Supreme Court dismisses appeal holding s. 41(3) Criminal Justice Act 1999 does not violate ECHR Article 6.2

THE SUPREME COURT

Appeal No. 268/13

Denham C.J.

Murray J.

Hardiman J.

O’Donnell J.

MacMenamin J.

Between/

SAM McNULTY

Appellant

and

IRELAND AND THE ATTORNEY GENERAL

Respondents

and

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE IRISH HUMAN RIGHTS COMMISSION

Notice Parties

Judgment delivered on the 21st January, 2015 by Denham C.J.

1. This appeal raises an issue of statutory interpretation.

2. At issue is the meaning of s. 41(3) of the Criminal Justice Act, 1999, as amended, which Act is referred to as “the Act of 1999”.

3. Section 41 of the Act of 1999, provides:-

“(1) Without prejudice to any provision made by any other enactment or rule of law, a person—

(a) who (whether inside or outside the State) harms or threatens, menaces or in any other way

intimidates or puts in fear another person who is assisting in the investigation by the Garda Síochána of

an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence,

or a member of his or her family, or his or her civil partner within the meaning of the Civil Partnership

and Certain Rights and Obligations of Cohabitants Act 2010,

(b) with the intention thereby of causing the investigation or the course of justice to be obstructed,

perverted or interfered with, a member of his or her family,

shall be guilty of an offence.

…

(3) In proceedings for an offence under this section, proof to the satisfaction of the court or jury, as the case may

be, that the accused did an act referred to in subsection (1)(a) shall be evidence that the act was done with the

intention required by subsection (1)(b).”

(5) A person guilty of an offence under this section shall be liable –

(a) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 12

months or both, and

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 15 years or both.”

4. Persons identified in s. 41(1), i.e. a person assisting in the investigation by the Garda Síochána of an offence, or a witness or

potential witness or a juror or potential juror, or a member of his or her family, or his or her civil partner within the meaning of the Civil

Partnership and Certain Rights and Obligations of Cohabitants Act, 2010, are referred to in this judgment as a “classified person”.

5. This is an appeal by Mr. McNulty, the plaintiff/appellant, referred to as “the appellant”, from the judgment of the High Court

(Gilligan J.) delivered on the 31st May, 2013, [2013] IEHC 357, which rejected the claim that s. 41(3) of the Act of 1999 is repugnant

to the provisions of the Constitution or incompatible with the provisions of the European Convention on Human Rights.

Background

6. The appellant is charged that on the 20th November, 2011, in Tallaght, in the District Court area Dublin Metropolitan District, he

threatened, menaced, intimidated, put in fear, Edward Jones, a witness in proceedings for an offence with the intention of causing

the course of justice to be obstructed, perverted or interfered with, contrary to s. 41(1) and s. 41(5) of the Act of 1999.

7. Edward Jones has been in a relationship with Michelle McNulty, who was married to the appellant for five years from 2004 to 2009.

8. At the time of the alleged offence there was a prosecution pending against the appellant arising out of an assault allegedly

perpetrated on Edward Jones on the 17th October, 2010, about which Edward Jones made a complaint to the Garda Síochána. The

first charge in respect of this offence was struck out on the 6th November, 2011, and the appellant was re-charged with the offence

on the 23rd November, 2011.

9. The appellant brought plenary proceedings seeking a declaration that s. 41 of the Act of 1999 was invalid having regard to Article

38 of the Constitution of Ireland, or that s. 41(3) was invalid having regard to Article 38 of the Constitution. In the alternative, he

seeks a declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003, that s. 41(3) of the Act of 1999 is

incompatible with Article 6 of the European Convention on human rights. The appellant also sought a number of ancillary orders.

10. In paragraph 10 of the Statement of Claim the alleged facts are described as follows:-

“The [appellant] was prosecuted for an alleged assault against his former partner’s current partner, Mr. Edward Jones.

This charge was struck out on the 6th November, 2011. The allegation against the [appellant] said to Mr. Jones ‘Come

out here and I’ll give you a proper hiding. I didn’t give you enough the last time’. There is no allegation of any intention to

pervert the course of justice by such comments. The [appellant] was subsequently recharged and ultimately convicted of

the alleged assault, which case is currently under appeal before Dublin Circuit Court.”

11. The respondents, Ireland and the Attorney General, and the first named Notice Party, the Director of Public Prosecutions, in

written submissions to this Court, stated that they do not accept that the appellant did not intend to interfere with the course of

justice or that threat, menace or words of intimidation are not capable of evidencing such an intention.

The High Court

12. The High Court (Gilligan J.) upheld the constitutionality of the provisions, stating at paras. 38 – 45 that:-

“38. Section 41(3) of the 1999 Act does not provide, as submitted by the [appellant], that the evidence is conclusive; all

it does is provide that the act of harming, threatening, menacing or putting in fear ‘shall be evidence’ that the act was

done with the intention required. There is no onus on any court to accept that evidence. There is no reference in the

section to the burden of proof altering or the presumption of innocence being set aside. There is nothing in the section

that provides for a conclusive situation or that it is incumbent on the judge or jury to accept the evidence.

39. Further s. 41(3) does not oblige the court to draw any inferences but the court has discretion to do so. As the

section stands, it provides for the court to evaluate and assess the significance of the evidence before it. It does not

infringe on the accused’s right to the presumption of innocence.

40. Similarly the Supreme Court in Hardy in dismissing the appeal held:-

‘…in the course of a trial for an offence under s. 4, sub-s. 1 of the Explosive Substances Act, 1883, the prosecution

remained under an obligation to prove all the elements of the offence beyond a reasonable doubt; the principle that an

accused must be tried in due course of law was not infringed by a statutory provision which permitted the drawing of

inferences from facts proved beyond a reasonable doubt by the prosecution’.

41. I accept the submission of Mr. Callanan that the burden of proving, beyond reasonable doubt, remains on the

prosecution throughout any action taken under the legislation and s. 41(3) of the 1999 Act merely provides that an

accused may have an evidentiary burden to displace where prima facie there is evidence pointing to his guilt.

42. Section 41(3) of the Criminal Justice Act, 1999 does not discharge the prosecution of the onus to prove the act

alleged beyond reasonable doubt. Further, nothing in the section invalidates the right to a trial in due course of law.

Hederman J. in Hardy stated:-

‘…this analysis complies with our well-established criminal law jurisprudence in regard to having trials in due course of law.

That constitutional requirement applies whether the offence is made an offence under a pre or post constitutional

enactment. It protects the presumption of innocence; it requires that the prosecution should prove its case beyond all

reasonable doubt; but it does not prohibit that, in the course of the case, once certain facts are established, inferences

may not be drawn from those facts and I include in that the entitlement to do this by way of documentary evidence.

What is kept in place, however, is the essential requirement that at the end of the trial and before a verdict can be

entered the prosecution must show that it has proved its case beyond all reasonable doubt.’

43. It is clear from the decision in Rock that the provisions under s. 41(3) of the Criminal Justice Act, 1999 do not oblige a

court to draw inferences – the court retains discretion to do so. The court has an obligation to ensure that no improper or

unfair inferences are drawn. I am of the view that there is nothing contained in s. 41(3) of the 1999 Act that would limit

this obligation.

44. Further the court has an inherent obligation to conduct a trial in a manner consistent with the plaintiff’s constitutional

rights, which would include allowing him to rebut any evidence offered against him.

45. On the basis of the contentions submitted on the plaintiff’s behalf, I am not ‘satisfied that s. 41 of the Criminal Justice

Act 1999 is incompatible with Article 38 of the Constitution.’”

Notice of Appeal

13. The appellant has brought an appeal against the order and judgment of the High Court, filing eight grounds of appeal, as follows:-

(i) The learned trial judge erred in fact and in law in determining that s. 41(3) of the Criminal Justice Act, 1999, is

not unconstitutional and/or incompatible with the European Convention on Human Rights.

(ii) The learned trial judge erred in fact and in law in failing to address the central issue raised by the appellant,

namely that the effect of s. 41(3) is to permit the prosecution and conviction of a person for a serious criminal

offence without the need for the prosecution to adduce any actual evidence of mens rea.

(iii) The learned trial judge erred in fact and law in determining that s.41(3) is not mandatory in providing that proof

of the matters set out in s.41(1)(a) shall be evidence of the matters set out in s. 41(1)(b) and/or that there is no

requirement to treat the same as evidence.

(iv) The learned trial judge erred in fact and in law in determining that s. 41(3) does not oblige a court to draw any

inferences but the court has discretion to do so. As a matter of law, a trial judge is entitled to draw such inferences

as appear reasonable from the evidence, so to read s.41 (3) as merely re-stating this renders the section otiose.

(v) The learned trial judge erred in fact and in law in determining that s. 41(3) merely provides that an accused

person may have an evidentiary burden to displace where prima facie there is evidence pointing to his guilty in

circumstances where the issue raised by the appellant is that the prosecution do have to raise a prima facie case

of mens rea in order to secure a conviction. In interpreting this section as merely creating an evidential burden

based on a prima facie case, the learned trial judge conflated the actus reus and the mens rea of the offence

which is created by statute.

(vi) The learned trial judge erred in fact and in law in determining that s. 41 (3) does not discharge the prosecution

of proving the act beyond reasonable doubt in circumstances where a conviction is possible in the absence of any

prima facie evidence pointing to the intention as specified in s. 41(1)(b), other than that evidence which is created

by reason of s. 41(3).

(vii) The learned trial judge erred in fact and in law in determining that s. 41(3) does not oblige a court to draw

inferences, notwithstanding the mandatory nature of the wording of the section. Further, the learned trial judge

erred in holding that the appellant submitted the evidence raised by s. 41(3) was conclusive- the appellant’s

submission was that s. 41(3) requires proof of the matters at s. 41(1)(a) to amount to evidence of s. 41(1)(b) thus

there is automatically evidence of mens rea once proof of actus reus had been established.

(viii) The learned trial judge erred in fact and in law in determining that the effect of s.41(3) is rational and/or

reasonable and/or proportionate having regard to the appellant’s right to a fair trial.

Submissions on behalf of the appellant

14. The gravamen of the appellant’s case is that s. 41 of the Act of 1999, and in particular subsection (3), discharges the

prosecution of its duty to prove the case beyond reasonable doubt. Specifically it was submitted that the prosecution is relieved of

the requirement to provide any actual evidence of an intention to pervert or interfere with the course of justice, and that they need

only prove that a threat was made to a classified person under s. 41(1) and, without more, they can secure a conviction.

15. It was submitted by the appellant that pursuant to s. 40(3) of the Act of 1999, proof of the actus reus of the threat is by reason

thereof evidence of the specific mens rea and, of itself, is capable of amounting to sufficient evidence for a conviction.

16. The appellant submitted that at issue in this case was not a mere evidential burden being placed on the appellant, but the

omission of the requirement to prove an essential element of the offence, in this case the mens rea of intention to pervert the course

of justice. It was submitted that the section goes far beyond a mere evidential presumption that can be rebutted and in fact

discharges the onus to prove half of the offence.

17. The appellant submitted that should the Court not accept the foregoing, and finds that the section creates no more than an

evidential presumption, the decisions of O’Leary v. Attorney General [1993] 1 I.R. 254 and Hardy v. Ireland [1994] 2 I.R. 550 are

distinguishable from the present case.

18. It was submitted that s. 41(3) of the Act of 1999 amounts to a constitutional interference with the appellant’s right to the

presumption of innocence.

Submissions on behalf of the respondents

19. It was submitted by the respondents that s. 41(3) of the Act of 1999, as amended, enjoys a presumption of constitutionality.

20. It was submitted further that s. 41(3) does not discharge the burden of proof placed on the prosecution. The respondents

submitted that the impugned provision merely gives a statutory underpinning to the drawing of an inference of an intention to

obstruct the course of justice. The respondents submitted that s. 41(3) of the Act of 1999, as amended, provides that proof of the

doing by an accused of the act referred to in subsection (1)(a) “shall be evidence” that the act was done with the intention required

by subsection (1)(b). It does not, it was submitted, alter or shift the burden of proof required for a successful prosecution.

21. The respondents’ position was that the provision does not remove the need to prove mens rea or the required factual

constituents of an offence. It was submitted that where a person knows that a person is a witness or juror or a potential witness or

potential juror, and threatens, harms or menaces that person, the fact of the act may be regarded as evidence of an intention to

obstruct the course of justice.

22. It was submitted by the respondents that the section does not render a conviction mandatory. It would be sufficient for an

accused to raise a reasonable doubt in relation to the required intention to defeat section 41(3).

Decision

The Presumption of Innocence

23. In a criminal trial the burden of proof is on the prosecution to prove all elements of the offence beyond all reasonable doubt. This

principle is part of the constitutional protection of the presumption of innocence which is implicit in Article 38.1 of the Constitution,

requiring as it does, that no person shall be tried on any criminal charge save in due course of law. As Costello J. stated in O’Leary v.

The Attorney General [1993] 1 I.R. 102 at p.107:-

“…[I]t has been for so long a fundamental postulate of every criminal trial in this country that the accused was presumed

to be innocent of the offence with which he was charged that a criminal trial held otherwise than in accordance with this

presumption would, prima facie, be one which was not held in due course of law.”

24. Some statutory provisions permit adverse inferences to be drawn from a failure to account for certain matters: Hardy v. Ireland

[1994] 2 I.R. 550; O’Leary v. The Attorney General [1995] 1 I.R. 254 and Rock v. Ireland [1997] 3 I.R. 484.

25. The plaintiff in O’Leary v. The Attorney General was convicted of membership of an unlawful organisation pursuant to s. 3(2) of

the Offences Against the State (Amendment) Act, 1972, and s. 24 of the Offences Against the State Act, 1939, which provide for

the drawing of certain inferences on the basis of particular evidence. The constitutionality of those provisions was unsuccessfully

challenged both in the High Court and, on appeal, in this Court. Costello J. in the High Court distinguished a legal burden of proof from

an evidential burden of proof. The evidential burden of proof is defined in O’Leary as the burden in a criminal trial placed on the

prosecution of “adducing evidence to establish a case against an accused.” Costello J. continued to state at p. 109:-

“In criminal cases the prosecution discharges this evidential burden by adducing sufficient evidence to raise a ‘prima facie’

case against an accused. It can then be said than an evidential burden has been cast on the accused. But the shifting of

the evidential burden does not discharge the legal burden of proof which at all time rests on the prosecution. The

accused may elect not to call any evidence and will be entitled to an acquittal if the evidence adduced does not establish

his or her guilt beyond a reasonable doubt. Therefore if a statute is to be construed as merely shifting the evidential

burden no constitutional infringement occurs.

[…]

[I]f the effect of the statute is that the court must convict an accused should he or she fail to adduce exculpatory

evidence then its effect is to shift the legal burden of proof (thus involving a possible breach of the accused’s

constitutional rights) whereas if its effect is that notwithstanding its terms the accused may be acquitted even though

he calls no evidence because the statute has not discharged the prosecution from establishing the accused’s guilt beyond

a reasonable doubt then constitutional invalidity could arise.”

26. The finding of the High Court in that case, as to the constitutionality of s. 24 of the Offences Against the State Act, 1939, was

unsuccessfully appealed to this Court.

This Court held that the presumption of innocence in a criminal trial was implicit in the requirements of Article 38 of the Constitution.

Examining whether the terms of s. 24 of the Act of 1939 breached the principle of the presumption of innocence, the Court first

applied the principles as laid down in East Donegal Co-Operative Livestock Marts Ltd. v. The Attorney General [1970] I.R. 317, i.e.

the presumption of constitutionality in relation to the statute and that a statute shall not be invalid where it is possible to construe it

in accordance with the Constitution. Construing the section accordingly, the Court in O’Leary held that possession of an incriminating

document amounted to evidence, rather than proof, of membership of an unlawful organisation, and that the probative value of such

possession may be undermined in a number of ways, including cross-examination. Thus, while the evidentiary burden shifted to the

accused, the legal burden did not, and the presumption of innocence was not displaced.

27. O’Flaherty J. in O’Leary v. The Attorney General [1995] 1 I.R. 254 at p. 266 stated:-

“Courts, whether comprising a judge sitting with a jury or a judge or judges only, will not act as automatons in the

assessment of evidence… [T]he court must always approach its task in a responsible manner and have proper regard to

the paramount place that the presumption of innocence occupies in any criminal trial.” (emphasis added)

28. The constitutionality of provisions which engage the presumption of innocence was also considered by this Court in Hardy v.

Ireland [1994] 2 I.R. 550. At issue in Hardy was whether s.4 of the Explosive Substances Act, 1883, which provided that an accused

person may be convicted on proof of certain facts “unless he can show that he made it or had it in his possession, or under his

control for a lawful object” was valid having regard the provisions of the Constitution.

29. The Court held that the prosecution still had to prove the case against the accused beyond reasonable doubt. It was held that

under the section the accused had to have the substance in his possession knowingly; and in such circumstances as to give rise to a

reasonable suspicion that he did not have it in his possession for a lawful object which meant that there is an onus on the

prosecution to then prove that the accused could not show that the substance was in the accused’s possession for a lawful object.

30. The Court held at pp. 564-565 that:-

“Once those ingredients are in place, it is still open to the accused to demonstrate in any one of a number of ways, such

as by cross- examination, submissions or by giving evidence, that a prima facie situation pointing to his guilt should not be

allowed to prevail.

[…]

[T]his analysis complies with our well-established criminal law jurisprudence in regard to having trials in due course of

law… [That constitutional requirement] protects the presumption of innocence; it requires that the prosecution should

prove its case beyond all reasonable doubt; but it does not prohibit that, in the course of the case, once certain facts

are established, inferences may not be drawn from those facts… What is kept in place, however, is the essential

requirement that at the end of the trial and before a verdict can be entered the prosecution must show that it has

proved its case beyond all reasonable doubt.”

31. In Hardy the High Court and Supreme Court, on appeal, rejected the contention that the section was unconstitutional, and found

that the section merely placed an evidential burden on the accused and the legal burden remained, at all times, on the State to prove

matters beyond reasonable doubt.

32. This Court has regard also to its earlier decision in Rock v. Ireland [1997] 3 I.R. 484 where the constitutionality of ss.18 and 19 of

the Criminal Justice Act, 1984, was upheld. Those sections permitted a court to draw inferences from the failure or refusal of an

accused to account for the presence of certain objects, substances or marks which a member of An Garda Síochána believed may be

attributable to participation in the commission of the offence for which he was arrested. The plaintiff in Rock contended that ss.18

and 19 of the Act of 1984 infringed on his constitutional rights to silence and the presumption of innocence.

33. The Court noted that the wording of the sections were such that it was not mandatory that a court draw inferences from a

failure or refusal to account, rather it was discretionary. The Court continued, at p. 497, to state:-

“In deciding what inferences may properly be drawn from the accused person’s failure or refusal, the court is obliged to

act in accordance with the principles of constitutional justice and having regard to an accused person’s entitlement to a

fair trial must be regarded as being under a constitutional obligation to ensure that no improper or unfair inferences are

drawn or permitted to be drawn from such failure or refusal.”

The Court was satisfied that the sections did not interfere with an accused person’s right to the presumption of innocence or the

obligation on the prosecution to establish guilt beyond all reasonable doubt. It held that the burden of proof remained on the

prosecution and was not affected by the provisions of the sections in issue, rather the sections “merely provide a factor which may

be adduced as evidence in the course of a trial.”

34. Hamilton C.J. stated, at p. 498, that:-

“If inferences are properly drawn, such inferences amount to evidence only; they are not to be taken as proof. A person

may not be convicted of the offence solely on the basis of inferences that may be properly drawn from his failure to

account; such inferences may only be used as corroboration of any other evidence in relation to which the failure or

refusal is material. The inferences drawn may be shaken in many ways, by cross-examination, by submission, by evidence

or by the circumstances of the case.”

35. In this appeal the appellant seeks to rely on the decision in C.C. v. Ireland [2006] 4 I.R. 1, where this Court struck down as

unconstitutional a statutory rape offence, s. 1(1) of the Criminal Law (Amendment) Act, 1935, on the basis of the absence of mens

rea and the unavailability of a defence of mistake as to the victim’s age. The applicant in C.C. submitted that the statutory provision

was inconsistent with his right to a trial in due course of law as enshrined in Article 38 of the Constitution in that it deprived him of

the defence of mistake, or of mistake on reasonable grounds. The section, it was contended, legislated for a situation where no

“guilty mind” or mental guilt was required and thus no defence could be proffered.

36. Hardiman J., delivering the judgment of the Court, held that the section contained “no balance” in so far as it wholly removed the

mental element, and expressly criminalised those who were mentally innocent. He stated, at pp.78 – 79, that:-

“[…] To criminalise in a serious way a person who is mentally innocent is indeed ‘to inflict a grave injury on that person’s

dignity and sense of worth’ and to treat him as ‘little more than a means to an end’… It appears to us that this, in turn,

constitutes a failure by the State in its laws to respect, defend and vindicate the rights to liberty and to good name of

the person so treated, contrary to the State’s obligations under Article 40 of the Constitution.”

It was held by the Court that a statutory provision which provides for absolute liability, such as provided for in s. 1(1) of the Act of

1935, which criminalised and exposed a maximum sentence of life imprisonment without mental guilt, is inconsistent with the provisions

of the Constitution.

37. The appellant submitted that this case falls to be considered in light of the decision of this Court in C.C. as discussed above, and

that s. 41 of the Act of 1999, which provides for the conviction of a person for the offence of intimidation of a witness where there is

evidence of a threat being made to a witness, is similar.

38. However, the decision in C.C. can be distinguished from this appeal. The statutory provision considered in C.C., provided for the

offence of statutory rape in s. 1(1) of the Act of 1935. First, the unusual nature of the offence in C.C. was emphasised by the Court,

where it quoted, at p. 76, Professor Thomas O’Malley in his observance of the discriminatory effect of that particular provision against

males, in that a male was guilty even if a female clearly consented and there was a genuine mistake as to age. Second, in C.C. the

offence in question was absolute in its nature, providing no defence to an accused person once the actus reus was established. The

Court in C.C. was satisfied that absolute liability, convicting an accused person in the absence of mens rea, as was provided for in s.

1(1) of the Act of 1935, was inconsistent with the provisions of the Constitution. Finally, the Court found that there was no balance

in the provision in issue which removed the mental element.

39. However, the effect of the section in this case is different, and is that, once an act as provided for in s. 41(1)(a) of the Act of

1999 is proven, it shall, in accordance with s. 41(3), be evidence of the intention required under s. 41(1) of the Act of 1999.

40. As stated by the Earl of Halsbury in The Laws of England by the (Butterworth & Co., 1910) at p. 419:-

“…..Evidence is the foundation of proof, with which it must not be confounded. Proof is that which leads to a conclusion

as to the truth or falsity of alleged facts which are the subject of inquiry. Evidence, if accepted and believed, results in

proof, but it is not necessarily proof of itself…”

Presumption of Constitutionality

41. Section 41 of the Act of 1999, enjoys a presumption of constitutionality. That is the first principle to apply in construing the

section.

Double Construction Rule

42. The second principle to apply is the double construction rule. In the case of McDonald v. Bord na gCon [1965] I.R. 217, Walsh J.

outlined the rule of double construction, and at p. 230 stated:-

“[…][B]eing an act of the Oireachtas, is presumed to be constitutional until the contrary is clearly established. One

practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more

constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be

presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon

the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no

construction reasonably open which is not repugnant to the Constitution that the provision should be held to be

repugnant.”

Thus, under the rule of double construction, where two or more interpretations of a legislative provision are reasonably open, the

courts will favour a construction which is in accordance with the Constitution.

Knowledge

43. In construing s. 41, the knowledge of an accused is a key factor. The appellant submitted that the effect of s. 41(3) of the Act

of 1999 is that proof of the actus reus alone is sufficient to establish the required intention for the purposes of a conviction pursuant

to section 41(1). It was submitted that the effect of the provision therefore is that the prosecution need not establish the necessary

mens rea which, in turn, criminalises the mentally innocent.

44. However, the respondents conceded at the oral hearing that the prosecution would have to prove that an accused had

knowledge that an alleged victim was a witness or potential witness or was assisting in the investigation of the crime, in order for the

proof of actus reus to constitute evidence of the necessary mens rea under section 41(3).

45. In this analysis The People v. Murray [1977] I.R. 360 is relevant. In Murray the Court considered the statutory offence of capital

murder, and analysed whether the section required knowledge or recklessness on the part of the accused before such a person could

be guilty of the offence of capital murder. At p. 421 Kenny J. stated:-

“….[T]he prosecution had to prove, in order to justify a verdict of capital murder, that the appellant Marie Murray knew or

suspected that Garda Reynolds was a member of the Garda Síochána who was acting in the course of his duty, or that

she was recklessly indifferent as to whether he was or was not. It is a general rule of our law that the act itself is not

criminal unless it is accompanied by a guilty mind. The Oireachtas may make acts crimes although the accused was not

aware that he was committing an offence: these are usually called crimes of strict liability. But, to effect this, clear

language must be used. In the absence of such an indication, the general rule is that the guilty mind of or criminal intent

must be established in relation to each ingredient of the offence. In this case the necessary intent involved proof that

the appellant Marie Murray knew that Garda Reynolds was a member of the Garda Síochána acting in the course of his

duty, or that she knew facts from which she could infer or advert to this or that she was recklessly indifferent as to

whether he was a member of the Garda Síochána or not…” (emphasis added)

46. It was found that there was no evidence that the appellant, Marie Murray, knew that the victim was a member of An Garda

Síochána, or that the appellant knew anything from which she could infer that he was. Further, in the circumstances of the case, the

appellant could not be held to have been recklessly indifferent as to whether the deceased was a member of An Garda Síochána.

47. As in Murray, the necessary intent required by s. 41(1) of the Act of 1999, involves proof that the accused had knowledge that

the alleged victim was a classified person as identified in s. 41(1) of the Act of 1999. If an accused person did not know that an

alleged victim was a classified person, then it follows that an act harming or threatening, menacing or in any other way intimidating a

person, or putting in fear another person, can not be taken as evidence of the mens rea as provided for under s. 41(3) for the

purposes of establishing an offence under section 41(1).

48. It is for the prosecution to establish that an accused had knowledge, that the person who they harmed, threatened, menaced or

in any way intimidated, was a classified person, in proceedings for an offence, before the act under s. 41(1)(a) can amount to

evidence of an intention to obstruct the course of justice under s. 43(3), for the purposes of fulfilling the requirement of mens rea

required under s. 41(1)(b).

49. Thus, the prosecution in this case would have to prove that the appellant knew that Edward Jones was assisting the Garda

Síochána in the investigation of the assault charged at the time of the alleged intimidation offence, or that he knew facts from which

he could infer or advert to this, or was reckless. This would be part of the prosecution’s case as to mens rea under section 41(1)(b).

It follows that, if knowledge of an accused cannot be established by the prosecution, then proof of the act of intimidation cannot

amount to evidence of the required intention as provided for under section 41(3).

50. Consequently, on this construction, I am satisfied that s. 41 of the Act of 1999 is constitutional. The presumption of innocence

remains, and the burden of proving the prosecution case beyond all reasonable doubt remains in the operation of s. 41 of the Act of

1999, including section 41(3).

The European Convention on Human Rights

51. The appellant sought, in the alternative, a declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003,

that s. 41(3) is incompatible with the European Convention on Human Rights. In particular, it was contended that section is

incompatible with fair trial rights protected under Article 6. The appellant argued that the impugned provision is disproportionate and

that it is unreasonable to infer an intention to intimidate a witness from the fact of a threat made to such person.

52. The appellant relied on case law from the European Court of Human Rights, (referred to as “the ECtHR”), including its decision in

Salabiaku v. France (1991) 13 EHRR 379 in which case a presumption of criminal liability laid down in the French Customs Code for a

person in possession of prohibited goods was held to be compatible with the Convention. The ECtHR held at para. 28 that:-

“Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such

presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect

as regards criminal law. If, as the Commission would appear to consider, paragraph 2 of Article 6 merely laid down a

guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap

with the duty of impartiality imposed in paragraph 1. Above all, the national legislature would be free to strip the trial

court of any genuine power of assessment and deprive the presumption of innocence of its substance, if the words

‘according to law’ were construed exclusively with reference to domestic law. Such a situation could not be reconciled

with the object and purpose of Article 6, which, by protecting the right to a fair trial and in particular the right to be

presumed innocent, is intended to enshrine the fundamental principle of the rule of law.

Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It

requires States to confine them within reasonable limits which take into account the importance of what is at stake and

maintain the rights of the defence.” (emphasis added)

53. Article 392(1) of the Customs Code provided that once the prosecuting authority had established possession of ‘smuggled goods’,

a person in possession of same was ‘deemed liable for the offence.’ The Court held that possession was a finding of fact, and

notwithstanding that a person in possession was presumed liable for an offence, an accused person was not “without means of

defence.”

54. The domestic courts were held to “have exercised their power ‘on the basis of the evidence by parties before [them]’.” They

inferred from the “fact of possession a presumption which was not subsequently rebutted by any evidence of an event responsibility

for which could not be attributed to the perpetrator of the offence or which he would have been unable to avoid.” It was for these

reasons, the ECtHR held that the domestic courts had not applied Article 392(1) of the French Customs Code in a manner which

conflicted with the presumption of innocence.

55. I do not find that the ECtHR jurisprudence in Salabiaku to be of assistance in the circumstances of this case. Specifically, I do not

consider that this case advances the appellant’s appeal.

56. The appellant also relied upon the more recent decision of the ECtHR in Telfner v. Austria (2002) 34 EHRR 207. In Telfner the

ECtHR found that the requirement that, notwithstanding that the prosecution had not established a convincing prima facie case

against the accused, that he provide an explanation for the alleged offence, violated the guarantee of the presumption of innocence

under Article 6(2) of the ECHR. The ECtHR held at paras. 15 - 16 that:-

“… [A]s a general rule, it is for the national courts to assess the evidence before them, while it is for the Court to

ascertain the proceedings considered as a whole were fair, which in case of criminal proceedings includes the observance

of the presumption of innocence. Article 6(2) requires, inter alia, that when carrying out their duties, the members of the

court should not start with the preconceived idea that the accused has committed the offence charged; the burden of

proof is on the prosecution, and any doubt should benefit the accused… Thus, the presumption of innocence will be

infringed where the burden of proof is shifted from the prosecution to the defence…

It is true, as the Government pointed out, that legal presumptions are not in principle incompatible with Article 6; nor is

the drawing of inferences from the accused’s silence.” (emphasis added)

The ECtHR was not satisfied, however, that the case before it concerned the application of a legal presumption of fact or of law, nor

that the domestic courts could legitimately draw inferences from the applicant’s silence. It was held that the requirement that the

applicant provide an explanation for the alleged offence, in the absence of the establishment of a convincing prima facie case by the

prosecution, constituted a shift of the burden of proof from the prosecution to the defence.

57. Telfner, however, may be distinguished from the circumstances of the present case. In Telfner, Austria sought to uphold a

conviction on the basis of an uncorroborated police report, which stated that the applicant was the main driver of a car involved in an

accident and that he had not been home on the night of same. This can be distinguished however from the situation created under

the s. 41(3), whereby proof of the act of intimidation etc., of a classified person is required before it will constitute evidence of intent

under the provision. The establishment of the actus reus is clearly required under the provision. In this case, unlike in Telfner, the

prosecution have to establish that an accused has committed the act in question. In Telfner the prima facie case against the

applicant had not been established, and this constituted a shift of the burden of proof from the prosecution to the defence, which in

turn was found to constitute a violation of Article 6(2) of the ECHR.

58. The High Court dismissed the appellant’s case brought in relation to the declaration sought under the European Convention on

Human Rights Act, 2003. In relation to Telfner the learned High Court judge held:-

“With regard to the submissions made in respect of Telfner, I am satisfied that case concerned the legitimacy of a court

drawing inferences from an applicant’s silence. No such concern in raised in the present case. Section 41(3) of the

Criminal Justice Act, 1999 does not provide that a court can draw inferences from silence. As I stated previously, the only

inferences a court may make under s. 41(3) are those pertaining to certain facts which are proved beyond a reasonable

doubt to the court.”

I would endorse this analysis.

Conclusion

59. In conclusion, I am satisfied that s. 41(3) of the Act of 1999, as amended, is not repugnant to the provisions of the Constitution.

I am satisfied also that there should not be a declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003, as

to any incompatibility of s. 41 of the Act of 1999 with Article 6 of the ECHR. Consequently, I would dismiss the appeal.