Taxes, juries and emergency powers: Murphy v Ireland

In a resolutely formalistic judgment, the Supreme Court yesterday rejected a constitutional challenge to the hearing of “ordinary” cases in the Special Criminal Court. Thomas Murphy had been charged with failing to make his tax returns — an indictable offence that is tried usually in the “ordinary courts” —  but the DPP certified that such courts are “inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of Thomas Murphy”.

Before trial, Murphy issued a plenary summons seeking declaratory relief, claiming, inter alia, that the DPP’s power of certification fails to guarantee his right to equality and his right to a fair trial in due course of law before a jury of his peers, and it does not permit the plaintiff argument to be heard before the issue of the certificate, or dispute it afterwards. Moreover, it was claimed that that the exercise of the DPP’s powers could be predicated on false or inaccurate reasons, but there is no means of ensuring disclosure of such reasons, and that review is possible only where mala fides is demonstrated.

The Supreme Court dismissed Murphy’s claims, allowing trial to proceed. Continue reading “Taxes, juries and emergency powers: Murphy v Ireland”

Taxes, juries and emergency powers: Murphy v Ireland

The constitutional right to legal advice after arrest

Supreme CourtYesterday the Supreme Court quashed Raymond Gormley’s conviction for attempted rape, due to the absence of legal advice prior to Garda questioning of him.

The critical issue before the Supreme Court in People (DPP) v Gormley and People (DPP) v White was whether an arrested person is entitled to legal advice prior to the commencement of any interrogation, and, in relation to the appeal of Craig White, prior to the taking of bodily samples for forensic examination.

As Mr Justice Clarke noted wryly, the possibility that Bunreacht na hÉireann might be interpreted as conferring such a right could not “come as a surprise to anyone with an interest in this area, least of all the authorities” [1.3]. Indeed, as I have blogged about previously, and as the Supreme Court noted in its judgment, this issue was grappled with by the UK Supreme Court in 2010 in Cadder v Her Majesty’s Advocate, prompting legislative reform in Scotland. Moreover, the European Committee for the Prevention of Torture has recommended in numerous reports on Ireland that the right of access to a lawyer should include the right to a lawyer throughout interrogation, and most recently asked for information for the current thinking of Irish authorities on this issue, given recent jurisprudence of the ECHR. The Supreme Court has now forced the hand of the Oireachtas.

While the right of access a lawyer is constitutionally recognised, prior to yesterday’s decision it comprised a right of reasonable access and had been interpreted quite restrictively:  Gardaí could interrogate a suspect before the solicitor’s arrival as long as they were making bona fide attempts to provide a lawyer, and they were not obliged to defer arrest until such time as the solicitor was likely to be available (People (DPP) v Buck [2002] 2 IR 268). However, choosing a solicitor in circumstances where the Gardaí knew or ought to have known that there would be a substantial delay rendered detention unlawful and thus the evidence obtained as inadmissible, on the ground that there was a failure to provide a solicitor within a reasonable time (O’Brien v DPP [2005] 2 IR 206). So, as Clarke J emphasised in People (DPP) v Gormley and People (DPP) v White at [5.7]: “To date the jurisprudence has not gone so far … as to require that advice from a requested solicitor actually be made available to the relevant suspect prior to questioning or the taking of samples. However, that is the question which falls squarely for decision in these cases.”

In addition to assessing extant domestic case law, the Supreme Court cited ECHR jurisprudence, which demonstrates clearly that “[t]he rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.” (Salduz v Turkey [55]). Case law from other common law jurisdictions was also cited, supporting the ECtHR’s position.

It’s worth noting that while Irish case law previously regarded the right as a matter that principally affects the constitutional lawfulness of custody, argument in this case reframed it so as to form part of the constitutional right to a trial in due course of law (Article 38.1). This approach was accepted by the Supreme Court, which stressed the nature of Bunreacht na hÉireann as a living document, thereby facilitating this novel and more expansive interpretation. Clarke J emphasised the significance of arrest as demarcating what he called the “pure investigative stage” from the process after arrest where liberty is deprived and which is “intimately connected with a potential criminal trial” [8.8]. This means that the fundamental requirement of basic fairness applies from the time of arrest. Moreover, the entitlement not to self-incriminate was held to incorporate an entitlement to legal advice in advance of mandatory questioning of a suspect in custody.

The focus on arrest is significant, as this may preclude challenges to police questioning without legal advice such as arose in Ambrose v Harris [2012] UKSC 53 (one of the “Sons of Cadder“). Here the UK Supreme Court considered whether the right accrued before a person was taken into police custody, and rejected the claim that it applied when questioning took place on the street. Nonetheless, the parameters of the right and how it will be operationalised need to be defined and detailed in legislation.

No attempt was made in the judgment to articulate any possible exceptions to the right to legal advice before interrogation, though it was emphasised that the right is “an important constitutional entitlement of high legal value”, and so any exceptions would need to involve “a pressing and compelling need to protect other major constitutional rights such as the right to life” [9.14]. Moreover, the Court declined to consider if and when this right could be waived, given that Gormley had expressly requested a lawyer. Such matters must be grappled with by the Oireachtas. 

Viewing the right of access as a dimension of the right against self-incrimination was critical to the rejection of White’s appeal. Reference was made to ECHR and other international jurisprudence that distinguishes between the obtaining of oral admissions during interrogation on the one hand and the collection of forensic evidence that exists independently “of the will of the suspect” on the other (see Saunders v UK [69]).  For this reason the Court concluded that, while of course the legality and manner of sample collection is crucial, the “due course of law” provisions of Bunreacht na hÉireann do not preclude the collection of “objective forensic samples” from a suspect in custody before the requested legal advice becomes available.

In terms of compliance with the letter and spirit of international human rights jurisprudence, this judgment is to be welcomed. The right of legal advice seeks to bring some degree of parity to the relationship between the State and the arrested person; prior to yesterday the right was so circumscribed as to render it of limited practical effect. As Hardiman J noted in his separate concurring judgment, the conditions in police cells may undermine the resolution of an arrested person to wait for legal advice. Moreover, the lengthy detention periods permitted in Ireland (a max of 168 hours for drug trafficking and other serious offences when compared to Scotland’s 24 hours, for example) and the ability to draw adverse inferences from silence indicate the importance of a robust means of protection for the individual, to offset the inherent compulsion and imbalance of power in police custody and interrogation.

The constitutional right to legal advice after arrest

Informers in Ireland: a lack of law?

The use of informers has been criticised by the Garda Síochána Ombudsman Commission (GSOC) recently. The GSOC is investigating claims that some members of the Gardai permitted the continuation of serious criminality  in exchange for information on other criminal actors. As I’ve written before, the use of undercover police officers and informers is fraught with problems, in terms of the scope of their permitted behaviour and the possible incitement of further offences.

Covert policing and the use of informers allow for the penetration of criminal groups and enterprises, and the communication of information about their structure and actions to the authorities. Much organised crime may not involve a victim as such, or victims may be reluctant to testify, or the evidence gathered may be incomplete or unconvincing. So, the infiltration of criminal enterprises is regarded as crucial for effective policing and investigation of organised crime, whether for intelligence purposes, or to gather evidence for criminal proceedings, or both.

In Ireland there is no legislation governing the use of covert human information sources (CHIS) or informers; instead,  guidelines are in place. In contrast, in the UK the use of CHIS has become more regulated and strictly scrutinised. Although there CHIS need not be authorised under the Regulation of Investigatory Powers Act 2000 and its Scottish equivalent, so doing ensures that the operation has lawful approval. In addition, Codes of Practice have been issued, and each police force has its own policy and operating procedure.

The Covert Human Intelligence Source System and Code of Practice become organisational policy for the Garda Síochána in 2006 following judicial criticism of the handling of informers in the Morris tribunal report. The Code of Practice covers authorisation, registration, risk assessment and record keeping; for example, the recruitment, handling and management of CHIS may be given by the Assistant Commissioner at the Crime and Security Branch of An Garda Síochána only. This is more limited than the scheme in the UK where authorisation of CHIS may come from  various officers such as a superintendent in a police force, HM Revenue & Customs or a Senior Manager in the Serious Organised Crime Agency (SOCA). In neither jurisdiction is judicial approval of the use of CHIS or informers required.

In addition, the Code of Practice in Ireland states that CHIS Handlers and Controllers will be trained to ‘approved standards’, and the use of CHIS will be subject to ‘appropriate reviews’. These opaque terms are not defined in publicly available documents.

While the Code of Practice is claimed to be ‘in line with best international practice’ the lack of legislation is worrying from a due process perspective and is unlikely to be compliant with the ECHR. McDermott has noted that this non-statutory, executive action is not ‘dissimilar’ to the regime which operated in the UK prior to Malone v UK where the European Court of Human Rights found that phone tapping was not in accordance with law and that it breached Art 8 due to the fact that the relevant domestic law was obscure and could be interpreted in different ways. Therefore, procedures in Ireland appear to contravene Art 8 given that the expression ‘in accordance with the law’ in Art 8(2) requires that the measure has ‘some basis in domestic law’ and ‘refers to the quality of this law, demanding that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him or her, and compatible with the rule of law’ Malone UK [67].

The very nature of covert policing entails police officers skirting close to the limits of legality, and may, as in the case currently under investigation, involve reliance on parties with dubious records and motivations. Moreover, oversight of sources is difficult, and this is not necessarily remedied by a legal framework: as I’ve commented on before, in the UK a number of legal actions and inquiries are underway regarding inappropriate behaviour and relationships cultivated by undercover agents.  Having said that, this does not excuse the absence of legislation in this respect.

Regardless of the findings of the GSOC’s investigation, it is critical that legislation is drawn up to guide and limit the powers of the Gardai in this respect. This will ensure the legitimacy of Garda operations, and will bring practice in line with the ECHR. Ultimately, both a precise legal framework and an ethical culture of policing is required to ensure that due process norms and liberties remain safeguarded in the use of this crime control technique.

Informers in Ireland: a lack of law?

Licence to Thrill? RIPA and Covert Human Intelligence Sources

Last week, in AKJ and others v Commissioner of Police for the Metropolis, the English High Court gave judgment in a case considering the behaviour of undercover state agents and the ability of the courts to monitor their acts. The case concerned claims against the police arising from the actions of various Covert Human Intelligence Sources (CHIS) who began and maintained sexual relationships with a number of female environmental protestors while acting as undercover officers. The claimants, all political activists, alleged that the sustained deceptions were degrading under Art 3, and that they interfered gravely with the right to respect for their private lives under Art 8, resulting in serious personal injury.

The CHIS had been authorised under the Regulation of Investigatory Powers Act 2000 to act undercover to infiltrate “extreme left wing groups” in the UK and to establish or maintain any personal relationship for that covert purpose [27].

Continue reading “Licence to Thrill? RIPA and Covert Human Intelligence Sources”

Licence to Thrill? RIPA and Covert Human Intelligence Sources

GPS monitoring of criminal suspects: Lessons from the US?

Surveillance is of critical importance in the investigation of serious and organised crime, in determining the extent and patterns of criminal behaviour, and in the gathering of evidence to construct a case against a suspect; thus it has been described as one of the most important legal weapons deployed by the United States against Mafia groups and families (see Jacobs, Busting the MobUnited States v. Cosa Nostra, p. 8). As the relevant UK legislation provides, ‘surveillance’ includes monitoring, observing or listening to persons, their movements, conversations or their other activities or communications whether with a device or otherwise, and the recording of anything so monitored or observed. While observation of suspects has long been a standard practice of law enforcement, technological advances facilitate more systematic and more invasive approaches. These are now are regulated more strictly than was one the case, largely because of the jurisprudence of the European Court of Human Rights on Article 8 of the European Convention on Human Rights, though not prohibited. According to this Article, everyone has the right to respect for his private and family life, his home and his correspondence, and any interference must be ‘in accordance with the law’ and ‘necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. So, though a person’s private life is deemed to be interfered with when security services systematically collect and retain data on him, this may be permissible and compliant with the ECHR if necessary for the prevention of disorder or crime.

The recent decision of the US Supreme Court in United States v Jones has brought one particular form of surveillance of suspected individuals to the fore in public debate, namely the use of global positioning surveillance (GPS).

Continue reading “GPS monitoring of criminal suspects: Lessons from the US?”

GPS monitoring of criminal suspects: Lessons from the US?

Double jeopardy and the murder of Stephen Lawrence

The  Court of Appeal of England and Wales has judged that Gary Dobson may be tried for the murder of Stephen Lawrence in 1993, under the terms of the Criminal Justice Act 2003. This follows a previous unsuccessful private prosecution in 1996 when three men, including Dobson, were tried for Stephen Lawrence’s murder at the Central Criminal Court. The jury was directed to acquit on the basis that identification evidence was not admissible.

Part 10 of the Criminal Justice Act 2003 amended the rule against double jeopardy to permit a re-trial if there is new and compelling evidence against the acquitted person. This provision has recently been emulated in Ireland in the Criminal Procedure Act 2010 (see comment here) and in Scotland. Under the English legislation evidence is defined as “new” if it was not adduced in the proceedings which resulted in acquittal, and is “compelling” if reliable, substantial, and appears highly probative of the case against the acquitted person. The first conviction based on such new evidence was in 2010 when Mark Weston was found guilty of murder at Reading Crown Court.  After having been first acquitted of murder in 1995, his conviction was based on new DNA evidence. Continue reading “Double jeopardy and the murder of Stephen Lawrence”

Double jeopardy and the murder of Stephen Lawrence

Women and Crime

The Association for Criminal Justice Research and Development yesterday launched its report on women  in the criminal justice system, including papers from a conference on the same topic held late last year. The report was launched by Ms Justice Catherine McGuinness, who is said to have noted that murders committed by women attract widespread media and therefore most public attention, rather than less sensational and less serious offences.

The relative absence from public discourse and official attention of women who are involved in criminality in Ireland replicates a pattern where women were ignored for many years in criminology, given that offending behaviour was presumed to be typically male and so explanations of male crime were seen to explain all crime.  Women were viewed as law-abiding by nature, and as likely victims rather than perpetrators of crime, thereby perpetuating the stereotype of the woman as passive and in need of protection. Continue reading “Women and Crime”

Women and Crime

Cuts to Operation Anvil

The Irish Times reports today that Operation Anvil, the primary operation of the Garda Síochána against organised crime in Ireland, has had its budget reduced by half to €10million.

Operation Anvil, which targets organised and gun crime specifically, was initiated in Dublin in 2005 and on a nationwide basis in 2006, and involves surveillance, Garda patrols and targeted searches and checkpoints. Despite the claims of Garda Commissioner Martin Callinan yesterday that the Garda would continue “to provide an effective intelligence-led policing service”, it is questionable whether such a drop in funding could realistically be absorbed without significant operational and investigative difficulties.

Statistics indicate a nuanced picture in relation to the broad category of non-fatal gun crime in Ireland, in contrast to the common political depiction that “the appearance of a variety of guns in the pursuit of crime has become commonplace” and that there has been a proliferation of guns in society. Continue reading “Cuts to Operation Anvil”

Cuts to Operation Anvil

White Paper on Organised and White Collar Crime

The Department of Justice has invited comment on the White Paper discussion document Organised and White Collar Crime. The paper examines the extent of and legal reactions to a vast array of crimes like drug trafficking, fraud, money laundering, white collar crime and bribery. It asserts that the complex nature of such crimes, the degree of organisation involved, and the use of technology in the perpetration of such acts warrants strategies over and above those used in traditional law enforcement. It questions whether legislative and structural approaches adopted in other jurisdictions should be implemented in Ireland in combating organised, armed gang and white collar crime.

While a range of crimes are addressed, my comments centre on the section on organised crime. Although the paper acknowledges the difficulty in defining organised crime, this does not deter it from seeking to address the phenomenon. It also adopts the dubious, morally loaded and indefinable term “gangland” which is unappealing in a formal document rather than a journalistic piece. Continue reading “White Paper on Organised and White Collar Crime”

White Paper on Organised and White Collar Crime

Preventive detention, risk and the ECHR

Various developments in criminal justice policies and practice in Ireland and abroad exemplify a marked aversion towards risk, such as the restriction of the right to bail, situational crime prevention, and gated communities. While risk has always been of concern in the criminal justice context, commentators like Barbara Hudson and Lucia Zedner identify a new orientation towards it, in which the actuarial probabilistic language of risk is joined to the moral language of blame, and where wariness towards risk compromises due process norms. The imposition of preventive detention, which has recently been examined in Strasbourg in Grosskopf v Germany, is paradigmatic of this risk-oriented approach to penal policy. Indeed, the release of convicted sex offender Larry Murphy, which prompted debate about electronic monitoring and sentence remission, also sparked consideration of preventive detention in Ireland.

However, imprisonment for this purpose is not possible in Ireland. The Irish approach to sentencing, grounded in Bunreacht na hÉireann, requires that each sentence be formulated with the individual facts of the case in mind and be proportionate to the gravity of the crime and the circumstances of the perpetrator (People (DPP) v Sheedy [2000] 2 IR 184). As was reiterated earlier this year in Lynch v Minister for Justice Equality and Law Reform, preventative justice “has no place in our legal system” (People v. O’Callaghan [1966] IR 501) and “there is no form of imprisonment for preventative detention” (People (The Director of Public Prosecutions) v. Jackson (Court of Criminal Appeal, 26 April 1993). Continue reading “Preventive detention, risk and the ECHR”

Preventive detention, risk and the ECHR