Pre-trial Rights

The popular Netflix documentary series “Making a Murderer”, recently highlighted a number of serious potential failings in the criminal justice system in the United States. Unfortunately, such problems have the potential to develop in any criminal justice system. Given these potential failings, and the severity of their consequences, namely deprivation of liberty, it is extremely important that everyone is aware of the rights afforded to individuals arrested in relation to, or charged with, a criminal offence.

These rights are fundamental human rights, recognised in all major international human rights instruments.

  • According to article 10 of the United Nations’ Universal Declaration of Human Rights (UDHR), every individual is entitled to a fair, public hearing before an independent, impartial tribunal or court. Article 11 states that everyone charged with an offence has the right to be presumed innocent until proven guilty.
  • These same rights are also recognised in the European Convention of Human Rights (ECHR), created by the Council of Europe, of which Ireland is a member. Article 6 of this document sets out the right to a fair trial, which includes the right to a public hearing before an independent, impartial tribunal; the right to be presumed innocent until proven guilty; and the right of access to legal representation.
  • The European Convention of Human Rights Act 2003 requires that Irish courts interpret Irish legislation in line with the Convention in so far as possible and public bodies act in a manner consistent with the Convention.
  • The European Union Charter of Fundamental Rights recognises the right to a fair trial and legal representation in article 47, and also recognises the right to be presumed innocent in article 48.

Irish Law

Pre-trial rights are not explicitly mentioned in the Irish Constitution. However, Irish courts have used article 38.1, which provides that “no person shall be tried on any criminal charge save in due course of law”, to give these rights a Constitutional basis.

The presumption of innocence was held to be “a vital, constitutionally guaranteed right of a person accused in a criminal trial” by Justice Hardiman in the case of DPP v D. O’T (2003). The presumption of innocence means that the burden of proof rests with the prosecution. In other words, the prosecution must prove the defendant’s guilt rather than the defendant having to proof their innocence.

The right to silence is also afforded to individuals arrested in relation to or charged with a criminal offence. It was held by the High Court in Heaney v Ireland (1994) that the right to silence was an element of article 38.1 of the Irish Constitution. This decision was upheld by the Supreme Court, although it was held to apply only to evidence which is self-incriminatory. Therefore, you have a right to silence in relation to evidence that could be used to prove your guilt, but you cannot rely on this right if asked to provide your name or other non-incriminatory information.

Finally, the right to legal representation or advice is again not an explicit right within the Irish Constitution. Prior to 2014, it was accepted that there was a right to reasonable access to legal representation. This means, following your arrest that the investigating officers could interrogate you assuming they made genuine reasonable attempts to provide you with a solicitor. However, following the recent case of DPP v Gormley (2014), this right has become more robust. The Court stated that the right against self-incrimination, or the right to silence, “incorporates an entitlement to legal advice in advance of mandatory questioning”. The Court further held that “the right to a trial in due course of law encompasses a right to early access to a lawyer after arrest and the right not to be interrogated without having the opportunity to obtain such advice”. While the Court acknowledged that exceptions to this right were possible, it stated that for an exception to be justified there would need to be “wholly exceptional circumstances involving a pressing and compelling need to protect other major constitutional rights, such as the right to life”.

In spite of the fact that pre-trial rights are not mentioned in the Irish Constitution, such rights are afforded to individuals in this jurisdiction. Not only must public bodies act in a manner consistent with the European Convention of Human Rights, following the 2003 Act, but Irish courts have given the rights of the accused a Constitutional foundation in article 38.1. Anyone arrested in relation to, or charged with, a criminal offence has the right to be presumed innocent until proven guilty, the right to silence, in relation to self-incriminatory evidence, and the right to legal representation prior to interrogation following arrest. Interestingly, the European Committee for the Prevention of Torture’s recent reports to Ireland have suggested that the right to legal representation ought to extend to a right to have a lawyer present during interrogation.

Caoimhin O Madagain & Rebecca Townsend

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