Superseding the Constitution?

PeterBrown1415

Section 258 of the children act 2001 states this:

(4) (a) A person to whom this section applies shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or found guilty of or dealt with for the offence or offences which were the subject of the finding of guilt; and, notwithstanding any other statutory provision or rule of law to the contrary but, subject as aforesaid—


(i) no evidence shall be admissible in any proceedings before a judicial authority to prove that any such person has committed or been charged with or prosecuted for or found guilty of or dealt with for any offence which was the subject of that finding, and


(ii) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his or her past which cannot be answered without acknowledging or referring to a finding or findings to which this section refers or any circumstances ancillary thereto.

Does the part that I have highlighted in bold supersede even the constitution? If it does, should we have had a referendum before the children act 2001 was made law?

(I can't post links but full act can be found on irishstatutebook.ie)

Fred Swanson

This post has been deleted.

PeterBrown1415

Thanks for the response Fred.

Is the above Act (Children act 2001) unconstitutional then?

Would it be common to have such a 'catch all' blanket statement in an Act that blindly overrides "any other statutory provision or rule of law to the contrary"

Little CuChulainn

PeterBrown1415 wrote: »

Thanks for the response Fred.

Is the above Act (Children act 2001) unconstitutional then?

Would it be common to have such a 'catch all' blanket statement in an Act that blindly overrides "any other statutory provision or rule of law to the contrary"

How is it unconstitutional? The Constitution is neither a statutory provision or rule of law. Exactly what is it you think is in conflict with which article of the constitution?

Manach

AFAIR, there are a number of conventions when reading legislation. One of those is a presumption of constitutationality: that the act's text is to be read as being inline with the constitution. So offhand, the OP's bolded text would in the first instance be interpreted within that constitutional framework.

PeterBrown1415

How is it unconstitutional? The Constitution is neither a statutory provision or rule of law. Exactly what is it you think is in conflict with which article of the constitution?

What would the right to a fair trial (for example) fall under? - is that a statutory provision or rule of law?

I'm looking at the Children Act purely algorithmically. The fact that the Act includes this: "any other statutory provision or rule of law to the contrary", means there is a potential of conflict if not actual conflict, either now or at some point in the future. (If the logic is examined more closely, the act may even have the potential to deadlock itself)

AFAIR, there are a number of conventions when reading legislation. One of those is a presumption of constitutationality: that the act's text is to be read as being inline with the constitution. So offhand, the OP's bolded text would in the first instance be interpreted within that constitutional framework.

That's interesting.
If someone can enlighten me on whether the right to a fair trial is enshrined in the constitution or not I'd be in a better position to flesh this out.

The right to a fair trial is a constitutional right.

Now: flesh it out for us.

Pro Hoc Vice

PeterBrown1415 wrote: »

What would the right to a fair trial (for example) fall under? - is that a statutory provision or rule of law?

I'm looking at the Children Act purely algorithmically. The fact that the Act includes this: "any other statutory provision or rule of law to the contrary", means there is a potential of conflict if not actual conflict, either now or at some point in the future. (If the logic is examined more closely, the act may even have the potential to deadlock itself)



That's interesting.
If someone can enlighten me on whether the right to a fair trial is enshrined in the constitution or not I'd be in a better position to flesh this out.

The constitution has two types of rights those set out in the documents and unenumerated rights, which are rights while not set out in the text exists. Bodily integrity is not set out in the constitution but the courts say it exists.

But in relation to a fair trial the constitution says is as follows

ARTICLE 38
1 No person shall be tried on any criminal charge save in due course of law.

A unfair trial would not be in due course of law, a bit of research would lead to the cases that deal with what's a fair trial. Garry Doyle is a case that said a defendant in a summary trial has a right to know in advance what evidence will be produced against him as not to know would be unfair.

Little CuChulainn

PeterBrown1415 wrote: »

What would the right to a fair trial (for example) fall under? - is that a statutory provision or rule of law?

I'm looking at the Children Act purely algorithmically. The fact that the Act includes this: "any other statutory provision or rule of law to the contrary", means there is a potential of conflict if not actual conflict, either now or at some point in the future. (If the logic is examined more closely, the act may even have the potential to deadlock itself)

The right to a fair trial is a constitutional right. The specifics of trials are set out in various statutory documents and other stuff.

I still have no idea what you are getting at. Can you explain a little more? Is it that you think the Childrens Act gives a get out of jail card for someone and denies the victim their right to justice?

PeterBrown1415

To clarify, my concern would be in the hypothetical situation, that a person would not get a fair trial if a complainant had committed a most dishonest offence just before they were aged 18.

The State then calls them as a witness in a trial where credibility is central. The Jury do not know about the complainant's history because the Children act has been invoked. The defendant, who has no credibility issues, then does not get a fair trial

The right to a fair trial has been superseded by the Children Act 2001. Or has it?

Pro Hoc Vice

PeterBrown1415 wrote: »

To clarify, my concern would be in the hypothetical situation, that a person would not get a fair trial if a complainant had committed a most dishonest offence just before they were aged 18.

The State then calls them as a witness in a trial where credibility is central. The Jury do not know about the complainant's history because the Children act has been invoked. The defendant, who has no credibility issues, then does not get a fair trial

The right to a fair trial has been superseded by the Children Act 2001. Or has it?

Well firstly a previous bad act of a witness usually proves nothing, in any event to attack a prosecution witness is very risky as could lead to disclosure of the defendants previous bad history, if any.

Section 258 is about the non disclosure of convictions of persons when minors to protect them. I do not see how it would effect a criminal trial of a third party but if it did the section could in my opinion be read to allow if the interests of justice so require the giving of that evidence.

Little CuChulainn

PeterBrown1415 wrote: »

To clarify, my concern would be in the hypothetical situation, that a person would not get a fair trial if a complainant had committed a most dishonest offence just before they were aged 18.

The State then calls them as a witness in a trial where credibility is central. The Jury do not know about the complainant's history because the Children act has been invoked. The defendant, who has no credibility issues, then does not get a fair trial

The right to a fair trial has been superseded by the Children Act 2001. Or has it?

Afaik it would be up to the judge whether to allow the issue to be raised in a trial.

PeterBrown1415

Afaik it would be up to the judge whether to allow the issue to be raised in a trial.

If the Judge did not apply the Act, would any evidence then be unlawfully procured? - I can't see how the Judge could not apply the act.

Section 258 is about the non disclosure of convictions of persons when minors to protect them. I do not see how it would effect a criminal trial of a third party but if it did the section could in my opinion be read to allow if the interests of justice so require the giving of that evidence.

How could the section be read to require the giving of the evidence? - how can the Judge go against the Act?

Pro Hoc Vice

PeterBrown1415 wrote: »

If the Judge did not apply the Act, would any evidence then be unlawfully procured? - I can't see how the Judge could not apply the act.


How could the section be read to require the giving of the evidence? - how can the Judge go against the Act?

Because you are misreading the act, the Act is to protect children from themselves, it is so an action of a person when 15 is not disclosed to a judge in a criminal prosecution of the same person when they are an adult. There is nothing in the section to effect any constitutional right of a third party, and it can not in my opinion be read that way, if it was by a judge then the trial result would be reviewable and the act could be challenged as unconstitutional more than likely by Pleanery summons.

Little CuChulainn

PeterBrown1415 wrote: »

If the Judge did not apply the Act, would any evidence then be unlawfully procured? - I can't see how the Judge could not apply the act.


How could the section be read to require the giving of the evidence? - how can the Judge go against the Act?

Who said anything about requiring the giving of evidence? I thought the person with the juvenile witness was a prosecution witness. And where do you get that the Judge wouldn't be applying the act? A conviction is not given to the juvenile so that it will not appear on any job vetting, visa applications or future sentencing reports so that they need not be put at a disadvantage going through life for a mistake they made.

I really think you need to structure your question better because it's not making much sense.

PeterBrown1415

I will try to clarify.

I believe the Children Act 2001 has the potential to override the right to a fair trial. Here is (hypothetical scenario) why:

- The only evidence in a criminal trial is one person's word against another's. Credibility is key.
- A complainant's credibility is in doubt because of a very dishonest offence committed when they were in their late teens.
- The State produces complainant's evidence in the trial.
- The Act does not allow the defence to question the complainant about their past offence, or bring doubts about the complainant's credibility to the attention of the Jury.
- The Jury believe the complainant to be entirely credible.
- As a result of this, the defendant does not get a fair trial as vital evidence has been omitted. The Barristers may also change their tactic on how they will cross examine the complainant.

This appears to be unique to Ireland, by the way. Other Jurisdictions allow such evidence to be presented.

I am not misreading the act. Note that it applies for all purposes in law and overrides all other laws (notwithstanding any other statutory provision or rule of law to the contrary)

(4) (a) A person to whom this section applies shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or found guilty of or dealt with for the offence or offences which were the subject of the finding of guilt; and, notwithstanding any other statutory provision or rule of law to the contrary but, subject as aforesaid—


(i) no evidence shall be admissible in any proceedings before a judicial authority to prove that any such person has committed or been charged with or prosecuted for or found guilty of or dealt with for any offence which was the subject of that finding, and


(ii) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his or her past which cannot be answered without acknowledging or referring to a finding or findings to which this section refers or any circumstances ancillary thereto.

PeterBrown1415

I will try to clarify.

I believe the Children Act 2001 has the potential to override the right to a fair trial. Here is (hypothetical scenario) why:

- The only evidence in a criminal trial is one person's word against another's. Credibility is key.
- A complainant's credibility is in doubt because of a very dishonest offence committed when they were in their late teens.
- The State produces complainant's evidence in the trial.
- The Act does not allow the defence to question the complainant about their past offence, or bring doubts about the complainant's credibility to the attention of the Jury.
- The Jury believe the complainant to be entirely credible.
- As a result of this, the defendant does not get a fair trial as vital evidence has been omitted. The Barristers may also change their tactic on how they will cross examine the complainant.

This appears to be unique to Ireland, by the way. Other Jurisdictions will allow past convictions of complainants to be presented.

I am not misreading the act. Note that it applies for all purposes in law and overrides all other laws (notwithstanding any other statutory provision or rule of law to the contrary)

(4) (a) A person to whom this section applies shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or found guilty of or dealt with for the offence or offences which were the subject of the finding of guilt; and, notwithstanding any other statutory provision or rule of law to the contrary but, subject as aforesaid—


(i) no evidence shall be admissible in any proceedings before a judicial authority to prove that any such person has committed or been charged with or prosecuted for or found guilty of or dealt with for any offence which was the subject of that finding, and


(ii) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his or her past which cannot be answered without acknowledging or referring to a finding or findings to which this section refers or any circumstances ancillary thereto.

Valentine1

PeterBrown1415 wrote: »

Section 258 of the children act 2001 states this:


Does the part that I have highlighted in bold supersede even the constitution? If it does, should we have had a referendum before the children act 2001 was made law?

(I can't post links but full act can be found on irishstatutebook.ie)

OP you have misunderstood the children's act, the section you have quoted, the nature of our Constitution and the concept of a fair trial.

Firstly the Constitution is neither a statute nor a rule of law, thus the section quoted cannot be unconstitutional. Other Acts or Common Law (aka rules of law) may call for person's prior convictions to be revealed to a Court, the highlighted sentence means that those Acts will not override section 258, that is the reason for the "Catch all clause" and they are not uncommon.

The purpose of s 258 os to ensure that crimes committed by a child are not taken into consideration when sentencing that individual for an offence they commit as an adult.

Witnesses are never questioned on previous convictions for the simple reason that if the defence asks witnesses about their previous convictions the Prosecution will be allowed to do the same to the defendant. Many witnesses who give evidence in criminal matters have convictions for all manners of crimes and the jury is never made aware of them, this does not make for an unfair trial, a trial must relate only to the facts of the case and is not and should not be an assessment of the character of either the Defendant or a Witness.

If a Witness is dishonest and his evidence is unreliable then even a moderately skilled lawyer should have little difficulty in making that clear to the Court and Jury through questioning without having to have recourse to the witness's past.

Mikros

I understand what you are getting at....

It's a very hypothetical scenario to image a situation where the non-disclosure of a witnesses previous convictions as a minor could lead to a risk that the defence would be at disadvantage. Especially as the section you quoted does not apply to the most serious offences (i.e. those tried in the Central Criminal Court) and the offender must not have committed another offence within a 3 year period:

Children Act, 2001, Section 258 wrote:

(a) the offence was committed before the person attained the age of 18 years,
(b) the offence is not an offence required to be tried by the Central Criminal Court,
(c) a period of not less than 3 years has elapsed since the finding of guilt, and
(d) the person has not been dealt with for an offence in that 3-year period,

A more practical implication might be in terms of vetting as any convictions outside the exceptions above don't have to be disclosed, even for a sensitive position. So a person with a number of sexual offence convictions as a minor would not (on the face of it) have to disclose this fact when being vetted in the future, as long as they were not of such a severity to reach the Central Criminal Court.

Does the current Section 258 of the Children's Act sufficiently balance the various competing rights - it's certainly open to debate.

Little CuChulainn

Basically you're saying the defence can't attack the character of a prosecution witness based on a crime they committed when they were a child and this means the accused can't get a fair trial.

PeterBrown1415

Little CuChulainn wrote: »

Basically you're saying the defence can't attack the character of a prosecution witness based on a crime they committed when they were a child and this means the accused can't get a fair trial.

Yes.

It should be up to the Jury to decide whether the evidence from 10 year old stealing a tin of beans, for example, has the same credibility as a 17.5 year old committing a much more serious offence concerning utmost dishonesty. Especially when the trial is all about credibility.

Witnesses are never questioned on previous convictions for the simple reason that if the defence asks witnesses about their previous convictions the Prosecution will be allowed to do the same to the defendant. Many witnesses who give evidence in criminal matters have convictions for all manners of crimes and the jury is never made aware of them, this does not make for an unfair trial, a trial must relate only to the facts of the case and is not and should not be an assessment of the character of either the Defendant or a Witness.

The defendant does not have to give evidence. What about the case where the defendant does decide to be cross-examined as they know they have an unblemished record.

The example I gave, past convictions would be relevant because the jury will be deciding the outcome purely based on the credibility of the witnesses. Credibility is the 'facts of the case' The past conviction of the defence witness are vital.

Eg, you have to make a decision on who is lying, person A or Person B. Person A has a previous conviction concerning extreme dishonesty. Person B does not. Now it may be the case the Person A is telling the truth, but if I have to make that decision I would like to know about the conviction.

Does the current Section 258 of the Children's Act sufficiently balance the various competing rights - it's certainly open to debate.

If there is even a possibility that a person could be denied a fair trial, shouldn't this tip the balance somewhat?

If the Act does impinge on the right to a fair trial, how would you describe this (as unconstitutional is the incorrect term)?

Tom Young

I think there's a fundamental comprehension problem here unfortunately.

PeterBrown1415

Tom Young wrote: »

I think there's a fundamental comprehension problem here unfortunately.

What am I not understanding?

If you could please explain I would appreciate it. I genuinely would like to know what I'm missing or not understanding here.

Tom Young

We cannot randomly pick a sentence in an Act and not appreciate the conceptual framework by which that entire Act operated. Doli Incapax has been eroded by virtue of the CJA 2007, though the presumption stands.

Nothing in the Acts you have cited in any way supercedes the Constitution.

If you think it does, tell us all why?

Zambia

I see no issue here. If all the evidence is based on the word of one eye witness well they would want to be one accomplished liar in the box.