The Presumption of Innocence in Irish Criminal Law: Recent trends and possible explanations

1. The Presumption of Innocence in Irish Criminal Law: Recent trends and possible explanations Dr. Claire Hamilton 27.11.10

2. Plan • To briefly assess buoyancy of the presumption in Irish criminal law adopting Ashworth’s (2006) framework: four threats to the PoI • To speculate as to why PoI is increasingly under threat

3. Why should we care? Arguments in favour of the presumption of innocence: • Subjective harms of MoJs • Moral harms (Dworkin, 1981) • Constitutional considerations • Effectiveness of inroads? • Myths of the ‘other’ and of ‘the benign State’ (Kennedy, 2004)

4. Impact of the PoI • Ashworth (2006:278) ‘generally recognised as a fundamental right it may be, but its precise significance for the defendant is so contingent as to raise doubts’. • British Government’s commitment to the presumption: ‘so ambivalent that it will try to avoid its application where possible’ (2006: 274) • Hamilton (2007:236-7) ‘growing insignificance of the PoI for accused persons’; ‘tangible benefits of the presumption …little in evidence’.

5. Ashworth (2006) • Confinement: increase in strict/absolute liability offences, guilty pleas, pre-trial procedures, etc. • Erosion: increase in number of exceptions • Evasion: civil preventive orders • Side-stepping: restrictions falling short of full deprivation of liberty

6. Confinement See Hamilton (2011a, forthcoming) Strict/absolute offences & ‘moral innocence’ -CC v Ireland: ‘mentally innocent’ but invalidated on basis of Article 40. Cf w. G [2008] UKHL 37 - Withdrawal of 28th Amdt to Const Bill 2007: defence of those who were morally innocent in submissions to Joint Oireachtas Committee (2009) - Guilty pleas: substantial incentive to plead guilty in CJA 1999 (s.15A). Compatibility with ECHR? -Right to silence: relationship with PoI contested but ‘relationship of kinship’ here which affects BOP. S.30 CJA 2007; s.72A CJA 2006: safeguards but power differential great & no right to solicitor.

7. Erosion - Recent legislative exceptions to the presumption in the form of reverse onus provisions eg possession of drugs, duties of company law officers, health and safety legislation. - O’Leary (1993, 1995) and Hardy (1994): Interpreted as EB not LB but lack of guidance & suggestion that reversal of LB constitutionally permissible. - Historic sexual abuse cases: serious challenge to the ‘normative legitimacy’ of the PoI (Campbell et al, 2010: 332). Now reversed in SH v. DPP (2006).

8. Evasion - Some evidence of this eg ASBOs, SOA, CAB but not proliferation of civil orders as in UK - Potential conflict with ECHR on SOP in s.115(9) CJA 2006 (R v. McCann) - Constitutionality of ASBOs: civil hearing determines extent of criminal liability & punishment for all acts (not just breach) - need for ‘substance over form’ approach

9. Conclusions • Better protection given ensconsement in Constitution? No. Position is more nuanced. • Similarities: incentives to plead guilty, right to silence, reverse onus provisions. • Differences: Normative principles more est’d in English law re: compatibility of reverse onus clauses with PoI yet fewer hybrid orders & defence of ‘morally innocent’ in referendum debate. • Development of case law under Article 6(2)? Defensive attitude taken by SC in McD v. L (2009).

10. Some Explanations • Packer (1968): move from ‘due process’ to ‘crime control’. Useful interpretive tool but no indication as to why. • Campbell (2007): challenges to liberalism from communitarianism • Brown (2005), Hamilton (2011b): certain offenders recast as ‘agents of obligation’ through the ‘wormhole’ of liberalism. Exceptions made to liberal constitutional framework for ‘organised criminals’. • Hamilton (2010): emphasis on national level factors in explaining criminal justice policy. Threat from subversive criminality. Ireland v. NZ.

11. Where should we be going? Ashworth & Zedner (2007) ‘Defending the Criminal Law’: Liberal model emphasises both the purpose of the criminal law in providing for censure and punishment and the need to respect the autonomy and dignity of individuals in the criminal process. At a minimum, therefore, the trial should be fair in terms of the appropriate procedural safeguards and the official censure of conviction and punishment is only justifiable if there has been a trial observing those safeguards. Addendum: aim to secure the constitutional status of the PoI

12. References • Ashworth, A (2006) ‘Four Threats to the Presumption of Innocence’ International Journal of Evidence and Proof, 10: 241-279. • Ashworth, A and Zedner, L (2008) ‘Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure and Sanctions’ Criminal Law and Philosophy 2: 21-51. • Brown, M (2005) ‘Liberal exclusions and the new punitiveness’. In J. Pratt et al (Eds.), The New Punitiveness: Trends, Theories, Perspectives, Cullompton, Devon: Willan, 272-289. • Campbell, L (2007) ‘From Due Process to Crime Control: the Decline of Liberalism in the Irish Criminal Justice System’ Irish Law Times 25: 281. • Campbell, L., Kilcommins, S. and O’Sullivan, C. (2010) Criminal Law in Ireland: Cases and Commentary. Dublin: Clarus Press. • Dworkin, R (1981) ‘Principle, Policy, Procedure’ in Crime, Proof and Punishment: Essays in Honour of Sir Rupert Cross London, Butterworths. • Hamilton, C (2007) Whittling the Golden Thread: The Presumption of Innocence in Irish Criminal Law Dublin: Irish Academic Press. - (2010) Reconceptualising penality: An examination of the ‘new punitiveness’ in Ireland, Scotland and New Zealand, Unpublished PhD thesis, UCD. - (2011a, forthcoming) ‘The Presumption of Innocence in Irish Criminal Law; An Assessment’ International Journal on Evidence and Proof. - (2011b, forthcoming) ‘Organised Criminals as Agents of Obligation: The Case of Ireland’ European Journal on Criminal Policy and Research. • Joint Oireachtas Committee on the Constitutional Amendment on Children (2009) Second Interim Report on the Twenty-Eight Amendment to the Constitution Bill 2007, Dublin: Stationery Office. • Kennedy, H (2004) Just Law: The Changing Face of Justice and Why it Matters to Us All, London: Chatto and Windus. • Packer, H (1968) The Limits of the Criminal Sanction. Stanford University Press.