The European Convention on Human Rights and the criminal justice system

AuthorÚna Ní Raifeartaigh
PositionB.C.L., B.L.
Judicial Studies Institute Journal [2007:2
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
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
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
2 [1991] 1 I.R. 31 (S.C.).

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