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The Presumption of Innocence in Irish Criminal Law: Recent trends and possible explanations. Dr. Claire Hamilton 27.11.10. Plan. To briefly assess buoyancy of the presumption in Irish criminal law adopting Ashworth’s (2006) framework: four threats to the PoI
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Dr. Claire Hamilton
Arguments in favour of the presumption of innocence:
See Hamilton (2011a, forthcoming)
Strict/absolute offences & ‘moral innocence’
-CC v Ireland: ‘mentally innocent’ but invalidated on basis of Article 40. Cf w. G  UKHL 37
- Withdrawal of 28th Amdt to Const Bill 2007: defence of those who were morally innocent in submissions to Joint Oireachtas Committee (2009)
- Guilty pleas: substantial incentive to plead guilty in CJA 1999 (s.15A). Compatibility with ECHR?
-Right to silence: relationship with PoI contested but ‘relationship of kinship’ here which affects BOP. S.30 CJA 2007; s.72A CJA 2006: safeguards but power differential great & no right to solicitor.
- Recent legislative exceptions to the presumption in the form of reverse onus provisions eg possession of drugs, duties of company law officers, health and safety legislation.
- O’Leary (1993, 1995) and Hardy (1994): Interpreted as EB not LB but lack of guidance & suggestion that reversal of LB constitutionally permissible.
- Historic sexual abuse cases: serious challenge to the ‘normative legitimacy’ of the PoI (Campbell et al, 2010: 332). Now reversed in SH v. DPP (2006).
- Some evidence of this eg ASBOs, SOA, CAB but not proliferation of civil orders as in UK
- Potential conflict with ECHR on SOP in s.115(9) CJA 2006 (R v. McCann)
- Constitutionality of ASBOs: civil hearing determines extent of criminal liability & punishment for all acts (not just breach)
- need for ‘substance over form’ approach
Ashworth & Zedner (2007) ‘Defending the Criminal Law’:
Liberal model emphasises both the purpose of the criminal law in providing for censure and punishment and the need to respect the autonomy and dignity of individuals in the criminal process. At a minimum, therefore, the trial should be fair in terms of the appropriate procedural safeguards and the official censure of conviction and punishment is only justifiable if there has been a trial observing those safeguards.
Addendum: aim to secure the constitutional status of the PoI
- (2010) Reconceptualising penality: An examination of the ‘new punitiveness’ in Ireland, Scotland and New Zealand, Unpublished PhD thesis, UCD.
- (2011a, forthcoming) ‘The Presumption of Innocence in Irish Criminal Law; An Assessment’ International Journal on Evidence and Proof.
- (2011b, forthcoming) ‘Organised Criminals as Agents of Obligation: The Case of Ireland’ European Journal on Criminal Policy and Research.