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Posts Tagged ‘Criminal Justice’

Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010

March 5, 2010 2 comments

The Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 (as examined previously by Yvonne) was debated at second stage yesterday and referred to the Select Committee.

The Bill provides for the taking of various categories of samples, both for purposes of establishing or ruling out involvement in the commission of a specific offence, and for the creation of DNA profiles to be kept on the newly established statutory DNA database.

As regards taking DNA samples from arrestees, the Bill limits the range of relevant offences to serious crimes, such as firearms offences, and those which have a minimum punishment of five years. Thus, the proposed Irish approach to sampling in terms of its scope complies with and in fact surpasses the demands of the Grand Chamber in S. and Marper v UK which found the English scheme of blanket sampling and retention of DNA from arrestees for any recordable offence to be in breach of Article 8.

Moreover, the power under the Bill to take a sample from a detainee for the reference index of the Database does not apply to children below the age of 14, again indicating that the drafters are treading cautiously due to the statement in S. and Marper that that the retention of unconvicted persons’ data may be especially harmful in the case of minors “given their special situation and the importance of their development and integration in society”.

However, the procedures in Part 10 concerning the destruction of samples and profiles and the removal of profiles from the Database ought to be revised. The “default destruction period” for samples taken from detainees or offenders in the context of investigations is three years from the taking of the sample, and the same period applies to evidential samples when proceedings are not instituted, or after acquittal or discharge. However, these default destruction periods may be extended by the District Court. The equivalent Scottish law, as cited in S. and Marper, permits a similar extension by the Sheriff Court but for two years only (Criminal Procedure (Scotland) Act 1995, s. 18A), and a similar limiting qualification should be added to the Irish Bill.

Interference with Prosecutions

February 24, 2010 2 comments

The resignation of Mr Sargent from his role of Minister of State last night relates to a central element of the criminal justice system in Ireland – prosecutorial independence.

The Prosecution of Offences Act 1974, which created the office of the DPP, was introduced in part to reduce the demands made on the office of the AG who was also legal advisor to government, a role that had become more demanding since Ireland joined the EEC in 1972, but also due to an increasing need for independence from government in the prosecution of offences. While the AG is a political appointee who falls with the government, the DPP is defined as a civil servant who is ‘independent in the performance of his functions.’ Neither the government nor the AG can question him on the exercise of his functions. The DPP has stated in his reports that this independence is essential to safeguard the citizen against arbitrary, unjust or improperly motivated prosecutions. Enhancing this independence, under s.6, communication with the AG, or his agent, the DPP or his agent or a member of an Garda Síochána or a solicitor acting on behalf of the AG or the DPP in an official capacity, in relation to decisions to prosecute, the withdrawal of initiated proceedings, decisions not to charge or to withdraw charges, is made unlawful by the legislation. Indeed, the section specifically instructs the prosecutor not ‘to entertain’ any such unlawful communication. Excluded from this are defendants, complaints, or communications from those acting as a medical or legal advisor, social worked or family member. But a politician cannot engage in any discussions with the DPP or any of the above named persons about the prosecution in a case which affects a constituent (either as defendant or victim). 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.

Guest Post: Griffin on the Final Report of the National Commission on Restorative Justice

January 22, 2010 1 comment

We are pleased to welcome this guest post from Diarmuid Griffin, Lecturer in Law at NUI Galway. You can read more about Diarmuid on our Guest Contributors Page.

The National Commission on Restorative Justice published its final report in December 2009. The Commission, announced in March 2007, was set up to examine the wider application of restorative justice within the criminal justice system.  The Commission was established following the report of the Joint Committee on Justice, Equality, Defence and Women’s Rights which recommended the development of a restorative justice programme for adult offenders in the Irish criminal justice system.

Restorative justice programmes can already be seen in operation in Ireland for juvenile offenders through the Garda Diversion Programme or a court-referred Probation Service Conference and ad hoc programmes dealing with adult offenders in Nenagh and Tallaght.  While there are various different models of restorative justice, the practice generally involves the bringing together of the victim, offender and, where possible, members of the community to negotiate the outcome for the offending behaviour.  For example, rather than sentencing an offender to a traditional term in prison a judge may refer an offender into a restorative programme where such a negotiation may occur.

In its final report, the Commission recommends the national implementation of restorative justice for adult offenders.  The Commission believes that such a programme “will make a positive contribution to the lives of all citizens, and particularly to those more closely connected to the offending behaviour.”  Having conducted an extensive examination of the use of restorative justice in Ireland and in other jurisdictions, the report attempts to provide a workable framework for the development of restorative justice that is mindful of both economic and criminal justice realities.

Read more…

New Forensic Evidence and DNA Database Bill published

January 21, 2010 2 comments

On Tuesday, the Minister for Justice, Equality and Law Reform, Dermot Ahern, published the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010. This Bill repeals the Criminal Justice (Forensic Evidence) Act 1990 in its entirety. It provides for the taking of three categories of samples: (1) non-intimate and (2) intimate samples from persons arrested and detained in garda custody in order to prove or disprove their involvement in the commission of a particular offence, and (3) samples for the purpose of creating a DNA profile to be kept on the DNA database. Samples in this third category may not generally be taken from children under 14 years of age. The Bill also provides for the taking of samples from volunteers and others.

The Bill goes on to provide for the establishment of a DNA database – one part of which will retain DNA profiles for the purposes of criminal investigations, and a second, separate part of which will retain DNA material in order to assist in tracing and identifying missing or unknown persons. These two parts of the database are not to be cross-referenced. The database will be administered by the Forensic Science Laboratory, which is to be renamed in Irish – Eolaíocht Fhóiréinseach Éireann – and hold the initials EFÉ.

As reported in the Irish Times, the Minister in introducing the Bill said that all persons serving sentences for serious offences when the new law comes into force will be required to give a sample for the database. This will include people in prison and anyone on temporary release or on suspended sentences, as well as anyone on the sex offenders’ register.

Following the recent jurisprudence of the European Court of Human Rights (S and Marper v UK) the Bill provides that only persons convicted of serious offences will have their DNA material held indefinitely. Persons who are acquitted or against whom no proceedings are instituted will have their DNA material removed on application to the Commissioner of An Garda Síochána (with further appeal to the District Court). Where no application is made, the default periods for destruction of the material are 10 years in the case of a profile and three in the case of a sample.

Mark Kelly, director of the Irish Council for Civil Liberties (ICCL), has said that the ICCL will review the Bill in order to establish whether it strikes the right balance between catching criminals and protecting private life.

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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The Oireachtas and Human Rights Treaties

December 27, 2009 Leave a comment

As we head into 2010 it is worth taking stock of the status of international treaties in Ireland in general and the current status of numerous international human rights treaties in particular. Article 29.6 of the Irish Constitution marks Ireland clearly as a dualist jurisdiction when it comes to international law, providing:

No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.

As a result, for international treaties to become binding in domestic law they must be expressly incorporated by means of legislation, giving the Oireachtas an important role in relation to human rights treaties. Of course, once Ireland has ratified those treaties they are binding in international law; simply not in domestic law. This, of course, is the basic (and admittedly very simplified) principle of dualism: that there are two sphere of legal operation—the domestic and international—and that what a state becomes bound by in the international sphere overlaps with the domestic sphere only inasmuch as it is either expressly incorporated or forms part of the general principles of international law (a.k.a. customary international law).

In the context of human rights law, the fact that Ireland has signed a treaty but not incorporated it into domestic law does not necessarily mean that it is of no recourse to the individual who wishes to avail of the rights and protections within it. There are a number of ways in which unincorporated treaties can be useful in domestic litigation, including as interpretive aids or persuasive precedents. In addition, many human rights treaties have individual complaints mechanism that operate in international adjudicatory bodies like the European Court of Human Rights, the UN Human Rights Committee etc… Once someone has exhausted all domestic remedies (or established that there is no reasonable prospect of success in domestic law) they might avail of those adjudicatory mechanisms as a method of dispute resolution. Importantly, however, and as the case of Kavanagh v Governors of Mountjoy Prison demonstrated with some force, the decisions of those international bodies are not binding on the domestic courts. Thus, one might get a favourable decision in an international treaty body but if one returns to a domestic court the finding of that international body is merely persuasive authority in the absence of an incorporating act for the treaty in question.

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