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The Impact of the Human Rights Act 2003 on Criminal Law

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The Impact of the Human Rights Act 2003 on Criminal Law 2005] The Impact of the Human Rights Act 2003 on 99 Criminal Law THE IMPACT OF THE HUMAN RIGHTS ACT 2003 ON CRIMINAL LAW PAUL ANTHONY MCDERMOTT* I. INTRODUCTION The purpose of this paper is to consider the impact that the European Convention on Human Rights Act 2003 (hereinafter “the Act”) has had on Irish criminal law. The jurisprudence built up by the European Court of Human Rights has the potential to affect not only substantive criminal law, but also police investigation, trial procedures, evidence, sentencing and the prison system. It might be expected to have a particular impact on prisoners, which is appropriate given that modern international human rights treaties grew up out of revulsion at the way prisoners were treated during the Second World War. It is fair to say that the impact of the Act to date in the sphere of criminal law has been muted. This may simply be because the Irish Constitution already protects most of the rights at the same level as 1 the Convention. In a recent publication, Gerard Hogan, SC states that: Since the enactment of the Constitution in 1937, the Irish Courts have, of course, been working within a system of judicial review of legislation which confers on them far-reaching powers of review. Outside, therefore, of the United States, the Irish judiciary have probably the longest and most extensive experience of judicial review of legislation in the common law world and over 80 individual statutory provisions, statutory instruments and common law rules have been found to be unconstitutional during this period. While it is true that there are other Council of Europe Member States with an elaborate domestic constitutional jurisprudence – Germany, Italy, Spain, *B.C.L. (NUI), LL.M. (Cantab.), Ph.D. (NUI), B.L. Lecturer in Criminal and Tort Law at University College Dublin. 1 Kilkelly (ed.), ECHR and Irish Law (Jordan’s, 2004) by Gerard Hogan, SC at pp. 14-15. 100 Judicial Studies Institute Journal [5:2 Norway and Portugal come particularly to mind – there is probably no other member state with a longer unbroken tradition. One concern about the Act was that the courts would immediately be inundated with challenges to every aspect of Irish criminal law. This was the experience in Canada, where a flood of litigation followed the passing of the Charter of Rights and Freedoms in 1982. Nobody could be sure that an offence or procedure still applied until it had been tested against the Charter. For example, in 2 MS, the accused argued that the criminalisation of incest was unconstitutional as consent was not a defence and there was no age limit appended to the definition of “child” in the offence. He also claimed that the offence breached his right to freedom of association, equality and religious freedom. Needless to say, the British Columbia Court of Appeal rejected all of these claims. Of course, a flood of litigation that tested our often outdated criminal laws against international human rights standards would not necessarily be a bad thing. As a result of litigation under the Charter, Canada now has a highly developed and sophisticated criminal law jurisprudence. For example, at common law, the defence of duress is not available if the threats were not immediate and the threatener was not present when the offence was committed. 3 In R. v. Ruzic, the Ontario Court of Appeal held that this limitation on the defence was in breach of the Charter as it failed to take into account the human frailties of the accused. In England, the Lord Chancellor estimated that, in 99 per cent of cases, the courts would decline to make a declaration of incompatibility, although only time will tell whether this is an overly optimistic (or, depending on one’s point of view, pessimistic) 4 prediction. With the passing of the Human Rights Act 1988, at least some sections of the English judiciary relish the task of not only taking jurisprudence from Strasbourg into account, but also developing it in their own way. The Lord Chief Justice, speaking in Parliament, has stated that British judges have a significant 2 (1997) 111 C.C.C. (3d) 467. 3 (1998) 165 D.L.R. (4th) 574. 4 Hansard (H.L.) Vol. 585, Col. 840 (5 February 1998). 2005] The Impact of the Human Rights Act 2003 on 101 Criminal Law contribution to make in the development of the law of human rights and urged his colleagues to remember Milton’s words in Aeropagitica “Let not England forget her precedence of teaching nations how to 5 6 live.” Lord Lester has suggested that if the McCann case (in which the UK was found to be in breach of the right to life in respect of the killing of three IRA members in Gibraltar) had first been decided by an English court using the criteria of the Convention, it might well have led to a different outcome in Strasbourg. This is an interesting point. If faced with a reasoned decision of a domestic court that has taken the Convention jurisprudence into account, the European Court may be less inclined to overturn that decision as incompatible with the Convention. Thus, incorporation of the Convention into Irish law may ironically mean that it becomes more difficult to successfully win a case in Strasbourg. II. THE TEMPORAL EFFECT OF THE ACT The Act came into law on the 31st December 2003 by order of the Minister for Justice under SI 483/2003. 7 In Lelimo v. Minister for Justice, Laffoy J. had held that the Act was not retrospective, albeit in circumstances where a concession to that effect had been made by the applicant. In Gashi v. Minister 8 for Justice, Clarke J. indicated that he would follow Lelimo. 9 In Dublin City Council v. Fennell, the Supreme Court considered the temporal nature of the Act. The key dates in the case were as follows: 7th July 2003: The appellant has received a notice to quit dated 26th June 2003. The notice required her to deliver up the premises on the 1st September 2003 but the appellant remained in occupation after that date and, indeed, after the Act of 2003 came into force on the 31st December 2003. 30th October 2003: The Council issued proceedings to recover possession of the premises. 12th December 2003: the District Court made an order 5 Ibid. 6 (1996) 21 E.H.R.R. 97. 7 [2004] 2 I.R. 178. 8 High Court, unreported, Clarke J., 3 December 2004. 9 [2005] 2 I.L.R.M. 288. 102 Judicial Studies Institute Journal [5:2 for possession. 23rd December 2003: the appellant lodged an appeal in the Circuit Court. 31st December 2003: the Act of 2003 came into force. 14th October 2004: the appeal came on for hearing before the Circuit Court. The Circuit Court stated a case as to whether the appellant could rely on the Act. The case turned on s. 2 of the Act which provides as follows: (1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions. (2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter. Kearns J., giving the judgment of the Supreme Court, noted Article 15 of the Constitution of Ireland, 1937 provides that “The Oireachtas shall not declare acts to be infringements of the law which were not so at the time of their commission” and the fact that the Act provided that damages could be sought from a public authority 10 which had acted “unlawfully.” He further stated that “these consequences, which arise where a breach of the 2003 Act is found to have occurred, strongly suggest that the 2003 Act should, for the purpose of complying with the spirit of Article 15.5, be interpreted 11 as having prospective effect only.” He noted that there are well established presumptions in statutory interpretation that a statue does not operate retrospectively unless a contrary intention appears. Kearns J. observed that the 10 Ibid. at 310. 11 Ibid. 2005] The Impact of the Human Rights Act 2003 on 103 Criminal Law language of the Act suggested prospective obligations only and that “In a matter of such far-reaching importance it would be a considerable omission on the part of the draftsman not to include a provision for retrospective application to past events if such was the 12 intention.” Kearns J. concluded that “the 2003 Act cannot be seen 13 as having retrospective effect or as affecting past events.” He also held that time could not be artificially extended by somehow viewing the Circuit Court proceedings as a new and stand alone process which post-dated the commencement of the Act. He concluded that it was the service of the notice to quit which set the wheels in motion and determined the parties’ legal rights and obligations and that that was the relevant date. 14 In Carmody v. Minister for Justice, the plaintiff sought a declaration that Section 2 of the Criminal Justice (Legal Aid) Act, 1962 was incompatible with the State’s obligations under the European Convention on Human Rights. He had made his legal aid application in the year 2000, before the Human Rights Act had come into force. In the High Court, Laffoy J. held that the issue was properly before the court irrespective of the fact that the proceedings were initiated before the coming into force of the 2003 Act.
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