The District Court, the European Convention on Human Rights Act, 2003 'Cause And Effect

• 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: 181-193

2010] ECHR Act, 2003: Cause and Effect 97

THE DISTRICT COURT, THE EUROPEAN

CONVENTION ON HUMAN RIGHTS ACT, 2003

“CAUSE AND EFFECT”

JUDGE THOMAS E. O’DONNELL*

In 2006, I published a paper entitled, The Constitution, the

European Convention on Human Rights Act 2003, and the

District Court.1 In that paper I briefly explored the legal

framework of the District Court, being a court of limited and local

jurisdiction. I also examined briefly the origins of the European

Convention of Human Rights Act, 2003,2 and its incorporation

into our domestic law.

Given that the ECHR Act, 2003 is now part of our

landscape, I opined that the jurisprudence of the European Court

of Human Rights was now available and could be raised in all

courts. Suffice it to say, I urged caution, that any recourse to its

case law should be clear, cogent and above all relevant.

Perhaps, somewhat naively, I thought there would be a

plethora of ECHR jurisprudence being liberally quoted in all

courts. Alas, this was not to be. It is my experience that despite

the many recent domestic decisions involving Convention

jurisprudence, there is still a marked reluctance to use Convention

case law in the lower courts. This is somewhat puzzling when one

thinks of the enormous energy invested by lawyers in quoting

High Court decisions, when defending drink-driving cases for

example.

Given the way the ECHR Act, 2003 is constructed, it was

always clear that the law was going to come from the top down

rather than from the bottom up. Indeed all one has to do is a trawl

through the BAILII website to realise the number of cases

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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 presented for

the Law Society Certificate in Human Rights, November 2009.

1 O’Donnell, “The Constitution, the European Convention on Human Rights

Act 2003, and the District Court” [2007] 1 J.S.I.J. 137.

2 Hereinafter “the ECHR Act, 2003”.