CCJHR Blog

CCJHR Seminar - Children's rights: The Proposed Constitutional Amendment

2010-04-07T16:14:00.003+01:00

The Centre for Criminal Justice and Human Rights at UCC is pleased to announce the following seminar:

Children’s Rights: The Proposed Constitutional Amendment

Thursday April 15, 12.00-2.30 pm

Venue:

Room LG 52
Cavanagh Pharmacy Building
College Road

Cork

Speakers

Emily Logan, Ombudsman for Children;
Dr Conor O’Mahony, Lecturer in Constitutional Law, University College Cork;
Rosemary Horgan, Family Law Solicitor, Ronan Daly Jermyn & Co.

The seminar will be chaired by Dr Ursula Kilkelly.

Light refreshments will be provided.

A limited number of places are available, so please register your interest in attending by e-mailing conor.omahony@ucc.ie.

2 Hours of CPD points are available for attendance at this event.

Announcing the CCHJR 4th Annual Criminal Law Conference

2010-03-25T12:37:00.002Z

Accommodating Victims in the Criminal Justice System:
An Inclusionary or Punitive Logic?

Friday, 11th June, University College Cork

The Centre for Criminal Justice and Human Right at the Faculty of Law at UCC is delighted to host its fourth annual criminal law conference, entitled Accommodating Victims in the Criminal Justice System. The aim of the conference is to update delegates on current debates in criminal justice with particular emphasis on the role of victims of crime. For much of the nineteenth and twentieth centuries, the victim in the criminal process was confined largely to a bit-part role of reporting crime and of adducing evidence in court as a witness, if needed. More recently, however, the process is gradually becoming more effective in accommodating the needs and concerns of victims of crime. In the last three decades, in particular, the status of the crime victim has gradually altered from being perceived as a ‘non-entity’ or ‘hidden casualty’ to a stakeholder whose interests and opinions matter. Crime victims are beginning to be anchored as key constituents in the criminal justice landscape and criminal justice agencies will have to rework their relationships with them.

Notwithstanding the increased recognition of victims in the criminal process, some commentators would argue that that many of the needs of victims continue to be unmet. A lack of knowledge among criminal justice agencies about the needs of victims of crime is a key issue. There also remains a problem with the under-reporting of crime. Other issues that cause concern to victims include harassment, intimidation by the process, attrition rates, the lack of private areas in courts, difficulties with procedural rules and legal definitions, delays in the system, and inadequate support services. Other commentators would argue that this shift in the status of the victim will contribute to a reprioritisation of commitments resulting in a recalibration of the scales of justice that further hollow out the rights of those accused of crime. This conference will explore all of these issues with leading experts in the field.

It is anticipated that the conference will act as a forum where legal practitioners, victims’ rights advocacy/support groups, Garda officers, social workers, probation officers, civil servants, judges and academics, can discuss issues of common interest.

For information relating to the conference, please telephone the conference administrator, Ms Noreen Delea, at 021 4902728, or email her at ccjhr@ucc.ie

Changes needed to Mental Health Act 2001

2010-03-22T10:05:00.006Z

The Mental Health Commission has started work on developing a Code of Practice on the Mental Health Act 2001. The Commission seeks views on which parts of the Act, if any, further guidance should be provided on and the closing date for receipt of feedback is Wednesday 28th April. For further information, see this page.

Meanwhile, papers and videos from the recent Mental Health Law conference at University College Cork are available here. The conference was jointly organised by UCC Faculty of Law and the Irish Mental Health Lawyers Association. Speakers included Mary Forde of Amnesty International Ireland, Patricia Rickard-Clarke of the Law Reform Commission, Michael Lynn, B.L., Diarmaid Ring, Mental Health Service User and Activist, Dr Mary Donnelly of UCC, Áine Hynes, Solicitor, Hugh Kane, CEO of the Mental Health Commission, Mark Felton, Solicitor, and Dr Darius Whelan of UCC. Dr Mary Henry, former independent Senator, spoke at the book launch which followed the conference. Each session was lively and informative, with plenty of genuine engagement between the 120 members of the audience and the speakers. One of the many interesting slides was one from Hugh Kane about the need for reforms of mental health law, which included the following items:

Urgent need for Capacity Legislation
Review of Section 59(1), Mental Health Act 2001 [This concerns Electro-Convulsive Therapy]
Section 23/24, Mental Health Act 2001 [Re-grading of patients from voluntary to involuntary status]
Measurement of performance, overall impact of mental health tribunals, Section 49, Mental Health Act 2001
Need for automatic independent legal representative for children admitted to approved centres, Section 25(14), Mental Health Act 2001.
Definition of ‘best interests’, Section 4, Mental Health Act 2001

CALL FOR PAPERS: POSTGRADUATE AND EARLY CAREER WORKSHOP WITH PROFESSOR LOIS MCNAY

2010-03-16T10:12:00.003Z

'Subjects Before the Law: Membership, Recognition and the Religious Dimensions of Women's Citizenship.'Workshop with Professor Lois McNay.

We invite PhD students and Early Career Researchers (no more than 3 years post-viva) from any discipline to apply to participate in a workshop, to take place on Thursday, September 9, 2010. The workshop is hosted by the Centre for Criminal Justice and Human Rights and the Institute for Social Science in the 21st Century, University College Cork, Ireland. The workshop is organised as part of an IRCHSS Thematic Project on Gender Equality, Religious Diversity and Multiculturalism in Contemporary Ireland.

The workshop organisers are Eoin Daly and Máiréad Enright.

WORKSHOP THEME

Recent years have witnessed a shift by states away from policies and politics of multiculturalism. Against a background of diminishing state sovereignty, matters of affiliation, allegience, membership and belonging have become important projects for government. Across Europe, transnational and sub-national constellations of belonging are viewed as threatening social cohesion, loosening the ties that bind the nation-state. State responses have been marked by an anxious and exclusionary politics of membership, which seek to restore and re-inscribe the state's role as first or sole sovereign. Religious citizens have appealed to notions of religious rights grounded in law in an effort to bypass or restrict state scrutiny and regulation of group activity.Such attempts can be seen today in debates on the role of Muslim family law, in litigation on the display and wearing of religious symbols and in the regulation of intimate relations and reproductive autonomy. Historically, the demarcation of gender roles has frequently been intertwined with attempts to identify defining attributes of national identity. Thus, new interactions between religious groups and the state in the field of law have particular implications for women, as gender roles and status become intertwined with the boundaries and limits of membership.

The aim of the workshop is to discuss themes and questions such as:

What are the implications for women of the shift away from multicultural policies and politics?
Can law provide 'refuge' for religion from hostile post-secular politics? How should we imagine the new 'legal turn' in religious engagement with the state?
Who is the religious subject before the law? How does the law construct women's religious, cultural and political affiliations? How might it do better?
What does recognition theory tell us about the possibilities and limits of religious engagements with law?
What are the limits and role of rights discourse in responding to deficiencies in how law 'sees' religion?
What shape does the 'public' concept of citizenship take in the regulation of 'private sphere' religious activity?
What are the implications of integration and citizenship testing for women? What should be the responses of feminist and human rights discourse to such testing?
How useful are concepts of 'multiplicity', 'plurality' and 'intersectionality' to a legal analysis of membership conflicts?
Where and how do we locate Ireland in current debates on women's membership, multiculturalism and the law?

PARTICIPATING

If you would like to present a paper, please email corkworkshop2010@gmail.com to express your interest. Your email should cotain:

Your position and the name of your university/research centre.
A 250 word abstract of the paper you propose to present at the workshop. Your paper should address an aspect of your thesis or other research as it relates to one or more of the questions set out in the workshop theme above.
Your CV, including a list of any publications, forthcoming publications and papers presented at other conferences and workshops to date.
The title and short description (no more than 250 words) of your current major research topic (PhD candidates should provide details of their thesis)

Participants will commit to:

Producing a draft paper (no more than 7,500 words) for circulation to all participants in advance of the workshop.
Presenting their paper to the workshop (for 20 - 25 minutes, with time afterwards for questions and discussion)
Acting as a discussant for one of the other papers.
Reading the other papers in advance of the workshop and participating in the general discussion of other papers.

Deadline for applications: May 1 2010.

Successful applicants notified: May 15 2010.

Deadline for draft papers: July 15 2010.

WORKSHOP FORMAT

The workshop will begin in the morning with a seminar by Professor Lois McNay (Somerville College Oxford), author of Against Recognition, Gender and Agency:Reconfiguring the Subject in Feminist and Social Theory. and Foucault and Feminism: Power, Gender and the Self. We are particularly keen to receive papers which address Professor McNay's work on agency and recognition in some respect.

The seminar will be followed by two sessions in which the participants will present and discuss one another's papers. We plan to restrict participation to a small number group; 6 to 8 at most. We are investigating the possibility that some of the papers will be published after the workshop.

We are in a position to offer a modest grant to participants in the workshop which should cover most if not all of the cost to participants of economy transport to Cork from elsewhere in Ireland, the UK or mainland Europe. We will also provide one night's accommodation in Cork and meals and refreshments on September 9. There is no additional fee for participation.

The workshop is run in conjunction with a one-day international conference 'Gendering the Boundaries of Membership', which will take place in University College Cork on September 10. The conference will feature presentations by a number of prominent scholars working in the area of gender and multiculturalism. Confirmed speakers include Anne Phillips (LSE), Audrey Macklin (University of Toronto), Betty de Hart (Radboud Universiteit Nijmegen) and Maleiha Malik (King's College London). Workshop participants will be welcome to attend the conference free of charge (some meals will be provided on the day).

All queries should be addressed to corkworkshop2010@gmail.com

Criminal Justice developments January 2010

2010-02-23T12:51:00.004Z

The following is a found up of criminal justice news from January 2010. The material was first published in the January Edition of Firstlaw's Criminal Law Online Service.

The month of January was relatively quiet from a criminal justice perspective. Two stories in particular dominated the news, namely the number of homicides that have bloodied the month and the Eamonn Lillis trial. However additional stories of interest were the release of CSO crime statistics for 2009 and the publication by the Minister for Justice of the Criminal Justice (Forensic Evidence and DNA Database) Bill 2010.

The Lillis trial was interesting for a number of reasons, not least of which was the showcasing of the facilities in the new Criminal Courts of Justice complex. More members of the public were able to hear and see the court proceedings through the use of videolink to an overflow room. Videolink was also used to allow Mr. Lillis’s 17-year old daughter to testify, and Jean Treacy was protected from the media scrum by being allowed to use an underground entrance to and exit from the courts. Her use of the underground entrance attracted media claims that their “right” to be able to photograph witnesses in order to safeguard the interests of justice had been compromised. Yet the case of Re. R. Ltd is clear that “the [constitutional requirement to] administ[er] justice in public [simply] require[s] that the doors of the court must be open so that members of the general public may come and see for themselves that justice is done.” As such, images of witnesses or the accused being lead to the courtroom add nothing to the administration of justice and seem to be valuable exclusively as a means of selling papers. The media frenzy that ensued in the race to find an image of Ms. Treacy confirms this. Moreover, when he sentenced Mr. Lillis, Mr. Justice White criticised the media “scrum” that the Lillis and Cawley families had to endure on their entrance to and exit from the courts complex as “an affront to human dignity.” He also noted that one of the reasons Mr. Lillis received a seven-year sentence rather than a ten-year one was because of the intense media scrutiny the case received. It could therefore be argued that the media have in fact promoted their self-interest at the expense of the interests of justice.

The granting of the use of the underground entrance to one prosecution witness only raises other issues. It was suggested by the Minister of Justice that Ms. Treacy had been allowed to avail of the underground entrance in order to ensure her co-operation as a witness. Why this same privilege was not afforded to other witnesses or to the accused should be questioned. In light of the availability of the underground entrance, and remembering the Court of Criminal Appeal’s criticism of the practice of photographing the accused in the 2002 case of DPP v. Davis, it is worth considering whether this protection should become standard practice in all criminal trials. Michael O'Higgins SC, while critical of the use of the facility, noted that a precedent had now been set and that in future “it would have to be available to both sides in a case.” Alternatively, as some moderate voices in the media have suggested, it might be worth establishing a code of practice on the use of this facility so as to avoid preferential treatment being given to some witnesses over others.

The trial is also notable for the manner in which the jury returned their verdict. When they found Mr. Lillis guilty of manslaughter they explained that they felt that the State had not proved intent to kill or cause serious injury. What is remarkable is that this should be remarkable. Justice White thanked the jury for alerting him to their reasoning and noted that it would assist him when he sentenced Mr. Lillis. Arguably this information should always be provided to the judge to ensure that the jury’s verdict is given effect. Moreover it would be desirable if, as in the Lillis case, when there are three potential reasons for rendering a manslaughter verdict (gross negligence homicide, excessive self-defence or provocation) that the jury should identify which one they based their verdict on. There is a significant distinction in terms of culpability between these various categories of manslaughter and this distinction should be reflected in sentencing. The judge is unable to do this if the jury do not provide this information. In this case, it is clear that the jury rejected provocation as the basis for their manslaughter verdict, but it is not clear which of the other two categories was determinative. It is worth noting as an aside that there is a case currently before the European Court of Human Rights, Taxquet v. Belgium, on the issue of jury trials and whether their failure to provide reasons for their decisions impedes the accused’s right to a fair trial. The outcome of this case will be awaited with interest.

The relatively high number of reported homicides in the month of January has also been the subject of considerable media attention. In one weekend in January there were three gangland shootings in Dublin, followed by a fourth shooting the following weekend. A week later there was a fatal shooting in Cork with gangland/paramilitary links. There were also a number of non-gangland related killings. A former Defence Forces member was stabbed to death in Dublin after he complained about noise coming from a party and another man was stabbed in Tipperary following an altercation outside his home. A woman was found stabbed to death near the residence of the man believed to be implicated in her death with whom she was involved in a relationship. The death of a 10-day old infant in Meath was also being treated by the Gardaí as a murder. Nine killings in one month is not an auspicious start to the new-year. Predictably the gangland killings in particular led to warnings about a “surge in gangland crime” and criticism by Fine Gael of the government’s failure to provide sufficient resources to give effect to the gangland legislation introduced last year. However it is worth noting that while five of the nine killings were gangland related, increased resources for gangland crime or indeed ordinary crime would have had no impact on the remaining four deaths. Similarly, while there was an increase in the number of murders last year, generally speaking the homicide rate is falling and the murder rate is relatively steady. In 2009 a total of 80 homicide cases were recorded, 53 of which were murders. This represents a significant drop from 138 homicides/62 murders in 2006 or 132 homicides/77 murders in 2007. In 2008 there were 89 homicides/50 murders. Accordingly we are not in the midst of a national epidemic in relation to either homicide generally or murder specifically.

The CSO statistics for 2009 do show a significant rise in the number of burglaries (up 9%) and robberies (up 33.5%). This rise is predictable in a recession period given the general view that economic crimes tend to increase when legitimate avenues of obtaining revenue decrease. The 2009 statistics however also reveal an unexpected benefit of the recession, namely the decrease in drug (down 6%) and public order offences (down 8%). It is arguable that when there is less disposable income there is less money to spend on excessive consumption of alcohol (a key element in public order offences) or on drug use. In relation to crime generally it was found that overall the level of reported crime dropped by 5% last year but that the levels for a number of serious offences, including murder (up 6%) and rape (up 10%), increased.

Finally, the Minister of Justice published the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 in January. The proposed legislation would introduce a national DNA database to hold samples of those arrested for certain criminal offences. The Bill was lauded by the Ministry as “major step forward in the fight against serious crime” giving the Gardaí “access to intelligence on a scale and of a quality that has never before been available in this country”. The proposed powers include the ability to require a sample from anyone arrested for a violent crime. The DNA profile generated from that sample would then be placed on the database as would any sample collected from a crime scene. At the same time the legislation would, upon coming into force, require samples from anyone serving a sentence for a serious offence. The Minister stated that his desire was that “a significant proportion of the criminal community” would have their samples stored on the database and that this would “of itself, act as a deterrent for some.”

The Minister was quick to point out that the drafting of the legislation took account of the recent European Court of Human Rights decision of S and Marper v. UK in which the Court held that the indefinite retention of DNA samples, profiles and fingerprints taken from persons who are not charged or who are acquitted infringed the ECHR’s privacy provisions. As a result the Bill provides that the only samples to be stored indefinitely would be those taken from people convicted of a serious offence. Other samples would be held for three years and profiles for ten years, subject to the right of the person to apply to have their materials removed from the database. However the draft legislation has already drawn criticism from a number of sources including the data protection commissioner who stated that profiles of those not convicted of any offence should in fact be destroyed immediately.

Constitutional Amendment on Children

2010-02-19T11:39:00.003Z

This blog post was contributed by Dr Ursula Kilkelly, Co-Director of the CCJHR.

On February 16th 2010, the Joint Committee on the Constitutional Amendment on Children issued its unanimously agreed final report setting out its recommendations and the accompanying rationale for constitutional change. The report comes against the backdrop of the numerous reports which have documented that inadequate constitutional provision for children’s rights has had a negative effect on their treatment in law, policy and practice. The absence of a framework to ensure that decisions about children take their interests into account has led to their rights being ignored and underplayed in decisions about them. Ireland has also been subjected to international criticism for failing to recognise that children are independent rights-holders. In order to address these problems, it is vital that the opportunity is grasped to undertake meaningful constitutional reform in this area. To that extent, the proposals do not disappoint and to date they have received the universal support of those working with and for children.

There are two pivotal constitutional provisions concerning children. The first – Article 41 –recognises the Family as the natural primary and fundamental unit group of society and pledges to guard with special care the institution of Marriage on which the Family is founded. This provision is untouched by these recommendations, and this is in line with the fact that families are crucially important to children. The proposals address themselves to the second relevant constitutional provision - Article 42. The proposals for the new Article 42 are lengthy and somewhat complex but they have a number of very important elements. First, under the new Article 42.1.2 the State recognises the rights of all children and undertakes as far as practicable to protect and vindicate their rights. This makes clear that the state has a duty to vindicate the rights of the child. Second, the provision proposes to incorporate as a constitutional principle the right of children to have their welfare regarded as a primary consideration, a provision which is strengthened by a requirement in Article 42.1.3 that the welfare and best interests of the child must be the first and paramount consideration ‘in the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child’. Third, and most important, the proposals express the state’s duty to recognise and vindicate the rights of ‘all children as individuals’. These rights include the right of the child to care and protection, the right of the child to education and the right of the child’s voice to be heard in any proceedings affecting the child having regard to the child’s age and maturity. The replication of the wording of the Convention on the Rights of the Child throughout is particularly important here and it will enable Ireland to learn from and contribute to the interpretation and understanding of these widely accepted international principles. The final provision of note is the replacement for the much criticised Article 42.5. The proposal here suggests a wording that will require the state to support families rather than pitting parents who have ‘failed in their duties towards their children’ against the state. Any intervention in the family must be proportionate, provided for by law, and ensure equal treatment of all children regardless of their parents’ marital status.

Although the fate of these proposals is far from clear, evidently, they offer much food for thought. What emerges overall however is they reflect a new paradigm for the treatment of children and a redrawing of the responsibilities of the state and parents in this regard. The recognition of the rights of children as individuals, to have their voices heard and to have decisions taken in their interests, are minimum requirements if Ireland is to meet its obligations under the Convention on the Rights of the Child. In the Irish context, however, they reflect that a bold step forward is required to ensure that the treatment of children in the Ireland of the future is an improvement on our woeful past.

Lillis sentenced to 6 years 11 months in prison

2010-02-05T12:52:00.003Z

Today Eamonn Lillis was sentenced in the Central Criminal Court to 7 years (reduced by 1 month to account for time already served) for the manslaughter of his wife Celine Cawley.

The decision of Mr Justice Barry White was based on a position that the appropriate sentence, without any mitigating factors, for the offence would be 10 years. In coming to this conclusion he had considered the prison sentences handed down in the Wayne O’Donoghue (4 years) and Linda Mulhall (15 years) cases particularly with regard to the coverup.

Mitigating factors in this case included the previous good character of Eamonn Lillis, the evidence this was out of character and his call to the emergency services and attempt to resuscitate his wife. Mr Justice Whyte however, noted on this point "That is the only decent act you committed on that morning." given he then went on to systematically lie about the events of that morning and blame someone else for the attack. Other negative elements were the time he took to cover up the fight was the effect of the crime on the family members, including of course his own daughter. The lack of clear remorse for what had happened, a lack of an offer of a plea to manslaughter were particularly notable:

"Your expression of remorse rings hollow to me and I consider it to be self-serving in light of the circumstances of the case."

The sentence is at the upper end for a manslaughter case.

Mr Justice Whyte went on to strongly criticise the media for their coverage of the case. He said the media media's behaviour had been "an affront to human dignity" and called for their privacy to be respected. It is clear that whilst the media serve an important role in ensuring that justice is carried out in public, that does not mean that media has a right to invade the privacy of participants in a trial.

Previously the Court of Appeal has criticised the photographing of the accused in the case of DPP v Davis in 2002. Indeed, the Supreme Court in Re R. Ltd [1989] IR 126 ruled that "the administration of justice in public [simply] require[s] that the doors of the court must be open so that members of the general public may come and see for themselves that justice is done." Any claim therefore by the media that they are acting as the guardians of justice by staking out the home of Eamonn Lillis, or by following him and his daughter on a trip into Dublin, would clearly not meet the court's view of what is protected in a case like this.

An appeal in the case is expected based in relation to the sentence imposed and possibly in relation to the Judges summing up to the jury.

Mental Health Law Conference & Book Launch

2010-02-04T15:01:00.003Z

The Faculty of Law, UCC, and the Mental Health Lawyers Association have announced a jointly organised conference on Mental Health Law. The event will take place in Brookfield Health Sciences Complex on Friday 26 February from 10 a.m. to 4.30 p.m.

The conference will be followed at 4.30 p.m. by the launch of a new book on Mental Health Law and Practice by Dr Darius Whelan. Dr Mary Henry, former independent Senator, will speak at the launch.

For full details and a booking form for the conference, see www.ucc.ie/en/lawsite/eventsandnews/events/mentalh2010/

Speakers at the conference include:

Dr Mary Donnelly, Faculty of Law, UCC
Mr Mark Felton, Solicitor, Chairperson, Mental Health Lawyers Association
Ms Mary Forde, Legal Officer, Amnesty International
Ms Áine Hynes, Solicitor, Vice Chairperson, Mental Health Lawyers Association
Mr Hugh Kane, CEO, Mental Health Commission
Mr Michael Lynn, Barrister at Law
Ms Patricia Rickard-Clarke, Law Reform Commission
Mr Diarmaid Ring, Mental Health Service User and Activist
Dr Darius Whelan, Faculty of Law, UCC

If you wish to attend the book launch or require any further information, you should email lawevents@ucc.ie. RSVP: 19 February 2010

ICC reverses Al-Bashir Genocide ruling

2010-02-03T12:17:00.003Z

The appeal chamber of the ICC has today issued a ruling reversing a decision of the pre-trial chamber on the Al-Bashir case. Last year the pre-trial chamber had decided that the prosecution had failed to provide sufficient evidence to charge Sudanese president Omar Hassan al-Bashir with genocide. The appeal court has now concluded that

The decision by the pre-trial chamber not to issue a warrant in the respect of the charge of genocide was materially affected by an error of law.

The case will now go back to the pre-trial chamber for them to rule on whether to add genocide to Bashir's charge sheet. The president of Sudan is already charged with seven counts of crimes against humanity and war crimes, including murder, extermination, torture and rape.

Sudan's response was, as would be expected, critical of the ruling claiming that it was motiviated by politics and designed to harm democratic elections due to take place in April. A senior information ministry official was quoted as saying:

This procedure of the ICC is only to stop the efforts of the Sudanese government towards elections and a peaceful exchange of power.

Extended: Call for Papers – CCJHR Postgraduate Conference 29th Apil 2010

2010-01-22T12:50:00.006Z

The Centre for Criminal Justice and Human Rights at University College Cork is pleased to announce its IV Annual Postgraduate Conference which will take place on Thursday, 29th April, 2010. The conference is aimed at those who are undertaking postgraduate research in the areas of crimial law, criminal justice and human rights.

The theme for this year's event is "Borders of Justice: Locating the Law in Times of Transition." The aim is to reflect upon how reactionary law making and the related rhetoric of crisis impact negatively on fundamental rights protection and the criminal law. We hope that this theme will encourage debate on the challenging and complex questions which arise when defining the remit of the law in changing and turbulent times.

This international one-day event will attract promising research scholars from Ireland, the UK and Europe in the areas of law, politics, philosophy and the related social sciences. We are especially interested in papers that relate to human rights, criminal justice, criminal law or the intersection of these fields. However, we also welcome papers dealing with issues outside these areas that fall within the broader theme of the conference. Papers will be streamed thematically, with previous years including such sessions as "Contemporary Discourse in Criminal Law", "Civil Liberties, Technology and State Security Claims" and "International Law, Human Rights and Development Policy".

The keynote address will be delivered by Professor John Gardner of the University of Oxford. John Gardner has been Professor of Jurisprudence at the University of Oxford since 2000. He was formerly Reader in Legal Philosophy at King's College London (1996-2000), Fellow and Tutor in Law at Brasenose College, Oxford (1991-6) and Fellow of All Souls College, Oxford (1986-91). He has also held visiting positions at Columbia, Yale, Texas, Princeton, and the Australian National University. In 2010 he will hodl short-term positions at Auckland and Genoa. He serves on the editorial boards of the Oxford Journal of Legal Studies, Legal Theory, Law and Philosophy, and The Journal of Moral Philosophy, among others. His work extends across a wide range of topics in the philosophy of law. Currently he is working mainly in the philosophy of private law, but he has also written philosophically on topics as diverse as constitutions, discrimination, human rights, the emotions, the nature of law, and the nature of rationality. His most extensive body of work is in the theory of criminal law and some of it is collected in his 2007 book Offences and Defences (OUP).

The best paper of the conference will receive a prize of €200 which is sponsored by the Centre for Criminal Justice and Human Rights.

Please submit an abstract (max. 300 words) to the organising committee by Friday, 19th February 2010. Successful conference submissions will be notified by Friday, 5th March 2010. Submissions and further enquires should be directed to ucclawconf@gmail.com.

For further information, registration details etc. please visit https://exchfe01.ucc.ie/exchweb/bin/redir.asp?URL=http://www.ucc.ie/en/ccjhr. For updates on accepted papers and the provisional programme connect with us on Twitter https://exchfe01.ucc.ie/exchweb/bin/redir.asp?URL=http://twitter.com/ucclawconf and feel free to retweet to friends and colleagues!

Please note: a CPD Certificate of Attendance of up to 5 hours will be available for this conference.

Announcing the 4th Annual CCJHR Lecture

2010-01-15T12:19:00.004Z

The Centre of Criminal Justice and Human Rights, Faculty of Law, University College Cork requests the pleasure of your company at The 4th Annual Criminal Justice and Human Rights Lecture.

The 4th Annual Criminal Justice and Human Rights Lecture is to be delivered by The Honourable Mr. Justice William McKechnie, Judge of the High Court on “Respectable Criminality”and will take place on Thursday March 4th 2010 in the Aula Maxima, UCC at 6.30pm (Registration for this event will take place from 17:45)

The lecture will be chaired by Dr.David Riordan, Judge of the District Court With a wine reception to follow.

A 1.5 Hours CPD Certificate of Attendance will be issued for this event.There is No admission charge for this event.

RSVP via email: ccjhr@ucc.ie by 10th February, 2010.

Further information:
Noreen Delea,
Department of Law
UCC
Telephone: 021-4903220

More on Stop and Search powers

2010-01-14T15:59:00.004Z

The decision of the ECtHR in Gillan and Quinton has given rise to some interesting comment. See a good contribution by Vicky Conway "Stop and Search and the Human Rights Boundaries" on the Human Rights In Ireland blog.

And in today's Guardian, Sir Ian Blair, former Commissioner of the Metropolitan Police, has argued in favour of the powers ruled illegal by the Court in an article entitled "In defence of stop and search". The main thrust of his argument is that the ends justify the means, and if it was not for such powers the police would victimise suspect communities:

Were the power to be abolished or unduly curtailed in its application ... two
consequences are likely. The first is that it would be almost inevitable that police officers would, as a pragmatic solution, begin to target these kind of searches much more closely on the particular community from which the current threat is seen mainly but not exclusively to come, young Muslims, with all the increase in alienation that would engender. Inconvenience shared must be preferable. Second, and avoidably, Britain would simply be less safe.

This seems to miss the clear points made by the court that firstly, those commuties were actually being targetted under the powers in the Terrorism Act 2000 and presumably the police felt justified and empowered to do that, and secondly, that no one had been charged with any terrorism related offences following a stop and search.

No country should allow their police to justify random and extensive stop and searches under the justification of making terrorists understand (as in airports) "that they are at risk, however covert their behaviour, of being searched and having their details logged at random."

The decision of the ECtHR seems to be lost of Sir Ian Blair. It will be interesting to see if the British Government understand a little better the importance of Article 8 rights in relation to stop and search powers.

Gillan & Quinton v. UK - ECtHR rules UK police stop and search powers violate Art 8

2010-01-13T11:11:00.004Z

The European Court of Human Rights yesterday decided that the UK’s anti-terrorism legislation allowing police to stop and search individuals without reasonable suspicion of wrongdoing breached Article 8 of the ECHR.

Sections 44-47 of the Terrorism Act 2000 provide senior police officer’s with the power to issue an authorization, if s/he thinks it “expedient for the prevention of acts of terrorism” which allows uniformed police officers within a defined geographical area to stop anyone and search them. These provisions go beyond the normal stop and search powers under the Police and Criminal Evidence Act 1984 which require that the police officer has a “reasonable suspicion” that the individual possesses a “prohibited article” or is about to or has committed a crime. The authorizations under the 2000 Act are designed to be temporary lasting only 28 days and only within a limited area. However, the reality of the use of these provisions has seen the entire area of Greater London designated as suitable for searches and the authorization continuously renewed to the extent that the powers operated over a number of years. Thus the extraordinary power was normalized, something that was to have an impact upon the decision of the court.

The case of Gillan & Quinton v. UK was brought following stops and searches of the applicants at a demonstration against an arms fair in London in 2003. Gillan was a protester and Quinton a photo journalist. They challenged their treatment at the hands of the police through a judicial review which was dismissed in the domestic courts (R. v. Commissioner of Police for the Metropolis and another). The House of Lords decision had been criticized for taking a weak approach to judicial review, or even showing excess deference to the executive, in the area of anti-terrorism powers. The court was doubtful that an ordinary search carried out by the police would amount to a lack of respect for a person’s private life. And that even if Article 8 of the convention was relevant the procedure under the 2000 Act was “in accordance with the law” and that it would be “impossible to regard a proper exercise of the power as other than proportionate when seeking to counter the great danger of terrorism.”

A case was then brought to the European Court of Human Rights claiming violations of Articles 5 (right to liberty), 8 (right to respect for private and family life), 10 (freedom of expression) and 11 (right to free association).

The ECtHR found a violation of Article 8 and so did not go on to consider the other violations raised by the case. It did, however, indicate that it felt that there was a breach of Article 5. In particular it noted that although neither applicant had been held for longer than 30 minutes they were during that period “entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges.” The court noted that the elements of coercion were “indicative of a deprivation of liberty” within Article 5. This is in contrast to the House of Lords decision in which Lord Bingham concluded that the brief nature of stop and search and the lack of handcuffs/confinement meant there was no “deprivation of liberty”.

In relation to Article 8 the court found that stop and search powers were a clear interference with the privacy of the person.

The public nature of the search, with the discomfort of having personal information exposed to public view, might even in certain cases compound the seriousness of the interference because of an element of humiliation and embarrassment.

The court went on to conclude that the interference was not “in accordance with law” finding that the “wide discretion” provided by the legislation had not been limited by adequate legal safeguards to prevent abuse of the process. The court noted the statistical and other evidence that had been presented to it showing the extent of the police powers under the law.

The Ministry of Justice recorded a total of 33,177 searches in 2004/5, 44,545 in 2005/6, 37,000 in 2006/7 and 117,278 in 2007/8. In his Report into the operation of the Act in 2007, Lord Carlile noted that while arrests for other crimes had followed searches under s.44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of s.44 abounded….

The court concluded that there were clear risks of discriminatory use of stop and search powers with the data showing a “disproportionate” impact on black and Asian persons. In relation to the case at hand the court also noted that risk that “widely framed” powers could be “misused against demonstrators and protesters in breach of Article 10 and/or 11 of the Convention”.

The decision of the court therefore recognizes the reality of the use of stop and search powers, both in relation to ethnic minorities and demonstrators. The evidence from the Carlile reports powerfully demonstrates the long argued position that allowing the police to stop and search on the basis of a hunch, and without “reasonable suspicion” will have a tendency to result in arbitrary and discriminatory use of those powers.

The judgment of the court therefore criticizes the whole process by which the stop and search powers under the 2000 Act were authorized by both police and the Home Secretary. The lack of control and the ability of the police to stop people based on instinct clearly raised serious concern about the arbitrary nature of the powers. Whilst the immediate response from the UK government was that their lawyers were reviewing the judgment it is interesting to note that the Metropolitan Police took a decision in 2009 to curtail the use of s44 powers.

The seriousness of the situation relating to the police use of stop and search in the UK was emphasized on the day of the courts judgment when the Guardian reported that Kent Police had admitted conducting illegal searches on 11 year old twins at an environmental demonstration. The admission came as part of a court case brought by protests against the policing of the demonstration at the Kingsnorth power station in 2008. The search had been part of a “checkpoint” system set up by the police which saw over 3500 protesters systematically stopped and searched.

Call for Papers – CCJHR Postgraduate Conference 29th Apil 2010

2010-01-08T11:08:00.002Z

The theme for this year's event is "Borders of Justice: Locating the Law in Times of Transition." The aim is to reflect upon how reactionary law making and the related rhetoric of crisis impact negatively on fundamental rights protection and the criminal law. We hope that this theme will encourage debate on the challenging and complex questions which arise when defining the remit of the law in changing and turbulent times.

This international one-day event will attract promising research scholars from Ireland, the UK and Europe in the areas of law, politics, philosophy and the related social sciences. We are especially interested in papers that relate to human rights, criminal justice, criminal law or the intersection of these fields. However, we also welcome papers dealing with issues outside these areas that fall within the broader theme of the conference. Papers will be streamed thematically, with previous years including such sessions as "Contemporary Discourse in Criminal Law", "Civil Liberties, Technology and State Security Claims" and "International Law, Human Rights and Development Policy".

The best paper of the conference will receive a prize of €200 which is sponsored by Griffith College, Cork.

Please submit an abstract (max. 300 words) to the organising committee by Friday, 12th February 2010. Successful conference submissions will be notified by Friday, 26th February 2010. Submissions and further enquires should be directed to ucclawconf@gmail.com.

Reforming criminal defences - the LRC recommendations on Defensive Force

2009-12-22T16:00:00.007Z

This blog post was contributed by Dr Catherine O'Sullivan, member of the CCJHR.

The Report on Defences in Criminal Law launched by the Law Reform Commission (LRC) in December 2009 has received quite a bit of attention due to recommendations made in relation to the use of defensive force to protect the home. In particular, the LRC’s recommendation that there be no upper limit on the amount of force that can be legally used to defend the home has been criticised for being the equivalent of a “have a go charter” by the Irish Council on Civil Liberties (ICCL).

However, while the ICCL is correct to be concerned about the scope of the LRC’s recommendations, it is perhaps not fair to dismiss the proposals in their entirety. Many of the recommendations regarding the use of lethal force in a home invasion context are sensible and a careful read of the relevant sections in chapter 2 of the Report shows that the LRC situated them within their recommendations for the defence of legitimate defence as a whole. Therefore while lethal force may be legally permitted to defend the home under section 3 of their proposed Criminal Law (Defences) Bill 2009 – proposals that the Minister for Justice has promised to table before the Oireachtas in 2010 in his speech at the launch of the Report – the use of that force must meet to varying degrees the threshold, imminence, necessity and proportionality requirements that the LRC also recommended as integral to the definition of legitimate defence as a whole.

In order to understand the ambit of the LRC’s recommendations regarding lethal defensive force in the home, it is first necessary to examine the LRC’s recommendations regarding lethal defensive force generally. The primary reason that the LRC recommended that these four requirements be part of the general defence of legitimate defence was that under the law on defensive force as currently enshrined in Ireland either in legislative form (for non-fatal offences) or in common law (for cases in which lethal force is used), a vague standard of reasonableness is set. Under this reasonableness test, the degree of the threat faced/threshold, imminence, necessity and proportionality are merely factors which are taken into consideration in order to determine if the accused’s response was reasonable. This, the LRC, felt offended against the legality principle – the idea that citizens need clear guidance as to what they are legally permitted to do and, more importantly, not to do in given situations (paras 2.24-2.26). As such they recommended that lethal force should only be permitted where the threat faced reached a certain threshold (the accused must have faced death, serious injury, rape, aggravated sexual assault or false imprisonment by force), where the threat was imminent (a concept looser than that of immediacy which accordingly allows for the use of pre-emptive force), where the circumstances necessitated the use of force (i.e. safe retreat was not possible and that, if the situation was self-induced, that the response of the original victim was disproportionate) and that the use of force was not grossly disproportionate in light of the threat faced. These requirements are not alternatives. The LRC recommends that all four should be present before someone could lay claim to the defence of legitimate defence in a case involving lethal force.

Under this new definition of the defence the concept of reasonableness is not entirely abolished. In section 2(7) of the proposed Bill 2009, the LRC suggests that regard should be had by the trier of fact to the reasonableness of the accused’s beliefs in his/her determination that the threat was imminent, that the use of force was necessary and that the amount of force s/he used was proportionate. As such, the accused’s honest and reasonable perception of the extent of the threat s/he faced where s/he used lethal force is irrelevant – an entirely objective test applies to the threshold requirement. The implementation of an objective test for this criterion was justified by the LRC with reference to the legality principle (paras 2.44-2.46). Its exclusion from one of four requirements however is arguably inconsistent – the same factors that a jury will consider to determine whether the minimum threshold requirement was met will also arise in their consideration of whether the use of force was proportionate – and may make the application of the four requirements more difficult for jurors to apply.

The threshold, imminence, necessity and proportionality requirements are also relevant to the use of lethal defensive force within the home, although with some modifications. For example is it argued by the LRC that there should not be a safe retreat obligation imposed in a home invasion context given the special status of the home constitutionally (Articles 40.3 and 40.5), physically and emotionally. This recommendation to give legislative status to the Castle Doctrine is in effect the implementation of the Court of Criminal Appeal’s decision in People (DPP) v. Barnes. However there is no explanation offered for the jump from the LRC’s threshold recommendation in para. 2.84 that lethal defensive force may be used to protect “a person’s own safety, the safety of another or the safety of the person’s property” in the context of home invasion to the text proposed in section 3 of the 2009 Bill:

(2) Notwithstanding section 2(2), a person is justified in using lethal force in his or her dwelling, or in the vicinity of the dwelling, by way of defence to the threat of, or use of, unlawful force by another person, but only in order to repel the threat of
(a) death or serious injury,
(b) rape or aggravated sexual assault,
(c) false imprisonment by force,
(d) entry to or occupation of the dwelling (including forcible entry or occupation) that is not authorised by or in accordance with law, or
(e) damage to or destruction of the dwelling.

The offending sub-section is 3(2)(d). Not only is this text broader than the LRC’s recommendation in para. 2.84 but it is also possibly unconstitutional in its range. The extension of the right to use lethal force in a case where the burglar simply enters the property is at odds with the LRC’s statement in para. 2.83 that “[b]y putting these safeguards in place … the constitutional rights to life of both the householder and the burglar or intruder are given protection to an appropriate level, as identified … in the Barnes case … .” However Hamilton J in Barnes was very clear that killing a burglar simply because he was a burglar would be contrary to Article 40.3.1 (the burglar’s right to life). He held: “… a person cannot lawfully lose his life simply because he trespasses in the dwellinghouse of another with intent to steal. In as much as the State itself will not exact the forfeiture of his life for doing so, it is ridiculous to suggest that a private citizen, however outraged, may deliberately kill him simply for being a burglar.” Section 3(2)(d) clearly offends against this constitutional consideration. It is thought that it was this aspect of the Bill 2009 that the ICCL was referring to when it noted that the Bill would be “unlikely to pass constitutional muster.”

20th Anniversary of the UN Convention on the Rights of the Child

2009-12-14T13:42:00.005Z

This blog was contributed by Aekje Teeuwen, Legal Consultant based in Phnom Penh, Cambodia

A juvenile defendant, aged 17 was arrested, charged with robbery and placed in pre-trial detention for two months and 26 days. The court of first instance sentenced the defendant for five years in prison. The defendant appealed this decision and waited in custody for two years and ten months for his appeal trial. Although, the lawyer was present during appeal trial, the defendant was tried in absentia. The appeal court reduced the sentence to three years and six months.

As of today, a total number of 851 minors, between 14 and 18 years of age, of whom 826 are male and 25 female, are detained in Cambodian prisons. In many cases these children are denied their basic legal rights, resulting in excessive periods held in pre-trial detention, as well as prolonged detention during the appeal process. Further, a lack of legal representation and being tried in absentia compounds the denial of their basic rights.

In Cambodia there are no children’s courts nor Judges and Prosecutors specialized in the area of juvenile justice and the application of the rights of the child. As a result, children are often subjected to the same judicial procedures and processes as adults. The extreme vulnerability of these children is further exacerbated as a result of them not being housed in separate sections of the prison to the adults, as well as inadequate food, healthcare and access to educational & rehabilitation programs.

During 2007, a Cambodian non-governmental organization called The Center for Social Development (CSD) monitored 22 appeal trials in which 26 juveniles were involved. 61.5 % of the juvenile defendants were held in custody pending appeal trial. Of these 61.5 %,
12.5 % of juvenile defendants waited in custody less than one year (8 months). 56.25 % of the defendants waited for more than one year and 31.25 % of the juvenile defendants had to wait more than two years. In the beginning of 2008, a case was monitored in which a juvenile defendant waited for four years and three months before an appeal trial date was set.

It is outlined in the Cambodian Criminal Procedure Code Article 387 that the Court of Appeal must decide the appeal trial date within a reasonable period of time. Despite this excessive periods of time pass before appeals are heard. These excessive 'waiting-periods' for appeal trial are a great cause for concern, in particular in cases where the defendant is in custody and/or which involve children and considers waiting for years for an appeal trial 'beyond a reasonable time'. Also it does not comply with article 37 of the UN Convention on the Rights of the Child, which stipulates that “the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. This issue has been specifically highlighted in this article because up to this date there is very little attention given to this particular matter in Cambodia.

In addition, it was noted that amongst the 26 juvenile defendants 23 % did not have access to defense counsel during their appeal trial. As well, 65 % were tried in their absence. It is clearly outlined in national and international laws that every citizen has the right to be tried in his presence and enjoys the right to judicial counsel. The UNCRC recognizes the importance of a child’s access to legal representation in Article 37 (d): “Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance”.

We are celebrating the 20th anniversary of the UN Convention on the Rights of the Child. This is a great opportunity to promote and highlight the rights concerning children in conflict with the law throughout the whole criminal process, from the commencement of the judicial proceedings until final judgment is rendered. Therefore, it is urged to the Government of Cambodia, in accordance with the UNCRC to which Cambodia has made a solemn commitment in 1992 to uphold, to act in the best interests of Cambodian children, and to specifically require Judges and Court officials to fast-track juvenile appeals and to give them the highest priority and to ensure the shortest possible period of time prior to adjudication.

Finally, this is an issue not only for Cambodia, but for all judicial systems throughout the world to comply with their national and international laws and conventions regarding the rights of the child, and to always take into account and respect the particularly special position children hold in our societies.

JILIR - Call for submissions

2009-12-07T12:14:00.003Z

The Journal of International Law and International Relations has issued a call for submissions from scholars of International Law and International Relations. The deadline for submissions is January 23, 2010.

The journal is a joint venture of the University of Toronto Faculty of Law and the Munk Centre for International Studies, the JILIR is a peer-reviewed scholarly journal that publishes articles on the wide variety of topics located in the intellectual space jointly occupied by International Law and International Relations.

Submissions should be sent via e-mail to submissions@jilir.org as attachments in Microsoft Word or Rich Text format, preferably with footnoted citations. The author's full contact information (name, institutional affiliation, mailing address, telephone number(s), and e-mail address) should be included in the body of the e-mail.

Murphy Report: Can a failure to protect be prosecuted?

2009-12-07T10:16:00.005Z

The following is a discussion of whether it is possible to prosecute those who failed to intervene in cases of child abuse in the Catholic Archdiocese of Dublin. The material was first published in the November Edition of Firstlaw's Criminal Law Online Service.

The Report of the Murphy Commission of Investigation into the Catholic Archdiocese of Dublin has understandably given rise to a huge level of public concern. The Report covers the period between 1975 and 2004 and essentially deals with two separate issues:

An examination of the handling of sexual abuse complaints in the Archdiocese itself;
Detailing the individual claims of abuse as against 46 individual Priests.

The nature of the individual incidents of abuse outlined in the Report is deeply shocking. Many of the incidents have themselves given rise to criminal prosecutions and convictions in respect of particular complainants. However, the publication of the Report quickly gave rise to calls, particularly from victims groups, for a criminal investigation in respect of those parts of the Report which appeared to outline an unwillingness on the part of the Church authorities and/or State institutions to investigate complaints and prosecute them. This part of the Report gives rise to some very interesting questions in relation to the applicability of the Criminal Law in terms of the relationship between the Church and individual priests against whom complaints were made, and also the relationship between the Church and outside organisations and in particular An Garda Síochána.

The hunger for prosecutions in respect of what has been described as a "cover up" is entirely understandable and in that regard the flames have been fanned to an extent by the immediate reaction of the Minister for Justice who was reported as saying

"No Government can guarantee that in the future there won't be evil people who will do evil things, but the era where evil people could do so under the cover of the cloth, facilitated and shielded from the consequences by their authorities, while the lives of children were ruined by such cruelty is over for good. The bottom line is this: - a collar will protect no criminal."

In so far as these remarks refer to individual perpetrators of abuse the remarks are uncontroversial; undoubtedly prosecutions for abusive activity have been brought and, having regard to the way in which ‘delay jurisprudence’ has developed in this jurisdiction, prosecutions may still be brought in the future notwithstanding the antiquity of any given allegation.
However, the remarks of the Minister, and those of victims’ group One in Four fed into a wider public desire to see senior church figures punished for failures in the management of complaints and the management of priests against whom complaints had been made. What many members of the public now seem to want to know is whether representatives of the Church itself, who abused no one, but who may have known of abuse can be prosecuted for their failures identified in the Report. It must be said that while putting the avoidance of scandal above the welfare of children was a shocking policy choice it is difficult to see in practical terms how criminal prosecutions would be sustainable in relation to that.

There has been much comment on the kinds of laws that may or may not have been breached and which could give rise to prosecution. Reckless endangerment of children has been mentioned in this context. However, this offence was created by the Criminal Justice Act 2006 and involves a situation where a person having authority or control over a child or abuser intentionally or recklessly endangers a child by causing or permitting that child to be placed or left in a situation which creates a substantial risk to the child of being a victim of serious harm or sexual abuse or fails to take reasonable steps to protect the child from such a risk while knowing that the child is in such a situation is guilty of an offence. While this would have undoubted applicability in circumstances where individuals known to have abused children were moved to other posts where access to children was unhindered, it is not an offence which has any retrospective application and in the context of the time period which the Murphy Commission was dealing is probably of little or no relevance.

There are nonetheless numerous options available to the DPP should he wish to pursue criminal prosecutions including the possibility of conspiracy, the common law offence of perverting the course of justice and the common law offence of misconduct in public office. It would however require some ingenuity to pursue a case for the first two offences. It is difficult to see how conspiracy in a strict legal sense (an agreement to do an unlawful act or a lawful act by an unlawful means) could be proven in relation to decisions to move priests from particular locations or in relation to the failure to pass on information in relation to allegations to relevant authorities. The Law in this area has always sought to distinguish between a coincidence of actions and agreement and does not seek to punish those combining coincidentally towards achieving shared goals.

The common law offence of perverting the course of public justice requires an act or course of conduct which has a tendency to, and is intended to, pervert the course of public justice. It does appear in general terms that a positive act is required and that inaction would be insufficient to constitute the offence. This offence could perhaps be made out where there was evidence to establish that the commission of an offence had been concealed and again is possibly made out where there is evidence to establish a conspiracy to obstruct An Garda Síochána. Putting the Police on a false trail might be a classic example of that.

It seems that a failure to prosecute itself could not constitute the offence of perverting the course of public justice unless one was able to establish that the failure to prosecute was itself as a result of a corrupt inducement or of a reward or some other benefit. This would seem to be a necessary follow on from the fact that the decision to prosecute is itself a discretionary one vested in either the Director of Public Prosecutions and/or An Garda Siochana depending on the nature of the offence alleged.

The option with the strongest chance of success is the common law offence of misconduct in a public office which was expanded in the English case of R. v. Dytham [1979] QB 722 to bring a prosecution against a police officer for failing to fulfil his obligations as an officer of justice to intervene in a savage beating that resulted in the death of one of the parties. The Lord Chief Justice in the Court of Appeal in Dytham made clear that the neglect of duty must be wilful and not merely inadvertent, and further that it must be culpable being without reasonable excuse or justification. The level of culpability had to be 'of such degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.'

Dytham was approved obiter by Mr. Justice Carney in the case of DPP v. Bartley (13 June 1997, unreported), High Court. The accused in this case was convicted of incest. However Justice Carney took the opportunity provided by the case to note that if a member of the Gardaí receives a credible complaint of a felony they are obliged to investigate it. The complainant in this case had approached the Gardaí when she was 12 ½ years old to complain about her stepbrother’s inappropriate behaviour. Her complaint was not taken seriously and she endured a further 25 years of sexual abuse.

The offence of misconduct in public office could potentially be utilised beyond the Gardaí to pursue members of the Gardai who failed to act on information they received and potentially could be further expanded to prosecute Church officials who, by virtue of their position as heads of school boards, etc. held public office.

Despite the clear applicability of this offence, the prosecution of the substantive offences themselves has caused great difficulty for both complainants and accused having regard to the time frame of the activities complained of. It would seem unlikely that prosecutions in relation to institutional failures from that same time period would have a realistic prospect of success.

Rights-based approach to child law

2009-12-07T09:57:00.005Z

In today's Irish Times Dr Ursula Kilkelly explores the increasing impact of international law on Ireland's family law. The sources of international law in this area not only include the seminal Convention on the Rights of the Child, but also law emerging from the Hague Convention on Private International Law and from Europe (Council of Europe and the European Union). As Dr Kilkelly notes

Many of these declarations, treaties and agreements represent collective wisdom, accommodate diverse legal and social systems and reflect a common language and approach to child and family law matters such as adoption, family breakdown and matters of custody and access.

She goes on to highlight that the more recent significant development in this area is the EU Charter of Fundamental Rights, which came into force on December 1st as part of the Lisbon Treaty. Importantly, the Charter requires that the best interest of the child is a primary consideration in all actions concerning children. It also expects that children’s views be taken into account in matters that concern them. It is clear that in this area the Charter reflects the approach of the CRC and is as a result likely to of major importance in Irish domestic law.

Indeed, it may require a reshaping of Irish law in this area, which continues to think about children in paternalistic terms.... Concepts of “welfare” (all its components), “custody” and “access” should be challenged on the basis of the convention’s influence for their failure to promote effectively the independent rights of children to care and protection and to enjoy contact with and the involvement of both parents in their lives.

Ultimately, whilst Dr Kilkelly notes that

[T]he complexity of Irish family law, into which international and European law is now interwoven, means that lawyers need GPS to navigate its many layers and influences. The changing face of family law in Ireland brings with it the challenge of keeping up with these many new and fast-developing authorities.

She also concludes that there are many positive opportunities that will flow from these fast changing developments:

For those interested in pushing out the limits of Irish family law, in seeing it modernised from within, these inter-related international instruments and their underlying values provide a lens through which Irish family law can be considered afresh.

Using the CRC to protect the child’s rights in youth crime in England and Wales

2009-12-01T13:04:00.003Z

This blog post was contributed by Dr Kathryn Hollingsworth, Senior Lecturer in Public Law at King's College London

The UN Convention on the Rights of the Child is not domestically enforceable in England and Wales, but its profile – and the profile of children’s rights generally - has been raised in recent years thanks to the campaigning efforts of NGOs such as the Children’s Rights Alliance for England, the Howard League for Penal Reform, and UNICEF. On 19th November 2009 a private member’s bill, The Children’s Rights Bill 2009, had its first reading in the House of Lords. The Bill, if passed, will have the effect of incorporating the UN Convention on the Rights of the Child into UK domestic law, using procedures which mirror those set out in the Human Rights Act 1998 by which the European Convention on Human Rights was ‘brought home’ to the UK.

The chances of the Children’s Rights Bill making its way onto the statute book are slim. But that does not mean that the CRC has no place in English law. In the last five years, the judiciary in England and Wales have increasingly drawn on the CRC in order to interpret the rights of children in domestic law. Lady (previously Baroness) Hale and Lord Justice Munby have been particularly instrumental in this regard. This has had an important and positive impact on the protection of children’s rights, especially in the youth crime context.

The leading decision is R (on the application of R) v Durham Constabulary [2005] UKHL 51, where Baroness Hale made it clear that the CRC must be used to interpret the meaning of the child’s enforceable rights under the ECHR. The case concerned the system of diversion in England and Wales and specifically the question of whether the absence of a requirement for a child to consent to a reprimand or warning constituted a breach of the child’s Article 6 ECHR right. Baroness Hale drew on Article 40(3)(b) and 40(4) CRC, as well as the Beijing Rules and the Riyadh Guidelines, and expressed her ‘grave doubts’ as to whether the system of diversion in England and Wales complied with the CRC (because of its rigidity and because it propels the child more quickly through the criminal justice system). Crucially, however, Baroness Hale pointed out that the lack of a requirement to gain the child’s consent before being issued with a final warning did not breach the child’s enforceable rights under the ECHR.

Despite the unfavourable outcome for the child in this case, Baroness Hale’s dicta is permeating through into other cases. One area of youth crime where the child’s CRC rights are of particular importance is where the child is detained in a custodial institution. Here the CRC can be used to emphasise the child’s status as child – the need to care for the child as a child rather than as a ‘prisoner’. Article 3 CRC can be especially useful here. For example, Mr Justice Munby (as he was then) drew on the CRC in his landmark judgment in R (on the application of Howard League) v Secretary of State for the Home Department [2002] EWHC 2497. In particular, the child-specific obligations such as Article 3 CRC imposed ‘on the Prison Service positive obligations to take reasonable and appropriate measures’ designed to ensure that children in YOIs are treated with humanity and with respect for their dignity, and that they are not subjected to torture or inhuman or degrading treatment. In particular, when balancing the interests of the child against the wider interests of the community and other inmates, Mr Justice Munby argued that regard should be had to the inherent vulnerability of children in a YOI, and also to the principle that the best interests of the child should be a primary consideration. This approach was followed very recently by the Court of Appeal in R (C) v Secretary of State for Justice [2008] UKCA Civ 882, a judicial review case brought to challenge the regulations which allowed restraint to be used in Secure Training Centres for the purposes of good behaviour and discipline. In this case, the application was successful and the regulations were quashed for breaching Articles 3 and 8 ECHR, both of which were interpreted by taking account of the CRC.

These are just a handful of cases where the CRC has been used successfully to protect the child’s rights in the prison context. But, the Convention has certainly not proved to be a panacea. Even where it is used by the judiciary as an interpretative tool, it can only extend as far as the child’s rights in domestic law or under the ECHR allow. For example, in R (on the application of DT) v Secretary of State for the Home Department [2004] EWHC 13 a girl was being moved from a Local Authority Secure Children’s Home into an adult female prison because of shortage of space. The judge held that an apparent breach of Article 37(c) CRC was irrelevant here (not least because the UK had derogated from that provision but nonetheless it is not directly enforceable) but that the girls’ article 8 ECHR rights were engaged, and the content of these rights could be interpreted in light of the CRC – though only Article 3 because of the derogation from Article 37(c). Although the judge agreed that her Article 8(1) rights were engaged when she was transferred to an adult prison, the restriction was deemed justifiable under Article 8(2) ECHR. More recently in R (on the application of London Secure Services) v Youth Justice Board [2009] EWHC 2347, a JR challenge was brought against the Youth Justice Board for its decision not to re-commission 28 beds in local authority secure homes (the preferred type of institution from a children’s rights perspective for children detained in the secure estate). The challenge was not successful despite Mr Justice Forbes claiming to take into account the child’s rights under the CRC in determining the content of the relevant ECHR rights.

There appears to be only so much the judiciary can do to protect the child’s CRC rights in youth crime. But, although limited, the willingness of the judiciary to draw on the CRC to interpret the meaning of a child’s rights is particularly crucial given the Conservative Party’s pledge to repeal the Human Rights Acta if they are elected in 2010. If this happens, the rights under the ECHR will no longer be domestically enforceable and the judgements of the European Court of Human Rights will presumably decline in relevance to rights protection in England and Wales. This could have serious implications for children in trouble with the law for three reasons: firstly because the Tory’s motivation for replacing the HRA in part comes from the fears that the Human Rights Act is a ‘criminal’s charter’ – it may be the rights of ‘criminals’ which are thus most restricted in any new bill. Secondly, the ECHR has been an invaluable tool in protecting the rights of children detained in custodial institutions. And thirdly, the justification Lady Hale gave for interpreting the child’s ECHR rights in light of the CRC in the Durham Constabulary case was that this is the approach taken by the European Court of Human Rights.

It is crucial that the CRC is seen as an over-arching and consistent presence that is founded in the UK’s ratification of the Treaty and not in the decisions of the European Court of Human Rights. If so, the English judiciary can continue to interpret a child’s rights in light of the CRC, regardless of the source of those rights – whether it be the ECHR or a domestic bill of rights. Clearly, the reach of such an approach will depend on the particular bill of rights in force but at the least it should help to ensure that the progress made in the interpretation and enforcement of the child’s rights in area of youth crime in the last 5 years is not lost, even if the Human Rights Act is.

Ireland and the CRC at 20

2009-12-01T10:03:00.004Z

This blog post was contributed by Dr Ursula Kilkelly, Co-Director of the CCJHR.

On 20 November 1989 the General Assembly of the United Nations unanimously adopted the Convention on the Rights of the Child. The Convention thus reached its 20th anniversary last month with reviews as to its impact taking place around the world. In Ireland, a party to the Convention since 1992, the Convention’s birthday has also been celebrated. Much progress has been achieved in the implementation of Convention provisions since ratification and many of the reforms can be traced back to the recommendations of the UN Committee on the Rights of the Child, which has reviewed Ireland’s progress in this regard on two occasions – in 1998 and 2006. After a slow start, Ireland adopted the National Children’s Strategy in 2000, established the Office of Ombudsman for Children in 2002 and put in place a longitudinal study on children to better understand children’s lives. Structural reform has seen the appointment of a super-junior Minister for Children and Youth Affairs, with a seat at the cabinet table, and the establishment of a government department dedicated to children’s issues – the Office of the Minister for Children and Youth Affairs. Additional strides in the advancement of children’s issues include the adoption of the National Play Strategy and in youth justice, the adoption of the Children Act 2001, the National Youth Justice Strategy and the establishment of the Irish Youth Justice Service. Many of the advances in the reduction of child poverty, the improvement of special needs education and the modernisation of the youth justice system were possible due to the allocation of increased resources to these areas. The severe economic conditions will undoubtedly see many of these investments rolled back. This is when the legal commitments in the Convention to take all measures to secure all rights to children become especially important.

On the negative side of the balance sheet, there are still many outstanding areas where the Convention has clearly had no or little impact. There is no 24 hour social work service for children at risk and no strategy to combat violence against children; children struggle to access any mental health services; they are rarely heard when the courts decide matters that affect them in family law and criminal proceedings, and there are many especially vulnerable groups of children – separated children, Traveller children and children who are homeless – who struggle to enjoy even the most basic of human rights. These barriers include a lack of investment, a failure to provide dedicated supports and services for children and a general invisibility of children in the making of law and policy. As research for the Ombudsman for Children showed in 2007, there are still many significant barriers in the way of children realising their Convention rights in Irish law, policy and practice.

More generally, the question still remains as to whether the Government and indeed Irish society have really engaged with the idea that individual children are autonomous rights-holders. Given that two decades have passed since the Convention was adopted, can we say with confidence that we take children’s rights seriously? In this regard, the Committee on the Rights of the Child recently reiterated its criticism that Irish law and policy does not reflect the rights-based approach set out in the Convention; nor are children heard in decisions that affect them. Critical to the development of a children’s rights culture is the integration into law and policy of the Convention’s guiding principles – the best interests principle, non-discrimination and the child’s right to be heard. Yet, notwithstanding the recommendations of numerous bodies, and the commitment of former Taoiseach Bertie Ahern over two years ago to put the child at the heart of the Irish Constitution, proposals for meaningful constitutional reform are still outstanding. This, above all else, is a very worrying sign that regardless of our international commitments and daily reminders of the appalling treatment that children received in our name, the Government is not willing to take the ultimate step to ensure that children’s rights will no longer be ignored or underplayed.

The UNCRC and the Politics of Children’s Rights Reform in Ireland

2009-11-20T12:37:00.004Z

Dr Conor O’Mahony, CCJHR, UCC

For over two decades now, there has been a steady and growing body of expert opinion in Ireland calling for the constitutionalisation of children’s rights in general and the welfare principle under Article 3 of the UNCRC in particular. In 1993, the author of the Kilkenny Incest Investigation Report, Mrs Justice Catherine McGuinness, stated that the effect of Supreme Court jurisprudence on the interplay between Article 41 of the Irish Constitution and the statutory welfare principle is to “render it constitutionally impermissible to regard the welfare of the child as the first and paramount consideration in any dispute as to its upbringing or custody between parents and third parties such as health boards without first bringing into consideration the constitutional rights of the family.” In 1996, the Report of the Constitution Review Group specifically recommended the explicit statement of the welfare principle in the text of the Constitution, along the lines of Article 3(1) of the UNCRC. This call was echoed by the Children’s Rights Alliance in a report published the following year, and welcomed in 1998 by the UN Committee on the Rights of the Child , who recommended that the Irish Government take all appropriate measures to accelerate the implementation of the recommendations of the Constitution Review Group. Numerous reports and academic publications have continued to campaign for this reform.

This backdrop would suggest that there was broad agreement on the need to constitutionalise Article 3 of the UNCRC. However, the reform proposals that ultimately emerged from the All-Party Oireachtas Committee on the Constitution Tenth Progress Report: The Family in 2006 and the Twenty-eighth Amendment of the Constitution Bill are significantly weaker than the wording of Article 3 (see Kilkelly & O’Mahony, “The Proposed Children’s Rights Amendment: Running to Stand Still?” [2007] 2 Irish Journal of Family Law 19). The timeline of developments on this issue shows that political momentum and opinion, having agreed with the views of experts and academic commentators for a significant period of time, has more recently shifted away from a sincere commitment to ensure that children’s rights should be the subject of genuinely stronger constitutional protection. Something along the way has clearly caused the politicians, particularly in the two main political parties, to get cold feet.

The weak wording currently being proposed can be traced in part to some of the public submissions received by the All-Party Oireachtas Committee on the Constitution when preparing their Tenth Progress Report: The Family. The invitation for submissions put the question to the public: “Does the Constitution need to be changed in view of the UN Convention on the Rights of the Child?” 22 of the submissions reproduced in the appendices were in favour of enhancing the constitutional protection for children’s rights, generally by amending the Constitution to include a provision along the lines of Article 3 of the UNCRC. These submissions came from a variety of sources. Submissions from State agencies included the Irish Human Rights Commission, the Ombudsman for Children, the Adoption Board, the Heath Services Executive and the Department of Social and Family Affairs. Several of the political parties, including the Labour Party, were represented, as were organisations and charities working with children and youths such as the ISPCC, Barnardos, the National Youth Federation and the Irish Foster Care Association. The professional body for solicitors, the Law Society, also made a submission in favour of such an amendment, as did the main Protestant denomination, the Church of Ireland.

Set against this is a selection of 27 submissions which stridently opposed the constitutionalisation of children’s rights, or any part of the UNCRC, or any attempt to alter the balance of rights as between the family unit and individual members of the family. When the source of these submissions is examined, it can be seen that there is a striking degree of overlap in terms of the people and groups represented by them. 10 of the submissions which were reproduced on this side of the debate came from organisations expressly identified as religiously based. Three of these were from Catholic organisations: one from the Conference of the Religious of Ireland, an umbrella organisation representing 138 Catholic congregations in Ireland, as well as separate submissions from two other Catholic organisations. Three of the submissions opposing change that were reproduced in the Report were from Baptist organisations; two were from groups describing themselves as “Christian”, and one was from an Islamic organisation. Of the remaining 17, 12 of the organisations identified as either pro-family, pro-life or both. The motivations of these groups can almost exclusively be identified, expressly or by implication, as being religious in nature, and this impression of overlap gains strength by the use of almost identical and quite distinctive language in a number of the submissions.

On the specific issue of the UNCRC, many of the submissions display a lack of basic understanding of the Convention. The Society for the Protection of the Unborn Child (Northern Ireland) state in their submission that “[t]he Constitution offers greater protection of children’s rights than the CRC, since the Constitution explicitly recognises the right to life before birth... As the Constitution already provides stronger protection of the rights of children than the CRC, no amendment is necessary. [A253]” While it is true that the Irish Constitution provides stronger protection than the UNCRC for the unborn child, no reasonable interpretation of the Constitution – with its one vague reference to the “natural and imprescriptible right of the child” and its overwhelmingly parent- and family-orientated jurisprudence – could possibly construe it as providing stronger protection for the born child than the comprehensive scheme of rights set out in the UNCRC.

Such a lack of understanding, along with a healthy degree of suspicion and even outright hostility, is displayed in many of the comments made regarding the UNCRC. Descriptions of the Convention range from “bland” and “flawed” at the kind end of the spectrum, to the view that it “lacks moral credibility”, is “contrary to the best interests of the child” and has given rise to “outrageous” and “perverse” interpretations at the less kind end. The Muintir na nÉireann submission (which, in spite of the grandiose name of the organization, was written in the first person) stated: “I don’t think any views of the UN should be entertained with regard to the rights of the child while it actively promotes abortion as a means of birth control in third world countries. [A195]” The Christian Women’s Federation submission states that “[w]hile the Convention contains some good principles, we do not require to be told by international bodies how to bring up children. [A41]” The European Life Network stated that the UNCRC has the potential to cause a range of problems, including to “forbid home schooling of children by parents” and “give children a ‘right to privacy’, which in practice gives children the legal right to tell parents not to interfere in their lives (and even make certain areas of their home off-limits to parents) [A63]”. Since these points are not in any way clearly stated in the Convention, and the Irish Constitution expressly protects the right of parents to educate their children at home, not to mention their property rights, it seems fair to describe this submission as far-fetched in the extreme.

What can be gathered from the submissions reproduced in the appendices to the All Party Oireachtas Committee’s Tenth Progress Report: The Family is that there is a well-organised and vocal lobby who are opposed to any attempt to strengthen the constitutional protection for children’s rights and best interests in Ireland by constitutionalising Article 3 of the UNCRC. The nature of the sources of the submissions and the content of some of them make it possible to question just how large this lobby is, given the degree of overlap between the submissions and the relatively small number of people represented by some of the organisations involved. It is perhaps also possible to question how well informed some elements of it are. Nonetheless, the lobby is not insignificant, and is certainly sincere in its views. The consequence of this is that the two main political parties, who cannot afford to alienate groups who identify themselves as religious, pro-family or pro-life, prefer to avoid the prospect of engaging in a very public and potentially bitter debate with voters that they wish to court.

As against this, the parties are also faced with an overwhelming body of expert opinion regarding the correct course of action, and – as the submissions made in favour of reform demonstrate – this side of the argument also enjoys significant support. Therefore the Oireachtas is trying to be seen to be responding to the calls for reform by putting forward an amendment; but, as the main parties are running scared of a vocal lobby opposing reform, the wording of the amendment currently being put forward is disappointingly weak and in its latest form changes nothing. In this sense, the Oireachtas is caught between two stools and risks satisfying neither party. A principled stance on the part of the Oireachtas is what is required at this crucial juncture: if an amendment is to be put to the people, then surely it should be one that offers a genuine prospect of change. This can only be achieved through putting forward an amendment that would genuinely address the imbalance between the rights of the child and the rights of parents and the family unit, through the constitutionalisation of the welfare principle in terms similar to Article 3 of the UNCRC.

Celebrating 20 years of the Convention on the Rights of the Child

2009-11-19T09:13:00.005Z

The 20th November 2009 marks the 20th anniversary of the Convention on the Rights of the Child. To celebrate this fact we at the CCJHR blog will be posting a number of contributions from people both here at UCC and around the world highlighting issues, noting country situations and generally discussing the position of children's rights today.

To start the celebration I am posting a link to a lovely short film marking the 20th anniversary produced by ChildFund Australia and VIAfilm:

http://www.youtube.com/watch?v=OWG-DpcT7qw

Updates on information retention in the UK

2009-10-19T14:54:00.003+01:00

Two important decisions have been announced in the UK today regarding the retention of information in the criminal justice area.

Firstly the Court of Appeal has ruled against an information tribunal ruling that data on old minor convictions must be deleted from police computers. The Court found that retaining information for police operational needs was far easier to justify than disclosing the information to others. To this end Lord Justice Waller stated

If the police say rationally and reasonably that convictions, however old or minor, have a value in the work that they do, that should, in effect, be the end of the matter

The case was brought because under the Data Protection Act which requires that information be relevant, up to date and not excessive. Five people had lodged complaints after their records showed up in checks when they applied for jobs. The type of conviction at the heart of the case were minor, and for the most part committed by the people when they were juveniles.

Under the present police policy, criminal records can remain on the national computer for up to 100 years.

The Association of Chief Police Officers welcomed the decision, clearly relieved that the Court of Appeal had decided in favour of retention of even minor data:

This data assists police officers in their work in preventing crime and protecting the public, and the loss of such valuable information would have been detrimental to that.

The issue is now to be subject to a review of the criminal conviction retention policy, to be carried out by an independent adviser following a request by the home secretary.

The second decision is that made by the United Kingdom's Home Office to abandon its proposals to retain the DNA profiles of innocent people on the national database. In 2007 it had announced its intention to keep the DNA profiles of those arrested ‑ but never convicted of a crime ‑ for between 6 - 12 years, depending on the seriousness of the offence. However, the proposal is not to be included in the policing and crime bill currently going through the British Parliament.

Doubt had already been raised about its viability following the decision of the European Court of Human Rights in the case of S. AND MARPER v. THE UNITED KINGDOM, 4/12/2008, (Applications nos. 30562/04 and 30566/04) in which it held that the schemes for the retention of such samples in the UK is contrary to the right to respect for private life under Article 8 of the European Convention.

As reported today in the Guardian, a Home Office spokesman said:

We have now completed a public consultation on proposals to ensure the right people are on the database as well as considering when people should come off. Those proposals were grounded in the research and allowed us to respond to the judgment of the European court of human rights both swiftly and effectively.
The government will take the most expedient route to address the issue as soon as possible in order to comply with the European court's judgment.

The decision comes after many felt that the UK government would have faced defeat in the House of Lords if it had kept to its DNA database plan. whilst the home Office spokesperson stated that they hoped to bring forward "further provisions" on DNA retention in the next policing and crime bill it will be interesting to see if the issue is considered significant enough to warrant another outing. Particularly as concern over data storage/privacy in the UK continues to mount.

Prison populations and sentencing reform

2009-10-16T11:27:00.004+01:00

In the news yesterday - the prison population had passed the 4000 mark for the first time the history of the State. In fact it has since dropped back down below that dramatic figure but remains above the bed capacity level of 3,947. The Irish Penal Reform Trust's press release on this news valuably highlights the figures charting the steady rise in the prison population:

To place this level of imprisonment in context, the Irish prison population was just 750 in 1970; over 1,200 in 1980; 2,100 in 1990; 2,948 in 2000. The immediate consequence of this increase is to exacerbate an already critical overcrowding situation.

These figures need to be seen in the light of the report on Mountjoy Prison by Judge Michael Reilly, the inspector of prisons. His report was brought forward because of concerns about the dangers created by cronic overcrowding, not least of those being the fact that lives were being put at risk.

Overcrowding in Irish prisons has been described as cronic and acute for many years now, yet little signioficant action has been taken. And prison expansion is not the answer.

The short term answer is clearly put in the IPRT Directors Blog:

The Prison Service must set clear safe custody limits in each of the prisons and ensure that dangerous overcrowding levels are not allowed to develop. In the short term, numbers can be reduced by careful and structured use of temporary release.

But longer term, the issue is about sentencing. Indeed, Fine Gael yesterday called for "a radical overhaul of the State's sentencing system":

“I am calling on Minister Ahern to radically overhaul his approach to incarceration and to focus on community service for minor offences. With each prison place now costing almost €100,000 annually, the Minister must review the benefit of handing down thousands of minor sentences annually."

According to Fine Gael the govenment needs to consider alternatives to custody, particularly in the case of non-violent offences on the basis that community service "is less expensive for the taxpayer and allows offenders to put something back into the community".

It is good to see that in addition to proposing sentencing reform, Fine Gael have also now recognised that prison does not work:

“It is clear that prison in Ireland is enormously expensive and has little deterrent or rehabilitative value. Its effectiveness is further undermined by the use of early release as a means of facilitating the committal of ever more prisoners. Ireland has a revolving door prison system that sees almost 50 per cent of prisoners back inside within four years of their release. This is not sustainable..."

Ultimnately any discussion on the state of Ireland's prison system must be done within the overall context of sentencing and criminalisation. The prison population has been rising for many reasons, not least of which is an iuncrease in a refusal of bail, an increase in lengths of sentence and increased levels of prosecution.