Graham Dwyer and Violence Against Women

DwyerJennifer O’Connell wrote for the Irish Times on Saturday that the Dwyer trial has forced light onto the darkest part of Irish society. More than anything, I hope it forces us to confront the true nature of violence against women in Ireland.

This trial was about a misogynist’s criminal desire to control, dominate, harm and kill a woman. Continue reading “Graham Dwyer and Violence Against Women”

Graham Dwyer and Violence Against Women

Call for Inquiry into policing of Corrib

shell

On HRinI we’ve blogged on numerous occasions about the ongoing campaign in the West of Ireland to challenge Shell’s building of an on-shore refinery (see for instance here, here and here ) with a particular emphasis on the policing of that dispute. Many of those involved in the protests have come together to call for an inquiry into the policing of the project, the protests and the dispute. As part of that call those involved have drafted sample terms of reference for such an inquiry, which is important in highlighting the scale and range of the concerns which exist. What follows is a reproduction of these terms of reference.  Continue reading “Call for Inquiry into policing of Corrib”

Call for Inquiry into policing of Corrib

Garda Taping of Telephone Calls: A Worst-Case Scenario Consideration

It has come to light in the course of recent days that there has been a practice in a “large number” of garda (police) stations allowing for the recording of telephone calls, both incoming to and outgoing from the station. Information is emerging in a piecemeal fashion but it seems that this may have been going on, in one form or another (while “#gardatapes” has taken off on Twitter the modern incarnation of the practice seems to have been digitised), from the 1980s up until November 2013. It emerged yesterday, in the course of a current prosecution in the Special Criminal Court, that recording took place on the telephones of 23 divisional garda stations as well as at Garda Headquarters and Harcourt Street in Dublin. The matter is so serious that the government is setting up a statutory Commission of Investigation, to be chaired by a senior current or retired judge. The Irish Times has a useful section on the emerging crisis here.

The revelations are shocking and the potential impact on criminal cases both past and present gives rise to grave concern. This post seeks to consider the potential impact on previously decided cases if calls between suspects held in garda custody and their solicitors were subject to the recording. As such, this is a worst-case scenario consideration of the emerging crisis. The substance or content of the recorded calls is yet to be clarified. It is possible that calls between suspects and solicitors were not included but this, on a practical basis, seems unlikely. The current indication seems to be that all calls in certain stations were recorded, regardless of the parties involved, and, indeed, without the consent or knowledge of such parties. Thus, it seems likely that calls between suspects and solicitors were indeed recorded. This would amount, in and of itself, to a breach of the suspect’s rights to privacy and to private access to pre-trial legal advice. It was clearly established in People (D.P.P.) v Finnegan (unreported, Court of Criminal Appeal, July 15, 1997) that the constitutionally protected right to pre-trial legal advice (previously established in People (D.P.P.) v Healy [1990] 2 I.R. 73 and more recently considered and clarified in D.P.P. v Gormley and White [2014] IESC 17) included the right to consult privately with one’s retained solicitor. In Finnegan, Barrington J in the Court of Criminal Appeal stated clearly (at p.42) in relation to a suspect telephoning his solicitor that “…once the telephone call is allowed, the detainee has a constitutional right to make that call in private.” Secret recording of such a call by the Garda Síochána then would clearly amount to a breach of constitutional rights. What consequences are likely to flow from such an event? There are a number of possible scenarios, not limited to the following:

1)      The telephone conversation was recorded but nobody ever listened to it and the suspect was convicted at trial.

2)      The telephone conversation was recorded and a garda listened to it but nothing of interest arose and the suspect was convicted at trial.

3)      The telephone conversation was recorded, a garda listened to it, the content of the conversation assisted the gardaí in furthering the investigation and led to other evidence against the suspect which was presented at trial resulting in conviction.

4)      The telephone conversation was recorded, a garda listened to it, the content of the conversation assisted the gardaí in furthering the investigation and led to other evidence against the suspect which was not presented at trial as the suspect pleaded guilty because of the existence of such evidence.

In each of these scenarios there has been a breach of constitutional rights and indeed a breach of the law relating to the interception of communications. Does each such case now need to be revisited and retried? Does the unconstitutionality mean that these cases ought not to have proceeded originally or that evidence central to the conviction ought not to have been admitted on the basis of the exclusionary rule?

The exclusionary rule, strict as it is, usually requires the existence of a causative link between the breach of rights and the impugned evidence. In the case of O’Brien v D.P.P. [2005] 2 I.R. 206, for example, where an initial breach of the right to legal advice had occurred and was later cured by the arrival of a solicitor and consultation with the suspect, statements made at garda interview during the breach were excluded from evidence while those provided at a later interview were admitted as there was said to be no ongoing causative link between the earlier breach of rights and the evidence obtained in the course of the later interview. So, if it can be shown that Scenario 3 has occurred, there would be a clear causative link between the breach of the rights to privacy and legal advice and the obtained evidence. If this had been known at the time of the original case the evidence ought to have been excluded and therefore the conviction should be deemed unsafe and a retrial ordered. Of course it may be the case that no successful retrial is possible in the absence of the relevant evidence.

But what of Scenarios 1 and 2? There is not a specific causative link between the breach of rights and any evidence used at trial, but there has still been a breach of rights. It is possible to view the law as still requiring the quashing of convictions and return for retrial in those scenarios. If the view is taken that the covert recording of telephone conversations between a suspect and his or her solicitor in and of itself amounted to such a breach of rights that the suspect was then held in unlawful custody, then anything that occurred from the point of the recorded call onwards, including the trial itself, is tainted by unconstitutionality. This, in fact, was alluded to in Finnegan, where Barrington J in the Court of Criminal Appeal stated (at p.42) that “…there was a breach of Mr Finnegan’s constitutional rights when he was denied private access by telephone to his solicitor. From that point on he was in unlawful detention. No evidence was adduced to show that this unlawful detention came to an end at any particular time …” It is possible then that even if no-one ever listened to a recording of a telephone conversation between a suspect and a solicitor, a breach of constitutional rights still occurred which would deem the entire process from that point on unlawful.

And what of Scenario 4, where no trial has occurred but a suspect pleaded guilty on the basis of evidence which could now be linked back to the content of an unconstitutionally recorded telephone call? Could such a case be revisited? Usually guilty pleas cannot be revisited, but, to be frank, there is no precedent for a mess as potentially monumental as this.

In recent times the Supreme Court has examined the retrospective effect of decisions of unconstitutionality on previously-decided cases and has ruled, on pragmatic grounds as much as any other, that findings of unconstitutionality have only limited effect on previously-decided cases. In  A v Governor of Arbour Hill Prison [2006] 4 I.R. 88; [2006] IESC 45, for example, Murray CJ stated that “[t]he Common Law has never conceived as consistent with any ordered administration of justice that previously decided and finally determined cases could necessarily be set aside or re-opened in the light of a new precedent…” This dicta was also influential in the cases that followed the finding of unconstitutionality in Damache v DPP [2012] IESC 11, including People (DPP) v Cunningham [2012] IECCA 64, People (DPP) v Kavanagh [2012] IECCA 65, and People (DPP) v Barry O’Brien [2012] IECCA 68 (see my discussion of these cases here). In People (DPP) v Cunningham [2012] IECCA 64, Hardiman J., stated that “…the first duty of the Courts is to provide redress to those whose constitutional and legal rights have been infringed” but further noted that “there may also be circumstances where this is simply not feasible or practicable”. He then listed a number of examples of crises which might have had “catastrophic effects” had a finding of unconstitutionality allowed for previously-decided relevant cases to be revisited:

 “The Courts could not … have ordered the re-running of past Dáil elections (the decision in McMahon v. Attorney General [1972] I.R. 69 with regard to the inadvertent breaching of the secrecy of the ballot in Article 16 notwithstanding) or ordered the re-payment of income tax on a vast scale in the aftermath of Murphy [Murphy v. Attorney General [1982] I.R. 241]. Nor could the Courts have been expected to re-open previous convictions on a vast scale in the wake of the finding of the Supreme Court in de Búrca v. Attorney General [1976] I.R. 38 that the pre-existing jury system was unconstitutional… As O’Higgins C.J. put it in de Búrca ([1976] I.R. at 63), the “overriding requirements of an ordered society” would preclude such a consequence.”

However, the contexts are not fully comparable. The circumstances arising in the aftermath of C.C. v Ireland [2006] 4 I.R. 1; [2006] IESC 33 (the precursor to the A case) and Damache, and the examples recounted by Hardiman J, all related to legal findings of unconstitutionality and their retrospective effect whereas the present crisis relates to factual unconstitutionality, i.e. there was in fact a breach of constitutional rights of which the defence was unaware. This places the matter in the line of miscarriage of justice cases where a convicted person presents a new or newly-discovered fact which shows that a conviction is unsafe, rather than in a situation involving a subsequent declaration of unconstitutionality.

All of the foregoing relates to the impact on past convictions if it is found that calls between suspects and solicitors were recorded. However, even if somehow, though it seems unlikely, such calls were differentiated and not recorded, taped calls between gardaí and witnesses of which the defence were unaware in a given case could also lead to the overturning of convictions and the need for retrial. There is a duty on the prosecution to furnish the defence with all material which might be relevant, whether inculpatory or exculpatory: failure to inform the defence of the existence of certain recordings would be a breach of that duty, not to mention the failure to obtain consent from the parties to the conversation.

The fallout from the current revelations is potentially catastrophic, to borrow the phrase from Hardiman J. in Cunningham. It is to be hoped that the worst-case scenario does not come true but already solicitors are retracing their steps, re-examining their files and considering the position of their convicted clients. The proposed Commission of Investigation ought to be established with much haste and should be given all necessary resources to enable a speedy report. The longer this crisis goes on without resolution the worse for the criminal justice system in this country.

 

 

Garda Taping of Telephone Calls: A Worst-Case Scenario Consideration

What would a police authority/board do?

callinanIn the midst of the ongoing row about the withdrawal of comments, it is being reported today that the Cabinet may discuss the idea of a police board or authority at their meeting tomorrow. This idea is not a new one. Fine Gael and Labour made such a suggestion in 2006, as did the ICCL. It’s something I’ve argued for repeatedly in my work. There are examples in operation in Northern Ireland and in England and Wales. But what exactly what it involve and what change would it bring to the structures of police accountability in Ireland? Continue reading “What would a police authority/board do?”

What would a police authority/board do?

Law on…Police Accountability: Seminar Report

The Socio-Legal Research Centre, DCU, held the fourth in its annual “Law on…” seminar series on Wednesday of last week. Following previous explorations of the Law on… Film, Celebrity, and Risk, this year’s seminar focused on the Law on… Police Accountability. There were three speakers: Damien McCarthy, Chairman of the Legal Assistance Scheme and former President of the Garda Representative Association (GRA), Kieran Fitzgerald, Commissioner of the Garda Síóchána Ombudsman Commission (GSOC), and Dr Barry Vaughan, National Economic and Social Council (NESC).

What follows is a brief outline of the presentations delivered by each speaker.

Continue reading “Law on…Police Accountability: Seminar Report”

Law on…Police Accountability: Seminar Report

Human Rights in the Northern Ireland Elections

On 5 May coming elections will be held for the Northern Ireland Assembly. This is quite historic from the perspective that this is the first full sitting of the Assembly. This blog tried to highlight in great detail to highlight the human rights issues in the recent Irish elections. Today the Committee on the Administration of Justice (CAJ) launches its Human Rights Manifesto for the forthcoming election. We welcome this guest post from Director Mike Ritchie which outlines and explains the manifesto.

The Committee on the Administration of Justice (CAJ) has issued a ‘Human Rights Manifesto’ in the run up to the Northern Ireland Assembly elections in May.

The Manifesto asks the parties to commit to the following: Continue reading “Human Rights in the Northern Ireland Elections”

Human Rights in the Northern Ireland Elections

The Policing of Corrib Exposed

It’s effectively gone viral on the internet that last Thursday, members of an Garda Síochána, while discussing the arrest of a protestor joked about getting immigration on her and raping her. It beggars belief. Excerpts from the transcript have been posted on the Irish Times and audio clips are available here. “Hold it, give me your name and address there or I’ll rape you.”

These guards have joked about immigration, rape and the protestors involved in the dispute. Sure, police organisations are pretty macho places, and lots of research has been done on what’s called cop canteen culture – how police officers speak to each other in the canteen. It’s all about banter, bluster and bravado Continue reading “The Policing of Corrib Exposed”

The Policing of Corrib Exposed

Blog Carnival: Policing in Ireland

I’ve written previously about the Corrib Gas controversy (here, here and here) and more generally about policing in Ireland (here). To my mind, the two are inextricably linked. The actions of civil disobedients in North Mayo should not be judged one way or the other without consideration of the nature of their interactions with an Garda Síochána. A number of incidents illustrate this point and footage of each has been seen by the author.

On one occasion a digger was operating just off the coast, preparing for the laying of the pipe at the point of landfall by digging the necessary lines. Two activists entered the water in wetsuits to disrupt this work. A number of gardaí watched from a close distance in a small boat. Continue reading “Blog Carnival: Policing in Ireland”

Blog Carnival: Policing in Ireland

Garda Retirement, Recruitment and Training Plans

The public sector hiring freeze is to be temporarily lifted in order to allow for the recruitment of approximately 100 new trainees to An Garda Síochána, the Irish police force. Advertisements were placed in the media last week and information is also available on www.publicjobs.ie This recruitment is necessary in order to keep the numbers of gardaí at what the Minister for Justice and Law Reform (which is his new title as of June 1st 2010), Dermot Ahern, described as “approved levels”. Senior gardaí, along with other senior employees within the public sector, have recently retired, and continue to retire, in significant numbers in order to avoid changes to their pension entitlements which are forthcoming. In 2009, for example, roughly 800 members of An Garda Síochána took early retirement.

This mass exodus from the upper ranks of An Garda Síochána is cause for some concern. While another exception to the current embargo on public sector promotions has been allowed within An Garda Síochána to fill the senior positions vacated, it is still the case that with the retiring senior members of the force goes a wealth of experience and intelligence which could never be clearly expressed or captured within the Pulse information system or directly passed on to more junior members. The worry is that the government’s interest in lowering the public sector pay bill may impact negatively on its efforts to control crime. Continue reading “Garda Retirement, Recruitment and Training Plans”

Garda Retirement, Recruitment and Training Plans

Liz Campbell on Gun Crime

Liz Campbell’s excellent article ‘Responding to Gun Crime in Ireland’ which we flagged up here has received extensive coverage in the news media today. An article in today’s Irish Times describes Liz’s thought-provoking research here.

The study by Dr Liz Campbell of Aberdeen University concludes that the Government’s emphasis on tougher laws and longer sentences for those involved in gun crime is misguided and ineffective. She believes more gardaí are needed on the streets, particularly in gun crime blackspots in parts of Dublin and Limerick.Dr Campbell also argues education is key to keeping at-risk young men away from drugs and taking them out of poverty…. Dr Campbell … said the Government’s response to gun crime – focused mainly on harsher sentencing and the erosion of suspects’ rights while under arrest – represented “an unduly narrow perspective”.Longer sentencing assumed armed criminals considered the penalties and saw harsher penalties as a deterrent, neither of which was true. The tougher sentencing approach was also undermined by the poor conviction rate for gun killings here.

You can hear Liz discuss her research in detail on the Scott Williams show on Dublin’s Q102 (from 16.40) here and you can hear Fine Gael Limerick politician Michael Noonan’s response to the reports of her research here.

Liz Campbell on Gun Crime