The dilution of adversarialism in the Irish criminal process and its correlation to the expansion of pre-trial juridical activities, recentralisation of the victim and the growth of dispositive justice.
The Irish criminal justice system is adversarial in nature and is based on the traditional English common law system. Legislation governs certain aspects of the criminal process, but many of the rules of evidence and criminal procedure stem from the case law of the superior courts. Ireland’s criminal justice process is showing some signs of drift towards a new model of justice, which is increasingly less adversarial in nature. This is leading to a dilution, to varying degrees, in the constituent elements of adversarialism. Traditional adversarialism has had to become more elastic The central question of this work is to examine the ways in which adherence to adversarialism is being challenged and weakened in the Irish criminal process. The research examines this assertion through the lens of criminal procedure, victim accommodation and a visible drive by the state to eradicate inefficiencies that in some instances ultimately remove judicial involvement in its entirety. The changes examined do not hugely influence the reshaping of adversarial courtroom proceedings, but instead demonstrate visible change to procedural rights within the pre-trial environment and as a consequence create a new paradigm of judicial avoidance and procedural control that is reshaping the criminal trial is accepted that the search for justice is central to the adversarial process, but this search is balanced against various other considerations including maintaining the integrity of the system and modernising the criminal law against emerging challenges. Whilst the adversarial trial has a powerful ‘symbolic significance’, the depth and strength of its core elements may now be under attack.
The adversarial system determines guilt by contest. This gives rise to distinct features including the centrality of the trial itself, the reliance on oral evidence from witnesses before impartial observers, rules determining the admissibility of evidence and the roles of the judge, the jury and the parties. This thesis contends that piecemeal changes to the adversarial process over four decades have transformed the Criminal Justice System in Ireland. Jackson viewed Adversarialism as encapsulating a body of core rights to which individuals should be entitled to in order to receive a fair trial.1 Adversary ideology describes an ideal type of adjudication, in which these rights are not only guaranteed, but also the parties control the procedural action and the adjudicator remains essentially passive. The research will examine the dilution of this passivity that is highlighted through the importance of having an active and interventionist judge who implements statutory provisions applicable to the pre-trial domain. Johnston states that while the 1980s afforded the suspect greater protections in the criminal justice system the 1990s tried to reign in these protections. This continued into the 21st century which saw the acceleration of the of the managerialist regime.2 While the author will refer to the epistemic values of adversarialism, the thesis will ultimately chart the shift that is occurring from this tradition. The research scrutinises whether there is an incremental drift in Irish criminal procedure away from the archetypal abstraction of legal dversarialism or perhaps a contemporary hybrid evolution. The research will not seek examine the merits or risks associated with the emergence of a non-adversarial legal evolution. However, it will be clear that the progressive nature of recent non-adversarial innovations that have taken hold in Irish criminal procedure are enhancing the system. The research will demonstrate that adversarialism has diluted, become more flexible and the centre of gravity of fact-finding and control has shifted to the pre-trial environment.
The research will show that the Irish adversarial process is no longer pure. A series of statutes and policy changes have resulted in the system becoming less adversarial which at times leads to convergence with other legal systems and processes. The changes examined in the research are cultivating substantive barriers to adversarial principles. The dilution is occurring in the pre-trial stage through the expansion of coercive investigative powers, the trial itself in terms of procedural changes and beyond the courtroom via diversion. The current criminal process encourages co-operation, participation of the accused while also accommodating and enhancing the inclusion of victims and witnesses not seen in centuries. The pre-trial information gathering process is driven by crime control policies, which seek to be visibly tough on crime. Finally, the employment of various dispositive justice measures including diversion travels beyond all adversarial values and takes offenders outside the court process before it begins. These differing dynamics all assist in diluting the influence and reach of adversarial values albeit diversion and dispositive practices result in judicial avoidance and no risk of severe penal sanction.
- Faculty of Arts, Humanities and Social Sciences
First supervisorShane Kilcommins
Department or School