Many of the provisions of the Criminal Law (Insanity) Act, 006 were crafted specifically with the requirements of Article the European Convention in mind

TABLE OF CONTENTS

TABLE OF CONTENTS 1

1. Introduction 2

How is the Convention making its presence felt to a practitioner? 2

What are the implications for practitioners of the ECHRA 2003? 3

2. Article 5(4) of the Convention and the Criminal Law (Insanity) Act, 2006 5

Where was the Constitution as regards these detainees? 6

Convention standards as regards detention of persons of ‘unsound mind’ 9

Differences between the Constitutional and Convention standards 11

The key features of the 1996 Act 12

(a) Ensuring there is a necessity for detention before detention is imposed 12

(b) The 1996 Act and the principle of periodic review 16

( c ) The 1996 Act and the requirement of expert evidence 17

(d) Section 4(6) 1996 Act and short-term detention for assessment 17

(e) Other difficulties 18

3. The Convention, Preventive Detention and the Mandatory Life Sentence for Murder in Ireland 20

(a) The Convention authorities 21

(b) Summary of Principles from UK/ECHR cases on Life Sentences 33

( c) Application to Ireland 34

4. The Military Justice System 38

(a) When does Article 6 apply to military and/or prison disciplinary proceedings? 39

(b) What is the importance of the application of Article 6 to military and prison disciplinary proceedings? 43

(c ) The Defence (Amendment) Act, 2007 46

( d ) How did the Military Justice System escape the attention of the Constitution? 49

5. A short word about issues raised in my colleagues’ papers 50

6. Conclusion 52

1. Introduction

How is the Convention making its presence felt to a practitioner?

It is still early days to assess the full impact on barristers of the entry into force of the ECHRA 2003. In anticipation of this paper, I spoke to a number of criminal barrister colleagues to find out how it was affecting their own practices. For many barristers running criminal trials on a weekly basis, little appears to have changed and the arguments arising in the normal course are still the usual procedural and evidential arguments based on domestic law and the Constitution familiar to them for many years. This is perhaps not surprising when one considers that Article 38.1 had resulted over the years in a considerable degree of ‘constitutionalisation’ of criminal justice procedures. Those practitioners to whom I spoke who had employed or encountered Convention arguments in the course of criminal trials, appeared to have done so primarily in the context of ‘membership’ trials in the Special Criminal Court. Again, this is perhaps also not surprising, as such trials feature special evidential provisions such the drawing of inferences from silence, or from failure to mention a fact in one’s defence, and the belief evidence of the Chief Superintendent. A series of cases from the Special Criminal Court appealed to the Court of Criminal Appeal concerning the ‘belief’ evidence of the Chief Superintendent, and one of these became the subject of a Supreme Court decision (DPP v. Martin Kelly). This will be the subject of a more detailed treatment by Michael Farrell in his paper, but it may be said for present purposes that the Supreme Court held that the requirement of a fair trial had not been violated in the circumstances of that particular case, having had regard to both the Constitutional and Convention authorities.

My own experience reflects that of my colleagues described above as regards the citing of Convention authorities in criminal trials. Indeed, to the extent that I have encountered Convention-based issues, it has been mostly by way of judicial review or other form of plenary challenge to legislation in the High Court; or by way of advisory work prior to the introduction of legislation. In the High Court, where formerly the Constitution was the primary or sole basis for the legislative challenge, legislation now tends to be challenged on a twin-track basis i.e. on both Constitutional and Convention grounds. A good example of such litigation includes the forthcoming challenges to the mandatory life sentences, which are discussed in further detail below. It is also true to say that the State authorities have been careful to anticipate to obvious areas of Convention challenge by enacting legislation before such proceedings were brought in the courts. The Criminal Law (Insanity) Act, 2007 and the Defence (Amendment) Act, 2007 are clear examples of such legislation, and are also discussed below.
I have chosen these three particular topics for this paper not only because I have had direct experience of them in my practice, but also because they are, perhaps, slightly less well recognized areas of Convention impact than other more well-known areas, such as the right to silence, equality of arms, disclosure of prosecution material, Article 2 inquiries and so on.

What are the implications for practitioners of the ECHRA 2003?

For obvious reasons, comparisons are often drawn with the United Kingdom in terms of the potential impact of the Convention on Irish law. However, there are of course significant differences. It goes without saying that the presence of the Constitution in our legal order is a significant difference from the UK legal landscape. Any Convention-based argument in the Irish courts will find itself embedded in a complex matrix of common or statute law, Constitutional law and Convention law, each at its own particular stage of development.

Of course, another key factor is the particular prism through which European Convention law is reflected into Irish law, namely the ECHRA, 2003 itself. The limitations of this legislation, as compared with the UK 1998 Act, have been discussed elsewhere. As a practical matter and as a practitioner, one’s immediate concern is to examine whether there is correspondence between the arguments being made in a particular case and the precise reliefs available under that Act. As is well known, courts are excluded from the definition of ‘organ of State’; the Act cannot be directly used to challenge Constitutional provisions; and Declarations of Incompatibility are limited in their scope and do not apply, for example, to Executive decisions. As has been pointed out by Gerard Hogan SC elsewhere (ECHR and Irish Law, Kilkelly, 2003), there may well be a temptation on the part of the courts to employ the declaration of unconstitutionality more readily given the limitations of a declaration of incompatibility; but of course this poses a problem in the case where a situation may breach Convention norms but not Constitutional norms, infrequent though this may be.
For a criminal practitioner, therefore, considerable challenges lie ahead. This is an era of considerable reform and proposed reform in the criminal justice system, and we already busy trying to keep on our toes regarding the considerable volume of new legislation, not least of which are the Criminal Justice Acts 2006 and 2007. At the same time, because of the ECHRA 2003, the legal order has now become more complex, from an essentially two-tiered structure, to a three-pillared structure, with relationships between each pillar to be assessed in any given case and an even broader range of authorities to be chosen from. Further, in High Court proceedings, the range of reliefs has become greater, and it will be some time before each of the new reliefs settles into a well-worn groove in our minds, both in terms of when it applies and how it relates to existing reliefs.