due process Flashcards
(10 cards)
1
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article
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- Article 38 – no person shall be tried on any criminal charge save in due course of law
2
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trial in due course of law cases
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- State (Healy) v O’Donoghue – Mr. Healy, aged 18 with limited education, was convicted of two offences—first, without being informed of his right to legal aid, and second, despite having a legal aid certificate, he was unrepresented. He sought JR, and the SC quashed the convictions.
o The Court held that a trial in due course of law under the Constitution requires access to legal representation for those who cannot afford it. While not explicitly stated, the right to legal aid is implied. Where an accused has limited education, they must be informed of this right, and if legal aid is unavailable, the court should adjourn unless strong reasons justify proceeding.
o O’Higgins CJ stated that if a person does not know their right, they cannot exercise it, and it is effectively denied. The Court, while recognising the right to legal aid, avoided rigid definitions (as noted in Doyle). Legal aid is required where a charge is serious and the person lacks means. Henchy J added it may also apply in complex or grave cases, or where the accused is illiterate, immature, or in custody.
3
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presumption of innocence
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Presumption of innocence
- Woolmington v DPP – the defendant, Charles Augustus Woolmington, was charged with murder after killing his wife. At trial, the judge wrongly told the jury that if they had any doubt, they must still find him guilty. Woolmington appealed, arguing that the burden of proof should rest with the prosecution.
o The HoL upheld his appeal and quashed the conviction. Lord Sankey declared that the prosecution must prove the defendant’s guilt beyond a reasonable doubt, except in cases like insanity or specific statutory exceptions. This became known as the “golden thread” of English criminal law and remains a core principle today.
- Hardy v Ireland – the applicant was convicted in the SCC under the Explosive Substances Act 1883, which presumes guilt if a person is found with explosives unless they can prove lawful possession. He appealed, arguing this reversed the burden of proof and violated Article 38.1 of the Constitution by allowing conviction despite reasonable doubt.
o The SC rejected the appeal – the prosecution must still prove all elements of the offence beyond a reasonable doubt. The statutory provision allowing inferences did not violate the right to a fair trial.
o The requirement for the accused to show lawful purpose on the balance of probabilities was treated as a statutory defence, not a reversal of the burden of proof. Therefore, s. 4(1) of the 1883 Act was not inconsistent with the Constitution.
- O’Leary v Attorney General – The applicant was convicted under s. 4(1) of the Explosive Substances Act 1883, which presumes guilt unless the accused shows lawful possession. He argued this violated Article 38.1 by shifting the burden of proof.
o The SC rejected the appeal, holding that the prosecution must still prove all offence elements beyond a reasonable doubt. The provision was a statutory defence, requiring the accused to prove lawful purpose on the balance of probabilities after the prosecution had made its case.
o The Court found the Act consistent with the Constitution and, applying the presumption of constitutionality (East Donegal Co-Op v AG), held that possession of an incriminating document under s. 24 of the 1939 Act was evidence – not proof of membership in an unlawful organisation. The evidentiary burden may shift, but the legal burden and presumption of innocence remain with the prosecution.
4
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privilege against self incrimination
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- The cases show that there is a tension between the traditional right to silence vs the need to ensure that suspects cannot abuse this right.
- Heaney v Ireland 1996 – in discussing the right to silence, O’Flaherty J addressed the constitutionality of s.52 of the Offences Against the State Act 1939, which allowed Gardaí to demand a full account of a person’s movements, non-compliance being an offence. Heaney argued this breached his constitutional right to silence.
o In the HC, Costello J held that common law immunities, including the right to silence, are protected under Article 38.1, which guarantees trial in due course of law. He found this right extended beyond trial to suspects in custody, noting its recognition in comparable legal systems and by the ECtHR in Funke v. France. He stated:
“The fairness of a trial can be undermined by what occurs beforehand, for example, evidence obtained improperly before trial may invalidate the trial itself. Therefore, if the suspect’s right to silence is a fundamental part of our criminal justice system, it is protected by Article 38.1.”
o However, he stated that the right was not absolute.
o The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. This means chosen must pass a proportionality test. They must:
1. Be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
2. Impair the right as little as possible;
3. Be such that their effects on rights are proportional to the objective.
o Proportionality – ‘we must, therefore, ask ourselves whether the restriction which s 52 places on the right to silence is any greater than necessary having regard to the disorder against which the State is attempting to protect the public.’
o HC dismissed the applicant’s claim – it was proportional interference with Art. 38.
o SC – O’Flaherty J., delivering the judgment, left open whether Article 38 applied, instead grounding the right to silence in Article 40’s guarantee of freedom of expression: “The right to freedom of expression necessarily implies the right to remain silent.” He noted, however, that this right—like freedom of expression itself—is not absolute, being subject to public order and morality.
o O’Flaherty J. emphasized a key distinction: the absolute right to silence VS the right to remain silent to avoid self-incrimination. He noted that if someone is entirely innocent, it would take a strong commitment to constitutional rights to refuse giving an account when legally required. The Court therefore viewed the issue as an encroachment on the right not to provide self-incriminating evidence, rather than a breach of an absolute right to silence.
o The Court examined whether the Gardaí’s power under the section was proportionate to the legislation’s aim. It held that while the State can infringe on the right to silence to uphold public order, this must affect citizens’ rights as little as possible. Innocent individuals may resist on principle, but their right must yield to the State’s need for protection. Even more so, those with relevant information about a crime have a weaker claim to remain silent.
5
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right to silence - poor protection
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- Oran Doyle – it can be seen that the right to evidence has been poorly protected been poorly protected by the Irish courts. Another example has been shown in Rock v Ireland – where the constitutionality of ss 18 and 19 of the Criminal Justice Act 1984, which allow for inferences to be drawn for failure to account for ones actions, has been considered.
o Held: the section are constitutional – it is, however, entitles to draw inferences as appear proper. It is purely a matter for the court, subject to the judges’ directions, the jury, to decise whether inferences should be drawn or that inferences may properly be drawn from the failure or refusal of the accused to account for the presence of such substances.
o If such inferences are drawn – they only amount to evidence, one cannot be convicted solely based on the inference. Such inferences can be shaken off in many ways, by cross-examination, submission etc.
o Only such inferences ‘as appear proper’ can be drawn – as the court deems proper. - Doyle – the individual’s right to avoid self-incrimination is simply stated to be in balance with the State’s right and duty to protect and defend the life, person and property of citiens.
6
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the civil aspect
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- Re National Irish Bank – The case involved Part II of the CA 1990, which empowered inspectors to compel company officers and agents to answer questions and produce documents during an investigation. The inspectors were appointed to examine improper financial practices between 1988 and 1998. Section 10 imposed a duty on those with relevant information to comply, while Section 18 allowed such compelled answers to be used in evidence against the person. The inspectors sought guidance from the HC on whether individuals could refuse to answer on self-incrimination grounds and whether the process complied with natural and constitutional justice.
o HC upheld the constitutionality of the section –> appealed to the SC –> dismissed
o HC – ‘It is, a legitimate aim of the State, in the public interest, to expose fraud and dishonesty. Where the only effective means of doing so is through an investigative process that excludes the right to silence (as here), it can be said that the limits imposed by s. 10 are no more than necessary to meet the State’s constitutional duties—namely, to uphold equality before the law and to protect citizens’ property rights. The restriction on silence under s. 10 is therefore proportionate to those objectives, s. 10 is not invalid having regard to the provisions of the Constitution.’
o SC, Barrington J. – agreed that the powers granted to inspectors under s. 10 were not excessive in light of the public interest. The Court held that what Article 38 prohibits is compelling a confession and then convicting someone based on it. Since any such confession would only be admissible at trial if deemed voluntary by the trial judge, the Court upheld the constitutionality of the provisions.
o The Court concluded that the powers granted to inspectors under s.10 of the Companies Act 1990 were proportionate and aligned with the public interest, stating: ‘It appears to me that the powers given to the inspectors under s.10 of the Companies Act, 1990… are no greater than the public interest requires. Their meaning is clear and they pass the proportionality test.’
o In his judgment, Barrington J. also examined the constitutional basis of the right to silence, considering whether it could be derived from Articles 40.6.1 (freedom of expression), 40.3 (protection of personal rights), and/or Article 38.1 (right to trial in due course of law).
o In this case, Article 40.3 simply reinforces the other two constitutional guarantees: the right to silence generally, and the right to a fair trial. - Dunnes Stores Ireland Company v Ryan – Kearns J., in considering the constitutionality of s.19 of the Companies Act 1990, endorsed the comments of Lord Mustill in R. v. Director of the Serious Fraud Office, ex p. Smith, stating that the right to silence does not denote any single right but refers to a disparate group of immunities differing in nature, origin, incidence, and importance.
o He agreed with the observation that it is necessary ‘to keep distinct the motives which have caused them to become embodied in English law; otherwise objections to the curtailment of one immunity may draw a spurious reinforcement from association with other, and different, immunities commonly grouped under the title of a ‘right to silence’.’
o He concluded: ‘There is no suggestion of a ‘trial’ or ‘suspect’ as in Heaney v. Ireland… The case is at the lower end of the spectrum identified by Lord Mustill.”
o He found that the provision passed the proportionality test: ‘The compulsion to produce books and answer limited questions under s.19 does not infringe Article 40 of the Constitution, given the public interest in good corporate governance.’
o His comments on Barrington J.’s judgment in Re National Irish Bank highlight: ‘This approach essentially ‘parks’ issues of later use or admissibility under s.10, leaving them to be dealt with case by case. This means the use of incriminatory material is subject to a subjective test rather than an objective standard, displacing the common law self-incrimination test.’
o In comparing sections, he distinguished Section 19(6), finding it failed the minimum invasions test from Heaney, as refusal to answer automatically resulted in an offence. He echoed the European Court’s language in Heaney v. Ireland: ‘Can there be any ‘voluntariness’ in answering questions here? In my view, there is not. The choice between a conviction on refusal and self-incrimination in later prosecution leaves no real option.’
7
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ECHR - articles
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- Article 6.1 – Fair Hearing – Everyone is entitled to a fair, public hearing within a reasonable time by an independent and impartial tribunal. Judgments must be public, but trials may be private in special cases (e.g., public order, national security, juvenile protection).
- Article 6.2 – Presumption of Innocence - A person charged with a criminal offence is presumed innocent until proven guilty by law.
- Article 6.3 – Minimum Rights of the Accused. Anyone charged with a criminal offence has the right:
a) To be informed promptly and clearly of the accusation in a language they understand
b) To have enough time and resources to prepare a defence
c) To defend themselves or have legal assistance, free if needed
d) To question prosecution witnesses and call their own witnesses
e) To have a free interpreter if they don’t understand the language used in court - Article 6 lacks a clear test for when its infringement can be justified, and as a non-absolute right, this creates uncertainty (Samartzis, 2021). States can also derogate from it under Article 15. The Strasbourg Court takes a narrow view of fair trial rights, focusing on the fairness of procedures rather than ensuring a just outcome (Hoyano, 2014).
8
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ECtHR - cases
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- Quinn v Ireland – the applicants in Heaney v Ireland refer the matter to the ECtHR. In Heaney, the applicants were arrested for suspected terrorist offences and asked under Section 52 of the Offences Against the State Act 1939 to account for their movements, despite being cautioned of their right to remain silent. When they refused, they were convicted and jailed.
o The ECtHR found that S 52 imposed such a high degree of compulsion that it violated the core of the right to silence and the privilege against self-incrimination under Art 6 §1. It also held that the public security concerns did not justify such a serious interference. Because of the close connection to the presumption of innocence under Art 6 §2, that right was also breached. - Snaders v UK – evidence that was obtained under a statutory demand – a document saved in bankruptcy proceedings, was later admitted in a criminal trial.
o Held – while compelling someone to provide information in a regulatory context does not itself violate Article 6, using that information in a criminal trial does. The Court emphasized that the right to a fair trial includes the right not to incriminate oneself.
o The public interest in investigating corporate misconduct could not justify using evidence compelled outside the criminal process to convict someone. Doing so breached the fair trial guarantees of Article 6, even though the evidence was lawfully obtained in the first place.
9
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adverse inferences from silence
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- People (DPP) v Foley – the accused, convicted of possessing firearms and ammunition with the reasonable inference that they were not possessed for lawful purposes, challenged the conviction. The appellant argued that the SCC had not properly recognized the onus or the required standard of proof beyond a reasonable doubt, nor had it given adequate consideration to the accused’s right to silence.
o Appeal dismissed – the “right to silence” means that an accused is entitled to rely on the prosecution to prove its case without having to provide an explanation or give evidence. However, if evidence pointing to the accused’s guilt is presented, they must attempt to rebut the prosecution’s case with evidence, or face the consequences. - Murray v United Kingdom – the right to silence does not absolutely prohibit the the drawing of adverse inferences from silence – where the accused has been warned of the possible risks of remaining silent and there is no evidence as to suggest that he or she did not understand the warning, the inference could be dawn only where the prima facie case has already been established.
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