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Debating the role of the Special Criminal Court

April 15, 2010 6 comments

The Association of Garda Superintendents held their annual conference yesterday and the issue of the use of the Special Criminal Court was discussed. Supt Jim Smith, President of the Association, called for greater use of the Special Criminal Court in gangland cases for fear of jury intimidation. He referred in particular to a recent incident where lists with the names and addresses of jury members were found during a search on the home of an associate of a leading gangland criminal. In this special post Vicky Conway and Fergal Davis explore the pros and cons of this suggestion.

Vicky Conway writes:
The case referred to at the AGS conference yesterday and the finding of a list of jurors’ names is indeed a very worrying development. On the back of this the Association expressed the view that the [non-jury] Special Criminal Court could be used more and thereby negate the danger to jurors.

By way of background the Criminal Justice (Amendment) Act 2009 scheduled a number of organised crime offences, meaning that they must be tried before the Special Criminal Court. The DPP retains the power to direct any other offence to the Special Criminal if he feels the ordinary courts ‘are unable to secure the effective administration of justice.’

The use of the Special Criminal Court is controversial in Ireland, both because of the denial of the right to trial by jury and because it has now existed in Ireland on an emergency basis, without regulating legislation, for close to 40 years. International bodies such as the UN have expressed concern at its continued existence given the Peace Process in Northern Ireland. It must of course be conceeded that when real threats are posed to jurors questions must be asked about the operation of the jury system, but that should not automatically mean that in non-emergency situations we deny citizens of this State their rights.

In the context of the facts as recounted yesterday (re a list of names and addresses being found in a criminal’s home) the appeal of the Special Criminal Court is great. However, this author would urge caution before coming to that conclusion. An investigation into how those lists came into that person’s hands must be conducted swiftly. The regulations around who has access to those lists then need to be reconsidered. In response to AGS’s statement yesterday the Minister for Justice stated that at present defence lawyers have access to these lists as they are entitled to know whether neighbours or friends are on the panel. This could clearly be tightened up and such checks could be performed independently. This is perhaps symptomatic of the general situation, whereby the Special Criminal Court is resorted to when other action could be taken to protect jurors.

Fergal Davis writes:
The Association of Garda Superintendents has advocated broader use of the Special Criminal Court. To the best of my knowledge they made no mention of my previous post on the subject but we live in hope.

The use of the Special Criminal Court in “gangland” cases is not as clear cut as might at first be assumed. A kneejerk rejection of non-jury trial would be foolish. The Special Criminal Court is constitutionally and legislatively anticipated by Article 38.3.1˚ of Bunreacht na hÉireann and S.35(2) of the Offences Against the State Act 1939 which determines that the court may hear cases where ‘the ordinary courts are inadequate’. Where a substantial risk of jury intimidation exists the ordinary courts are inadequate. If a criminal organisation, whether that be a terrorist organisation or a criminal gang, can obtain a list of names and addresses of juror members this gives rise to concerns about the protection afforded by the State to those jurors. Such a situation results in three problems:

  1. The State owes a duty of care to jurors whom they have placed in a position of danger. If the State cannot guarantee their security it should not ask individual citizens to fulfill this role.
  2. As Lord Diplock has observed, ‘a frightened juror is a bad juror even though his own safety and that of his family may not actually be at risk’. (INQUIRY INTO LEGISLATION AGAINST TERRORISM, 1996, Cm. 3420) If jurors believe that their details might not be secure this perception could understandably alarm juries and undermine their ability to function effectively.
  3. The Special Criminal Court has been used in non-subversive cases since 1942. The Court was used to try Black market offences during ‘the Emergency’ when it was believed by the then Attorney General (and future President) Cearbhall Ó’Dálaigh that while swift and severe punishment was required in cases of rationing offences juries would be unwilling to convict (Fergal Davis (2007) The history & development of the Special Criminal Court, pp 96-99).

So, there is precedent and possible justification for utilising this ‘extraordinary’ court. Furthermore, although the use of juries is to be valued because it

…always retains a republican character in that it entrusts the actual control of society into the hands of the ruled, or some of them, rather than into those of the rulers… (Alexis de Tocqueville, Democracy in America, trans. GE Bevan (2003) pp 317-18)

This does not, in and of itself justify the use of juries where such use would entrust the control of society to those criminals who can exercise some control over the jury.

On the other hand, there is no need to throw the baby out with the bath water. The Special Criminal Courts may be justified but this does not mean we ought to employ it at the drop of a hat. The jury – as an institution – has much to commend it. Juries add legitimacy to the decisions of courts precisely because they involve the governed in the process of governing. If they can function they ought to function and so, before resorting to the Special Criminal Court we should first consider other means through which we could strengthen the jury system – being more selective in the information we release regarding jury panels might be a less intrusive means of resolving this problem. But in the final analysis if trial by jury is unable to deliver a fair trial then we should be willing to set it aside and the Special Criminal Court provides a ready alternative.

Capacity to Undertake Jury Service

March 31, 2010 2 comments

The Law Reform Commission’s Consultation Paper on Jury Service launched by the DPP earlier this week recommends removal of the discriminatory provisions in the Juries Act 1976 (as amended) which exclude persons with disabilities from jury service.  The DPP was supportive of the recommendations of the Law Reform Commission in this regard.  The general outline of the Consultation Paper and provisional recommendations are set out in this earlier HRiL blog post. Read more…

Kenny on Carson & Ors. v The United Kingdom

March 29, 2010 1 comment

We are delighted to welcome this guest contribution from Jo Kenny, Legal Officer at the Public Interest Law Alliance (PILA), a project of the Free Legal Advice Centres (FLAC). You can learn more about Jo on our guest contributors page.

On 16th March 2010 the Grand Chamber of the European Court of Human Rights delivered its judgment in Carson & Ors. –v- the United Kingdom (Application No.42184/05). This is the end of Mrs Carson’s long road in challenging UK state pension policy.

Mrs Carson emigrated to South Africa and subsequently retired there. She had previously worked in the UK and made full contributions to the UK state pension. Indeed she continued to make such contributions on leaving. However when her state pension came into payment, it was not index-linked – it was frozen and would not be uprated to reflect the effect of inflation. The UK does not index-link state pensions paid in South Africa. The question for the Grand Chamber was whether this policy unlawfully discriminated against Mrs Carson on the basis of her place of residence, in breach of Article 14 in conjunction with Article 1 Protocol 1. Read more…

Modernising Jury Selection: Law Reform Commission’s Consultation Paper on Jury Selection

March 29, 2010 2 comments

 

The Director of Public Prosecutions will launch the Law Reform Commission’s Consultation Paper on Jury Service this evening.   The Consultation Paper will be available here this afternoon.  The Commission is examining jury service as part of its Third Programme of Law Reform 2008-2014.  It received a large number of submissions as part of its consultation on its work programme in 2007 calling for a review and modernisation of the law regulating juries.   This is the first substantive review of jury service in Ireland since the introduction of the Juries Act 1976 (which was based largely on recommendations contained in Reports of the Committee on Court Practice and Procedure, 1965)

Read more…

“Romeo and Juliet”: Gender discrimination law challenge rejected

March 26, 2010 2 comments

The High Court has today rejected a challenge to the Criminal Law (Sexual Offences) Act, 2006 which was based on a claim of gender discrimination. The case involved a young man, now aged 18, who had sexual intercourse with a girl of 14 when he himself was 15.

The legislation in question provides for the offences of “defilement of a child under 15 years of age” (s. 2) and “defilement of a child under 17 years of age” (s. 3). Under both of these provisions it is an offence to engage in a sexual act with a child under the relevant age. However, s. 5 of the 2006 Act states that

A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.

The claim before  the High Court was that the 2006 Act involved old-fashioned gender discrimination, which had no legitimate justification. Read more…

BNP Constitution is Unlawful

March 12, 2010 Leave a comment

The British Nationalist Party’s new rules on admission to the party were held to be unlawful in a case before Judge Collins in the Central London County Court today.

The BNP voted on 14 Feburary 2010 to amend the 11th ‘edition’ of their constitution to permit ‘non-white’ members of the public to join the party. However, all prospective members would be required to adhere to the BNP manifesto. The new edition of the constitution has not been made publicly available but was sent to the Equality and Human Rights Commission (EHRC) for consideration. Today’s court judgment arises from an action brought by the EHRC on foot of its analysis of the new document. The BNP webpage for the 11th edition contains the following proviso:

This Constitution, the 11th edition, ceased to operate on 14th February 2010, when an Extraordinary General Meeting of the BNP, following on from an in principle decision taken by the Voting Members at last autumn’s Annual Conference, voted by an overwhelming majority to adopt a new version 12.1. The new Constitution, while building on the now defunct one, is massively expanded and far fit for purpose. It will be published shortly after the court hearing with the Equalities Commission on March 9th.

The EHRC action was taken on the basis of section 1B of the Race Relations Act 1976 (as amended). The judgment comes as the Government has announced that there will be no ban on members of the BNP serving as teachers in schools.

EU Data Retention: Death of a Directive?

March 8, 2010 2 comments

The Data Retention Directive was adopted in the aftermath of the public transport attacks in London in July 2005. It requires telecommunications service providers to retain user traffic data for all telecommunications users for a period of six months to two years. The Directive has been highly criticised for requiring generalised data surveillance within the EU and thus infringing privacy of EU citizens.

Since its adoption, the Directive has been challenged in several Member States. The German Administrative Court of Wiesbaden, Supreme Administrative Court of Bulgaria and Romanian Constitutional Court had all found some or all of the measure to be unlawful. Furthermore, Sweden has been on the receiving end of an enforcement action by the Commission for its failure to implement the measure. The Swedish Government continues to equivocate as the matter is likely to be contentious in the upcoming General Election there. However, as widely reported (Irish TimesFinancial Times), the German Federal Constitutional Court has now dealt what may be the death blow to the measure.

Read more…

The Proposed Constitutional Amendment on the Child: An Initial Analysis from a CRC Perspective

February 16, 2010 10 comments

After over 2 years, 62 meetings and numerous milestones highlighting the precarious position of children’s rights in Irish society including the publication of the Ryan and the Murphy reports, the Oireachtas Committee on the Constitutional Amendment on Children has at long last issued its third and final report.

The Committee’s terms of reference were to ‘consider and report to the Houses of the Oireachtas on the proposals set out in the Twenty-eighth Amendment of the Constitution Bill 2007.’ In her Foreword to the Report, the Committee Chairwoman, Mary O’Rourke, TD, stated that ‘since it began its work just over two years ago, the sole objective of the Committee has been to ensure the strongest protection of the rights of children and to further their best interests.’ The key question at this point is whether the Committee has, in fact, achieved this.

Having deliberated on the proposed Article 42(A).1–4 set out in Twenty-eighth Amendment to the Constitution Bill 2007, the Committee recommended ‘an alternative approach’. According to the Report:

The Committee proposes that the existing Article 42 of the Constitution is amended as set out in the following section.

Amendment of Article 42 of the Constitution
Article 42 of the Constitution is proposed to be amended as follows—
(a) existing sections 1 and 5 to be deleted,
(b) new sections 1 – 6 set out below to be inserted, and
(c) existing sections 2 – 4 to be rearranged and numbered as sections 7 – 8.

Children
Article 42
1. 1° The State shall cherish all the children of the State equally.
2° The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.
3° In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.

2. The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including:
i the right of the child to such protection and care as is necessary for his or her safety and welfare;
ii the right of the child to an education;
iii the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity.

3. The State acknowledges that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents and guarantees to respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.

4. Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means, as shall be regulated by law, endeavour to supply or supplement the place of the parents, regardless of their marital status.

5. Provision may be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their responsibility towards the child and where the best interests of the child so require.

6. Provision may be made by law for the voluntary placement for adoption and the adoption of any child and any such law shall respect the child’s right to continuity in its care and upbringing.

7. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
3° Parents shall be free to provide education in their homes or in private schools or in schools recognised or established by the State.

8. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

In doing so, the Committee highlighted that

It was not within the remit of the Committee to address or consider the provisions relating to education which are set out in Articles 42.2 – 42.4 inclusive of the Constitution. However, because the Committee has proposed the deletion of the current Article 42 and its replacement with a new one, it is necessary to re-state the retained Articles 42.2 – 42.4. They now appear essentially unaltered in Articles 42.7 and 42.8 of the Committee’s proposed Article 42. These retained sections are in a different order to that which pertains in the Constitution. They are numbered together at the end of the Committee’s proposed amendment to set them apart from the new sections proposed by the Committee. There is only one very minor amendment to the wording of these sections, namely the deletion of the word “this”, which appears in the current article 42.2. This is merely a technical alteration as this provision in its new position in the proposed Article 42.7.3 would otherwise not make sense.

There is much to be welcomed in the draft amendment, albeit that it still evidences some serious shortcomings in ensuring holistic protection to the rights of the child. In addition, there are a wide range of perspectives from which the proposed text could be considered. This blog entry, however, will focus on whether, if adopted, the Committee’s proposed wording would bring Ireland into compliance with its voluntarily assumed international human rights law obligations under the UN Convention on the Rights of the Child. Read more…

Challenge to the mandatory life sentence for murder

February 16, 2010 3 comments

Two men convicted of murder are challenging the mandatory life sentence prescribed for murder and treason in section 2 of the Criminal Justice Act 1990, on the grounds that it contravenes Bunreacht na hÉireann and the European Convention on Human Rights.
In essence, the men are alleging that mandatory sentencing scheme in Ireland breaches the separation of powers and the doctrine of proportionality. Few people imprisoned for life in Ireland are likely to serve this full sentence – so, the Minister for Justice, following a report from the Parole Board, will direct release.

Their arguments were advanced previously in the High Court in Whelan and Lynch v Minister for Justice, Equality and Law Reform [2007] IEHC 374, where Irvine J rejected their challenge. There the plaintiffs argued that section 2 amounts to a sentencing exercise by the Oireachtas and thereby offends the doctrine of the separation of powers; that the absence of discretion of the trial judge offends the doctrine of proportionality; and that the direction by the Minister for Justice to release a prisoner serving a life sentence represents a judicial function, thus offending the separation of powers. Moreover, the men contended that they suffer inhuman and degrading treatment, contrary to Article 3 of the ECHR, due to the uncertainty of their imprisonment. They further alleged that Articles 5 and 6 are breached by the role of the Parole Board and the process whereby the Minister considers the continued detention, given that the former requires judicial determination of detention and review on a regular and frequent periodic basis and the latter protects a fair trial.

In rejecting all these contentions, the High Court relied on Deaton v. Attorney General [1963] I.R. 170 and Osmanovic v. DPP [2006] I.E.S.C. 50 to emphasise that mandatory sentences have never been viewed as unconstitutional. Indeed the High Court further stressed that judicial discretion in fact is impacted upon by laws which directs the court as to how certain evidence must be treated by at trial, and by requiring mandatory consequential orders to be imposed following upon conviction for road traffic offences, for example.

Regarding proportionality, the court differentiated the right to proportionality in sentencing (required where a trial judge is vested with a discretion as to the sentence that may be imposed) from the constitutional concept of proportionality which in this context is concerned with the public good to be achieved by the deprivation of liberty. The constitutional significance of the right to life, the harm wreaked by a killing on families (as protected by the Constitution) and the unique nature of the offence of murder were relied upon to conclude that s2 was not in breach of the doctrine of proportionality.

Furthermore, no breach of the separation of powers was found on the basis that the role of the court ceases once sentence has been passed and it is then up to the executive to carry out the sentence and, if appropriate, to exercise its rights of clemency. Indeed, in exercising his right to commute or remit punishment, the Minister was seen to be fulfilling the role afforded by Article 13.6 of the Constitution.

As regards the ECHR, the plaintiffs acknowledged that they are unlikely to serve out their life sentence and thus the High Court felt their sentences would not be such duration or unwarranted severity that would breach them within the scope of Art 3. Furthermore, the court did not see a distinction between the plaintiffs who could not anticipate their likely release date from other prisoners who are serving lengthy prison sentences. Moreover, the Court rejected arguments based on Articles 5 and 6 on the basis that the mandatory life sentence for murder is entirely punitive, and so their trial satisfied the requirements of Article 5(1) and they have no rights to a review by an independent body of their detention under Article 5(4) or Article 6(1). Similarly the intervention by the Parole Board and or the first named defendant in reviewing their continued detention was not viewed as a sentencing exercise.

Whether such a resounding rejection of their arguments is replicated in the Supreme Court remains to be seen.

MI5 Head: Torture collusion claims undermine UK security

February 12, 2010 Leave a comment

The head of MI5, Jonathan Evans, has today launched an attack upon the media storm swirling around the Court of Appeal’s decision on Wednesday to reject the Government’s arguments and order the disclosure of seven redacted paragraphs from an earlier judgment detailing the maltreatment of former Guantanamo detainee Binyam Mohamed (pictured left) whilst he was in US custody.

The maltreatment, which even the British Government admits amounts to repeated instances of at least inhuman and degrading treatment, was known to British authorities, who continued to supply questions to the US Government to use as the basis of their interrogations.

This state of affairs opens the government to two possible types of action, meaning that the Mohamed case is more likely the beginning than the end of the Government’s difficulties. Firstly, the Government already faces civil actions from a number of former Guantanamo detainees seeking damages arising out of further allegations of MI5 collusion. The first decision has already been handed down allowing elements of these cases to be heard in camera (Al Rawi (no. 2)). One of the reasons behind the government’s decision to stop fighting this case is likely to cut its losses in preparation for this coming legal battle.

Moreover, individuals such as Witness B, the MI5 officer present at some of the interrogations of Mohamed and who continued to supply questions even in light of his treatment, could face criminal liability (an investigation was launched last year). This would focus on the offence of torture provided by section 134 of the Criminal Justice Act 1988. This provision, coupled with section 31 of the Criminal Justice Act 1948 which makes it illegal for public officials to act overseas in a manner which would break UK law within the jurisdiction, hangs like the sword of Damocles over members of the Security Service cooperating with the US authorities in the aftermath of 9/11.

The corrosive effect of such investigations on morale in the Security Service likely forced Jonathan Evan’s hand in his Telegraph op-ed, which focuses on refuting accusations of a cover up by highlighting that ‘[t]he material our critics are drawing on to attack us is taken from our own records, not prised from us by some external process but willingly provided by us to the court, in the normal way’.

Nonetheless, on the substantive issue of the role of British personnel in interrogations of those in US custody, he concedes that,

‘One shortfall it highlighted in 2005 and again in 2007 was that the British intelligence community was slow to detect the emerging pattern of US mistreatment of detainees after September 11, a criticism that I accept. But there wasn’t any similar change of practice by the British intelligence agencies. We did not practice mistreatment or torture then and do not do so now, nor do we collude in torture or encourage others to torture on our behalf.’

Despite this admission, in the penultimate paragraph of his piece Evans attempts to deflect some of the attention from his embattled officers:

‘For their part, our enemies will also seek to use all tools at their disposal to attack us. That means not just bombs, bullets and aircraft but also propaganda and campaigns to undermine our will and ability to confront them. Their freedom to voice extremist views is part of the price we pay for living in a democracy, and it is a price worth paying because in the long term, our democracy underpins our security.’

This claim misses the point. With or without a cover up, Irish history teaches us that blood tends to seep out from under closed doors. These events must remain the focus of public attention, for if they do not the British Government will not learn the lessons of the lack of oversight in the Security Service that Evans acknowledges. This is all the more important because Evans’s claim fails to appreciate that it is the malpractice itself which drives extremist propaganda, not the reporting of malpractice or the analysis of events in court. Indeed, it is the only process likely to satisfy the public that mistakes have been corrected.

Warning of the risks of providing propaganda to extremists by reporting the British Government’s failings smacks of the reaction to the Thatcher Government’s response to criticism of the Gibraltar killings or the attacks by members of the Bush Administration on Barak Obama’s release last year of the “Torture Memos”. The real problem for those implicated in all these cases not the reporting, it’s that blood sticks.

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