Human Rights in Ireland

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

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

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

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

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

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

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

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

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

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

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

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

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

The UK Supreme Court has found in  Cadder v Her Majesty’s Advocate that the use of material obtained in a police interview in Scotland without legal representation is in breach of Article 6(1) and 6(3)(c) of the ECHR.

Under the Criminal Procedure (Scotland) Act 1995, a police constable may detain a person whom he has reasonable grounds to suspect has committed an imprisonable offence for up to six hours, during which time he may be questioned. Although the detainee is entitled to have a solicitor informed of his detention, he has no right of access to a solicitor. Cadder had been detained and interviewed without a lawyer being present, and he made a number of admissions which were admitted at trial. He was convicted in the sheriff court in Glasgow.

The relevant ECHR case is Salduz v Turkey where the Grand Chamber of the European Court of Human Rights unanimously held that Articles 6(1) and 6(3)(c) of the ECHR were breached by virtue of Salduz not having legal advice when in police custody. Nevertheless, in a subsequent Scottish case, Her Majesty’s Advocate v McLean, the High Court of Justiciary (sitting with a bench of seven judges) held that Articles 6(1) & 6(3)(c) were not violated by the reliance on admissions made by a detainee who did not have access to a solicitor. This was predicated on the view that a fair trial was guaranteed by safeguards in the Scottish criminal process, such as the requirement that all evidence be corroborated and the absence of inference-drawing provisions. Cadder sought to appeal against his conviction, but leave to appeal was refused in Scotland based on McLean. Read Full Post »

A cement truck, emblazoned with the slogans ”Toxic Bank Anglo”, “1,000,000 on golf balls” and “500K for golf”, was driven into the gates of Leinster House on the morning of Wed 29^th September. The driver, Joe McNamara, was arrested and has been charged with criminal damage in Dublin District Court. McNamara’s act was supported by a small group of people who gathered outside Pearse St Station where he was being held.

It was reported that in court today his solicitor focused on his entitlement under Article 40.6.1.° of the Constitution to express his opinion on what he believes to have been “his unfair treatment at the hands of the banks”. While this article (and indeed Article 10 of the ECHR) protects the right to political dissent and to communicate political satire or criticism, this is not likely to serve as a defence in court. Rather than conceiving of his act as a legitimate expression of opinion Read Full Post »

Yesterday saw the coming into force of the Criminal Procedure Act 2010 (as yet unavailable online, although the Bill as passed by the Dáil may be viewed here – - and see here for Yvonne’s commentary). The Act erodes the double jeopardy rule to permit re-trial after acquittal for “relevant offences” where “new and compelling”  evidence later emerges. The Schedule to the Act provides that “relevant offences” include serious crimes like murder, manslaughter, rape, genocide,trafficking, offences against the State, organised crime, through to assault causing harm,  aggravated burglary and robbery, arson and damaging property. The DPP may make only one such application for a re-trial, and a re-trial must be in the public interest.  The DPP may also make an application for re-trial where the previous acquittal was tainted by the commission of an offence against the administration of justice. Furthermore, the DPP or AG may appeal to the Supreme Court on a point of law regarding a direction of the Court of Criminal Appeal or the exclusion of evidence.

The Bill was first introduced in 2008, and follows Read Full Post »

This morning’s release of convicted rapist Larry Murphy has prompted heated debate about remission of sentences, and also about the monitoring of sex offenders after release from prison. Electronic monitoring or tagging is used in other jurisdictions such as England and Wales in schemes of early release from prison, as a condition of bail or a term in a community service order. However, what has been called for in Ireland is tagging as an  addition to a prison sentence.

The Minister for Justice Dermot Ahern has conceded that the Criminal Justice Act 2006 does not provide for electronic tagging which would allow Murphy’s movements to be tracked or indeed limited upon his release. Section 101 of the Criminal Justice Act 2006 allows a restriction on movement order to be imposed on an adult convicted of a public order offence or a non-fatal offence against the person as an alternative to a sentence. The court must have considered that imprisonment for 3 months or more was otherwise appropriate. Such an order provides the places where the offender may and may not be present, and shall not last for more than 6 months. Moreover, a restriction on movement order may require electronic monitoring. Where electronic monitoring is to occur, the order must detail an “authorised person” who is responsible for monitoring the offender’s compliance. Non-compliance may result in the  imposition of another such order, or in the case being dealt with in any other permissible way. Read Full Post »