IHRC says blanket extension of Special Criminal Court powers to deal with organised crime not human rights compliant

The Irish Human Rights Commission (IHRC) today published its observations on the Criminal Justice (Amendment) Bill 2009 (2009 Bill), calling for the removal of the section in the 2009 Bill which extends the remit of the Special Criminal Court to deal with certain organised crime offences, describing the measure as disproportionate and unnecessary.

Dr Maurice Manning, President of the IHRC said, "the IHRC is fully aware of the need to tackle organised crime. However, this does not justify the automatic restriction of the Constitutional right to trial by jury for most organised crime offences. Any limitation of the Constitutional right to a fair trial must only take place in exceptional circumstances, where it can be clearly established on reasonable and objective grounds by the Director of Public Prosecution (DPP) that the effective administration of justice cannot be delivered in an individual case in the ordinary courts".

Dr Manning continued, "In 2002, the Hederman Committee similarly recommended to Government that there should not be a category of offences that are automatically heard before the Special Criminal Court, and that this exceptional measure should be applied on a case by case basis. The UN Human Rights Committee has also criticised Ireland for the ongoing existence of the Special Criminal Court and also recommended that only exceptional cases should be heard by a body such as this. In the view of the IHRC, the Government is clearly acting in contravention of the recommendations of that UN expert body."

On the issue of jury intimidation, Mr Éamonn Mac Aodha said, "the risk of jury intimidation is certainly one of the means by which the normal administration of justice can be undermined. The IHRC remains to be convinced however that jury intimidation is at such a serious level in Ireland that would warrant the extension of the powers of the Special Criminal Court in the way proposed in the 2009 Bill. There are many intermediate measures to protect jurors which should be explored, such as, having an anonymous jury, screening the jury from public view, protection of the jury during the trial or locating the jury in a different place from where the trial is being held with communication by video link."

The IHRC is also concerned by proposals in the 2009 Bill that negative conclusions or inferences can be drawn where a person under Garda questioning fails to answer questions that are material to the investigation of the offence in order to build a case against the defendant. Commissioner Michael Farrell of the IHRC said, "this proposal has implications for the right to remain silent, which is key to the presumption of innocence. The IHRC considers that in line with human rights standards these negative inference clauses should only apply where the accused has first been granted legal advice as a mandatory prerequisite and there is a clear case to answer against the accused."

Commissioner Farrell continued, "In practice, without legal advice it might be very difficult for an accused person to assess their situation while under police questioning and to fully understand the implications down the line during their trial of their failure to answer a material question. In general, as an important safeguard, an accused person should have a legal advisor present throughout police interrogation, particularly in light of the increased reliance within Irish criminal law on adverse inference clauses."

The IHRC is also concerned about the rushed nature of this legislation. Dr Manning said, "In light of the human rights implications of the 2009 Bill sufficient time is not being granted for full consideration of the legislative proposal by the Houses of the Oireachtas most importantly and also by the IHRC. Debate discussion and analysis should accompany law reform measures that have important human rights implications."

  • Key Recommendations

Special Criminal Court

  • The remit of the Special Criminal Court should not be extended to the organised crime offences specified in the 2009 Bill.
  • Alternative methods to protect jury members against intimidation including, providing for anonymous juries, screening the jury from public view, the protection of the jury during the trial or locating the jury in a different place from where the trial is being held with communication by video link, should be explored.
  • The category "scheduled offences" should be removed from the Offences Against the State Acts. Cases should only be heard before the Special Criminal Court where in the individual case the DPP can establish on reasonable and objective grounds that the ordinary courts are inadequate to deal with the administration of justice in the particular case under consideration.
  • Where the DPP refers a case for trial before the Special Criminal Court his or her decision should be subject to a positive review mechanism.

Inference from failure to answer questions

  • Negative inference clauses should only apply where there is a clear case to be answered against the accused.
  • Access to legal advice should be a mandatory precondition if adverse inference provisions are to apply.
  • Access to legal advice should be available throughout police interrogation as an important safeguard and measure of best practice.

Offence relating to Directing a Criminal Organisation

  • The penalty of up to life imprisonment for "directing" a criminal organisation should be qualified and revised downwards to take account of the level at which the accused directs a criminal organisation.

ENDS/

An IHRC spokesperson is available for comment

For further information please contact

Fidelma Joyce

IHRC

Mob: 087 783 4939

Notes to Editor

  • The Hederman Committee was established under the chairmanship of Mr. Justice Hederman with the mandate to examine all aspects of the Offences Against the State Acts 1939 to 1998, taking into account: 1. the view of the participants to the multiparty negotiations on Northern Ireland that the development of a peaceful environment on the basis of the Agreement they reached on 10 April, 1998 (Good Friday Agreement) can and should mean a normalisation of security arrangements and practices; 2. the threat posed by international terrorism and organised crime; 3. Ireland’s obligations under International law.
  • The UN Human Rights Committee oversees the International Covenant on Civil and Political Rights (ICCPR) which Ireland has ratified. In an individual complaint against the Irish Government under that international treaty the Human Rights Committee found Ireland in violation of the ICCPR because no reasonable and objective grounds were advanced by the DPP to try the applicant before the non-jury Special Criminal Court. The UN Human Rights Committee found that the applicant’s right to equality before the law under Article 26 had been violated. In 2008, in its Concluding Observations on Ireland’s Third Periodic Report, the Human Rights Committee recommended that Ireland should carefully monitor, on an ongoing basis, whether the exigencies of the situation in Ireland continue to justify the continuation of a Special Criminal Court with a view to abolishing it. It also recommended that the State should ensure that there are objective and reasonable grounds provided for each case that is certified by the DPP as requiring a non-jury trial, and that there should be a right to challenge these grounds.
  • In the United Kingdom, under the UK Criminal Justice Act 2003 the prosecution can apply for a non-jury trial only where it can be shown that there is a real and present danger of jury tampering. Most recently in June 2009, the UK Court of Criminal Appeal held that the right to jury trial is so deeply entrenched in the United Kingdom constitution that unless express statutory language indicates otherwise, the highest possible forensic standards of proof, the criminal standard, is required to be established before the right is removed.
  • IHRC Observations on the Criminal Justice (Amendment) Bill 2009 are available on www.ihrc.ie
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