts in the area.
But experts contacted by The Irish Times did not see any easy solutions. "The Minister will need to formulate the problem, decide how to deal with it, and make sure the solution is effective," said Dr Ian O'Donnell of UCD's Institute of Criminology. "People don't feel confident they can be protected if they go to the police. This is not a question of more police powers or resources."
Witnesses needed to be protected, and to feel protected, he said. Part of this was more speedy trials, where there was not a long delay between a suspect being charged and brought to trial. Another part of it was the use of the bail regime itself to prevent any possible intimidation.
Dr O'Donnell pointed out that the suspicion that witnesses might be intimidated was itself a reason to refuse bail even before the recent bail referendum. Conditions could also be placed on the granting of bail, like insisting that the accused person reside away from the area and keep away from nominated areas and people.
In England there are bail hostels, he said, where people can be required to live, and where a curfew can be imposed, if the courts consider this necessary to ensure that an accused does not interfere with witnesses.
"This Minister knows better than most that you can't make good law on the back of hard cases," said Professor Dermot Walsh of the Department of Law in Limerick University. "The basic facts of this case are not unique. Cases regularly collapse because the prosecution discovers at a late stage that witnesses won't come up to speed."
Part of the solution was greater integration on the part of the Garda into the communities involved, he said. "In any normal society the prosecution line-up will feel able to tell the authorities when they come under pressure, and seek their support and protection. But in certain communities you don't see the gardaí as part of your support system. You see them as enemies.
"This needs to be addressed within the gardaí, and they need to build meaningful bridges with these communities at all levels, not just among community gardaí, otherwise the cooperation won't be there. People who can give information don't have confidence in the system to come forward, and in its ability to protect them."
Professor Finbarr McAuley of UCD agreed that the shorter the time between arrest and trial, the better.
The Special Criminal Court has been invoked as a possible solution. But it was set up to deal with a fear of jury intimidation, and this was not an issue in this case, nor is it expected that the trial of those accused of the murder of Kieran Keane, which has been moved from Limerick, will not be able to be tried by a jury in Dublin.
This court has been used in a number of high-profile criminal cases where jury intimidation was feared, most recently that of John Gilligan. However, the Minister for Justice told law students in UCD recently that he hopes to see it phased out as soon as possible, and its continued existence has been widely questioned in the light of the peace process.
Certain rules of evidence are different there, notably the use of a Garda Superintendent's opinion that a person is a member of an illegal organisation. However, that is a specific, technical offence created by the Offences Against the State Act, and it is difficult to see how it could be applied to ordinary crime.
Professor McAuley advised caution in rushing to quick solutions. "It behoves everyone to stand back and see what those charged with the responsibility of dealing with this come up with. Firing suggestions around is not helpful."