Criminal Process II

Trial without Delay

The Supreme Court has held that the Constitution guarantees a right to a trial without undue delay. The delay may ensue before prosecution or after commencement. Undue delay is said to prejudice the accused in the preparation of his defence and thereby deny a fair trial.

The Constitution guarantees to every citizen that the trial of a person charged with a criminal offence shall not be delayed excessively or to express the same proposition in positive terms, that the trial will be heard with reasonable expedition. In a case where there had been a delay of over two years where key witnesses had immigrated, it was held that the delayed trial would be a denial of fair procedure.

A balance is to be struck between the public and the State’s interest and the individual’s right to a fair trial. Regard is to be hard to the nature of the delay, the reasons, the accused’s actions in relation to the matters concerned, prejudice to the accused, the cost and duration of the trial, pretrial anxiety, impairment of defences  and  to the public  interest in having offences prosecuted.

Many cases of historical child abuse have been prosecuted since 1990. The courts have generally allowed these trials to proceed.

Trial in Public

Trials are generally to be held in public. The Constitution provides that save in special and limited circumstances as may be prescribed by law, justice shall be administered in public. The principle is reflected in international human rights documents.

The District Court may exclude members of the public excepting bona fide representatives of the press where an application is made to strike out proceedings on the basis of insufficient evidence to put a person on trial.

In cases of sexual offences, the judge may exclude all persons except relatives or friends of the complainant or the accused, if the accused is a minor and bona fide representatives of the press.

Applications for search warrants or to undertake surveillance are not heard in public.

A judge may apply reporting restrictions in the interests of a fair trial. This should be done exceptionally only. The courts generally accept that adverse reporting of trials while ongoing do not per se affect the jury and can be explained by proper directions to the jury.

Trial by Jury

The right to trial by jury is an ancient right. There is a right to trial by jury for non-minor offences under the Constitution, except those, which may be tried by a Special Criminal Court and Military Courts, in accordance with the special constitutional provisions in that regard.

Traditionally, juries comprised 12 members and acted unanimously. Legislation has allowed for a majority verdict in certain cases, with a verdict of ten jurors. A jury must determine the matter either unanimously (or in those limited cases acting by at least ten members), with a verdict of conviction or acquittal on the charges. There are some cases, alternative verdicts may be made.

In the De Burca v Attorney General case, it was held it was part of the accused’s right to a representative jury, that the jury be chosen from the entire adult population. Previously, women and persons who did not pay rates were excluded unless they applied to be on a jury. The Juries Act was found unconstitutional, both because of the discrimination against women in terms of civil rights, but also because of the failure to provide a representative jury for an accused.

The contention that the Constitution requires that the jury be drawn from the vicinity where the alleged crime took place, has been rejected. A power to transfer trials to the Dublin Circuit from outside Dublin was held to be constitutional.

The Supreme Court has rejected a claim that there is a constitutional right to have one’s case heard before an Irish speaking jury. The Supreme Court held that the jury would be insufficiently representative of the community. The jury must be independent. Where it is shown that members of the jury have an interest in the matter, the conviction may be set aside.

In some limited cases, a possible bias might be remediated by directions to the jury where they become apparent in the course of proceedings. Other issues of bias may be so fundamental as to preclude a fair trial. The Supreme Court has upheld the constitutionality of majority verdicts based on ten of at least eleven jurors.

Role of Jury

The issues of fact in the trial are to be determined by the jury. The judge may not direct the jury to find particular facts. He may not accordingly direct a guilty verdict.

The judge should properly instruct the jury. They should be given sufficient time to consider their verdict. They should not be pressurised. An improper direction or improper handling of the jury may be a ground on which the Court of Appeal may set aside a conviction.

Pretrial publicity might preclude a fair trial by prejudicing the pool of possible juries. Generally, however, courts — it will only be in most exceptional circumstances that this would preclude a matter proceeding to trial. The courts tend to the opinion that appropriate instructions may rectify the effect of adverse and unfair pretrial publicity.

In a famous case involving charges against a former Taoiseach for obstructing a Tribunal, comments by public figures and poster campaigns led to the DPP, the trial judge staying trial in the interest of a fair trial.

Presumption of Innocence

It is a basic common law principle recognised in international human rights documents that a person should be presumed innocent until proven guilty. Under the common law system and as embodied in the constitutional principles, a person must be found guilty beyond a reasonable doubt on all facts relevant to the determination.

In some case, statutes create a presumption that once primary facts are proved, that a  particular conclusion should be drawn from them. Generally, such statutes do not infringe the Constitution provided that they do not purport to be conclusive.

They may shift the balance of proof onto the accused. In some cases, depending on the interpretation of the statute, it is sufficient for the accused to raise a reasonable doubt, whereas in other cases, he must raise a defence to the contrary, which must be established on the balance of probability.

It is likely that to reverse the burden of proof would be unconstitutional in most circumstances. A statute that creates a legal presumption of guilt may be constitutionally suspect. The courts may interpret such statutes as creating an evidential burden in order to interpret them consistently with the Constitution.

Right to Silence

At common law, the so-called right to silence embraces a number of features. Pretrial, there was a general principle that a person did not have to answer questions put by a police authority. He was not obliged to give evidence and could not be cross-examined unless he chose to do so. His failure to give evidence could not be the subject of adverse criticism before a jury.

The so-called right to silence is famously embodied in the US Federal Constitution, Fifth Amendment. It has been interpreted as implicit in the European Convention on Human Rights and is found in the UN covenants.

The Judges Rules which date from the early 20th century and have an earlier origin require that police or member of An Garda Síochána should administer the usual caution when they have decided to charge a person with an offence. The traditional formulation was that the accused was not obliged to say anything but if he did so,  what he might say could be taken down and used in evidence against them.

The Judges Rules do not have the force of law. The courts have discretion not to admit evidence obtained in breach of the rules. The failure to comply with the Judges Rules leads to a discretion only to refuse evidence. It has not been given constitutional status in Ireland.

Access to Legal Advice

There is a right to access to legal advisers while in custody and detention for questioning. However, there is no prohibition on a person being questioned in the absence of his chosen lawyer. See generally the sections on criminal procedure. Where a person seeks legal advice, reasonable steps must be taken to meet this request.

Expression has been given to the principles by the Criminal Justice Act 2011. The principle would appear to be required by the European Convention on Human Rights jurisprudence.

Legal Requirement to Answer

A further aspect of the right to silence is the right not to be compelled to make an incriminating admission. Some modern legislation requires persons to answer questions in circumstances whereby it is an offence to fail to do so. However, the general approach of such legislation is to provide that the answers are not directly admissible in a prosecution against the maker. Such powers arise, most frequently in the context of administrative enforcement.

The most famous grounds were those in the Offenses Against the State Act which require persons to answer certain questions relating to their presence or absence at particular places at particular times.

A  Road Traffic Act provision requiring a person to give evidence, under threat of penalty, to give information relating to the identity of a person using a vehicle, was held not to be voluntary.

The Supreme Court has held in Re National Bank Ireland, that it is lawful for persons to be obliged to answer questions on foot of criminal sanction, but that the answer should not be admissible against them or persons concurring in making the statement. Further, a jury may not draw adverse inferences from silence or failure to testify.

The Offences against the State Act and Criminal Justice Act 1984, permit adverse inferences to be drawn from the failure of a person to account for his presence or certain objects in his possession are found at a particular place in particular circumstances. The Supreme Court has upheld legislation that allows or requires adverse inferences to be drawn from the failure to answer questions such as the above. The Supreme Court held it to be a legitimate objective in the fight against crime.

The Offences against the State Act provided that if a person failed to give or refuse to give a full account of his movements and actions during a specified period, he was guilty of an offence. It was subject on summary conviction to a penalty of up to six months imprisonment. On a challenge to the constitutionality of the provisions, they were held to be constitutional on the basis of the State’s requirement to protect itself, in the exceptional circumstances provided under the Offenses Against the State Act.

ECHR and  Right to Silence

The European Court on Human Rights has found the provisions inconsistent with the Convention rights. The European Court found the compulsion to be inconsistent with the privilege against self-incrimination.

The European Court of Human Rights in Murray v United Kingdom (1996) 22E.H.R.R.29 has considered the issue of adverse inferences and whether or not this is compatible with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which guarantees the individual a right to a fair trial.

The Court ruled that it would be incompatible with the right to silence if a conviction were based solely on the accused’s failure or refusal to answer police questions. It did, however, accept the legality of taking an accused’s failure or refusal to answer questions into account in considering the weight or persuasiveness of the prosecution evidence.

The Court also said that a number of factors would have to be considered in deciding whether or not adverse inferences were in line with the European Convention for the Protection of Human Rights and Fundamental Freedoms. Chief among these were:

• Whether or not the appropriate warnings had been given to the accused as to the effect of remaining silent
• Whether the accused understood such warnings
• Whether or not the accused had access to legal advice
• The fairness and reasonableness of the inference which was actually drawn by the court.