Supreme Court record on rights issues criticised

The Supreme Court had shown a very regrettable failure to uphold the right to silence in a decision later overturned by the European…

The Supreme Court had shown a very regrettable failure to uphold the right to silence in a decision later overturned by the European Court of Human Rights, Mr Gerard Hogan SC told the conference.

"Never before Heaney and Quinn did we have a criminal case coming before the European Court of Human Rights, let alone losing it," he said.

He was referring to a challenge taken to a section of the Offences Against the State Act, which requires an accused person to give an account of his or her movements, or face a prison sentence of six months. The European Court of Human Rights upheld the challenge last December, overturning a Supreme Court decision.

The Supreme Court of the last 20 years had not shown the same commitment to the protection of human rights as that court had 20 or 30 years ago, when this State was in the vanguard of the protection of human rights in Europe.

READ MORE

"The record of the last 20 years has been more mixed," he said. "I'd like to think that the new Supreme Court would look back to the days when Mr Justice Barrington argued before the court of Walsh, O Dalaigh and Henchy, when human rights were much more valued."

This "golden age" of Irish jurisprudence was not an accidental by-product of the Constitution, but consistent with the intentions of its drafters, he said.

"Contrary to popular belief the drafters of the Constitution had a scheme of protection of human rights in mind very much more advanced than those of the convention at the time. They had a very different attitude to the drafters of the Offences Against the State Act, and a bitter war of words was exchanged between the two groups.

"New archival material shows that the drafting team had a very, very clear agenda and were allowed by de Valera to get on with it. The Department of Justice was totally excluded from it, and complained bitterly about its liberality."

Mr Hogan said he welcomed the incorporation of the convention, but it gave little more protection to human rights than already existed under the Constitution.

There would be no declarations of invalidity of legislation with retroactive effect, and only "pitiful" damages.