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Protections For The Accused Notes

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This is an extract of our Protections For The Accused document, which we sell as part of our Irish Criminal Law Notes collection written by the top tier of Trinity College Dublin students.

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Trial in Due Course of Law Article 38.1, Constitution 'no person shall be tried on any criminal charge save in due course of law' Article 6, ECHR




In the determination of his civil rights or obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be made publicly, but the press and the public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interest of juveniles or the protection of 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. Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law. Everyone charged with a criminal offence has the following minimum rights:

* to be informed properly and in a language he understands and in detail, of the nature and cause of the accusation against him;

* to have adequate time and facilities to prepare his defence;

* to defend himself in person or through legal advice of his own choosing, or if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

* to examine or have examined witnesses against him and to obtain and have examined 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 in court. Goodman International v Hamilton (SC 1991)


* The Oireachtas set up a Tribunal of Inquiry to investigate claims that the plaintiffs companies had been involved in fraud and malpractice. Issue

* Criminal Trial Judgment

* Finlay CJ

* A criminal trial is an investigation presided over by a judge for the purpose of punishing the accused in the case of a guilty verdict.

* The Tribunal does not have this power and is merely a fact-finding body. The State (Ryan) v Lennon (1935 IR 170) Facts

* The accused were members of the IRA and were arrested with firearms in their possession. Issue

* Criminal Trial - Due course of law

Judgment (Kennedy CJ)

* A piece of ordinary amending legislation was passed

* It set up a Tribunal which was not required to have nor did it have any members acquainted with proper legal proceedings.

* They had the power to find guilty or innocent and there was no right of appeal.

* The range of offences open them included anything that a Minister believed to have as its object the impairment of justice or interference with the machinery of the state

* Offences committed before the passing of the Act could be tried in this manner.

* They had the power to administer any punishment it saw fit.

* etc, etc

* This was not a trial in due course of law.

* However it was held constitutional - the State had the power of ordinary amendment. Corway v. Independent Newspapers [1999] 4 IR 484 Facts

* A blasphemy case was taken against Independent Newspapers for a cartoon they ran.

* The High Court found that there was no grounds for a criminal case. Issue

* Criminal Trial - Blasphemy Judgment

* Barrington J

* There is no suitable definition of blasphemy available in the common law or statute that could be used in a criminal trial - neither the actus reus nor the mens rea is clear.

* The task of defining the crime falls to the Oireachtas.

* Hamilton CJ (concurred)

* Murphy J (concurred)

* Lynch J (concurred)

* Barron J (concurred) Bacik, Criminal Law in ECHR and Irish Law




In deciding whether proceedings are criminal the EctHR looks to A) the classification in domestic law, B) the nature of the offence and C) the nature and severity of the penalty. The burden of proof may be shifted onto the accused where such shifting is 'within' reasonable limits - in practice this may mean that it must be justified by a public interest or where an element of discretion remains with the court. The Court allows inferences to be drawn from silence, only where the jury are satisfied that the accused had no answer that would stand up for questioning and they do not allow criminalisation of silence. O'Connor & Cooney, Criminal Due Process, The Pre-Trial Stage and SelfIncrimination


The Irish Constitution with its inclination towards the dignity and freedom of the individual and its demand of a trial in due course of law precludes the treament of the accused as a means to an end (crime control model) and insists that all innocent people are let free and all guilty people convicted ony by methods which respect their intrinsic dignity and rational autonomy (due process model). Presumption of Innocence & the Burden of Proof Woolmington v. DPP (HoL 1932)


* The accused was charged with murdering his wife.

* He claimed he had shot her by accident.

* The trial judge directed the jury that, having killed the woman, his actions should be presumed to be murder unless it were proven that there were alleviating circumstances. Issue

* Presumption of innocence Judgment

* Viscount Sankley LC

* The judge relied on a textbook which had misinterpreted the correct authorities.

* The proper procedure is that, at the end of all the evidence, the jury must presume the accused innocent unless his guilt is proven beyond reasonable doubt (insanity and statutory defences aside.)

* Lord Hewart (concurred)

* Lord Tomlin (concurred)

* Lord Wright (concurred) King v. AG (SC 1980) Facts

* The plaintiff was charged with vagrancy.

* He challenged the consitutionality of the relevant statute, as it allowed someone to be charged and convicted without the level of evidence required to upset the presumption of innocence (i.e. the person could be arrested if they were a 'suspected person' or 'reputed thief.' Issue

* Presumption of innocence - Clarity of offence Judgment

* O'Higgins CJ (concurring)

* The abrogation is unconstitutional, being contrary to the concept of justice implicit in the Constitution.

* Henchy J (concurring)

* The statute violates Art. 38 s.1 in that it denies people a trial in due course of law and allows their conviction on the basis of rumour, hearsay, ill-repute or previous bad conduct - by reason of its vagueness it would allow people be convicted before it was proved beyond reasonable doubt that they had infringed a clearly defined rule of behaviour.

* Griffin J (concurred with Henchy J)

* Kenny J (concurring)

* A person may only be convicted of a criminal charge where the proscribed conduct is described with sufficient precision and clarity, otherwise there


cannot be a trial in due course of law.

* In this case the words 'suspected person' and 'reputed thief' do not convey enough clarity to be elements of the crime. Parke J (concurred with Henchy J) Hardy v Ireland (HC 1993, SC 1994)


* The accused was charged under a statute making it an offence to have in one's possession explosive substances under such circumstances as to give rise to a reasonable suspicion that they were not to be used for lawful purposes.

* The statute stated that where the circumstances give rise to a reasonable suspicion about possession, he shall be found guilty of a felony.

* He challenged the constitutionality of the statutory provisions. Issue

* Presumption of Innocence - Reversed Burden High Court Judgment (Flood J)

* The relevant section only represents a shift of the evidential burden.

* In a trial, constitutional demands require fair procedures and proof beyond reasonable doubt.

* The section still required that the suspicion be based on facts that had been proved beyond reasonable doubt.

* These facts must also be directly relevant to the possession of explosives.

* The accused need not adduce evidence until the suspicion was established beyond reasonable doubt. Supreme Court Judgment

* Hederman J (concurring)

* The impugned statute requires that the prosecution prove:

* that the accused knowingly had in his possession explosive substances and

* he had them under such circumstances as to give rise to a reasonable suspicion that he did not possess it for a lawful object.

* This would also require the prosecution to show beyond reasonable doubt that the accused could not have had it in his possession for a lawful object.

* This is perfectly constitutional

* It maintains the presumption of innocence

* The burden of proof remains on the prosecution

* It still allows certain inferences to be drawn that would result in a conviction.

* O'Flaherty J (concurring)

* Egan J (concurring)

* The prosecution must prove the relevant facts beyond reasonable doubt as per Hederman J.

* The onus lies on the accused to prove whether he possessed the explosives for a lawful purpose.

* For certain offences the onus can constitutionally lie on the accused e.g. insanity.

* The standard of proof in such cases is merely to prove on the balance of probabilities that there the explosives are possessed for a reasonable purpose.

* Blayney J (concurring - agreed with Hederman J)

* Murphy J (concurring)


Where the points laid out by Hederman J are proven beyond reasonable doubt, the accused must prove on the balance of probabilities that he possessed the explosives for a lawful purpose.

* This is not inconsistent with Article 38 s.1 O'Leary v AG (SC 1995)


* The plaintiff was convicted of membership of an unlawful organisation.

* The statutory provisions under which he was charged provided that where documents from an unlawful organisation were found on his property and if a Chief Superintendent Garda so testified, each of these things would be evidence that the accused was a member of an unlawful organisation.

* Posters which said 'IRA calls the shots' were found on his property. Issue

* Presumption of innocence - Reverse Burden High Court Judgment (Costello J)

* The presumption of innocence is so universally recognised and has such deep roots in the Common Law tradition that Art. 38 s.1 must be construed so as to require it for a trial in due course of law.

* The statute provides that where the fact of the possession of the documents is proved, the court must draw an inference as regards the accused's guilt.

* There are two different burdens of proof:

* Legal or persuasive burden:The requirement that the case against the accused be proved beyond reasonable doubt.

* This remains in place from the beginning to the end of the proceedings and cannot be constitutionally upset.

* A statute which compels the court to convict where the accused fails to adduce particular evidence upsets this burden.

* Evidential Burden: The burden placed by adduced evidence on the accused.

* This can be affected by statute consitutionally.

* Where the accused can still be found innocent despite a failure to adduce exculpatory evidence there is only an evidential burden of proof placed on him.

* Where a statute gives legal effect to an inference that could be reasonably drawn from the evidence, the legal burden is not upset, as the inference would exist independently of statute.

* The presumption of innocence may be curtailed by the Oireachtas as it is not an absolute right.

* The wide variety of cases where the statute applies means that the court must draw inferences of varying strength from the evidence - some will not require that the accused adduce evidence to prove his innocence. Supreme Court Judgment (O'Flaherty J)

* The presumption of innocence is integral to a trial in due course of law as per Article 38 s. 1 of the Constitution.

* The statute does not upset the presumption.

* A constitutional construction must be applied where possible.

* The section means that the documents are evidence, not proof.

* They must be viewed with the presumption of innocence in mind.

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