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Trial in due course of law (Art 38.1 - (procedurally fair, trials have to…
Trial in due course of law
provisions of trial applied at earlier parts of arrest
Art 38.1 -
procedurally fair
trials have to be conducted according to concept of just
respect for individual dignity regardless of innocence or guilt
give every opportunity for defence
every charge regardless if citizen or non-citizen, fine or imprisonment
The Charge
offence must exist in Irish law -
defined clearly and precisely - does charge fit offence definition
double jeopardy
if acquitted can't be tried again
exception - may now apply to Court of Appeal for retrial
evidence must be new and compelling - in the public interest 0 only once
Cleary v DPP
prosecution didnt appear in first trial - retrial would be abuse of process
eviston v DPP
told wouldn't be prosecuted over road traffic fatality - DPP changed mind - not able to that
fair procedure
usually conduct of trial, but if not possible to have fair trial, can be prevented from taking place
may lead to trial being prevent
investigation may compromise the case
exclusionary rule incorporated into requirements of 38.1
Trial by a court that is independent
unbiased
properly constituted at time case took place (
Shelly v Mahon
can't retrospectively make a judge)
TDs can not be appointed to act as judges
vagueness
citizens should know with clarity what is prohibited and what is lawful
precision required
King
every suspected person or reputed thief frequenting intent to commit felony - vague and arbitary (no difference between real and apparent criminal behaviour
Dokie v DPP
every non national shall produce on demand unless satisfactory explanation of why not - struck down - makes someone a criminal because they are unable to think of a good reason
limitations
may be defined in terms of reasonable reactions
may be defined in case law
Investigations
evidence inadmissible if gotten by deliberate and conscious breach of persons rights
requirements of treating a person
can't oppress someone
can't use threats or inducements for confession
any confessions must be voluntary
right to a lawyer before questioing
DPP v Gormley
forensic samples may be taken before lawyer is consulted
applies from point of arrest onwards
People v Healy
during interview confessed to various crimes, solicitor unable to see client, - breached right to reasonable access to lawyer
DPP v Barry Doyle
admitted to murder after questioning
would be legislating
ample safeguards already (time limits, video recording)
no constitutional right to have lawyer present during questioning
Criminal Justice Act
s18 (1), when person questions or charged with arrestable offence
Garda reasonable belief that object, substance or mark is attributable to criminal event - can inform person of belief and request account - failure to give account may be attributable to silence
Inference from silence - failure to account or mention
Safeguards
given reasonable opportunity to consult solicitor
can't draw inferences unless electronic recording of interview
have to be told consequences of failure to speak
only used to corroborate other evidence
Heaney v Ireland
prosecuted over failure to account for movements - proportionality test - innocent person nothing to fear, right of state to protect itself -
later successful in ECHR
Rock v Ireland
counterfeit money, could only be used to corroborate
protection against unfair trial
accused person never exposed to serious risk of unfair trial
may get order to prevent trial taking place
community right to prosecute balanced
remedy - stay or dismiss prosecution
defendant behaviour relevant
very exceptional - only if unavoidable
will try to postpone, change venue or judge, give instructions to jury - before dismissing it
risks of unfair trial
prejudicial publicity
coaching of witnesses
delay - offences committed so long ago
no undue delay
delay must
specific prejudice (witness died)
unconscionable delay
who's fault is the delay relavent
failure to collect or preserve evidence
Braddish v DPP
- alleged robbery, Gardai claimed had CCTV showing person committing crime, confessed then withdrew confession, recording destroying - trial prohibited
Dunne v DPP
- failure to get CCTV - trial prohibited
Legal representation
jury trial for serious cases
right to apply for legal aid (decision based on merits)
dont have to be facing prison
Joyce v Brady
court must tell accused of right to apply for legal aid
Onus of proof
statute may allow inference from proof of certain facts
especially if uncontradicted
prove guilt beyond reasonable doubt
certificates - proof of scientific or technical matters
if pleading insanity or medical illness - onus is on you to prove your illness
prior acts
exception if valuable or accused launched attacks on opposition character
crimes or character can't prove guilt - each case indivdiually
prior conviction relavent to bail
illegally obtained evidence
no deliberate violation allowed
DPP v McMahon
plain clothes Gardai entered posing as customers to seek evidence for gaming offence - no right violated
didnt enter private part, cause harm or injury - grave social consequences attached to unlawful gambling
Exclusionary rule
evidence resulting from deliberate violation of accused's constitutional rights by agents of the state - must be excluded from criminal trial no matter how much it proves guilt
exception - extraordinary circumstances
People v Shaw
abduction suspect detained for 3 days without charge, questioned to discover whether victim was still alive ) Gardai found body
statement admissible - extraordinary excusing circumstance of rescuing victim in peril
warrant issued by person independent of investigating team
People v Kenny
searched home for drugs, no proper warrant (no material to allow own opinion)
deliberate breach -Gardai must have extraordinary excusing circumstances -
people v Laide & Ryan
warrant invalid - breached right - statement made in unlawful custody excluded (had been arrested after house searched
DPP v C(J)
new exclusionary rule
new exclusionary rule
on prosecution to establish admissibility of all evidence
if evidence taken in deliberate and conscious violation of rights then should be excluded unless
breach not conscious, presumption against the evidence - prosecution establish breach of rights due to inadvertence or derives from subsequent legal developments
evidence that could not have been constitutionally obtained should not be admitted