THE SPECIAL CRIMINAL COURT, THE IRISH GENERAL ELECTION AND THE PROPOSED FRENCH CONSTITUTIONAL AMENDMENTS

Dr Alan Greene Four Courts

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General Election 2016 has, unsurprisingly, been dominated by the economy. However, an unlikely high-profile issue is that of the existence of the Special Criminal Court. Sinn Féin has thrust this issue into the lime-light with a pledge to repeal it in its manifesto. This has promptly led to attacks from other political parties, drawing attention to Sinn Féin’s connections with the IRA, and particularly the recent high-profile conviction of Thomas Murphy in the Special Criminal Court for tax-evasion. The level of this debate from both sides so far has, however, been wholly unsatisfactory from a human rights perspective. Gerry Adams’ suggestion that the existence of gangland murders shows that the Special Criminal Court does not work is as equally frustrating as Brian Hayes asking Mary Lou Mc Donald as to whether she thinks that Thomas Murphy is a good republican.

The relevance of this debate is not, however, limited to Ireland. Parallels can be drawn between Ireland’s experience of the Special Criminal Court and French Constitutional amendments currently being debated by its parliament. In turn, this can illuminate the key human rights issues at the heart of both states’ emergency responses.

France’s State of Emergency

Less than 72 hours after the attacks on Paris, French President François Hollande  declared that France was at war and stresed the need for sweeping new laws to confront the terrorist threat. Hollande followed this up with the declaration of a state of emergency which was subsequently extended by parliament for a further 3 months. The emergency powers triggered by this declaration date back to 1955 and France’s last declaration of a state of emergency to deal with Algeria’s struggle for independence. These powers – outlined in legislation, not the French constitution – give French police the power to search homes without a warrant, ban protests and other public gatherings, and can potentially ensure control of the press and radio; although these latter provisions have not yet been triggered.

Hollande has also signalled his intention to effect permanent constitutional changes. The motivation for this is to place France’s emergency powers on a constitutional footing, insulating them from the possibility of a successful legal challenge. While France already has a number of constitutional emergency powers in its constitution – for example the militaristic state of siege – these powers are extremely draconian. By placing the existing legislative powers on a constitutional foothold, Hollande is seeking to enable ‘exceptional security measures without having to resort to the most drastic options currently in the Constitution.’

In principle this sounds like a positive development for human rights and the rule of law. The potential for the most draconian of measures that encroach severely on human rights is avoided while at the same time, the state’s response to terrorist threats can be beefed up.

 

Exceptional but not Drastic: The Special Criminal Court

This idea of having ‘exceptional security measures without having resort to the most drastic options currently in the Constitution, is strikingly similar to what the drafters of the Irish Constitution had in mind when constructing the emergency powers system in this state. Ireland’s principal emergency powers contained in Article 28.3.3° of the Constitution essentially allow for the suspension of every article of the constitution in a ‘time of war or armed rebellion’. The only restriction on this power is that the death penalty may not be re-introduced. Ireland was under a perpetual state of emergency from the outbreak of World War II in September 1939 until February 1995 following an IRA ceasefire.

The 1935 Constitution Review Committee upon whose recommendations the Constitution’s emergency powers are based upon also suggested a procedure for less serious emergencies to be included in the draft constitution. Such crises would be when ‘the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order’ and would permit the establishment of non-jury special courts. In this manner the need to declare a state of emergency and the extreme powers that would flow from this would be avoided.

While Ireland’s state of emergency remained in force from 1939-1995, in practice, no emergency legislation was actually on the statute books for much of this time. In contrast, the special courts clause contained in Article 38.3.1° of the Irish Constitution has resulted in the Special Criminal Court becoming a permanent feature on the Irish legal landscape. Indeed, its role has expanded to not only deal with terrorism-related offences but with organised crime. Minister for Justice Frances Fitzgerald also recently agreed to establish a new Special Criminal Court in order to alleviate the backlog in the existing system. In a similar pattern of normalising exceptional powers, the French authorities have already used their new emergency powers, not in the fight against suspected ISIS terrorists, but to place climate change protestors under house arrest during the Paris Climate Summit in December.

A declaration of a state of emergency and the requisite powers that flow from this are serious and present a profound challenge for human rights and the rule of law. Emergencies, however, may also protect human rights by quarantining exceptional powers to exceptional times; thus preventing them from seeping into the ordinary, everyday legal system. Divorcing ‘less-exceptional’ measures from the more extreme measures dilutes the stigma attached to them and increases the propensity for these ‘less-exceptional’ measures to become normalised and permanent. The permanent nature of the Special Criminal Court in Ireland is a testament to this. The current debate as to the continued existence of the Special Criminal Court has, however, been frustrating, ignoring these key concerns and instead focusing on cheap attacks or questionable reasoning.

The Challenge of Terrorism

It is not hard to imagine that a similar situation to Ireland’s Special Criminal Court will arise in France. Hollande has labelled the existing constitutional regime for a state of emergency and state of siege unsuitable for the fight against ISIS. They were designed for a different time and a different type of enemy. Thus while Hollande may have declared ‘war’ on ISIS and subsequently ordered airstrikes on the Islamic state and sought a UN Security Council resolution authorising ‘all necessary measures in compliance with international law’ to tackle ISIS in Syria and Iraq, he nevertheless views this war as qualitatively different from those France has waged in the past.

Declaring war on something implies that the solution is military. It also implies that it is temporary. The constitutional changes proposed by Hollande are, however, to the criminal justice sphere and police powers. Terrorism thus blurs the lines between war and crime. Crime, unlike war, is viewed as a permanent threat that we must live with every day. Counter-terrorist laws therefore are framed as being necessary in order to confront a threat of great magnitude, akin to war; however, they are also framed as being a necessarily permanent change to confront a permanent threat akin to criminality. It is because of this that many of the counter-terrorist measures we’ve seen enacted around the world in the aftermath of 9/11, and indeed the Irish Special Criminal Court are permanent.

A rush to draft laws in the aftermath of a serious crisis, where emotions run high, when people are afraid, and when the temptation to over-react is at its greatest must be resisted. This danger becomes even more heightened when the legal changes are to the permanent constitution of a state. France would do well to heed the lessons from Ireland.

Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. His research focuses on states of emergency, counter-terrorism, and human rights. He tweets @DrAlanGreene

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Out on the Inside

We are delighted to welcome this guest post from Deirdre Malone, Director of the Irish Penal Reform Trust. The Trust recently launched a report on the experiences of LGBT people in prison in Ireland. 

IPRT

On 22 May 2015 I stood in the yard of Dublin Castle with my own brand new husband and watched the whooping victory of equality over discrimination. As happy newlyweds ourselves, we felt the profound importance of the occasion deeply. We saw Ireland shedding her old identity, becoming something new and brave and proud. On that day, victory felt swift and definitive. In reality it was the culmination of a decade of tenacious work and thousands of brave conversations. It was a challenge to a social system that once felt monolithic, intractable and inevitable. It represented a final blow of years of steady chipping at the hard crust of institutionalized inequality. But I wondered, were LGBT people in prison celebrating too on that day? Would they feel safe to do so?

While for those who work in the NGO sector, 22nd May 2015 was a jolting, joyful reminder that monumental change is indeed possible, the 33rd Amendment did not mark the end of homophobia, harassment or discrimination of LGBT people. That is doubly true for lesbian, gay, bisexual and transgender people who are in prison. LGBT prisoners form a “twice marginalized” population, falling outside of the ‘mainstream’ of LGBT community organizing and support services but also hidden and largely overlooked in terms of current prison policy.

International research reveals that homophobia is often amplified in male prisons as a result of a culture of “hyper-masculinity” and the traditional hierarchical structure which prevails. Transgender prisoners, particularly women, face disproportionately high instances and severity of violence and discrimination, both in and out of prison. They are not easily accommodated within the strict male/female structure of most prisons and may also experience violence and voyeurism in the context of prison showers or toilets – a particular concern in Ireland where 45% of prisoners are still required to use the toilet in the presence of another.

LGBT prisoners are also particularly at risk of experiences of discrimination, violence, sexual coercion and verbal harassment. Putting up a front, threatening or even engaging in violence in order to avoid being a victim of abuse is seen as something necessary within the prison environment

Of course, issues of homophobia, transphobia and the wider culture of heteronormativity also affect LGBT prison staff who also have experiences of homophobia, including being the targets of abuse by prisoners. The Irish Prison Service currently participates in the GLEN Diversity Champions programme through the ‘Inside Out’ network for LGBT prison staff but to date there has been no research or policy response addressing the specific needs and experiences of LGBT prisoners.

General good practice measures for safer prisons such as single cell accommodation as standard would help. It is common in many jurisdictions for “at risk prisoners” and LGBT prisoners especially, to be placed in protective custody to safeguard them from victimisation. However in practice conditions in protective segregation are often identical to conditions for prisoners placed in segregation for disciplinary reasons thus breaching fundamental rights principles. This can lead to longer term issues including mental health difficulties caused by the effects of isolation and more limited access to services. It is vital therefore that violent cultures and opportunities for abuse are targeted through the education of prison populations, training of staff, and effective independent complaints procedures. Further research is also needed in the areas of sexual health and behaviours in prison, the experiences of young LGBT people in prison and on the issue of sexual violence and coercion and their prevalence within the prison context.

For many years now, the Irish Penal Reform Trust have been examining and listening to the experiences of diverse vulnerable groups in prison, including Travellers, women, children and young people, and immigration detainees. The recent passage of the Irish Human Rights and Equality Commission Act 2014 sets out the positive duties of public bodies to eliminate discrimination, promote equality and protect human rights, and should act as a catalyst to address this area which has been neglected to date. We also hope that the result of the recent same-sex marriage referendum and the passage of the Gender Recognition Act 2015 will provide further impetus for reform to ensure that no LGBT person, wherever they might be, is left behind.

All of this must be understood in the wider context of overuse of imprisonment generally, and the ineffectiveness of the idea of retribution in challenging the conditions which are at the root of most punished crime – poverty, unemployment, homelessness, mental illness, addiction, desperation. The reality is that prison warehouses human misery, and by doing so, compounds it. It takes courage to challenge the status quo, but in every generation it is those that do who will also see the rewards of that courage. A challenge to the overuse of prison would lead to a more progressive, more effective, more humane, evidence-led criminal justice system – something which ultimately benefits us all.

Deirdre Malone is Executive Director of the Irish Penal Reform Trust www.iprt.ie

The IPRT report “Out on the Inside” was launched on 2 February 2016 at Wood Quay Venue, Dublin on 2 February 2016. It is available to download here

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Out on the Inside

Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland

We are pleased to welcome this guest post from Dr Aoife Duffy, Lecturer in International Human Rights Law at the Irish Centre for Human Rights, National University of Ireland Galway

On 10 November 2015, a 66-year-old ex Lance Corporal of the British Army’s Parachute Regiment was arrested in relation to the killing of three individuals who died during Bloody Sunday, which resulted in the deaths of 14 civilians following an anti-internment march in Derry on 30 January 1972. Accounting for conflict related violence and killings committed by the security forces in Northern Ireland has been problematic due to the hegemonic position of official discoures related to conflict, underpinned by various denial strategies, as outlined by Stanley Cohen in his seminal work, States of Denial: Knowing About Atrocities and Suffering. In Northern Ireland, a structure of denial was sustained at various points throughout the UK administration and the military-security establishment, including through close cooperation between between senior officers in the British army and the Attorney General regarding the prosecution of soldiers on serious criminal charges. The General Officer Commanding (GOC) the British Army in Northern Ireland, Sir Frank King, met with the Attorney General on 8 January 1974 and subsequently wrote to one of the most senior officers in the British Army, the Adjutant General Sir Cecil Blacker, based at Ministry of Defence offices in Whitehall, about the meeting. In short, General King was reassured by the position taken by the Attorney General, who informed him in no uncertain terms that ‘not only he himself but also the DPP and senior members of his staff, having been army officers themselves, having seen active service and knowing at first-hand about the difficulties and dangers faced by soldiers, were by no means unsympathetic or lacking in understanding in their approach to soldier prosecutions in Northern Ireland.’ Approximately 350 deaths were caused by state security forces between 1969 and 1994, and the army were responsible for 90% of these killings between 1969 and 1974. 54.1% of those killed by the security forces in Northern Ireland were civilians and 84% of these victims were Catholic. General King was informed that only 10% of the cases submitted to the DPP were prosecuted; that borderline cases (he cited the shooting of Joseph McCann) were routinely dropped, ‘unless there was evidence of brutality or callousness on the part of that soldier or evidence that the soldier had clearly, unjustifiably and substantially overstepped the mark in the use of force.’ Continue reading “Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland”

Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland

Rape and the Criminal Justice System

criminal courtsIn the past few days two alarming stories have emerged pertaining to the response of the criminal justice system to rape allegations in Ireland. Both, if accurately reported, provide further evidence of the failure of the Irish system to respond appropriately, in a way which respects the rights of victims satisfactorily. Continue reading “Rape and the Criminal Justice System”

Rape and the Criminal Justice System

Politics and The Policing Authority

mincommMinister Frances Fitzgerald stated in the Seanad last week that she is “committed to delivering a sea change in the oversight of policing.” At the core of the reform package which will supposedly deliver this is the Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015 and the soon to be created Policing Authority. She has stated that this body Continue reading “Politics and The Policing Authority”

Politics and The Policing Authority

The State’s Positive Obligations under the ECHR in the context of Irish Prisons

MountjoyWe are pleased to welcome this guest post by Conor Talbot. Conor is a PhD Candidate at the European University Institute, Florence, and an Associate Researcher at the Department of Economics, Trinity College Dublin. He can be contacted at ctalbot@tcd.ie.

 

Continue reading “The State’s Positive Obligations under the ECHR in the context of Irish Prisons”

The State’s Positive Obligations under the ECHR in the context of Irish Prisons

The Embodied Subject: Northern/Irish Feminist Judgments Project

WHB6t5xX_400x400This report of the fourth workshop of the Northern/Irish Feminist Judgments Project is by Sandra Duffy, an LL.M. student in International Human Rights Law & Public Policy at University College Cork.

‘The Embodied Subject’

The fourth workshop of the Northern/Irish Feminist Judgments Project was held in Griffith College Dublin on the 13th and 14th of April 2015. The Project, headed by Aoife O’Donoghue (Durham), Julie McCandless (LSE) and Máiréad Enright (Kent), seeks to add an oft-missed perspective in Northern/Irish jurisprudence by inserting a feminist judge on the bench of the Court in question in each case, and having them write the judgment addressing the issues overlooked or under-considered by the judgments handed down in the case itself.

The theme of the Dublin workshop was ‘the embodied subject’. As with most feminist consideration of the state of embodiment – especially that of women – there is often as much to be found in the silences as in the words. What does the law make of women’s bodies? Where are the gaps in consideration? How does the law address, or not address, the experiences of transgender and queer women – both in legislation, and in judicial opinion? Laws regulating the body, the physical self, can be blind to the social and psychological consequences they carry for the person thus regulated. If the law – as in most of the cases covered during the weekend – operates on a strict sex binary, where those female-assigned at birth are de jure considered female and those deemed male cannot be seen to be de facto female later in life, then the gendered experience of being a woman and experiencing one’s body is the square peg in the law’s round hole. Indeed, as Tanya Ní Mhuirthuile and Ivana Bacik ask in their judgment on Foy v An t-Ard Chláiritheoir, must sex assignation at birth be considered a statement of fact, or a rebuttable presumption?

The female sexed and gendered body forms an object for the law more often than its owner is deemed to be a subject and a participant in those laws. The selection of cases presented in this weekend displayed the judicial attitude to womanhood in all its forms, ranging from reproductive rights to gender recognition to adoption and ownership of one’s identity. The workshop also included cross-disciplinary talks from social scientists and activists which sought to place the question of law and the embodied subject into its fuller social context. The cases under consideration were McGee v Attorney General[1], McKinley v Minister for Defence[2], BJM v CM[3], Foy v An t-Ard Chláiritheoir[4], Barnes v Belfast City Council[5], Zappone and Gilligan v Revenue Commissioners[6], DPP v Tiernan[7], DPP v C[8], CC v Ireland[9], P.M.  v.  St. Vincent’s Hospital[10], and IOT v B[11].

These cases cover a broad spectrum of issues: the directly corporeal (BJM v CM, where the woman in question was treated as a body and nothing more by her ex-husband and the original judge) to the adminstrative (Zappone and Gilligan, two female spouses challenging an inequality in recognition and tax law) to the intersection of the civil right to privacy and the practical impact on health and family from denial of that right (Mc Gee v Attorney General). At times, the original judgments were considered to be broadly fair in their scope, in particular that of McKechnie J in Foy, where the rewriters found themselves in the curious position of being almost satisfied with the original opinion and looking for things to render it complete! Other cases, however, required fundamental change from the ground up. In Máiréad Enright’s opinion in McGee, she found herself breaking down the facts and circumstances of both the plaintifs, the McGee family, and the societal context in which the case took place. Máiréad questioned whether the right to use contraception was correctly identified as a right of the family unit, preferring to see it as a matter of individual privacy. The freedom to regulate one’s family planning could be considered to be a right of ’embodied conscience’ – living one’s civil and political rights through bodily experience.

One particularly egregious original judgment was that in BJM v CM. After having married, BJM was shocked to discover his wife had seriously physical scarring from a bad accident. He claimed that this scarring was physically repulsive enough that he had been tricked into the marriage and that his consent could not be considered informed; therefore, he sought a decree of nullity. Appallingly, this opinion was carried and the Ms’ marriage was annulled. This left CM in a position where she and her family found their lives in upheaval and their seventeen-year household suddenly without legal rights. The feminist judges remarked in particular on the voicelessness of CM throughout the case. The whole proceedings centres around BJM: his feelings and his experiences. CM is reduced to an object over which men are arguing. Indeed, the original judge goes so far as to state that concealing her scarring was to conceal something of ‘the fundamental nature of the person’ akin to a psychiatric illness. CM did not, however, suffer any such irregularity in personality or emotions – but due to her husband’s claimed lack of attraction to her, she was deemed defective enough that BJM could not have given informed consent to marrying her. She is regarded as her body and nothing more. The commentators also spoke about the lack of sexual identity of women before the Irish courts. The Madonna/whore dichotomy is very evident here; CM is either properly modest for not sleeping with BJM before marriage, or she is a dishonest fraud who sought to entrap a man before revealing her ‘dysfunctional’ self. Possibly she is both at once, but we cannot know what she herself was thinking because all the commentary on her life is coming from men – male husband, male doctors, male judge. If the embodied female subject in Irish law has a nadir in terms of respect, BJM v CM may possibly be it.

The interdisciplinary panels interspersed through the delivery of judgments covered issues of women in Irish society ranging from the history of the women politically active around the 1920s in Ireland, to the struggle for women’s right to sit on a jury. They included stories of front-line activism, such as that of front-line campaigner Ailbhe Smyth, and a powerful story from leader of the Survivors of Symphysiotomy support group Mary O’Connor. Most unexpectedly enthralling was the presentation of social geographer Mary Gilmartin, who spoke on ‘Bodies, Borders, and Scales’. She spoke of how the way in which we organise and conceptualise our physical space in society is one of the instruments through which we experience our lives within that society. The hierarchy of our esteem for space, placing cities as centres of power, alienates those without access to such power; similarly, when we consider the world as a collection of ‘more important’ versus ‘less important’ areas, we assign identity to people based on the physical space which they occupy and weigh their existence as more or less relevant than our own. In this way the symbolic value of that person’s physical existence is linked to their assigned place in the world – in Mary’s words, “the body, in effect, becomes the carrier of the border.”

Considering the physical self to own within it the borders of one’s assigned societal identity brings with it another way to understand the experiences of LGBTQ subjects in law. Whether it be a challenge to the legitimacy of one’s marriage or the ability to live without constant worry of being revealed to be transgender, the lives of the queer and trans* community in Ireland have never been easy. The brave women at the centre of the Foy and Zappone and Gilligan cases know that they carry with them the borders imposed on them by society, and in challenging those borders in the courts they opened their lives up to scrutiny and invalidation. The LGBTQ rights campaigns have always involved the assertion of both physical and psychological identity by those involved: the law addresses them solely as the product of their physical bodies in deciding who they are and with whom they may form a family. From a feminist viewpoint, the right to be considered a person in possession of full and equal human rights is essential. The feminist and LGBTQ struggle overlap and intersect, and it is right that we should deconstruct thinking around queer bodies as we do around female-sexed bodies more generally.

In thinking about bodies and their effects and uses, the questions of sexual activity, reproduction, and sexual violence arise. While the third IFJP workshop, in University College Cork, had centred on ‘the mothering subject’, this workshop looked at the effects of sexual regulation in Ireland on the woman as an individual as opposed to the carrier/mother of a child. Contraception was spoken of in the McGee judgment, and Máiréad also gave a colourful account of the condom-smuggling trade over the border in the 1970s. Caroline Fennell and Louise Kennefick had written their opinion on the DPP v Tiernan case, in which a sentence for rape was challenged and questions related to the law of sentencing overall arose. The feminist judges took issue with the views of Finlay CJ in the case, noting that his judgment contained stereotyped views of women and drew distinctions between different circumstances in which rapes occur. They wished to focus more on the role and experience of the victim-witness as an autonomous actor in the trial process (leading them to consider, also, the propriety of using feminist principles to argue for retributive justice for a victim). Eilinóir Flynn and Sinéad Ring looked at another case involving sexual autonomy, that of DPP v C. This case was based on the law around consent to sexual acts. The judges gave a thoughtful, complex look at the idea of consent both per se and as it can be regulated/proven in court. Foremost, again, were the ideas of autonomy and agency of the consenting party. They also noted that discussions of consent, as in this case, can be very heteronormative – just another way in which the embodied self finds itself playing a pre-determined role before the law.

The issue of corporeality is inseparable from the experience of being a woman in a sociolegal context. On a personal level, I took from this workshop a broader understanding of my existence before the law, along with the challenges of viewing the consequences of my own embodiment and that of others with a critical eye. From a wider perspective, being able to read a case with an eye to how the biological sex and true gender of the participants is an exercise which illuminates some repeating themes in Irish law: the body, the mother, the sexuality, the autonomy of choice.

[1]    [1973] IESC 2 (Máiréad Enright (Judge) & Emily Cloatre (Commentator))

[2]    [1992] 2 IR 333 (Joanne Conaghan (Judge) & Fergus Ryan (Commentator))

[3]    [1996] 2 IR 547 (Aideen Ryan & Katie Dawson (Judge) & Christine Ryan (Commentator))

[4]    [2007] IEHC. 116 (Tanya ní Mhuirthile (Judge) & Ivana Bacik (Commentator))

[5]    [2012] NICA 19 (Marie Fox (Judge) & Fiona Cooke (Commentator))

[6]    [2006] IEHC 404 (Fiona de Londras (Judge) & Siobhán Wills (Commentator))

[7]    [1988] 1 I.R. 250 (Louise Kennefick & Caroline Fennell (Judge) & Liz Campbell (Commentator))

[8]    [2001] 3 IR 345 (Eilionóir Flynn &  Sinéad Ring (Judge) & Anna Arstein-Kerslake (Commentator))

[9]    [2006] IESC 33 (David Prendergast (Judge) Cian O’Concubhair (Commentator))

[10]  [2003] IR 321 (Mary Donnelly (Judge) & Claire Murray (Commentator))

[11]  [1998] 2 IR 321 (Katherine O’Donnell & Claire McGettrick (Judges), James Smith (Commentator))

The Embodied Subject: Northern/Irish Feminist Judgments Project

ACJRD Criminal Justice Essay Competition 2015

The Association for Criminal Justice Research and Development (ACJRD) has announced an essay competition to encourage written work on the subject of Criminal Justice.

There is a prize of €200 for first place and a second prize of €50. Both winning essays will also be published on the ACJRD website.

The competition is open to all third level students (including post graduates), pupil or devil barristers and trainee solicitors.

The 2015 Competition theme is: ‘An issue in need of reform in Irish criminal law or procedure’.

The competition closing date is June 30th 2015.

Further information, including the rules of the competition, is available here.

ACJRD Criminal Justice Essay Competition 2015

Just and unjust wars: the Holy See, #R2P and a concern about genocide in the Middle East

Holy-See-(Vatican-City-State)-flagLeonard Taylor is a PhD candidate at the Irish Centre for Human Rights, NUI Galway, Ireland. His research topic is on Catholicism and international human rights.  You can contact him l.taylor3[at]nuigalway.ie

The following post highlights current debate at the United Nations, particularly at the recent 28th Session of the Human Rights Council on the situation in Northern Iraq and Syria as a consequence of the spread of ISIS(Islamic State of Iraq and al Sham or sometimes called ISIL, Islamic State in Iraq and the Levant). Religious minorities and ethnic groups are of particular concern and the Holy See has invoked the doctrine of a responsibility to protect. The following post assesses this option in light of the impasse at the Security Council. The proposal to establish an ad-hoc tribunal for Syria and potentially northern Iraq appears to be the next most reasonable step.

Since 2014, the rapid spread of ISIS forces across northern Iraq has led to a humanitarian crisis. Ethnic and religious minorities have been particularly targeted, including Christians, Kaka’i, Shabak, Turkmen and Yezidis, with thousands killed and many more injured or abducted. The litany of crimes committed seems to be endless and irrational. The list of human rights abuses and breaches of humanitarian law including unlawful killings, deliberate targeting of civilians, forced conversions, targeted persecution of groups and individuals on the basis of their religion or belief, acts of violence against members of ethnic and religious groups, as well as destruction of places of worship and cultural heritage sites. In October 2014, Special Adviser of the Secretary-General on the Prevention of Genocide, and Jennifer Welsh, Special Adviser of the Secretary-General on the Responsibility to Protect, on the situation in Kobane, Syria stated, ‘this latest attack is part of a larger pattern of targeted violence committed by ISIL and other armed groups against religious and ethnic minority communities in both Syria and Iraq’. By 6 August 2014, an estimated 200,000 Christians and members of other ethnic and religious groups had fled from al-Hamdaniya, Ba’shiqa, Bartella, Tel Keif, and other towns and villages in the Ninewa plains before they were taken over by ISIL.

The international legal framework in Iraq amounts to an armed conflict of a non-international character involving ISIL and other affiliated armed groups, on one side, and Iraq army (ISF) and other armed forces, which support it, on the other. In Iraq military assistance is already underway by the United States, United Kingdom, Iran and others and appears to have the consent of the international community though not without debate. Similarly in Syria, it is a non-international armed conflict but in contrast to Iraq it remains in the main, isolated from the international community’s direct involvement.   Continue reading “Just and unjust wars: the Holy See, #R2P and a concern about genocide in the Middle East”

Just and unjust wars: the Holy See, #R2P and a concern about genocide in the Middle East

DPP v JC: Initial Observations on the Exclusionary Rule case

Where does one start to analyse six Supreme Court judgments (the Chief Justice concurred with the majority but did not issue a separate judgment), amounting to over 155,000 words, on a most fundamental rule of constitutional law and criminal procedure? This is not an easy task and what follows represents only an initial foray into the many significant issues which arise within, and as a consequence, of this week’s Supreme Court decision in DPP v JC [2015] IESC 31.

 

The New Rule

The fundamental decision of the Court in DPP v JC [2015] IESC 31 is that the exclusionary rule set out in People (DPP) v Kenny [1990] 2 IR 110, and in operation in this jurisdiction for the past twenty-five years, is no longer to be applied (for more on the existing rule see my 2009 post). The Court, in a 4:3 majority verdict (Denham CJ, Clarke, O’Donnell and MacMenamin JJ in the majority; Hardiman, Murray and McKechnie J dissenting), overruled its own previous decision in that case and declared a new exclusionary rule in relation to unconstitutionally obtained evidence. The basic rule, though there is more to it than this (as discussed below), is that inadvertent breach of constitutional rights in the obtaining of evidence will not lead to the exclusion of that evidence at trial. Knowing, reckless or grossly negligent breaches of constitutional rights will lead to such exclusion, except in exceptional circumstances.

While O’Donnell J specified that the decision in JC applies only in the context of search warrants, Clarke J, who actually sets out the specifics of the new rule, was not quite as restrictive. He suggested that the new rule applies only where there is a question about the manner in which a relevant piece of evidence was gathered, as opposed to any question relating to the probative value of the evidence given the way in which it was obtained. All of this is to say that the decision here does not relate to cases where, for example, a confession statement is alleged to have been obtained through oppression or threats. In such a scenario the reliability of the statement may be tainted by the circumstances in which it was obtained, but the presence of stolen goods in an individual’s home, for example, is not altered by the constitutionality or otherwise of the search warrant executed by the gardaí in order to search that home.

The new rule is set out very clearly in the judgment of Clarke J, and he helpfully provides clear reasons for the inclusion of each individual aspect of this rule. The main elements of the new rule are as follows:

  • The onus is on the prosecution to establish the admissibility of all evidence.
  • If a claim is raised that evidence was obtained in breach of constitutional rights, the onus is on the prosecution to establish either (i) that there was no unconstitutionality, or (ii) that despite any interference with constitutional rights the evidence should still be admitted.
  • Where evidence is obtained in deliberate and conscious violation of constitutional rights (in the sense of knowing breach of rights) it should be excluded, except in exceptional circumstances.
  • Whether or not a breach of constitutional rights was deliberate and conscious requires analysis of the conduct or state of mind of the individual who actually gathered the evidence, as well as any senior official or officials within the investigating or enforcement authority concerned who was involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.
  • Where evidence was taken in breach of constitutional rights, but this was not deliberate and conscious, there is a presumption in favour of exclusion, which can be rebutted by evidence that the breach of rights was either (i) inadvertent or (ii) derived from subsequent legal developments.

Basically, while the Kenny rule operated on a rationale of protectionism – if constitutional rights are breached the evidence will be excluded (except in extraordinary excusing circumstances) – the new rule under JC operates on a rationale of deterrence – evidence will not be excluded if it was obtained in inadvertent breach of constitutional rights. This is partly achieved through the determination that the term “deliberate and conscious” relates to the state of mind of the person obtaining the evidence (and/or any relevant senior officials) rather than his/her actions.

 

“Deliberate and Conscious”

One might have thought that in boldly overruling the Kenny case, as the majority of the Supreme Court has expressly done in JC, it might have been better to avoid this particular turn of phrase altogether, as its meaning has been so contentious over the years since People(AG) O’Brien [1965] IR 142 and on through Kenny. Indeed, the “deliberate and conscious” formulation is not fully accurate in terms of the new test emanating from the Court in JC as Clarke J clarifies (at para 5.14) that the concept of “inadvertence” for the purposes of the rule does not include recklessness or gross negligence. O’Donnell J concurs with this view. Accordingly, evidence obtained in knowing, reckless or grossly negligent breach of constitutional rights will be excluded, except in exceptional circumstances. So, “deliberate and conscious” breach of rights also includes reckless and grossly negligent breach of rights, which the everyday meaning of “deliberate and conscious” might not readily impart.

What will the impact of a “deliberate and conscious” breach of rights, within the meaning of the JC rule, be? It seems that a garda who knows he holds an invalid search warrant will obtain evidence that will later be excluded; a garda who is subjectively reckless, in the sense that he knows there is a risk that the warrant he holds may be invalid, will obtain evidence that will later be excluded; and, a garda who takes an objectively unreasonable risk that the warrant he holds may be invalid which falls so far below the standard of care that he ought to take in executing a warrant that it amounts to gross negligence, will also obtain evidence that will later be excluded. Only a garda who has no idea that the warrant he holds may be invalid will obtain evidence that can be admitted. The exact operation of this rule in practice obviously remains to be seen in individual, subsequent cases. But, it seems possible to me that the outcome could be something of a reversal of the practice which has come about since People (DPP) v Balfe [1998] 4 IR 50 of operating O’Brien and Kenny as alternative rules: O’Brien applying where there is an error on the face of the warrant, and usually admitting the relevant evidence; and Kenny operating where there is a deficiency in the authorisation of the warrant or its legal value and generally resulting in the exclusion of evidence.

If evidence is to be excluded now in circumstances involving gross negligence on the part of the gardaí, the O’Brien approach may in fact become the stricter one. In cases where the Kenny rule has led to exclusion of evidence in the past, gardaí have often not known at all that there was any difficulty in the way in which they had obtained or executed a given search warrant. Indeed, this was the case in Kenny itself, where the manner in which the warrant was obtained had been long-established and the difficulty therewith was only adverted to at trial. However, in O’Brien-type cases, the difficulty in the warrant is usually visible on its face – an incorrect address, for example, as in O’Brien itself, or in the more recent case of DPP v Mallon [2013] IECCA 29. In those types of cases, will the newly-expressed rule now require that gardaí check their warrants for the correct information before executing them? Surely a failure to do so could, and should, be viewed as reckless, or at least grossly negligent. Will these errors, previously viewed as mere typographical errors, now take on a greater significance?

 

Unconstitutionality derived from subsequent legal developments

Outside of issues relating to the mens rea of the gardaí in obtaining and executing warrants, a notable aspect of the new rule is the notion that evidence ought to be admitted where its unconstitutionality arises as a result of a subsequent legal development. This matter is directly related to the facts of JC itself (indeed, perhaps one could argue that other statements on inadvertence etc are obiter dictum as this is the real issue at play in JC – though for the record I doubt such argument would find traction). JC’s dwelling was searched under the authority of a search warrant issued under s 29 of the Offences Against the State Act 1939, and he was arrested by gardaí who had entered his dwelling on foot of said warrant. He was thereafter detained and questioned by gardaí and made a number of inculpatory statements. Section 29 was declared unconstitutional in the case of Damache v DPP [2012] IESC 11 between the execution of the warrant at JC’s dwelling and his trial before the Circuit Criminal Court in Waterford. As s 29 warrants were now viewed as unconstitutional, the Circuit Court judge effectively found that there had been no authority in the warrant to allow the gardaí to enter his dwelling and thereafter effect an arrest. Accordingly, and because there was no evidence to support any claim that the gardaí had entered the dwelling on foot of any other legal power, the accused was in unlawful custody at the time when he made the inculpatory statements, which were therefore inadmissible. Under the Kenny rule, this was absolutely the correct outcome of the circumstances which arose before the Circuit Criminal Court, and indeed all members of the Supreme Court in JC accepted that the judge had properly applied the Kenny rule.

Under the new rule as enunciated in JC, the statements obtained in a case such as the instant one would be admissible as although s 29 warrants are now invalid and could not be used to gain entry to a dwelling from the date of the Damache decision onwards, they were valid at the time of execution at JC’s dwelling. This, in my view, is worrying, to say the least. The constitutional difficulty with s 29 was that it allowed for warrants to be authorised by senior gardaí who were involved in the investigation for which the warrant was deemed necessary. This, as the Supreme Court found in Damache, provided no independent oversight of garda conduct and inadequate protection for the rights of citizens.

Section 29, accordingly, was struck down for good reason: independence and impartiality are essential to the integrity of the criminal process, and were not provided for by the s 29 procedure. The notion then that because it was viewed as good law at the time of the execution of a specific warrant, largely because no case had yet made it to the Supreme Court to test its constitutionality, should allow for evidence obtained thereunder to be admitted at a trial arising after it has been declared to be bad law, undermines the Supreme Court declaration of unconstitutionality and, indeed, draws the relevant trial court into acting upon evidence obtained in breach of the Constitution. Although the gardaí in the relevant circumstances were unaware of the unconstitutionality, as it had yet to be declared, a later trial court admitting and acting upon the evidence obtained does so knowing that such evidence was obtained in what are now viewed as unconstitutional circumstances. Surely this brings the administration of justice into greater disrepute than any alleged frustration of prosecution by the strictness of the Kenny rule.

 

The Strictness of the Kenny rule and Intellectual Honesty

In his dissenting judgment, McKechnie J points to an evidential gap in JC in terms of statistical information showing that the Kenny rule has led to significant frustration of prosecutions in the twenty-five years of its operation. While O’Donnell J (in the majority) listed examples of real scenarios in which the Kenny rule has applied, McKechnie J looking at each of those in turn suggests that in fact in each of those scenarios the outcome was either favourable to the DPP or unknown, such that they do not illustrate a significant difficulty with the rule to the level necessary to involve the Supreme Court in overruling its own previous decision, which should only be done for the most compelling reasons (as per The State (Quinn) v Ryan [1965] IR 70).

As mentioned above, the decision in Balfe in 1998 has allowed for courts to distinguish, in general terms, between cases where there was an error on the face of the warrant (where evidence obtained could still be admitted) and those which were issued without fulfilment of a statutory pre-condition or in the absence of jurisdiction (where evidence had to be excluded). This dichotomy was, surprisingly, not given any real acknowledgement or subjected to any analysis by the Court in JC. The majority judgments seemed eager to view the Kenny rule as an absolute rule of exclusion which has been operating in an overly strict manner. While this might well be true, and indeed I have previously characterised that rule as one of the strictest (if not the strictest) in the common law world (Daly, YM Police and Judicial Functions: Recent Developments in Criminal Procedure (2011) 1 Criminal Law and Procedure Review 35), the reality is that, at least since Balfe, O’Brien and Kenny have been operating as alternatives, thus providing the courts with an “out” from the strictness of Kenny and, to some extent, mitigating its hard edges.

It might be argued that there is a danger in providing courts with an “out” such as this, as it might give rise to contrived reasoning and the drawing of questionable parameters in order to avoid the application of the strict Kenny rule. It is perhaps more intellectually honest to operate a less strict rule through the application of clear principles than it is to create artificial dichotomies in order to circumvent the application of a strict rule.  In New Zealand where the prima facie rule of exclusion operated in a comparatively strict manner to our Kenny rule, there was some evidence of distortion of rights at the “front-end” so as to avoid the “back-end” remedy of exclusion (see Optican, Scott “ ‘Front-End’/‘Back-End’ Adjudication (Rights Versus Remedies) Under Section 21 of the New Zealand Bill of Rights Act 1990” (2008) 2 New Zealand Law Review 409). Such distortion of the definitional parameters of constitutional rights has not been a feature of the jurisprudence under Kenny in Ireland, though the dichotomy between O’Brien-type cases and Kenny-type cases might be viewed as an artificial one.

While on the subject of intellectual honesty I might mention at this juncture my firm view that the use of s 23 of the Criminal Procedure Act 2010 in the JC case is highly inappropriate and the acceptance of the majority that an appeal under s 23 lies to the Supreme Court on the facts of this case is, with all due respect, astonishing. It seems to me that s 34 of the Criminal Procedure Act 1967 would have provided a much clearer avenue of appeal for the DPP and would not have necessitated the linguistic acrobatics performed by the majority on s 23 in order to allow the appeal. I will say no more here on this matter as this post is already entirely too long! That, and (many) other matters, will have to wait for another day.

DPP v JC: Initial Observations on the Exclusionary Rule case