The impact of the human rights act 2003 on criminal law

AuthorPaul Anthony Mcdermott
PositionB.C.L. (NUI), LL.M. (Cantab.), Ph.D. (NUI), B.L. Lecturer in Criminal and Tort Law at University College Dublin
The purpose of this paper is to consider the impact that the
European Convention on Human Rights Act 2003 (hereinafter “the
Act”) has had on Irish criminal law. The jurisprudence built up by the
European Court of Human Rights has the potential to affect not only
substantive criminal law, but also police investigation, trial
procedures, evidence, sentencing and the prison system. It might be
expected to have a particular impact on prisoners, which is
appropriate given that moderninternational human rights treaties
grew up out of revulsion at the way prisoners were treated during the
Second World War.
It is fair to say that the impact of the Act to date in the sphere
of criminal law has been muted. This may simply be because the Irish
Constitution already protects most of the rights at the same level as
the Convention. In a recent publication,1Gerard Hogan, SC states
Since the enactment of the Constitution in 1937, the
Irish Courts have, of course, been working within a
system of judicial review of legislation which confers
on them far-reaching powers of review.Outside,
therefore, of the United States, the Irish judiciary have
probably the longest and most extensive experience of
judicial review of legislation in the common law
world and over 80 individual statutoryprovisions,
statutory instruments and common law rules have
been found to be unconstitutional during this period.
While it is true that there are other Council of Europe
Member States with an elaborate domestic
constitutional jurisprudence – Germany,Italy,Spain,
2005] The Impact of the Human Rights Act 2003 on
Criminal Law
*B.C.L. (NUI), LL.M. (Cantab.), Ph.D. (NUI), B.L. Lecturer in Criminal and Tort Law at
University College Dublin.
1Kilkelly (ed.), ECHR and Irish Law (Jordan’s, 2004) by Gerard Hogan, SC at pp. 14-15.
Norway and Portugal come particularly to mind –
there is probably no other member state with a longer
unbroken tradition.
One concern about the Act was that the courts would
immediately be inundated with challenges to every aspect of Irish
criminal law. This was the experience in Canada, where a flood of
litigation followed the passing of the Charter of Rights and Freedoms
in 1982. Nobody could be sure that an offence or procedure still
applied until it had been tested against the Charter. For example, in
MS,2the accused argued that the criminalisation of incest was
unconstitutional as consent was not a defence and there was no age
limit appended to the definition of “child” in the offence. He also
claimed that the offence breached his right to freedom of association,
equality and religious freedom. Needless to say,the British Columbia
Court of Appeal rejected all of these claims.
Of course, a flood of litigation that tested our often outdated
criminal laws against international human rights standards would
not necessarily be a bad thing. As a result of litigation under the
Charter, Canada now has a highly developed and sophisticated
criminal law jurisprudence. For example, at common law,the
defence of duress is not available if the threats were not immediate
and the threatener was not present when the offence was committed.
In R. v.Ruzic,3the Ontario Courtof Appeal held that this limitation
on the defence was in breach of the Charter as it failed to take into
account the human frailties of the accused.
In England, the Lord Chancellor estimated that, in 99 per
cent of cases, the courts would decline to make a declaration of
incompatibility,although only time will tell whether this is an overly
optimistic (or,depending on one’s point of view, pessimistic)
With the passing of the Human Rights Act 1988, at least
some sections of the English judiciary relish the task of not only
taking jurisprudence from Strasbourg into account, but also
developing it in their own way.The Lord Chief Justice, speaking in
Parliament, has stated that British judges have a significant
100 [5:2Judicial Studies Institute Journal
2(1997) 111 C.C.C. (3d) 467.
3(1998) 165 D.L.R. (4th)574.
4Hansard (H.L.) Vol. 585, Col. 840 (5 February 1998).

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