A man jailed for failing to give an account of his movements on the day Det Garda Jerry McCabe was shot dead in Co Limerick has been given leave by the High Court to challenge his conviction. He may also challenge the constitutionality of Section 52 of the Offences Against the State Act, which makes it an offence for a person to refuse to provide an account of their movements.
The Supreme Court in 1996 upheld the constitutionality of Section 52 but in light of a European Court of Human Rights (ECHR) decision earlier this year, and following other decisions of the Supreme Court, there are strong reasons to believe the Supreme Court could not now follow its 1996 decision, Mr Gerard Hogan SC said.
He submitted the Supreme Court had wrongly decided the issue of the constitutionality of Section 52 in 1996.
Mr Hogan, for Paul Quinn, of Patrickswell, Co Limerick, secured leave from Mr Justice Kinlen to seek a number of orders and declarations arising from Mr Quinn's 1997 conviction under Section 52. In 1998, Mr Quinn was jailed for six months for failing to give an account of his movements on June 6th and 7th, 1996. The Circuit Court dismissed his appeal.
The judge heard Mr Quinn had challenged Section 52 before the ECHR. In a judgment which became final on March 21st, the ECHR found Section 52 had violated Mr Quinn's right to silence, his privilege against self-incrimination, and his presumption of innocence as guaranteed by the European Convention on Human Rights. It ordered Mr Quinn should be paid compensation of £4,000 and costs which, the court was told, has been done.
Although the ECHR found his conviction was "a direct consequence" of the violation of the convention, that conviction remained in place, Mr Hogan said. The ECHR had concluded the degree of compulsion imposed on Mr Quinn destroyed the essence of the privilege against self-incrimination and his right to remain silent.
Mr Justice Kinlen granted leave to Mr Hogan to seek an order quashing Mr Quinn's conviction and to seek a declaration that Section 52 is unconstitutional and void. He was given leave to seek declarations as to his statutory and constitutional rights and regarding his rights and legitimate expectations under the European Convention on Human Rights.
