Lexploria

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)

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HARDY v. IRELAND

HARDY v. IRELAND

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