Liberty & Criminal Law

Protection of Liberty

The protection of person’s liberty is deemed to be fundamental.  For this reason many constitutional rights relate have been developed in the context of criminal law.  In particular the position in relation to arrest, bail, detention, trial and imprisonment is strictly subject to constitutional right.

The Constitution largely underpins basic criminal procedure.The following board rights are recognised by the Constitution but may be limited and restricted in certain circumstances.

• Right to be informed of the charges;
• Right to be charged at earliest opportunity;
• Right and access to and consult a lawyer;
• Free legal aid if required;
• Medical treatment if required;
• Right to silence;
• Right not to be oppressively interrogated.

Arrest and Questioning

Legislation has developed and expanded allowing for a right of detention for questioning.  See our sections on criminal procedure.

Ordinarily arrest should not be the purpose of detention.  However despite previous indications of possible constitutional difficulties with such laws the Courts have decided that special provisions for allowing detention for questioning is constitutional.

The manner of questioning must not be oppressive.  Experience has shown that persons under psychological pressure have confessed to offences and crimes in which they had no involvement. The Courts may decide that evidence acquired from oppressive questioning is not admissible on the basis that it is unconstitutional.

A confession must be voluntary.  A confession obtained in breach of constitutional rights will generally be in admissible as proof of guilt.

Formerly the Courts decided that preventative imprisonment was not permitted.  On these grounds it was decided that bail could not be refused on the basis that the person may re-offend while on bail.  However the Constitution was amended to permit denial of bail where it is reasonably considered necessary to prevent commission of a serious crime by that person.

Right to Silence

Generally a person has a constitutional right to silence or so called privilege against self incriminate.  This means that the Court cannot ordinarily draw inferences from a refusal to answer questions.

Much legislation in the last 20 years particularly in administrative regulation such as tax collection, financial services, competition law, agriculture and food provides that persons most answer questions put by the Gardai or other relevant authorities.

The Courts have decided that the constitutional right is limited and that in certain circumstances legislation may strike an appropriate balance between the rights of the person and the interest in protecting the public generally.  The right to silence is a constitutional right but it is not absolute.

Retrospective Crime

A person cannot be deprived of liberty other than for breach of a pre-existing criminal law.  A criminal trial must be prosecuted in accordance with basic fair procedures.

The Constitution specifically prohibits the retrospective creation of a crime.  A person is presumed innocent until proven guilty.  A person must be proved guilty beyond a reasonable doubt.

The Courts have struck down vague 19^th century legislation in relation to vagrancy as unconstitutional.  Where the offence is subjective and there is not clearly defined a matter of subjective opinion a law may be invalid.  The onus is on the State to prove guilt.

Fair Trial

There is a right to a trial within a reasonable period.  Where there has been a long an inordinate delay a fair trial may not be possible.  This will only apply if the delay has been excessive and prejudicial in the circumstances.  Where the delay is due to the fault of the State it is more likely not to be permitted.

Where pre-trial publicity might prejudice trial the trial may be unconstitutional the trial may not proceed.

Legislation which puts the onus of proving their innocence on the the accused is likely to be unconstitutional.  This does not mean however that where a person is found in possession of incriminating items that this of itself may be proof of guilt.

A person has a right to defend themselves in Court.  He must have the time, ability, expertise and facilities to prepare a defence.

A person generally has a right to be present at his own trial subject to issues of contempt of Court and good order.  If the accused does not understand the language at trial he would have a right to interpreter.  There is a right to an independent impartial judge and jury.  Where there is any possibility the judge having interest or bias he should not hear the case.  Equally where a jury member is specifically biased a trial may be invalid.

Fair Trial Process

There is generally a right to cross-examine and confront person’s accusers and witnesses for the prosecution.  This is to test and verify the accuracy of their evidence.  The right can be limited for the purpose of protecting the accused as in the case of offences against children and certain sexual offences.

In a trial on indictment the jury should be able to observe the reaction and demeanour of witnesses.  However a balance may be allowed between the rights of the accused and those of the victim.

There is a right to a lawyer both after arrest and during trial.  Where a person cannot afford a lawyer the State must provide legal aid.  A person is entitled to mount his own defence without a lawyer.

Evidence obtained in breach of constitutional rights is generally inadmissible unless there are extraordinary excusing circumstances.  This may happen, for example, where there a third person is in danger.

Punishment

A sentence must be proportionate and appropriate to the crime.  Provisions which allow the Minister of Justice to allow a juvenile to be imprisoned until the Department of Justice saw fit to release were deemed unconstitutional because the length of the sentence was potentially open ended.

Generally a person cannot be tried twice for the same offence.  Where a person has been acquitted before the High Court the Constitution allows an appeal to the Supreme Court and the Courts have held that this overrules the general right against double jeopardy.

A person may be retried if his conviction has been quashed.  The right only applies where a person has been probably acquitted before a fully competent Court.

Penalties

See our sections in relation to criminal law as to what constitutes a minor offence. Generally it depends on the nature of the state of the prospective penalty.  As a rough guide it is assumed that a potential maximum punishment of more than a year or €5,000 would tend to make an offence a non-minor offence.

The Courts distinguish between the principle of punishment and secondary consequences.  Where a person loses a licence such as a driving licence or pub licence for breach of legislation this does not make the offence a non-minor offence even though it has drastic consequences for that person concerned.

Trial by Jury

There is a right to be tried by jury except for:

• Minor offences;
• Offences tried before the Special Criminal Court;
• Military law.

The Special Criminal Court may be constituted without a jury where there are good reasons such as those related to intimidation of witnesses and threats.  Formerly they were used in paramilitary cases and may also be used in respect of gangland type.

Juries must generally be selected randomly.  The Constitution does not require any number but legislation set the number at twelve.  Legislation permits majority verdicts of at least ten persons.