Deaths in Custody

In the last ten days two men have died in or following Garda detention. On Saturday Johnny Nevin (39) of Tipperary was detained in Templemore Garda Station, became unwell and was transferred to Nenagh Hospital, where he died. On the 20 April a 39 year-old man was found dead in his cell in Tallaght Garda Station. Both deaths are now being investigated by the Garda Ombudsman Commission under s.102 of the Garda Siochana Act 2005.

The circumstances and causes of these deaths are not known and we should be careful to avoid speculation at this point until the investigations have been completed. There is no suggestion as yet that either man was injured by Gardaí. That said, that two men in their thirties should die in or following Garda custody sould be of grave concern to all. For the time that they were detained they were in the care of the State. As the UK Joint Committee on Human Rights stated in its report on deaths in custody:

When the state takes away a person’s liberty, it assumes full responsibility for protecting their human rights. The most fundamental of these is the right to life.

In addition to the right to life protected under Article 2 of the European Convention on Human Rights, there are also protections against torture, ill-treatment, inhuman and degrading treatment, the right to privacy and the freedom from discrimination. The duty under Article 2 entails a positive duty to safeguard life, which requires not only that states take positive steps to protect the lives of individuals whose lives are at risk but also to adequately investigate any instances of deaths in custody. There is ample case law from the European Court on the right to life and it makes clear that, for instance, if a person is at a heightened risk, even where the threat eminates from themselves, the obligation on the State is even higher (see Keenan v. UK).

Little work has been done on deaths in custody in Ireland though names like Terrence Wheelock and Peter Matthews will be familiar to many (we’ve posted about Mr Wheelock’s death here, here and here). That two men should die in/following garda custody demands the most serious of attention, and the most serious of questions to be asked of the system – including why were they in custody? should they have been there? did the gardai assault either individual? were there any medical conditions at the time of the arrest? were the individuals supervised appropriately at the station? what was the response of officers at the station on realisation of the illness/death of the individual?

At the heart of this issue is the harsh reality of the status of people detained, which the Joint Committee on Human Rights expanded on:

…the majority of people entering custody are extremely vulnerable individuals. Many of those who die in custody are young. Most of those who die are vulnerable or sick, with histories of mental illness and drug and alcohol problems. It must be recognised that by taking people into custody the state takes upon itself a particular duty of care, because of their vulnerability, and a special responsibility to ensure their protection and to uphold their human rights… The multiple vulnerabilities of the people detained, the acute need for medical treatment and drug and alcohol detoxification facilities, low educational achievement and poor communication skills, and the high rate of mental illness, are all found to a greater or lesser extent in all forms of state detention.

This unfortunate reality enhances the need for every precaution to be taken when an individual is detained. It is suggested that these two deaths should prompt either GSOC or the Garda Inspectorate to conduct an investigation into this issue as it affects detention in Irish police stations. Two deaths in one week, a week in which the Governor of the Dochas Centre has resigned, due in part to the conditions in the prison, should be ringing the loudest of alarm bells in terms of the treatment of persons in detention centres in Ireland. Of great dissappointment is that, from the media reports, the GRA conference this week (which I will review tomorrow) has failed to address this issue.

Debating the role of the Special Criminal Court

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.

Equality Authority Conference

Expanding Equality Protections in Goods and Services:
Irish and EU Perspectives

Royal College of Physicians, Dublin
21 May 2010 – 9:30-4:30

The Equality Authority will hold a legal conference on the theme of equality protections in goods and services. The conference is aimed at an EU and Irish audience of legal practitioners, policymakers, academics, students, Equality NGOs and social partners.

The speakers will include:

• Professor Mark Bell, University of Leicester will discuss the
anticipated impact of the proposed new EU directive, including in terms of the treatment of multiple discrimination;
• Lilla Farkas of the Migration Policy Group will address race and
education in a comparative EU context;
• Dr Tony McGlennan from the Bar of Northern Ireland will explore
religion and sexual orientation and their interface from a Northern Ireland perspective;
• Colm O Cinneide, University College London will discuss multiple
discrimination and the distinctions between discrimination grounds in EU law;
• Geraldine Hynes, solicitor with the Equality Authority, will examine
caselaw on financial services;
• Carol Ann Woulfe, solicitor with the Equality Authority, will speak
about disability discrimination in education;
• Garret O’Neill, solicitor with the Equality Authority, will look at
discrimination and public housing accommodation services, caselaw and progress made.

The Hon. Mr. Justice Nial Fennelly, Judge of the Supreme Court (Ireland) and former judge of the European Court of Justice, will be one of the two conference chairs.

Admission to the conference is free. A full conference programme will shortly be available on the Equality Authority website: http://www.equality.ie.

If you would like to attend this conference, please return the attached booking form by email to info@equality.ie by Monday 10 May 2010. Please ensure that you save the completed form as a Word 1997/2003 file, and include the words “Expanding Equality Protections” in the subject line.

This conference is co-funded by the European Union under the PROGRESS Programme 2007-2013

Policing the Shell to Sea Campaign

I’ve blogged previously about the policing of the Shell to Sea Campaign but a number of developments of late are worth noting. Last week 9 activitists were in court on charges of public order but had the charges struck out as the court held that they had been unlawfully held for 27 hours in Garda custody before being brought before a judge.

Indymedia explain that one of the nine cases was used as a test case, that of Eoin Lawless. Mr Lawless was arrested at 2.20pm on 28th June last year, on a public road. He was detained at the Shell site for two hours, before being brought to a police station. He was charged at 9.15pm. He was not brought before a court until 5.30pm the next day. The Supt at court offered the explanation that there insufficient officers at hand to deal with prisoners, but this of course is not a satisfactory reason to deny a person their right to liberty.

Gardai work to rule

Today the Gardai begin their first offical day of work to rule. Described by the GRA as a ‘withdrawal of goodwill’ the Gardai will not be using their own phones, cameras or laptops in the course of their work. They will no longer take work phone calls during personal time, which will disrupt the much relied on scheme of rostering Gardai at short notice. Further, they will not participate in a voluntary scheme of attending at court as witnesses without being summonsed which could pose significant problems to criminal trials.

Catholic Church and Accountability

Today the Pope has issued his pastoral letter on child sex abuse in Ireland. A lengthy letter (full version published here), it will take time to fully digest and analyse, and indeed this analysis could perhaps focus on numerous different aspects of the letter. In this blog entry I wish to focus on just one issue arising from the letter: accountability. In particular, it is possible through this letter to consider how the Pope appears to believe he and the Vatican connect to current problems in Ireland.

Despite what many may have wished for (the letter being promised since 13 December 2009) this letter does not accept any blame or accountability for the current scandal in Ireland. Instead we see an allocation of blame directly on the priests who offended and some senior members of the Church in Ireland who made leadership mistakes. The fault lies in Ireland, not in the Vatican. The word ‘we’ is nowhere to be seen in the discussions of the Church, the fault, the apology.

Interference with Prosecutions

I previously wrote on the topic of political interference with prosecutions, following the resignation of Trevor Sargent from his position as Minister for State. Within that post I raised the question of whether the Gardai involved had entertained those communications from Deputy Sargeant, which would be unlawful. The Prosecutions of Offences At does not, however, state that this would be an offence and certainly does not proscribe any penalties for such actions.

Today the Irish Times reports that a woman, suspected to be a serving member of An Garda Siochana, has been arrested in relation to the incident. It is not clear what exactly she has been arrested for, save that it is under s.4 of the Criminal Justice Act 1984. Entertaining communications may be considered a disciplinary offence but as it is not a criminal offence, it would not warrant an arrest. It may be that this arrest relates to the leaking of the information, though this is speculative at this point. Nonetheless this is a very interesting development both in terms of the case itself but also for the fact that it is a Guard who has been arrested following an internal investigation. Incidents and scandals in the last decade have shown that while such arrests do occur, they are a rarity.

Children and the Criminal Justice System

The return of Jon Venables, one of the men (then boys) convicted of the murder of Jamie Bulger has sparked a fresh debate on how we respond to children who commit crimes and what we expect the criminal justice system to achieve in such cases.

Today the Ministry of Justice in the UK has announced that it has rejected calls to raise the age of criminal responsibility from ten to twelve. Scotland is in the process of amending its legislation to raise the age of responsibility from eight to twelve. Ireland made similar moves in 2001 under the Childrens Act, however in serious cases (murder, manslaughter, rape or aggravated assault) ten or eleven year olds can be prosecuted.

Terence Wheelock

As Yvonne noted yesterday, the Garda Siochana Ombudsman Commission have published their report into the death of Terrence Wheelock. They found no evidence that Mr Wheelock had been phsyically or sexually assaulted in custody but did make a number of recommendations as regards Garda procedure, which Yvonne has detailed. The Wheelock family remain dissatisfied and have announced that they are seeking a full public inquiry and have threatened to take a case to the European Court of Human Rights.

At this point a number of observations can be made about the both the findings contained in the report but also the procedure adopted by the Commission.

DNA database developments in the UK

Following the European Court of Human Rights decision in the Marper case, the UK have been required to reconsider their approach to the holding of profiles on the DNA Database. The system which the ECHR rejected involved the indefinite holding of samples from suspects of crimes, unless authorisation for destruction was granted, which it rarely was. The previous UK plans, discussed here, proposed retention of samples for up to six years, without any limitations to serious offences.

It has been announced today that the Home Affairs Select Committee has rejected these proposals, arguing that there is no need to keep samples for more than three years, particularly when consideration is given to the low number of cases in which such DNA evidence is probative. This Committee states a maximum of three years should apply. The House of Commons will vote on the government proposals today and the Guardian reports that the House of Lords is expected to reject the proposals. It is also expected that a new agency will be established to determine when samples should be destroyed, removing this power from Chief Constables.

Again, given the on-going debates in Ireland, these debates will be watched intensly here.