Thursday, 30 July 2009

UK House of Lords makes 'significant' decision on assisted suicide

News from the UK House of Lords is that Debbie Purdy has has won a significant legal victory relating to the law in that country on assisted suicide. The Guardian has the initial information on the decision.

The unanimous decision of the court requires that the UK DPP issues a policy setting out when those who assist people to travel overseas to clinics such as the Swiss clinic Dignitas in order to avail of assisted suicide services can expect to be prosecuted. The court ruled that the current lack of clarity in the law is a violation of the right to a private and family life under the UK's Human Rights Act.

Responding to the judgment, Debbie Purdy, who is suffering has primary progressive multiple sclerosis said the decision was about life not death. It allowed her to choose the manner of her own death without running the risk that her husband, Omar Puente, will be prosecuted. Such a prosecution would take place under the 1961 Suicide Act which makes it illegal to "aid, abet, counsel or procure the suicide of another". Helping somebody to die carries a prison sentence of up to 14 years.

The DPP, Keir Starmer, has now announced that he accepts the decision and will publish the policy as required. He plans to publish an interim policy by the end of September to respond in particular the Debbie Purdy's case. Following that, he will carry out a public consultation before drawing up and publishing a final policy on the matter.

All parties seem to be in agreement that a public debate on the issue is essential to establishing a clear and successful approach to assisted suicide.

On the question of the right to privacy and the House of Lords decision in this case see the following article in the Guardian.

The Guardian Newspaper has (very) full coverage of the assisted suicide debate including todays news that a former GP has challenged the authorities to prosecute him under the Suicide Act 1961 in order to challenge the "hypocracy" of a system which allows the wealthy to travel to Switzerland's Dignitas clinic for euthanasia, something which the poor cannot do.

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Tuesday, 28 July 2009

The Pluralisation of Blasphemy law: Possible Constitutional Implications

This blog post was submitted by PhD candidate Eoin Daly, who is reading for a PhD under the supervision of Dr Conor O'Mahony. He is a Government of Ireland Research Council for the Humanities and the Social Sciences Scholar.

Following months of controversy surrounding blasphemous libel, the Defamation Bill 2006 has been signed into law. The question of the constitutionality of the offence of blasphemy therefore awaits the prosecution of a blasphemous statement, and judicial review by the superior courts. However, although Atheist Ireland has promised to immediately test the law, Dermot Ahern has bizarrely stated that it will be “practically impossible to get a successful prosecution” (Irish Times, July 10). It is indeed possible that the offence may remain shrouded, indefinitely, in a degree of constitutional ambiguity. Here, I briefly consider some of the arguments that have been raised concerning the constitutionality of the new offence. In particular, however, I focus on what I regard as the most interesting aspect of the new offence – the fact that is has been “pluralised”, encompassing material that is “grossly abusive or insulting in relation to matters held sacred by any religion.” This pluralisation of blasphemy law is underpinned by the ruling in Corway v. Independent Newspapers [2000] 1 IRLM 426. The Supreme Court held that the common law offence of blasphemy had not survived the enactment of the Constitution, since it only protected Christian beliefs. This implied that the constitutional mandate for a blasphemy offence had to be reconciled with the guarantee against discrimination on religious grounds contained in Article 44. Thus, what Corway and the recent legislation appear to signify is that blasphemy law has shifted from a religious to a secular legitimation, from the protection of a particular religious truth, to the protection of the sentiments of religious persons, of all recognised affiliations.

However, it is this very fact of a secular legitimation, of “outrage among a substantial number of [any religion’s] adherents”, which renders the contours of the offence unfeasibly vague. While the State is ostensibly removed from any role as an arbiter of religious truth, the determination of what is offensive to “any religion” necessarily involve the courts in an implausibly arbitrary inquiry as to the content of religious belief. While the offence is ostensibly justified in view of the secular rationale of protecting the sentiments of the believer, the content of individual conscience remains unascertainable; thus, even a “plural” blasphemy law could only be enforced through consultation of clerical authority. Furthermore, the “outrage” experienced by an individual believer is unascertainable to any external authority; this criterion is then inevitably determined with reference to some form of external orthodoxy. Therefore, the secular legitimation of blasphemy law, appealing notionally to the “rights” of those believers offended by attacks on their belief, is illusory. The offence transgresses an important boundary between the protection of the rights of the believer, and protection of religious belief or truth itself.

We know that the Constitution permits an offence of blasphemy, because it plainly states in Article 40.6.1º that “the publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law.” This does not, of course, mean that the offence in its current form is necessarily valid, not least given the Article 44 guarantees of freedom of religion and conscience. It is thus arguable that the offence creates a restriction which is broader than what is mandated by Article 40.6.1º

Firstly, it may be argued that Barrington J erred in the Corway ruling, and that Article 40.6 was in fact merely intended to give constitutional effect to the common law offence which protected only Christian belief – or, at most, that it warrants protection of the Abrahamic denominations originally enumerated in Article 44.1. Accordingly, the legislation would restrict speech relating to religion in a sense broader than that envisaged by the Constitution, and therefore violate freedoms of expression and of conscience. It is not implausible that Article 40.6.1º was historically intended in this limited sense; however, there is a broad consensus that this historical method of interpretation is inappropriate to provisions which engage “values and standards.” We should be less concerned with ascertaining the framers’ intent than rendering the most coherent contemporary account of the relevant provisions; in this lens, it is quite conceivable that the prohibition on religious discrimination implicitly requires the pluralisation of any blasphemy legislation.

Secondly, it might be argued that in targeting expression causing “outrage” against “any” religion, the legislation restricts religious speech which offends other religions, and therefore constitutes unwarranted interference in religious exercise. A Protestant preacher might cause “outrage” to Catholics by denigrating their sacraments in his sermons, and a restriction on this expression might constitute a restriction on religious conscience which is clearly not mandated by Article 40.6.1º. The freedom of all religions would be restricted by the sentiments of all others. However, the presumption of constitutionality probably means that the legislation could be read such as to exclude from its ambit speech which, although outrageous to other religions, was itself protected by Article 44.

Thirdly, Eoin O’Dell has recently argued (Irish Times, July 22) that the offence is of “dubious constitutionality” because it is not confined to outrage which threatens public order. However, his argument relies on English and ECtHR precedent rather than the constitutional text. Article 40 already permits restrictions on forms of expression conducive to public disorder; the mandate for a blasphemy law, particularly when read in light of the constitutional stipulation that “the homage of public worship is due to Almighty God,” clearly mandates a higher degree of protection for religious belief and sentiment. It is inconceivable that, given the privilege accorded to religion within the constitutional order, it warrants a blasphemy law only to the extent that is necessary to achieve secular goals such as public order, rather than the protection of religion itself. It is probably overly-optimistic to suggest that Article 40.6.1º only encompasses forms of expression causing tangible harm.

In suggesting that the provision may not, after all, be invalid under the current Constitution, I do not wish to suggest that it is coherent, necessary or desirable in a general sense. It is an anachronistic and cynical measure, but it almost certainly requires constitutional revision to be overturned. What I wish to stress here is that the pluralisation of blasphemy law is illusory, and that its enforcement will necessarily hinge upon deference to clerical authority rather than on the protection of individual conscience per se. Religions, rather than believers are protected; therefore, pluralised blasphemy law differs from its historical precedent only in the plurality of religions protected, rather than in the object of protection. It is left to the courts to determine what is offensive to a “significant number” of adherents rather than to a given, individual believer. This inevitably requires protecting certain beliefs over others, and consecrating the contingent power relations prevailing between and within different belief systems, with more prevalent forms of belief attracting protection. On a final point, it should not be assumed that it is constitutionally impermissible for the Courts to consult religious authorities to ascertain the nature and content of religious belief, a measure which is implicitly necessitated by the blasphemy provision. In Quinn’s Supermarket v. Att. Gen. [1972] IR 1, the Supreme Court took such evidence from the Chief Rabbi of Ireland, in ascertaining whether Jewish religious practices warranted their exemption from laws of general applicability. Again, while the new offence likely protects religious authority rather than individual conscience, it incorporates a Catholic-centred view of religion, assuming the presence of a recognisable central religious authority which is competent to determine the content of doctrine and belief. The very fact of individual religious belief is, in itself, offered no protection against ridicule or abuse; it is instead, implicitly, only those beliefs which are buttressed by recognised clerical authority, as well as the sheer weight of empirical prevalence, which now receive the protection of the criminal law.

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Thursday, 23 July 2009

President signs the Criminal Justice (Amendment) Act and Defamation Act into law

The news just in is that the Criminal Justice (Amendment) Bill and the Defamation Bill have not been referred to the Supreme Court by the President. She has in fact signed them into law as of today. The issue of a referral arose under Article 26 of the Constitution which allows for the following:

1° The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.
2° Every such reference shall be made not later than the seventh day after the date on which such Bill shall have been presented by the Taoiseach to the President for his signature.
3° The President shall not sign any Bill the subject of a reference to the Supreme Court under this Article pending the pronouncement of the decision of the Court.

The Irish Times today reports that the Council of State met for three hours last night to consider the question of referral. So despite strong opposition to both pieces of legislation and real concerns raised regarding their Constitutionality we will have to wait to see if those problems are in the end litigated through the normal court process.
This was the fourth time in her 12 years in office that Mary McAleese has consulted the Council of State over concerns about proposed laws.
See some excellent discussion on this and its particular relevance for the Blasphemy laws, and more generally the controversy on the Defamation legislation by Dr Eoin O’Dell on his Cearta blog.

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Friday, 10 July 2009

IHRC launches its 2008 Annual Report

Having been much in the press over the last few days criticising the governments organised crime legislation, the Irish Human Rights Commission yesterday launched its 2008 Annual Report.
Key work carried out in 2008 by the Commission included promoting the human rights of vulnerable people and groups in legislation, in policy and in the justice system.

The IHRC reported that it had reviewed eight Bills dealing with charities, immigration residence and protection, employment law compliance, health information, mental capacity, the mentally ill in the criminal justice system, and public order offences linked to begging, for their compliance with human rights standards. It welcomed what it reported as an increase in referrals of legislation at the scheme stage allowing the IHRC to comment on draft law "in a timely and more effective way."

The IHRC also appeared as amicus curiae in five cases in the High Court and Supreme Court. The cases included
  • Traveller accommodation and the criminal trespass legislation;
  • Legal representation for both the accused and the prosecution in criminal cases;
  • The ability of Local Authorities to summarily evict tenants;
  • The retention of telecommunications data by service providers for access and use by State authorities;
  • Whether the State’s refugee determination bodies are required to consider available evidence in their possession rather than relying solely on an asylum seeker’s Notice of Appeal;
The Commission also appeared before the European Court of Human Rights in a case involving the rights of persons with Intellectual Disabilities. This case involved the IHRC representing the European Group of National Human Rights Institutions (NHRIs), first intervention of its kind by a regional grouping of NHRIs.
In the midst of all of this positive news and work it is important to note that the IHRC is suffering from budget cuts as the recession affects the government's commitment to human rights. Launching the report Dr Maurice Manning said

“the fallout from this economic recession is having the greatest impact on people in vulnerable situations who often need the most protection. It is more important than ever to have a strong, effective and independent Human Rights Commission. However the IHRC has found it difficult to cope with what amounted to a 32% cut in its budget this year. As a consequence, there is a serious risk that the IHRC will be unable to perform its statutory functions.”

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Criminal Justice (Amendment) Bill passes all stages of the Dáil

The governments controversial organised crime legislation has today passed through all stages of the Dáil with the final vote being 118 to 23. It will now go to the Seanad.

Final attempts to gain more time for debate were rejected by vote of 76-61. Fine Gael leader Enda Kenny had argued that the issues raised by the Bill were too serious to be "rammed through". However, the government continued its claim that action was needed now. Tánaiste Mary Coughlan claimed that there had already been plenty of discussion on the issues and insisted that "delaying the Bill would represent a dereliction of duty, especially if something happened between now and the return of the House."

What is it that might happen? Of course there is a good chance that we will see offences carried out by those involved with organised crime over the summer, but that will happen regardless of the passing of the legislation. So what would happen between now and September 16th that makes such a difference? Certainly not the operation of the new provisions once they are passed. The Courts are due to take their own summer break, rising at the end July for two months. Thus even if the Bill is passed now it will not become operational until after the Dáil returns from its summer holidays.

However, it appears that, as expected the Bill is now well on track to becoming law. We will therefore wait for the upcoming constitutional and human rights challenges that are bound to follow its implementation.

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Thursday, 9 July 2009

Constitutionality of Criminal Justice (Amendment) Bill 2009

This blog post was contributed by Dr Conor O'Mahony, member of the CCJHR.

Much of the media discussion surrounding the Criminal Justice (Amendment) Bill has centred around the question of whether the Special Criminal Court is an appropriate forum for the trial of gangland offences, and whether the removal of the jury from the process is an acceptable step. Related to this is concern over why the removal of the jury is being put forward as a solution to the unrelated problem of witness intimidation. However, the other notable feature of the Bill is the introduction of a new offence (section 5) of directing or participating in the activities of a “criminal organisation”, with the latter term being rather loosely defined (section 3). Of particular note is the provision which makes admissible the opinion evidence of any member of the Gardaí (including retired members) as proof of the existence of a criminal organisation (section 7). These draconian provisions have raised very real concerns regarding whether the Bill goes too far in impinging upon principles of due process and fair procedures under the Irish Constitution and the European Convention on Human Rights. This led to the publication in the Irish Times on July 8 of a letter signed by 133 defence and prosecution lawyers, both barristers and solicitors, in which they stated their view that “[t]he Constitution will surely not permit this, but even if it does, Ireland is likely to find itself shamed before the international community when the European Court of Human Rights or the United Nations Human Rights Committee are, inevitably, called upon to rule on the issue.”

The Constitution of Ireland requires in Article 38.1 that “[n]o person shall be tried on any criminal charge save in due course of law.” The phrase “due course of law” is extremely broad; in the 4th Edition of JM Kelly: The Irish Constitution, Professors Hogan and Whyte state that it may be “best be regarded as conveying a bundle of principles and maxims more or less generally accepted in the common law world”. Some of the specific principles covered by the provision include the presumption of innocence; the opportunity to defend oneself and test prosecution evidence; the prohibition of unduly prejudicial evidence; and the requirement that offences be specified with clarity and not unduly vague. As well as the more specific principles, this provision imports the general concept of fair procedures, “a sort of fine-mesh catch-all notion, intended to fill with the general instinct of fair play whatever interstices may be left between more tradition rules and principles of criminal justice”. In State (Healy) v Donoghue [1976] I.R. 325 at 350, O’Higgins CJ stated: “The general view of what is fair and proper in relation to criminal trials has always been the subject of change and development. Rules of evidence and rules of procedure gradually evolved as notions of fairness developed.” The trend of this evolution has generally been to require greater safeguards for the accused in criminal justice legislation, not fewer.

The Criminal Justice (Amendment) Bill proposes to allow for the conviction of a defendant, in the absence of a jury and potentially on the uncorroborated opinion evidence of a member of the Gardaí, for the rather vague offence of directing or participating in the activities of a “criminal organisation”, notwithstanding that there is no requirement of any hierarchical or leadership structure, formal membership or continuity of involvement. Directing such an organisation carries a maximum penalty of life imprisonment, while participating in one carries a maximum penalty of imprisonment for 15 years. Given the draconian nature of these provisions, which allow for extremely harsh penalties to be applied in the absence of a number of procedural and evidentiary safeguards that would ordinarily be in place in a criminal trial, it must be questioned whether they meet the standards required by Article 38.1 and the associated case law.

In King v Attorney General [1981] I.R. 233, the Supreme Court struck down a provision which allowed a person to be imprisoned for up to 3 months for loitering with intent to commit a criminal offence, and for a conviction to be secured upon the evidence of one credible witness. It was not necessary to prove that the person suspected was guilty of any particular act or acts tending to show his purpose or intent; the provision allowed a conviction if from the circumstances of the case, and from the accused’s “known character as proved” to the court, it appeared to the court that his intent was to commit a felony. The Court found that the provision was “contrary to the concept of justice which is implicit in the Constitution”, and described the offence as:

“so arbitrary, so vague, so difficult to rebut, so related to rumour or ill-repute or past conduct, so ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, so prone to make a man's lawful occasions become unlawful and criminal by the breadth and arbitrariness of the discretion that is vested in both the prosecutor and the judge …and generally so singularly at variance with both the explicit and implicit characteristics and limitations of the criminal law as to the onus of proof and mode of proof, that it is not so much a question of ruling unconstitutional the type of offence we are now considering as identifying the particular constitutional provisions with which such an offence is at variance.”

In the event, the provision was found to contravene both the requirement in Article 38.1 that no person shall be tried on any criminal charge save in due course of law and the guarantee in Article 40.4.1° that no citizen shall be deprived of personal liberty save in accordance with law (which, according to Henchy J, “means without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution”).

The provisions of the Criminal Justice (Amendment) Bill would seem to suffer from a number of the flaws identified in King, as well as the additional concerns raised by the absence of the jury. Moreover, while the provision struck down in King carried a penalty of just 3 months in prison, the 2009 Bill proposes to create offences carrying maximum penalties of life imprisonment for directing an organisation and 15 years for participating in one. In State (Healy) v Donoghue [1976] I.R. 325 at 350, O’Higgins CJ stated:
“…criminal charges vary in seriousness. There are thousands of trivial charges prosecuted in the District Courts throughout the State every day. In respect of all these there must be fairness and fair procedures, but there may be other cases in which more is required and where justice may be a more exacting task-master. The requirements of fairness and of justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him.”
In this light, there are very real concerns surrounding the constitutionality of the provisions of the Criminal Justice (Amendment) Bill 2009. Notwithstanding this, the Minister for Justice has indicated his intention to proceed with the Bill without making significant changes to it. Given the opinions already expressed by the legal profession, it seems likely that the constitutionality of this new piece of legislation is likely to be tested on its very first application, if not earlier on an Article 26 reference to the Supreme Court.

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Pressure on the government on the organised crime bill continues

Yesterday saw a letter in the Irish Times signed by 133 lawyers critising the government's Criminal Justice (Amendment) Bill. The letter raises concerns about the manner of the introduction of the Bill:

It has been introduced without any research to support its desirability and without canvassing expert opinion or inviting contribution from interested parties on the issues.
It appears now that it will be passed without proper debate in the Dáil because such debate has been guillotined by the Government.
It is quite simply astounding that we as a society would jettison ancient rights and rules of evidence in such a manner and seemingly without regard to the effect such impetuous legislating might ultimately have on the respect for the rule of law in this country.

And goes on to point to the problems in removing the right to jury trials in organised crime cases, the use of Garda opinion evidence, and the manned in which extentions to periods of detention can be obtained "in secret".

The letter does not reject outright the need to take action, but ultimately calls on the government to "withdraw this Bill and instead provide for a short consultative period during which reasoned debate can be heard."

The response from Minister of Justice Dermot Ahern was unbending:

“They are entitled to their opinion. I don’t agree with them when they say that this was introduced without any research without canvassing expert opinion.”

Rather than introducing any amendments to respond to the growing criticism from criminal law experts and human rights organisations the Minister introduced a further measure to allow former gardaí to give uncorroborated opinion evidence at trial.

And just to reassure people further of the terrible state of emergency the country faces Willie O'Dea, Minister for Defence, added to the hype about gang crime by stating that the use of the Special Criminal Court were justified because "gangland crime posed a greater threat to the State than terrorism ever did".

The approach being taken by supporters of the Bill is that if you criticise the proposal, somehow you are only interested in the human rights of criminals and could care less about the victims. To oppose action that will undermine the rule of law and age-old mechanisms to safeguard people from the risk of miscarriages of justice, is not to be self interested. In fact, most of the critics of the Bill are not saying do nothing. Rather they are asking for time and a reasoned debate. As Carol Coulter rightly pointed out in the Irish Times yesterday:

It is not clear what is to be gained by such haste, other than the appearance of doing something about serious crime.
The courts will rise for two months at the end of this month, with only the District Court sitting, so there will be no trials for serious crime during that period anyway. Postponing the finalisation of the Bill until after the summer recess will have little practical impact on the fight against the criminals, but could allow time for a reasoned debate about a comprehensive response to the problem of serious crime and ruthless criminals, with an input from all those with relevant experience.

The haste seems more about being seen to take action. Yet the results of a legislative process that will have taken only 10 days since publication to pass into law will have a significant impact on the criminal justice system and may well see Ireland in breach of its international human rights law obligations.

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What role deterrence as a factor in imposing imprisonment?

The following is a discussion of two cases decided in June 2009 that consider the role of deterrence in imposing prison sentences. The material was first published in the June Edition of Firstlaw's Criminal Law Online Service.

In the first, the High Court noted the lack of deterrence value in imposing imprisonment on those who are unable to pay a civil debt. In the second, the Central Criminal Court signalled its willingness to sentence company directors to prison for price fixing under the Competition Acts having regard to the demonstrable inadequacy of other deterrence measures.

The recent High Court judgment in the case of McCann v Judge of Monaghan District Court and others placed the spotlight on the use of imprisonment for people who are unable to pay their debts. The case involved a mother two who had borrowed money from her local credit union and had been subject in 2005 to a District Court order jailing her for the non-payment of the debt.

Ms McCann challenged section 6 of the Enforcement of Court Orders Act 1940 (1940 Act) claiming a breach of rights under both the Constitution (including the applicant’s right to fair and just procedures under Articles 34, 40.3 and 40.4) and the European Convention on Human Rights (Article 6). The High Court found that the use of imprisonment in this type of situation breached Ms McCann’s rights to fair procedures and personal liberty under the Constitution and therefore found that the District Court had no jurisdiction to make an order to jail her. No judgment was made on the rights claimed under the ECHR.

Echoing the claims of many human rights organisations, particularly FLAC who have long campaigned on this issue, Ms Justice Laffoy concluded that imprisoning someone because of their inability to pay their debts was both “futile in terms of securing a remedy” but also “imposed unnecessary expense on both the creditor and the state.” She also noted that both the state and the Credit Union had been agreeable to the order for imprisonment being quashed, and as a result she found it strange that the State should “countenance continuation” of a “vague scheme of enforcement of debt” that gave no guidance to any party involved. A FLAC report on this issue stated in 2003 “[a]part from the moral considerations … imprisonment does not make economic sense. Not only does the debt remain to be paid when the debtor is released from prison… but the cost to the State far outweighs any possible benefit that might result.” These costs are considerable – in 2008 276 people were jailed for failing to repay loans, a 37% increase 2007 cases, in total 1,138 people were imprisoned between May 2003 and July 2008.
The judgment has been welcomed by virtually everyone and in response the government has taken quick action in drafting the Enforcement of Court Orders (Amendment) Bill 2009. The proposed Bill will amend Sections 6 and 8 of the 1940 Act. It addresses the flaw in the current law that meant that if a debtor failed to appear in court for a Committal Order they could immediately be subject to that Order without any need to bring them before the court to give their side of the case. The amendment will allow for a summons to be issued in such a situation and if the debtor still fails to appear, a warrant will be issued to arrest them to bring them before the court. The impact of this change will be to ensure a hearing for the debtor and allow the court to ask the question as to whether s/he has wilfully refused to pay. It will also allow the court to make sure that all other possible steps have been taken to recover the debt. Imprisonment should therefore only be used where the debtor has the means to pay and refuses to do so.

It is expected that the Bill will complete its passage through the Oireachtas before the summer recess. Quick action to clear up the legal position is needed as the impact of the McCann judgment has already been felt in the courts. The District Court has been refusing applications to imprison people for non-payment in light of the case. For example, in the Mullingar District Court Mr. Justice Neilan questioned whether it was worthwhile even making instalment orders because of a concern as to how they could be enforced and he questioned the value of using civil processes if “the engine that brings about its effectiveness is being dismantled”. In the meantime, the Courts Service has now confirmed that it has written to each chief district court clerk confirming that no further committal warrants should be issued under section 6 of the 1940 Act.

The McCann judgment is important as it reaffirms the basic principle that prison should only be used as the punishment of last resort under our criminal justice system and should be reserved for people found guilty of committing the most serious crimes. The second case for consideration is DPP v Duffy [2009] IEHC 208, which involved charges brought against a number of individuals and Citroën dealerships following allegations of price fixing, and it indicates a growing awareness that white collar crime is serious and the real risk of imprisonment an effective means of deterring it. Company Director Mr Duffy pleaded guilty to two counts of authorising his company to enter into and implement an agreement which was designed to interfere with competition in the trade of Citroen motor vehicles between 1997 and 2002, contrary to the Competition Act 1991 and the Competition (Amendment) Act 1996. He also pleaded guilty to two similar counts, on behalf of the company. Mr Duffy was sentenced to six months in relation to “entering into” the price fixing cartel and nine months for implementing it; these sentences were suspended. He was also fined €100,000.

Although Mr. Duffy was not himself imprisoned, what is particularly interesting about this case are the comments of Mr. Justice McKechnie regarding the effectiveness of sanctions for price-fixing offences in breach of the Competition Acts. Referring to the previous case of DPP v Manning (Unreported, High Court, 9th February 2007) that he also presided over, Justice McKechnie noted that he had emphasised in that judgment the particularly serious nature of this type of offence describing it as “a crime against all consumers”. At that time he had warned that “the only real and effective deterrent for those involved in this type of unlawful behaviour might have to include a prison sentence.” He had also warned “that, because of the activity’s harmful effects on the public, those involved would have to take note that any lead in period for leniency could not be prolonged.” Thus in Duffy Justice McKechnie concludes that “fines, unless severe and severely impacting, are not a sufficient deterrent” and that the use of an un-suspended prison sentence in such cases “was close at hand.” Whilst to date the courts had been willing to impose fines and suspended sentences on Company Directors this judgment highlights the degree of frustration now felt by the courts. As a result it would appear that the courts are indicating their willingness to get tougher and ultimately imprison company directors in relation price fixing offences under the Competition Acts. While there is no fear of Irish courts ever imposing 150 year sentences as in the Madoff case in the US, this clear warning to company directors that white collar crime is serious crime is long overdue and welcome.

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Tuesday, 7 July 2009

Probation for Rugby Player Convicted of Manslaughter: Canada

This blog post was submitted by PhD candidate Sinéad Ring, who is reading for a PhD under the supervision of Professor Caroline Fennell. She is a member of the Centre for Criminal Justice and Human Rights, UCC and a Government of Ireland Research Council for the Humanities and the Social Sciences Scholar.

The difficulties, both normative and practical, in proving criminal liability for assaults on the sports field is highlighted by a case currently in the news in Canada. An 18 year old man was sentenced on Monday by the Ontario Provincial Court to one year’s probation and 100 hours community service for the manslaughter of a rival player in a rugby tackle during a high school match in 2007. He was also ordered to undergo anger management counselling. The convicted man, who was 15 at the time of the offence, was initially charged with aggravated assault but the charges were changed to manslaughter when the victim, Manny Castillo, died of severe brain injuries four days after the incident.

The defendant was convicted in May following a two-week trial. The prosecution had argued that the defendant lifted Mr Castillo into the air, with his feet facing upwards and drove him head first into the ground. The defendant, who testified in his own defence, claimed that he reacted aggressively to get out of a headlock applied by Mr Castillo, and that he panicked because he could not breathe. He denied intentionally hurting Mr Castillo and said he was unaware that he was injured when they both fell to the ground. He denied lifting him up or driving him head first into the ground. The trial heard from various witnesses, including players, coaches, the referee, parents and rugby experts who gave conflicting accounts of what they saw.

The trial judge, Justice Bruce Duncan, found that the defendant wrapped his arms around the victim’s legs while Mr. Castillo had his upper body over the defendant’s back. The victim was lifted off the ground and propelled backwards. He was then “slammed” backward into the ground.

Rejecting the plea of self-defence, Duncan J found that the defendant was put in a headlock but only for a few brief seconds. Crucially, he held that there was a “hiatus” between the headlock and the assault. The headlock ended before the tackle and therefore ceased to have any legal significance. The trial judge further found that the defendant tackled Mr Castillo from some distance.

The defence also argued that Mr Castillo, who was 15 at the time, knew he was playing in a physical game and accepted the dangers of the contact sport when he entered the field to play. However the trial judge rejected the defence of implied consent. Duncan J held that the defendant intentionally applied force that was outside the rules of the game or any standard by which the game is played. The victim did not explicitly consent to that force, and no consent could be implied. (According to the Criminal Code of Canada (ss 295-269) an assault will not have been committed if the victim has consented, however consent in contact sports is not explicitly covered in the Code. The defendant can also seek to raise the defence of a reasonably held honest belief that the victim was consenting.) Convicting the defendant of manslaughter, Duncan J emphasised that athletes were not exempted from the requirements of the criminal law: “The playing field is not a criminal law-free zone. The laws of the land apply in the same was as they do elsewhere.”

The sentence imposed in this case can be viewed as relatively lenient, given that the maximum sentence for manslaughter is life. The defendant’s age is likely to have been a factor in sentencing; the maximum sentence for a minor convicted of manslaughter is 3 years. Nevertheless the lack of a custodial element is very unusual in a manslaughter case. Perhaps this reflects a certain degree of mitigation based on the context within which the offence was committed; a heated, highly competitive full body contact match between two teenage teams. Indeed, Duncan J considered that the finding of manslaughter was enough to find the offender accountable and to recognise the harm done.

Despite violence often being an intrinsic feature of sporting events, incidents that result in serious harm or death rarely give rise to criminal prosecutions. Instead, sporting governing bodies usually take responsibility for imposing fines and sanctions on players. For example, when Mike Tyson bit off part of Evander Holyfield’s ear, he received a $3million fine and his boxing licence was rescinded. (Though this was revoked after one year). However, in Canada criminal prosecutions resulting from sporting incidents are becoming more common; in 2000 Martin James McSorley was convicted of assault with a dangerous weapon following an altercation with another player during a hockey game. McSorley received an 18 month conditional discharge in lieu of a custodial sentence. He was also suspended for one year by the National Hockey League.

Whether the Castillo case will provide a useful precedent in future prosecutions of sporting incidents is not clear. The importance placed by the trial judge on the “hiatus” between the headlock and the defendant’s tackle was critical to his rejection of the self-defence plea. Arguably this time gap was much more important than any evidence regarding the violence and the nature of the manoeuvre. However, the probative value of such evidence is relatively unusual; the pace of a hockey or a hurling game, for example, would make it extremely difficult for a court to retrospectively distinguish deliberate or criminally reckless acts from instinctive sporting reflexes. Furthermore, from a policy perspective, it is difficult to locate a normative basis for criminal fault in cases where young men are coached from an early age to be highly aggressive in sports that have violence at their core. Nevertheless, it would seem, in Canada at least, that violence in sport is increasingly coming within the ambit of the criminal justice system. Indeed, QUB lecturer Dr Jack Anderson’s recent book, The Legality of Boxing: A Punch Drunk Love? highlights the vulnerability of boxers to criminal prosecution and the problem of the lack of informed consent to boxing contracts. At the very least, more attention needs to be paid by coaches and sporting organisations to the regulation and enforcement of rules in order to prevent serious assaults and tragic deaths like that of Mr Castillo. After the sentencing hearing the Castillo family released their victim impact statement to the public. In particular, they placed blame on organised hockey and hockey coaches because in that game, players are not reprimanded when they continue to fight after the whistle has blown. The defendant played both sports.

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Monday, 6 July 2009

13 inmates complete Citizenship and Law Course at Cork Prison

The Centre for Criminal Justice and Human Rights (CCJHR) is very proud to report that it recently concluded its Second Annual Course on Citizenship and the Law in Cork prison. Thirteen inmates completed the short course, delivered by staff of the Law Faculty over a six week period in May / June 2009. Topics covered during the course included Family Law; the European Convention on Human Rights; EU Law; Immigration and Refugee Law; Criminal Justice and; the Irish Legal system.

The course is organised with the cooperation of the prison education service and the Governor of Cork prison. It is the only course of its kind taught within the prison service in Ireland and marks a unique collaboration between the CCJHR and Cork prison.

Building on similar initiatives in the U.S., the CCJHR and the prison education service hope to expand the current program in the next academic year, to create an innovative teaching space in which inmates of Cork prison and LLM Criminal Justice (clinical) students come together to study issues of crime, justice and human rights. ‘Teaching within the walls’ is a movement that developed within the U.S., to strengthen links between those inside and outside of the prison system. Behind this movement is the belief that university students and incarcerated women and men could mutually benefit in studying together as peers. From its beginning in Temple University, the ‘Inside-Out’ program has developed, and is now being expanded to universities throughout the U.S. with the support of the Soros Foundation. The aim of the program is not simply to transform legal education but to secure legal and policy changes through this process of dialogue and community outreach. As the programs vision statement puts it:
"We believe that those of us inside and outside of prison, by studying together and working on issues of crime, justice, and related social concerns, can catalyze changes that will make our communities more inclusive, just, and socially sustainable."

Over the coming year, the CCJHR plans to develop links with the Inside Out program, and to explore opportunities for bringing the insights learned through this initiative to UCC.

For further information, contact course convenor, Dr Siobhán Mullally, s.mullally@ucc.ie, tel.021 490 2699

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Friday, 3 July 2009

Passionate words on being judged by a jury

A case close to my heart, both environmentally and geographically, has just been concluded in Leeds, UK. The Drax 29 were charged under the Malicious Damage Act of 1861 with obstruction of a train carrying fuel to the Drax power station in June 2008. In a highly organised protest the climate change campaigners boarded a coal train, offloaded its contents onto the railway track and caused serious disruption to rail services.

The activists never denied that they acted to stop the train, but attempted at thier trial this week to justify their actions based on "genuine and deeply felt motives", in other words arguing that they had a lawful excuse for their actions. the judge had initially refused to allow them to raise their excuse of climate change but in the end agreed a deal with the defenants whereby some evidence and argument was allowed on the issue. However, the judge made it clear that the defence of necessity was ultimately not available to the protesters.

Today the defendants were found guilty and will be sentenced later, although the judge has indicated that they are unlikely to face imprisonment.

All of this is interesting and prompts consideration of issues such as the right to protest, the ambit of necessity defences and significantly the interrelationship between law and dempcracy. In the context of the debate currently going on in the Dáil regarding trial by jury the closing statement for the defence is a very compelling document. The statement relates specifically to the role of the jury in relation to cases of direct action where laws are broken on the basis of deeply held beliefs, and the right of a jury to decide a case based on the facts, regardless of the legal direction made by the judge. But the principles eloquently presented in the context of the Drax case should reinforce the significance of the jury not only to the criminal justice system, but also with regards justice and the overall effective health and wellbeing of a nations democracy.

Some highlights are reproduced below, but follow the link to read in full:

"You've heard it said already I think, that the judge decides about the law, but the jury decide about the facts. What does that mean? It means you the jury can decide as you see fit. You the jury have a constitutional right to follow your own judgement and not necessarily follow the judge's directions to find us guilty. In other words, you get to make the final decision. In law this principle is called the jury's power of nullification, and it's been a right that has been regularly used over the years when juries have felt the law has been applied harshly, or inappropriately, or unjustly, or incorrectly.

...

The freedom that you have is what enables the law, where necessary, to move forward. It is what allows you to look beyond the confines of this court to the wider world, and to make a judgement based not just on law, but to make a judgement based on justice. Justice is the force that underpins and breathes life into the law, and it is your role as the jury to see that justice as you see it is done.

...

We are happy to be judged by you, the jury."

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Update on the Criminal Justice (amendment) Bill

The latest development on this legislation is that Justice Ahern has now stated that the powers were requested by Garda Commissioner in response to clear evidence of jury intimidation. It would appear that both the Department of Justice and the Garda Commissioner have now altered their position from November last year on the need to change the law.

Trial by Jury to be removed for organised crime offences

The government has now published its latest piece of criminal justice legislation, the Criminal Justice (Amendment) Bill 2009, which is being touted as being “anti-gang” and designed according to the Minister for Justice Dermot Ahern to protect Irish citizens and “ensure the rule of law”. The Bill is due to be debated in the Dáil today.
As Carol Coulter pointed out in an analysis piece in the Irish Times the next day, this is “not the first time gangs have been targeted in law”. Yet it is clear that the government is championing this legislation as taking “those involved in criminal gangs … head on”. Are we to therefore conclude that the measures passed in the Criminal Justice Act 2006, also in response to gang activity, have failed to provide the authorities with enough powers to deal with organised crime? Have the Garda been calling for more powers?

The answer is no. In fact, in the aftermath of the murder of Shane Geoghegan in Limerick in November 2008, Garda Commissioner Murphy in an Irish Times interview stated

"[t]here has been a whole plethora of legislation enacted in the last three years and I am confident - and in my briefing with the Taoiseach this morning I discussed that part of it - and I am happy that there is sufficient legislation in place."
"The issue for us is to get the evidence. We have the tools, we have the specialist units, but these crimes are not easy to solve and there is a small core of ruthless killers living in this city that have to be brought to justice."

What is more surprising, given his recent promotion of the 2009 Bill is that Minister Ahern agreed, noting that "t[]he gardai have all the legislation. What they really need is hard evidence."

The legitimacy of this earlier position is supported by the fact that someone has now been charged with the murder of Shane Geoghegan, and a trial date set for April 2010.

However, despite the attempts at a measured response following the death of Shane Geoghegan, something seems to have changed in recent months and the government has decided to push forward with legislation in the area providing additional powers to combat organised crime. The key measures include:
  • a new offence of directing or controlling a criminal organisation with a maximum sentence of life imprisonment (section 5);
  • a broad definition of “criminal organisation” is (section 3);
  • the categorisation of organised crime offences as “scheduled offences” which means that they will be brought with in the scope of the Offences Against the State Act and can therefore be tried in the Special Criminal Court unless the DPP directs otherwise (section 8);
  • reduction in evidence thresholds on garda evidence on the existence and operations of criminal gangs will be admissible in evidence, including hearsay evidence (section 7);
  • an increase in punishment for witness and juror intimidation from 10 to 15 years’ (section 16).

The government claims that the 2009 Bill is “groundbreaking legislation”.

Human rights organisations have, however, been quick to criticise the proposed legislation, and have in fact offered clear and very thorough critiques of the dangers of the 2009 Bill. The Irish Human Rights Commission have described the powers as “disproportionate and unnecessary” questioning why it was necessary to rush the new law through the Oireachtas thus preventing adequate debate and analysis into such significant changes in the law.

A central criticism of the proposed legislation has been the decision to create new “scheduled offences” in order to bring most organised crime offences before the non-jury Special Criminal Court. Ireland has already been criticised by the UN Human Rights Committee for its use of this system. The proposed changes to the law further undermine the right to trial by jury, so central to the idea of a fair trial in the criminal justice system. However, the evidence of the existence of jury-tampering is largely anecdotal. In fact the main problem arises in relation to witness intimidation, and this will not be solved by a Judge only trial.

It is interesting to note that much reference has been made to the law in England and Wales on dealing with jury intimidation. This is perhaps because the Court of Appeal in London last month ruled that the case of John Twomey and three other defendants should be the first case in that jurisdiction to be heard without a jury because of a "very significant" danger of jury tampering. Section 44 of the Criminal Justice Act 2003 had allowed for a case to heard by a judge sitting without a jury in serious or complex fraud cases and in those cases where there is a danger of jury tampering. However this is subject to the legal requirement that the court must consider whether alternative arrangements could be made to ensure justice, including moving a trial, and providing anonymity for jury members. In the Twomey case there does appear to be a significant issue of jury tampering with three previous trials having already failed as a result of such interference. In those cases jurors withdrew from the case citing stress, sickness and intimidation. The High Court had previously ruled that arrangements needed for a fourth jury trial included up to 60 police officers and a cost of between £1.5m and £6m. The Court of Appeal concluded that this might still not guarantee the protection of jurors. Lord Judge in the Court of Appeal concluded that such arrangements were an "unreasonable" drain on the public purse and police time.

Yet there has been some significant criticism of the decision in the UK. The judge himself noted “trial by jury is a hallowed principle of the administration of criminal justice". Common law jurisdictions have traditionally regarded the jury as essential to ensuring a fair trial, and decisions to place defendants before a judge only have tended regarded as undermining that right. In an article in The Guardian Afua Hirsch raised concerns about the move:

“Human rights lawyers working in countries undergoing democratic transitions say they aspire to the England and Wales model of jury trial, echoing the now notorious sentiments of former master of the rolls Lord Devlin, who described it as "the lamp that shows freedom lives". Somebody had better tell them that in England it just got a little darker.”

Where does this leave the issue of trial by jury in Ireland? Is organised crime so big a threat that we need to remove the right to a jury trial from anyone involved in this type of offence? The answer is we do not know. There is little or no evidence as to whether there is any difference in the outcome of such cases if they are heard before a jury or a single judge. What is clear though is that it will make no difference to witnesses who fear intimidation. Judge or jury, they will still fear the power of gang members within their own communities. So perhaps the issue is not one of criminal justice, or garda powers, or special courts, but in fact one of how communities are served, protected and resourced in order to reduce the power of a criminal minority. But that is a welfare issue rather than a criminal justice issue, and in a recession it is easier to pass laws than fund services.

And as for the principle of trial by jury? If (and it is a big if) we conclude that there are some cases where a jury trial is simply not possible because of a real risk of intimidation then the way to make those decisions needs to uphold the due process rights of the defendants. Perhaps that is why critics of the Criminal Justice (Amendment) Bill have been pointing to the English approach. The law there starts from a presumption in favour of a trial by jury and allows for deviation from this fundamental principle only where the Crown Court concludes that there is “evidence of a real and present danger that jury tampering would take place”. The proposed changes in section 8 of the 2009 Bill state that the ordinary courts are “inadequate to secure the effective administration of justice” and therefore take the reverse approach starting from a position of trial by judge only. The fact that the provision is time limited to 12 months does little to reassure given the history of normalisation of emergency powers in criminal justice systems globally.

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