Presumption Of Innocence

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From left: Paul Anthony McDermott SC; Mass Card

During a discussion on RTE Radio 1’s Today with Sean O’Rourke surrounding the controversial bail granted to a taxi driver accused of sexual assault Senior Counsel and lecturer in Law at UCD Paul Anthony McDermott was crystal clear:

“We have the concept of bail because of the presumption of innocence. Under our system nobody can decide you have committed a crime other than the jury. So, not the media, not the Gardai, not anyone. It is only a jury.

So we take the view that unless and until twelve members of the public decide you have committed a crime the system works on the basis that you didn’t commit it.

That is regarded as a constitutional right but even if we amended the constitution in the morning the European Convention on Human Rights to which Ireland is a party also requires a presumption of innocence.”

I’m sure Mr. McDermott will be greatly surprised to learn that his statement is incorrect.

The Irish state does not universally extend the presumption of innocence to its citizens.

There is one very specific crime that the State considers to be so heinous that those found guilty are not just liable to a prison sentence of ten years or a €300,000 fine but are also deprived of the presumption of innocence principle.

That crime is the selling of even one Mass card without the written permission of a Catholic bishop.

There are many who will find it difficult to believe that such a law could exist in a modern democratic republic; so here it is in black and white.

Charities Act 2009

99: [1] A person who sells a Mass card other than pursuant to an arrangement with a recognised person shall be guilty of an offence.

[2] In proceedings for an offence under this section it shall be presumed, until the contrary is proved on the balance of probabilities, that the sale of the Mass card to which the alleged offence relates was not done pursuant to an arrangement with a recognised person.

I am not a legal person so I am open to challenge on my interpretation of this law; which is:

A person who sells a Mass card without the permission of a Catholic bishop will be presumed guilty until he/she can prove the contrary.

The crux of the presumption of innocence principle is very straighforward:

It is not for the accused to establish his/her innocence. It is for the prosecution to prove the guilt of the accused.

Article 99 [1] turns this principle on its head.

Therefore; in Ireland:

The presumption of innocence that is implicit in Article 31.1 of the Irish Constitution does not apply to those accused of this crime.

The presumption of innocence under Article 6 of the European Convention of Human Rights does not apply to those accused of this crime.

The presumption of innocence under Article 11 of the United Nations Universal Declaration of Human Rights does not apply to those accused of this crime.

To my knowledge nobody from the legal profession has challenged this draconian law so it is reasonable to assume that, for that profession, there is no difficulty.

It is, however, reasonable to expect members of the legal profession such as Mr. McDermott to include this exemption to the presumption of innocence principle when delivering an opinion on the issue.

Anthony Sheridan is freelance journalists and blogs at PublicEnquiry.

Rollingnews

30 thoughts on “Presumption Of Innocence

  1. David Lennon

    “To my knowledge nobody from the legal profession has challenged this draconian law so it is reasonable to assume that, for that profession, there is no difficulty.”

    – to challenge the law, once enacted, one would need standing to do so. Thus only someone effected by the law could do so. I suspect you will have some difficulty finding someone who has been, or is to be, prosecuted!

    1. George

      I don’t think that is true in a situation where the law violates international legal obligations.

    2. Mickey Twopints

      I’m so outraged by this that I’m running a cleaning cycle on the colour printer at this very moment. Armed with a box of home printed mass cards, I’m going to set up a table outside the bishops house and offer them for sale at an unholy discount.

      Who’s with me?

  2. Dr.Fart MD

    that took quite a turn. started out like it was about the lenient sentence of a three times sexual assaulter, then BAM! nope, its about an old law on selling mass cards.

        1. curmudgeon

          Yep blasphemy law was a 2009 statute too.

          I like remind Fianna Fail voters every time I can about that one.

  3. phil

    That law has to exist because the Religious in Ireland are very vulnerable , some would unfairly describe them as mentally challenged, there needs to be very special laws to protect them from unscrupulous agents of Satan …

  4. Ted Bovis

    Quite the self-own that the blogger set up there.

    Reverse-onus offences have existed in criminal law for some time. The TL;DR version of them (and the Supreme Court has considered them on many occasions) is that they generally don’t interfere with the presumption of innocence.

    In fact this particular statutory provision has been tested in the High Court and found to be constitutional. An appeal to the Supreme Court was withdrawn.

    1. George

      The argument he makes is not about the constitutionality of the law. It is about its compatibility with the European Convention on Human Rights. The relevant court that could decide on this would be European Court of Human Rights.

  5. Andyourpointiswhatexactly?

    It was the only part of that Act that was enacted initially. Coz of the moneys.

  6. eoin

    Where do you even start? What’s the opposite of colossus? Pygmy, runt? Anyway, what that UCD legal pygmy says is, not for the first time, hogwash. After you’ve been charged, but before you’ve been convicted, you can be subject to restrictions on your freedoms. You might be remanded in custody which means your freedom is taken away from you. You might be required to sign in at a Garda station once a day and to be contactable by mobile 24/7. You might be prohibited from contacting certain individuals. All without a conviction, all with the presumption of innocence. In the case of the taxi driver charged with sexual assault, the judge could have remanded the driver in custody or he could have ordered him to cease working as a taxi driver, which is what the fuss was about. The judge has the discretion, he didn’t use it and there was uproar. Bad judicial ruling but we should be getting used to them.

    As for the mass cards, I think Anthony S is conflating the two subsections above. The first subsection is setting out when you commit an offence and that’s common to all laws. You commit an offence if…. As for part 2, that’s merely a presumption as to part of the offence. And I’d be fairly sure other offences carry similar presumptions eg the banning of the purchase of sex, Criminal Law (Sexual Offences) Act 2017, “In proceedings for an offence under this section, it shall be presumed, unless the contrary is shown, that the defendant knew or was reckless as to whether the person against whom the offence is alleged to have been committed was a protected person.”

    And, as for challenges by the legal profession, I’m still waiting for someone at the Special Criminal Court to challenge the word of a Garda above the rank of whatever which might be sufficient to convict you, just on their say-so. Since the Charleton Tribunal made adverse findings about a Commissioner no less and whats-his-rank Taylor, and after the recent arrests of two senior Gardai for corruption, surely what they’re doing at the SCC is unsafe.

    1. Qwerty123

      Wow, you have really surpassed yourself on the stupidity stakes there. Well done. Google ‘Bail’ and ‘Bail conditions’ Bail is based on this presumption.

      Re the SSC – well SF supporters are no fan of the SSC, but without it some dangerous people would be on the streets due to witness and jury intimidation.

      I assume you are not a fan of the CAB also?

  7. Barry the Hatchet

    This is not a removal of the presumption of innocence. This is a rebuttable evidential presumption. There are loads of these on the statute book. The relationship between these statutory presumptions and the presumption of innocence has been heavily litigated before the Supreme Court. McDermott’s comments are entirely correct.

    1. b

      this ^

      there are many examples of this in law. they are called strict liability offences. I’d back Paul McDermott heads up in a legal debate anytime with this blogger

      1. Barry the Hatchet

        Strict liability is a different concept to an evidential presumption, b. It relates to the requirement to prove mens rea. :)

        1. b

          ha. as the boy with the orthopedic shoes says….it is 20 years since I sat in a law lecture in my defence

          just goes to show, ignorance of the law is not an excuse to an offence, a comment or a blog.

    1. Otis Blue

      The Old Boy’s contributions call to mind those of the much missed Legal Coffee Drinker.

  8. A Person

    Under planning laws, in the event of an enforcement action by the planning authority or indeed any individual, you are also presumed guilty of an offence unless you can prove you have the appropriate permission to carry out the development i.e. you have to prove innocence. I’m sure there are loads of other laws like this.

  9. newsjustin

    Fair play to legally literate Broadsheet commenters for address this post. In fairness, he did say, “I am open to challenge, ” on this.

  10. Porter

    This is among on the strangest pieces posted in the many years of Broadsheet.

    Where I thought this post was going to go was to refer to the 16th amendment to Constitution:

    “Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person.”

    But to the main crux of the post:

    There was a(n unsuccessful) constitutional challenge made against the section 99 by mass card Thomas McNally in 2009. The plaintiff’s SC was Gerard Hogan who is Ireland’s leading constitutional lawyer and academic. There was a detailed discussion of constitutional, ECHR and criminal law by Justice John MacMenamin, now of the Supreme Court.

    So yes, it has been challenged.

    Should McDermott have detailed the exception of reversed burdens? Maybe, but that was irrelevant to plainly describing the purpose and rationale of bail.

    Judgment here: https://www.bailii.org/ie/cases/IEHC/2009/H573.html
    RTE report: https://www.rte.ie/news/2009/1217/125512-church/

    McNally has made a few trips to the courts over the years: https://www.irishtimes.com/news/crime-and-law/courts/mass-card-salesman-jailed-for-child-porn-has-conviction-quashed-1.2018594

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