Personal Liberty

Question 1

Personal liberty

Answer 1

• Rationale:
• Trial in due course of the law:
• Arrest, bail and detention:
• Unconstitutionally obtained evidence (the exclusionary rule):

Question 2

Personal liberty

• Rationale:

Answer 2

constitutional right and is arguably, the most important. Article 40.4.1: citizen may not be deprived of her liberty save in accordance with the law. Personal liberty is a fundamental freedom. The most intrusive and scathing interference to human life is being arrested usually by the arm of the executive (Gardai). Any person can make an application under Article 40.4.2

Question 3

Personal liberty

• Trial in due course of the law:

Answer 3

no person can be tried for any crime, save in due course of the law under Article 38.1 and this is because some non-citizens sometimes need to rely on constitutional provisions.

It was further noted in DPP v Shaw that where one constitutional right clashed with the right of personal liberty of another, there is a duty on the State to protect what is the more important right, even at the expense of another important, but less important right. This issue comes about normally when someone is arrested or accused of a crime. Look at issues here around evidence, unconstitutionally obtained evidence (the exclusionary rule, see below), the right to silence and right to access to a lawyer and publicity i.e. administration of justice. Note if there are any risks of an unfair trial (expediency in sexual abuse cases). Are there any issues of inordinate or inexcusable delay, presumptive prejudice, balancing exercise and actual prejudice?

Adverse pre-trial publicity: DPP v Haugh.

Question 4

Personal liberty

• Arrest, bail and detention:

Answer 4

you learned in criminal law about asking questions; search before arrest; the procedure of arrest; reason for arrest; detention; right to silence; and unlawful arrest.

King v AG:

DPP (Strafford) v Fagan:

DG v Eastern Health Board:

King v AG:

People (DPP) v Walsh

State (Trimbole) v Governor of Mountjoy Prison

People (AG) V O’Callaghan:

Question 5

King v AG:

Answer 5

SC struck down Vagrancy Act which attached criminal liability to a suspected person or a reputed thief.

Question 6

DPP (Strafford) v Fagan:

Answer 6

SC determined that Gardai have a wide common law power arising out of their duty to prevent crime and to check motor vehicles but that this duty must be exercised with civility and courtesy and not in a capricious manner.

Question 7

DG v Eastern Health Board:

Answer 7

order for temporary protective detention of a teenager in St Pats. Ct indicated that there was a conduct between the right to liberty and the order in the interests of his welfare which should only be used in extreme occasions and for short periods of time where ct is satisfied that the order is in the best interests of the child and that there is no other suitable facility. An arrest is the seizure and detention of a person for the purpose of being charged.

Question 8

Unless a person is arrested pursuant to a warrant, he must be told why the arrest is taking place at least in general terms without describing the precise statutory nexus:

Answer 8

People (DPP) v Walsh.

Question 9

A person cannot be arrested unless there is a reasonable suspicion that they have committed a crime:

Answer 9

State (Trimbole) v Governor of Mountjoy Prison.

Question 10

BnaH was amended to allow for bail following People (AG) V O’Callaghan:

Answer 10

refusal of pre-trial bail; would be contrary to the principle of personal liberty that any person should be punished in respect of a matter he has not been convicted of or should be deprived of his liberty upon only the belief that he will commit offences wile at liberty, save in the most extraordinary circumstances carefully spelled out by the Oirechtas for the preservation of public peace and order of the public safety of the State.

Question 11

• Unconstitutionally obtained evidence (the exclusionary rule):

Answer 11

also crosses over with the constitutional right to the inviolability of the dwelling under Article 40.3.2 and cts must strive to reconcile 2 highly important interests which are liable to come into conflict in the invitation of a crime, namely the interests of the individual being protected from unconstitutional and illegal invasions of liberty by the authorities and the interests of the state in securing evidence bearing on the commission of a crime.

People (AG) v O’Brien:
DPP v Madden
DPP v Kenny
DPP v JC:

Question 12

People (AG) v O’Brien:
This test was applied in DPP v Madden as regards an incriminatory statement admitted at trial which should have been excluded.

Answer 12

was the basis for this (where there was a mistake on the search warrant). SC noted that it must uphold the objection by an accused person to the admissibility at his trial of evidence obtained or procured by the State or its agents as a result of a deliberate and conscious breach of the constitutional rights of an accused person where no extraordinary excusing circumstances exist, such as the immense destruction of vital evidence or the need to rescue a victim in peril. This became the test for unconstitutionally obtained evidence.

Question 13

DPP v Kenny:

Answer 13

provided that unconstitutionally obtained evidence must be excluded, regardless of the degree of care exercised or the state of knowledge of those involved, unless there were “extraordinary excusing circumstances”.

Question 14

DPP v JC:

Answer 14

application was made to the TJ to exclude the admissions made by the respondent whilst in custody.

Having concluded that there had been a breach of the respondent’s constitutional rights and that there were no extraordinary excusing circumstances which would permit the evidence to be admitted, TJ directed the jury to acquit the respondent on all charges.

It was noted that the exclusionary rule in Ireland represents a near absolute exclusion which is the most extreme position adopted in the common law world.

The State took the opportunity to raise the issue as to whether it was time to revisit the exclusionary rule provided for by Kenny: SC formulated and overruled Kenny by holding that now evidence obtained unconstitutionally will be admissible if the prosecution can show the breach was due to inadvertence.

The upshot of the decision is that provided the State can demonstrate that unconstitutionally obtained evidence was obtained by reason of an inadvertent breach of the accused’s constitutional rights then it will still be admitted in evidence against the accused.

Question 15

Fair procedure

Answer 15

• Rationale:
• Rules of natural justice: derive from common law rules are audi alterem partem
• Right to a good name:
• Exceptions in legislative process:
• Decision maker is obliged to give reasons:
• Proportionality:

Question 16

Fair procedure

• Rationale:

Answer 16

in Chap 3 we learned about Article 40.1

More broadly this right can be interpreted as meaning a right to equality within the legal system.

McMahon v Leahy: inequality of treatment does not conform with the implicit guarantee in Article 40.1.

Question 17

Fair procedure
• Rules of natural justice:
derive from common law rules are audi alterem partem =

Answer 17

both sides are heard.

This is fundamental to fair procedure.

The law is not concerned with the merit of the decision but the manner in which it is reached.

Question 18

The other common-law rule is nemo index in causa sua =

Answer 18

one can never be a judge in one’s own cause. This means that the person making the decision appears to be without bias in relation to the decision being taken.

Question 19

Fair procedure

• Right to a good name: Article 40.3.2:

Answer 19

Re Haughey: witness was asked before a committee of the mail to be cross examined and they were not allow to cross examine another witness who had given prejudicial evidence against him not allowed to address the committee as to his own defence.

This rule was applied in Goodman v Hamilton, as well as in Flanagan v UCD: defending oneself in accusations of academic plagiarism.

Question 20

Fair procedure

• Exceptions in legislative process:

Answer 20

Cassidy v Minister for Commerce, or in emergency situations O’Callaghan v Commissioner for Public Works.

Question 21

Fair procedure

• Decision maker is obliged to give reasons:

Answer 21

Mallak:
refusal to provide a certificate of naturalisation. Here it was noted that several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based.
As a result of this judgment, all bodies subject to judicial review as well as inferior courts are required to provide reasons basing their decision save where obvious, rather than simply rejecting or accepting a position.

Question 22

Fair procedure

• Proportionality:

Answer 22

challenging a decision has arguably become easier as a result of the acceptance by SC of a proportionality analysis in the split judgment of Meadows.

This case involved a judicial review of an administrative function. In assessing the reasonableness of an administrative decision affecting fundamental rights, cts are entitled to consider the proportionality of the decision.

Prior to this case, an applicant faced the onerous hurdle of convincing HC/SC that a decision “flies in the face of fundamental reason and common sense”.

The modified Meadows test, simply put, grafts the principle of proportionality onto existing principles.

Minister for Justice and Equality v Ostrowski:

Kelly v An Garda Suiochana Commissioner:

Question 23

Minister for Justice and Equality v Ostrowski:

Answer 23

appeal relating to the European Arrest Warrant system. Ct noted Meadows but did not seek to modify the test. Instead, ct commented on the doctrine as a “valuable assessment method” and that “there is a powerful value in its name, identity and recognition which adds to its intrinsic impact”.

Question 24

Kelly v An Garda Suiochana Commissioner:

Answer 24

decision making body should give reasons and generic reasoning is not enough.