The Gazette 1983

GAZETTE

JULY/AUGUST 1983

Criminal Due Process and the

Definition of Crime

T. A. M. Cooney, Lecturer in Law, U.C.D.

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.

This constitutional awakening was inspired by the

Supreme Court's divination, in

People(Attorney General)

v. O 'Callaghan,

of the true nature of our system of

criminal justice.

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".

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".

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

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