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

• Author: Thomas E. O'Donnell
• Position: Judge of the District Court, LL.M. in International Human Rights, Diploma on the European Convention on Human Rights
• Pages: 137-153

2007] The ECHR Act 2003 and the District Court 137

THE CONSTITUTION, THE EUROPEAN

CONVENTION ON HUMAN RIGHTS ACT 2003

AND THE DISTRICT COURT – A PERSONAL

VIEW FROM A JUDICIAL PERSPECTIVE.

JUDGE THOMAS E. O’DONNELL∗

INTRODUCTION

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

matters.

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

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∗ 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

138

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

I. THE CONSTITUTION

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

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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).