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Ian Bailey case: Our civil liberties threatened

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    #32
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    But i am prepared to stand over my view that the spirit of DJ is that the prosecution only has one bite at the cherry..

    That's your view. So complain all you want about it, but it is irrelevant in the case from the OP as nothing has been breached in law.


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    #33
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    BetterLisbon wrote: »
    I am surprised this hasnt been mentioned on this forum yet but a European Arrest Warrant has been issued by France for Ian Bailey for the killing of Sophie Toscan du Plantier.
    This should worry us all for the following reasons:
    1- The DPP has already considered the evidence and determined that a prosecution is not justified. If the extradition goes ahead then Mr. Bailey will be facing a new consideration of the same evidence. This breaches double jeopardy which is one of the cornerstones of civil liberties in this part of the world.
    2- If the extradition goes ahead then a suspect for a crime committed in Ireland will be investigated without the protections of common law, which again are a cornerstone of civil liberties in this part of the world.

    So next time you are about to put in a bonecrunching tackle on a frenchman in a game of footie in the park think very carefully. Will he go back to france and claim he was assaulted and seek your extradition to be investigated under the French legal system.
    Those of us who argued against the European Arrest Warrant did so as we saw it as a back door to undercutting civil liberties. We were met with the usual spindoctoring, "facts", ridicule and argumentum ad hominem.

    The Lisbon Treaty also comes into play as the ECJ becomes competent to rule on the correct interpretation of EU law in justice and home affairs(under Nice this would have been an intergovernmental affair). Thus failure to extradite could be challenged in the ECJ.
    Opponents of Lisbon like myself argued that making justice and home affairs supranational was dangerous but again we were met with the usual spindoctoring, "facts", ridicule and argumentum ad hominem.


    http://www.rte.ie/news/2010/0428/duplantiers.html

    Opening post in full. Where did i say the law was breached. I stated double jeopardy (the principle if not the legal letter) is being breached by allowing a french magistrate to reconsider the file of evidence.
    On the basis of the supreme court ruling you referred to it looks like it is legal, but again that wasnt my point.


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    #34
    BlitzKrieg
    Registered Users Posts: 14,685 ✭✭✭✭BlitzKrieg


    where in the op did you state you were talking about the principal and not the law?


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    #35
    View
    Registered Users Posts: 3,872 ✭✭✭View


    BetterLisbon wrote: »
    I was not aware of that SC ruling. But the fact that that question made it to the SC shows that the DPP reconsidering was at least considered controversial.

    I'm open to correction on this but I don't believe the fact there was a court case about this proves it was "considered controversial". To the best of my knowledge, most, if not all legal questions can be tested against the provisions of the constitution in the Supreme Court - whether it is worth doing so (in a particular case) is, of course, another question...
    BetterLisbon wrote: »
    So i will concede that the legal letter of double jeopardy may not be breached but the principle that once a suspect is out of jeopardy he cannot be put back in jeopardy has been breached.

    No such principle exists in Irish law to the best of my knowledge. Or, at least, not along the lines that you outline.

    You can't breech an non-existent principle...
    BetterLisbon wrote: »
    The DPP had 13 years to prosecute and has not done so, to allow a french magistrate to do so now is farcical.

    In your opinion perhaps. Most other people don't seem to have a problem with this.

    Mr Bailey, meanwhile, is free to mount legal challenges to the proceedings if he so chooses. Who knows perhaps the ECJ or ECHR will rule in his favour?


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    #36
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    View wrote: »
    I'm open to correction on this but I don't believe the fact there was a court case about this proves it was "considered controversial". To the best of my knowledge, most, if not all legal questions can be tested against the provisions of the constitution in the Supreme Court - whether it is worth doing so (in a particular case) is, of course, another question...

    No such principle exists in Irish law to the best of my knowledge. Or, at least, not along the lines that you outline.

    You can't breech an non-existent principle...

    In your opinion perhaps. Most other people don't seem to have a problem with this.

    Mr Bailey, meanwhile, is free to mount legal challenges to the proceedings if he so chooses. Who knows perhaps the ECJ or ECHR will rule in his favour?

    The fact that the SC was willing to hear the appeal shows the argument was credible.
    Again i concede the SC did not share my view of DJ but the principle (ethical rather than legal in this case) of DJ has been breached. This violates civil liberties in my view.


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    #37
    Scofflaw
    Registered Users Posts: 23,283 ✭✭✭✭Scofflaw


    BetterLisbon wrote: »
    The fact that the SC was willing to hear the appeal shows the argument was credible.
    Again i concede the SC did not share my view of DJ but the principle (ethical rather than legal in this case) of DJ has been breached. This violates civil liberties in my view.

    All of which is to say that your argument about double jeopardy has been shown to be meaningless anywhere other than in your head, but that that's quite sufficient for you - you won't abandon it, and you will be trotting it out again as if it had some kind of objective meaning.

    That seems to be the spring that keeps euroscepticism running.

    regards,
    Scofflaw


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    #38
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    Again i concede the SC did not share my view of DJ but the principle (ethical rather than legal in this case) of DJ has been breached. This violates civil liberties in my view.

    It cannot violate a civil liberty :confused: DJ doesn't apply to DPP considerations as the Supreme Court has considered, the ethical principle has been considered by the most learned judges in the land. They decided the DPP reconsidering opinions to prosecute is not against the spirit of double jeopardy, either in spirt, in ethic or in law.


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    #39
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    Scofflaw wrote: »
    All of which is to say that your argument about double jeopardy has been shown to be meaningless anywhere other than in your head, but that that's quite sufficient for you - you won't abandon it, and you will be trotting it out again as if it had some kind of objective meaning.

    That seems to be the spring that keeps euroscepticism running.

    regards,
    Scofflaw

    Au contraire. Civil liberties are by definition subjective. One mans "civil liberties" are another mans "obstacle to fighting crime".


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    #40
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    Au contraire. Civil liberties are by definition subjective. One mans "civil liberties" are another mans "obstacle to fighting crime".

    Is it my civil liberty not to be prosecuted for a crime at all if I don't want to be?


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    #41
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    prinz wrote: »
    Is it my civil liberty not to be prosecuted for a crime at all if I don't want to be?

    Stop strawmanning and address the point. How many freedoms are you prepared to take from everybody to get a few more people (who may even be innocent) in jail. This is the civil liberties question.


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    #42
    Scofflaw
    Registered Users Posts: 23,283 ✭✭✭✭Scofflaw


    BetterLisbon wrote: »
    Stop strawmanning and address the point. How many freedoms are you prepared to take from everybody to get a few more people (who may even be innocent) in jail. This is the civil liberties question.

    A reductio ad absurdum isn't a straw man (you should probably learn the terminology before using it). The point prinz is making is valid if, as you claim, civil liberties are subjective, because you have allowed for the claim that it's a "civil liberty not to be prosecuted for a crime at all", if someone believes that - subjectively - to be the case. Whether you or I would agree that that should be a civil liberty is irrelevant, if civil liberties are subjectively determined.

    regards,
    Scofflaw


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    #43
    P. Breathnach
    Registered Users Posts: 12,089 ✭✭✭✭P. Breathnach


    BetterLisbon wrote: »
    ... The DPP has already considered the evidence and determined that a prosecution is not justified. If the extradition goes ahead then Mr. Bailey will be facing a new consideration of the same evidence. This breaches double jeopardy which is one of the cornerstones of civil liberties in this part of the world...

    This claim is a cornerstone of BetterLisbon's case. It touches on a matter that bothers me: that consideration of a case by the DPP is accorded some special status even though that consideration is made in private and without the input of advocates, and that evidence considered by the DPP is not tested as it would be in a judicial procedure. If a decision by the DPP not to prosecure is regarded as the legal equivalent of a court finding somebody not guilty, then we will have abandoned many common-law and constitutional principles.


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    #44
    Scofflaw
    Registered Users Posts: 23,283 ✭✭✭✭Scofflaw


    P. Breathnach wrote: »
    This claim is a cornerstone of BetterLisbon's case. It touches on a matter that bothers me: that consideration of a case by the DPP is accorded some special status even though that consideration is made in private and without the input of advocates, and that evidence considered by the DPP is not tested as it would be in a judicial procedure. If a decision by the DPP not to prosecure is regarded as the legal equivalent of a court finding somebody not guilty, then we will have abandoned many common-law and constitutional principles.

    Indeed - allowing a single appointed public official to decide innocence in camera would be an appalling precedent. It fails to surprise me, however, that a eurosceptic in full hue and cry about the unaccountability of allowing foreign courts access to Irish citizens should completely fail to notice such an issue - after all, the DPP is Irish, and that outweighs any other consideration in the eyes of the eurosceptic, time after time.

    cordially,
    Scofflaw


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    #45
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    P. Breathnach wrote: »
    This claim is a cornerstone of BetterLisbon's case. It touches on a matter that bothers me: that consideration of a case by the DPP is accorded some special status even though that consideration is made in private and without the input of advocates, and that evidence considered by the DPP is not tested as it would be in a judicial procedure. If a decision by the DPP not to prosecure is regarded as the legal equivalent of a court finding somebody not guilty, then we will have abandoned many common-law and constitutional principles.

    If the evidence does not merit prosecution today how can it merit prosecution tomorrow if its the same evidence subject to the same criteria of scrutiny. A reversal of a decision not to prosecute smacks of external pressure being put on the DPP and that is why in my opinion reconsideration should not be allowed.


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    #46
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    Scofflaw wrote: »
    Indeed - allowing a single appointed public official to decide innocence in camera would be an appalling precedent. It fails to surprise me, however, that a eurosceptic in full hue and cry about the unaccountability of allowing foreign courts access to Irish citizens should completely fail to notice such an issue - after all, the DPP is Irish, and that outweighs any other consideration in the eyes of the eurosceptic, time after time.

    cordially,
    Scofflaw

    The DPP does not decide innocence, nor does anybody in a common law legal framework. Guilt is determined solely by a jury (or in the SCC by judges which horrifies me btw.).
    What the DPP does is determine whether the evidence is strong enough to merit a full trial of that evidence. A decision to prosecute does not in any way imply guilt nor does a decision not to prosecute in any way imply innocence.


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    #47
    P. Breathnach
    Registered Users Posts: 12,089 ✭✭✭✭P. Breathnach


    BetterLisbon wrote: »
    If the evidence does not merit prosecution today how can it merit prosecution tomorrow if its the same evidence subject to the same criteria of scrutiny. ...

    The answer is that I don't know. The thinking of the DPP is unknown to anybody except the DPP. I see that as a problem.


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    #48
    bonkey
    Registered Users Posts: 15,443 ✭✭✭✭bonkey


    BetterLisbon wrote: »
    If the evidence does not merit prosecution today how can it merit prosecution tomorrow if its the same evidence subject to the same criteria of scrutiny.

    I can think of several situations off the top of my head, none of which are unreasonable.
    A reversal of a decision not to prosecute smacks of external pressure being put on the DPP and that is why in my opinion reconsideration should not be allowed.

    It smacks of nothing but reconsideration. The reasons why they may reconsider are myriad, and by no means are they all unreasonable.


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    #49
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    bonkey wrote: »
    I can think of several situations off the top of my head, none of which are unreasonable.



    It smacks of nothing but reconsideration. The reasons why they may reconsider are myriad, and by no means are they all unreasonable.

    Ok bonk give me your top 3 reasons that you consider reasonable. I am intrigued especially as you come from a non-common law country.


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    #50
    bonkey
    Registered Users Posts: 15,443 ✭✭✭✭bonkey


    BetterLisbon wrote: »
    Ok bonk give me your top 3 reasons that you consider reasonable.

    I'll give you my top two categories of reasons. THere are any number of examples one could concoct within those.

    1) Human error. A review of the evidence is made. A decision is communicated. Someone notices subsequently that between these two points, an incorrect decision was made. The error is corrected. Note that in this category, I am allowing equally that the DPP could change their recommendation from "don't prosecute" to "prosecute" or vice versa.

    2) The DPP begin a review. Having begun the review, they discover that new investigations have begun, the findings of which could be relevant. They recommend not prosecuting as there are newly-ongoing investigations. The new investigations fail to turn up new evidence. Thus, even though the evidence for the case remains the same, the decision needs to be reviewed.

    The point is, as has been pointed out repeatedly, is that the DPPs decision is effectively a decision on whether or not to begin the process that can only be held once.

    If we argue that the DPPs decision is part of that process, then all we are doing is redrawing that line, without explaining why it needs to be redrawn.
    What about the decision to put a case to the DPP? Why not make that part of double-jeopardy too?
    What about the decision to investigate? Why not make that part?

    Why is one part of the decision-making process part of double-jeopardy, and not another? Ultimately, no matter which way you argue it, you still have to draw a line somewhere...a line that can only be crossed once. Although you disagree with it, there is no ambiguity about where that line is drawn in law. The act of prosecution can be carried out once. The decision on whether or not to commence with that act can be carried out as often as you like.
    I am intrigued especially as you come from a non-common law country.
    What gives you that idea? My domicile? Weren't you regaling us previously about how you have lived abroad?


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    #51
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    bonkey wrote: »
    I'll give you my top two categories of reasons. THere are any number of examples one could concoct within those.

    1) Human error. A review of the evidence is made. A decision is communicated. Someone notices subsequently that between these two points, an incorrect decision was made. The error is corrected. Note that in this category, I am allowing equally that the DPP could change their recommendation from "don't prosecute" to "prosecute" or vice versa.

    2) The DPP begin a review. Having begun the review, they discover that new investigations have begun, the findings of which could be relevant. They recommend not prosecuting as there are newly-ongoing investigations. The new investigations fail to turn up new evidence. Thus, even though the evidence for the case remains the same, the decision needs to be reviewed.

    The point is, as has been pointed out repeatedly, is that the DPPs decision is effectively a decision on whether or not to begin the process that can only be held once.

    If we argue that the DPPs decision is part of that process, then all we are doing is redrawing that line, without explaining why it needs to be redrawn.
    What about the decision to put a case to the DPP? Why not make that part of double-jeopardy too?
    What about the decision to investigate? Why not make that part?

    Why is one part of the decision-making process part of double-jeopardy, and not another? Ultimately, no matter which way you argue it, you still have to draw a line somewhere...a line that can only be crossed once. Although you disagree with it, there is no ambiguity about where that line is drawn in law. The act of prosecution can be carried out once. The decision on whether or not to commence with that act can be carried out as often as you like.


    What gives you that idea? My domicile? Weren't you regaling us previously about how you have lived abroad?

    The former i reject. Human error is built into everything. To allow reviews on that basis would open a pandoras box. Do we put the evidence to the jury again due to "human error" etc.
    In the latter case it is acceptable to review due to new evidence emerging. something i dont have a problem with as the decision will be based on a new book of evidence. The prospect of new evidence emerging should cause the DPP to defer a decision.

    Your avatar says you are from switzerland and you showed superb knowledge of the swiss bilateral treaties so forgive me i assumed you were swiss or resident there.
    I did live abroad but in the USA & Australia which are both common law countries. We could do very well to model our justice system on the american one in terms of fair trials and investigations (not on "fair" punishments though).


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    #52
    bonkey
    Registered Users Posts: 15,443 ✭✭✭✭bonkey


    BetterLisbon wrote: »
    The former i reject. Human error is built into everything. To allow reviews on that basis would open a pandoras box.
    No, it doesn't open a pandora's box.

    The line, once again, is clearly drawn at the start of litigation. The onus is on the prosecution to get their errors out of the way before they cross that line. Thus, before they cross that line, error is an absolutely justifiable reason to modify a position.

    Once they cross that line, error is still a reason to modify a position, but that position can only be to drop charges that have been brought, accepting that they can never be brought again.
    Do we put the evidence to the jury again due to "human error" etc.
    You're being disingenuous. We both understand and accept that a principle of double jeopardy comes into play at some point. We're only disagreeing at what point people can no longer use error as a reason for revising a position. Irregardless of where you draw that line, you allow this reason to be valid before that line is crossed. To suggest otherwise is to say that it is never acceptable to correct an error....a statement which would ultimately lead to travesties of justice.
    In the latter case it is acceptable to review due to new evidence emerging.
    That's not my latter case. My latter case is to review due to it becoming clear that new evidence has not emerged.
    The prospect of new evidence emerging should cause the DPP to defer a decision.
    Think for a moment...what does defer mean?

    Asjked the question "do we start prosecution", the answer of "let me defer" is nothing but a way of saying "no, but I may revise that in the future". By your (incorrect) definition of double jeopardy, deferring would be impossible. Once asked for a decision, the decision has to be made. Any decision not to prosecute is irreversible....thus, choosing not to prosecute now, but with the right to change that decision in the future (i.e. deferring) is exactly what you have said is unconscionable.
    Your avatar says you are from switzerland and you showed superb knowledge of the swiss bilateral treaties so forgive me i assumed you were swiss or resident there.
    I don't come from Switzerland, any more than you came from the US or Australia while you were resident there.
    We could do very well to model our justice system on the american one
    The American interpretation of double jeopardy is in line with the concept you reject.


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    #53
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    bonkey wrote: »
    No, it doesn't open a pandora's box.

    The line, once again, is clearly drawn at the start of litigation. The onus is on the prosecution to get their errors out of the way before they cross that line. Thus, before they cross that line, error is an absolutely justifiable reason to modify a position.

    Once they cross that line, error is still a reason to modify a position, but that position can only be to drop charges that have been brought, accepting that they can never be brought again.

    You're being disingenuous. We both understand and accept that a principle of double jeopardy comes into play at some point. We're only disagreeing at what point people can no longer use error as a reason for revising a position. Irregardless of where you draw that line, you allow this reason to be valid before that line is crossed. To suggest otherwise is to say that it is never acceptable to correct an error....a statement which would ultimately lead to travesties of justice.

    That's not my latter case. My latter case is to review due to it becoming clear that new evidence has not emerged.

    Think for a moment...what does defer mean?

    Asjked the question "do we start prosecution", the answer of "let me defer" is nothing but a way of saying "no, but I may revise that in the future". By your (incorrect) definition of double jeopardy, deferring would be impossible. Once asked for a decision, the decision has to be made. Any decision not to prosecute is irreversible....thus, choosing not to prosecute now, but with the right to change that decision in the future (i.e. deferring) is exactly what you have said is unconscionable.


    I don't come from Switzerland, any more than you came from the US or Australia while you were resident there.


    The American interpretation of double jeopardy is in line with the concept you reject.

    Ok so we are down to what should be the point of no return for the prosecution. IMO it should be the point where a decision is taken that the evidence does not merit prosecution. If the Gardai discover new evidence then we have a new case file.
    I agree with some american ideas such as allowing an appeal on the grounds that the jury convicted against the weight of the evidence.


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    #54
    P. Breathnach
    Registered Users Posts: 12,089 ✭✭✭✭P. Breathnach


    BetterLisbon wrote: »
    Ok so we are down to what should be the point of no return for the prosecution. IMO it should be the point where a decision is taken that the evidence does not merit prosecution. If the Gardai discover new evidence then we have a new case file.
    ...

    That is elevating the role of the DPP in considering a file to the status of a judicial procedure, but without the protections that a court should afford.

    I don't actually know how the DPP operates. I think that is only partly due to my not being a legal specialist; it is also due to the confidential nature of the work conducted in his office. If the Guards investigating an incident send him a file, and the DPP considers that an important component in the set of evidence is incomplete or in some way unsatisfactory, does he communicate to the Guards that if such-and-such a thing can be proven, there could be enough evidence to warrant a prosecution?

    Prosecution should not be an arcane game where the rules become more important than justice. Yes, rules are necessary, but they should be designed so as to achieve just outcomes, not make them more difficult, It's not only justice for those suspected or accused of criminal actions: I, as a member of society, as a potential victim of crime, and as an actual victim of crime, have an interest in malefactors being tried and convicted.


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    #55
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    Going back to the original post. Who here is happy that they could be tried for an alleged offence committed in Ireland without the protections of common law.


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    #56
    dogbert27
    Registered Users Posts: 4,905 ✭✭✭dogbert27


    BetterLisbon wrote: »
    Going back to the original post. Who here is happy that they could be tried for an alleged offence committed in Ireland without the protections of common law.

    THAT'S NOT THE ORIGINAL POST, AAAAAAAAAAAAAAARRRRGGGGHHHHH!!!!! :mad:

    Right, I've followed your posts in a few threads and every time you are brought to task you go off on a tangent!

    In this thread you endlessly argue double jeopardy without actually knowing what double jeopardy actually means and then you argue that it was your own definition of double jeopardy that you were discussing!

    When are you going to accept that your point of view is actually wrong and that the EU isn't actually out to get you?


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    #57
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    Going back to the original post. Who here is happy that they could be tried for an alleged offence committed in Ireland without the protections of common law.

    Me.

    Please note the concept of mutual recognition and the restrictions on the EAW in particular dual criminality.


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    #58
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    prinz wrote: »
    Me.

    Please note the concept of mutual recognition and the restrictions on the EAW in particular dual criminality.

    EAW has numerous exceptions to dual criminality.


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    #59
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    dogbert27 wrote: »
    THAT'S NOT THE ORIGINAL POST, AAAAAAAAAAAAAAARRRRGGGGHHHHH!!!!! :mad:

    Right, I've followed your posts in a few threads and every time you are brought to task you go off on a tangent!

    In this thread you endlessly argue double jeopardy without actually knowing what double jeopardy actually means and then you argue that it was your own definition of double jeopardy that you were discussing!

    When are you going to accept that your point of view is actually wrong and that the EU isn't actually out to get you?

    If bailey is shipped (and i think there must be a decent chance given the codology his lawyers are going to produce in the hearing next month) then he will be tried under french law without the protections of common law. This was my opening point more or less. If so we are all vulnerable.
    I have conceded numerous times that my concept of double jeopardy is not shared by the supreme court but the spirit if not the legal letter is being breached if he is shipped.


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    #60
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    EAW has numerous exceptions to dual criminality.

    32 exceptions. All of which are serious criminal offences and are excepted so as to prevent loopholes being found and technicalities between legal definitions in different languages being used as a means to escape a warrant.


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    #61
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    If bailey is shipped (and i think there must be a decent chance given the codology his lawyers are going to produce in the hearing next month) then he will be tried under french law without the protections of common law..

    Mutual recognition.

    http://ec.europa.eu/justice_home/fsj/criminal/recognition/wai/fsj_criminal_recognition_en.htm

    BetterLisbon wrote: »
    I have conceded numerous times that my concept of double jeopardy is not shared by the supreme court but the spirit if not the legal letter is being breached if he is shipped.

    What 'spirit' is being breached. There is no 'spirit' of double jeopardy when it comes to the DPP's decision making.


This discussion has been closed.
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