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THE I RISH I NNOCENCE P ROJECT
David Langwallner *†
It is better that ten guilty persons escape, than that one innocent suffer.^1
I. O RIGIN AND EVOLUTION OF THE I RISH I NNOCENCE P ROJECT
The purpose of this Essay is to examine the history, evolution, and role of the Irish Innocence Project and to place the project in the milieu of the regulatory and social relationships that surround influences and impacts upon the project. Thus, it is proposed also to examine the Irish legal framework both constitutional, rights driven, statutory, and case law that either assists or hampers the project as well as canvass prospective legal issues affecting the Irish Innocence project. Of course it will also be necessary to refer to stakeholders in the Irish system, and in this context the Essay will refer in detail to the Irish Police called the Gardaí (sic Gaelic) as well as the role of the Irish state and government and finally the prison service in the way they impact upon the project. The purpose is to provide as full a picture as possible of the Irish project at this stage of its evolution. The Irish project was set up in September 2009^2 at Griffith College Dublin. The idea for the project resulted from a suggestion made to the present author. I had been teaching clinical legal education at The Kings Inns, the sole present training school for barristers, in Ireland for a period of 5 years when I was appointed Dean of Griffith College Law faculty.^3 In this context, I was asked as to how the school might enhance
- David Langwallner is a constitutional and public law barrister who has also litigated several criminal defence cases. He is a practising Irish Barrister and member of Field Court Chambers in Grays Inns, London. He is a graduate of Trinity College Dublin, Harvard Law School and the London School of Economics and is also Dean of Griffith College Law School and Lecturer in Constitutional Law and Jurisprudence at The Kings Inns. He is the Director of the Irish Innocence Project. I would like to thank Edward Mathews LLB and Steve O Donoghue LLB for their assistance with respect to aspects of this document. Needless to say all infelicities of style and content are at my doorstep. † This article is being published as part of a symposium that took place in April 2011 in Cincinnati, Ohio, hosted by the Ohio Innocence Project, entitled The 2011 Innocence Network Conference: An International Exploration of Wrongful Conviction. Funding for the symposium was provided by The Murray and Agnes Seasongood Good Government Foundation. The articles appearing in this symposium range from formal law review style articles to transcripts of speeches that were given by the author at the symposium. Therefore, the articles published in this symposium may not comply with all standards set forth in Texas Law Review and the Bluebook.
- WILLIAM B LACKSTONE , C OMMENTARIES ON THE L AWS OF ENGLAND 352 (photo. Reprint 1769).
- Though I initially proposed it significantly earlier and a detailed proposal document was finalised in June of that year.
- Griffith College is Ireland’s largest private college and the college provides, inter alia,
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the clinical component in the teaching of law. I should also add that the genesis of the project also stemmed from the fact that I am a practicing constitutional and human rights barrister and have always been very interested in human rights and criminal justice issues with a historic background also as a criminal defense lawyer. I have also litigated several major constitutional actions. It goes without saying that I was very aware of the project being established in the U.S. in 1992 by Barry Scheck and Peter Neufeld, though I was not aware in any detail of the Innocence Network at the inception of the Irish Innocence Project.^4 I made a number of suggestions, most of which have been incorporated in the teaching of various subjects on the syllabus, but one suggestion resulted in a very detailed document being drafted suggesting that an Innocence project be started in Ireland with the assistance of the college. The overall perspective was that the project would achieve two salutary and interlocking ends, which, in order of priority, are (1) help free innocence people that are either current prisoners or have been released from prison, 5 and (2) inculcate in students clinical skills in a way which made learning law interesting and personally rewarding.^6 I might add that I now believe that a third worthwhile, and vitally important, skill can be derived, that is developing a human rights consciousness and a passion for justice, necessary perspectives in my view in an increasingly commercial and business driven legal culture, both nationally and internationally. The college was supportive and agreed to provide, among other things, rooms 7 and conference facilities, which have been useful. There was a wellspring of interest among the student fraternity, and it must be added that we were significantly helped by other projects in the setting up period.^8 We enlisted the aid of, initially, two supervising criminal
primary and master’s degrees in law. In recent years many graduates of the college have become successful barristers and solicitors, among other things. Some of those have assisted the development of the project.
- Though, of course now the Irish project is privileged to be associated with, in effect, an increasingly worldwide human rights movement.
- The second category of former inmates evolved organically as the project had no conception in advance that it would be contacted by released prisoners who felt hugely aggrieved. These were people largely not motivated by compensation considerations, but out of a visceral desire to clear their name for the monstrous injustice that was perpetrated upon them. It should be added that it is also the case that supporters and relatives of deceased former prisoners anxious to clear their name have also contacted the project.
- In parenthesis it should be noted as to how difficult in many respects it is to make certain clinical skills interesting. Anyone who has had to teach legal drafting will attest to that fact!
- Including a secure locked room with a confidential code for the storage of files!
- Everybody who helped is thanked, but particular gratitude goes to Dr Greg Hampikian of the Idaho Project, formerly of the Atlanta project, for his enormous assistance in April 2009 when the project had been active for a few months and the hugely useful support he provided in streamlining and customising our documentation and structures. We embraced many of his suggestions for improvement.
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There is one final layer of the project that needs to be mentioned apart from caseworkers, supervising lawyers, students, and indeed me as Director, and that is the supervisory board of the project. The supervisory board arose as a result of a suggestion by Dr. Greg Hampikian, which was acted upon. Greg’s idea had to be tailored to an Irish context and, in effect, I set up a board to advise and counsel the project, which has had several substantial meetings thus far. The Board is chaired by a judge of the Irish Supreme Court^12 and different stakeholders in the legal system are also represented—civil rights activists, criminal defense lawyers, professional representatives, including a former chairman of the law society, and noted academics in the field. The board in particular has provided excellent advice including, but not limited to, the question of case progression and the decision taken to progress one particular case back before the Irish courts of which I will say more later. Finally, the project has a rotating administrator. We have highly detailed procedures and documents in place for dealing with correspondence and a detailed and, recently revamped, questionnaire.
A. A Brief Synopsis of Project Procedures
It might be useful at this juncture to indicate briefly our processes. After an initial contact and acknowledgement, the aforementioned questionnaire is sent out to the client. Once that level of correspondence is received back, a desk top review of the case is conducted for the purposes of determining its admissibility with our criteria. At this stage in the process, several applications have historically been filtered and determined to be inadmissible. Consider the following examples: 1: A client who does not state in the clearest terms in response to questions on the questionnaire that he is factually innocent. We have had several people contact the project complaining about many things in the conduct of their trial including what is termed in the U.S. ineffective assistance of counsel but simply do not state or indicate in the questionnaire that they are factually innocent. We invariably wrote back several times to the prisoner to clarify whether he or she is factually innocent or not before a file is closed. 2: We have had contact with several people who, although they accept that they did the act and, thus, are guilty of manslaughter, did not, for whatever reasons, have the requisite intent for murder. We have had
- The second highest court in Ireland and an appellate court, I suspect the nearest U.S. analogy would be the Circuit Court of Appeals. The judge in question, who is also judge in residence at Griffith College and who has been enormously helpful, is Mr Justice Frank Clark.
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a lively discussion in respect to such cases, a discussion I understand is mirrored by other innocence projects, and have decided not to accept such cases, subject to one caveat. We have decided that where the lesser offence, in our judgment, is not connected to the offense(s) for which factual innocence is claimed to accept the case. 3: We obviously have to be selective and filter out cases we regretfully conclude we cannot progress. After the desk top review takes place, the supervising lawyer and caseworkers involved in the process report back to a plenary meeting of the project.^13 At that stage, a general discussion takes place of the case. Caseworkers and lawyers are assigned and the process of the collection of evidence ensues, which in practice often means the procuring of the case file and all relevant transcripts. The project has found by experience that it might be necessary, around this time, to send a letter to the Irish police or to the Garda for the preservation of all relevant evidence. After all the relevant evidence is procured or as much as can realistically be procured, which may be an arduous process as we shall see in the next Subpart, the object of the exercise is to prepare a final report and if necessary an expert report which will be handed back to the client. As we shall see in the next Part this is necessary because of the ethical vagaries of the Irish system.
B. Uniquely Irish Obstacles and Other Objections to an Innocence Project
Although the project developed a momentum and support, which it has sustained, very quickly there were various objections from what is a conservative, putting it kindly, legal community. In this context it might be noted that Ireland is a divided profession between barristers and solicitors. A barrister is, in effect and in ideal, a specialist and court room lawyer. A solicitor, in contrast, deals more directly with the public and handles non litigious matters. Though the distinction, whether viable or not, has become somewhat blurred in recent years with inter alia solicitors advocating at the higher level of the court system. There are significant and imminent reforms as I write afoot in the Irish legal system. Effectively there were various muted objections. One issue which the project has addressed is that barristers, in most instances, cannot
- I should perhaps have mentioned it earlier in the paper that there is a plenary meeting of the projects every two weeks where all caseworkers, directors, and supervising lawyers are expected to be present and common substantive issues are discussed. On occasion, outside agencies such as forensics experts will be asked to give submissions to the project at this meeting.
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suspicious or both of the project. There is no justification, legal or otherwise, for a solicitor to not hand over the file, the file is the property of the client, not the solicitor. Mercifully, these difficulties, which were on occasion time consuming, have been resolved or overcome. The project no longer faces effective hostility in this respect and as the project further beds down any outstanding residual issues, it is hoped that these issues will be resolved. It must be stressed that many, indeed an overwhelming number of solicitors, have been very helpful in handing over the file to us and ordering the papers and paginating documents. Further, solicitor firms have increasingly accepted project caseworkers on paid internships. Another issue, important in Ireland, was the question of stakeholder acceptance. We had meetings with the past and current Minister for Justice informing them as to the raison d’être of the project. This was deemed particularly necessary in securing access to prisoners in a proper professional legal environment, rather than generic public access. The Irish Ministry for Justice, after several meetings were very supportive and now Innocence prison visits are given the same status, in effect, as ordinary legal visits. The government has a civil servant processing Innocence project prison visit requests. 17 A further ethical issue then arose which we needed to resolve. If we could have prison visits, could a barrister attend unaccompanied by a solicitor? In effect, the concern was that the bar code of conduct seemed to preclude a prison visit by a barrister without the accompaniment of a solicitor. Some of us took the view that all the code of conduct stated was that a visit in the professional representative capacity qua barrister could not take place without a solicitor. That prohibition did not apply to an innocence project visit which was supervisory for the barrister and educational for the student. Nonetheless, it was believed desirable that the advice of the bar council be sought informally. This was done and, after some hesitation, the practice of supervisory barristers attending prison visits was cleared; though I understand with the proviso that those barristers going on the visit cannot subsequently represent that person in court. 18 A further issue in general was the cooperation of the prisons. Some prison governors were supportive and after the Minister allowed access, their support grew; though there were some minor glitches in the initial stages of the project, prison visits in particular, including, at times, some
- It must be stressed that the decision to visit a prisoner is not an automatic one and the project discusses the matter in detail as to whether a visit is necessary in a particular case. It is also comparatively recent as files have to be processed and researched and initial reports submitted.
- I assume this is the prohibition on a barrister generating his own work as already mentioned though, again, it seems maddeningly tortuous.
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confusion as to who precisely we were. At one stage, clarification had to be sought before a perplexed prison official reluctantly granted admission for a visit! In this context, it must be stressed that after I addressed the prison librarians’ annual conference the prison librarians volunteered their support for the following:
(i): The Irish Innocence Project information material in poster form to be put up on the prison notice board. (ii): That prisoners, if they request, are referred to the project or supplied with our details. (iii): With the co-operation of Griffith college, that legal materials and texts be supplied to the prison librarians if they so request, same for the prisoners. A final crucial issue concerns the Irish Police or Garda. I was involved in an extensive process of lobbying the Commissioner of the Garda for a ruling on whether we could gain access to material they preserve and independently test. Eventually, after much delay and many months, the Commissioner, after an ostensible consultative process, refused our request and indicated if we were to make such an application to preserve and ab extensor, test we would have to do so within the framework of an application under the Criminal Procedure Act,^19 which I will momentarily turn to. This refusal, though anticipated, had a certain chicken and egg quality; how can you go back for an application under the Criminal Procedure Act that there has been a miscarriage of justice if you do not have the results of the test? However, we have found a way around this conundrum, which will be further discussed, but, first, let us turn substantively to the miscarriage of justice procedures in our law.
C. Miscarriages of Justice: The Statutory Framework and Principles from The Case Law
- Statutory Framework and The Criminal Procedure Act
The ultimate purpose and work of the Irish Innocence project is, of course, to exonerate a serving or former prisoner from a crime they did not commit. In this respect, if the prisoner is a serving prisoner, then the ultimate endgame of the Irish project is to provide a report to the client who, armed with that report, consults a solicitor of his choice with a view to bringing the matter back before the Court of Criminal Appeal under the miscarriage of justice procedure. Thus, the legislative scheme under the Irish Criminal Procedure Act 1993 is appropriate and needs to
- Which deals, as we shall see, with miscarriages of justice.
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actions:
(a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favor of the appellant, if it considers that no miscarriage of justice has actually occurred), or (b) quash the conviction and make no further order, or (c) quash the conviction and order the applicant to be re-tried for the offence, or (d) quash the conviction and, if it appears to the Court that the appellant could have been found guilty of some other offence [, substitute a conviction for the lesser offence and sentence accordingly]. Further, section 7 of the Criminal Procedure Act concerns a petition to the Minister for Justice for a pardon under Article 13.6 of the Constitution and again invokes the driver of section 2 in that the applicant has to adduce a new or newly discovered fact to demonstrate that a miscarriage of justice has occurred in relation to the conviction. If the Minister then is of the opinion, after making inquiries, that either no miscarriage has been shown and no useful purpose would be served by further investigation or, disjunctively, that the matters dealt with by petition could be more appropriately dealt with by way of application to the Court pursuant to section 2, the Minister is obligated to inform the petitioner and take no further action. If, however, he thinks differently, he shall recommend to the government that either the President grant a pardon or, pursuant to section 8 of the Criminal Procedure Act, a Committee should be ordered to inquire into and report on the case. It should be stressed that recently the Irish Innocence Project has asked the Minister for Justice for a pardon in a matter and the Minister is actively considering our detailed submissions in this respect. Section 9 of the Act is also relevant and it was recently considered in the case of People (D.P.P.) v. Hannon. 22 The crux of section 9 is the payment of compensation. The section stipulates that where a conviction has been quashed, where someone has been acquitted on retrial and the court has certified that a newly discovered fact shows there has been a miscarriage of justice, or, lastly, where there has been a pardon and the Minister is satisfied there has been a miscarriage of justice, the Minister shall pay compensation to the convicted person, or, if dead, to his legal personal representatives, unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person. It might be noted that a person has the alternative option of suing for damages. The
- See D.P.P. v. Hannon, [2009] I.E.C.C.A. 43 (Ir.). It might be noted that many of the cases involve a myriad of different applications to the C.C.A. and Supreme Court. The cases often have many hearings: a court of criminal hearing under Section 2, a hearing on whether a point of law of exceptional public importance is involved, a Supreme Court hearing, and further applications.
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quantum of compensation ordered by the Minister can be appealed to the High Court. Finally, it might be noted that one other statutory provision is particularly important flowing from the case law and that is section 29 of the Courts of Justice Act 1924 which regulates the right of appeal from the C.C.A. to the Supreme Court. It states, in essence, that in order for there to be an appeal from the C.C.A. to the Supreme Court, the C.C.A. or the Attorney General must certify that a case involves an issue of law of exceptional public performance and that it is in the public interest that an appeal be taken by the Supreme Court. Under such certifications, an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive. This statutory scheme creates, as indicated, the endgame of the project. In essence, the project wants to establish that a new or newly discovered fact, whether that be a recanted confession or a new DNA test, that was not invoked at the original trial establishes a miscarriage of justice on the basis of factual innocence. 23 It is now necessary, briefly, to deal with the case law on this Act and the principles to emerge there from.
- Case Law
There is a detailed jurisprudence on miscarriages of justice which I do not have space to go into. In essence the following principles can be derived from the case law with reference to appropriate authorities. The following points are the crux of how, in fact, the Irish courts interpret miscarriage applications under the Act.^24
1: That the burden of proof, on the balance of probabilities, is on the applicant to show there has been a miscarriage of justice. The burden of proof on the applicant is to establish, as matter of probability, not possibility, that the newly discovered facts would have led to an acquittal.^25 2: That the applicant need not establish that a miscarriage of justice has actually occurred before proceeding to quash the conviction.^26 3: That the Act operates to provide redress in cases where facts come to light for the first time after an appeal, which show that there may have been a miscarriage of justice.^27 4: That s.2 provides redress to an applicant who can point to material
- It might be noted, as indicated, that the Act also provides a procedure for compensation.
- I have tried to include them in a form of logical order as they might arise to a judge.
- D.P.P. v. Pringle, [1995] 2 I.R. 547, aff’d , [1997] 2 I.R. 225.
- D.P.P. v. Nevin, [2010] I.E.C.C.A. 106 (Ir.).
- Id. at 109.
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Thus, as far as the Irish Innocence project is concerned, the applicant needs to show that he may have been a victim of miscarriage of justice on new or newly discovered evidence that is relevant and admissible. It should be stressed that the term miscarriage of justice, both under the Act and in general, is wider than mere factual innocence. For instance, there can be a miscarriage of justice if a conviction is deemed unsafe. The Irish project takes the view that it can examine other matters that may amount to a miscarriage, such as to render the conviction unsafe, and that might involve technical legal issues as long as the prisoner assures us and we accept that he or she is factually innocent.^35 It should be stressed that all of these statutory and case law principles are to some extent linked with a rights driven and, in particular, constitutional overlay to which I now turn.
D. The Irish Constitution and Rights Considerations
As well as the miscarriage of justice procedures and cases considered above, the work of Innocence projects is intimately linked to rights driven considerations either directly or indirectly. To some extent, such rights driven considerations influence the courts in miscarriages of justice applications in Ireland and, in particular, the due process clause of the Irish Constitution Article 38.1.^36 However, there is a general constitutional overlay in the work of projects in terms of the access to evidence and, of course, the access to testing. I propose to deal with all these issues in the following section. As far as human rights protection in Ireland is concerned, I think it necessary to first understand the relationship between international instruments and the domestic Irish Constitution which color and influence our reception of human rights law. Thus, I propose to deal with the relationship between the Irish Constitution and The European Convention on Human Rights. I also propose at times to relate the material to a U.S. Constitutional culture to show agreement and at times doctrinal dissonance between the two cultures.
- Bunreacht Na HÉireann
The Irish Constitution (or in the Gaelic, Bunreacht Na HÉireann) dates from 1937, though there was an earlier 1922 document. The constitutional structure, similar to the U.S. Constitution and Bill of
- Such as a fundamental failure of due process which is dealt with in the next Part.
- IR. C ONST ., 1937, art. 38(1) (“No person shall be tried on any criminal charge save in due course of law.”). In these simple words the courts have established a multitude of emanations of due process which are discussed in detail in the text.
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Rights, provides for a system of judicial review and various rights driven clauses that judges derive either textually from the document or have read into the document (the so called unspecified rights is also an aspect of U.S. Constitutional culture as I understand it and is referred to as the unenumerated rights). 37 The crucial rights clauses are Article 40– 45 and Article 38.^38 It must be noted that many of those articles which we shall look at deal with human rights issues that affect Innocence Projects. In short, we cannot assess from an Irish perspective the role and functions of the Irish Innocence project without assessing the relevant constitutional stipulations. As indicated, where relevant, I will also try and translate Irish Constitutional considerations into U.S. Constitutional terms and cite analogous case law.
- The European Convention on Human Rights
It must also be noted that Ireland is a signatory to the European Convention on Human Rights, a comprehensive human rights charter.^39 In 2003, the convention became part of our domestic law. It is now possible to take proceedings in the Irish Courts alleging a breach of the Convention.^40 However, the Convention has been incorporated in an impoverished and indirect manner. It sits somewhere below Constitutional rights and in the event of a conflict between the two, the Constitution prevails. To many this is a sub constitutional level of incorporation. Further, the incorporation is not retrospective^41 and some judges have hinted that it sits no higher than ordinary legislation.^42
- A terminology also used in an Irish constitutional context.
- See IR. C ONST ., 1937. Among the more important rights, Article 38 deals with trial in due course of law/due process; crucial for innocence project, Article 40.1—Equality; Article 40.3—life, as well as the clause where the unspecified rights are grafted onto the Constitution; Article 40.4—Liberty; Article 40.6—Expression, Association and Assembly; Article 41—Family Rights; Article 42— Education rights; Article 43—Property rights; and Article 44—Religion.
- Id. Crucial clauses include Article 40—the right to life; Article 3—the prohibition against torture and inhumane and degrading treatment; Article 5—liberty; Article 6—fair trial, arguably the crucial clause as far as innocence projects are concerned; Article 8—privacy and family life; Article 9— Religion; and Article 10—expression.
- It is of course, as we shall see, still also possible to take an Irish case after you have exhausted all local remedies to the European Court of Human Rights.
- See Cosma v. Minister for Justice Equality & Law Reform, [2006] I.E.S.C. (Ir.). I litigated a case which, to some extent, turned on the fact that the proceedings had been instituted (well before the hearing date) prior to the incorporation of The European Convention into domestic law. The judge thus took a markedly different approach and, from our point of view. negative approach to the relevance and applicability of Convention case law.
- See McD v. L, [2007] I.E.S.C. 81 (Ir.) (demonstrating unequivocally and in a hugely unappealing and unappetising manner, the restrictive attitude of the Irish courts towards the interpretation of the convention).
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Convention and decisions of the European Court of Human Rights (Strasbourg) and the European Commission on Human Rights. In effect, they are obliged to consider and take into account decisions of the ECHR, but are not bound in any fashion to follow them. Under Section 5a, “declaration of incompatibility” of Irish law with the ECHR can be made by the High Court or Supreme Court. Such declarations can be accompanied by an award of damages. However, this remedy is available only if no other legal remedy is “adequate or available.” The effect of a declaration of incompatibility is merely that the Taoiseach (Prime Minister) or appropriate government minister lays (presents and mentions) the decision before the Dail (the main house of parliament). No new vote on the legislation is required and the legislation is still valid unless it has separately been declared unconstitutional. Thus, baldly stated, there are two routes available if a litigant wants to invoke the Convention:
1: The Domestic Route: Ask an Irish Court to mould Irish Law in accordance with the Convention or declare an act incompatible with the Convention or sue a state body for a convention breach. 2: The International Route: Exhaust all remedies in the Irish courts and go to the European Court itself in Strasbourg, though that may take upwards of 5 years. Ireland has also signed other human rights instruments such as the United Nations Civil and Political Covenant and recognizes the right of individual petition to the Human Rights Committee but has not incorporated the covenant into our domestic law. There have been instances where Ireland has been taken to the human rights committee of experts.^46
- The Irish Innocence Project: Crucial Applicable Rights
It must be stressed that the Irish Innocence project deals with DNA and non-DNA cases and accepts cases only if the applicant indicates he is factually innocent. In that context, the project will look at a constitutional or convention violation, and thus a breach of the
- E.g. , Kavanagh v. Governor of Mountjoy Prison, [2002] I.E.S.C. 13 (Ir.). The accused had been sent to the Special Criminal Court under Section 47 by the D.P.P. The applicant brought his case to The UN Human Rights Committee arguing that his trial before the Special Criminal Court violated his rights under Art 26 of the UN Covenant, which provides for equality before the law and the committee upheld his complaint in that: “No reasons are required to be given for the decisions that the Special Criminal Court would be “proper,” or that the ordinary courts are “inadequate,” and no reasons for the decision in the particular case has been provide to the committee. Moreover, judicial review of the DPP’s decisions is effectively restricted to the most exceptional and virtually undemonstrable circumstances.”
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applicant’s human rights, where the applicant indicates he is factually innocent. Of course Convention and Constitutional issues affect a project in a myriad of different ways, not least access to evidence for testing and privacy and data retention issues, both of which are vitally important for the work of projects and we will look at in detail.
i. Due Process
As far as The Irish Innocence project is concerned, the crucial initial clause is the aforementioned Article 38.1 of the Bunreacht which, worth quoting again, states that “no person shall be tried on any criminal charge save in due course of law.” These simple words have been elaborated upon by the Irish Judiciary to create, in effect, a substantive due process clause for those suspected of having committed a criminal offence. Thus, the issues that affect due process lawyers under the U.S. Constitution likewise affect Irish lawyers. In general terms, the important early case is State (Healy) v. Donoghue ,^47 per O’Higgins, C.J., where in a consideration of general principles the judge indicated that:
[I]t is clear that the words due course of law in Article 38 make it mandatory that every criminal trial shall be conducted in accordance with concepts of justice, that the procedures applied shall be fair, and that the person accused shall be afforded every opportunity to defend himself. If this were not so the dignity of the individual would be ignored and the State would have failed to vindicate his personal rights.^48 It is now necessary to turn to specific aspects of due process relevant for Innocence Projects and also to relate that to Convention case law, which is primarily located in Article 6 of the Convention and the fair trial clause. Given the inherently vast nature of due process, I am focusing only on those aspects that singularly or at a tangent, in my view, affect Innocence projects.
A: The Obligation to Preserve Evidence and To Conduct Inquiries:
With regard to The Irish Innocence project, an important recent constitutional innovation is the important constitutional obligation to preserve relevant evidence and conduct enquiries. In Braddish v. DPP ,^49 video evidence allegedly showing the applicants engaged in the course
- State v. Donoghue, [1976] IR 325 (Ir.).
- Id. at 349.
- See Braddish v. D.P.P., [2001] 3 I.R. 127 (Ir.).
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- Preservation of Evidence Post Conviction
A crucial question affecting all Innocence Projects is the preservation of evidence post-conviction for independent testing purposes. The cases aforementioned concerned with the preservation of evidence in the Irish legal system do not appear to countenance the possibility of access to material evidence after a final appeal, or at least there is no direct engagement of the issue in the existing case law and there is a kind of constitutional, and indeed statutory, void in this respect. This is in direct contrast to both the USA and the UK. In the latter the preservation of material evidence is governed by the Criminal and Procedure Act 1996 where all material that may be relevant must be retained at least until the convicted individual is released from custody. Of course, in the USA there is the Justice for All Act 2004 which allows for greater federal funding for post-conviction DNA testing and, hence, has promoted the preservation of material evidence by the State for post- conviction testing.^55 In this context an important consideration is that the legal platform for the establishment of a DNA database in Ireland is imminent, with the expectation of the Criminal Justice (Forensic Evidence and DNA Database System) Bill passing through parliament in the coming months. 56 The Irish Innocence Project has attempted to highlight, by intensive lobbying, a serious omission in the Bill with regard to the preservation of biological material from crime scenes. The Law Reform Commission (LRC) wrote the report on which most of the recommendations for the DNA database were instituted, however, the LRC’s recommendation for the retention of crime scene material has been ignored in the Bill. The LRC argued that:
[T]he retention is principally as a safeguard in the event that an individual convicted of the offence to which the sample relates alleges that a miscarriage of justice has occurred and wishes to challenge the veracity of the original evidence.^57 As with the issue of disclosure, the idea that material should be preserved to allow for the possibility of testing after conviction does not appear to prevail in the Irish courts. Or at least it has been up till now absent from the constitutional conversation.
- It is my definite understanding that in practice, some of the Irish police or Garda do preserve post-conviction evidence at least until a serving prisoner is released.
- The bill at time of writing has lapsed and will need to be reintroduced by the new government.
- THE LAW R EFORM C OMMISSION , C ONSULTATION P APER ON THE ESTABLISHMENT OF A DNA DATABASE (2004), available at http://www.lawreform.ie/_fileupload/consultation%20papers/ cpDNADatabase.pdf.
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As I understand it, a right to post-conviction testing is the practice in many states in the U.S.,^58 though it is not sanctioned as a federal right. This issue of post-conviction testing is indeed highly contentious in the American courts. Recently, as I understand, in Osborne the appellant was attempting to establish a constitutional right to post-conviction testing under the Due Process clause.^59 This putative right was rejected in a highly contentious 5–4 decision, but on March 7th 2011 in Skinner v. Switzer ,^60 as I understand it, the Supreme Court did establish that a prisoner could challenge inter alia as a constitutional matter the adequacy of an individual states provision for post-conviction testing. As far as Ireland is concerned, in my view, a similar argument for a constitutional due process right to post conviction testing was viable in our jurisdiction. Such a right, in my view, goes hand in glove with an obligation on the Garda to preserve and retain evidence at least whilst a prisoner is still serving time. In this context, the Irish courts could extend the principles in Braddish ,^61 where the Supreme Court held that the failure to preserve such vital evidence violated the guarantee to fair procedures to a right to preserve post-conviction material, at least as far as a serving prisoner is concerned. The courts could then link such a right to a right to post conviction testing. All of this could be accomplished within the rubric of Article 38.1, the trial in due course of law clause, and due process clause. Thus, as far as Irish due process law is concerned, a challenge, in my view, was viable in principle to establish as emanations of due process. (1) The right to post conviction access to evidence (2) The right to post conviction preservation of evidence and (3) The right to post conviction testing of evidence The project prepared a case^62 and, at my suggestion and that of Dr Steve O’Donoghue who prepared an internal report, sought the expert advice of Dr Greg Hampikian as to whether this case could benefit from more advance DNA testing. Ed and Audrey then prepared a closing report and the project collectively agreed that the matter be referred back to solicitors (Garret Sheehan and Co. 63 ) and counsel instructed. This case is very much ongoing in the Irish courts and, as I write, a leave for judicial review application was successful in the Irish High Court and a fully-fledged judicial review constitutional case on access to
- All 50 states now endorse the right to post-conviction testing.
- Dist. Attorney’s Office v. Osborne, 129 S.Ct. 238 (2009).
- Skinner v. Switzer, 131 S.Ct. 1289 (2011).
- Braddish, [2001] I.E.S.C.45 (Ir.).
- I would like to thank the three caseworkers involved in this case Dr Steve O’ Donoghue, Edward Matthews, and Audrey Brown Gallen for their trojan and, in some instances (Ed and Audrey), continuing work and involvement in this case.
- Who I want to thank for taking this case and extend my thanks also to counsel in this respect.
