Criminal Justice developments January 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.
Labels: administration of justice, crime statistics, Criminal Justice (Forensic Evidence and DNA Database) Bill 2010, Criminal Law, DNA database, Eamonn Lillis, homicide
Lillis sentenced to 6 years 11 months in prison
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  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.
Labels: Criminal Law, Eamonn Lillis, Privacy, sentencing
Announcing the 4th Annual CCJHR Lecture
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: email@example.com
by 10th February, 2010.
Department of Law
Labels: CCJHR events, Criminal Law, Dr. David Riordan, Judge William McKechnie
Call for Papers – CCJHR Postgraduate Conference 29th Apil 2010
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 criminal 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 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 firstname.lastname@example.org.
Labels: CCJHR events, conferences, Criminal Law, Human Rights
Reforming criminal defences - the LRC recommendations on Defensive Force
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
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.”
Labels: Criminal Law, Criminal Law (Defences) Bill 2009, defences, defensive force, ICCL, Law Reform Commission, People (DPP) v Barnes
Trial by Jury to be removed for organised crime offences
The government has now published its latest piece of criminal justice legislation, the Criminal Justice (Amendment) Bill 2009
, which is being touted as being “anti-gang” and designed according to the Minister for Justice Dermot Ahern to protect Irish citizens and “ensure the rule of law
”. The Bill
is due to be debated in the Dáil today.
As Carol Coulter pointed out in an analysis piece
in the Irish Times the next day, this is “not the first time gangs have been targeted in law”. Yet it is clear that the government is championing this legislation as taking “those involved in criminal gangs … head on”. Are we to therefore conclude that the measures passed in the Criminal Justice Act 2006
, also in response to gang activity, have failed to provide the authorities with enough powers to deal with organised crime? Have the Garda been calling for more powers?
The answer is no. In fact, in the aftermath of the murder of Shane Geoghegan in Limerick in November 2008, Garda Commissioner Murphy in an Irish Times interview
"[t]here has been a whole plethora of legislation enacted in the last three years and I am confident - and in my briefing with the Taoiseach this morning I discussed that part of it - and I am happy that there is sufficient legislation in place."
"The issue for us is to get the evidence. We have the tools, we have the specialist units, but these crimes are not easy to solve and there is a small core of ruthless killers living in this city that have to be brought to justice."
What is more surprising, given his recent promotion of the 2009 Bill
is that Minister Ahern agreed, noting
that "the gardai have all the legislation. What they really need is hard evidence."
The legitimacy of this earlier position is supported by the fact that someone has now been charged
with the murder of Shane Geoghegan, and a trial date set for April 2010.
However, despite the attempts at a measured response following the death of Shane Geoghegan, something seems to have changed in recent months and the government has decided to push forward with legislation in the area providing additional powers to combat organised crime. The key measures include:
a new offence of directing or controlling a criminal organisation with a maximum sentence of life imprisonment (section 5);
a broad definition of “criminal organisation” is (section 3);
the categorisation of organised crime offences as “scheduled offences” which means that they will be brought with in the scope of the Offences Against the State Act and can therefore be tried in the Special Criminal Court unless the DPP directs otherwise (section 8);
reduction in evidence thresholds on garda evidence on the existence and operations of criminal gangs will be admissible in evidence, including hearsay evidence (section 7);
an increase in punishment for witness and juror intimidation from 10 to 15 years’ (section 16).
The government claims that the 2009 Bill is “groundbreaking legislation”.
Human rights organisations have, however, been quick to criticise the proposed legislation, and have in fact offered clear and very thorough critiques of the dangers of the 2009 Bill. The Irish Human Rights Commission have described the powers as “disproportionate and unnecessary” questioning why it was necessary to rush the new law through the Oireachtas thus preventing adequate debate and analysis into such significant changes in the law.
A central criticism of the proposed legislation has been the decision to create new “scheduled offences” in order to bring most organised crime offences before the non-jury Special Criminal Court. Ireland has already been criticised by the UN Human Rights Committee for its use of this system. The proposed changes to the law further undermine the right to trial by jury, so central to the idea of a fair trial in the criminal justice system. However, the evidence of the existence of jury-tampering is largely anecdotal. In fact the main problem arises in relation to witness intimidation, and this will not be solved by a Judge only trial.
It is interesting to note that much reference has been made to the law in England and Wales on dealing with jury intimidation. This is perhaps because the Court of Appeal in London last month ruled that the case of John Twomey and three other defendants should be the first case in that jurisdiction to be heard without a jury because of a "very significant" danger of jury tampering. Section 44 of the Criminal Justice Act 2003 had allowed for a case to heard by a judge sitting without a jury in serious or complex fraud cases and in those cases where there is a danger of jury tampering. However this is subject to the legal requirement that the court must consider whether alternative arrangements could be made to ensure justice, including moving a trial, and providing anonymity for jury members. In the Twomey case there does appear to be a significant issue of jury tampering with three previous trials having already failed as a result of such interference. In those cases jurors withdrew from the case citing stress, sickness and intimidation. The High Court had previously ruled that arrangements needed for a fourth jury trial included up to 60 police officers and a cost of between £1.5m and £6m. The Court of Appeal concluded that this might still not guarantee the protection of jurors. Lord Judge in the Court of Appeal concluded that such arrangements were an "unreasonable" drain on the public purse and police time.
Yet there has been some significant criticism of the decision in the UK. The judge himself noted “trial by jury is a hallowed principle of the administration of criminal justice". Common law jurisdictions have traditionally regarded the jury as essential to ensuring a fair trial, and decisions to place defendants before a judge only have tended regarded as undermining that right. In an article in The Guardian Afua Hirsch raised concerns about the move:
“Human rights lawyers working in countries undergoing democratic transitions say they aspire to the England and Wales model of jury trial, echoing the now notorious sentiments of former master of the rolls Lord Devlin, who described it as "the lamp that shows freedom lives". Somebody had better tell them that in England it just got a little darker.”
Where does this leave the issue of trial by jury in Ireland? Is organised crime so big a threat that we need to remove the right to a jury trial from anyone involved in this type of offence? The answer is we do not know. There is little or no evidence as to whether there is any difference in the outcome of such cases if they are heard before a jury or a single judge. What is clear though is that it will make no difference to witnesses who fear intimidation. Judge or jury, they will still fear the power of gang members within their own communities. So perhaps the issue is not one of criminal justice, or garda powers, or special courts, but in fact one of how communities are served, protected and resourced in order to reduce the power of a criminal minority. But that is a welfare issue rather than a criminal justice issue, and in a recession it is easier to pass laws than fund services.
And as for the principle of trial by jury? If (and it is a big if) we conclude that there are some cases where a jury trial is simply not possible because of a real risk of intimidation then the way to make those decisions needs to uphold the due process rights of the defendants. Perhaps that is why critics of the Criminal Justice (Amendment) Bill have been pointing to the English approach. The law there starts from a presumption in favour of a trial by jury and allows for deviation from this fundamental principle only where the Crown Court concludes that there is “evidence of a real and present danger that jury tampering would take place”. The proposed changes in section 8 of the 2009 Bill state that the ordinary courts are “inadequate to secure the effective administration of justice” and therefore take the reverse approach starting from a position of trial by judge only. The fact that the provision is time limited to 12 months does little to reassure given the history of normalisation of emergency powers in criminal justice systems globally.
Labels: Criminal Justice (Amendment) Bill 2009, Criminal Justice Act 2006, Criminal Law, Garda Siochana, IHRC, jury trial, organised crime
Panel 4: Crimes of Sexual Violence: Debates and Developments in Irish Law
The final panel session examined sexual violence from the domestic perspective. The session was chaired by Nora Owen, a former Minister for Justice and member of the Commission for Victims of Crime.
The Director of Public Prosecutions
, James Hamilton began by setting out the difficulties in prosecuting cases of unlawful carnal knowledge since the decision of the Supreme Court in CC v Ireland
 4 IR 1 and the subsequent enactment of the Criminal Law (Sexual Offences) Act 2006
. He noted that it may be necessary under the 2006 Act to prove the absence of consent if the accused can show that he or she honestly believed that the child had attained the age of 15 or 17 years. The DPP stated that the wholly subjective test as to the defendant’s belief as to the complainant’s age had the effect of exonerating conduct which the legislature had seen fit to criminalise. He also stated that while further research was needed, a difference seemed to exist between prosecutions under the 1935 Criminal Law Amendment Act
and prosecutions under the 2006 Act. The 1935 Act was often used in circumstances where rape or sexual assault charges would have been appropriate, in order to ensure that the complainant did not have to give evidence as to the issue of consent. However, prosecutions under the 2006 Act seemed to be exclusively in circumstances where the activity amounted to sexual exploitation, but where the activity was consensual. More serious cases involving a lack of consent were now being charged as rape and or sexual assault.
The DPP discussed his Office’s participation in two projects on attrition rates in rape cases. He noted that the oft cited figure of 1% conviction rate was erroneous, and it was likely that the real figure was closer to 7%, which was broadly similar to England and Wales. After examining some developments in sentencing for sexual offences, the Director concluded his presentation with a call for the codification of the law on sexual offences in order to make the law more accessible and comprehensive.Dr. Tom O’Malley
from NUI Galway described the former absolute liability for unlawful carnal knowledge as an atrocity, and noted that it was surprising that the provisions had lasted so long. The Supreme Court decision in CC was impeccable in terms of logic and justice. Following an intriguing tour through the climate of moral panic surrounding the introduction of the offence of unlawful carnal knowledge in the 1935 Act, Mr O’Malley criticised the present unclear state of the law. There was a need to clarify whether the offence of defilement should be one of strict liability or of absolute liability. He suggested that a solution could lie in taking into account the age difference between the parties.
Pauline Walley’s contribution consisted of a powerful insight into the practitioner’s experiences of prosecuting and defending trials of sexual offences. She highlighted the difficulties posed to victims and witnesses by procedural issues raised by defence counsel that lead to adjournment of trial. She suggested that a statutory case management system should be introduced in the criminal courts. The efforts made by individual judges were not enough to ensure efficiency. She suggested that issues such as disclosure, fitness to plead, and the raising of the defence of insanity should be dealt with pre-trial by a judge assigned to deal with case management issues. Ms Walley also called for the provision of greater resources, in particular proper facilities for the giving of evidence by vulnerable witnesses. This point was picked up by the Chair in her concluding remarks when she noted that no matter how much legislation is passed, it is of no use unless resources are provided to improve the operation of the criminal process.
Summary provided by PhD candidate and Government of Ireland Scholar Sinéad Ring.
Labels: CC v Ireland, CCJHR events, conferences, Criminal Law, Dr Tom O'Malley, James Hamilton DPP, Pauline Walley
Keynote Address: Mr Micheál Martin, T.D., Minister for Foreign Affairs
Mr Micheál Martin opened the Conference by highlighting recent International and national developments in relation to sexual violence. He began by welcoming the important development at the heart of the conference - that sexual violence was now recognised as a human rights violation. Indeed he emphasised that Ireland supported the fact that sexual violence was now being prosecuted as a crime against humanity and a war crime.
Mr Martin informed the conference that Ireland has recently taken over as chair of the Human Security Network (a group of like-minded countries from all regions of the world that, at the level of Foreign Ministers, maintains dialogue on questions pertaining to human security); the conference is the first event of Ireland’s chair of the network. The Minister stressed that Ireland was committed to making Gender Based Violence a focus of its time as Chair of the Network in order to ensure that the eyes of the International Community remained focussed on the issue.
Domestically, Mr Martin noted that gender based violence was also a high priority for the government. He informed the Conference of recent developments nationally which included the establishment in 2007 of Cosc, the National Office for the Prevention of Domestic, Sexual and Gender-based Violence. The initiative created a dedicated office at Government level which has the key responsibility to ensure the delivery of a co-ordinated "whole of Government" response to domestic, sexual and gender-based violence. Cosc will launch the first phase of consultation on a National strategic Action Plan on Domestic and Sexual Violence in autumn 2008. Legislation reforming the whole area of sexual offences to ensure a workable, updated and simpler approach to the area would also be introduced in the future.
The Minister noted that conference was very relevant to the work of the government both internationally and nationally. He welcomed delegates and speakers and the contribution they would make to the overall debates that were necessary to ensure ongoing reform to the law on Sexual Violence at all levels.
Labels: CCJHR events, conferences, Criminal Law, International law, Micheál Martin, T.D.
Reforming Laws on Sexual Violence: International Perspectives
The Centre for Criminal Justice and Human Rights
at the Faculty of Law, University College of Cork
is hosting the third Annual Criminal Law Conference with the support of the Department of Foreign Affairs
It is the first event of Ireland’s chair of the Human Security Network
The aims of this international conference are to assess international criminal law developments on crimes of secual violence, to inform law and policy debates to strengthen responses to sexual violence and to promote awareness of sexual violence as a human rights violation. The conference programme comprises International and Irish speakers. Academics and practitioners from all over the world (including Australia, Canada, the US, Sudan, Timor-Leste and Europe) as well as from Ireland will present on and discuss trends in the prosecution of sexual violence with particular focus on International law developments.
The sessions will be summarised and posted on the blog.
Labels: CCJHR events, conferences, Criminal Law, International law