Tuesday, 23 February 2010

Criminal Justice developments January 2010

The following is a found up of criminal justice news from January 2010. The material was first published in the January Edition of Firstlaw's Criminal Law Online Service.
The month of January was relatively quiet from a criminal justice perspective. Two stories in particular dominated the news, namely the number of homicides that have bloodied the month and the Eamonn Lillis trial. However additional stories of interest were the release of CSO crime statistics for 2009 and the publication by the Minister for Justice of the Criminal Justice (Forensic Evidence and DNA Database) Bill 2010.
The Lillis trial was interesting for a number of reasons, not least of which was the showcasing of the facilities in the new Criminal Courts of Justice complex. More members of the public were able to hear and see the court proceedings through the use of videolink to an overflow room. Videolink was also used to allow Mr. Lillis’s 17-year old daughter to testify, and Jean Treacy was protected from the media scrum by being allowed to use an underground entrance to and exit from the courts. Her use of the underground entrance attracted media claims that their “right” to be able to photograph witnesses in order to safeguard the interests of justice had been compromised. Yet the case of Re. R. Ltd is clear that “the [constitutional requirement to] administ[er] justice in public [simply] require[s] that the doors of the court must be open so that members of the general public may come and see for themselves that justice is done.” As such, images of witnesses or the accused being lead to the courtroom add nothing to the administration of justice and seem to be valuable exclusively as a means of selling papers. The media frenzy that ensued in the race to find an image of Ms. Treacy confirms this. Moreover, when he sentenced Mr. Lillis, Mr. Justice White criticised the media “scrum” that the Lillis and Cawley families had to endure on their entrance to and exit from the courts complex as “an affront to human dignity.” He also noted that one of the reasons Mr. Lillis received a seven-year sentence rather than a ten-year one was because of the intense media scrutiny the case received. It could therefore be argued that the media have in fact promoted their self-interest at the expense of the interests of justice.

The granting of the use of the underground entrance to one prosecution witness only raises other issues. It was suggested by the Minister of Justice that Ms. Treacy had been allowed to avail of the underground entrance in order to ensure her co-operation as a witness. Why this same privilege was not afforded to other witnesses or to the accused should be questioned. In light of the availability of the underground entrance, and remembering the Court of Criminal Appeal’s criticism of the practice of photographing the accused in the 2002 case of DPP v. Davis, it is worth considering whether this protection should become standard practice in all criminal trials. Michael O'Higgins SC, while critical of the use of the facility, noted that a precedent had now been set and that in future “it would have to be available to both sides in a case.” Alternatively, as some moderate voices in the media have suggested, it might be worth establishing a code of practice on the use of this facility so as to avoid preferential treatment being given to some witnesses over others.

The trial is also notable for the manner in which the jury returned their verdict. When they found Mr. Lillis guilty of manslaughter they explained that they felt that the State had not proved intent to kill or cause serious injury. What is remarkable is that this should be remarkable. Justice White thanked the jury for alerting him to their reasoning and noted that it would assist him when he sentenced Mr. Lillis. Arguably this information should always be provided to the judge to ensure that the jury’s verdict is given effect. Moreover it would be desirable if, as in the Lillis case, when there are three potential reasons for rendering a manslaughter verdict (gross negligence homicide, excessive self-defence or provocation) that the jury should identify which one they based their verdict on. There is a significant distinction in terms of culpability between these various categories of manslaughter and this distinction should be reflected in sentencing. The judge is unable to do this if the jury do not provide this information. In this case, it is clear that the jury rejected provocation as the basis for their manslaughter verdict, but it is not clear which of the other two categories was determinative. It is worth noting as an aside that there is a case currently before the European Court of Human Rights, Taxquet v. Belgium, on the issue of jury trials and whether their failure to provide reasons for their decisions impedes the accused’s right to a fair trial. The outcome of this case will be awaited with interest.

The relatively high number of reported homicides in the month of January has also been the subject of considerable media attention. In one weekend in January there were three gangland shootings in Dublin, followed by a fourth shooting the following weekend. A week later there was a fatal shooting in Cork with gangland/paramilitary links. There were also a number of non-gangland related killings. A former Defence Forces member was stabbed to death in Dublin after he complained about noise coming from a party and another man was stabbed in Tipperary following an altercation outside his home. A woman was found stabbed to death near the residence of the man believed to be implicated in her death with whom she was involved in a relationship. The death of a 10-day old infant in Meath was also being treated by the Gardaí as a murder. Nine killings in one month is not an auspicious start to the new-year. Predictably the gangland killings in particular led to warnings about a “surge in gangland crime” and criticism by Fine Gael of the government’s failure to provide sufficient resources to give effect to the gangland legislation introduced last year. However it is worth noting that while five of the nine killings were gangland related, increased resources for gangland crime or indeed ordinary crime would have had no impact on the remaining four deaths. Similarly, while there was an increase in the number of murders last year, generally speaking the homicide rate is falling and the murder rate is relatively steady. In 2009 a total of 80 homicide cases were recorded, 53 of which were murders. This represents a significant drop from 138 homicides/62 murders in 2006 or 132 homicides/77 murders in 2007. In 2008 there were 89 homicides/50 murders. Accordingly we are not in the midst of a national epidemic in relation to either homicide generally or murder specifically.

The CSO statistics for 2009 do show a significant rise in the number of burglaries (up 9%) and robberies (up 33.5%). This rise is predictable in a recession period given the general view that economic crimes tend to increase when legitimate avenues of obtaining revenue decrease. The 2009 statistics however also reveal an unexpected benefit of the recession, namely the decrease in drug (down 6%) and public order offences (down 8%). It is arguable that when there is less disposable income there is less money to spend on excessive consumption of alcohol (a key element in public order offences) or on drug use. In relation to crime generally it was found that overall the level of reported crime dropped by 5% last year but that the levels for a number of serious offences, including murder (up 6%) and rape (up 10%), increased.

Finally, the Minister of Justice published the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 in January. The proposed legislation would introduce a national DNA database to hold samples of those arrested for certain criminal offences. The Bill was lauded by the Ministry as “major step forward in the fight against serious crime” giving the Gardaí “access to intelligence on a scale and of a quality that has never before been available in this country”. The proposed powers include the ability to require a sample from anyone arrested for a violent crime. The DNA profile generated from that sample would then be placed on the database as would any sample collected from a crime scene. At the same time the legislation would, upon coming into force, require samples from anyone serving a sentence for a serious offence. The Minister stated that his desire was that “a significant proportion of the criminal community” would have their samples stored on the database and that this would “of itself, act as a deterrent for some.”

The Minister was quick to point out that the drafting of the legislation took account of the recent European Court of Human Rights decision of S and Marper v. UK in which the Court held that the indefinite retention of DNA samples, profiles and fingerprints taken from persons who are not charged or who are acquitted infringed the ECHR’s privacy provisions. As a result the Bill provides that the only samples to be stored indefinitely would be those taken from people convicted of a serious offence. Other samples would be held for three years and profiles for ten years, subject to the right of the person to apply to have their materials removed from the database. However the draft legislation has already drawn criticism from a number of sources including the data protection commissioner who stated that profiles of those not convicted of any offence should in fact be destroyed immediately.

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Friday, 19 February 2010

Constitutional Amendment on Children

This blog post was contributed by Dr Ursula Kilkelly, Co-Director of the CCJHR.
On February 16th 2010, the Joint Committee on the Constitutional Amendment on Children issued its unanimously agreed final report setting out its recommendations and the accompanying rationale for constitutional change. The report comes against the backdrop of the numerous reports which have documented that inadequate constitutional provision for children’s rights has had a negative effect on their treatment in law, policy and practice. The absence of a framework to ensure that decisions about children take their interests into account has led to their rights being ignored and underplayed in decisions about them. Ireland has also been subjected to international criticism for failing to recognise that children are independent rights-holders. In order to address these problems, it is vital that the opportunity is grasped to undertake meaningful constitutional reform in this area. To that extent, the proposals do not disappoint and to date they have received the universal support of those working with and for children.

There are two pivotal constitutional provisions concerning children. The first – Article 41 –recognises the Family as the natural primary and fundamental unit group of society and pledges to guard with special care the institution of Marriage on which the Family is founded. This provision is untouched by these recommendations, and this is in line with the fact that families are crucially important to children. The proposals address themselves to the second relevant constitutional provision - Article 42. The proposals for the new Article 42 are lengthy and somewhat complex but they have a number of very important elements. First, under the new Article 42.1.2 the State recognises the rights of all children and undertakes as far as practicable to protect and vindicate their rights. This makes clear that the state has a duty to vindicate the rights of the child. Second, the provision proposes to incorporate as a constitutional principle the right of children to have their welfare regarded as a primary consideration, a provision which is strengthened by a requirement in Article 42.1.3 that the welfare and best interests of the child must be the first and paramount consideration ‘in the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child’. Third, and most important, the proposals express the state’s duty to recognise and vindicate the rights of ‘all children as individuals’. These rights include the right of the child to care and protection, the right of the child to education and the right of the child’s voice to be heard in any proceedings affecting the child having regard to the child’s age and maturity. The replication of the wording of the Convention on the Rights of the Child throughout is particularly important here and it will enable Ireland to learn from and contribute to the interpretation and understanding of these widely accepted international principles. The final provision of note is the replacement for the much criticised Article 42.5. The proposal here suggests a wording that will require the state to support families rather than pitting parents who have ‘failed in their duties towards their children’ against the state. Any intervention in the family must be proportionate, provided for by law, and ensure equal treatment of all children regardless of their parents’ marital status.

Although the fate of these proposals is far from clear, evidently, they offer much food for thought. What emerges overall however is they reflect a new paradigm for the treatment of children and a redrawing of the responsibilities of the state and parents in this regard. The recognition of the rights of children as individuals, to have their voices heard and to have decisions taken in their interests, are minimum requirements if Ireland is to meet its obligations under the Convention on the Rights of the Child. In the Irish context, however, they reflect that a bold step forward is required to ensure that the treatment of children in the Ireland of the future is an improvement on our woeful past.

Read more at http://www.irishtimes.com/newspaper/opinion/2010/0218/1224264713713.html

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Friday, 5 February 2010

Lillis sentenced to 6 years 11 months in prison

Today Eamonn Lillis was sentenced in the Central Criminal Court to 7 years (reduced by 1 month to account for time already served) for the manslaughter of his wife Celine Cawley.

The decision of Mr Justice Barry White was based on a position that the appropriate sentence, without any mitigating factors, for the offence would be 10 years. In coming to this conclusion he had considered the prison sentences handed down in the Wayne O’Donoghue (4 years) and Linda Mulhall (15 years) cases particularly with regard to the coverup.

Mitigating factors in this case included the previous good character of Eamonn Lillis, the evidence this was out of character and his call to the emergency services and attempt to resuscitate his wife. Mr Justice Whyte however, noted on this point "That is the only decent act you committed on that morning." given he then went on to systematically lie about the events of that morning and blame someone else for the attack. Other negative elements were the time he took to cover up the fight was the effect of the crime on the family members, including of course his own daughter. The lack of clear remorse for what had happened, a lack of an offer of a plea to manslaughter were particularly notable:

"Your expression of remorse rings hollow to me and I consider it to be self-serving in light of the circumstances of the case."
The sentence is at the upper end for a manslaughter case.

Mr Justice Whyte went on to strongly criticise the media for their coverage of the case. He said the media media's behaviour had been "an affront to human dignity" and called for their privacy to be respected. It is clear that whilst the media serve an important role in ensuring that justice is carried out in public, that does not mean that media has a right to invade the privacy of participants in a trial.

Previously the Court of Appeal has criticised the photographing of the accused in the case of DPP v Davis in 2002. Indeed, the Supreme Court in Re R. Ltd [1989] IR 126 ruled that "the administration of justice in public [simply] require[s] that the doors of the court must be open so that members of the general public may come and see for themselves that justice is done." Any claim therefore by the media that they are acting as the guardians of justice by staking out the home of Eamonn Lillis, or by following him and his daughter on a trip into Dublin, would clearly not meet the court's view of what is protected in a case like this.

An appeal in the case is expected based in relation to the sentence imposed and possibly in relation to the Judges summing up to the jury.

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Thursday, 4 February 2010

Mental Health Law Conference & Book Launch

The Faculty of Law, UCC, and the Mental Health Lawyers Association have announced a jointly organised conference on Mental Health Law. The event will take place in Brookfield Health Sciences Complex on Friday 26 February from 10 a.m. to 4.30 p.m.

The conference will be followed at 4.30 p.m. by the launch of a new book on Mental Health Law and Practice by Dr Darius Whelan. Dr Mary Henry, former independent Senator, will speak at the launch.

For full details and a booking form for the conference, see www.ucc.ie/en/lawsite/eventsandnews/events/mentalh2010/

Speakers at the conference include:

If you wish to attend the book launch or require any further information, you should email lawevents@ucc.ie. RSVP: 19 February 2010

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Wednesday, 3 February 2010

ICC reverses Al-Bashir Genocide ruling

The appeal chamber of the ICC has today issued a ruling reversing a decision of the pre-trial chamber on the Al-Bashir case. Last year the pre-trial chamber had decided that the prosecution had failed to provide sufficient evidence to charge Sudanese president Omar Hassan al-Bashir with genocide. The appeal court has now concluded that
The decision by the pre-trial chamber not to issue a warrant in the respect of the charge of genocide was materially affected by an error of law.

The case will now go back to the pre-trial chamber for them to rule on whether to add genocide to Bashir's charge sheet. The president of Sudan is already charged with seven counts of crimes against humanity and war crimes, including murder, extermination, torture and rape.

Sudan's response was, as would be expected, critical of the ruling claiming that it was motiviated by politics and designed to harm democratic elections due to take place in April. A senior information ministry official was quoted as saying:

This procedure of the ICC is only to stop the efforts of the Sudanese government towards elections and a peaceful exchange of power.

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