AS TO THE ADMISSIBILITY OF
Application No. 23456/94
by Leonard HARDY
against Ireland
The European Commission of Human Rights (First Chamber) sitting
in private on 29 June 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 September 1994
by Leonard HARDY against Ireland and registered on 14 February 1994
under file No. 23456/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen, born in 1961 and is currently
in Portlaoise prison, Ireland.
The applicant is represented by Mr. Frank McDonnell, a solicitor
practising in County Louth, Ireland.
The facts of this case, as submitted by the applicant, may be
summarised as follows.
On 12 July 1989 the applicant arrived in Rosslare, Ireland having
travelled from Cherbourg, France. He was stopped at the customs post
and his bags were searched. Three pounds of Sodium Chlorate and ten
mercury tilt switches were found in a bag the applicant was carrying.
The applicant was subsequently arrested on suspicion of having
committed an offence under Section 4 of the Explosive Substances Act
1883 ("the 1883 Act"), the relevant provisions of which are:
"Any person who .... knowingly has in his possession ..... any
explosive substance, under such circumstances as to give rise to
a reasonable suspicion that he ..... does not have it in his
possession .... for a lawful object, shall, unless he can show
that he .... had it in his possession .... for a lawful object,
be guilty of a felony......"
On 16 February 1990 the applicant was convicted by the Special
Criminal Court of an offence contrary to the above Section 4 of the
1883 Act and was sentenced to five years penal servitude on
22 February 1990.
The presiding judge in the Special Criminal Court, in his
judgment dated 16 February 1990, noted that the elements of the offence
outlined in the above Section 4 of the 1883 Act, to be proven beyond
all reasonable doubt by the prosecution, are:
-that the accused has possession of explosive substances (as
defined statutorily)
-knowingly
-under such circumstances as to give rise to a reasonable
suspicion that he does not have the substances in his possession
for a lawful object.
The judge went on to accept, from the evidence adduced by the
prosecution, that all of those elements had in fact been proven by the
prosecution beyond all reasonable doubt. In concluding that the
applicant did not have these substances in his possession for a lawful
object, the judge made particular reference to the facts (unchallenged
by the applicant) that the applicant was travelling on a false
passport, was found in possession of both Sodium Chlorate and the
mercury tilt switches, and subsequently attempted to evade detention.
The applicant appealed to the Court of Criminal Appeal. His
appeal was disallowed on 22 June 1992.
The applicant then challenged, inter alia, the constitutionality
of Section 4 of the 1883 Act before the High Court claiming that the
section was inconsistent with a fundamental principle of Irish criminal
law, namely the presumption of innocence, and as such was
unconstitutional. The High Court disallowed the applicant's challenge.
Mr. Justice Flood of the High Court in page 10 of his judgment
of the 10 September 1992, while not commenting specifically on the
various elements of the offence under Section 4 of the 1883 Act
(outlined above), noted the following:
"In the first instance, in my opinion what has been described as
"the persuasive burden of proof" in Irish law always remains upon
the State. Secondly, where an evidential burden may be
transferred in relation to something which is peculiarly within
the knowledge of an accused person, the maximum obligation cast
upon the accused in Irish law, is to raise a doubt - a doubt of
substance - in relation to the prosecution case."
The issue of the alleged reversal of the presumption of innocence
became the core argument of the applicant on appeal to the Supreme
Court, which also found against the applicant in three separate
judgments delivered on 18 March 1993.
In particular Mr. Justice Egan of the Supreme Court in page 4 of
his judgment of 18 March 1993 noted the elements of the offence under
Section 4 of the 1883 Act (outlined above) and commented as follows:
"If, however, all the above ingredients are proved beyond all
reasonable doubt the accused must be convicted unless "he can
show that he .... had it in his possession .... for a lawful
object". Prima facie these words place an onus on the accused but
they are in a saving or excusatory context and this is of
relevance. Insanity, for instance, is something which must be
established by an accused person in a criminal prosecution if he
wishes to rely on it."
COMPLAINTS
The applicant complains that Section 4 of the 1883 Act, under
which he was convicted, effectively removes the presumption of
innocence to which he is entitled under Article 6 para. 2 of the
Convention.
THE LAW
The applicant argues that the alleged removal of the presumption
of innocence by Section 4 of the 1883 Act violates Article 6 para. 2
(Art. 6-2) of the Convention.
Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission recalls that the Convention does not prohibit
presumptions of fact and law in principle. Rather, Article 6 para. 2
(Art. 6-2) requires States to confine presumptions of fact and law,
provided for in the criminal law, within reasonable limits which take
into account the importance of what is at stake and maintain the rights
of the defence. The Commission also recalls that it must therefore
consider whether such reasonable limits were applied to the applicant
in a manner compatible with the presumption of innocence (Eur.Court
H.R., Salabiaku judgment of 7 October 1988, Series A no. 141,
pp. 15-18, paras. 28-30).
The Commission notes that the presiding judge in the Special
Criminal Court, in his judgement dated 16 February 1990, accepted that
the onus of proof was on the prosecution to establish beyond all
reasonable doubt all of the elements of the offence.
The Commission also notes that the judge went on to outline the
elements of the offence under Section 4 of the 1883 Act (outlined
above) and accepted, from the evidence adduced by the prosecution, that
all of those elements had in fact been proven by the prosecution beyond
all reasonable doubt. In concluding that the applicant did not have
these substances in his possession for a lawful object, the judge made
particular reference to the facts (unchallenged by the applicant) that
the applicant was travelling on a false passport, was found in
possession of both Sodium Chlorate and the mercury tilt switches, and
subsequently attempted to evade detention.
The Commission further notes that, in the context of the
constitutional challenge, the High Court and the Supreme Court
emphasised that under Irish criminal law the persuasive burden of proof
(that is, beyond all reasonable doubt) remains on the State and where
an evidential burden of proof is transferred to the accused (as in
Section 4 of the 1883 Act) it is in a "saving or excusatory context"
and the maximum obligation on the accused in such circumstances is
merely to raise a doubt of substance in relation to the prosecution's
case.
The Commission therefore finds that the applicant's conviction
under Section 4 of the 1883 Act does not conflict with the presumption
of innocence enshrined in Article 6 para. 2 (Art. 6-2) of the
Convention. It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy