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Constitutional law The constitution controls the government and curbs the powers of the state.  Judicial review  the power of judges to review laws that have been passed by the legislature and ensures that it conforms with the constitution. Judges can strike laws down that go against the constitution. Administrative law: Other times judges look at the acts of the state and makes sure that they conform to the laws . Judges may find a law unconstitutional in two ways: The separation of powers: All organs of the government must stay within the bounds of their brief. They cannot go beyond their powers and they cannot thread into the bounds of another organs brief. One organ cannot exercise the functions of another.   Fundamental rights cases:  The constitution says they we all have certain rights and that they cannot be unjustly attacked. The legislature cannot take away the rights of the citizen.  Constitutional law is almost always political and controversial. Rights are about politics, when we give people rights we give them the ability to overrule laws etc. Judges are not democratically elected. They can change laws, this is controversial. Is this ok? If so, why?  The process of the constitution being used to strike down laws was not always the case e.g. the British parliament has the absolute right to pass any law. This is called the Westminster model. The American constitution was the first to identify laws, popular constitutionalism meant that rights were to be used as tools of political argument not legal rights that judges could use to invalidate laws. The American judiciary seized the power to review laws and strike them down. Marbery v Madison –the American judiciary seized this power.  Note: an order of mandamus – forces people to comply.  Under a law that was passed the judiciary act 1789 allows you to bring a case directly to the supreme court if you are looking for an order of mandamus.  The supreme court has original jurisdiction – to hear the case for the first time, only in 3 cases : cases involving ambassadors, involving ministers, involving consults. This means that the order of mandamus is one of original jurisdiction and the supreme courts cannot hear it. Judge : john marshal. This law violated the constitution. What happens now? The constitution was a framework of government. It was fundamental. There were 2 options: the constitution is supreme, or it can’t stop the legislature. If the constitution can’t stop the legislature then nothing can. The constitution has to be supreme.  Case was decided in 1803.  Buckley v Attorney General: This case was the origin of judicial review in Ireland.  There were 2 provisions for this in the constitution. Act. 15. 4 – Oireachtas shall not enact any law repugnant of the constitution.   Art 34. The high court can invalidate laws that are not constitutional. The offences against the state amendment bill 1940. The courts didn’t want to hear about the rights of people. The legislature could take away your rights for the sake of the rights of the Irish people as a whole. If you had a problem with this the courts would not get involved. In 1950 the court rejects this. (Buckley v Attorney General).  The Separation of Powers Article 6: 1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.  2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.  The Legislative Power: Article 15.2.1° The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State. 2° Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.  To what extent can the Oireachtas delegate its power away? The law is very complicated now; there is not enough time in the day for the Oireachtas to make all the laws. TD’s may not have the expertise needed to properly make laws and regulations. So they delegate. Problem: not always democratic. The legislature is almost entirely dominated by the Government; our members of Government control the legislature. The Whip system: members of a party must vote in line with the party or get kicked out. This is called the non delegation doctrine – this only applies to the making of laws not decision making in individual cases. Primary Legislation: Acts of The Oireachtas Secondary Legislation: derives its power from a Primary legislation, this is what can be disallowed. Ministerial orders, Statuary instruments, regulations by state bodies. You can only have power if it is given to you by the constitution or the Legislature. Ultra Vires – making a decision beyond your powers. Cityview Press v An Caomhairle Oiliuna (1980): Act that allowed An Co. To set a levy on any industry to provide training in that industry and collect money to pay for it. An Co. Could set the levy at whatever cost it wanted. Cityview Press argued that An Co. Was making law, acting ultra vires. The Cityview Press test: Are all principles and policies needed to use the delegated power set out in the legislation? SC: the legislature can give its power away but must give guidelines as to how this power must be used. The statute must lay down what the law is and anything else must only be used to fill in details, not making any new law.  Decided that there was no problem in this case, the Oireachtas could have annulled the levy if they thought the levy was unjust. Application of the Test: McDavid v Sheehy (1991): Imposition of duties act 1957 – was found to be ultra vires The government could impose a tax on anything being imported or exported or any licence. Plaintiff complained about the tax imposed on oil. The government could choose anything it wanted to impose a tax, could set the tax and could consider anything it wanted in making the decision. There were no guidelines. The plaintiff didn’t win his case because the particular tax on law had been validated by an act of The Oireachtas.  Shows when this test will me successful: you cannot give the government total power in any area, there must be some guidance as to how the power is to be used, statute should set out a purpose for how it is to be used. Laurentiu v Minister for Justice (1994): Ailiens Act 1935 – minister was given total power to regulate the deportation of ailiens. Minister was allowed to deport someone whenever he wants for whatever reason he wants. Deemed unconstitutional. A policy is a purpose – there was no policy here.  Leontjava and Chang v DPP (2004): Aliens act 1935 – minister could require aliens to do many things; register with the government, report to the minister about employment etc and ‘other like acts’ Plaintiffs did not do these things and were prosecuted – they challenged it No limit on the power of the minister. This was overturned by the Supreme Court: the policy here was plain and clear, the legislature had given guidelines; there was a policy. Problems: ‘other like matters’ so there was no real limit on the powers. It would be difficult to argue that all matters of principal and policy were regulated.  The question now asked is: does this law deal with no matters of principle or policy? Only if there is nothing like that in the act is it unconstitutional. John Grace Fried Chicken v Catering JLC [2011] IHEC 277: Industrial relations act set up Joint Labour Committee, Idea was that the body called labour court could set up  JLC that would represent a specific industry. JLC could meet and consider things to do with the specific industry. JLC could make recommendations to labour court and could make these laws. Could issue these recommendations as law. If the labour court did this the law was binding and there was no appeal. The Cater JLC made a law that set rates of pay, overtime, etc. JGFC did not agree to how power was exercised. Feeney J HC: looked at the test and said that there were very few principals and policies but not wnough, test was seen as flexible as it is necessary for court to deligate. What is most important is that the P&P’s intended by the primary legislation was succeded by the secondary legislation. Partial admission that this test in not strong. Whether the Oireachtas has an advisory role is important, core of this is can you identify standards goals and purposes and that no, this law is unconstitutional. Very serious outcome and no supervisory role of the Oireachtas. Guidance was scant, skeletal. All this was required for this to be lawfull was sufficient guidance in the statute.  Ultra Vires and Delegation: Ultra Vires: when someone acts beyond the powers given to them. If an act gives you a power then you may only act within the limits of the power given. The plaintiff could make an argument, the minister has done something that is ultra vires or they can say that it is intra vires, the act gives broader powers, if this is so it is unconstitutional as it is not allowed to empower the minister to act in this way and it does not pass the principles and policies test. The double construction rule: If there are two possible interpretations of an act, one constitutional and one unconstitutional then you must interpret the act constitutionally.  Cook v Walsh [1984]: S72 of health act 1970, availability of services can be restricted and restrict certain classes of people. A child was in a car crash, if you are entitled to sue someone, then the person you sue must pay the medical bills. Walsh said that this meant that the minister could alter or undo what was in the act. The double construction rule interpreted the act to take this power from the minister.  Therefore s72 was constitutional but it was not as extensive as previously thought. The minister was acting ultra vires.  Harvey v Minister for Social Welfare: Social Welfare Act: Minister was allowed to take away entitlements in the event that certain people were entitled to double benefits. The court said that the minister cannot take away entitlements provided by law. He was acting Ultra Vires.  Henry VIII Clauses and Incorporation by Reference Statute of Proclamations (1539): King had power to make laws or repeal laws by a proclamation. Any act of parliament that allows a minister to alter or repeal laws was known as a Henry VIII Clause and thus invalid. Sometimes this can be of benefit e.g. to allow the minister to change figures in acts etc. This would still be invalid.  Incorporation by Reference: when the legislature takes something that was outside the bounds of a law they already wrote and incorporate it into law e.g. McDavid v Sheehy (1991). Leontjava and Chang v DPP – legislature makes valid all previous acts of a minister, didn’t write them into law, just validated them by reference. Can this be done? High court said no, Gaegan J : was unconstitutional, that a law is only what is wrote down by the legislature the president must sign and promulgate them.  Supreme Court disagreed: constitution did not clarify how laws should be wrote, only if the constitution directly said the legislature could not do something. Problems: there must be some limit in how they incorporate something by reference, the lay must be clear, you couldn’t incorporate something my reference something that would allow the laws to grow. Citizens must follow the law, we should know what it is, this makes it harder to find out what the law is.  The implimenttion of E.U. Law: Section 2 of the European communitie’s act & Art 29: the legislature can make provisions for the implementation of legislation if it is nessicary to join the E.U. Section 3: this can be done by regulation, secondary legislation. This can repeal laws and acts of the Oireachtas. Massive Henry VII Clause. Would be unconstitutional if not for art 29 of the constitution. E.U. Directive – tends to be vaguer than regulations, must be implemented but gives leeway to individual countries. Do not have direct effect. E.U. Regulations - much more specific, must be applied. Have direct effect. Meagher v Minister for Agriculture (1994): E.U. Directive banned substances. Irish Regulations prohibited the use of certain substances on cattle. Mr Meagher was convicted, said that ministers must not amend acts by way of regulation unless necessary, could have amended the act with an act of parliament and as such it should be done that way. Supreme Court agreed that this directive should have been followed, wasn’t needed to do this by regulations as opposed to an act or parliament but this did not matter. That doesn’t mean that in all circumstances this is allowed.  Denham J: when deciding whether or not to use section 3 it was important to look at whether or not any policies are outside the directive. If the directive does not include all principles or policies then you cannot use a regulation, only the legislature can create principles or policies.  Investigative Powers of the Oireachtas The legislature is not given any powers to inquire according to the constitution.  Maguire v Ardagh (2002): an inquiry was set up by the legislature. The supreme court agreed that they had no power to do this, an inquisitive hearing that forced people to answer.  30th Ammendment to the constitution Bill 2011: defeated. Did not give such powers to the Oireachtas. The Executive Power The executive is the government the Taoiseach and the cabinet. The members of the executive are also members of the legislature. The executive has de facto control over the legislature.  We have an imperfect separation of powers. What are the powers that are specific to the executive?  The Executive:  Article 28 The Government shall consist of not less than seven and not more than fifteen members who shall be appointed by the President in accordance with the provisions of this Constitution.  The executive power of the State shall, subject to the provisions of this   Constitution, be exercised by or on the authority of the Government.  Express Powers:   Article 28.3.2: defence of the state in times of invasion. Article 28.4.4: preparation of the budget, with strong Dáil oversight. Article 29: foreign affairs. Powers Exercised by e Executive: Murphy v Dublin Corporation (1972) – an inherent executive power v persona designate of the legislation. Claim of executive privilege, minister claimed this in the Murphy case. Walsh J: did not have privilege.  Inherent or Implicit Powers: Haughey v Moriarty (1999) – there are inherent powers. But what are they? Deductive Model: the executive gets what the powers of the state that are not the powers of the legislature or the judiciary. Not great, hard to determine. Historical Model: if it has been used in the past. Could be what were the entitlements of the King if England.  Doyle’s Three Steps: Is it a power the State must have? If yes... Does the constitution assign it to the legislature or the judiciary? If no... Is it the sort of power that would traditionally vest in the government. Immigration: Oshenku v Minister for Justice (1986) – powers of immigration were vested in the State.  FP v Minister for Justice (2002) – defiantly a power of the state. Not specifically assigned to the L or the J Was the sort of power that traditionally belonged to the government. Laurentiu v Minister for Justice (1999) – was a power of the executive. Denham J: legislature could have this power to some extent, not exclusively a power of the executive. Keane J: even if there was no law regulating this the Executive could have power over it. The executive has apower to deal with immigration, however the legislature can take it away, however the legislation cannot give this power back without any policies or powers laid out. Explicit Powers – Foreign Policy Boland V An Taoiseach (1974): sunnindale agreement, state signed up to this, Irish government committed to not seeking any change the status of northern Ireland before the people of Northern Ireland were willing.  The constitution art 2 and 3 once said that the island of Ireland was a part of the state. The courts said that Foreign Policy was within the relm of the executive and the courts could nto realy interfere. Crotty  v An Taoiseach (1987): SC said that the government cannot ratify even with the support of the Dáil, any treaty that interfered with the foreign policy of the country. Now we must have a referendum.  The state mst always have the best interests of Ireland in mind. McGimpsey v Ireland (1990): the government still have the best interents of Ireland in mind.  Horgan v Ireland (2003):  Article 29.3: Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.  Does not bind the state, just guidelines.  Pringle v Ireland [2012] IESC 47 – SC reconsidered Crotty. Concerning the ESM Treaty. Ireland ratified it, without putting it to the people. Is the government giving away power here? The government does not have the ability to always veto. SC said it does not have to be put to the people. Clark J: On a narrow reading of crotty it would seem that the state cant agree to anything. If it agrees to something that gives away the right to say no it gives away its soreignty. No, crotty could nto mean to say that you cannot make deals with other states, as that is the power of foreign policy.  There are two limits on this: You cannot agree to a treaty that binds Ireland to future policies that are not laid out in the treaty that are assigned by an external party. The Limits of the Judicial Power Article 34.1:        Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.  Article 34.3.2: Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court or the Supreme Court.  The courts cannot force the Oireachtas to make a law. The sole and exclusive legislative power belongs to the Oireachtas. The courts cannot enforce policy against the executive. Can the courts issue a mandatory order against the executive? Mandatory order: ‘mandamus’ compels you to do something. Prohibitory order: prevents you from doing something, makes you stop. Declaratory order: declares the situation – clarifies rights and entitlements.  When do you require a Mandatory order? - Socio-economic rights: Welfare rights: to be distinguished from civil and political rights (negative rights- prevents the state from doing something.) Positive rights: forces the state to do something. Right to food, housing, healthcare, social welfare – costs money In the Irish Constitution: Primary Education, Article 42 Secure care for children at risk – derived from Article 42.5 and Article 40.3 (issue in this case) Sinnott v Minister for Education: Primary Education stops at 18. TD v Minister for education: Child in the care of the state, had severe behavioural difficulties – required secure care. State was dragging its heels – several children died – escaped from state care and either killed themselves or was in situations that resulted in their deaths. The right for secure education was recognised FN v Minister for education. Kelly J in the High Court:  He was issuing declaratory orders for years, lost his patience.  The executive has been in clear disregard for its constitutional obligations Made a mandatory order to build these facilities Detailed instructions on what and where Deadlines and reporting Not making policy, enforcing it – executive had made these plans already. Executive appeals the judgement: Court overturned Kelly, four to one. Court could almost never give a mandatory order the executive. Majority: Hardiman J’s theory of the Separation of Powers: A ‘High Constitutional Value’ – nothing more important than it.  Not vague and flexible, but clear and rigid – in the constitution. Not functional; an end in itself No one organ of government is Supreme – no general Jurisdiction for the courts to police the other branches Explicit textual checks and balances between branches are the only checks and balances – that’s it. No power for the courts the review the executive.  Courts cannot even interpret the Separation of Powers, just apply it. Even when rights are at stake, courts cannot force executive to act.  Murray J - Majority on Mandatory Order: Exceptionally rarely Courts had a role in reviewing the executive – Boland standard of ‘clear disregard’ But even then, could not order policy to be enforced If courts could ever issue a mandatory order, only a general one If possible, only in most exceptional circumstances Clear disregard – conscious and deliberate disregard for rights accompanied by bad faith or recklessness. Hardiman J agrees: Absolutely exceptional cases ‘the absolute final resort in circumstances of great crisis and for the protection of the constitutional order itself.  Criticism of the Majority: Cannot interpret the Separation of powers – if it is ambiguous it is the courts must interpret the constitution. The only way he could have come up with this was by means of interpretation of the separation of powers in the constitution. Clear disregard and its meaning – the majority no longer wants it to mean that. Coherence of the theory of the Separation of Powers as clear and rigid Non-Delegation and principles and policies? Not in the constitution Inherent executive power and legislative ‘clawing back’?  Inherent ambiguity of the line between legislative and executive powers. Where is the textual justification for any review of the executive, even in absolutely exceptional circumstances? Minority Viewpoint: Denham J’s theory: flexible and functional Not an end itself; a means for stable government Checks listed in the constitution were illustrative rather than exhaustive Court did have the power to check the executive, especially when it disregarded rights. You had to balance the separation of powers against other things such as rights. She disagreed on how the theory was practised – she would have allowed the mandatory order, agreed with Kelly J. This shouldn’t be done frequently, use declaraty orders first.  The rights were uncontested – they had to be protected The time was running out. There was a delay on the part of the state, dragging its feet Not making policy – enforcing it. Problems: She spoke of a balance; didn’t seem to be any balancing going on – she said that rights simply win. If rights are superior to the separation of powers then so too are the judges that defend them, the judiciary was on top. Difficult to see where the limit is – all rights cases are serious. She is making policy, taking away the right to change her policy Which theory is most compelling? Would you issue a mandatory order? TD puts the doctrine on a pedestal – the chain was tied too tightly – could end up damaging the separation of powers.  Judicial Power Independence: It is not obvious what the judicial power is: McDonald v Bord na gCon criteria: Dispute or controversy as to the existence of legal rights or violations of the law Determination of rights, imposition of liabilities/penalties Enforcement of rights and penalties Issue “court orders” Article 37: limited and quasi-judicial functions in non-criminal matters may be delegated. E.g. the ombudsmans offices etc Defining judicial power: Goodman International v Hamilton (No 1) (1992): Judge Hamilton was appointed to look into certain conduct in the beef industry The question was, was the setting up of this tribunal constitutional Goodman International argued that this could only be done by the judiciary SC disagreed Finely CJ – applied the Bord nag Con criteria; the tribunal didn’t meet any of them. This is nothing like what a court has ever done in this jurisdiction – tribunal was making findings that was all Croke v Smith (No 2) (1998): Judiciary are not involved in mental health detention.  Can appeal your detention but not to a judge Is this unconstitutional? Not part of the judicial function – not the administration of justice – not determining guilt or innocence. The decision makers were subject to judicial review – courts ensure that the decisions made were fair Mental health had never gone to the courts  Strict stance within that definition: Buckley v Attornry General (1950): Sinn Fein funds act – the law allowed the attorney general to command the courts to do something.  Under no circumstances could the legislature attempt to allow the executive to take the judicial power from the judges. Duffy J  Maher v Attorney General (1973): Drink driving offence – most litigated area of Irish law. If a medical praticitionar certified that your blood alcohol exceded a certain level then that was conclusive proof that  this was the case.  SC – the evidence could not be contested, would tell the judge that this is what the finding must be. This was taking away the courts most critical function – to assess and weigh up evidence, if the defence cant question the evidence and the court can question that evidence then the court had no power in that part of the judgement. Statute was unconstitutional. Accountability: Judges are not elected in this country, we believe that judicial independence is very important. Judicial Impeachment: Article 35.4.1: A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal. Curtin v Dáil Éireann: Judge found to have child pornography – was acquitted because of the exclusionary rule of evidence. The Oireachtas decided to impeach judge Curtin. Passed legislation to look into judicial conduct. They wanted to see the computer. Curtin J sued the state Court was looking at whether or not they had a role in impeachment of judges. Murray CJ: Constitution vague about impeachment procedure Obligations on the Oireachtas Role of courts was at risk here – they had to oversee this Constitutional justice – Fair Procedures SC had to stay involved. Court oversight was not for the sake of judges, but the constitutional requirement of an independent judiciary. Even thought courts will be involved they will not be heavily involved – since this was not clearly unconstitutional the courts won’t get involved.  Curtin resigned before he was due to give evidence. Curtin was closed on this one! :P Judicial Pay Article 35.5:  The remuneration of a judge shall not be reduced during his continuance in office. O’ Byrne v Minister for Finance (1959): O’Byrne J died – his wife claimed that he should never have been taxed because he was a judge. Concluded that the purpose of Article 35.5 was not to exempt judges from taxation, was to prevent an attack on judicial independence. 29th Amendment to the Constitution Bill: Voted for and passed Objections: Cost more to hold the referendum  50% of judges had decided to take cuts anyway 35.5.2: The remuneration of judges is subject to the imposition of taxes, levies or other charges that are imposed by lw on persons generally or persons belonging to a particular class. .3: Where, before or after the enactment of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such laws states that those reductions are in the public interest, provision may also be made by law to make proportionate reductions to the remuneration of judges. Constitutional Law: Criminal Trial Rights. Article 38.1 The constitution has had a huge impact on criminal law. There are 2 ways: Process - the way in which the law operates, the way in which we convict people and carry out trials. Substance – what crimes are illegal etc.  There is one line from which almost all law on this area comes from – article 38.1  “No person shall be tried on any criminal charge save in due course of law.” The courts have taken a much broader view of what trial and due course of law means. This is seen in Heaney v Ireland [1994]. Costello J: Not just positive law – the basic concepts of justice, a fair trial. It’s not just whatever the law says not just any law but a good law. Some key elements: -Presumption of Innocence -Offence known to the law -No double jeopardy -A right to know the evidence against you -Exclusion of illegally obtained evidence -Privilege Against Self-Incrimination (the right to silence) Two questions:  1. Why are the courts so willing to get involved in the procedure side? 2. Why are the courts so unwilling to get involved in the substance side, the actual creation of laws? Judges are experts of procedure, no one does it as well as them.  What is a criminal charge? We determine this by its effects.  A criminal charge is so if it looks like a criminal charge.  Melling v Ó Mathghamhna (1962) This case was about the smuggeling of certain goods into the country, doing so resulted in a fine 3x the tax usually imposed. SC considered what a criminal charge was, if it looks like a criminal charge then it is. Murphy v GM (2001) – proceeds of crime act SC examined the constitutionality of the Proceeds of Crime Act 1996 – the act provided for the forfeiture of property which was established, on the balance of probabilities, to be the proceeds of crime. SC decided that this was totally against 38.1  Unconstitutionally Obtained Evidence, or The Exclusionary Rule. Exclude evidence obtained in breach of constitutional rights. In Britain evidence must be reliable and relevant, there is no exclusionary rule. There is no other exclusionary rule that goes as far as Ireland does.  Not all illegal searches are unconstitutional but all unconstitutional searches are illegal – must breach a right to be unconstitutional. What rights? 40.4 – Liberty: detained or arrested unlawfully. 40.5 - Inviolability of the dwelling: must be your home not your car of office etc.  Both must be done in accordance with the law. This means that if you enter someone’s home or arrest them illegally you ate also doing it unconstitutionally.  Attorney General v O’Brien (1965) NOT THE CURRENT LAW! Gardaí searched 118 Captains Road however the warrant said 118 Cashel Road. The search was arguably illegal and if so, unconstitutional. They took it to the Supreme Court. Majority Judgment: Kingsmill-Moore J 3 possibilities:   1. However illegal, always admissible.                             2. If illegal, always inadmissible.                             3. Judge’s discretion to decide. Here it was unanimously decided that this evidence was admissible; no deliberate treachery - Should be at the judge’s discretion to decide whether or not to admit the evidence.  This case is still useful for illegally obtained evidence, not unconstitutionally obtained. Minority judgment Walsh J: “When the illegality amounts to an infringement of constitution rights the matter assumes a far greater importance than is the case where the illegality does not amount to such an infringement. The vindication and protection of constitutional rights is a fundamental matter for all Courts established under the Constitution. That duty cannot yield place to any other competing interest.” Presumptively excluded, but not always: Must be a conscious and deliberate breach of constitutional rights. There were slight problems with this as the courts job was to protect constitutional rights, it wasn’t relevant that the breach was conscious and deliberate or not. In this case the conscious and deliberate breach is not referring to the act itself but the rights, must be aware that you are breaching rights when you do it. Must not be any extraordinary excusing circumstances such as: imminent destruction of evidence; rescuing a victim in peril. This was not the law at the time as it was the minority. However it gradually came to be the leading judgement.  Walsh J changes definition of conscious and deliberate. DPP v Shaw (1982): The law changed and now looks at whether or not the ACT is conscious and deliberate, regardless of knowledge of breach of rights. Knowing you are breaching constitutional rights is irrelevant. Walsh J. Unconstitutionally obtained evidence is presumptively excluded:  must be a conscious and deliberate breach – this refers to the ACT not the rights. must not be any extraordinary excusing circumstances DPP v Kenny (1990): this is the law as it stands now. Warrant from peace commissioner. Ordinary person who is empowered to review and commission warrants.  The Gardaí had not informed the commissioner about the basis for their suspicion.  Finlay CJ:  absolute protection rule; priority of the court was to vindicate rights. Should choose whatever rule would do that best.  Rejects the O’Brien definition of conscious and deliberate – chooses Walsh’s Shaw version. Will not just deter bad conduct, but encourage good conduct – make gardaí aware of rights. Notes that this has a “marked disadvantage” of excluding evidence. Constitutional rights are more important. Says that cannot be balanced against rights of the accused. Deterrence v Vindication: Deterring bad behaviour – O’Brien, Shaw Majority Vindicating rights – Walsh in Shaw, Kenny, majority Limits of the Rule: Formal v Substantive Error A formal error is an error on the warrants face. A minor error in the drawing up of the warrant.  DPP v Balfe (1998) distinguished from Kenny – no forcible entry or deliberate treachery involved – the number of her house, her name and gender and the year were wrong.  None of these problems questioned the underlying warrant to search. It was allowed.  A substantive error is a problem with the basis of the warrant itself. Damache v DPP (2012) – there was a statute that let the gardaí apply for a warrent from a Superintendant. The superintendant was not unbiased. Distinction recently reasoned out in DPP v Mallon [2011] Extraordinary excusing circumstances: DPP v O’Brien: The protection of life The prevention of destruction of evidence During a lawfull arrest. DPP v Shaw (1982) – Life Mr. Shaw was kept in custody for longer than he should have been – Right to liberty 40.3 The evidence was collected in breach of his rights.  The gardaí were trying to save the life of a victim. The right to life was also in the picture.  This meant that the breach was still illegal but no longer unconstitutional. DPP v Lawless (1985) – evidence. DPP v Delaney (1998) – safety Causation: You have to prove that your rights were breached was linked to your conviction. Breach of rights must be causally linked to unfairness at trial. Walsh v O’Buachalla (1991) – drunk driving – no solicitor during blood  The applicant had been arrested on a charge of drunk driving but was refused permission to have his solicitor present while the doctor was taking a blood sample. Blayney J refused to rule the evidence inadmissible even if there had been a breach of the applicant’s constitutional rights.  Is the exclusionary rule a good idea? Against: Charelton J in DPP (Walsh) v Cash [2007] IEHC 108 In Favour: Balance in the Criminal Law Review Group Report – dissent of Gerard Hogan. “Our society has committed itself to abiding by the rule of law and to respect and vindicate the fundamental freedoms enshrined in the Constitution. It behoves us to take these rights and freedoms seriously and if the occasional exclusion of otherwise relevant evidence is the price of respecting these constitutional rights, then that is a price society should be prepared to pay in the interests of upholding the values solemnly enshrined in our highest law, even if one unfortunate consequence is that a particular victim may feel that “their” case has not been fairly dealt with.” e right to a lawyer: Criminal Justice (Legal Aid) Act 1962: (1) “If it appears to the District Court - (a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid, and (b) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it, the Court shall, on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the Court thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act. (2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable. State (Healy) v Donoghue [1976] IR 325 – right established Here the Supreme Court elevate to constitutional status the right of an accused person to be provided with a lawyer.  The right to free legal aid The right to have a lawyer have access to you during interrogation.  The right to know about your right. The right is granted if: You are charged with a serious offence. You cannot afford a lawyer. Or if there are other exceptional circumstances. Needed a lawyer if: Had to decide how to plead. Had to decide whether to have a trial by jury. Carmody v minister of justice 2010 – right to legal aid – not a barrister He got free legal aid but not a barrister, a solicitor. Is there a real risk of an unfair trial?  The consequences could be quite serious. The trial was quite complex.  “the denial of an opportunity to apply for and be granted, where appropriate” legal aid for the appointment of counsel in the District Court “is a denial of a constitutional right” and that “the appellant in this case cannot be tried unless and until he is afforded an opportunity to apply for legal aid to include solicitor and counsel and have that application determined on its merits having regard to the considerations referred to in this judgment”. The extent of when you get your lawyer: You don’t have a right to total access to a lawyer before trial, you have a right to reasonable access. DPP v Buck [2002]: - good faith attempt – no breach of rights It took five hours to find a solicitor, by this time he had been questioned and made many statments that implicated him. There was a good faith attempt – no breach of rights. DPP v O’ Brien [2005]: deliberate attempt to breach rights – unconstitutional up until they see a solicitor  Arrested at 1pm, asked to see a solicitor. The solicitor chosen was from tallaght. He arrived at 8pm. After he left, O’Brien was questioned again until 11pm. This was a deliberate attempt to breach his rights. This was a conscious deliberate attempt to breach the rights. Everything between 1pm and 8pm was unconstitutional however after O’ Brien had seen his lawyer the interview was legal. His confession was given during the legal part. There was no causal link between the breach of rights and the confession. Criminal Justice Act 2011   There will be no questioning of someone who is in custody until a solicitor has arrived if one is asked for. This is a law, not a constitutional right. However as long as your waiting the clock is stopped in terms of how long you can be held. Right to Silence: At common law there existed a privilege against self – incrimination.  Not well protected in the Irish constitution. Common Law   The Court of Star Chamber and the Tyranny of Charles 1 (noble men) – forced people to speak. You had to swear to god to tell the truth. You could 1. Lie and face eternal damnation, 2. Say nothing and be accused of contempt of court, 3. Tell the truth and go to jail.  Constitution of the United States – the 5th Ammendment – no one should be compelled to bear witness against themselves in a trial. Silence under Article 38.1:  Heaney v Ireland [1996] 1 IR 580 – not really a right Heaney and McGuiness arrested under suspicion of involvement with the IRA S52 of the Offences Against the State Act 1939 compelled them to give an account of your movements. They would be guilty of an offence if they refused. High court Costello J the right to silence was a part of article 38.1, both in court and in criminal investigations. Could it be limited? Yes.  Played down its importance; just one of lots of protections for a fair trial, alongside jury trial, presumption of innocence, right to a lawyer etc. Therefore the law was constitutional. Supreme Court Silence pre-trial is not in Article 38.1, but Article 40.6 – a corollary of free speech (you have the right to free speech but you also have the right to say nothing).  However any statement could be used as evidence. Problem: Heaney and McGuiness thought that if they spoke, the statement would be used at trial. Free speech limited by public order – strong public order concern in eliminating subversive crime. Only useful for the guilty, and therefore of little importance. This is not true – innocent people might have a very good reason not to speak or could misspeak.  Pringle: “I know that you know that I was involved, but ... I am saying nothing, and you’ll have to prove it all the way.” Neither court affords the right any independent importance Costello says it’s only useful insofar as it keeps trials fair, and lots of rights do that O’ Flaherty says it’s not important because it’s only really used by criminals Two points: These are arguments against this being a right at all Rights have to mean more than their perceived usefulness, or they would not need to be rights Rock v Ireland [1997] 3 IR 484 – weak protections S18 and 19 of the Criminal Justice Act 1984 Could draw inferences from possession of certain objects if you did not explain them at the time – not forced to speak but if you didn’t your silence could be used against you. Forged notes – did not account for their presence Supreme Court said it was constitutional – didn’t have to draw inference; didn’t guarantee conviction. Accused could explain why he had stayed silent. Stronger Protection: Re NIB (1999): Supreme Court - confirmed that a coerced statement cannot be used during a trial. The double construction rule – when there are two ways an act can be interpreted and one is constitutional and one is not then the one that is constitutional should be followed.  Dunnes Stores v Ryan (2002)  DPP v Finnerty (1999) – inferences from silence were drawn, there was no law authorising this to happen. Mr. Finnerty had been accused of rape, he made up a story during trial. The judge allowed him to be questioned as to why he had not said anything during garda questioning. This was appealed and not aloud. 2007 Criminal Justice Act Extends Rock, inferences can now be drawn from the refusal to answer a question so long as this act is mentioned.  Big restriction – not fully tested Recent case on access to a lawyer: DPP vFirzpatrick [2012] IECCA 74 – charged with offences related to being caught with explosives. They came up with an excuse during trial. The gardai used the 2007 act on them. When the gardai tried to use this at trial. The objection raised was that he didn’t have access to a lawyer immediately before they used the power. Court of criminal appeal said that it was essential that he had access to a lawyer beforehand.  Pre-Trial Publicity: Risk of Jury Bias:  Could strongly imply guilt. Could imply evidence that is not admissible in court Could colour the character of people involved. D v DPP (1994):  Headline: “Rape: it began when I was 11.” “I kept thinking ‘Iwish I was dead.’” Didn’t expressly name accused, but said trial “Halted this week.” 6 months had passed – it was decided that there had not been a real risk of unfairness. Z v DPP (1994):  Alleged the rapist in the X case Supreme Court said the every juror would know the case, and some of the facts. Allowed the trial: trusted tejury could be directed appropriately. Magee v O’Dea (1994): “Army Murder: Find This Man” “This is the face of the suspected cold blooded murderer of soldier Michael Newman.” “GET HIM – IRA Murder Cops Name Gun Psycho.”  DPP v Haugh: Time will pass and given time, perhaps it will be fair to try at a later date. Duty to seek Out and Preserve Evidence: Only when it results in an unfair trial. DPP v Murphy:  High court said that the gardai had a duty to seek out and preserve evidence that could be of use in a trial. Murphy was arrested for stealing a car. He wanted to see the car and examine it before trial.  Just because the gardai don’t want to rely on a piece of evidence doesn’t mean it is not relevant.  Braddish v DPP (2001) A shop was robbed, there was a cctv tape identifying him. he was brought to a garda station and questioned Hatdiman J:  Must keep any evidence that could be used by either the defence or the prosecution.  Video tape was much better evidence than a disputed confession. Prohibited the prosecution. Dunne v DPP (2002) – seek as well as preserve. Petrol station was robbed. When it was robbed before the video tape was taken. This time it was not taken.  Bowes and McGrath v DPP (2003) Mr Bowes Possession of heroin with intent to supply Found in a car he was driving 20 months after charges brought, asked to inspect the car Ms McGrath Dangerous driving causing death Shortly afterwards she asked to see the bike, gardai had gotten rid of it. Hardiman J found for Ms McGrath Central piece of evidence in case against her Went to the heart of the matter Found against Mr Bowes Questionable value in examining the car Other than drugs being in the boot, scant relationship to the case Delay – Bowes dragged feet; McGrath was expedient.  Savage v DPP (2009) Joyriding and Dangerous Driving Causing Death – sought the car. Sipreme Court: Burden is on the applicant to prove real and substantial risk of an unfair trial. The duty on Gardai Limited by what was reasonable and practicable Don’t have to store thousands of cars Don’t have to follow every lead – no disprpoprtionate burden on manpower or resources. DPP v Rynn: Man charged with dangerous driving causing death. Wanted to view both trucks.  Right to a Speedy trial: Memories are worse Witnesses may not be alive Common with child sex abuse cases – treated differently because the abuse contributed to the delay. DPP v S.H:  Refocus on the real and serious risk of an unfair trial. If we say that the defendants are to blame for the delay it would mean that there is an assumption of guilt. Mc Farland v DPP: False Imprisonment No evidence for 15 years Fingerprints were lost, there were pictures of them 23 years delay Partly his own fault for taking his case to the supreme and high courts. No risk of unfairness. What would have been unfair? DPP v Quiligan: Death of a key witness N.C. v DPP (2001): Alleged child sex abuse case between a brother and his 2 sisters Mother died Was a key witness O’B v DPP (2010): Charged with sexual assault of a ten year old boy Partner had died in the intervening years – could have offered alibis etc. Allowed to go to trial as jury could be instructed Presumption of innocence: Innocent until proven guilty Beyond a reasonable doubt Burden of proof on the state O’ Leary v Attorney General: Offences against the state act – if found with a document that might prove you were a member of an illegal organisation assumed guilty Opinion evidence: Superintendant could claim you were a member and this counted as evidence Shifted the evidentiary burden of proof but not the legal burden of proof Evidentiary burden – balance of probabilities Legal burden – beyond a reasonable doubt Sometimes the legal burden of proof is shifted to the accused e.g. defence of insanity – accused must prove this beyond a reasonable doubt. Right to confront the accuser: Doesn’t exist Trial by Jury: Exceptions: Minor crimes Military crimes Special criminal court - when the ordinary courts are inadequate to administer justice. Representative: must represent a cross section of society.  De Burka v Attourney General: We only had rich men on juries. Could only sit on a jury if you paied house rates. Women could choose not to sit on a jury. Ruled unconstitutional on art 38.5  Charging you with an offence: 15.5 The Oireachtas shall not declare acts to be illegal  If you commit an act and it is legal at the time it cannot be declared illegal after the fact. In the event that a law is not clear s to weather it applies prospectively or retrospectively – double constructional rule; the legal interpretation stands. Prohibition on vague laws: The King case – the offence of loitering with intent – vagrancy act 1880’s Applies to every suspected person or reputed thief with the intent to commit a felony – you don’t have to establish the intent – don’t need acts – could be inferred from your general demeanour and conduct. Henchy J – it wasn’t a question of whether it was unconstitutional but more how it was unconstitutional. Laws must be just. You must know you are committing an offence when you do it. If the law is so vague that you can’t know whether or not you are breaking it, it is up to the gardai to decide. This law doesn’t exist until someone decides to prosecute you. The law means whatever the prosecutor wants it to mean. The bill of attainder rule: You cannot pass a law that is tailored to criminalise a type of people as opposed to actions. The irish constitution does not deliberately prohibit bills of attainder.  An Blascaod Mor Teo v Commissioner for Public Works (1998, unreported) – government wanted to take the land of people if they were not direct descendants of the original land owners on the island. The law must be general. The American land owners fought this saying that it targeted them. There is a certain level of generality required for the making of laws.  Dokie v DPP 2011 – entered the state in 2008 with her daughter and 2 other children. She had no passport or any form of identification. Clearly committed an offence s11 – she couldn’t be prosecuted for that offence. She was prosecuted with the s12 offence of the 2004 immigration act. If a garda asked you for a passport to check your immigration status and you were a non-national and you didn’t have it or couldn’t provide a suitable explanation. The gardai knew she didn’t have a passport. They were trying to work around the law. Kerns J – unconstitutional the words that create this offence are too vague – what was a satisfactory explanation.  This was drawn from the rule in King. Whether or not you were guilty was deemed by a gardai. There was another correct offence that she should have been prosecuted for. Being punished for something she already done. She could be prosecuted again and again. Real problem – encouraged ethnic profiling. You could be an Irish national. You can’t be required to carry a passport because you look foreign.  This offence was struck down.  There must be mens rea in prosecuting someone: Actus reus – criminal act, the actul act itself. Mens rea – the mental element – you must intend to break the law. When you take away the mens rea this is an offence of strict liability. The courts have said that this is sometimes ok, however not for serious offences.  CC v Ireland – the supreme court  - it was an offence to have sex with a girl under the age of 17 and a greater offence to have sex with a girl of 15. Not an offence to say I wasn’t aware.  Consent is not an issue. She told him she was 16 and he believed her, reasonable belief. However the law said that that wasn’t a defence, there was no mens rea. This was a serious crime.  He was mentally innocent. The states defence – trying to protect children. It was decided that C’s rights were more important.  This isn’t totally free of mens rea, he intended to have sex. Mental innocence isn’t moral innocence.  Property Rights The origin of Private Property: Article 40.3        1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.  2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.  Article 43: 1.    1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.  2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.  2.    1° The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.  2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.  What is a natural right? Does not rely on mans creation or assumption of it, is not made up by man, not a legal right or a conventional right.  It is a right that was around before law. What predates law? The state of nature – the natural condition of mankind before society – a state of was with everyone fighting each other. Man couldn’t deprive the life or liberty of another person. Natural right – right that exists even in a state of nature The social contract – this was formed by society because people dislike the state of nature. You now had a rule of law instead of the rule of nature. Therefore natural law cannot be used here, the constitution places the restriction of a social contract on natural law; it binds it and removes its power, replacing it with the principles of social justice – is this in any way better? To have a universal law you must have a universal source.  John Locke’s theory: Our constitution is not derived directly from this theory – it derives from catholic teachings. Wished to rail against tyranny - Famous for his ideas on consent and property. Took the idea of a state of nature and expanded on it. All people were equal – no one was born a king. The law of nature limited your freedom in the state of nature. The limits – you have rights of life, liberty, and property and those rights cannot be taken away.  Why? – they come from God. Rights derived from reason. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.” Property of the Person: “...every man has a property in his own person: this is nobody has any right to but himself. The labour of his body, and that work of his hands, we may say, are properly his.” “Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.” Why Property might be taken away: Duty of Charity:  “God the Lord and Father of all, has given no one of his Children such a Property, in his peculiar Portion of the things of this World, but that he has given his needy Brother a Right to the Surplusage of his Goods; so that it cannot justly be denyed him, when his pressing Wants call for it. . . . As Justice gives every Man a Title to the product of his honest Industry, and the fair Acquisitions of his Ancestors descended to him; so Charity gives every Man a Title to so much out of another’s Plenty, as will keep him from extream want, where he has no means to subsist otherwise.” Taking of Property by Consent: “Men therefore in society having property, they have such a right to the goods, which by the law of the community are theirs, that nobody hath a right to take their substance or any part of it from them, without their own consent: without this they have no property at all; for I have truly no property in that, which against another can by right take from me, when he pleases, against my consent. Hence it is a mistake to think, that the supreme or legislative power of any common-wealth, can do what it will.” Consent is not in the taking, but to governance: When you leave the state of nature you consent to be governed. When you consent to this you consent to your property being taking by the government as long as it respects the idea of property and does it for a good reason and does not single you out, takes from all equally. Buckley v Attorney general: The origin of judicial review in Ireland - Art 15. 4 – Oireachtas shall not enact any law repugnant of the constitution - Art 34. The high court can invalidate laws that are not constitutional. The offences against the state amendment bill 1940. The courts didn’t want to hear about the rights of people. The legislature could take away your rights for the sake of the rights of the Irish people as a whole. If you had a problem with this the courts would not get involved. In 1950 the court rejects this. (Buckley v Attorney General).  The constitution clearly states a limit on how the state takes away property. The court made the state justify its restrictions in the name of the common good. In this case the state did not justify itself. Attorney General v Southern Industrial Trust: (very bad decision) Ignored Buckley entirely - Leased a car to a man who attempted to smuggle his car to the UK. The Government was entitled to take the car. Southern Industrial Trust said that the car was theirs, he was not finished paying for it. The government didn’t care, the car was theirs. There was an unjust attack on their property rights. Said there is very little individual property rights in the constitution – state can take away property whenever it wants in the name of the common good, this is up to the Oireachtas. Says sometimes people need to forfeit their property – suck it up. Wasn’t concerned about the common good – it wasn’t clear they were not acting in the common good so he didn’t care.  Blake v Attorney General: Blake wanted to know why property rights were protected twice – might not be true. 43 – only protects the institution.  40.3 – the personal rights of the citizen to own property.  This separated the personal property rights and the state needing to take them away in the common good. Dreher v Irish land Commission: Links 40.3 and 43 back together again Standards of review: Constitution says that your rights may not be unjustly attacked – there could be a just attack - Something that can be done that takes your rights and still be justified. Most if not all rights are subject to limitations.  Judge Hogen 1997: Rachel Walsh 2009: Standards of review determines where the right is limited. The proportionately test: Heaney v Ireland – Costolo J – sets out 4 aspects: Does the law pursue an important objective  Are the means used to pursue that objective rationally connected to the objective Does the law pursue this objective infringe rights as little as possible Is the effect of the measure on rights reasonably proportionate to the objective  Must pass all aspects to become a law that limits rights Used for most rights restrictions, not just property Objective: is it substantial? Question of  1.  importance  2. legitimacy Some objectives, even if important, may not be legitimate E.g. taking away people’s rights just for the sake of it, something sexist, racist etc. It must be weighty and important also. Law says you cannot alter/renovate Georgian houses-to preserve them - This is their subjective intention. You may only be interested in the intention of the measure, what the measure says, not what it was intended to do. This is the objective intention/enacted purpose. Our courts do not like figuring out the subjective intention- looking into minds of lawmakers. Only interested in objective intention -They infer from the objective intention what the purpose is John Adams: “We want a government of laws, not men” The courts will infer what the best motive was for enacting the law and they will say that that was the intention.  They essentially find the most legitimate motive that they can find. So even if the legislature’s motive was illegitimate, the courts will move otherwise.  Undercuts the legitimate question Two cases of this:  Case in Alabama- electoral district boundaries, rigged so as to be racist No possible legitimate motive could be suggested  Law struck down. SM V Ireland (2007) Man sexually assaults a woman- two years in prison Man sexually assaults another man- ten years. Judge said motive was invalid as it was actively homophobic. No possible legitimate motive. Law was struck down. Second test- rational question: Do the means used by the law actually achieve this legitimate objective? Are they, in effect, rationally connected? Go back to Georgian houses Does the law stopping people from renovating Georgian houses achieve historical preservation? Yes This case becomes tortilogical (self-proving truth) So when courts are looking for the best possible motive, they figure it out from looking at the means. So the means are obviously going to achieve the ends. This test is almost never failed then.  However, not quite entirely useless: It can catch out an idiotic legislature. German legislative- passed a law that anyone who practised falconry had to pass a gun test. They misunderstood what falconry was (they don’t use guns). It had a purpose (gun safety) but lacked a rational connection On its face, it may look legitimate but means may not be BLASKET ISLAND CASE State said they wanted to create a national park (to justify taking land away from the foreigners who owned it) Judge had considerable scepticism about this objective. Thought the real objective was to get these people out. If you looked at the means, it did not achieve a national park. They failed to achieve it because: lineal descendants had not looked after their land The entire island would not be taken so the creation of a national park (with some private areas) would be too diffi

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