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Reasonable Suspicion for Arrest and Evidence at Trial: Supreme Court Excludes Consideration of Exclusionary Rule

January 19, 2010 2 comments

Yesterday, the Irish Supreme Court issued its judgment in the much anticipated case of DPP (Walsh) v Cash. The 7-judge court neatly side-stepped any indepth examination or reconsideration of the exclusionary rule, which it was thought that this case might produce. Although defence counsel sought to rely on that rule, the Supreme Court held that it was inapplicable on the facts and focused instead on the distinction between material which is required to ground a legal arrest and material which is presented as evidence at trial.

To briefly recap on the facts of this case, which was previously discussed on this blog here: the appellant, John Cash, was charged in relation to a burglary which occurred in July 2003 (at which time he was a minor).  Fingerprints had been taken at the scene of the burglary (referred to in the Supreme Court judgment as “Prints 2”) and these were found to match fingerprints reviously taken from Mr. Cash which were held in the Garda Technical Bureau (“Prints 1”). On the basis of this match, Mr. Cash was arrested and he thereafter consented to provide a new set of fingerprints (“Prints 3”). The prosecution had been unable to clearly state the legal position of Prints 1; whether they had been taken with consent or otherwise and whether or not they ought to have been destroyed following the passage of some time and the fact that no proceedings had been instituted.

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Stop and Search and the Human Rights Boundaries

January 13, 2010 4 comments

Police forces rely on powers of stop and search in both the investigation and prevention of crime. Challenges have long been launched against such powers arguing that they are in breach of rights to liberty, private life and, in certain circumstances, expression and assembly. Domestically, such challenges have rarely suceeded but yesterday the European Court of Human Rights, in the case of Gillan and Quintan v. The United Kingdom, ruled that the powers afforded to UK police under the Terrorism Act 2000 were in breach of the applicants human rights.
The applicants in this case, one a student and one a journalist, had been stopped and searched within an hour of each other in September 2003 at a protest outside an arms fair in London. The provisions under which they had been searched were s44 and s45 of the Terrorism Act, which in effect state that once a senior officer in a policing area has issued an authorisation, police officers can conduct random stops and searches of persons for the general purpose of preventing terrorism (as defined in the Act). No suspicion has to be held that the individuals in question possess any items relating to terrorism. These powers are provided in addition to powers to stop and search where suspicion is held (sections 41-43). Since the provisions came into force in 2001 continuous authorisations have been made, and approved by the Secretary of State, for the London Metropolitan Police Area for the maximum period of duration, 28 days. This was not the case in any other city. It was also in spite of annual reports from Lord Carlile that the powers were being used in ‘poor and unnecessary’ ways, they could be used much less and the the Home Office should be refusing to confirm authorisations. At the beginning of 2009 the power was being used between 8,000 and 10,000 times a month.

The House of Lords had held in March 2006 that the provisions did not breach Art 5 of the ECHR given the brevity of the encounter and the individual was not being “detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting” which did not bring Art 5 into play. Lord Bingham identied 11 limitations placed on the power (such as time, place, authorisation, review requirements etc) which to his mind were sufficient to uphold the lawfullness of the provisions under the Convention. The Court also did not accept that the searches fell within the boundaries of Art 8 privacy provisions as the intrusion was not sufficiently serious.

The ECHR held on the issue of Art 5 that for the period they were detained, which did not exceed 30 minutes in either case, ‘the applicants were entirely deprived of any freedom of movement’. Had they attempted to move away they would have been liable to arrest, detention at a police station and criminal charges. The applicants had further argued that the powers were in breach of their rights to privacy as they would have no knowledged of when they could be subjected to a search (unlike at an airport where a traveller purchases a ticket in the knowledge that they will be searched), that a person does not forfeit rights to privacy by taking personal items into a public place like a street, all of which is compounded by the coercive nature of the search which undermines the concept of personal autonomy. On this issue the Court concluded

“the use of coercive powers conferred by the legislation to require and individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear intereference with the right to respect for private life…. the public nature of hte search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his companions or the wider public.”

There was, therefore, an infringement of Article 8 of the Convention and the Court proceeded to find that this was not justified in accordance with law: “the safeguards provided… have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference.” It is not required at the moment of authorisation that the power be deemed ‘necessary’, there is no requirement of assessing proporationality, the review procedures lack power, and the discretion afforded to the police officer is too broad – he need not hold any suspicions in relation to the person stopped. Considering the documented levels of use, the Court felt there ‘is a clear risk of arbitrariness in the grant (sic) of such a broad discrtion to the police officer’. The risks of racial discrimination are very real and of misuse against demonstrators and protestors, which would be in breach of Articles 10 and 11. In light of the finding of a violation under Article 8, the Court did not consider the allegations under Articles 10 and 11 in this case. The applicants were both awarded costs and £500 each in damages.

Categories: Policing, Privacy

Gardai and the Corrib Protests

January 7, 2010 4 comments

This week a rather unusal and unexpected debate has been ongoing in the Irish Times here and here between two retired Gardaí concerning the policing of protests concerning the Corrib gas line.

Five years ago Shell announced its plans to commence building their onshore refinery for the gas located 80km off the Mayo shoreline. Local concerns at such plans had initially been raised in 2001 and in June 2005 the ‘Rossport Five’ were jailed for contempt of court for refusing to obey a High Court order not to intervene with the construction. During the months they spent in prison the issue gained much national attention with rallies being held throughout the country. The protests continued and in September 2006 the gardaí attempted to disrupt the picketers for the first time and since then there have been continual allegations and complaints of Garda use of force in the policing of these protests (video evidence of these claims can be seen of a baton round here and of a guard pushing a man into a ditch here. One campaigner, Maura Harrington has gone on hunger strike, and dozens have been arrested. As recently as December 2009, 3 men have been imprisoned in relation to the campaign, following their refusal to undertake community service.
As recent campaigns in Copenhagen, where almost a thousand protestors were forced to sit in lines on the road for hours without access to santiation facilities and London, when the policing of the G20 summit resulted in the death of Ian Tomlinson and the use of tactics such as ‘kettling’, have epitomised public order policing is controversial and often results in extreme tactics being utilised. The conflict with freedoms of assembly and the right to bodily integrity are clear.
On Tuesday, former Chief Superintendent for the Mayo division Tony McNamara argued that Garda in that division had handled the situation ‘very well’ since 2006, when police numbers were increased to assist in the effort. Accepting that the early stages of the protest saw a ‘fundamental breakdown in trust’, he states that the baton charge, shown in the video above, was a ‘technical deployment of batons’. He cites the continuing high regard for the police in Mayo, referring to comments made to him by locals. This is perhaps in contrast with the Garda Public attitude survey for 2008, which shows a drop in confidence in the police in Mayo of 4.2% that year.
Today, former Sergeant Benny McCabe, who retired from the force 20 years ago and is now a human rights observer described the policing of the protests as the ‘anathema to the spirit of community policing’:

“I have worked as a human rights observer with the UN, the EU and hte OSCE in Cambodia, the Balkans, South Africa and in many post-conflict situations, but I have never been treated the way I was in Glengad in late June last year.”

Mr McCabe has submitted a complaint to the Ombudsman Commission in relation to his treatment.
Many complaints are under consideration by GSOC in relation to the protests and indeed, given the number, GSOC had asked the Minister for Justice for permission to consider the cases in a consolidated fashion under s.106 of the Garda Siochana Act. This would have allowed for an examination of the policing of the situation, rather than looking at case by case complaints. The Minister did not give such permission, but instead the Ombudsman Commission conducted fully independent investigations into the complaints – one of the few occasions on which this has been done where the complaint does not appear to involve a criminal offence. GSOC has stated that 75% of complaints made concerning the Corrib gasline protests have been deemed admissible which is about 10% higher than the normal rate of admissibility. GSOC announced late last year that it has recommended to the Garda Commissioner that disciplinary action be taken against a senior member of the force in relation to an incident in which 20 civilians were injured.
The situation in Mayo and the policing of these protests should be a matter of very serious concern given the number of complaints and the footage eminating from the area. Added to this is the financial implication: overtime and expenses for this policing operation have cost €12.6 million from September 2006 to December 2009. We have seen before in Ireland that even where incontrovertible evidence of Garda assault exists, such as with the May Day Protests in Dublin, Guards may not be found guilty of assault. The events in Mayo are of a much bigger scale. Nothing in particular appears to have prompted this current debate but it certainly highlights the human rights concerns eminating from Mayo, and raises questions as to whether Gardaí involved have appropriate training and a sufficient understanding of the human rights aspects of this work.

Categories: Criminal Justice, Policing

Police Governance and Accountability: Challenges and Outlook – Conference Report

December 7, 2009 Leave a comment

Last Thursday and Friday, December 3 and 4, saw an international conference of a very high calibre take place in Limerick (see press coverage in the Irish Times and the Irish Examiner). This conference (previously advertised on this blog here), which focused on Police Governance and Accountability, was organised through the Centre for Criminal Justice in the University of Limerick by a contributor to this blog, Dr. Vicky Conway (formerly of UL, now at Queen’s University Belfast) and Professor Dermot Walsh (UL).

The conference was very well-attended and drew an impressive array of scholars and practitioners researching and working in the area of policing both nationally and internationally. The main plenary presentations were given by Professor Andrew Goldsmith from the University of Wollongong in New South Wales, Australia, Professor James Sheptycki from York University in Toronto, Canada and an intriguing turn-and-turn-about final plenary presentation from Dr. Vicky Conway and Professor Dermot Walsh.

Professor Goldsmith discussed the manner in which modern technology, such as mobile phones, digital cameras and the internet (specifically sites like YouTube), are allowing for a new sort of transparency in policing whereby previously invisible police actions can be observed, recorded and shown to the public at large. He gave the example of the death of a Polish immigrant, Robert Dziekanski, following the police use of a taser gun on him in Vancouver airport which was caught on video. Professor Goldsmith used the phrase “sous-veillance” for this type of recording of police actions which comes from beneath and can be contrasted with the more traditional sur-veillance (which comes from the top down). All of this, he suggested, will have an impact on the ability of the police to manage public perceptions of policing, on the demands that are made of oversight agencies, and on the practice of policing in general.

Professor Sheptycki discussed the challenges which exist for transnational policing in the modern world. Employing interesting analogies from the world of art and art history, Professor Sheptycki explored the concept of “constabularly ethics” and sought to ask the question, in the context of European co-operation in policing, “what is good policing?” Professor Sheptycki was particularly interested in “The Raft of the Medusa” by Gericault, which is housed at the Louvre, and depicts a scene of tragedy on a raft set adrift after the wreck of a French naval vessel. Of 147 people aboard the raft, only 15 survived. The painting shows a point of crisis but with the hope of a rescue ship in the distance. Professor Sheptycki suggests that the concept of the “constabulary ethic” may bring hope to the future of transnational policing.

While each of the plenary sessions were thought-provoking, from an Irish perspective the swift overview of the Garda Síochána, from their initial establishment through to current challenges and future possibilities delivered in this third session was particularly interesting. Dr. Conway and Professor Walsh raised many questions about the level of political control of the gardaí provided for under the Garda Síochána Act 2005, the potential strengths and weaknesses of the Garda Síochána Ombudsman Commission and the general secrecy of the Gardaí as an institution. Dr. Conway gave a most insightful description of the work of the Morris Tribunal, the allegations which led to its establishment and the findings of Mr. Justice Morris (all of which are detailed in her forthcoming book “The Blue Wall of Silence: The Morris Tribunal and Police Accountability in Ireland“). Professor Walsh mentioned the lack of statistics on many policing issues in this jurisdiction. He suggested that material such as The Garda Code ought to be made publicly available and was of the opinion that the availability of such material and public knowledge about the training and ethics of the gardaí might in fact increase public confidence in the force.

More than 40 papers were delivered over the course of the two-day event on topics including: juvenile justice and alternative policing; police complaints and accountability; policing of vulnerable groups; new technologies in policing; police culture and decision-making; local policing; policing and constitutional values; policing and the law of evidence; and many other related matters. Rights issues which arose included: incursions on the right to silence; the protection of the suspect right to pre-trial legal advice; victims’ rights; privacy rights and the use of DNA; the consequences of police abuse of power and the exclsuion of evidence; children’s rights; privacy rights and the use of CCTV; and many more.

This was a most successful and informative conference which allowed for transnational discussions at the macro level on the changing nature of modern policing and the challenges for the investigation of crime in a globalised world, as well as debates and comparisons on the details of policing powers and experiences at a micro level in different jurisdictions.

Ethnic Minorities in an Garda Síochána

November 26, 2009 2 comments


Further to Mairead’s post the other day, I’d like to expand a little on the issue of ethnic minority recruitment in an Garda Síochána.

Mr Justice Morris idenfitied in his first report on the Morris Tribunal a culture of ‘us and them’ in the Gardaí. The Gardaí he investigated saw themselves as removed from society in some way. This was behind the ‘blue wall of silence’ which Justice Morris encountered at every turn, meaning that members of the force refused to discuss the wrongdoing of other members. This was epitomised by Garda Leonard who stated ‘You don’t hang your own’. In his recommendations in that first report, Justice Morris called for increased recruitment from ethnic minority groups to break down those concepts of ‘us’. He stated at para 13.124:

“If a sector of society providing one of the most important functions of a democratic society is monolithic in its makeup then that attitude is
reinforced.”

To that end a number of essential changes were made to the recruitment policy of an Garda Síochána. Firstly, the Irish language requirements, which had prevented most from applying were removed, with the Irish language now being covered during Garda training. Secondly, citizenship requirements were reduced to a total residency of 4 of the 8 previous years.

The result has not been entirely sucessful. The Garda Annual Reports for 2007 and 2008 show that 39 trainees from non-Irish backgrounds were recruited and 34 more to the Garda reserve. In 2008 the Garda had set out in their Strategic Goals an aim of 5% of new recruits being from an ethnic minority background but achieved just 2.2%. While the necessary structural changes to the admissions policy have been made, the Sikh case referred to in Mairead’s post, points to a lack of flexibility within the force which is likely to discourage others from joining. Writing in March 2008, then Deputy Commissioner Fitzgerald, who had been in charge of the reform process, wrote ‘the rushed recruitment of newly arrived immigrants was unlikely to deliver a body of professionals that understand the nuances of policing Irish society and culture.’ To my mind, this statement does not appreciate the need for integration. The requirement of 4 years residency in the country had ensured that would not occur. No overt recognition that there may be problems of acceptance of ethnic minorities within the force is present.
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Arrest for the purpose of DNA sampling

November 24, 2009 Leave a comment

A report published today by the Human Genetics Commission (HGC) in the United Kingdom, which advises the government in that jurisdiction in relation to genetic issues, contains a claim that police officers deliberately arrest people in order to get DNA samples from them to add to the DNA database. The claim, put forward by an unnamed retired police superintendent, is contained in a report entitled “Nothing to Hide, Nothing to Fear?”.

Obviously, it is difficult to investigate the truth of the claim that persons are being arrested solely for the purpose of obtaining DNA samples where they would not be arrested in other circumstances, and indeed, such a claim has been denied by the Association of Chief Police Officers. However, the Chairman of the HGC, Professor Jonathan Montgomery, has admitted that there is some evidence to substantiate the allegation. Professor Montgomery has also suggested that the DNA database in the UK has suffered from “function creep” since its introduction in 1995, evolving from a database of offenders into a database of suspects. Liberty‘s director of policy Isabella Sankey has also observed the extent of the use currently being made of DNA databases and the manner in which policing decisions can be influenced:

Not only are we stockpiling the most sensitive information of innocents who have never been charged, let alone convicted, we are also creating a perverse incentive for officers to arrest the innocent.

The UK DNA database is the largest of its kind in the world and this is not the first time that it has been the subject of controversy and debate, although Professor Montgomery suggests that there has not been enough public or parliamentary debate on the issue.

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DNA Databases

November 11, 2009 4 comments

dnaThe UK government is today to announce its planned curtailment of its DNA Database in response to the European Court of Human decision in S and Marper v. UK (2008) In that case the Court found that through the retention of DNA profiles of all individuals suspected (not charged or convicted) of criminal offences the UK was breaching Article 8. The Court found the ‘blanket and indiscriminate nature’ of retention in the UK to be most problematic and indicated that the Scottish system of retaining for three years (with potential for extension by judicial authorisation) profiles of individuals suspected of serious sexual or violent offences was a justifiable interference with Article 8. The lack of independent review for retention was also questionable. This was particularly ‘harmful’ where minors were considered, given the potential labelling effects of being placed on the database.
BBC News reports that the proposals from the UK government to be announced today will permit retention of profile’s suspects for up to 6 years, with no suggestion of limitation to serious offences. Different rules will apply for individuals under the age of 18. It is difficult to see how this complies with the European Court’s judgement and the Equality and Human Rights Commission has stated as much.
This is of particular concern in Ireland where the General Scheme of the Criminal Justice (Forensic Sampling and Evidence) Bill 2007 provides powers in Ireland for retention of samples of suspects arrested under, as outlined in Head 8:
a. section 30 of the OAS Act 1939,
b. section 4 of the CJ Act 1984
c. section 2 of the CJ (Drug Trafficking) Act 1996.
d. section 42 of CJ Act 1999
While this may seem to provide some limitations, the breadth of application of s.4 of the CJAct 1984 (arrest without charge for any offence meriting 5 years imprisonment) still looks to run foul of the Marper decision for not providing sufficient justification. Further, the lack of time limits on retention, the minimal safeguard of consent of a guardian for young people aged 12-18 and the failure to provide independent review are highly problematic. The full draft Bill is expected imminently and while it might be hoped that the Marper decision will be accounted for within that, this is unlikely. What is more likely is that both the UK and Irish governments, aware of the approval for the limited retention in Scotland, will attempt to push that approval to its limits in the hoping of retaining samples from as many individuals as possible. Given that the UK statistics indicate that DNA evidence assists in the investigation of crime in just 0.68% of cases, this intrusion on Article 8 is not justifiable.

Categories: Criminal Justice, Policing

Policing Conference

November 9, 2009 1 comment

gardai

The Centre for Criminal Justice, School of Law, University of Limerick, presents an upcoming conference: Police Governance and Accountability: Challenges and Outlook at the Limerick Strand Hotel, 3 and 4 December 2009

Over the past decade or so, many jurisdictions around the world have continued to struggle with common challenges and developments in police governance and accountability. Each in its own way has been responding by: investigating the nature and extent of corruption and abuse; identifying and selling, to police and public alike, reforms that will offer effective remedies and diminish the prospects of recurrence; attempting to strike a balance between fairness and transparency in accountability measures with the demands of managerial efficiency and effectiveness in crime prevention and detection. Even as these responses are being rolled out the landscape in which they will operate is being re-shaped by broader political, sociological and technological developments at local, national and international levels. Globalisation processes; the widening gap between wealth and poverty even in the rich western-style democracies; the deepening of conflict between social, economic and political interest groups; the growing human rights consciousness; threats from international terrorism and organised crime; advances in DNA technology; increasing reliance on covert surveillance and data interception; the growing sophistication of ‘less-lethal’ weapons at the disposal of the police; and the dismantling of national barriers to police cooperation and law enforcement, to mention only a few, present governance and accountability challenges on an unprecedented scale.

This conference brings together leading experts from across the globe to discuss these issues and developments from national, European, international and comparative perspectives. It aims to identify transferable strategies and processes that might be deployed to promote transparency, fairness and efficiency in combating police corruption and abuse and to mainstream human rights standards in police governance and accountability.

Further details and booking information available through the UL Law School website here

Or email dermot.walsh@ul.ie or v.conway@qub.ac.uk