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See you in court!

Sunday, 6th March, 2016 10:15am

See you in court!

Damien Rudden.

INSIDE STORY: He’s a been fixture in our district court for over 10 years, his practice deal with cases from all walks of life, from drug possession, to assault, to murder... to speeding tickets. Cavan solicitor Damien Rudden lifts the lid on what happens in your local district court and why you might be inclined to take a trip down to see the goings on at the “gateway courts”...

Paul Neilan

A Stradone native, he didn’t initially intend on becoming a solicitor but was intrigued by the nascent corporate law degree and was lectured by NUIG’s legal legend Prof Tom O’Malley, where corporate law soon faded out of focus to be replaced by the more human rights-centred criminal cases.
“Tom O’Malley ignited my interest in criminal law and criminal defence - it’s the most interesting,” he says of the younger Rudden who went on to serve his apprenticeship with George V Maloney Solicitors in Cavan, where he got an unusual tip that stood the test of time.
“The best piece of advice was from George: 'Do not write down on paper what you would not like to have read out in court, just remember that.’”
Those words, designed to protect a client, were well over a decade ago and they still stand despite the changes in the law itself, the types of crimes coming through the courts and the general legal whorl that is the Irish judicial system.

“Ultimately, the district court is the biggest in the country, it’s the gateway court for criminal charges introduced into the system but the administration of justice has been greatly reduced.
“When I started in George V Maloney we used to go around to every court - Dowra, Ballinamore, Manorhamilton, Ballyconnell, Belturbet, Ballyjamesduff, Bailieborough... in fact we used to go to Kingscourt in the morning and then Bailieborough in the afternoon... Ballyjamesduff to Virginia, Cavan, Castleblayney, Carrickmacross, Clones and Monaghan... there was a court in every town in the two counties and now that is greatly reduced.
“Now, if you’re charged with a criminal offence in Dowra it’s an hour-and-a-half drive to Cavan and, if you don’t have a car, how are you getting to court? Unfortunately, it’s reflected in that a lot of people are unemployed, they don’t have a lot of money, money for a taxi for a two-hour round trip, for example, and they end up taking bench warrants because they don’t have the money to get to the court until the p.m.”

The demon drink
It might seem a lesser point in a grander scheme but not if there is a serious charge to be contested and that is more often the case these days.
“Since I started, there’s been a bigger increase in more serious offences: burglary, assault causing harm, trespass and public order offences have increased.”
Asked why these offences are on the rise, his answer is plain.
“There are two reasons: drugs and alcohol abuse.
“If you took drugs and alcohol out of the equation you’d need a lot less courts.”
The Celt suggests that it witnesses almost 90% of cases with an element of alcohol or drug abuse.
“Absolutely,” says Rudden.
“A lot of the time in mitigation it would be the case that there was too much alcohol and the client actually doesn’t remember what happened. In terms of drugs, absolutely there is a rise; and it’s in Class A drugs.
“In 2004, you might have a handful of people charged with possession but now you would have, every week, 12 or 13 people in court charged with possession and I mean heroin, I mean diamorphine, I mean speed, I mean cocaine.”

Prison the solution?
Drug arrests, sale or supply charges, stop-and-searches, the opening of the Cavan Drug and Alcohol Awareness (CDAA) facility on the Farnham Road and the even the boarding up of a heroin flophouse near a creche have all featured more prominently in these pages in recent times, The Celt asks if prison is really the answer?
“It’s not down to lenient sentences anyway,” he says. “If someone is addicted to a drug they are going to commit a crime. The only thing preventing this is getting it treated, which is very difficult but prison is not the answer. It’s a medical complaint. Their personality and reasoning has been taken away from them because of drugs.”

The Law
The variety of charges and summonses in the court has increased to such an extent that, for any observer, it’s an education as much as an eye-opener, would he recommend a visit?
“Absolutely,” he says, adding in a brief aside that the recent appearance of supervised TY classes is a “brilliant” initiative.
“You would have a great day’s experience in any court in Ireland, any of them, a great day’s experience,” he stresses, before describing the Criminal Courts of Justice as “the best in Europe if not the world”.
“My shop front for my practice is the district, I’m in the district three times a week, if I’m short I will hire barristers to be in the three courts.”
Why would he be short?
“Yesterday, there were 150 summonses, 80 charge sheets...” he explains, “if I’m short I will hire barristers.”
The changing nature of The Law and what comes out in a court lends itself to some fascinating exchanges, meaning preparation is vital but so too is thinking on your feet.
“The Law is so vast that you will never know everything. The Law changes so much that you could wake up one morning and find the relevant law changed and go back to the drawing board on a case and say well, what’s the new law? Because you have to prepare, depending on the charge, and you don’t know what will come out in evidence. You might have a great submission the night before and it might never arise.
“I’ve won cases on points that I haven’t even thought of going in because the evidence came out in a certain way.”

Go Safe, explained
In recent months The Celt witnessed the somewhat lesser charges of speeding struck out on constitutional rights, argued by Rudden. Rafts of lowly speeding charges, the makings of a bit of a bummer of a day, being dismissed on the lofty ideals underpinning the rule of law in this country is typical of the district court as a cross-over place of 'all forms of life’ existing at once.
“Penalty points were activated in 2002 because of the amount of deaths on the road,” he explains. “The Oireachtas decided, rather than dangerous or careless driving charges, they came up with penalty points. Twelves points and you’re automatically disqualified for six months and so on.
“However, there were no problems when the guards were prosecuting these cases and in control of it but the Oireachtas, in their wisdom, decided to put this out to tender and award it to a private company, not even based in Ireland, paid that company millions and none of the money is spent back in Ireland and the company, who were awarded it, trade as 'Go Safe’. They were given specific powers under legislation to detect and prosecute speeding or alleged speeding.
“Because it’s a private company, they take the picture, uploaded it with their software, go back to their base, upload it again to Dublin, and then send it to Thurles, which is the fixed-charged notice office.
“Now, there’s huge problems with this because the evidence is contaminated because some private individual has uploaded to their hard-drive to An Garda Siochana’s hard drive in Dublin, then to Thurles. And the pictures are not always correct - my mother in law received a ticket for speeding when she was in Spain.
“Then there’s the presumption that the owner is driving. There’s a number of presumptions introduced, these were statutory presumptions, everything was presumed. But if you have to go to court to prove your innocence, under the constitution it’s the other way around. The prosecution has to prove a case beyond a reasonable doubt - that’s your constitutional right - but in these cases everything is presumed yet the prosecution hasn’t a clue who was driving.
“It is presumed that the owner was driving, that the driver lives at the address of the owner, that the person who was driving is in the court. It’s if someone says that they never got the fine, which go out in registered post, by the way, it’s again a breach of their right to pay the fine and not have to go to court. So, the person is prejudiced and that’s the reason the Go Safe cases were struck out. They rail-roaded all the laws of evidence so now that’s it up to the person to disprove or rebutt the evidence,” he says.
It’s a typically illuminating example of even the smallest cases having a unique quirk that, for some, fascinates. Rudden is one those.
“I love it. All I can say is that I love my work and being in the court - if I could operate without an office I would! You never know what is going to happen in court. There’ll be a surprise evey day, especially in the district court.”

Next week, The Celt will look at the high-profile case of Ian Harman, a murder-accused, convicted of manslaughter, which Rudden represented and formed part of this interview.

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