The Irish Human Rights Commission (IHRC) has forwarded its observations on the Criminal Justice Bill 2007 to the Minister for Justice, Equality and Law Reform. In its observations the Commission makes recommendations on a number of the issues raised in the bill, but it is also critical of the timeframe available to it for consideration of the legislation.
The General Scheme of the Criminal Justice Bill 2007 was referred to the Commission IHRC by the Minister on February 14th to report on its implications for the protection of human rights. The Bill itself was published on March 15th 2007. President of the Commission Maurice Manning said, "The Human Rights Commission is concerned that, as with previous legislation in the criminal justice area, adequate time is not being afforded to the Commission or to the Oireachtas to properly consider matters of significant importance to the protection of human rights."
In relation to the substance of the Bill, the Commission identified four key areas as giving rise to human rights concerns. These are: (i) the proposals to change the law in relation to the right to silence; (ii) proposals for greater use of seven-day detention of suspects; (iii) changes to the law on sentencing; and (iv) changes to the law relating to bail. The Commission has not had adequate time to consider fully all of the proposals in what is a very wide-ranging Bill. The Commission is also aware that the Minister intends to introduce a number of amendments to the Bill which may also give rise to important questions relating to the protection of human rights.
- In relation to the right to silence, the Commission believes that any proposals to allow inferences to be drawn from refusal by a suspect to give information during the pre-trial period must be carefully circumscribed and must be accompanied by robust safeguards. The Commission also believes that far-reaching proposals of this kind highlight the need to address existing shortcomings in the availability of pre-trial legal advice in the Irish system. The IHRC believes that any drawing of inferences should be made conditional on the accused having been advised by a solicitor after the caution has been given that the inferences will be drawn.
- The Bill proposes to significantly extend the circumstances in which suspects can be detained for periods of up to 7 days. Periods of detention of up to 7 days raise the possibility that Ireland may be in violation of its obligations under the European Convention on Human Rights and the International Covenant on Civil and Political Rights. The IHRC considers a seven-day detention period as a most serious curtailment on a person’s right to personal liberty which requires real cause and justification. The Commission also believes that a mechanism should be established so that when extensions on periods of detention are being sought, the grounds upon which a request is based can be properly explored before adjudication is made by the judge.
- The Human Rights Commission is particularly concerned about the proposals to introduced new forms of mandatory sentencing in light of the constitutional principles of proportionality and judicial discretion and the doctrine of separation of powers. The Commission believes the provisions as currently drafted present a danger of injustice in individual cases.
- The IHRC believes the current proposals in relation to bail raise serious concerns for an applicant’s right to personal liberty and the principle that everyone is presumed innocent until proven guilty. In particular the Commission believes that an obligation to supply a personal statement as a precondition for bail imposes a weighty responsibility on the applicant who is presumed innocent before the law. Proposals to allow judges to draw inferences from the opinion of members of the gardaí also represents a significant shift in the balance of bail hearings. The IHRC has concerns regarding the purpose and appropriate weight that should be attached to an expression of opinion and the potential it may have in determining the granting or refusal of a bail application.
- Section 11 of the Bill introduces the use of electronic monitoring in pre-trial proceedings, whereby it is an option available to the court as a condition of bail for a serious offence. The rationale for the introduction for electronic monitoring in pre-trial hearings has not been presented and the IHRC queries the need for the introduction of electronic monitoring in this context where methods, such as signing-on and garda surveillance, are already in existence. The IHRC believes that electronic monitoring should only be considered an option as a condition of bail only where the accused person would otherwise be detained in custody before trial. The IHRC recommends that limitations should be set on the discretion of judges in this regard to ensure that any order respects the constitutional and human rights of the persons subject to electronic monitoring and any interference with those rights is proportionate and justified in the circumstances of the particular case. The IHRC also queries the extent to which privately contracted companies should be entrusted with such a public responsibility that has an immediate effect on the legal status of the defendant. Such concerns require careful consideration and further analysis.
Click below to read the observations:
Observations on the Criminal Justice Bill 2007.doc (298 KB)
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