This week we are featuring guest blogs from two students in Dr Deirdre Healy’s ‘Introduction to Criminological Theory’ module, in the UCD Sutherland School of Law. Today’s piece was written by Law student Caroline Doyle.
We are so pleased to be able to use the site as a place to showcase the excellent undergraduate work being done in Irish universities. Enjoy!
Panicking Our Rights Away?
Caroline Doyle
For the purposes of this analysis, I will be examining the theory of moral panics, drawing on the work of Stanley Cohen and how this has led to rights infringements within the Irish criminal justice system. I will start by briefly outlining the theory itself, noting that academics in recent times have viewed the term as overused and outdated. The aim of this piece will be to show that even if overused, the consequences of creating a moral panic can result in the dilution of personal rights, specifically rights in relation to a fair trial. This analysis will look at this from an Irish perspective, examining the re-establishment of the Special Criminal Court and the Bail Referendum.
A moral panic emerges when the stereotyping of individuals or groups results in them being perceived as a serious threat to society (Cohen, 1980). This is due to the amplification of what is perceived as deviant behaviour and the creation of folk devils (Hamilton, 2005). Concern from the public regarding the behaviour of the folk devil becomes more hostile through this amplification (Goode and Ben-Yehuda, 1994) and how the media portray an incident will factor in how society will interpret it (Cohen, 1980). From this, campaigns emerge seeking punitive legislative or policy changes. The reaction from the actors involved in creating the panic will often be exaggerated and disproportionate by comparison to the issue at hand (Hamilton, 2005) and the panic is often generated to the benefit of dominant stakeholders in society (McRobbie and Thornton, 1995). The panic is usually short in duration (Goode and Ben-Yehuda, 1994). At no point does the theory suggest that the panic causes crime, but instead intends to show that the response itself is not one which actually solves the issue of crime (Hunt, 1997). Some academics have argued that through overuse, the term has become redundant (McRobbie and Thornton, 1995) and has become too ambiguous to be applied accurately (Hunt, 1997). It will be argued from here that even if the term is accepted as too ambiguous, the phenomenon of exaggerated outrage still leads to consequences years after a panic has subsided.
From an Irish context, the first analysis will be given to the re-establishment of the non-jury Special Criminal Court. The court was re-established in 1972 (Davis, 2007), propelled by already existing low conviction rates in the ordinary courts, including the failure to secure a conviction in relation to the murder of a Garda (Harrison, 2019). While the Minister for Justice at the time deduced that the reason for low conviction rates was due to juror intimidation, it is important to highlight that there was no evidence of juror intimidation except for the statement he made himself (Davis, 2007). The court was established to deal primarily with offences against the state. When the media announced that a number of people who subscribed to Republican ideology would be awaiting trial in this specific court once established (Harrison, 2019), this reinforced their ‘folk devil’ status.
Cases within this court arguably impede on rights for individuals brought before it. Fergal Davis (2007) argues that the right to a fair trial is inhibited by the imposition of non-jury trials. If a person is accused of membership of an unlawful organisation, guilt can be inferred from their silence or conduct contorting the rules of evidence (Robinson, 1974). It is also argued that statutory powers, which allow for the opinion of a high-ranking member of An Garda Síochána to be taken as fact, breach the rules of hearsay. Another issue emerges whereby potentially falsified evidence is allowed in the form of ‘supergrass’ testimony (Kilcommins, 2006). This testimony is often uncorroborated and deemed unreliable due to the interest of self-preservation from the state-informant (Ingoldsby, 1999). The consequence of this panic, brought forward by an elected officials unfounded claims of juror intimidation, effectively impact the right to a fair trial for those who happen to be placed in front of the Special Criminal Court.
When assessing if the ends justified the means, a number of convictions did emerge from the Special Criminal Court in the first few years of its re-establishment; however, many of those convictions were for offences that would not be classed as offences against the state such as larceny and obstruction of traffic (Robinson, 1974). Even in its modern usage, alleged offences that are tried in the Special Criminal Court can range from minor theft to minor drug possession (Kilcommins, 2006). From this an argument emerges that the court is sometimes used beyond its intended function and that this breach of rights is for the benefit of the state as conviction rates are higher in non-jury courts (Harrison, 2019).
The Special Criminal Court is still retained, with the justification that it protects society from organised criminals, even though there is no empirical evidence to prove this claim (Kilcommins, 2006). This is not an isolated incident of rights being inhibited through the creation of a moral panic in Ireland. Organised crime replaced the paramilitary as a folk devil (Kilcommins, 2006) and through the exploitation of public fear by dominant stakeholders (Law Reform Commission, 1995), the idea was placed forward that organised crime could be defeated through preventative measures such as the restriction of bail (Tynan, 1996).
The murder of journalist Veronica Guerin was seen as the catalyst for the Bail Referendum (Tynan, 1994). This alongside the killing of an unarmed Garda during a bank robbery, led to the media perpetuating a moral panic – one facilitated by politicians as election season neared (Conway and Mulqueen, 2009). It is argued that the primary reason the government revisited the issue of bail offences was because crime was an important election issue (Boyce, 1996) with officials attempting to manufacture a fast solution rather than fixing the systemic issues that caused crime to occur (Campbell, 2006). It is important to highlight that even though crime was an election issue, by international standards crime rates in Ireland were low (Conway and Mulquenn, 2009).
There was no evidence to support the claim that people awaiting trial were committing further crimes, let alone serious crimes, at a rate which warranted panic. Statistics did show that in the early 1990s roughly a third of accused persons on bail went on to commit further offences during their bail period, however those statistics were unreliable as they were based on Garda belief and not reflective of actual conviction rates (Law Reform Commission, 1995). The government also acknowledged that no official research had been conducted in relation to the commission of crimes whilst on bail (Boyce, 1996). This however did not stop campaigners from perpetuating a message that voting for stricter bail laws would lead to a reduction in crime with an emotive emphasis on placing victims before criminals (Campbell, 2006). The media also took part in facilitating the panic by exaggerating their coverage on organised crime (Hamilton, 2005).
Those in opposition to the referendum looked at the impact within the UK where harsher bail laws already existed. By contrast to the UK, bail restrictions did not necessarily result in a reduction of crime rates but instead only guaranteed an increase in the prison population (Boyce, 1996). The UK approach also raised questions on the efficacy of holding prisoners on remand when statistics showed that the majority of those who were remanded in custody did not receive custodial sentences post-trial (Law Reform Commission, 1995). This however was not convincing to the public, who in November 1996, voted to amend the constitution, giving power to the courts to refuse bail where they deem it to be necessary in order to prevent the commission of an offence . Under the Bail Act, bail can be refused if a person is accused of committing a serious offence and the denial of bail is necessary to prevent further offences, provisions also exist whereby conditions can be attached to bail regardless of the offence committed. The impact of this would be detrimental to ordinary citizens whose rights would now be impacted by this method of preventative justice (Conway and Mulqueen, 2009).
The right to liberty should not be deemed a concession prior to trial (Law Reform Commission, 1995), and taking voters at their best, the referendum can be seen as the response from the public in relation to the panic which was fed to them by the media regarding organised crime. In reality however, bail conditions are often attached to low level offences without consideration given to the charge being minor. Refusing to accept bail conditions or breaching those conditions can result in a person being remanded in custody (Irish Penal Reform Trust, 2015), making liberty a privilege rather than a right. The presumption of innocence is also jeopardised by the Bail As (Irish Penal Reform Trust, 2016) as the right becomes obsolete when individuals are deprived of their liberty prior to being convicted of an offence (Raifeartaigh, 1997). It has been argued that the apathy from the public in regards to these rights violations through the Bail Act, was due to the desensitisation of rights being restricted prior by the re-establishment of the Special Criminal Court (Kilcommins, 2006).
From analysing this alongside previous rights restrictions, it is easy to see how moral panics can be utilised to deprive individuals of rights. While many academics argue that the theory of moral panics has exceeded its use, such panics have been capitalized on in order to coerce the public into an apathetic response to the restrictions of civil liberties; going so far as to the public actually voting for the removal of safeguards to their own liberty pending trial. So even if the terminology of moral panics has become too ambiguous to use, the reality remains the same; situations can arise whereby dominant stakeholders will exploit public fear to push reforms that not only restrict individual rights but are also ineffective at tackling issues of crime.
Bibliography
Books
Cohen S, Folk Devils and Moral Panics; The Creation of the Mods and Rockers (St. Martin’s Press, 1980)
Davis FF, The History and Development of the Special Criminal Court, 1922-2005 (Four Courts Press, 2007)
Harrison A, The Special Criminal Court: Practice and Procedures (Bloomsbury Professional, 2019)
Robinson M, The Special Criminal Court (Dublin University Press, 1974)
Journal Articles
Campbell E, “Decline of Due Process in the Irish Justice System: Beyond the Culture of Control?” (2006) 6(1) Hibernian Law Journal 125-158
Conway V and Mulqueen M, “The 2009 Anti-Gangland Package: Irelands New Security Blanket?” (2009) 19(4) Irish Criminal Law Journal 106-113
Goode E and Ben-Yehuda N, “Moral Panic: Culture Politics and Social Construction” (1994) 20 Annual Review of Sociology 149-171
Hamilton C, “Moral Panic Revisited: Part One” (2005) 15 (1) Irish Criminal Law Journal 8-12
Hunt A, “Moral Panic and Moral Language in the Media” (1997) 48(4) The British Journal of Sociology 629-648
Ingoldsby C, “Supergrass Testimony and Reasonable Doubt: An Examination of DPP v Ward” (1999) 2(1) Trinity College Law Review 29-56
Kilcommins S, “Reconfiguring State Accused Relations in Ireland” (2006) 41(1) The Irish Jurist 90-124
McRobbie A and Thornton S, “Rethinking ‘Moral Panic’ for Multi Mediated Social Worlds” (1995) 46 (4) The British Journal of Sociology 559-574
Ni Raifeartaigh U, “Reconciling Bail Law with the Presumption of Innocence” (1997) 17(1) Oxford Journal of Legal Studies 1-21,
Reports
Irish Penal Reform Trust, Bail and Remand (IPRT Position Paper 11-2015)
Irish Penal Reform Trust, The Practice of Pre-trial Detention in Ireland (IPRT Research Paper-2016)
Law Reform Commission, Report on the Examination of the Law of Bail (LRC 50-1995)
Departmental Papers
Department of the Environment and Local Government, Reifrinn in Éirinn 1937-1999 (Pn 8976, 2000)
Newspapers
Boyce S, “The Bail Referendum” The Irish Times (Dublin, 24 October 1996)
Tynan MM, “Guerin Killing Galvanises Government” The Irish Times (Dublin, 16 July 1996)
Oireachtas Debates
Dáil Deb, 15 June 1972, Vol 261 No 10
Legislation
Bail Act 1997
Offences Against the State Act 1939
Websites
https://irishelectionliterature.com/2009/10/30/fine-gael-yes-to-bail-referendum-1996/ (accessed 20/03/2021)
Image Sources
https://irishelectionliterature.com/2013/05/30/defend-the-right-to-bail-vote-no-leaflet-from-the-right-to-bail-campaign-1996-bail-referendum/ (accessed 21/03/21)