EU Accession to the European Convention on Human Rights

On St Patrick’s Day, while we were engaging in national celebrations, the European Commission was addressing the accession of the EU to the European Convention on Human Rights (ECHR). For those who are not familiar with the history of this issue, the European Convention is the basis of human rights protection across Europe and is under the custodianship of the Council of Europe (an organisation of 47 Member States including all EU Member States). The EU has long harboured an ambition to join the Convention. However, in 1994, a decision of the European Court of Justice (Opinion 2/94) declared that the EU could not join the Convention without an explicit treaty basis allowing it to do so. In the absence of such a basis in the EC and EU Treaties, accession would have to wait.

Guest Contribution: Murphy on Criminal Justice Co-Operation in the EU

We are delighted to welcome this second guest contribution from Dr Cian Murphy of City University, London. You can find out more about Cian on the Guest Contribution page.

Criminal Justice Co-operation in the EU: Lisbon, Stockholm and Ireland

The past two months have seen the coming into force of the Lisbon Treaty and agreement on the Stockholm Programme which sets out (amongst other matters) the EU’s priorities in the area of criminal justice co-operation for the coming years. The Programme is the latest in the area of freedom, security and justice and succeeds the Tampere Programme and the Hague Programme. It claims its focus is ‘on the interests and needs of citizens. The challenge will be to ensure respect for fundamental freedoms and integrity while guaranteeing security in Europe’ (p3 Stockholm Programme ‘SP’). The Stockholm Programme will be pursued on the basis of the new constitutional arrangements brought into place by the Lisbon Treaty. In particular, the Programme will benefit from the effective merging of the first and third pillars and the shift towards the ordinary legislative procedure in relation to most areas of Justice and Home Affairs. As such, EU law in this area will be adopted based on co-decision between the Parliament and the Council with the latter operating through qualified majority voting. These new developments are likely to lead to an increase in legislation in these areas as the Council and Commission vigorously pursue the Programme.

The Exclusionary Rule soon to be before the Supreme Court

The case of DPP v Cash is listed for hearing in the Supreme Court on Monday November 16^th 2009. This case may have major implications for the criminal justice process, policing in Ireland and the protection of suspect rights. The case is likely to allow for an exploration of the Irish exclusionary rule in relation to improperly obtained evidence. This rule, first established in People (AG) v O’Brien [1965] I.R. 142 and later modified in People (DPP) v Kenny [1990] 2 I.R. 110; [1990] I.L.R.M. 569, has come in for much criticism in recent times and many see the Cash case as the perfect opportunity for the Supreme Court to address the strict manner in which the rule operates in the context of unconstitutionally obtained evidence.

In O’Brien, a dichotomy was established between evidence obtained in breach of legal rights only and evidence obtained in breach of constitutional rights. In relation to the former, a trial judge holds a discretion to admit or exclude the evidence based on an assessment of the totality of the circumstances, including the nature and extent of the illegality, whether it was based on an ad hoc decision or settled policy, whether it was intentional or unintentional and whether the public interest would be best served by the admission or the exclusion of the relevant evidence.

However, the trial judge has no discretion in relation to the exclusion of unconstitutionally obtained evidence. Once it is shown that there has been a breach of constitutional rights, and there is a causal link between such breach and the impugned evidence, the evidence becomes automatically inadmissible. The only circumstances in which unconstitutionally obtained evidence might be admitted is where there are so-called “extraordinary excusing circumstances” in place which justify its admission, such as the need to rescue a victim in peril or to prevent the imminent destruction of vital evidence.

Victims of Crime Initiatives

The Minister for Justice, Dermot Ahern TD, yesterday launched two new websites aimed at making relevant information readily accessible to victims of crime. The websites are those of the Commission for the Support of Victims of Crime and the Victims of Crime Office.

The Commission for the Support of Victims of Crime was established in 2005 and is an independent body, operating under the aegis of the Department of Justice, Equality and Law Reform (DJELR).  It has a wide range of functions, including the development of strategies to support victims of crime, providing financial assistance to voluntary bodies that support victims of crime, promoting awareness of the services available to victims , and carrying out research to support its general mission. Along with this, the Commission seeks to co-operate in particular with Cosc (the National Office for the Prevention of Domestic, Sexual and Gender-based Violence) and the Anti-Human Trafficking Unit (within the DJELR). The current Chairperson of the Commission is Ray McAndrew, former Assistant Commissioner of the Gardaí, and the other members include Nora Owen, former Minster for Justice and Seán Lowry, former Head of the Probation and Welfare Service.

The Victims of Crime Office, which works closely with the Commission, was established as an executive office of the DJELR in September 2008. Its main aim is to improve the continuity and quality of services to victims of crime by both state agencies and NGOs. The Director of the Victims of Crime Office is an ex-officio member of the Commission for the Support of Victims of Crime and the Office provides the secretariat to the Commission.

The DJELR also has further plans for change in the area of victims’ rights. Some of these plans are included in the Criminal Procedure Bill 2009, e.g.  clarification of the status of next-of-kin victim impact statements in homicide cases . The Bill also proposes changes to the rule on double jeopardy in certain situations, e.g. where there is evidence that previous acquittals occurred in circumstances of interference with the criminal justice process. The Minister for Justice clarified yesterday that any such changes to the double jeopardy rule would not operate retrospectively.

While much of the Criminal Procedure Bill 2009 is being touted by the Minister for Justice as victim-oriented, the Irish Council for Civil Liberties has previously suggested that many of the measures contained therein “chip away at fair trial rights”. In relation to the proposed changes to the  double jeopardy rule Mark Kelly, Director of the ICCL, noted that these “will do little or nothing to improve the position of victims or their families”. In May of this year, the ICCL proposed an alternative approach to the protection of victims’ rights entitled “A Better Deal: The Human Rights of Victims in the Criminal Justice System“. This detailed policy document emphasises the need for Ireland to comply with the European Framework Decision on the standing of victims in criminal proceedings, which was agreed in 2001. This Framework Decision requires Member States to align their legislation on criminal proceedings to guarantee a number of things to victims including amongst other things: the right to be heard in proceedings and the right to furnish evidence; access to information relevant to their interests from the outset of proceedings; and access to any necessary interpreting or communicating facilities.

The launch of the new websites of the Commission for the Support of Victims of Crime and the Victims of Crime Office yesterday is more than welcome, however, it is clear that there is a lot more work to be done in guaranteeing rights to victims. There is also likely to be plenty more controversy and conversation in the future at both a domestic and an EU level about how best to protect victims’ interests within the criminal process while still ensuring the fairness of trials and respect for suspect rights.

Irish MEPs clash with UKIP over ‘racist’ leaflets

Nothing warms the cockles of my soft, liberal, anything-goes heart quite like watching US Republicans make buffoons of themselves in the eyes of the world by labelling any progress towards public options or universality in healthcare provisions as Stalinism by the back door. Their not-entirely-unsuccessful efforts to debase and distort all arguments about state regulation or welfare provisions with cries of “socialism” (perish the thought) or “communism” are a sure sign that the moral and philosophical arguments have been lost and all that is left is name-calling and ill-considered sobriquets. However, those of us who watch the US healthcare debate with both mirth and concern don’t need to look very far to see an Irish equivalent. The Irish Times unthinkingly repeats MEP Marian Harkin’s (left) assertion that the anti-Lisbon leaflets the UK Independence Party intends to send to all Irish homes attacking the Lisbon Treaty is “racist”.

Coughlan on Workers’ Rights and the Lisbon Treaty

In today’s Irish Times, the Tánaiste [Irish deputy prime minister] and Minister for Enterprise, Trade and Employment Mary Coughlan (left) writes about the implications for workers rights of the Lisbon Treaty. As might be expected, the Tánaiste denies suggestions that a yes vote for Lisbon in next month’s constitutional referendum would do damage of any kind to workers’ rights. Indeed, she stresses that our membership of the European Union has in fact been a significant factor in driving minimum standards for workers upwards.