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

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

If Article 6 applies to an area of decision-making, the implications are far-reaching, because Article 6 demands rigorous standards of procedural fairness identified with criminal trials. Of particular importance in the military context has been the requirement of ‘impartiality and independence’ of the decision-maker, which, as one can imagine, tends to conflict with the hierarchical systems operating within the command structure of the military law system in the UK (and indeed in Ireland).

In a series of cases, the Court has subjected to careful scrutiny the precise arrangements concerning the administration of justice in the army, the navy and the air force. To summarise the principles emerging from these cases, it may be said that the Court has regard to a number of factors in assessing whether a body or person is ‘impartial or independent’ for the purpose of Article 6 as follows:
(i) the manner of the person’s appointment;

(ii) their term of office;

(iii) the existence of any guarantees against outside pressures (e.g. legal qualifications; the presence of judicial members on a panel with non-judicial members; whether the decisions is subject to confirmation or review; and whether there are criminal offences of attempting to interfere with the decision-makers);

(iv) whether the body presents the appearance of independence;

(v) whether the body is subjectively free from personal prejudice or bias; and

(vi) whether the body is objectively free from prejudice or bias.

In one of the leading UK cases, Findlay v. United Kingdom (1997) 24 EHRR 221, the court-martial process then in force was held not to be independent where a senior officer in the accused’s regiment convened the court martial; appointed all the judges; prepared the evidence; appointed the prosecuting and defending officers; and had the power to quash or vary the court martial decision.
By the time of Morris v. UK Feb 26 2002, a number of changes to the UK system had been introduced. The Court examined the position of the Permanent President of the Court Martial and described him as being a significant guarantee of independence on the tribunal given the following facts;
(a) that he was appointed to the position until retirement;

(b) that he was outside the chain of command; and

(c ) that he had de facto security of tenure.
The Court said that ‘his term of office and de facto security of tenure, the fact that he had no apparent concerns as to future army promotion and advancement and was no longer subject to army reports, and his relative separation from the army command structure, meant that he was a significant guarantee of independence on an otherwise ad hoc tribunal’ (paragraph 69).
However, as regards the two serving officers who were appointed on an ad hoc basis, the Court said that the ad hoc nature of their appointment emphasised the need for other safeguards. It held that such safeguards were absent or inadequate, because of the risk of outside pressure being brought to bear on two relatively junior serving officers; referring to their lack of legal training; the fact that they remained subject to army discipline and reports, and the absence of any statutory or other bars to their being made subject to external influences while sitting on the case (paragraphs 71 and 72 judgment).
Also, the Court said, it was contrary to Article 6 to have the possibility of a review of a court martial by a ‘reviewing authority’, which was empowered to quash his conviction and sentence, reach any finding of guilt that could have been reached, and to substitute any sentence that could have been imposed by the original body subject to it not being longer than the sentence actually imposed (paragraphs 74-5).

Further changes were made and by the time of Cooper v. United Kingdom (2004) 39 EHRR 171 ,the Grand Chamber found that the new procedure, as applied to a member of the RAF, complied with Article 6. However, in Grieves v. United Kingdom (2004) 39 EHRR 51, in a judgment delivered on the same date, the Court found that, as regards a naval court martial, that there were insufficient guarantees of independence where there was no permanent presiding officer who was irremovable and not subject to reports.

As regards the summary disposition of offences before a Commanding Officer, the Court in Thompson v. United Kingdom Application No. 3256/97, 15 June 2004, found breaches of Article 6 in a situation where the Applicant was awarded 28 days military detention by his Commanding Officer. The Court described the dual role of the Commanding Officer as both prosecutor and judge as presenting ‘even clearer structural independence and impartiality problems than those established’ in the Findlay case. This was applied more recently in Bell v. United Kingdom (Application No. 41534/98, 16 January 2007). The offence at issue, that of using insubordinate language to a superior officer, was disciplinary in nature. The maximum detention liable to be imposed was 28 days, and the actual detention imposed was 7 days. The Court applied the Thompson case and found a breach of Article 6 by reason of the dual role played by the Commanding Officer (prosecutor and judge), as well as a breach of Article 6(3)( c) by reason of lack of legal representation.
Mention should also be made of the impact of Article 5(3) in the military setting. In Hood v. United Kingdom (2000) 29 EHRR 365, the Court held that the remand of a soldier in close arrest by a Commanding Officer was incompatible with Article 5(3) when the same officer was likely to play a central role in his subsequent prosecution and trial by court martial.
As regards the Article 6 requirement of independence and impartiality in the prison setting, the Court addressed this in Whitfield and ors v United Kindgom, Judgment 12 April 2005. It was held that since prison governors were answerable to the Home Office, drafted and laid the charges against the applicants, investigated and prosecuted those charges and determined the applicants’ guilt or innocence together with sentence, it could not be said that there was structural independence between the roles of prosecution and adjudication. Thus there had been violations of Article 6. The Court also found a violation Article 6(3)(c ) on the basis of lack of legal representation at the prison adjudication hearings. The same conclusion was reached in the more recent cases of Young v. United Kingdom and Black v. United Kingdom (supra).

(c ) The Defence (Amendment) Act, 2007

In response to these developments, the Defence (Amendment) Act, 2007 makes substantial changes to the system of military justice in Ireland. As a substantial Act running to 93 pages, one can only touch on the main provisions here. Crucially, it creates a number of new key positions within the system. It is abundantly clear that what is intended to be achieved is two-fold; (a) a clear separation of functions, moving firmly away from the old system in which the blurring and potential overlap of functions was entrenched; and (b) provisions to ensure the independent and impartiality of decision-makers, particularly in non-summary matters. The sections creating these positions have already been brought into force.

One of the new positions is that of the Court-Martial Administrator (see section 32 of the 2007 Act). He is appointed by the Judge Advocate-General and acts under his general supervision, although he is required to be ‘independent performance of his functions’. One of his important functions is to convene courts-martial and to specify the members of the courts-martial board.
The new Director of Military Prosecutions (see section 33 of the 2007 Act) must be an officer of the Permanent Defence Force not below the rank of colonel who is a practicing barrister or solicitor of not less than 10 years standing. He or she is appointed by the Minister on the advice of a committee consisting of the Chief of Staff, a Judge of the High Court and the DPP. He is required to be ‘independent in the performance of his functions’. There are, interestingly, detailed provisions concerning the removal from office of a DMP; influenced, perhaps, not only by the type of considerations that apply to non-military judges, but also the recent experiences with regard to the attempted removal of a member of the ‘ordinary’ judiciary.
The Military Judge (section 34 2007 Act) is another new position. This judge is appointed by the President on the advice of the Government, and must have not less than 10 years experience as a barrister or solicitor and must not be below the rank of colonel. The Government is advised on suitable candidates by a committee consisting of the Chief of Staff, the Judge Advocate-General and a Judge of the High Court. A military judge must be ‘independent in the performance of his judicial functions’ and may not hold any other office or employment in respect of which remuneration is payable. There is a prohibition on the remuneration of a military judge being reduced during his continuance in office. Again there are detailed provisions concerning the removal of a judge from office. There is also provision for the appointment of a Chief Military Judge.
The 2007 Act also creates an entirely new type of court-martial, namely the summary court-martial. This brings to three the type of court-martial that can be held; summary, limited or general. The jurisdiction of each results from a combination of offence-type and accused-rank. There are detailed provisions concerning the membership of the different kinds of court-martial. Section 41 goes on to disqualify certain key persons from membership of a court-martial, including, inter alia, the Court Martial Administrator or a member of his staff, the Director of Military Prosecutions or a member of his staff, ‘a member of the Defence Forces who has examined into or advised on the matters on which nay charges against the accused is based’ and ‘a member of the Defnece Forces who investigated the charge against the accused or took down any summary or abstract of evidence against the accused or who was a member of a court of inquiry inquiring into the matters on which the charge against the accused is based’, and ‘an officer or non-commissioned officer who is serving in the same military chain of command as the accused’. Of particular interest also is Section 41(2) which provides that a member of a court-martial board ‘shall neither report on, nor be the subject of any report in respect of, the performance of his functions as such member under this Act’.
What has happened to summary disposal of charges? What appears clear in the scheme is that while there is an area in which summary justice applies and the Commanding Officer continues to play a role, it is more limited and more regulated than before. Further, it is clear that as regards penalty following summary disposition, detention simply does not feature. The only penalties available are penalties such as a fine not exceeding 7 days pay, reprimands, and reductions on the scale of pay of the person by an increment for a period not exceeding one year or deferral of the next increment due. In terms of procedures, a person is entitled to written notice of the charge sheet, a list of the witnesses, and, where available, an abstract of the evidence, at least 24 hours in advance of the hearing. Further, there is an appeal to a summary court-martial.

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

Irish lawyers are justifiably proud of our Constitution and the manner in which it has sharpened and deepened certain fundamental aspects of Irish law. But why was it, then, that it took Convention jurisprudence to bring about such important structural changes to the military justice system 70 years after the Constitution came into force? Was similar protection lacking from the Constitution? Or was such protection there in latent form, but merely never invoked? One can well imagine the concepts of fair trial in Article 38.1 and the concept of liberty in Article 40.4.1 being mined productively to produce the kinds of Constitutional principles that ultimately were articulated by the ECHR. Was it, perhaps, thought that the special constitutional position of the military justice system under Article 38 somehow precluded the possibility of significant constitutional change? Or were other factors at work?

Indeed, the same question can be posed as regards the Constitution’s apparent silence with respect to the three areas identified in this paper. One could suggest that the sheer volume of Convention jurisprudence stemming from the diverse experiences of the many legal systems subject to Convention law will inevitably throw to the surface legal problems that may simply not arise in a small jurisdiction such as Ireland. One could also argue that practitioners become settled into particular legal grooves of argument, and perhaps sometimes forget that the fundamental guarantees in the Constitution are deeper and richer than our own legal imaginations. It can take a line of jurisprudence from elsewhere to illuminate a perspective on a human right hitherto unexamined. It is not surprising that the areas in which practitioners are mounting challenges on Convention grounds are those where there are already ‘off the shelf’, ‘ready-made’ Convention lines of authority. One could also point to the wording of each of the Constitution and the Convention respectively, each in turn influenced by its immediate historical context and its own preoccupations, leading inevitably to differences in emphasis. An interesting paper could be written about such matters, but that of course is another day’s work.

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

James MacGuill will be talking about cases such as Barry v. Ireland and recent ‘delay’ cases in the Supreme Court. I agree with his view that, on the ground, there is a new sense that court proceedings must avoid undue delays and that the primary impetus for this is perceived to be the Convention rather than the Constitution. As regards the respective jurisprudence of the Supreme Court and the ECHR concerning the issue of delay, it seems to me that there may be differences in outlook stemming in part from the fact that the ECHR jurisprudence appears to view the topic from the perspective of the right to trial with reasonable expedition only, whereas the domestic jurisprudence grapples with the complex interaction between the concept of the ‘fairness’ of the trial and the ‘delay’ before reaching trial. This has important implications for the remedies to be granted, in particular the remedy of prohibition. The fact that reliefs available under the European Convention on Human Rights Act, 2003 are restricted, as mentioned above, makes the matter even more complicated. Another difficulty, not yet directly addressed by the courts as far as I know, is that the delay may be partly attributable to the court system and partly attributable to a State party to the proceedings, such as the DPP. Given that the courts are excluded from the definition of ‘organ of State’ in the ECHRA 2003, I am not sure how this will affect the cases and the reliefs granted. Incidentally, it may be noted that in DPP v. Sweetman, [2005] IEHC 435, De Valera J. granted prohibition in respect of a murder trial, where the challenge had been brought on both Convention and Constitutional grounds, but this decision is far from being the last word in the area.

As regards the drawing of inferences from silence, it also seems to me likely that we are about to embark on a jurisprudence where there will be intensive examination of the relationship between the precise circumstances in respect of which the accused was asked to give an account, and the state of play concerning his access to a solicitor at the time he was asked to give the account. Michael Farrell discusses in further detail the complexity of this area. It would seem to me that permitting a solicitor to be present during questioning would be the obvious way of avoiding unnecessary problems in this area, and that this would be a fair counterbalance to the departure from the norm that that is the drawing of an inference from silence. However, I would not agree that fair procedures necessarily require that the solicitor and his client be kept updated about the progress of the investigation; rather that they made aware of the precise circumstances in respect of which it is said that it is reasonable to call for an explanation, which will not always be the same thing as the current state of the investigation.
Further, proper police training will be essential if any such inferences will survive the fairness barriers to play a probative role in the trial. In this context, it must be said that the ‘cautions’ given by the Gardai need to be carefully examined. Obviously, the caution required if one proposes to rely on silence by way of inference must be different in terms to the traditional caution. At present, at least as regards cases involving the Offences Against the State (Amendment) Act, 1998, the practice appears to be that the ordinary caution is first given, then withdrawn, then the ‘inference’ caution is given. The giving of the ordinary caution is, at worst, confusing and, at best, superfluous. The practice appears to stem from a view that the Judges Rules always require the traditional caution to be given first. Indeed, the Judges Rules are also referred to by the Gardai as the reason for taking painstaking handwritten notes during video-recorded interviews, a practice that in my view significantly interferes with what should be the normal pace of an interview and uses up time unnecessarily. I would strongly support the view of the ‘Balance in the Criminal Law Review Group’ (Final Report) that the written recording of interviews, the giving of cautions in interviews, and the Judges Rules, all need to be overhauled in view of modern developments. Also, the issue of training would seem to apply to defence solicitors as much as to members of An Garda Siochana.
As regards the Martin Kelly case ([2006] IESC 20, to be discussed by Michael Farrell, I acted for State and so it would be inappropriate to comment in any detail. However, as he acknowledges, this was a case in which there was evidence other than merely the Chief Superintendent’s belief and the drawing of an inference from silence. In particular, there was the evidence of a lay witness who alleged that the accused had represented himself to be a member of the IRA to him in the context of seeking protection money. The issues concerning the Chief Superintendent’s belief may perhaps be thrown into sharper relief in a case where ‘belief evidence’ and ‘inference from silence’ evidence’ are the only two forms of evidence. Such a case might arise if other evidence in the case is ruled inadmissible in the course of the trial.

6. Conclusion

It is still the view of some criminal practitioners that the Convention jurisprudence has little or nothing to add to the development of the criminal law in this country, given the detailed attention that has been paid to liberty and fair trial rights under the Irish Constitution as interpreted by the Courts. It is sometimes said that the Convention will be most influential in other areas, such as privacy rights, freedom of expression rights and other forms of personal right not related to criminal trials. It is true that Irish criminal law has been to a significant extent ‘constitutionalised’ over the last 70 years and that many of the principles developed mirror, and in some cases, surpass, the standards required under the Convention. However, the converse is also true; Convention law offers, at least, new insights, and, sometimes, more rigorous standards in certain areas than Irish constitutional law has done to date. In my examination of the impact on insanity law and military justice, I was struck by how the Convention has had a major impact in areas that Irish criminal lawyers consider to be the ‘heartland’ of our constitutional guarantees; areas concerning the right to liberty, and the right to trial of a criminal charge in due course of law. Moreover, these were not ‘emergency’ areas of law where one might expect that local perspective might have a distorting effect and the Convention a longer-term influence. If we now have two watchdogs for human rights in Irish law, in these areas at least, one watchdog may have been caught napping. Or, were we, the practitioners who unleash the watchdogs, the ones who were napping?

In my view, we are likely to be entering a period of intensive scrutiny of the fairness of measures with which the criminal justice system has been re-calibrated. I believe the ECHRA 2003 will make a significant contribution to this legal era. Not only will the Convention cases be echoing regularly around the walls of our courts; but, dare I say it, their insights will encourage our own constitutional guarantees to be examined afresh and at times, new dimensions hitherto neglected may be brought to light. I would anticipate this as arising not so much from some kind of national pride on the part of our judiciary that our Constitutional provisions should not be found wanting when compared with the Convention but rather, perhaps, from the deep and fundamental nature of our constitutional guarantees of liberty and fair trial, which can never be viewed as stagnant but rather always open to further development and insight.