The constitution, the european convention on human rights act 2003 and the district court - A personal view from a judicial perspective

AuthorThomas E. O'Donnell
PositionJudge of the District Court, LL.M. in International Human Rights, Diploma on the European Convention on Human Rights
2007] The ECHR Act 2003 and the District Court 137
When originally contacted, by the Law Society in respect to
delivering a paper at a Law Society CPD (Continuing
Professional Development) course on today’s topic, I expressed
my reservations for a number of reasons. Firstly, in deference to
my judicial colleagues and myself, there is a perception that as a
matter of the day-to-day life in the District Court, that it’s better
not to involve the Constitution and simply to proceed on the
evidence and facts alone, and leave any questions of law for
higher courts to resolve.
Secondly, there is a perception, in so far as the European
Convention is concerned, that it has little or no relevance to the
District Court at all. Indeed, it has been stated to me some time
ago that the only difference the Convention would make was that
in passing a sentence now, the District Judge would be obliged to
give reasons for same!
In my opinion, these perceptions are unfortunate as I feel
that, if properly approached, the District Court could prove to be a
very fertile venue for raising both constitutional and Convention
In this paper, I intend to look briefly at the position of the
District Court vis-à-vis the Constitution. I then intend to look
briefly at how the European Convention on Human Rights Act
20031 affects the District Court. I also intend to look at some of
the decisions of the Supreme and High Courts which have been
Judge of the District Court, LL.M. in International Human Rights, Diploma
on the European Convention on Human Rights. Text of a paper delivered at the
Law Society Continuing Professional development course, March 2006,
revised March 2007.
1 Operative 31 December 2003.
Judicial Studies Institute Journal [2007:1
handed down in recent times. I will proffer some personal views
as to what the future might hold vis-à-vis the courts. I have also
included a bibliography which I hope will be considered both
useful and informative.2
Article 38.2 of the Constitution provides that: “Minor
offences may be tried by courts of summary jurisdiction.” The
Article goes on to provide that, with this exception and with the
exception of offences tried by special courts and military
2 Byrne & McCutcheon, The Irish Legal System (4th ed., Butterworths, 2001),
Clayton and Tomlinson, The Law of Human Rights – and Second Annual
Updating Supplement (Oxford University Press, 2003), Doolan, Principles of
Irish Law (5th ed., Gill & McMillan: 1999), Gordon, Ward and Eicke (eds.),
The Strasbourg Case Law, Leading Cases from the European Human Rights
Reports (London: Sweet & Maxwell, 2001), Greer, The European Convention
on Human Rights. Achievements, Problems and Prospects (Cambridge
University Press, 2006), Harris, O’Boyle and Warwick, Law of the European
Convention on Human Rights (London: Butterworths, 1995), Jacobs & White:
The European Convention on Human Rights (2nd ed., Oxford: Clarendon Press,
1995), Janis, Kay and Bradley, European Human Rights Law: Text &
Materials (2nd ed., Oxford: University Press, 2000), Hogan and Whyte, JM
Kelly’s The Irish Constitution (4th ed., Butterworths, 2003), Kilkelly (ed.),
ECHR and Irish Law (Jordan Publishing Ltd., 2004), Kilkelly, The Child and
the European Convention on Human Rights, (Ashgate Publishing, 1999),
Leach, Taking a Case to the European Court of Human Rights (London:
Blackstone Press Ltd., 2001), Moriarty and Mooney Cotter (eds.), Human
Rights Law (Law Society of Ireland manual) (Oxford University Press, 2004),
Mowbray, Cases and Materials on the European Convention on Human Rights
(London: Butterworths, 2001), Nash and Furse, Essential Human Rights Cases
(2nd ed., Bristol: Jordan Publishing Ltd., 2003), O’Connell, Cummiskey,
Mornaghan, O’Connell, ECHR Act 2003, A Preliminary Assessment of Impact
(Dublin: Dublin Bar Association and Law Society of Ireland, 2006), O’Malley,
Sources of Law (2nd ed., Roundhall Sweet & Maxwell, 2001), Plowden and
Kerrigan, Advocacy and Human Rights: Using the Convention in Courts and
Tribunals (London: Cavendish Publishing Ltd., 2002), Reid, A Practitioner’s
Guide to the European Convention on Human Rights (2nd ed., London:
Thomson-Sweet & Maxwell, 2004), Shannon, Child Law (Thomson
Roundhall, 2005), Starmer, Blackstone’s Human Rights Digest (London:
Blackstone Press Ltd., 2001), Walsh, Criminal Procedure (Dublin: Thomson
Round Hall, 2002).

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