The impact of the human rights act 2003 on criminal law

• Author: Paul Anthony Mcdermott
• Position: B.C.L. (NUI), LL.M. (Cantab.), Ph.D. (NUI), B.L. Lecturer in Criminal and Tort Law at University College Dublin
• Pages: 99-123

THE IMPACT OF THE HUMAN RIGHTS ACT 2003

ON CRIMINAL LAW

PAUL ANTHONY MCDERMOTT*

I. INTRODUCTION

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

that:

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

99

*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)

prediction.4

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).