Damache Case Update

In relation to the recent blog regarding the Damache v DPP [2012] decision and search warrants, as expected the effect on already decided cases will likely be minimal.

In DPP v Thomas Hughes [2012] (7 July 2012) a convicted person challenged his conviction on the basis that evidence used to convict him had been obtained under legislation which had subsequently been found unconstitutional in the Damache case.

The Court of Criminal Appeal rejected the applicant's appeal on the basis (amongst other reasons) that he had pleaded guilty during his trial. The State did not have to rely on the evidence which it had obtained by the means which were subsequently found unconstitutional.

This is in line with previous decisions such as the high profile decision of C.C. v Ireland [2006] where a convicted person sought to have the decision overturned following a subsequent finding that the legislation outlining the offence was inconsistent with the Constitution. The court found that as the accused had not sought to challenge the provision in his previous trial he was not entitled to rely on it at a later stage

Note on the Common Travel Area

The High Court has recently stated that only UK nationals and Irish citizens may avail of the reduced border restrictions of the Common Travel Are. In practice this means that non-nationals travelling between Ireland and the UK, including the North of Ireland, may face difficulties returning to the South of Ireland

Often a person's right to remain in Ireland is conditional upon that person remaining within the State. This may become an issue where a person unwittingly crosses the border to the North of Ireland. On return to the South the person may be required to re-apply for permission to land or be in the State.

The case involved a Bolivian couple who had travelled to the North of Ireland onwards to Scotland and then to London. They had been given permission to remain in Ireland for one month from their first arrival in Dublin

The Court noted that there appears to be a common misconception that foreign nationals could also benefit from the Common Travel Area, which, according to the court, not the case. The couple were stopped by the UK authorities in Scotland and sought to deport them, they asked the Irish authorities whether they were entitled to re-enter Ireland which the Irish authorities said they were not.

The Court noted that the couple had probably made an innocent mistake.

New legislation for Co-habiting Couples.

New legislation was introduced early last year to a lot of publicity as it introduced civil partnerships for same-sex couples. This legislation also included a number of very important changes to the law which had applied to couples, both heterosexual and same-sex, who live together for a period of time and then separate. This part of the legislation applies to a much greater proportion of society but was greeted with much less publicity, despite the fact that it may have a much greater affect on people's lives without them realising it.

Prior to the introduction of this legislation, co-habiting couples had no legal obligations to each other on separation unless they purchased property together. This new law has completely changed the situation for co-habiting couples as, once they reach the time threshold, a number of potential financial obligations accrue. This is particularly the case where the couple may have children and one of the parents, usually the mother, stays at home, to the detriment of her earning potential, to look after the children. Prior to the new law being enacted, the father only had an obligation to provide for the children of the couple if the relationship breaks down but now he may also face providing a level of maintenance for his ex-partner, a totally new departure in Irish law. The legislation allows the Courts to make a number of orders, similar to those where the couple was married, in relation to property, pensions and maintenance on separation.

Strasbourg Court Rules Against Ireland for Delaying Criminal Prosecution by over 13 years

The European Court of Human Rights has just delivered an important decision rebuking Ireland for violating the right of a suspect to a trial within "a reasonable time." In the case of O v Ireland, a man waited 13 years and 7 months until he was eventually acquitted in a jury trial. In those 13 years and 7 months, there were two aborted jury trials and a lengthy dispute over the availability of psychiatric records and witnesses. The Strasbourg Court ruled that this period of time was "excessive" and a violation of Article 6 of the European Convention of Human Rights. However, this is not the first time that the European Court of Human Rights ruled that Ireland breached the Article 6 right to a fair trial within a reasonable time. The Strasbourg Court specifically referred to Ireland's past record in Barry v Ireland and its recent Grand Chamber decision on 10 September 2010 in McFarlane v Ireland. It concluded that Ireland was once again in breach of its obligations to ensure trials against suspects moved speedily.

The case of O v Ireland raised some very striking and controversial issues. How do you remedy a breach of human rights? The man had argued that he was entitled to an order stopping any trial because the delay was so very long. Ireland had argued that the man should have sought damages in an Irish court but that his trial should proceed. This is not a very attractive argument. Are human rights subject to a price tag? In the wrong hands, a European State could breach human rights in the full knowledge that the taxpayer would ultimately fund the breach of human rights with a sum of money. The European Court of Human Rights rejected this argument and concluded that damages were not "an effective remedy."

Most reasonable people agree that waiting 13 years and 7 months for a trial is far too long. Lawyers are familiar with the adage that 'justice delayed is justice denied.' However, we asked Michael Dillon BL who was counsel in the case what this actually means. Why is justice denied if it is delayed? With the passage of too much time, crucial witnesses may die or disappear as they did in O v Ireland. Witnesses may become unavailable to prove a defence alibi due to the vagueness or the imprecision of their recollection. Witnesses who are available could have faulty or unreliable memories. Indeed, loss of memory does not always reveal itself as the potent problem that it is to the guarantee of a fair trial. A lengthy trial also affects the suspect in a variety of ways. The suspect may have lost his or her liberty in lengthy pre-trial detention. He or she lives with a sense of uncertainty together with the social stigmatisation of being an accused. This typically causes further significant pressure on family and social life which is exacerbated by the public nature of most criminal proceedings. In some cases, this stress and anxiety can develop into a psychiatric condition. A criminal suspect may also have incurred financial costs through the loss of work hours and legal costs if denied legal aid.

Finally, it is important to remember that it is a cornerstone of the criminal justice system that a person is innocent until proven guilty of a criminal charge. The right to a trial within a reasonable time guaranteed by the European Convention of Human Rights means that innocent people should not wait excessively before that cloud of suspicion is removed.

The European Court of Human Rights has no power to order Ireland to stop a jury trial. It awards damages for a breach of human rights. The process of bringing a case to Strasbourg results in a money award. Mr. O submitted his application to the Strasbourg Court in 2007 but while he awaited this decision vindicating his human rights, his jury trial took place in 2010. What would have happened had the Strasbourg Court reached its decision prior to the jury trial? Would the prosecution have set down the jury trial notwithstanding the breach of human rights? How would an Irish Court have dealt with the Strasbourg case in the very trial in which Strasbourg has ruled that Ireland has breached human rights and ruled that damages are not effective? Perhaps the answers to these vital questions will be provided another day.

New legislation for Co-habiting Couples.

New legislation was introduced early last year to a lot of publicity as it introduced civil partnerships for same-sex couples. This legislation also included a number of very important changes to the law which had applied to couples, both heterosexual and same-sex, who live together for a period of time and then separate. This part of the legislation applies to a much greater proportion of society but was greeted with much less publicity, despite the fact that it may have a much greater affect on people’s lives without them realising it. Prior to the introduction of this legislation, co-habiting couples had no legal obligations to each other on separation unless they purchased property together. This new law has completely changed the situation for co-habiting couples as, once they reach the time threshold, a number of potential financial obligations accrue. This is particularly the case where the couple may have children and one of the parents, usually the mother, stays at home, to the detriment of her earning potential, to look after the children. Prior to the new law being enacted, the father only had an obligation to provide for the children of the couple if the relationship breaks down but now he may also face providing a level of maintenance for his ex-partner, a totally new departure in Irish law. The legislation allows the Courts to make a number of orders, similar to those where the couple was married, in relation to property, pensions and maintenance on separation.
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