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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