Ireland

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Contents

Introduction

Quick summary of the context (including the country’s recent history)

The earliest known form of law in Ireland is Brehon Law. Brehon means jurist in the Irish language. Under this system parties were required to agree in advance to abide by their judgments and there was no official enforcement of decisions. This system is believed to have been used from 600 AD to approximately the 17th century.

Brehon law's authority was ended by the Proclamation of King James I in 1603, which brought Irish people within the King's protection. The country was subsequently divided into counties and English law was administered throughout Ireland rather than just the area surrounding Dublin. The Act of Union 1800 dissolved the Irish Parliament and established the Westminster Parliament in London as the sole legislative body of the United Kingdom of Great Britain and Ireland.

Ireland became an independent State in December 1921. The Irish Parliament (the Dáil) enacted the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, implementing the Irish Free State Constitution. The constitution enshrined the separation of powers between the executive, legislative and judicial arms of government.

In 1937, a new constitution was drafted, put to a referendum and accepted. There have been various amendments to the constitution since 1937.

Type of system

Ireland is a "common law" jurisdiction similar to other English speaking countries, such as the UK, Canada, Australia and New Zealand. The Irish legal system is broadly divided into two branches: civil and criminal.

Irish Civil Courts are divided into four jurisdictions, the Supreme Court, the High Court, the Circuit Court and the District Court and with the exception of the Supreme Court, have monetary limits attached to them. When the High Court sits for criminal proceedings it is called the Central Criminal Court. Alternatively, the Special Criminal Court sits when the ordinary courts cannot effectively administer justice. The Special Criminal Court is composed of three judges and there is no jury (unlike the other criminal courts). In the Court of Criminal Appeal, a defendant may appeal against conviction and/or the prison sentence.

On 4 October 2013, the Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013 was approved by the electorate in a referendum and then signed into law by the President on 1 November 2013. This provides for a new Court of Appeal which will exist between the High and Supreme Courts and will take over the majority of the appellate jurisdiction of the Supreme Court in civil matters. The Supreme Court will still hear appeals directly from the High Court if it considers there to be exceptional circumstances such as a matter of general public importance and/or the interests of justice require such an appeal. Appeals from the Court of Appeal to the Supreme Court will be subject to obtaining the leave of the Supreme Court which would only be available in cases of general public importance or in the interests of justice. The Court of Appeal is proposed to be in place by October 2014.

The legal aid situation in the country:

State Sponsored Legal Aid

  • (a) Civil Legal Aid

Civil legal aid means representation by a solicitor or barrister in civil proceedings in the District, Circuit, High and Supreme Courts. Legal aid is available also for representation before the Refugee Appeals Tribunal. Civil legal aid is available in Ireland under the Legal Aid Board which is the State's legal aid body (the Board). The Board provides legal services to eligible persons including legal advice and legal aid. To qualify for these services an applicant must satisfy the Board’s financial eligibility requirements. They must also satisfy the Board that their case has merit. All Board services are governed by the Civil Legal Aid Act 1995 and the Civil Legal Aid Regulations.

Legal aid is not granted automatically. The Board will consider if it is reasonable to grant legal aid through a merits test to ensure that their case is a legitimate one and that a reasonable person would take the case and would be advised to take the case. This test is applied to each individual case. There is also a means test for any applications to the Board. The applicant must have a disposable income of less than €18,000 and a disposable capital of less than €100,000 (not including their family home).

There are minimum contributions that must be paid except in cases of extreme hardship. However, the contribution that must be paid depends on a person's disposable income for legal advice and their disposable income and disposable capital for legal aid.

  • (b) Criminal Legal Aid

The main legal aid available to someone accused of a crime is the legal aid provided under the Criminal Justice (Legal Aid) Act 1962. Criminal legal aid, unlike civil legal aid, is free. No financial contribution is necessary.

If a charge carries a potential prison sentence and the defendant is not legally represented, the District Court judge must inform them that they may be entitled to legal aid. If they wish to be legally represented and claim that they cannot afford it, the judge must consider whether they qualify for free legal aid. If a judge considers that a person is deserving of criminal legal aid, they will be issued a legal aid certificate. A decision by the judge on legal aid is final.

In assessing the seriousness of the case, the judge considers the possibility of the person receiving a prison sentence or large fine if convicted. Criminal legal aid is only available in a limited number of circumstances. The Board does not provide legal aid in criminal matters directly, but ensures its provision through its management of a number of ad-hoc criminal legal aid schemes.

It is an offence for a defendant to knowingly make a false statement or a false representation either verbally or in writing or to conceal any important fact from the judge in relation to an application for legal aid.

A legal aid certificate also covers the fees of non-legal professionals who may be required for the preparation and conduct of their defence. Examples of these are: doctors; psychiatrists; engineers; forensic scientists; and language experts.

Other Sources of Legal Aid

Other sources of legal aid include:

  • The Custody Issues Scheme (formerly the Attorney General’s Scheme) is another scheme which is administered by the Board and provides for legal representation in certain types of cases not covered by the civil or criminal legal aid schemes.
  • The Criminal Assets Bureau (CAB) Ad-hoc Legal Aid Scheme provides legal aid to people who are defendants in any court proceedings brought by the CAB, including court proceedings under the Proceeds of Crime Act 1996, Revenue Acts or Social Welfare Acts.
  • The Refugee Legal Service (RLS) is a specialised unit providing legal advice and assistance at all stages of the asylum process to persons applying for asylum in Ireland and associated issues.
  • The Mental Health Commission provides legal aid in relation to the provision of legal representation for persons detained involuntarily in approved centres.
  • There are also specialised schemes administered by the Irish Human Rights Commission, the European Court of Human Rights and the Equality Authority.
  • Certain NGO's may also be of assistance such as:
  • Free Legal Advice Centres (FLAC)
  • FLAC has around 70 legal advice centres nationwide. It is staffed by fully qualified solicitors and barristers who volunteer to provide private consultations.
  • Public Interest Law Alliance (PILA)
  • PILA operates a pro bono referral scheme; it identifies and matches community organisations' legal needs with expert legal skills of lawyers on their pro bono register.
  • Immigrant Council of Ireland
  • The Immigrant Council of Ireland is an independent organisation working with and for immigrants in promoting their rights through information, advocacy and awareness. It provides a free information and legal advice service. It also lobbies on immigrant rights issues and works along with other organisations to help promote and secure these rights.

Number of lawyers (criminal/civil)

The practice of law in Ireland is divided between solicitors and barristers. A solicitor provides a range of legal services, including transactional assistance, legal advice and representation. Barristers are advocates, specialising in representing clients in Court. Barristers also provide specialised advice. Both professions are independently governed by national organisations. The Law Society of Ireland and the Bar Council of Ireland govern the professions of solicitors and barristers respectively. There are presently approximately 8,750 individual practicing solicitors registered in the Republic of Ireland and around 2,200 individual solicitors' practices. There are approximately 2,300 barristers in the Republic of Ireland.

Sources of a defendant's rights

National Sources of defendant's rights

The Irish Constitution (Bunreacht na hÉireann) sets out a number of fundamental rights in Articles 38-44. These include equality before the law[1] and the right to a fair trial.[2] In addition, the Courts have interpreted the Constitution as including certain human rights. These are referred to as unenumerated rights and include such rights as the right to freedom from torture, inhuman or degrading treatment or punishment.

International Sources of a defendant's rights

At European level, a defendant's rights are derived from two primary sources, namely the European Convention on Human Rights (ECHR) which is governed by the European Court of Human Rights and the European Union Charter of Fundamental Rights which is governed by the Court of Justice of the European Union.

The ECHR states that every person charged with a criminal offence has the minimum rights to defend himself in person or through legal assistance of his own choosing, or if he has not sufficient means to pay for legal assistance, to be provided with free assistance when the interests of justice so require.[3]

Pre-Trial Procedures

Police Procedures

Complaint/Information

Under common law a member of An Garda Siochana (police officer/the police) is allowed to ask questions of any private citizen. There is no legal obstacle to seeking cooperation from a private citizen.[4] Under common law, a private citizen is under no obligation to provide assistance to an investigating police officer.[5]

There are certain circumstances where refusal to co-operate with an investigating police officer will constitute an offence[6] for example, failure to give the arresting police officer correct names or addresses upon questioning or failing to provide finger prints upon request.

Arrest, Search and Seizure Laws

  • (a) Stops and Frisks

Under common law the power of the police to restrain a citizen short of arrest does not generally exist.[7] There are a number of both general and specific statutory provisions that allow for the police to stop persons for the purpose of conducting a search. The most notable are the following:

Section 30 of the Offences Against the State Act 1939 provides the power to stop, search, interrogate and arrest any person or persons suspected of having committed or being about to commit offences scheduled within that Act. Offences include treason, felonies, misdemeanors, statutory and other offences.

Section 23 of the Misuse of Drugs Acts 1977 and 1984, allows the police to stop and search any person reasonably believed to be in possession of a controlled drug.

The police are also entitled to stop and search vehicles[8] where they suspect that a person is in possession of a controlled drug in contravention of the above Act.

  • (b) Arrests

The Irish Constitution states that, "No citizen shall be deprived of his personal liberty save in accordance with law".[9]

However arrest may take place (with or without a warrant) for the purposes of being charged, or to be brought before the court, or to be detained in a police station for the proper investigation of an offence. Powers of arrest can be classified into those exercisable with a warrant or those without, the latter being known as summary arrests. Since most arrests are affected summarily, the following is primarily focused on those types of arrests.[10]

The Criminal Law Act 1997 contains broad powers of arrest, which are similar in scope and definition to the common law power of arrest.

The Act gives any person the power to arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence (it would be unusual for an ordinary citizen to exercise this power of arrest).[11] This is the most widely used power of arrest by the police. Where a member of the police, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the police, with reasonable cause, suspects to be guilty.[12]

Anyone arrested without a warrant is entitled to be told the grounds upon which they are being detained, in ordinary language and general terms, unless the circumstances are such that this must be apparent to them, or unless they render this impracticable, such as by running away, resisting arrest or otherwise causing a commotion.

Examples of specific offences or classes of offence which are the subject of associated statutory arrest powers include misuse of drugs,[13] organised crime[14] and official secrets.[15]

An arrest warrant is normally obtained by the police submitting a complaint by information on oath and in writing to a District Court judge or peace commissioner. The information will typically consist of a sworn statement of the police's belief that a specified indictable offence has been committed by an identified person. If the offence was committed outside the judge's jurisdiction but the person is believed to be within the said jurisdiction the warrant still stands[16]. A warrant is usually issued on foot of a statutory authority. It can allow the search of a person, search of premises, or both. Warrants will only be issued where there are reasonable grounds to do so.

  • (c) Pre trial detention

At common law the purpose of arrest is to bring a suspect before the court to answer a criminal charge. Therefore, once arrested and charged a suspect should be brought before a judicial authority as soon as is practicable. However, it has become possible for the police to use the detention period between arrest and appearance before a judge to question the suspect.

Section 30 of the Offences Against the State Act confers wide ranging powers of stop, search, arrest and interrogation on members of the police. Offences under this Act usually involve firearms or explosives offences. It is mostly used for murder enquiries and the investigation of terrorist or subversive offences. It also allows for the suspect to be detained initially for up to 24 hours and may, with the direction of an officer not below the rank of Chief Superintendent, be detained for a further 24 hours. A further 24 hours detention is permitted on application to a District Court judge by an officer not below the rank of superintendent.[17] These powers relate to "scheduled offences" made by government order. Scheduled offences relate to membership, direction and collecting information relating to unlawful organisations. The practice of questioning detainees about non-scheduled offences has been upheld by the Irish Supreme Court in The People (DPP) v Howley.[18]

It is permissible for the police to arrest a subject without a warrant and convey them to a Police Station where detention will follow if the member in charge has reasonable grounds for believing that detention is necessary for the proper investigation of an offence.[19] The permitted initial period of detention under the Act is six hours with an extension of a further six hours at the direction of an officer not below the rank of superintendent so long as they have grounds for believing that the extension is necessary for the proper investigation of the offence. A further twelve hour period of detention is permitted on similar grounds at the direction of a chief superintendent[20].

The Criminal Justice (Drug Trafficking) Act, 1996[21], allows for the detention of a person without warrant on reasonable suspicion that the person in question has committed a drug trafficking offence.[22] Seven days is the total cumulative detention period permissible through various extensions.

Detention of up to seven days is permitted in respect of four categories of offences:

  • Murder involving firearms or explosives;
  • Murder of a police or prison officer;
  • Possession of a firearm with intent to endanger life; or
  • Kidnapping or false imprisonment involving the use of a firearm.[23]
  • (d) Searches

The Constitution states as a fundamental right, "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law"[24]. The common law has also historically protected the rights of private property as far back as 1765 where the property of every man was held to be sacred.[25]

A police officer does not have a general power of entry onto a private property. However, a police officer does have a wide range of individual common law and statutory powers of entry, search and seizure. The entry onto premises to conduct a search must take place within the parameters of a properly issued warrant or pursuant to a statutory power or common law power of entry without warrant, in order to be legal.

The common law recognises very few powers of entry and search without warrant. The power to search property can arise incidentally if a police officer is already on private property either with consent or pursuant to the exercise of a power of entry, for instance if the member lawfully entered the property to affect an arrest and may then search the parts of the property in the possession of, or under the control of, the suspect at the time of the arrest.[26]

Under certain statutory powers a police officer also enjoys a range of powers to enter and search premises where there are reasonable grounds to believe that a relevant offence is being committed, for instance offences relating to the sale of liquor,[27] drug trafficking[28] and money-lending.[29]

Search warrants are usually issued on foot of statutory authority, for instance under the Misuse of Drugs Acts[30] or the Criminal Justice Act 2006[31]. The warrant may allow for the search of a person only, the search of premises only, or both. The length of time for which a warrant is valid depends on the authorising statute. Most Irish courts are reluctant to invalidate warrants on the grounds of typographical or grammatical, or transcription errors, which are not calculated to mislead any reasonable reader of the words.[32]


  • (e) Enforcing the Rules

Ireland takes a two tiered approach to improperly obtained evidence[33]

  • Where evidence is deemed to have been illegally obtained, i.e in breach of the legal rights of a suspect, the exclusion or inclusion of such evidence is a matter for the discretion of the trial judge; and
  • Where evidence is deemed to have been obtained in breach of the constitutional rights of a suspect it must be automatically excluded from evidence, unless there are extraordinary excusing circumstances in existence which would justify its admission; in which case, admission or exclusion is a matter for the discretion of the trial judge.

Line-ups and other identification procedures

  • (a) Line-ups

It is up to the accused whether or not to take part in an ID parade. The inherent dangers of identification evidence have been consistently recognised by the Irish courts. A judge must warn a jury about the risks of relying on identification evidence in all cases that turn substantially on such evidence.[34] The conduct of identity parades is not governed by a statutory code of practice; rather the Garda Siochana Criminal Investigation Manual (Garda Manual) contains a 23 point procedural plan for the conduct of a formal identification parade.

  • (b) Other identification procedures

A witness may identify a suspect in more informal circumstances such as on the street.[35] However the Irish courts have displayed a preference for formal identification parades. There are no formal requirements to be followed for such an identification parade but the above Garda Manual lays out guideline for the benefit of police officers concerned.[36] Photograph identification is another viable option in Ireland. Where the above procedures are not possible the witness should be presented with at least 12 photographs, including the suspect, with no names, dates or distinguishing features.[37]

Interrogation

Section 3(b)(iiI) below deals with the right to a solicitor in the police station. The issue of interrogation is governed to the Judge's Rules[38] as follows:

  • When a police officer is endeavouring to discover the author of a crime there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, from whom he thinks that useful information may be obtained.
  • Whenever a police officer has made up his mind to charge a person with a crime, he should first caution this person before asking him any questions or any further questions as the case may be.
  • Persons in custody should not be questioned without the usual caution being first administered.
  • The caution to be administered to a prisoner, when he is formally charged should be in the following words, "Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence". Care should be taken to avoid the suggestion that this answer can be only used in evidence against him, as this may prevent an innocent person making a statement which might assist to clear him of the charge.
  • A statement made by a prisoner, before there is time to caution him is not rendered inadmissible in evidence merely because no caution has been given, but in such a case he should be cautioned as soon as possible.
  • A prisoner making a voluntary statement must not be cross-examined, and no questions should be put to him about it except for the purpose of removing ambiguity in what he has actually said.
  • When two or more persons are charged with the same offence and their statement are taken separately, the police officer should not read these statements to the other persons charges, but each person should be given a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged wants to make a statement of reply, the usual caution should be administered.
  • Any statement in accordance with the above rules should, whenever possible, be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish.

As well as the Judge's Rules there are a number of other aspects of the interview that are governed by difference rules and guidelines.

  • Recent developments referred to below at Section 3(b)(iii) mean that detainees have a right to have a solicitor present before and during an interview. Any evidence obtained in interview during a period after a detainee has requested the presence of a solicitor and before that solicitor has arrived to advise him, may render any subsequent conviction unlawful.
  • Prior to the commencement of the interview the member of Garda Siochana concerned must identify himself and any other person present by name and by rank. A general requirement also exists that the interview should be conducted in a fair and humane way[39].
  • The interview must take place in rooms set aside for that purpose[40].
  • Only two Gardai may interview an arrested suspect at any one time. Only four Gardai may be present in the interview room at any one time[41].
  • Interviews of persons detained under s.4 the Criminal Justice Act 194, s.30 of the Offences Against the State Act 1939 or s.2 of the Criminal Justice (Drug Trafficking) Act 1996 must be electronically recorded if conducted in station equipped to do such recording[42].
  • The obligation to electronically record an interview only applies where the interview is being conducted a Garda station in which the equipment has been installed[43]. The Court of Criminal Appeal however set out that if it were established that an accused was brought to a Garda station without recording equipment to deliberately deprive him of having an electronic recording of his interview made, that would be a serious matter[44].
  • An interview does not have to be abandoned if the equipment cannot be used due to a functional fault or where it is already in use at the time the interview is to commence[45]. The interview can proceed where the member in charge of the station considers it reasonable that it should not be delayed.
  • The suspect must be informed that the interview will be recorded and also what will happen to the tapes[46]. All setting up of the recording equipment must be done in sight of the suspect[47]. All notes and memoranda made by the interviewing Garda must be read back to the suspect[48].
  • The aim of recorded evidence is to reduce any potential conflicts of evidence. Due to its importance at trial, it is important to note that any failure to comply with a provision of the regulations governing that electronic recording of interviews will not by itself render inadmissible as evidence anything said during the interview[49].
  • A break in the continuous and complete record of all periods during which the accused was interviewed will be considered when determining the weight to be attached to the tapes. Breaks are permitted in limited circumstance by the regulations[50].
  • If there is scope for interference with the tape subsequent to the recording, it will undermine any potential benefits. To prevent this, the master tape and any copies destroyed where he applies to the superintendent of the District in which the interview took place after a period of six months from the date of the interview. [51]. The seal of this tape can only be broken where one of the conditions in Regulation 15(1) is satisfied.
  • The tapes should be destroyed if no proceedings have been initiated at this point or if the person has been acquitted or discharged. However, the superintendent may preserve the tapes for a further six months where he is satisfied they may be required for the purposes of proceedings[52].
  • Specific provisions have also been made for deaf persons, for children and the mentally handicapped[53]


References

  1. Article 40.1, Bunreacht na hÉireann 1937.
  2. Article 38.1, Bunreacht na hÉireann 1937.
  3. Article 6(3) ECHR, 1953.
  4. DPP v Cowman [1993] 1 IR 335.
  5. Rice v Connolly [1966] QB 414.
  6. Criminal Justice Act 1984 and the Offences against the State (Amendment) Act 1998.
  7. Dermot Walsh, "Criminal Procedure" (Thomson Round Hall, 2002) at [7-03].
  8. Criminal Law Act 1976, Road Traffic Act 1961, Intoxicating Liquor Act 1960, Misuse of Drugs Act 1977 and the Road Traffic Acts 2006 and 2010.
  9. Article 40.4.1 Bunreacht na hÉireann 1937.
  10. Dermot Walsh, "Criminal Procedure" (Thomson Round Hall, 2002) at [4-09].
  11. Section 4(1) Criminal Law Act 1997.
  12. Section 4(3) Criminal Law Act 1997.
  13. Section 25 Misuse of Drugs Act 1977.
  14. Section 16 Criminal Assets Bureau Act 1996.
  15. Section 15 and 16(4) Official Secrets Acts 1963.
  16. Dermot Walsh, "Criminal Procedure" (Thomson Round Hall, 2002) at [4-106].
  17. Section 10 Offences Against the State (Amendment) Act 1998.
  18. People (DPP) v Howley [1989] ILRM 629.
  19. Section 4 Criminal Justice Act 1984.
  20. Section 9 Criminal Justice Act 2006.
  21. Section 2 Criminal Justice (Drug Trafficking) Act 1996.
  22. Section 3(1) Criminal Justice Act 1994.
  23. Section 50 Criminal Justice Act 2007.
  24. Article 40.5, Bunreacht na hÉireann 1937.
  25. Entick v Carrington [1765] 2 Wils 275.
  26. Dermot Walsh, "Criminal Procedure" (Thomson Round Hall, 2002) at [8-07].
  27. Section 43 Intoxicating Liquor Act 1988.
  28. Criminal Justice Act 1996, First Schedule.
  29. Section 105, Consumer Credit Act 1995.
  30. Section 26 Misuse of Drugs Acts 1977 to 1984.
  31. Section 6, Criminal Justice Act 2010.
  32. DPP v Mallon (Gareth) (unreported, 2011, CCA).
  33. People (AG) v O'Brien 1 [1965] 1 IR 142.
  34. People v Hughes 92 ILTR 179.
  35. People v Galvin [1962] IR 325.
  36. Dermot Walsh, "Criminal Procedure" (Thomson Round Hall, 2002) at [6-57].
  37. Dermot Walsh, "Criminal Procedure" (Thomson Round Hall, 2002) at [6-57].
  38. Although the Judge's Rules are not rules of law they have stood the test of time and will be departed from in only very limited circumstances.
  39. Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, reg. 12.
  40. Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987, reg.12(5).
  41. Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987, reg.12(3).
  42. Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997.
  43. Dermot Walsh, "Criminal Procedure" (Thomson Round Hall, 2002) at [6-07].
  44. People (DPP) v Holland, CCA, June 15, 1998.
  45. Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, reg. 4(3)(a).
  46. Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, reg. 5(1).
  47. Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, reg. 6(1).
  48. Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, reg. 12.
  49. Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, reg. 27(4).
  50. Dermot Walsh, "Criminal Procedure" (Thomson Round Hall, 2002) at [6-08].
  51. Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, reg. 13.
  52. Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, reg. 14.
  53. Dermot Walsh, "Criminal Procedure" (Thomson Round Hall, 2002) at [6-19-6-20].



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