By Anthony Sheridan
During a discussion on 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.
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.
Copy to:
Mr. McDermott
Today with Sean O’Rourke