The European Convention on Human Rights and the criminal justice system

• Author: Úna Ní Raifeartaigh
• Position: B.C.L., B.L.
• Pages: 18-49

Judicial Studies Institute Journal [2007:2

18

THE EUROPEAN CONVENTION ON HUMAN

RIGHTS AND THE CRIMINAL JUSTICE

SYSTEM

ÚNA NÍ RAIFEARTAIGH∗

I. HOW IS THE CONVENTION MAKING ITS PRESENCE FELT TO A

PRACTITIONER?

It is, of course, still very early days in terms of assessing the

impact on barristers of the entry into force of the European

Convention on Human Rights Act 2003 (hereinafter “the ECHR

Act, 2003”). In most criminal trials, little appears to have changed

and the arguments that arise are usually the familiar procedural

and evidential arguments based on constitutional law. This is

perhaps not surprising when one considers that Article 38.1 had

resulted over the years in a considerable degree of

‘constitutionalisation’ of criminal justice procedures, the content

of which is frequently equal to, and arguably sometimes greater

than, the Convention procedural requirements. To the extent that

Convention-based arguments have arisen in criminal trials, it

seems to have been primarily in the Special Criminal Court,

where ‘membership’ trials take place. Again, this is perhaps not

surprising, because such trials feature special evidential

provisions such the those permitting the drawing of inferences

from silence or from failure to mention a fact in one’s defence,

and for the admissibility of the ‘belief’ evidence of the Chief

Superintendent. Indeed, there has been a series of appeals to the

Court of Criminal Appeal from the Special Criminal Court

concerning such ‘belief’ evidence, grounded upon Convention

arguments. One of these, albeit a pre-ECHR Act case, reached the

Supreme Court and is discussed by Michael Farrell in his paper.1

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∗ B.C.L., B.L. Edited version of a paper delivered at the Annual Criminal Law

Conference, Rebalancing Criminal Justice in Ireland: a question of Rights,

University College Cork, 29 June 2007.

1 See Farrell’s treatment of D.P.P. v. Martin Kelly [2006] 3 I.R. 115 in “The

Challenge of the ECHR” (2007) 2 Judicial Studies Institute Journal 76.

2007] The ECHR and the Criminal Justice System 19

A second way in which the Convention is making its

presence felt is through judicial review proceedings and plenary

proceedings concerning statutory provisions and administrative or

Executive decisions. Where formerly the Constitution was the

primary or sole basis for the legislative challenge, legislation now

tends to be challenged on a twin-track basis i.e. on both

constitutional and Convention grounds. The cases involving

challenges to the mandatory life sentence, discussed below, are an

example of this type of twin-track approach. One of the

challenges for practitioners in such cases is to master the nuances

of the authorities in each system of law, together with the

relationship between the two streams of authority. Further, the

practitioner has to relate the substantive arguments to the precise,

and limited, procedures and reliefs available in domestic law

pursuant to the ECHR Act, as this is the only mechanism through

which Convention concepts are filtered into domestic law.

Thirdly, the impact of the Convention can be seen when one

considers the provisions of particular pieces of legislation, clearly

enacted to forestall or respond to existing challenges based on

Convention jurisprudence. The Criminal Law (Insanity) Act,

2006 and the Defence (Amendment) Act, 2007 are examples of

this type of legislation.

The three topics chosen in this paper were chosen not only

because I have had direct experience of them in my practice, but

also because they are, perhaps, slightly less well recognised areas

of Convention impact than other more well-known areas, such as

the right to silence, equality of arms, disclosure of prosecution

material, Article 2 ‘right to life’ investigative inquiries, and so on.

An examination of the impact of the Convention in the three

chosen areas poses intriguing questions for practitioners and

courts alike as to why it took the Convention to effect serious

change in these areas, and why the Constitution was either less

protective of certain rights, or was not tested to see how much

protection was already available under the Constitution. They

give the lie to the idea that the Convention has nothing to offer

the Irish criminal justice system by way of additional human

rights protection.

Judicial Studies Institute Journal [2007:2

20

II. THE CRIMINAL LAW (INSANITY) ACT, 2006 AND ARTICLE

5(4) OF THE CONVENTION

The Criminal Law (Insanity) Act, 2006 subjected to a major

overhaul the law relating to the criminal justice system and the

mentally ill offender. Although reform of the criminal law of

insanity and fitness to plead had been on the legislative

backburner for many decades, it appears that it was the

Convention that turned up the heat sufficiently to propel the

Government and the Oireachtas into action.

Prior to the 2006 Act, the ‘guilty but insane’ verdict in a

criminal trial was provided for by the Trial of Lunatics Act, 1883.

This provided not only for the form of verdict in the event that an

accused was found insane (‘guilty but insane’), but also provided

that any such person would be subject–automatically–to

indefinite detention (“detention…until the pleasure of the Lord

Lieutenant is known”). Following the new Executive

arrangements following Irish independence, the decision

concerning the release of such a detainee fell upon the Minister

for Justice (although it was not confirmed until the Supreme

Court decision in Application of Gallagher2 that it was indeed the

Executive who held this particular power). It is one of the

astonishing features of the Irish criminal justice system that there

was no legislative amendment of the 19th century law on insanity

at all during the 20th century. More particularly, no statutory

provision was made for a structured statutory system for the

review of the detention of persons detained in mental hospitals,

either following a verdict of ‘guilty but insane’, or as a result of a

determination of ‘unfitness to plead’ in criminal proceedings.

Further, the automatic nature of the order of indefinite

hospitalisation following a verdict of ‘guilty but insane’ was left

untouched; this, despite that the fact that even the most cursory

examination of the law of insanity would have revealed a

potential mismatch between, on the one hand, the breadth of the

definition of insanity for the purpose of the insanity verdict

(including the fact that it is only concerned with the accused’s

mental state at the precise time of the offence and not the time of

the verdict), and, on the other, the automatic nature of the hospital

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2 [1991] 1 I.R. 31 (S.C.).