The Gazette 1983

GAZETTE

JULY/AUGUST 1983

Criminal Due Process and the Definition of Crime by T. A. M. Cooney, Lecturer in Law, U.C.D.

I N this article, I will attempt to sketch the requirements of criminal due process which limit the legislative power to define a crime. My focus will concentrate on the principle of legality and the requirements of actus reus, mens rea and their coincidence. I will also argue that the principle of proportionality should be regarded as a limita- tion on the legislative definition of crime. This is, therefore, an effort to set the stage for the rethinking of the criminal law in constitutional terms. The presumption of innocence: a substantive constitutional imperative With the recent increase in the volume of cases concerning the constitutional aspects of criminal procedure, the Courts have enunciated a variety of protections for those enmeshed in the criminal process. 1 This constitutional awakening was inspired by the Supreme Court's divination, in People(Attorney General) v. O 'Callaghan, 2 of the true nature of our system of criminal justice. In O'Callaghan, the Supreme Court reaffirmed the traditional holding that the fundamental test in deciding whether to allow bail was the probability of the applicant evading justice. As Walsh J. declared, "the object of fixing terms of bail is to make it reasonably assured that the applicant will surrender at his trial". 3 The Court rejected the submission that bail should be withheld when the prosecution was of the opinion that there was a likelihood of the commission, by the accused person, of offences while at liberty pending trial. Ó Dálaigh C. J. declared that the reasoning underlying this submission was a denial of "the whole basis of our system of law". He inveighed against its transcending "respect for the requirement that a man shall be considered innocent until he is found guilty" and its attempt "to punish him in respect of offences neither completed nor attempted". 4 In this regard, Walsh J. was also trenchant: "The object of bail is neither punitive nor preventative. From the earliest times it was appreciated that deten- tion in custody pending trial could be a cause of great hardship and it is as true now as it was in ancient times that it is desirable to release on bail as large a number of accused persons as possible who may safely be released pending trial. From time to time necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases "necessity" is the operative test. The presumption of innocence until conviction is a very real thing and is not simply a procedural rule taking effect only at the trial. In the modern complex society in which we

live the effect of imprisonment upon the private life of the accused and of his family may be disastrous in its severe economic consequences to him and his family dependent upon his earnings from day to day or even hour to hour. It must also be recognised that imprison- ment before trial will usually have an adverse effect upon the prisoner's prospects of acquittal because of the difficulty, if not the impossibility in many cases, of adequately investigating the case and preparing the defence"/ O'Callaghan understood the accusatorial nature of our system of criminal justice in which the individual is adjudged to be the ultimate entity of moral value. It would be rewarding to elaborate the meaning of this in the context of the case. Firstly, the presumption of innocence, the fundamental concept of our accusatorial criminal process, constitutes a guarantee that the individual may act according to his or her own dictates in any area of permitted liberty free from the arbitrary intrusion of official power. The individual who accuses another of an offence cannot depend on his accusation alone to transfer to the accused the burden of proving his innocence but must first produce reasonable evidence of the past commission of an offence by the accused and prove the latter's guilt beyond reasonable doubt. "It represents a commitment to the proposition that a man who stands accused of crime is no less entitled than his accuser to freedom and respect as an innocent member of the community. Only those deprivations necessary to assure the progress of the proceedings pending against him — deprivations which do not rest on any assumption of guilt — may be squared with this basic postulate of dignity and equality"/ Secondly, the form of preventive detention favoured by the State was constitutionally infirm because it relied on an anticipated danger rather than on a free choice to violate the law, and also because it depended on a prediction about the likelihood that the accused would commit offences if released on bail rather than on a due assessment of events completed by the accused. The State's submission went "beyond involuntary detention of the uncontrollably dangerous and would imprison persons presumptively able to choose between violating and obeying the prescrip- tions of the criminal law. To imprison such persons on the assumption that they will make the wrong choice impairs personal autonomy in a way that incarceration of the dangerously ill does not". And since our criminal law proceeds on the moral premise that individuals make blameworthy choices in engaging in certain criminal acts, "the preventive detention of an individual believed 117