McDowell criticised on right to silence issue

Minister for Justice Michael McDowell is "most disingenuous" in citing the human rights of victims as a reason for reviewing legal protections, such as the right to silence, given to those accused of crimes, a leading expert on human rights has warned.

Donncha O'Connell, who is dean of law at NUI Galway, was speaking at the publication last night of a study of the impact of the European Convention on Human Rights (ECHR) here.

The report, ECHR Act 2003: A Preliminary Assessment of Impact, published by the Law Society and the Dublin Solicitors' Bar Association, warns that the potential impact of the convention has been limited by its treatment in the courts. It also says the Irish Human Rights Commission has not been "given the kind of resources necessary to realise the full potential of its statutory role as a litigator".

Mr O'Connell criticised the Minister's argument that he is upholding victims' rights by reviewing the right to silence, saying it was "interesting but regrettable" that he would use one decision from the European Court of Human Rights to "lower the standards of rights" here.

Mr McDowell said at the weekend that the European Court had upheld a decision after the Omagh bombing to change emergency legislation so that inferences could be drawn from a person's failure to reply to questions.

"This is a most disingenuous application of the principles of the convention," Mr O'Connell said.

He said the Minister had nothing practical to say about increasing assistance to victim-support organisations, providing advocacy for victims, or reforms to criminal injuries compensation. "If the Minister is really serious about the human rights of victims, these issues should be treated with much more urgency than the headline-grabbing issues he chose to emphasise."

President of the Dublin Solicitors' Bar Association Brian Gallagher said: "We live in a time when human rights are under attack by those who should be defending them. Our own Minister is planning further incursions into the right to silence. This is a shameful indictment of those who are shaping public opinion."

The report says the convention is being marginalised, and warns it may be further marginalised in a decision on an appeal which is pending from the Supreme Court.

It may overturn the approach taken by Ms Justice Mary Laffoy in the High Court where she ruled that reference to the constitutional issues should come last in any judicial review of a case where there has been a possible breach of the convention. This, says the report, could lead to an explicit instruction that any application for a declaration that something had been incompatible with the convention is only possible "where no other remedy is adequate and available". This could confirm that the Act provides "a mostly residual form of redress in cases involving convention breaches".

The ECHR was ratified by the Republic in 1953 but given further effect in 2003 by the passing of the ECHR Act. "The incorporation of the ECHR into Irish law was probably the most important human rights development to emerge in the Republic from the signing of the Belfast/Good Friday Agreement in 1998," says the study.