At the heart of every argument about what it might mean for Ireland to be a republic there is a single word: accountability. The difference between a paper democracy and a real one is that in a functioning republic those who exercise power on behalf of citizens are answerable to those citizens. It’s as basic as that: no accountability, no democracy. And last week the Supreme Court did a terrible day’s work for accountability in Irish public life.
A man, referred to as J.C., is alleged to have made a confession while in custody for a serious crime. When he came before Judge Mary Ellen Ring in 2012, she ruled that the alleged confession, which was the only substantial evidence against him, could not be used in court. J.C. had been arrested under a warrant that was later found to be unconstitutional. He should not have been in custody in the first place. Under Irish law, as strongly stated by the Supreme Court itself in 1990, the judge had no choice in the matter – you can’t convict someone of a crime on evidence that was gathered in breach of constitutional rights. J.C. was acquitted.
This is infuriating. It is a terrible thing for the victim of a crime when the alleged perpetrator walks free after a screw-up in legal procedures. But it’s precisely because it’s so infuriating that this situation demands absolute rigour. We need the courts to be cold and clear. We need them to send a consistent message to those in authority – the powers we give you are immense. You have to be accountable for the way you use them. In this case, being accountable means that you follow the rules set down by the people in the Constitution. Galling as it might be, a case like that of J.C. is crucial to the rights of every citizen. And what happened to that case last week, when the Supreme Court overturned the original ruling, should alarm every one of those same citizens.
There are three extraordinary things about what happened last week. Firstly, in order to hear the case at all, the Supreme Court had to accept an absurdity. The Supreme Court can’t consider an appeal unless there is an argument that the judge in the original trial made an error of law. But Judge Ring didn’t make an error – everyone accepts that she had no choice but to apply the rules as the Supreme Court had previously stated them and that she applied them correctly. To hear the case, the court had to perform some mental gymnastics. It had to find that she was both absolutely right and completely wrong, that she “erred” in doing what she was constitutionally obliged to do. We should be uneasy about this.
Secondly, as Mr Justice Adrian Hardiman pointed out in his searing dissenting judgment last week, the Supreme Court allowed the State, in principle, to go against one of the most important protections that citizens have enjoyed: that you can’t be tried over and over again. J.C. was tried and acquitted under the law as it stood in 2012. The State asked the Supreme Court to change that law so that he can be retried under a different set of rules. The Supreme Court did as it was asked. This should worry all of us: in the words of Judge Hardiman “Multiple trials until a conviction is obtained are a notorious form of oppressive misuse of power.”
Thirdly, the Supreme Court changed the law. It used to say that courts could not admit evidence that was obtained unconstitutionally – full stop. After last week, it says something quite different. A court can now consider evidence that was obtained in breach of the accused person’s constitutional rights – provided that breach was “inadvertent”. In fairness, “inadvertent” does not cover negligence, incompetence or recklessness. But it does allow a garda – and by extension others exercising State power – to say “Sorry, it was an honest mistake” and to be told by a court “That’s alright then.”
Why is this bad news? Firstly, because it puts those who are exercising statutory authority above all of the rest of us. No ordinary citizen is granted this get-out clause when it comes to the law. And secondly because no one can be accountable for an honest mistake. Who knows whether an action was inadvertent or not? Only the person who has taken that action. A clear set of objective rules – the rights of citizens under the Constitution – is being replaced by an unclear and subjective standard. If you’re exercising power, the standard to which you will now be held is much lower than it was before last week. As Judge Hardiman put it “If once ‘inadvertence’ or mistake is acceptable as an excuse for ignoring, or deliberately failing to ascertain, the constitutional rights of ordinary citizens then ‘inadvertence’ or mistake will be relied upon again and again.”
It’s easy to think this is all just about stopping criminals who are probably guilty anyway from getting off on a technicality. It’s not – it’s about letting officials walk away from the accountability that makes a republic real.