Self-Representation

Sometimes a phrase or a slogan lodges its unwanted self in the brain – “Esso Blue for Happy Motoring”, or, as authors manqué of the Supreme Court could, no doubt, attest – “Plumtree’s Potted Meat”.

But it would be hard to beat the title of the book – “Represent Yourself in Court and Win!”, for an unhelpful and irritating phrase.

How would “Yourself” fare in People (DPP) v Cleary [2005] IECCA 51 where the Court of Criminal Appeal remarked;

There were a number of unusual features of the trial.”

The essence of the case against Mr. Cleary turned on two factors; first, the failure of the prosecution to prove certain elements of secondary legislation. Secondary legislation usually takes of the form of a Statutory Instrument. Unlike primary legislation, (Acts of the Oireachtas), judicial notice is not taken of Statutory Instruments. They must be proved, either by being produced to the court in the form as published in Iris Oifigiuil or by production of a copy as published by the Stationery Office.

The second factor was the taking of Mr. Cleary’s fingerprints by the Garda Siochana.

Apparently, the Gardai found a bag with what appeared to be an illegal drug in it. They waited nearby and arrested Mr. Cleary when he appeared. It was alleged that his fingerprint was found inside the lid of the box, holding the drug, which itself was in the bag.

On arrest, the Gardai took his fingerprints with his consent. (He was not obliged to consent. If he did not, only a Garda of the rank of Superintendent or above could oblige him to furnish the fingerprints.)

The Court of Criminal Appeal quashed the 2nd charge in the Indictment because of the failure to prove the secondary legislation. The 2nd charge (possession with intent to supply) was the more serious of the two charges.

The Court affirmed the conviction on the 1st charge, brushing aside the objection of defence counsel that Mr. Cleary’s consent to having his fingerprints taken was not an “informed consent”; (he was not told that the evidence could be used against him, thus, possibly, provoking a refusal to allow the taking of the fingerprints).

What amenable person from rural Ireland could possibly know how to prove secondary legislation in a trial?

Is there merit in book-burning after all?