Constitutional Rights of the Accused

murpm

Hi all, just wondering if anyone could help me as regards the constitutional rights of the accused in a criminal trial and in the pre-trial stages (arrest, search etc). It is regards to an essay on the rights of the accused and interests of society, is there a fair balance?
any help with the following questions would be great:



1.
Are art 40.5, ( the “dwelling of every citizen shall be inviolable
and shall not be forcibly entered save in due course of law”)
& Art 40.4.1. (right to liberty) the 2 main provisions of the Constitution that apply?


2.
are the following constitutional rights or statutory or common law rights?

• Right to free legal aid?
• Right to fair procedure
• Right to trial in due course of law
• Right to fair trial
• Right to quick trial
• Presumption of innocence
• Right to silence & Right not incriminate oneself
• Right to liberty
• Right to inviolability of dwelling-search warrant
• right to be treated humanely
• right to constitutionally obtained evidence
• right not to be tried twice for same offence

Interests of society:

• Victim
• Public safety
• Crime prevention
• Justice done & seen to be done
• Right to safety
• Punish
• Rehabilitation
• Justice
• Lawful arrest & dentention
• Power of gardai to investigate
• Power of gardai to search, seize etc
• Power gardai to arrest

3.
further, are the following issues relevant:
Character evidence of the accused,
Retrying person after acquittal if new & compelling evidence comes to light?

MagicSean

These are fairly basic issues which you should really know if you have been studying law at all. I suggest you start by reading the constitution. You'll answer most of your questions.

O'Malley "The Criminal Process" should be a good help to you. Otherwise the breadth of the answer required by anyone seeking to help you here would be immense.

You really need to read some articles on this stuff and think through it yourself. There are also some excellent and eloquent decisions on all the points you mention above, quite a few of which would be referenced in O'Malley.

murpm

Kayroo - Thanks a lot for the constructive reply. I realise the entirety of the issues would require a substantial answer, was just wondering from people if they had any insights in particular parts etc.
will try resource that book over the coming days. thanks again.

MagicSean - Thanks for the comment. I was just looking for a bit of guidance or help, which I thought was the purpose of forums like this. Have read the constitution, along with numerous articles, textbooks etc. was looking for peoples initial thoughts on the issues.

theAwakening

3.
further, are the following issues relevant:
Character evidence of the accused,
Retrying person after acquittal if new & compelling evidence comes to light?[/QUOTE]


character evidence - see section 1(f) criminal justice (evidence) act, 1924

retrying after acquittal - see criminal procedure act, 2010

caroline fennell's 'the law of evidence in ireland' (3rd edition) may also assist you.

MagicSean

murpm wrote: »

Kayroo - Thanks a lot for the constructive reply. I realise the entirety of the issues would require a substantial answer, was just wondering from people if they had any insights in particular parts etc.
will try resource that book over the coming days. thanks again.

MagicSean - Thanks for the comment. I was just looking for a bit of guidance or help, which I thought was the purpose of forums like this. Have read the constitution, along with numerous articles, textbooks etc. was looking for peoples initial thoughts on the issues.

I didn't mean offence but you asked such a wide ranging question. If you could narrow it down a bit you might get more help. Are you including the investigation stage or just the trial?

yourmother10

As suggested by Kayroo, O'Malley has some helpful articles on this topic. For some basic, concise info Irish Criminal Justice: Theory, Process and Procedure by Dr Vicky Conway, Dr Yvonne Daly, Jennifer Schweppe is also good.

You say it's for an essay, would you maybe compare Article 38 of the Irish Constitution with Article 6 ECHR?

murpm

theAwakening - will have a look at those articles thanks very much
I probably should have clarified that its solely from a constitutional perspective.
basically I'm wondering what constitutional rights, as opposed to statutory rights or common law rights stem from the following constitutional provisions:

 Right to Criminal Trial in due course of law – Article 38.1
 Right to Jury Trial – Article 38.5
 Right to liberty – Article 40.4.1
 Right to Habeas Corpus – Article 40.4.2
 Right to inviolability of dwelling – Article 40.5



yourmother10 -
thanks for the suggestion. I might go down that route of comparing the ECHR protections with the Irish Constitutional protections, it seems like an interesting viewpoint to approach the essay.
yes, I have read one of Dr Yvonne Daly articles, a report by Balance in Criminal Law Review Group, a J. Martin article and a some other articles case books.
some of the articles focus on unconstitutionally obtained evidence, but I'm wondering would it be wise to just focus on this one issue, which seems most topical.

yourmother10 -
None taken. Basically I'm looking to see what constitutional rights / protections exist for the accused in both the trial & pre trial stage. I was hoping someone might have a quick list off hand, but I do realise its such a broad part of constitutional law.
its difficult to pick an approach for the essay. for eg to go through the provisions outlined above, stating the rights which stem from the rights that are constitutionally protected and look at the case law associated with each right.
or do I for eg go through all rights of the accused, including statute based rights .
the interests of society are also refered to in the Q- so do i refer to the powers of the gardai, rights of the victim etc
thansk for considering my issue with the question

murpm

magic sean -
apologies the above is in reference to your last comment, not yourmother10's

None taken. Basically I'm looking to see what constitutional rights / protections exist for the accused in both the trial & pre trial stage. I was hoping someone might have a quick list off hand, but I do realise its such a broad part of constitutional law.
its difficult to pick an approach for the essay. for eg to go through the provisions outlined above, stating the rights which stem from the rights that are constitutionally protected and look at the case law associated with each right.
or do I for eg go through all rights of the accused, including statute based rights .
the interests of society are also refered to in the Q- so do i refer to the powers of the gardai, rights of the victim etc
thansk for considering my issue with the question

d4head77

Dunno if it's of any interest or relevance, but if you look at the thread "miscarriage of justice" where I detail an experience I had, it roundly places the fairness of the law into focus; I was wrongly found guilty of an offence in a case where it was one persons word against another - me -v- an ex. I watch her tell lie after lie in court, and avoid any question looking for proof, which neither she nor the Guards could offer, because the issue she claimed didn't happen. But I couldn't prove my version either, with no witnesses. I was always led to believe that you are innocent until PROVEN guilty, but it is not so. I feel hurt and violated by the state and I cant afford to appeal, and I am not entitled to legal aid. I have always been a proud and good Irish citizen, intensely proud of the country I am born and bred in. I feel so sick now, with a false judgement against me, that I'd happily emigrate and wash my feet as i left.