Irish Criminal Trials and European Legal Culture: A Backdrop to Brexit

AuthorLiz Heffernan
Published date01 April 2021
Date01 April 2021
Subject MatterArticles
CLJ977530 144..157 Article
The Journal of Criminal Law
2021, Vol. 85(2) 144–157
Irish Criminal Trials and
ª The Author(s) 2020
Article reuse guidelines:
European Legal Culture:
DOI: 10.1177/0022018320977530
A Backdrop to Brexit
Liz Heffernan
Trinity College Dublin, Ireland
This paper explores select themes relating to legal culture in European criminal justice post-
Brexit by focusing on aspects of the common law trial process in the Irish courts. The
incorporation of EU law and the ECHR within the domestic legal order has necessitated the
nurturing of a constructive co-existence with the country’s longer standing constitutional and
common law traditions. Ireland and the United Kingdom have collaborated closely as common
law Member States and the departure of the UK from the EU will affect Ireland’s position in EU
criminal justice in many and varied ways. Using the examples of victim participation in criminal
trials and pre-trial access of suspects to legal assistance, the paper seeks to illuminate trends of
consonance and dissonance in Ireland’s relationship with European law. Drawing on the shared
commitment to the protection of fundamental rights in the EU and the ECHR, the discussion
reflects on some of the longer term implications of Brexit for the common law presence in
European criminal legal culture.
Ireland, common law trial, EU criminal law, ECHR, victim participation, pre-trial legal
assistance, legal culture
Brexit will affect criminal law and procedure in a multitude of ways, some obvious, others oblique and
none yet fully grasped much less resolved. Whether, when and how the UK will relinquish its rights and
obligations under EU criminal law is a conundrum that seems likely to generate a fragmented, issue-by-
issue response. Attention to date has centred on immediate concerns such as cross-border security, the
sharing of information between police forces, the fate of the European Arrest Warrant, and the re-
imagining of UK participation in the panoply of cooperative initiatives that were characteristic of its
membership of the EU. Whereas the UK is uniquely caught in the legal quagmire, Brexit will reverberate
Corresponding author:
Liz Heffernan, Associate Professor and Fellow, Trinity College Dublin, Dublin 2, Ireland.

throughout the EU, affecting the rights of individuals and complicating the work of state agencies,
criminal justice professionals, judges and lawyers. As among the Member States, Ireland will be dis-
proportionately impacted, given its close relationship with the UK, shared border, common travel area
and mutual common law heritage.
The focus of the present paper is the less obvious context of the criminal trial process and, specif-
ically, the nature and extent of increasing European influence on the law of criminal evidence. The
contribution of the EU and the ECHR to the conduct of criminal trials in the UK and Ireland has been
gradual and subtle yet is now clearly appreciable. Europe’s role post-Brexit is controversial because it
engages the vexed question of the ongoing influence of the CJEU and the ECtHR in the shaping of rights,
rules and procedures in the UK and beyond. In order to assess the implications of Brexit, it is necessary
to analyse the relationships between these intersecting systems of law and the nuances that have attended
the incorporation of European norms in the domestic legal order.
The present discussion considers some of these questions from the standpoint of the Irish criminal law
trial. Through an exploration of recent developments such as victim participation and the access of
suspects to legal assistance, it seeks to illuminate the significance of Ireland’s constitutional and com-
mon law traditions in its interaction with the EU and the ECHR. The paper opens with a brief overview
of the Irish common law trial process before moving on to consider the incorporation of EU criminal law
and the ECHR within the national system.
Part 1: The Irish Common Law Trial Process
Within the common law world, each jurisdiction is personified by its own distinct combination of
characteristics. The criminal trial process in Ireland is grounded in the Anglo-American adversarial
tradition and was shaped historically by the English common law.1 Ireland is a democratic republic and
the fundamental rules of society, governance and the rule of law are set down in Bunreacht na h ´
the written constitution of 1937. An original signatory to the European Convention on Human Rights,
Ireland joined the European Communities in 1973 in the company of the UK and Denmark.
The essentials of the English criminal process were carried over into the Irish legal system when the
State gained independence in 1922 and the practice of following the English lead both legislatively and
judicially on criminal law matters persisted long after that. The Irish legal system has since stepped out
of the English shadow. Drawing on the Irish Constitution and looking beyond the UK to broader
international experience, the legislature and courts have forged an independent path to the prosecution
and adjudication of crime. UK law has been a natural starting point for inspiration on the development
and reform of the Irish law but today it forms part of a more eclectic miasma of domestic and compara-
tive influences. It is also noteworthy that whereas the UK parliament has legislated expansively in the
field of criminal evidence, the Irish parliament has not followed suit. Fundamental issues, such as
hearsay and evidence relating to character, continue to be governed primarily by common law doctrine,
leading to the paradox that Ireland is in some respects a more faithful adherent to the paradigm of the
traditional common law trial.2
As in other common law countries, proceedings in Irish courts are shaped and led by the parties who
gather, select and present the evidence on which a verdict rests. The jury trial provides the framework for
criminal adjudication and influences practice and procedure even in non-jury cases, notably trials for
1. M Damaˇska, ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study’ (1972) 121 U
Pa L Rev 506; JH Langbein, The Origins of Adversary Criminal Trials (OUP, Oxford 2003); JD Jackson and SJ Summers, The
Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions (CUP, Cambridge 2012) ch 2.
2. See, generally, L Heffernan, Evidence in Criminal Trials (2nd edn Bloomsbury Professional, Dublin 2020); C Fennell, The Law
of Evidence in Ireland (4th edn Bloomsbury Professional, Dublin 2020); D McGrath, Evidence (2nd edn Thomson Round Hall,
Dublin 2014). See also Law Reform Commission, ‘Report on Consolidation and Reform of Aspects of the Law of Evidence’
(LRC 117-2016).

The Journal of Criminal Law 85(2)
terrorist and gang-related crimes in the Special Criminal Court. The development and continued
vibrancy of exclusionary evidentiary rules reflects a historical pre-occupation with judges protecting
juries from information that may be irrelevant, unreliable or prejudicial. In Ireland it dovetails with the
common law, constitutional and human rights imperatives of safeguarding due process and accurate
adjudication. The common law structure contrasts with traditions in continental European jurisdictions
which are grounded in the principle of freedom of proof and the role of judges in gathering evidence and
adjudicating facts. The absence of juries is a defining characteristic of many such systems and because
judges typically decide both whether evidence can be used and whether it supports the criminal charge,
the admissibility of evidence is less pivotal than in the common law trial.3
Another traditional characteristic of common law adversarial systems is the dominance of the trial
phase in legal proceedings. In Ireland, the plenary trial remains the setting for the dominant procedural
and evidentiary steps and the courtroom the venue for the hearing and of evidence (principally the
recording of testimony viva voce before the finder of fact). The concentration of energy and decision-
making in and around the trial itself has been diluted in other parts of the common law world by
increased recourse to case management and pre-trial hearings. There has been no systematic develop-
ment of pre-trial procedures in this vein in Ireland and the emphasis on the trial stage is ripe for reform.
Here too, the Irish approach contrasts starkly with continental European practices which make liberal
provision for the presentation of evidence during the investigative pre-trial phase.4
The Irish trial process operates within a vibrant framework established by a written constitution and
its fundamental rights guarantees including the entitlement of a criminal defendant to a trial ‘in due
course of law’.5 Although fair procedure was also a historical common law value and serves as a constant
theme in contemporary jurisprudence, trials and appeals are framed first and foremost by reference to the
constitutional imperative. The Constitution has diminished judicial reliance on English common law
authority and the embrace by lawyers and judges of comparative constitutional experience is emblematic
of a general trend to explore international best practice. Looking outward is all the more imperative
given that the development of criminal law and procedure is constrained by the country’s small...

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