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

Special Edition of the Irish Criminal Law Journal on Sexual Offences.

We are delighted to welcome this guest post by Dr. Susan Leahy and Dr. Margaret Fitzgerald-O’Reilly.

Sexual offences and the law which regulates sexual violence are a perennial topic of discussion amongst academics and criminal justice stakeholders who work in this area such as legal practitioners, members of the judiciary and those who represent the interests of survivors of sexual violence.  Current areas of controversy in the area of sexual offences include concerns about sentencing, particularly in light of the recent sentences handed down in the trials of Anthony Lyons  and Patrick O’Brien. Other causes of concern have been highlighted by the authors of this post previously on this blog. Dr. Margaret Fitzgerald-O’Reilly has recently written about the need for a reconsideration of the rules relating to the disclosure of information about sex offenders. Dr. Susan Leahy has also highlighted the problems relating to the substantive and procedural rules in this area and outlined reforms which it is hoped will be implemented in the near future. In light of all of these areas of concern, together with the promise of forthcoming Sexual Offences Bill, we are pleased to announce that the current edition the Irish Criminal Law Journal (Issue 4 of 2013) is a special edition which focuses on sexual offences. The special edition is edited by Dr. Susan Leahy and Dr. Margaret Fitzgerald-O’Reilly and contains five contributions from individuals who either research or work in the area of sexual offences and it is hoped it will contribute to the debate regarding change in this complex area of the law. Continue reading “Special Edition of the Irish Criminal Law Journal on Sexual Offences.”

Special Edition of the Irish Criminal Law Journal on Sexual Offences.

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?

Transforming Legal Aid in the UK

We are delighted to welcome this guest post from Lucy Welsh. Lucy is a criminal defence solicitor in Canterbury, England. She is also currently completing her PhD on the issue of legal aid in the criminal justice system and teaches criminal law at the University of Kent. 

The system of legal aid in criminal proceedings exists to avoid defendants being presented as the victim of persecution by an overbearing state. The adversarial process assumes that the parties can access broadly comparable resources. Art. 6 of the European Convention on Human Rights protects this position by guaranteeing access to legal advice in criminal proceedings (to be state funded if necessary), by stating that advice must be adequate and that there must be sufficient resources for a defendant to be able to prepare his/her case.  In the UK, however, the government has focussed on value for money in administering this system, ignoring political debate about what actually constitutes value in specific circumstances. It is against this background that the Ministry of Justice recently released its consultation paper on Price Competitive Tendering (PCT). Continue reading “Transforming Legal Aid in the UK”

Transforming Legal Aid in the UK

Police Bail in the UK

In the midst of the hacking scandal you may have noticed that both Andy Coulson and Rebekah Brooks have both been arrested and released on police bail. Just weeks prior to these arrests quite a legal storm brewed in relation to police bail.

Police bail is a system whereby a person who has been arrested by the police, but usually not charged, is released from police custody on the making of certain undertakings that they will return to police custody at a stated time. Coulson, for instance, was released on 8 July until October. Continue reading “Police Bail in the UK”

Police Bail in the UK

Hanna on the Death Penalty and the Texas Defender Service

We are delighted to welcome this guest post from Dannie Hanna, a graduate of NUI Galway and Cambridge, who worked with the Texas Defender Service which represents people on death row during August-September 2010.

In painting her vision of hope, as only she could, Emily Dickinson described hope as “the thing with feathers… [that] never stops at all… That kept so many warm”. For the 3,254 men and women currently sitting on death row in the United States, Dickinson’s words must possess an added element of importance.

Continue reading “Hanna on the Death Penalty and the Texas Defender Service”

Hanna on the Death Penalty and the Texas Defender Service

"Romeo and Juliet": Gender discrimination law challenge rejected

The High Court has today rejected a challenge to the Criminal Law (Sexual Offences) Act, 2006 which was based on a claim of gender discrimination. The case involved a young man, now aged 18, who had sexual intercourse with a girl of 14 when he himself was 15.

The legislation in question provides for the offences of “defilement of a child under 15 years of age” (s. 2) and “defilement of a child under 17 years of age” (s. 3). Under both of these provisions it is an offence to engage in a sexual act with a child under the relevant age. However, s. 5 of the 2006 Act states that

A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.

The claim before  the High Court was that the 2006 Act involved old-fashioned gender discrimination, which had no legitimate justification. Continue reading “"Romeo and Juliet": Gender discrimination law challenge rejected”

"Romeo and Juliet": Gender discrimination law challenge rejected

New Irish Criminology Research Network Blog

The Irish Criminology Research Network has just announced the launch of its new blog.

Established in 2009, the Network comprises of researchers, students, academics and practitioners with an interest in criminology and the Irish criminal justice system. Members are from a range of academic institutions and agencies north and south of Ireland.

Members of the Network research and write about crime, criminal justice and criminology in Ireland and further afield. The blog aims to discuss issues of critical concern.

For more details, please contact Nicola Carr at n.carr@qub.ac.uk

New Irish Criminology Research Network Blog

Progress on ending imprisonment for fine-defaulting

The Fines Bill has been passed by the Dáil and is now before the Seanad. I wrote about the provisions of the Bill here.

As this piece in the Irish Times argues, it is to be hoped that the judiciary implement the finalised Act in full. District Court sentencing is something about which we know rather little, but the proliferation of short sentence prisoners in Irish jails tends to suggest that minor offences do attract custodial sentences on a not-infrequent basis. Those interested in penal reform in Ireland will hope that this signal from the Oireachtas will lead to a reassessment amongst District Court judges of their sentencing practice and prompt further legislative activity to promote genuine alternatives to custody.

One entirely unnecessary stick to beat the prison system with is about to be removed. There remains more to be done. Ireland gives out some of the highest numbers of short sentences in Europe. Dealing with this category of prisoners within the community makes obvious financial and social sense. Ending imprisonment for fine default is a small step in the right direction.

Progress on ending imprisonment for fine-defaulting