The european convention on human rights and the irish criminal justice system

AuthorÚna Ní Raifeartaigh
PositionB.C.L., B.L.
The dramatic events of the 11 September 2001 have forged, in
the most painful way imaginable, a new, or perhaps a renewed,
consciousness of fundamental matters. The immediate impact of the
three doomed airplanes was a tragedy of death and destruction;
hardly less immediately, they left in their wake a host of dilemmas as
to how the United States and the international community should
respond to this act of violence. In the international debate now
taking place as to what responsive measures are appropriate, one can
discern a number of themes. There is undoubtedly a strong and
urgent desire for effective, deterrent, and retaliatory action.
However, there is a strong counter-current that any action taken
should be informed by certain basic imperatives of democratic
society about how we treat people, what actions may be resorted to,
and who to treat as responsible. In this great moral challenge of our
times, we see a theme that is echoed at a morelocal level in every
democracy racked by the problem of crime. Democracy is a certain
type of society,built on the bedrock of certain types of individual
freedom. Criminal behaviour threatens those freedoms. The paradox
is, then, how to respond to criminal behaviour in a way that is
effective and yet does not undermine the very freedoms that
constitute the democracy itself. In seeking to protect democracy, we
might destroy it. Thereis a tension between taking effective steps
and taking morally acceptable steps; it is a tension between
democracy and crime control.
This tension is fundamental to any modern criminal justice
system in a democracy. It is real. It is not an abstract concept
20 [4:2Judicial Studies Institute Journal
*B.C.L., B.L. This article is based on a lecturedelivered to the judges of the Circuit Court at
aJudicial Studies Institute conference in 2003.
dreamed up from the comfort of a well-heated office. On the
contrary, the framers of the European Convention on Human Rights
and Fundamental Freedoms were inspired by the very real horrors
witnessed during the first half of this century; we should give some
serious reflection to the thought that they chose to respond to those
horrors by constructing a Bill of Rights.
In Ireland, we are already much familiar with the difficulties
created by the twin demands of crime control and justice. We have
grappled with them for decades in the shadow of our own
Constitution. What then, does the European Convention have to
offer to us, assuming its provisions do come closer to home via the
Human Rights Bill, in the near future? A comprehensive answer to
this question is far beyond the scope of this article, and indeed,
beyond this writer’s expertise. But of course before we can even
begin to analyse the effect of the Convention jurisprudence, we have
to know what it is. Perhaps a good place to start is to look at how
the Convention deals with small number of topics of key interest to
Irish criminal lawyers. Through these examples, selected primarily
for their topicality, I hope merely to give a flavour of the large and
complex jurisprudence of the European Courtin the area of criminal
The issue of prosecution disclosure of sensitive information to
the defence acutely reflects the tension between the fairness of trial
procedures to the accused, on the one hand, and the need to
maintain effective law enforcement, which includes protecting
informers, on the other. In this area there are a number of recent
European Court decisions of interest. This is of particular
importance in light of our own recent attempts to deal with this
complex and difficult issue, as evidenced for example in the Paul
Ward case.1In this case, the prosecution wished to withhold from the
defence a number of documents on the grounds of sensitivity and/or
2004] 21
And The Irish Criminal Justice System
1Ward v. Special Criminal Court {1998} 1I.L.R.M. 493 (S.C.)

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