Observations on the Scheme of the
Criminal Justice (Amendment) Bill
2009
June 2009
I.
INTRODUCTION
1. The Irish Human Rights Commission (IHRC) is Ireland’s National Human
Rights Institution, set up by the Irish Government under the Human Rights
Commission Acts 2000 and 2001.1 The IHRC has a statutory remit to
endeavour to ensure that the human rights of all persons in the State are fully
realised and protected in the law and practice of the State. Its functions
include keeping under review the adequacy and effectiveness of the law and
practice in the State with regard to constitutional and international human
rights standards deriving from the Irish Constitution and the international
treaties to which Ireland is a party.2 The IHRC is mandated to make
recommendations to the Government as it deems appropriate in relation to
the measures which the IHRC considers should be taken to strengthen,
protect and promote human rights in the State.3
2. The IHRC welcomes the opportunity to comment on the provisions of the
General Scheme of the Criminal Justice (Amendment) Bill 2009 (2009
Scheme). The 2009 Scheme was referred to the IHRC pursuant to Section
8(b) of the Human Rights Commission Act 2000 by the Minister for Justice,
Equality and Law Reform on 27 May 2009. The 2009 Scheme proposes a
number of reforms to various criminal justice statutes including the Offences
Against the State Act 1939 (1939 Act) and Criminal Justice Act 2006 (2006
Act).
3. The present observations focus on a number of specific proposals which
the IHRC considers have implications for the protection of human rights as
defined under section 2 of the Human Rights Commission Act 2000. The
proposals considered herein are as follows:



The proposal to extend the definition of “scheduled offences” to all
offences under Part 7 of the 2006 Act and thereby extend the remit
of the Special Criminal Court;
The proposal to allow for interferences to be drawn from a person’s
failure to answer in proceedings against a person under Part 7 of
the 2006 Act;
Elements of the proposals to create two new offences of directing a
criminal organisation and involvement with, participation in or
contribution to the activities of a criminal organisation.
1
For detailed information on the work of the IHRC, see www.ihrc.ie.
Section 8(a) of the Human Rights Commission Act 2000.
3 Section 8(d) of the Human Rights Commission Act 2000.
2
1
II.
EXTENSION OF THE CATEGORY OF “SCHEDULED OFFENCES”
(a) Relevant Provisions of the 2009 Scheme
4. Head A7 of the 2009 Scheme provides that the ordinary courts are
inadequate to secure the effective administration of justice and the
preservation of public peace and order in relation to an offence under Part 7
of the 2006 Act.4 The 2009 Scheme proposes that an offence under Part 7
shall be deemed a scheduled offence for the purposes of Part V of the 1939
Act as if an order had been made under section 36 of the 1939 Act. 5 This
shall not affect or limit the discretion of the Director of Public Prosecutions
(DPP) to direct that a person should not be sent forward for trial by the
Special Criminal Court under section 42(5) of the 1939 Act.
5. It is proposed that this section shall cease to be in operation on an
unspecified date unless a resolution is passed by each House of the
Oireachtas resolving that this section should continue in operation. In addition,
this section can be continued in operation from time to time by a resolution
passed by each House of the Oireachtas for such periods as may be specified
in the resolution. Before a resolution is passed by either House of the
Oireachtas, the Minister for Justice will be required to prepare a report and lay
a copy of that report before the Houses on the operation of the section.
(b) Relevant Human Rights Law
6. The Irish Constitution provides for the right of a person charged with a
criminal offence to be tried by a jury.6 Certain exceptions are provided to this
right, including where special courts are established by law “for the trial of
offences in cases where it may be determined in accordance with such law
that the ordinary courts are inadequate to secure the effective administration
of justice, and the preservation of public peace and order”.7 In The People v.
Quilligan (No. 1) the Supreme Court confirmed that the operation of the 1939
Act is not necessarily confined to subversive cases.8 In addition, the effect of
the decision in Kavanagh v. Ireland is to restrict a judicial review of the DPP’s
decision to issue a certificate in respect of a non-scheduled offence to
extremely limited circumstances.9
4
Part 7 of the 2006 Act provides for the offences relating to organised crime.
The main scheduled offences are currently contained in the Offences Against the State Act
1939 and the Offences Against the State (Amendment) Act 1998, sections 6 to 9 and 12.
6 Article 38.5.
7 Article 38.3. Under section 46 of the 1939 Act the DPP has the power to certify that a case
should be heard in the Special Criminal Court where he or she is of the opinion that the
ordinary courts are inadequate to secure the effective administration of justice and the
preservation of public peace and order in relation to the trial of a particular person on a
particular charge.
8 The People v. Quilligan (No. 1) [1986] IR 485.
9 Kavanagh v. Ireland, [1996] 1 IR 321 at 358. See the comments of Kearns J. in Eviston v.
Director of Public Prosecutions [2002] 3 IR 260 at 269: “The prosecutorial discretion is
regarded as almost completely immune from judicial scrutiny except in extremely limited
circumstances”. In the Kavanagh v. Ireland decision of the Human Rights Committee the
Committee observed that judicial review of the DPP’s decisions “is effectively restricted to the
5
2
7. International human rights law does not guarantee the right to trial by
jury.10 However, the Human Rights Committee, which oversees the
supervision of the International Covenant on Civil and Political Rights
(ICCPR), has stated that:
while the ICCPR contains no provision asserting a right to a jury trial in
criminal cases, if such a right is provided under the domestic law of the State
party, and is granted to some persons charged with crimes, it must be
granted to others similarly situated on an equal basis. If distinctions are made,
they must be based on objective and reasonable grounds.11
8. In an individual complaint before the Human Rights Committee,
Kavanagh v. Ireland,12 the Committee considered that Ireland had failed to
demonstrate that the decision to try Kavanagh before the Special Criminal
Court was based upon reasonable and objective grounds. The Committee
observed that no reasons are required to be given for the decision by the DPP
that the ordinary courts are considered inadequate to ensure the effective
administration of justice. On the basis of the right to equality before the law,
the Committee concluded that Kavanagh’s right under Article 26 had been
violated, stating that persons should not be tried before the Special Criminal
Court unless reasonable and objective criteria for the decision are provided.13
9. In its Concluding Observations on Ireland’s Third Periodic Report, the
Human Rights Committee recommended that Ireland should carefully monitor,
on an ongoing basis, whether the exigencies of the situation in Ireland
continue to justify the continuation of a Special Criminal Court with a view to
abolishing it.14 It also recommended that the State should ensure that there
are objective and reasonable grounds provided for each case that is certified
by the DPP as requiring a non-jury trial, and that there should be a right to
challenge these grounds.15
10. In 1999, the Committee to Review the Offences Against the State Acts
1939–1998 (the “Hederman Committee”) was established.16 The majority
most exceptional and virtually undemonstrable grounds”. See further Report of the Committee
to Review the Offences Against the State Acts 1939–1998, paras. 9.19-9.23.
10 See for example Callaghan and Others v. The United Kingdom, European Commission for
Human Rights, Decision of 9 May 1989, at p. 5. See further decisions of the Human Rights
Committee, Kavanagh v. Ireland, (819/1998), ICCPR, A/56/40 vol. II (4 April 2001) 122, at
para. 10.1; Wilson v. Australia (1239/2004), A/59/40 vol. II (1 April 2004) 571, at para. 4.4.
11 Cheban v. The Russian Federation (790/1997), ICCPR, A/56/40 vol. II (24 July 2001) 88, at
para. 7.2.
12 Kavanagh v. Ireland, CCPR/C/71/D/819/1998.
13 Ibid., para. 10.3.
14 Human Rights Committee, Concluding Observations on Ireland, 30 July 2008,
CCPR/C/IRL/CO/3, at para. 20.
15 Ibid. Similar recommendations were made in respect of non-jury trials in Northern Ireland
under the Justice and Security (Northern Ireland) Act 2007, Human Rights Committee,
Concluding Observations on the United Kingdom of Great Britain and Northern Ireland, 30
July 2008, CCPR/C/GBR/CO/6, at para. 18.
16 The Hederman Committee was established under the chairmanship of Mr. Justice
Hederman with the mandate to examine all aspects of the Offences Against the State Acts
1939 to 1998, taking into account: 1. the view of the participants to the multiparty negotiations
on Northern Ireland that the development of a peaceful environment on the basis of the
3
concluded that the paramilitary threat in Ireland justified the retention of the
Special Criminal Court and in addition, that the threat of organised crime was
sufficient to justify its retention.17 The minority considered that the Special
Criminal Court should be dispensed with.18
11. On the basis of its review of the constitutional and international human
rights standards the Hederman Committee made a number of specific
recommendations for reform of the 1939 and 1998 Acts which to date have
not been implemented. In particular, the Hederman Committee recommended
that the distinction between scheduled and non-scheduled offences should
not be retained as it does not provide a sufficiently clear and transparent basis
for depriving an accused of the right to jury trial to which he or she is
otherwise prima facie constitutionally entitled.19 The Hederman Committee
observed:
it could be contended that the constitutional jurisdiction to try an accused
in the non-jury courts rests on an assessment in that individual case that
the ordinary courts are inadequate and that these constitutional
requirements are not satisfied by the scheduling of certain offences by the
Oireachtas itself (as in the case of the 1998 Act) or in a manner permitted
by the Oireachtas (as in the case of orders made under section 36 of the
1939 Act), since the very act of scheduling permits the trial of those very
offences (unless the Director of Public Prosecutions otherwise directs)
without any consideration of the individual merits of the case at hand and
whether or not the ordinary courts are inadequate to try that particular
case.20
12. The Hederman Committee concluded on this basis that it would be
preferable that the decision of the DPP to refer a case to the Special Criminal
Court would be based on the merits of the individual case, instead of a
preconceived statutory assumption that persons charged with certain types of
offences should be tried in that Court unless the DPP otherwise orders. 21
13. The Hederman Committee also recommended that the decision of the
DPP to send a person charged forward for trial in the Special Criminal Court
should be subject to a positive review mechanism.22 The Hederman
Committee gave consideration to four possible types of review mechanism:
review by the High Court following inter partes hearing; application to the High
Court ex parte, but in camera; administrative review by a retired judge; and
review by a judge of the Supreme Court.23
Agreement they reached on 10 April, 1998 (Good Friday Agreement) can and should mean a
normalisation of security arrangements and practices; 2. the threat posed by international
terrorism and organised crime; 3. Ireland’s obligations under International law.
17 Report of the Committee to review the Offences Against the State Acts 1939-1998, (2002),
para. 9.38.
18 Ibid., pp. 243-244.
19 Ibid., para. 9.57.
20 Ibid., para. 9.58.
21 Ibid., para. 9.57.
22 Ibid., paras. 9.60-9.66.
23 Ibid.
4
(c) IHRC Analysis and Recommendations
14. As outlined in the 2009 Scheme, the justification for the proposal to
extend the remit of the Special Criminal Court is contingent on the premise
that the ordinary courts are inadequate to secure the effective administration
of justice in cases that involve organised crime. The right to trial by jury is
prima facie guaranteed under the Irish Constitution, except in specific
circumstances, such as where the ordinary courts are inadequate to secure
the effective administration of justice. The IHRC considers that any limitation
of the Constitutional right to trial by jury must only take place in exceptional
circumstances, and in circumstances in which it has been clearly
demonstrated that the ordinary courts are inadequate.
15. The IHRC is cognisant that organised crime is a problem in Ireland and
that it has the potential to cause great harm in Irish society. However, the
IHRC considers that the exigencies of the situation in Ireland do not justify the
restriction of the Constitutional right to trial by jury. The IHRC considers that
the developed system of criminal justice which exists in Ireland is capable of
effectively confronting the problem of organised crime without resorting to a
parallel criminal justice system that does not provide the accused with the
right to trial by jury.24 Where, in exceptional circumstances, it can be clearly
established on reasonable and objective grounds that the effective
administration of justice cannot be delivered in an individual case, a non-jury
trial may be justified. However, the IHRC considers that a broad legislative
extension of this exceptional measure to a very wide category of cases is
disproportionate and unnecessary.
16. In announcing this legislative initiative, An Taoiseach stated that the aim
of these measures is to “ensure that the criminal law is effectively
implemented and that the administration of justice is not interfered with
through the intimidation of juries and witnesses”.25 The risk of jury intimidation
is one means by which the normal administration of justice can be
undermined. However, in the absence of supporting data the IHRC queries a
blanket assumption about the actual or potential level of jury intimidation in
Ireland. In addition, to address the risk of jury intimidation there are numerous
intermediate law reform measures that could be adopted including: having an
anonymous jury, screening the jury from public view, protecting the jury during
the trial, or locating the jury in a different place from where the trial is being
held with communication by video link. The IHRC considers that such
intermediate measures should be considered and explored as a more
proportionate and reasonable alternative to the extension of the remit of the
Special Criminal Court.
17. On the basis of the human rights standards and the recommendations of
the Hederman Committee outlined above, the IHRC considers that rather than
extending the category of scheduled offences as proposed under the 2009
Scheme, this category should be removed from Irish law. The IHRC
24
25
See further ibid., paras 9.88-9.97.
Press Release, 13 May 2009, Department of Justice, Equality and Law Reform.
5
recommends that the 1939 Act (as amended) should be revised to require the
DPP in each individual case to advance reasonable and objective grounds
that demonstrate the ordinary courts are inadequate to deal with the
administration of justice in that particular case. The IHRC considers this
possibility should be limited to cases that involve alleged offences against the
State or alleged organised crime offences.
18. The IHRC considers that the 1939 Act (as amended) should be revised
to make the decision of the DPP to send a person forward for trial before the
Special Criminal Court subject to a positive review mechanism. It is of
particular note that the Hederman Committee recommended that a review by
a serving Supreme Court judge, in conjunction with an independent counsel
procedure, would meet the objections raised by the Human Rights Committee
in Kavanagh v. Ireland.
IHRC Recommendations:
19. The proposal to insert section 73A into the 2006 Act should be removed.
20. Consideration should be given to alternative methods to protect jury
members against intimidation including, providing for anonymous juries,
screening the jury from public view, the protection of the jury during the trial or
locating the jury in a different place from where the trial is being held with
communication by video link.
21. The category “scheduled offences” should be removed from Irish
legislation. The 1939 Act should be revised to require the DPP in each
individual case to advance reasonable and objective grounds to demonstrate
that the ordinary courts are inadequate to deal with the administration of
justice in the particular case under consideration. This power should be
limited to cases involving offences against the State and organised crime.
22. In tandem with the above recommendation, the 1939 Act should be
amended to make the decision by the DPP to certify that the ordinary courts
are inadequate to secure the effective administration of justice and to refer a
case to the Special Criminal Court subject to a positive review procedure in
line with the recommendations of the Hederman Committee.
III.
INFERENCES TO BE DRAWN
ANSWER QUESTIONS
FROM A
PERSON’S FAILURE
TO
(a) Relevant Provisions of the 2009 Scheme
6
23. Head A8 of the 2009 Scheme proposes that in proceedings against an
accused under Part 7 of the 2006 Act, where evidence is given that the
accused at any time before he or she was charged failed to answer any
question material to the investigation, the Court may draw inferences from the
failure.26 Such inferences can be treated as capable of amounting to
corroboration of any evidence in relation to the offence.27 The person shall not
be convicted of the offence solely or mainly on an inference drawn from such
a failure.28 The accused shall be told in ordinary language of the implications
of failure to answer and shall be afforded a reasonable opportunity to consult
a solicitor.29 The questioning should be electronically recorded for this section
to apply, unless a person has provided written consent for it not to be
recorded.30 A material question is defined to include any question requesting
the accused to give a full account of his or her movements, actions, activities
or associations during any specific period.31 A failure to answer is defined to
include the giving of an answer that is false or misleading, or silence or any
other reaction by the accused.32
(b) Relevant Human Rights Law
24. The Supreme Court has held that the privilege against self-incrimination
enjoys Constitutional status and that any abridgement of that right must pass
a proportionality test.33 However, in Rock v. Ireland, the Supreme Court
concluded that the presumption of innocence was not infringed by provisions
that allowed inferences to be drawn from an accused’s failure to account for
the presence of objects, substances or marks on his person, given that
inferences could only amount to corroboration and that only those that
“appear proper” could be drawn.34 The Supreme Court has also held that
reasonable access to a solicitor during policy custody is a constitutionally
guaranteed right.35 However, the accused is not entitled to have his or her
legal advisor present throughout Garda interrogation.36
25. The right to remain silent under police questioning and the privilege
against self-incrimination are generally recognised international standards
which lie at the heart of the concept of a fair procedure under Article 6 of the
ECHR.37 In Murray v. United Kingdom and Averill v. United Kingdom the
European Court of Human Rights (ECtHR) held that it would be incompatible
with Article 6(1) to convict an accused of a criminal offence based “solely or
26
Various provisions in Irish law permit inferences to be drawn from silence in corroboration
with other evidence. See for example Sections 18 and 19, Criminal Justice Act 1984 and
Section 30 of the Criminal Justice Act 2007.
27 Proposed Section 73(B)..
28 Ibid.
29 Proposed Section 73B(2) of the 2006 Act.
30 Proposed Section 73B(5) of the 2006 Act.
31 Proposed Section 73(B)(7) of the 2006 Act.
32 Ibid.
33 Re National Irish Banks Ltd [1999] 3 IR,145.
34 Rock v. Ireland [1997] 3 IR 484, at 501.
35 People (DPP) v. Healy [1990] 2 IR 73.
36 Lavery v. Member in Charge of Carrickmacross Garda Station [1999] 2 IR 390.
37 Murray v. The United Kingdom, Judgment of 25 January 1996, (1995) 19 EHRR 193.
7
mainly on the accused’s silence or on a refusal to answer questions or to give
evidence himself”. However, the ECtHR held the right to silence does not
prevent a person’s silence being taken into account in assessing the
persuasiveness of the evidence against him/her in circumstances that clearly
call for an explanation.38 Where inferences can be drawn from an accused’s
silence appropriate warnings must first have been given to the accused as to
the legal effects of maintaining silence.39
26. In the case of Murray the ECtHR asserted that where a scheme allows
for the drawing of adverse inferences from silence “it is of paramount
importance for the rights of the defence that an accused has access to a
lawyer at the initial stages of police interrogation”.40 The ECtHR observed that
in light of the dilemma faced by the accused relating to his defence, the
concept of fairness enshrined in Article 6 requires that the accused has the
benefit of the assistance of a lawyer from the initial stages of police
interrogation.41 The ECtHR held that to deny the accused access to a lawyer
for the first 48 hours of police questioning, in a situation where the rights of
the defence may well be irretrievably prejudiced, is incompatible with the
rights of the accused under Article 6.42 In Averill, the ECtHR held that
considerable caution is required in drawing adverse inferences from silence
where access to a lawyer is delayed for a period of twenty-four hours, even if
the accused maintains his or her silence after seeing a solicitor.43 Finally, in
the case of Condron v. United Kingdom the ECtHR held that where an
accused remains silent upon instructions from his solicitor, as a matter of
fairness, the jury should be directed that it can only draw an adverse inference
if it is satisfied that the applicant’s silence could only sensibly be attributed to
their having no answer or none that would stand up to cross-examination.44
27. In general, the Committee for the Prevention of Torture (CPT) which
monitors the European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment, has continually stressed the vital
importance of the right of access to a lawyer being guaranteed from the very
outset of custody.45 The CPT has stated this extends in principle to being
entitled to have a lawyer present during any interrogation conducted by the
police.46
(c) IHRC Analysis and Recommendations
38
Ibid. at paras. 47 and 51; See also Condron v. The United Kingdom, Judgment of 2 May
2000, (2001) 31 EHRR 1, at para. 56; Beckles v. The United Kingdom, Judgment of 8
October 2002, at para. 58; Averill v. The United Kingdom, Judgment of 6 June 2000, at para.
45.
39 Murray v. The United Kingdom at para. 51.
40 Ibid. para. 60.
41 Ibid. para. 66.
42 Ibid.
43 Averill v. The United Kingdom at para. 49.
44 Condron v. The United Kingdom para.61,.
45 Committee for the Prevention of Torture Standards, CPT/Inf/E/(2002), para. 41.
46 Ibid.
8
28. Irish law contains a number of provisions that allow inferences to be
drawn in proceedings against a person for an arrestable offence, where the
accused fails or refuses to account for objects or marks etc. on his or her
person etc.; where the accused fails or refuses to account for his or her
presence in a particular place; or where the accused fails to mention particular
facts subsequently relied upon in his or her defence.47 In relation to these
provisions the relevant legislation provides that the member of An Garda
Síochána must have reason to believe that the presence of the accused, or
the marks or objects on his person etc., may be attributable to his or her
commission of an offence, the member must inform the accused of this belief,
and the circumstances must clearly call for an explanation from the accused.48
In the case of inferences to be drawn from failure by the accused to mention
particular facts, the circumstances existing at the time must clearly call for an
explanation from the person being questioned.49
29. The proposals in the 2009 Scheme apply to all offences under Part 7 of
the 2006 Act. As currently worded the 2009 Scheme provides that inferences
can be drawn where, at any time before he or she is charged with the offence,
the accused “failed to answer any question material to the investigation of the
offence”. The definition of a “material question” outlined in paragraph 23
above could apply to a very broad range of questions that could arise during
police questioning, if not potentially all questions. The IHRC considers that, in
line with the jurisprudence of the ECtHR, where adverse inferences are to be
drawn from silence this should only happen under narrowly defined
circumstances where there is a prima facie case against the accused, and the
circumstances existing at the time clearly call for an explanation from the
accused person.
30. Reasonable access to a solicitor during police custody is a
constitutionally guaranteed right which is afforded to all persons taken into
police custody.50 Under the proposed legislation inferences cannot be drawn
from the accused’s failure to answer a material question unless the accused
was afforded a “reasonable opportunity” to consult a solicitor before such a
failure occurred. The IHRC considers that in light of the dilemma facing an
accused who receives an adverse inference warning, having regard to the
inevitable complexity of such a warning and the serious consequences for his
or her defence, legal advice must be a prerequisite requirement to ensure that
the overall fairness standards of Article 6 are met.51
47
Sections 18, 19 and 19A of the Criminal Justice Act 1984 as inserted by sections 28-30
Criminal Justice Act 2007. Further “inference” provisions are contained in the Offences
Against Acts 1939 and 1998 where the proceedings involve offences under those Acts.
48 Sections 28 and 29 of the Criminal Justice Act 2007.
49 Section 30 of the Criminal Justice Act 2007.
50 In practice there is no provision in Irish legislation for a duty solicitor’s scheme such as that
provided for in the United Kingdom where the accused does not know a solicitor. Suspects
who do not have sufficient means to avail of the right of access to a solicitor may benefit from
the Garda Station Legal Advice Scheme if the suspect meets the qualifying criteria under the
scheme.
51 Similar recommendations were made in the IHRC Observations on the Criminal Justice Bill
2007, March 2007 at p. 10.
9
31. In practice, legal advice may be required so that the accused can fully
understand the provision and the legal implications of his or her silence,
particularly in light of the complexity of the provision. On the basis of the
Murray case it is arguable that “reasonable access” to legal advice is not
adequate to satisfy Article 6 and that no inference can properly or fairly be
drawn from an accused’s silence before he or she has had an opportunity to
take legal advice as to the possible consequences of any failure to answer the
questions put. It is noteworthy that in England and Wales, where there are a
number of adverse inference provisions in criminal legislation, a detainee who
wants legal advice may not be interviewed or continue to be interviewed until
he or she has received such advice.52
32. In general, the IHRC considers that in line with the CPT standards it
would be preferable as a measure of best practice for an accused person to
have a legal advisor present throughout interrogation. The ECtHR has noted
that while legal advice during questioning is not mandatory, it is an important
safeguard.53 The IHRC considers that in light of the increased reliance within
Irish criminal law on adverse inference provisions, there is an increased
necessity for this type of safeguard.
IHRC Recommendations:
33. Proposed section 73(B)(1) should be amended to require that in drawing
adverse inferences from an accused’s failure to answer a material question
the court or subject to the judges direction, the jury must be satisfied that the
circumstances at the time clearly called for an explanation from the accused.
34. Proposed section 73(B)(2) should be amended to provide that
subsection 1 shall not apply unless the accused has been first provided with
legal advice.
35. The IHRC considers that the above recommendation is of relevance to
all provisions in Irish law that allow for adverse inferences to be drawn for an
accused’s failure to answer questions during police questioning and that the
relevant legislative provisions should be amended accordingly.
36. In general, the IHRC considers that it would be preferable as a measure
of best practice for an accused person to have a legal advisor present
throughout interrogation and recommends that consideration be given to such
a measure.
IV.
OFFENCES RELATING
ORGANISATION
TO
PARTICIPATION
IN A
CRIMINAL
(a) Relevant Provisions of the 2009 Scheme
37. Head A4 proposes to create the offence of directing, controlling or
organising, at any level of the organisation’s structure, the activities of a
52
53
Police and Criminal Evidence Act 1984.
Condron v. The United Kingdom at para. 60.
10
criminal organisation with a penalty of life imprisonment or a lesser term.
Head A5 proposes to create the offence of involvement with, participation in
or contribution to the activities of a criminal organisation with a penalty of
imprisonment for a term not exceeding 15 years. A “criminal organisation” is
defined in the 2006 Act as meaning a structured group, however organised,
composed of 3 or more persons acting in concert, that is established over a
period of time and has as its main purpose or activity the commission or
facilitation of one or more serious offences in order to obtain, directly or
indirectly, a financial or other material benefit.54
38. In determining whether a criminal organisation exists, the Court may
have regard to expert evidence of a member of the Garda Síochána and
convictions for serious offences of one or more of the alleged participants. In
determining whether the offences have been committed, the 2009 Scheme
sets out the various types of evidence that would be relevant including: any
statement made by the accused; use of a name/symbol/ other representation
associated with the criminal organisation; whether the accused derives any
benefit (directly or indirectly) from the criminal organisation; and possession of
any article connected with the commission of a criminal offence. In relation to
the offence under Head A5, it will not be necessary for the prosecution to
prove that the criminal organisation actually engaged in criminal activity, that
the person’s involvement etc. actually facilitated the criminal organisation to
commit an offence, or that the person concerned knew the specific nature of
any offence that the criminal organisation may have committed or facilitated. It
shall be a good defence for a person charged with an under Head A5 to show
that he or she did not know the criminal nature of the group in question, or
that as soon as reasonably possible after he or she became aware of the real
nature of the group, he or she ceased involvement with the group.
(b) Relevant Human Rights Law
39. Under the Constitution, no person shall be tried on any criminal charge
save in due course of law.55 The Supreme Court held in King v. Attorney that
the ingredients of a criminal offence and the acts constituting the offence must
be specified with precision and clarity.56 Similarly, implicit in the prohibition of
retroactive criminal offences under Article 7 of the ECHR is a requirement that
a criminal offence and the sanctions provided for it must be clearly defined in
law that is accessible and foreseeable.57 This condition is satisfied where the
individual can know from the wording of the relevant provision and, if need be,
with the assistance of the courts’ interpretation of it, what acts and omissions
will make him/her liable.58 The ECtHR has noted that the wording of many
statutes is not absolutely precise and that the need to avoid excessive rigidity
and to keep pace with changing circumstances means that many laws are
54
Section 70(1) Criminal Justice Act 2006.
Article 38.1.
56 King v. Attorney General [1981] IR 223.
57 Kokkinakis v. Greece, Judgment of 25 May 2003, (1994) 17 EHRR 397; Baskaya and
Okcuoglu v. Turkey, Judgment of 8 July 1999, (2001) 31 EHRR 292.
58 Ibid., para. 52.
55
11
inevitably couched in vague terms.59 In the case of Kokkinakis v. Greece the
ECtHR held that while the particular offence was broadly defined in statute,
the settled national case law interpreting the statute was sufficiently clear to
enable the applicant to regulate his conduct in the matter.60
40. In Cox v. Ireland the Supreme Court observed that while the State was
entitled to provide onerous and far-reaching penalties and forfeitures imposed
as a deterrent to the commission of crimes threatening the peace and order of
the State, the State’s obligation to protect and vindicate constitutional rights
meant that such penalties must be neither arbitrary nor disproportionate in
their operation.61 In that case section 34 of the 1939 Act was struck down
because the penalty imposed by that section, mandatory loss of office,
pension and other emoluments in respect of all public servants convicted of
scheduled offences, was held to be impermissibly wide and indiscriminate.
(c) IHRC Analysis and Recommendations
41. Under proposed section 72A “involvement with, participation in and
contribution to” a criminal organisation are not defined. The types of evidence
the Court may consider in determining whether the offence has been
committed, include the “expert evidence” of the Garda Síochána as to the
existence of the criminal organisation. While “participating in” or “contributing
to” a criminal organisation may imply a more active role, “involvement with” a
criminal organisation is sufficiently broad and indeterminate that it could
extend to being in any way associated with a criminal organisation.
Notwithstanding that there is a defence where a person did not know of the
criminal nature of the organisation, or upon such knowledge ceased
involvement with the organisation, the IHRC considers there is scope for an
extremely broad interpretation of this offence, particularly seeing as the
proposal specifically excludes a requirement that the accused’s “involvement”
facilitated the commission of a criminal offence or that the accused knew the
specific nature of any criminal offence committed.
42. It is noteworthy that the United Nations Convention Against
Transnational Organised Crime, which Ireland has signed but has not ratified,
sets the threshold of knowledge and participation by the accused person at a
much higher level than that proposal under the 2009 Scheme. Article 5
defines the offence of participation in an organised crime group as agreeing
with one or more members of the organisation, to commit a serious crime and,
where required by domestic law, being involved in an act undertaken by one
of the participants in furtherance of that agreement or involving an organised
criminal group. Article 5 further defines this offence as the active conduct of a
person in criminal activity who knows the aim of the criminal organisation, or
other activity that he or she knows will contribute to the achievement of the
criminal aims of the organisation.
59
Baskaya and Okcuoglu v. Turkey, para. 39.
Kokkinakis v. Greece, para. 40.
61 Cox v. Ireland [1992] 2 IR 503 at pp. 522-523.
60
12
43. The IHRC is concerned that the effect of proposed section 72A is to
create a very broad offence that potentially criminalises family members,
friends or employees associated, however tenuously, with groups considered
to be criminal organisations. While the accused may know the criminal nature
of a group, they may not be aware that in their activities they are facilitating
the activities of the group and the prosecution will not be required to prove
that they are aware of this facilitation, nor that their activities actually
facilitated a criminal offence. The IHRC considers that the provision as
currently worded does not define with sufficient precision what acts and
omissions will expose the person to the risk of criminal prosecution under the
proposed offences so as to satisfy the requirements of the Constitution and
the ECHR.
44. In relation to the offence proposed under Head A4, the IHRC notes that
the offence as currently defined applies to directing, controlling or organising
“at any level of the organisation’s structure” the activities of a criminal
organisation with the possibility of imprisonment for life. The IHRC is
concerned that the seriousness of the penalty proposed may give rise to
arbitrary or disproportionate sentences for an accused that is proved to have
played a relatively minor role in a criminal organisation.
IHRC Recommendations:
45. The proposed offence element of “involvement with” a criminal
organisation should be removed from the proposed offence in section 72A.
46. The proposed penalty under Head A4 should be revised downwards to
take account of the level at which the accused directs, controls or organises
the criminal organisation.
47. The IHRC considers it preferable to define the offences of participation in
a criminal organisation in line with the UN Convention Against Transnational
Organised crime, having regard in particular to the threshold of knowledge
and level of participation required of the accused in this Convention.
13