Balance of Justice?

18th October 2010

The law has come into some disrepute in recent years, with lawyers bearing the brunt of public ire for a lot of our ills; sometimes fairly and sometimes not.  But if you want to get a clear picture of the moral quality or otherwise of our legal system, a good place to start would be Dearbhail McDonald’s recent book “Bust: How the Courts have Exposed the Rotten Heart of the Irish Economy”.

The book presents a damning account of how the pyramid system (McDonald’s analogy) that was the Irish economic miracle was played out in the Four Courts. The adventures of property developers and investors before Judge Peter Kelly’s Commercial Court make up a large part of the text, but perhaps its most important achievement is to place these complicated legal cases in their political and moral context. In the opening chapters, McDonald highlights the State’s response to massive fraud by the higher echelons of Irish society, including the legal professions: solicitors Michael Lynn and Thomas Byrne defrauded clients to the effect of €80m and €60m respectively – no arrests or charges; solicitors Henry Colley and Colm Carroll defrauded Revenue (and other lawyers) of €32m, but were not even struck off.  They made a settlement with Revenue and no criminal investigation followed.  Needless to say, no one in the Four Courts was surprised, but this staggering leniency sent out a strong message.

But it is the contrasting examples highlighted in Bust, of how the State responds to the vulnerable, that make such a powerful indictment of the fiction of equality before the law in our society, most directly the examples of how the poor were persecuted in relation to relatively minor civil debts, with 276 committals in 2008 alone.  The full details of the case of Caroline McCann, a women with a history of mental illness and alcoholism who was pursued by a Credit Union for an unpaid loan up to the point of imprisonment are far more shocking than the initial summary media reports, and it is clear that without the heroic work of the Northside Community Law Centre, the practice of imprisonment for civil debt would still persist.

The issue of imprisonment for fine default and for minor offences is also addressed; again, it is the banal details of the individuals pursued by the State that are most striking: Jean Kelly, a heavily pregnant mother of eight, imprisoned in 2007 for six weeks for failing to pay a €125 litter fine; Dominic McKevitt, a Dundalk man jailed for failing to pay a €12.70 dog licence.  Of course this is the tip of the iceberg.  In 2009 3,601 persons were imprisoned for road traffic offences (an average of 170 prisoners in custody in this category per day), including 435 imprisoned for failure to display a correct disc. 

Most damningly of all, Bust outlines, side-by-side with Lynn, Byrne, Colley and Carroll, the cases of minor fraudsters who enjoy a very different law and order response: a gambling addict who got three years for forging work documents to a value of €36,000; the fraudulent tax return for €53,000 that got 12 months; the bank employee who got 12 months for falsifying expenses, even where the Gardaí spoke in her favour about her addiction and drug debts; or the 42-year-old woman who got four years for defrauding her partner’s company of €77,000.

Crime and penal policy is about asking society to obey certain rules and punishing the infringement of those rules, but you can’t ask obedience with some level of moral legitimacy. What Dearbhail McDonald has done in this book, as well as charting a culture of corruption and mis-governance, is to raise very fundamental questions about the moral legitimacy of our system of law – a system where not only are taxes only for the little people, it would seem that punishment is also only for the weak and never for the elite.

Liam Herrick, Executive Director, IPRT