Due Process

Table of Contents

Fair Trial in Public

The European Convention on Human Rights provides for the right to a fair trial and a right not to be punished other than in accordance with law. These rights run in parallel to the rights provided in the Irish Constitution. See the chapter on the rights to due process and a fair trial under Irish constitutional law.

Article 6 of the ECHR provides that a person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him.

Judgment is to be pronounced openly, provided that the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society where the interests of juveniles, the private life of the parties so require or to the extent necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. The exclusion of the press must have a rigorous justification on such a basis.

Criminal Charge

Everyone charged with a criminal offence is presumed innocent until proved guilty according to law. A person charged with a criminal offence has the following minimum rights:

to be informed promptly, in a language he understands and in detail, of the nature and cause of the accusation against him;
to have adequate time and facilities for the preparation of his defence;
to defend himself in person or through legal assistance of his own choosing or,
if he does not have the means to pay it to be given it free when the interests of justice so require;
to examine or have examined witnesses against him and to obtain attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

No Retrospective Charge

A person must not be found guilty of a criminal offence on account of an act or omission which did not constitute an offence at the time it was committed. A heavier penalty may not be applied than at the time the offence was committed.

This does not prevent the punishment of any person for an act or omission which was criminal in accordance with general principles of law recognized by civilized nations.

Double Jeopardy

A person is not liable to be punished twice for the same offence where he has already been convicted or acquitted. A case may be reopened in accordance with the law and penal procedure of the state if there is evidence of new or newly discovered facts or if there was a fundamental defect in the previous proceedings which would affect the outcome of the case.

Criminal Evidence

The matter of criminal evidence rules is largely for national laws and courts. The European Court of Human Rights will examine whether the proceedings as a whole are fair based on the evidence before the court.

The Court has not held that illegally obtained evidence must automatically be excluded. In Ireland, illegally obtained evidence may be excluded, but evidence obtained in deliberate breach of constitutional rights must be excluded in the absence of extraordinary circumstances which excuse it.

Adverse and prejudicial pre-trial publicity may impair the right to a fair trial. However, the court recognizes that some element of pre-trial comment is inevitable and that the warnings given by the judge to the jury will generally be sufficient to counter this prejudice.

The European Convention requires prosecution authorities to disclose the defence material which would assist the accused in proving his innocence or go to the degree of culpability for the purpose of sentence.

Elements of Fair Trial

A fair trial in criminal and civil matters may require that reasons be given for the judgment. The European Court has held that where a particular submission is critical to the outcome of the case, the matter should be specifically addressed by the court in giving its decision.

There is a right to a trial within a reasonable time. The purpose is to ensure that the person is in a position to adequately meet his defence and is not left too long in a state of uncertainty. The European courts have been flexible and do provide for absolute timelines and rules. There are more rigorous requirements when the defendant is in custody.

The principle that a person be tried by an independent and impartial tribunal is absolutely basic. The European Court in common with most common law courts, has emphasized that even the appearance of bias or impartiality may undermine confidence in the independence of the judiciary. Therefore, even where there is no question of actual bias, a judge should excuse himself if circumstances leave him open to possible accusations of bias.

Criminal Legal Aid

The Convention requires that in appropriate cases, a person should be entitled to legal assistance of his own choosing. If he cannot afford to do so, it must be provided free of charge.

The State may place reasonable restrictions on the choice of representatives. However, a lawyer appointed against the will of the accused is not necessarily incompatible with the Convention’s principles.

Right to Silence

The European Court of Human Rights places more emphasis than the Irish court on the so-called right to silence. This is the principle that the accused may not be coerced by oppressive means to give evidence against himself. The Irish courts have upheld the validity of the Offences against the State act under which failure to answer certain questions is an offence. The European Court of Human Rights has taken a different view on the matter.

The European Court of Human Rights has taken a similar review in relation to civil proceedings in which authorities may compel answers which may subsequently be used in criminal cases. The European court does indicate that the right to a fair trial includes the right of a person charged to remain silent and not to contribute to incriminating himself. The courts, however, have permitted adverse inferences to be drawn from the silence of suspects under interrogation.

Appeal

A Protocol to the Convention provides that everyone convicted of an offence by a tribunal has the right to have his conviction or sentence reviewed by a higher tribunal. The terms of the exercise of the right are governed by law. Exceptions are allowed for minor offences.

When a person has, by a final decision, been convicted of a criminal offence and is subsequently had his conviction reversed or pardoned, on the ground that newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment, as a result, shall be compensated in accordance with law, unless proved that the non-disclosure of the unknown facts was attributable to him.

The above provisions apply to both civil and criminal proceedings.

Civil Legal Aid

The absence of a scheme of civil legal aid was found in Airey v Ireland to be a denial of the right of access to the court. Mrs Airey had sought separation from her husband.

The Irish State introduced an informal civil legal aid scheme in the wake of the case, which was put on a statutory basis in the Civil Legal Aid Act 1995. The scheme is relatively modest compared with other jurisdictions.

It is an important principle of the Article that parties are to have equal opportunity to present their side of the case so that neither should enjoy a significant advantage over the other. In certain cases, this will require legal representation and legal aid. Whether r legal aid is required will depend on the seriousness of the accusations.