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Dublin: 9°C Wednesday 27 January 2021

A dawn raid, a bizarre press op - but the handling of the Hickey affair wasn't unusual by Brazilian standards

As we saw this week, Irish and Brazilian authorities have very different ways of operating, writes barrister Barry Ward.

Barry Ward

WHEN THE PRESIDENT of the Olympic Council of Ireland (OCI), Pat Hickey, was arrested in Rio de Janeiro on Wednesday, Ireland watched with dismay as its national Olympic reputation took another hit. But what was most startling were the circumstances surrounding his arrest.

In Ireland, we are not used to seeing the ‘perp walk’ that is common in the USA, where a suspect is paraded in handcuffs before the waiting media and prosecutors take great pride in their catch, even though no evidence has been presented to a court and no verdict has been delivered.

pat2 Hickey is released from hospital in Rio.

And so it was in Rio this week, where the arrest of the OCI boss was filmed and widely publicised. We, and the global media, had the opportunity to see Pat Hickey being cornered in his hotel room in a bathrobe, before being carted off to hospital in police custody.

He has now been charged with three offences: ticket touting; forming a cartel; and illicit marketing.

The first of these is definitely, and perhaps regrettably, not an offence in Ireland. There have been attempts to change that. Private members’ bills have been presented to Dáil Éireann on the subject in 1998 and 2005 by Alan Shatter TD and Jimmy Deenihan TD respectively, and Noel Rock TD has now promised one for the new session, next month. But it is not currently illegal in Ireland for a person to sell a ticket for more than its market value.

Forming a cartel has been an offence in Ireland since 2002 (although section 4(1) of the Competition Act does not use the word ‘cartel’). This is usually prosecuted on the advice of the Competition & Consumer Protection Commission, and, since 2012, offenders can face prison sentences of up to ten years and/or fines or up to €4 million or 10% of turnover, whichever is the greater. But we have never seen suspects here dealt with in the way that Pat Hickey was in Rio this week.

Finally, “illicit marketing” is not a term used in Irish law, although it is not permissible to market products fraudulently, or without regard to data protection rules or the restrictions on the use of telecommunications systems. However, the Data Protection Commissioner has never called to a suspected illicit marketer’s hotel room with an arrest warrant in the middle of the night.

The police response 

The actions of police in Rio must be seen in the context of a police force that is anxious to deal with suspected criminal behaviour swiftly and effectively, and, more pointedly, to be seen to be doing so.

There is some confusion about whether the videoing of Pat Hickey’s arrest was done by the media or the police. Some of the on-line videos carry international media logos and at one point, Mrs Hickey is clearly shown closing her hotel room door on the camera operator.

Whatever the case, the footage was in police possession and was available to the world within hours of events unfolding. Footage is labelled as being courtesy of the Rio State police, and non-police camera operators can be seen filming police as they arrived outside Mr Hickey’s hotel, presumably having been notified that police would be there.

It is entirely understandable that police officers might want to video arrests or searches like these, as much for their own protection as anything else –video may provide conclusive proof that things were done lawfully and properly, without the use of excessive force or violence, for example. However, it is also reasonable to question whether the footage should have been readily released to the world’s media.

A detailed press conference in Rio de Janeiro went beyond simply announcing the arrest of Mr Hickey. Police presented to journalists the investigation file for inspection, showed them, and allowed them to photograph, personal effects of Mr Hickey that had been seized during his arrest, such as his Rio 2016 credentials, his mobile phone, and travel documents, including his Irish passport showing his date of birth and passport number.

In a land where the presumption of innocence is enshrined in the Constitution since 1988 and in the Criminal Procedure Code (CPC), it is difficult for us to reconcile the actions of the Rio police with the protection of Pat Hickey’s good name or right to be presumed innocent until proven guilty.

The civil law system that operates in Brazil means that the common law norms afforded to people accused of crimes in jurisdictions like Ireland are not necessarily available to Pat Hickey in Rio de Janeiro.

Civil law systems, which stem from the Napoleonic Code, are based on an inquisitorial system, rather than an adversarial one, as found in most common law countries.

Brazil’s trials are essentially inquiries: a prosecutor works with the judge towards a common goal. But trials in Ireland are more akin to a match between two teams where the judge is an impartial referee.

An Irish citizen in Brazil is subject to the same laws and rules as a Brazilian, just as a Brazilian citizen in Ireland is subject to the same laws as an Irish citizen. The same can be said for rights and legal protections in criminal proceedings.

Different to the Irish approach

Many of the protections we have come to expect as Irish people, have grown up over generations of cases, dating back to before the State was established. They include the presumption of innocence, but also the right to silence, the right not to self-incriminate and other measures that limit the power of the State over the citizen, and balance the power of the police against the power of the individual.

The ‘perp walk’ is much more about prosecuting forces than it is about suspects. It is an opportunity for police and prosecutors to show that they have their man and that justice will be delivered swiftly.

Pat Hickey now faces a period on remand, in custody, while he waits for his charges to be dealt with by a Brazilian court. The outcome of this case may still be a long way off, and it seems he won’t be coming home before its conclusion.

Whatever the result, we can be sure that the way in which we see Pat Hickey dealt with by the Brazilian justice system will be very different to what we are used to seeing in Irish courtrooms.

Whether that is for better or for worse is a matter of individual perspective.

Barry Ward is a practising barrister, specialising in criminal defence and public law. He is a former legal adviser to Enda Kenny and a member of Dún Laoghaire-Rathdown County Council since 2009. You can follow him on Twitter at @cllrbarryward

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Barry Ward

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