Article 38.1: Trial in Due Course of Law

Question 1

Vagueness and the case of King v AG

Answer 1

Article 38.1 and the right to liberty require that a criminal offence be well defined and not
‘vague’.

This was established in the seminal case of King v AG Section 4 of the
Vagrancy Act 1824 provided for an offence of “loitering with intent.” The Court held that this was unconstitutionally vague. A criminal offence must be specified with precision and clarity.

Question 2

Vagueness and the case of Dokie v DPP

Answer 2

Dokie v DPP

Section 12 of Immigration Act – Offence for non-national not to produce papers on demand ‘unless he gives a satisfactory explanation’
Held (Kearns P) - Unconstitutionally vague

Question 3

Vagueness and the case of Cox v DPP

Answer 3

S.4 Vagrancy Act 1824 - Offence of “lewdly and obscenely” exposing penis

Held – That language as sufficiently clear

Language of Act specifically referred to ‘penis’ unlike in Douglas v PP

Question 4

Vagueness and the case of McNamee v DPP

Answer 4

The applicant had
been granted temporary release from prison subject to the condition of being ‘of good behaviour’.
He argued that that phrase was impermissibly vague. On the facts he had committed the offence
of trespass whilst on temporary release. The Court held that ‘good behaviour’ was a legal term
of art - meaning not to commit any criminal offence. Thus, it was not held to be vague.

Question 5

unconstitutionally obtained evidence- what are the facts of People (AG) v O’Brien

Answer 5

People (AG) v O’Brien concerned an error on a search warrant. It referred
to ‘Cashel Road’ instead of ‘Captain’s road’. On the facts the Court found that the breach was
only accidental, and the evidence was admissible. The Court established a three stage test for
the exclusion of evidence:

1. There must be a conscious and deliberate breach of constitutional rights;
2. There must be a causal link between the breach and the evidence obtained;
3. There must be no extraordinary excusing circumstances.

Question 6

unconstitutionally obtained evidence- what are the facts of DPP v JC

Answer 6

The decision of DPP v JC made dramatic changes to the Irish law on improperly obtained evidence. By the slimmest of majorities, the court overhauled a longstanding rule of evidence so that evidence obtained unconstitutionally can now be admitted where officers of the State claim to have no knowledge of the breach.

knowing, reckless or grossly negligent breach will lead to an exclusion except in exceptional circumstances

Question 7

unconstitutionally obtained evidence- what are the facts of DPP v Kenny?

Answer 7

Evidence obtained on foot of bad search warrant
Not intentional as procedure in use for years
Held – ‘Act’ must be conscious and deliberate

Question 8

what are the three examples walsh J gave in O’Brien that were extraordinary excusing circumstances

Answer 8

(i) an imminent destruction of vital evidence;
(ii) to rescue a victim in peril; and
(iii) evidence obtained by a search incidental to and contemporaneous with a lawful arrest although made without a valid search warrant.

Question 9

Casual link - Walsh v O’Buachalla facts

Answer 9

A blood sample was obtained while custody. The right of reasonable access to a solicitor had been breached, but the Court admitted the evidence as there had been no causal link between the breach and the obtaining of the sample.

The accused was obliged to provide the sample. The presence of a solicitor would not have changed that.

Question 10

extraordinary excusing circumstances - DPP v Shaw

Answer 10

The accused was unlawfully and unconstitutionally detained for two days. The Gardai were searching for two women whom the
accused had allegedly kidnapped, raped and/ or murdered. He made an admission to the rape
and murder of one of the women during hat time. Gardai had believed that he may disclose
their whereabouts if his questioning continued. The Court held that the evidence was admissible
due to the need to protect the victim’s right to life.

Question 11

Third party rights - DPP v Lawless

Answer 11

one can only rely on a breach of one’s own constitutional rights. This was decided in People (DPP) v Lawless
where evidence was obtained on foot of defective warrant to search an apartment.
However, the apartment was not that of the accused. The Court held that it should be treated as illegally obtained evidence, as distinct from unconstitutionally
obtained evidence.

Question 12

Right to a solicitor

Answer 12

In People v Healy, it was held that a detained person has a right to a reasonable access to a solicitor

Question 13

Right to a solicitor DPP v O’brien

Answer 13

a. Accused wanted a solicitor, but did not name one
b. Gardai recommended one, knowing there would be a delay in arrival
c. Made admissions prior to arrival
d. Held – Statements made before arrival were inadmissible
One made afterwards were admissible

Question 14

is there a right for someone to be informed of right to solicitor?

Answer 14

It appears that an accused person does not have a constitutional right to be informed of their right to speak to a solicitor, it was stated in the case of DPP v Farrell and DPP v pringle

Question 15

what are the facts of DPP v Gormley & White?

Answer 15

Gormley & White is a very important case in this area. It concerned two separate cases being heard together. Gormley had made admissions before the arrival of his solicitors. The question arose as to whether the Gardai should have to wait a reasonable time for the solicitor to arrive before commencing questioning of the accused.

White had forensic
samples taken from him before his solicitor arrived. The question in that respect was whether Gardai should wait until solicitor arrived before taking samples.

The Supreme Court held that one does have a right not to be interrogated until his
solicitor has given advice. The Court relied heavily on ECHR and US case-law in making its
decision. It expressly reserved the question of what would happen where a solicitor does not arrive within a reasonable time. That issue remains undecided.

The Court dismissed White’s
case and held that there was no requirement to wait for the solicitor’s arrival in such
circumstances. Thus, there is a difference between the giving of forensic samples and answering questions in interview.

Question 16

The right to have a solicitor present during questioning DPP v Doyle

Answer 16

1. Historically it was held in both Lavery v Member in Charge, Carrickmacross Garda Station and M(J) (a minor) v Member in charge Coolock Garda Station that there was no right to have a solicitor during questioning
2. 07 May 2014 Department of Justice Decision
   - Solicitors may be present during interview
   - (was noted in Gormley that ECHR and US authorise lawyer to be present)
3. DPP v Doyle - This
   was a conviction appeal in relation to the a murder. Doyle had made a confession in his 15th interview with no solicitor present. He had had access before the interview his solicitor had also been permitted to interrupt that particular interview. By a majority decision, the Court held that there was no right to have a solicitor present during questioning. Charleton J noted the various procedural
   safeguards in place for accused persons in custody in Ireland and held that it cannot be concluded’ that this wider right exists in Ireland. He distinguished the US case-law having noted the difference in safeguards between the two jurisdictions.

Question 17

Ineffective representation

Answer 17

DPP v Shaughnessy
- Issue – Accused argued his lawyers didn’t properly put his case in cross-examination in a rape trial.

Test:

• Serious burden
• Considerably higher than submitting that better legal advice could have given or that a different approach could have yielded a better outcome.
• Per Charleton - “the relevant conduct was misconduct outside the range of what any competent advocate would engage in; and that the defence of the accused was conducted with such a degree of incompetence or disregard of the accused’s interests as to create a serious risk of a miscarriage of justice.”

Question 18

explain unfair trial publicity

Answer 18

It has been held that criminal trial may be prohibited if pre-trial publicity would have the effect of rendering the trial unfair.

The Courts have placed considerable confidence in the capacity of the trial Judge to direct the jury with regard to adverse pre-trial publicity and their duty to ignore it.

Therefore, prohibition has rarely been granted. Often the Courts will delay a trial for a number of months to allow the ‘fade factor’ to set in. This means that the trial would be delayed to allow the immediate prejudice of unfair publicity to dissipate.

Question 19

what is the test for unfair trial publicity

Answer 19

the test is whether there is a real risk of an unfair trial which cannot be remedied by appropriate jury directions.

There is constitutional right to be tried by a jury unprejudiced by pre-trial publicity and that this right was superior to the community right to see crime prosecuted.

Question 20

what are the facts of Z v DPP? (publicity)

Answer 20

Accused of rape from the x case. The balance is between community rights to prosecute and accused protection.

Here, it had attracted significant attention from the media.

Key factor is demonstration of a real and substantial risk. This means that it can’t be eliminated by the trial judge.
Need to address and deal with it to stop the jury determining guilt based on media coverage.

Question 21

In the case of Nash v DPP, clarke J noted that there is 3 categories of culpable delay

Answer 21

1. Delay which, having regard to the time, would be a sufficient breach of constitutional fairness so as to make it proportionate for the matter to go ahead.
2. A lapse of time which, irrespective of blame, had rendered it impossible that a true trial can take place on its merits, which has placed the controversy beyond the reach of litigation.
3. Culpable delay where a trial is still possible but is significantly further from the perfect trial. Here justice is delayed by fault and a balancing exercise must be done.

Question 22

what was held in the most important and recent case of DPP v CC? (delay in sex abuses cases)

Answer 22

serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of the case.”

Determining this issue “should be left to the trial judge rather than, … prohibiting the trial before it has commenced” as “a trial judge would normally be in a much better positIon to assess the real extent to which it might be said that prejudice had been caused to the defence by the lapse of time in question”.

Question 23

The right to silence

Answer 23

In the case of Heaney, the courts have recognised a ‘right to silence’ in the Constitution.

in appropriate circumstances, where a suspect remains silent or refuses to answer questions, that silence may itself constitute a criminal offence

it may also be permissible for legislation to allow ‘inferences” to be drawn from an accused failure to answer questions

Question 24

Article 38.1

Answer 24

no person shall be tried on any criminal charge save in due course of law- How have the courts interpreted the phrase “due course of law”. Only applies to a criminal charge

Question 25

Rock v Ireland (inferences from silence)

Answer 25

Inferences could be drawn from silence; inferences could not form the basis of conviction in absence of other evidence; only such inferences as appear proper to the court can be drawn; court could refuse to allow inferences in circumstances where its prejudicial effect would wholly outweigh its probative value as evidence.

Question 26

DPP v Finnerty (inferences from silence)

Answer 26

It was held that the right to silence would be significantly eroded if a jury was invited to draw adverse inferences from an accused’s refusal to answer questions during an interview.

Question 27

Article 40.5

Answer 27

The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance in law

Question 28

what is a dwelling?

Answer 28

DPP v Corrigan - held that the driveway was not a’ dwelling’

Question 29

what are the facts of DPP v McCann? (Inviolability of the Dwelling)

Answer 29

The accused was charged with his wife’s murder after deliberately burning down their house. He sought to exclude evidence
gathered during the investigation of the burnt down house on the basis that it breached the inviolability of the dwelling.

On the facts it was held he had given implied consent, but the
Court questioned whether a burnt down house amounted to a dwelling at all. Either way, it
held that the preservation of vital evidence would have constituted ‘extraordinary excusing circumstances.’

Question 30

what are the held in the case of Damache v DPP? ( Error on a Warrant)

Answer 30

The supreme court held that the protection of the welling required fire procedures when making the decision to issue. warrant. Thus the decision maker was required to act judicially and to be independent. The court held that this had not been done as the superintendent was not independent. On the foot of that finding the court found section 29 of the Offences against the state act which gave power to the superintendent to issue a search warrant to be unconstitutional

Question 31

Right to an interpreter

Answer 31

The right to a fair trial includes the right to understand the proceedings. Thus, in The
State (Buchan) v Coyne the High Court quashed the conviction of the
accused where the District Court judge permitted evidence to be heard in Irish without
translation for the accused who only spoke English.

Question 32

is there a right to have a jury capable of hearing a case in irish without the need for translation?

Answer 32

In MacCarthaigh v Ireland a theft trial was being held
in Dublin where the defendant was working through Irish. He argued that he was entitled to a jury who did not need a translator. The Supreme Court held that there was no such requirement.

Question 33

What was held in the ECHR case of saunders and Murray?

Answer 33

It was held in Saunders that drawing inferences could be in breach of the ECHR where no warning was given or the inferences were unfairly or unreasonably withdrawn.

In Murrary even though warnings had been given and no unfair inferences were drawn, as the inferences were drawn in circumstances where the accused had been denied access to a lawyer there was a breach of Art 6 ECHR.