Court laws ‘fly in face of the Constitution’

NEW laws banning an accused person and their lawyers from court hearings into their detention “fly in the face of the Constitution” according to civil rights experts.

Critics of criminal justice legislation being pushed through the Oireachtas said such revolutionary measures were “extraordinary” in a democratic republic.

The Irish Council for Civil Liberties (ICCL) and the Irish Criminal Bar Association (ICBA) said the sweeping new powers would do “absolutely nothing” to address witness intimidation, which was one of the stated reasons for the legislation.

Both bodies also accused Justice Minister Dermot Ahern of failing to produce any evidence of jury intimidation to justify moving all organised crime trials from jury courts to the non-jury Special Criminal Court.

“It is astonishing that the Criminal Justice [Amendment] Bill provides for court hearings in relation to a person’s liberty to take place behind closed doors and in the absence of the person concerned and their legal advisers,” said Sean Gillane BL, chairman of the ICBA.

“It seems to fly in the face of our own Constitution and also international norms. To have this situation in 2009 in a republic strikes me as extraordinary.”

The bill contains this provision in certain situations during an application by gardaí for an extension to an accused’s detention.

A judge can exclude an accused and legal representatives from a preliminary hearing if their presence would prejudice a Garda investigation.

Mr Gillane said an accused cannot challenge the lawfulness of their detention in the District Court but can in the High Court, which is a more expensive and complicated process.

The ICCL said the bill allows a garda of any rank to give opinion evidence, including in those situations where there is no legal representation for the accused.

Director Mark Kelly said this provision could be in breach of a person’s constitutional right to liberty.

He also criticised the provision where the opinion of a garda expert of any rank can be admissible in court. He said the garda should, as in previous legislation, be of chief superintendent rank.

Mr Kelly said “no evidence has been presented” to show there was a problem with jury intimidation in gangland trials. Mr Gillane said he had “never come across it”.

Both said the main problem was witness intimidation, but that the new bill did “absolutely nothing” about this. Mr Kelly said this issue could be tackled by putting in place measures to protect the identities of witnesses.

He accused Mr Ahern of “abusing” his power in rushing the bill through the Dáil. “Measures of this sort are the hallmarks of police states, not mature democracies. Clearly, Dermot Ahern would prefer that these proposals avoid the democratic scrutiny of his parliamentary colleagues.”