Mohammed Younis Succeeds in the Supreme Court

Younis PicIn August 2012, the Irish High Court ruled that as Mohammad Younis was in an irregular migration situation, he could not benefit from protections under employment law (see also Dr Darius Whelan‘s excellent analysis of the High Court decision here). Today (25 June 2015), the Supreme Court set aside the decision of the High Court. The decision was set aside, not on any explicit repudiation of the High Court’s analysis of employment law, employment contracts and irregular migrant workers, but on the basis of strict adherence to the role of a court in judicial review proceedings. Rather than focus on the human rights arguments pleaded before it, the Supreme Court simply considered the jurisdiction of the High Court to make its August 2012 decision. The Rights Commissioner made two monetary awards to to Mr. Younis in March 2011.

For breaches by Mr Hussein (Mr Younis’ employer) of the Organisation of Working Time Act 1997, the Rights Commissioner awarded the sum of €5,000 to Mr. Younis. For breaches of minimum wage legislation over a number of years, Mr. Younis was awarded €86,134.42. As Mr Hussein did not appeal this decision, but did not pay Mr. Younis compensation. the Labour Court issued two determinations that these sums be paid in September 2011.

In setting aside the decision of the High Court, Murray J. in the Supreme Court noted: Continue reading “Mohammed Younis Succeeds in the Supreme Court”

Mohammed Younis Succeeds in the Supreme Court

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

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

The Irish asylum system is in need of radical reform

Human Rights in Ireland welcomes this guest post from Dr Ciara Smyth. Ciara is a lecturer in the School of Law, NUI Galway and a member of the board of the Irish Refugee Council.  The opinions expressed here are personal.

There have been four damning indictments of the Irish asylum system in as many months.

The first was a report by the Irish Refugee Council on the lives of asylum-seeking children in direct provision.  Direct provision is the system of accommodation and subsistence provided to asylum seekers.  Owing to delays in the asylum process, asylum seekers can live in direct provision for many years, or an entire childhood in the case of some children.

Accommodation ranges from hostels to mobile homes.  Conditions are often overcrowded with family members sharing a room or a couple of rooms, little space for recreation and little or no facilities for children.  Asylum seekers are generally not allowed to cook for themselves but are provided with their meals by the private service providers who are contracted to run the hostels.  The meals are frequently lacking in basic nutritional content.

Asylum seekers are forced to spend their meagre allowances – €19.10 a week for adults and €9.60 for children, a rate that has not changed since it was introduced over 12 years ago – on supplementing their diet.  There is little left over for any kind of social activity and, not being allowed to work, asylum seekers are effectively cut off from mainstream Irish society.  Although asylum-seeking children do attend school, which offers some possibilities for integration, their complete lack of disposable income prevents them from participating in the broader social life of the local community.

Earlier this year the European Court of Human Rights found that the conditions in which an asylum-seeking family with small children were detained constituted a violation by France of Articles 3 and 8 of the European Convention on Human Rights relating, respectively, to the prohibition of inhuman or degrading treatment and the right to family life.  The family were held in a ‘family zone’ of a detention centre with no Continue reading “The Irish asylum system is in need of radical reform”

The Irish asylum system is in need of radical reform

Legal Analysis of the Children's Referendum: Article 42A.2.1 Value Pluralism and the Children’s Rights Amendment

Dr Eoin Daly is a lecturer in law in the Faculty of Law, University College Dublin

One of the concerns raised by the opponents of the proposed amendment is that it might make it easier for the State to override the decisions of parents thought to be foolish, ill-judged, or bad for children as determined by expert opinion. For example, obscure or peripheral ways of life, based on moral and religious commitments, might be thought to be damaging to child welfare. Eccentric pedagogies or lifestyle choices – perhaps Rousseau’s Emile ­– might be deemed objectively harmful by the best available scientific evidence. In this lens, the amendment, under the pretext of protecting child welfare, might inadvertently undermine value pluralism in society – the freedom of different communities and parents to exercise different beliefs and conceptions of good and to pursue this pedagogically, in their children’s education and upbringing. We might imagine the Amish and their early withdrawal from formal schooling, or religious parents insisting that their children not receive certain important secular instruction, or children prompted to participate in physically arduous religious rituals or pilgrimages. Beyond religion, one might think of Bertrand Russell’s obscure, scandalous, experimental pedagogy.  Surely this value pluralism in an important, if limited social goal, linked to human rights – it is legitimate to argue that diverse beliefs and ways of life should be given a broad berth by the State for the sake of pluralism, that is should not always impose what is objectively “best”   – even in the case of child welfare. Freedom of religion and belief, the exercise and manifestation of conscientious commitments or conceptions of the good life more generally, should not be stifled by dubious expertist or scientific opinion as to notions of children’s “best interests”, which might in any event be transient and contestable. A broader philosophical argument – which I do not intend to address – is that value pluralism, in protecting the exercise and integrity of different ways of life, might in fact have a necessary (and perhaps legitimate) cost to child welfare. In any event, it is surely important that those thought to be “quacks” or eccentrics by the social mainstream – perhaps those who might reject vaccines, for example – also have their human rights accounted for.

Although I believe this concern based on value pluralism in the context of the proposed amendment is ultimately misplaced, it is worth taking it at face value. It is true, I think, that the amendment does in fact alter the “threshold” for State intervention in issues concerning child safety and welfare.

Article 42 A.2.1 provides:

In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child. (emphasis added)

On the face of things, this does make it easier Continue reading “Legal Analysis of the Children's Referendum: Article 42A.2.1 Value Pluralism and the Children’s Rights Amendment”

Legal Analysis of the Children's Referendum: Article 42A.2.1 Value Pluralism and the Children’s Rights Amendment

Law Society of Ireland & IHRC Annual Human Rights Conference

This October, the Irish Human Rights Commission (IHRC) and the Law Society of Ireland will host the 10th Annual Human Rights Conference, Promoting and Protecting Human Rights in Ireland: The Role of the Irish Constitution and European Law.  The conference will examine the impact of the Irish Constitution, the European Convention on Human Rights and EU law in advancing human rights protection in Ireland. The role of Irish courts, quasi-judicial and administrative bodies will also be considered. When: Saturday, 13th October, 2012, 10:00- 14:30pm – Where: The Presidents’ Hall, Law Society of Ireland, Blackhall Place, Dublin 7 – Fee: There is no charge for this event. Booking: While attendance at the Conference is free, it is important to book your place as space is limited, by emailing:

Speakers include:

  • Mr. Justice William McKechnie, Supreme Court,
  • Ms. Justice Mary Laffoy, High Court,
  • Dr. Síofra O’Leary, Court of Justice of the EU and Visiting Professor at the College of Europe,
  • Mr. Michael O’Boyle, Deputy Registrar, European Court of Human Rights,
  • Dr. Hannes Krämer, Legal Service, European Commission,
  • Ms. Emily O’Reilly, Ombudsman, Ms. Emily Logan, Ombudsman for Children,
  • Ms. Barbara Nolan, Head of EC Representation in Ireland,
  • Mr. Gerry Durcan SC,
  • Dr. Dympna Glendenning BL,
  • Mr. Mark Lynam BL,
  • Mr. James MacGuill, MacGuill Solicitors,
  • Mr. Des Hogan, IHRC,
  • Ms. Sinead Lucey, IHRC,
  • Ms. Anna Austin, European Court of Human Rights,
  • Mr. Patrick Dillon-Malone BL,
  • Dr. Suzanne Kingston BL, UCD,
  • Ms. Síle Larkin, the Equality Tribunal and
  • Mr. Kieran Fitzgerald, the Garda Síochána Ombudsman Commission.

Law Society of Ireland & IHRC Annual Human Rights Conference

A footnote on the Julian Assange Case

Julian Assange (pictured left), founder of Wikileaks, friend of open government, enemy of secrecy, and suspected rapist, has hardly been out of the newspapers this week. News that, following the defeat of his legal efforts to resist extradition to Sweden on the basis of a European Arrest Warrant, Assange had sequestered himself in Ecuador’s UK embassy and sought asylum (and was this week granted) provided a climactic twist to this legal battle. Climactic, but hardly unexpected for this notorious showman, or indeed, from Ecuador, a country whose government continues to bristle with resentment at the US Ambassador’s characterisation of them in the diplomatic cables exposed by Wikileaks. Continue reading “A footnote on the Julian Assange Case”

A footnote on the Julian Assange Case

Damache and Constitutional Retrospectivity

In February of this year a most significant decision was handed down by the Supreme Court in the area of criminal procedure. This decision, Damache v DPP [2012] IESC 11 (discussed here), found that s.29(1) of the Offences Against the State Act 1939, which had been in operation for the past 36 years having been inserted by s.5 of the Criminal Law Act 1976, was contrary to the Constitution. The provision allowed for a member of the Garda Síochana not below the rank of superintendent, to issue a search warrant in certain specified circumstances. It did not, however, specify that such warrants should only be issued by members of appropriate rank who were independent of the relevant investigation. It was with this omission that the Supreme Court found fault. Indeed, this omission, and the Garda practice of having superintendents who were directly involved in an investigation issue warrants under s.29(1) had previously been criticised by Justice Morris in the “Burnfoot Module” of the Morris Tribunal Report (2008). In para 6.22 of that Module the learned Chairperson of the Tribunal observed that

The danger exists that a warrant would be issued automatically and without proper investigation of the matter by the superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a section 29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself.

The Supreme Court in Damache held that the issuing of search warrants is an administrative act but it must be exercised judicially. Accordingly, independence is necessary in the exercise of the act. This, along with the importance of the constitutional protection of the inviolability of the dwelling, under Art 40.5, led the Court to find that s.29(1) was repugnant to the Constitution given that it did not insist on independence in the garda issuing of the relevant search warrants.

An obvious question which arose in the aftermath of the Damache decision is what impact this finding would have on other previously-decided cases. Is a finding of unconstitutionality retrospective or not? Continue reading “Damache and Constitutional Retrospectivity”

Damache and Constitutional Retrospectivity