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

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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Friday, 3 July 2009

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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