Tuesday, 29 April 2008

FINAL PROGRAMME - Post Graduate Conference; Thursday 1 May 2008

The final programme for this Thursday's Post Graduate Conference in Criminal Justice and Human Rights is below. There are a limited number of places remaining - if you wish to book your attendance at the conference please contact the organising committee by emailing a.d.odonovan@student.ucc.ie promptly!!

9.30-10.15am Registration. (Aula Maxima.)

10.15-10.30am Opening by Dr. Siobhan Mullally.

10.30-11.30am Keynote Address: The Future of UN Human Rights Treaty Monitoring by Professor Michael O’Flaherty.

11.45-1.15am Morning Panels. (O’Rahilly Building.)

Panel A: Contemporary Issues in Public International Law.
Chair: Dr. Siobhan Mullally. ORB 123.

Kanstantsin Dzehtsiarou, U.C.D.:
European Consensus in the Case Law of the European Convention on Human Rights.

Padraig MacAuliffe, U.C.C.:
Justice in Timor-Leste: An Unaffordable Luxury?
Olufemi Amao, U.C.C.:
Corporate Responsibility, Law and Human Rights in Developing Countries: The Limits of International Regulation.

Panel B: Issues of Responsibility.
Chair: Professor Irene Lynch Fannon. ORB 132.
Joe McGrath, U.C.C.:
The Development of Irish Corporate Regulation Addressing Corporate Criminality: The Rule of Law Endangered?

Brendan O’Halloran, U.L.:
Corporate Liability: A Comparative Analysis.

Eilionóir Flynn, U.C.C.:
Community Visitors, Invisible Lives…The Forgotten Recommendation of the Goodbody Report on Developing an Advocacy Service for People with Disabilities.

Panel C: Contemporary Challenges in Constitutional and Administrative Law.
Chair: Dr. Conor O’Mahony. ORB 156.
Darren O’Donovan, U.C.C.:
The Legal Protection of the Cultural Identity of Travellers: the Role of the ECHR in Remedying the Deficiencies of the Irish Constitution.

Eoin Daly, U.C.C.:
Religious Discrimination in Public Education: Tensions between Religious Freedom and Religious Equality within a Non-Secular Constitutional Framework.

Paul Daly, University of Cambridge:
Judicial Review and the Political Question Doctrine.

1.15-2.15pm Lunch. (Staff Dining Room).

2.15-3pm Finding Employment and Getting Published
by Professor Steve Hedley. (Aula Maxima).

3.15-5pm Afternoon Panels. (O’Rahilly Building.)

Panel A: Gender and the Law.
Chair: Dr. Fiona Donson. ORB 123.
Julia Foden, U.C.C.:
Forced Marriage and International Human Rights Law.

Máiréad Enright, Manchester Metropolitan University/U.C.C.:
Forced Marriage and the Right of Exit.

Tanya Ní Mhuirthile, U.C.C.:
The Medical Management of Intersex: A Human Rights Critique.

Claire Cumiskey, U.C.C.:
The Recognition of Trafficking in Persons as a Form of Gender Related Persecution and the Basis of a Claim for Asylum.

Panel B: Trends and Challenges of Criminal Liability.
Chair: Dr. Catherine O’Sullivan. ORB 132.
Maria Faherty, U.C.C.:
The Age of Criminal Responsibility: A Comparative Analysis.

Louise Kennefick, U.C.C.:
Prisoner First and Patient Second?: A Critique of the Position of the Mentally Disordered Offender in Ireland within a Human Rights Context.

Susan Leahy, U.C.C.:
Reflections on the Concept of Consent in Sexual Offences Legislation.

Sinéad Ring, U.C.C.:
Justice Delayed: The Fair Trial Rights of Accused Persons in Delayed Prosecutions for Child Sexual Abuse.

Panel C: Discourses in International Criminal Law & Crime Control.
Chair: Dr. Siobhan Wills. ORB 156.
Maria Varaki N.U.I. Galway:
The Interests of the Victims and the ICC Article 53.

Aisling O’Sullivan, N.U.I. Galway:
The Duty to investigate and prosecute under International Human Rights Law and International Criminal Law.

Ekaterine Iakobishvili, University of Essex:
Zero Tolerance Crime Enforcement Policies in New York and Georgia: A Comparative Analysis.

Dorothy Appelbe, U.C.C.:
The Use of Closed Circuit Television as a Crime Prevention Strategy.

5-5.15pm Closing by Fiona de Londras. (Aula Maxima).

5.15pm Wine Reception (Staff Common Room).

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Sunday, 27 April 2008

Legal Interpretations and Interrogation Techniques in the War on Terrorism

Today’s lead story in the New York Times reveals how the US Justice Department’s legal advice to CIA agents on acceptable interrogation techniques was worded following the Supreme Court’s decision in Hamdan (2006) that Common Article 3 of the Geneva Conventions applies to Guantánamo Bay detainees. According to the story:

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees.

While the Geneva Conventions prohibit “outrages upon personal dignity,” a letter sent by the Justice Department to Congress on March 5 makes clear that the administration has not drawn a precise line in deciding which interrogation methods would violate that standard, and is reserving the right to make case-by-case judgments.


The legal reasoning included in the latest Justice Department letters is less expansive than what department lawyers offered as recently as 2005 in defending the use of aggressive techniques. But they show that the Bush administration lawyers are citing the sometimes vague language of the Geneva Conventions to support the idea that interrogators should not be bound by ironclad rules.

The article is a (short) must-read for all those who are interested in the role that law and lawyers have played in the attempts by the United States to reshape international legal standards since 9/11. It also ties in nicely with the papers presented at last Wednesday’s CCJHR seminar entitled ‘How the US Can Lose the War on Terror’ (delivered by John D. Hutson) at which the discussion paper, which I presented, was about lawyers’ complicity. The seminar will soon be available for viewing on UCC Faculty of Law’s video archive, and my discussion paper can be accessed here.

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Thursday, 17 April 2008

LL.M Criminal Justice - Closing Date 1 May 2008

As discussed previously, the LL.M Criminal Justice in University College Cork is currently receiving applications. The closing date for applications is 1 May 2008 and all interested parties are advised to apply within the recommended time frame.

The LL.M in Criminal Justice is an innovative, clinical Masters degree that makes the most of the vibrant atmosphere of graduate study here in UCC, the research conducted in the CCJHR, the excellent adjunct professors appointed to the Faculty including Hon. Justice Paul Carney (presiding judge of the Central Criminal Court), and the exceptional civil society and government links developed by the Faculty of Law. Overseen by LL.M Director Dr. Mary Donnelly and Clinical Legal Education Coordinator Gerard Murphy BL, this LL.M is in exceptionally high demand and entry is competitive.

The LL.M attracts an excellent mix of applicants such as law enforcement officials, NGO officers, people who have just completed a primary law degree, aspiring practitioners and academics, and members of the judiciary. Graduates of the programme go on to work in diverse fields, for example graduates are currently working in practice at the Bar or as a solicitor, in the academy, in government offices such as that of the Director of Public Prosecutions, and in law reform (some graduate profiles are available here).

Anyone with a query relating to the course ought to contact Gerard Murphy (g.murphy[at]ucc.ie)

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High Court suggests Article 8 Protections for Same-Sex Families

The High Court yesterday handed down judgment in a case involving a man who had donated sperm to a lesbian couple on foot of an agreement between them that, while he was to have ‘favoured uncle’ status, he was not to be involved in parenting in any way. Once the baby was born the donor attempted to play a parental role, including by acquiring an injunction to prevent the couple and their child from travelling to Australia for a year. Yesterday Mr Justice John Hedigan held that the man has misled the couple as to his true intentions and had nothing more than a biological connection with the child; the child and his mothers, on the other hand, could be said to constitute a family within the meaning of Article 8, ECHR. Justice Hedigan recommended legislative action in relation to same-sex couples in Ireland including provisions relating to situations where a couple may wish to parent and for one of them to bear a child. The judgment appears not yet to be available online, but the RTE News report is here.

The judgment is significant not only because of its timing (the heads of a proposed Civil Unions Bill are expected to be released shortly), but also because Justice Hedigan’s holding that the couple and their child could enjoy the right to family life under Article 8 is an advancement of the ECtHR’s own jurisprudence on whether same-sex couples with or without children can be regarded as ‘family’ under Article 8.

The Strasbourg court has not yet definitively considered whether a same-sex cohabiting couple constitutes a unit entitled to respect for their family life under Article 8 (although in cases such as Karner v Austria (2003) it has protected same-sex couples under the rubric of privacy). In an earlier decision of the Commission it was held that the relationship between two women and the child of one of them did not constitute family life. In this case, Kerkhoven & Hinkle v Netherlands (1992) the Commission noted that there was no legal impediment to the three living together in the Netherlands but acknowledged that the difficulty lay in the non-biological parent establishing legal links with the child. The Commission acknowledged that such a legal relationship would have important practical implications for the child and non-biological parent, however they felt that the fact that the relationship between the two women did not constitute family life meant that there was no obligation on the state to allow the establishment of such a legal relationship. As Kerkhoven was a Commission decision, as opposed to a decision of the Court, the reasoning is not greatly elaborated upon. In fact little or no justification is offered by the Commission for this conclusion.

Kerkhoven again arose for consideration, however, within the context of X, Y & Z v United Kingdom (1997). This case concerned a family unit comprising a woman, her biological child and a post-operative female-to-male transsexual. The couple had been together since 1979 (just before his gender realignment surgery) and the child was born in 1995 (after the gender-realignment surgery). The child had been born by means of artificial insemination which, after some substantial effort on the part of the couple, had been provided and funded by the National Health Service. X had attempted to be registered as the father of the child on his birth certificate but was informed that only a “biological man” could be so registered. This application claimed that this decision was a breach of the unit’s right to family life, particularly given the practical benefits of such legal recognition of the relationship between X and the child (whose birth certificate was left blank under ‘father’). The Government first claimed that no family life existed between the couple as they were to be regarded as two women living together. The Court considered that X and Y could not be considered as two women living together as they lived, socially, as man and woman and, as a result, apart from the legal prohibition on marrying their relationship was indistinguishable from that between a man and a woman. In the circumstances, and in particular with regard to X’s involvement in the AID process from the beginning and the close and de facto personal ties enjoyed between the three applicants, the Court found that they could be regarded as a unit deserving of protection for their family life. Significantly the Court did not substantially revisit Kerkhoven in this decision, rather it focused on the three together and the social reality of the relationship between the couple. In the end the Court held that there had been no violation of Article 8 by precluding the registration of X as father on he birth certificate because of the transitional stage of the law, the lack of a sophisticated personal identity register system in the UK and the relative unimportance of a birth certificate in legal terms.

These decisions, however, took place against a very different politico-legal background to the one currently in existence in the Council of Europe – nowadays a great number of COE states have some kind of legislative framework concerning the rights of same-sex couples and, in some cases, any children they may be raising and the visibility of same-sex families and ‘gay parenting’ is much increased. In addition, the European Court of Justice (EU) has recently expanded the recognition of same-sex couples, including in the context of pension entitlements, where the partners
“live in a union of mutual support and assistance which is formally constituted for life” (Maruko, 1 April 2008). Taking into account the margin of appreciation and the importance in ECHR jurisprudence of the emergence of ‘consensus’ across much of the COE member states, the conclusion that appears to have been reached by Justice Hedigan yesterday would likely now be reached by the Strasbourg Court in an analogous current case.

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How the US Can Lose the War on Terror - 23 April 2008

On 23 April 2008 the Centre for Criminal Justice and Human Rights will host a lecture from Dean John D. Hutson, President and Dean of Franklin Pierce Law Centre and Rear Admiral (Retired) of the US Navy entitled 'How the US Can Lose the War on Terror'. The discussant will be Fiona de Londras of the Centre for Criminal Justice and Human Rights.

The event will take place in the Council Room, North Wing, The Quad at 6pm and all are welcome. Further details are available here

Dean Hutson has been an outspoken critic of the treatment of detainees at Guantanamo Bay and of US policies on the ‘war on terror’. In 2004, Hutson and seven other retired officers wrote an open letter to President Bush expressing their concern over the number of allegations of abuse of prisoners in U.S. military custody. In 2005, Dean Hutson, along with Yale Law School dean Harold Koh, testified before the U.S. Senate Judiciary Committee in opposition to the appointment of Alberto Gonzales as attorney general of the United States, because of his alleged role in attempting to provide legal guidance to the U.S. military justifying abusive interrogation practices. Hutson has also testified before the Senate Armed Services Personnel Subcommittee, offering his opinion on the detention of "unlawful combatants". Hutson was one of a number of lawyers and retired navy officers interviewed for the HBO Documentary, ‘The Ghosts of Abu Ghraib’.

Fiona de Londras is a College Lecturer in the Faculty of Law and specialises on the detention of suspected terrorists in the 'War on Terrorism'. Her particular research interest relates to the behaviour of domestic and international human rights law in this context. She has published widely on the legal implications of the 'War on Terrorism' and, particularly, the US' policy in Guantánamo Bay.

Any queries should be directed to ccjhr[at]ucc.ie

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The Shadow of Taylor Hangs Over Mugabe

This blog post was submitted by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe, who is reading for a PhD entitled The Serious Crimes Process of East Timor in the Field of Human Rights Law under the supervision of CCJHR Co-Director, Dr. Siobhán Mullally.

In the wake of the recent elections, the question on many lips is when or if Zimbabwean President Robert Mugabe will ever voluntarily give up power in the erstwhile breadbasket of Africa. The close nature of the campaign and the failure of a significant portion of the state apparatus to acquiesce in the transparent tampering with the election suggest Mugabe’s control is more tenuous than was previously the case and may be, in nautical parlance, holed beneath the water-line. He is far from sunk, however and remains very much the captain of this listing vessel. Mutiny remains unlikely to be successful. If a maritime lexicon is to be indulged one more time, it is clear the tide has turned. The most relevant question Zimbabwe-watchers might ask is not whether the octogenarian Mugabe is willing to give up power, but whether he is afraid to.

In the past, things were different. The average dictator could commit sundry tyrannies safe in the knowledge that if local disaffection reached a critical mass, a luxury mansion in a neighbouring country awaited where he could spend the incalculable millions siphoned off from systematic kleptomania. So it might have been for Mugabe, who might have relinquished control to a liberal/less repressive Shona Brian Cowan (though it is unfortunate to compare a sophisticated, repression-savvy tribe with Offaly people) or to the MDC and crossed the border to South Africa. There he would no doubt have been welcomed by Thabo Mbeki, whose craven acquiescence to every excess by his neighbour has shamed an ANC who should really know better than to support a militarized, anti-democratic brute. Mugabe may not even have to leave. His predecessor, the odious Ian Smith, could still drive around Harare in an open-topped Range Rover with impunity for years after his ouster from power. Impunity is they key word, however. In the past, impunity was the price victims and the international order for a peaceful exit. The transitional calculus in Africa may still tilt in favour of this, but in the aftermath of Charles Taylor’s transfer to The Hague from exile in Nigeria to the Special Court for Sierra Leone in The Hague, what tyrant will ever want to give up power? What credibility have impunity agreements to end conflict when Lomé Peace Accord’s amnesty can be torn up at will by the UN?

Many people, the author included, were heartened when international pressure led to the extradition of Charles Taylor, the Liberian dictator who subjected his own people and those of Sierra Leone to a decade of brutal internecine conflict to the Netherlands. It represented an all-too-rare service by the Bush administration (who pressured the Nigerian Govt to give him up) to the international community and international justice (though cynics, the author once more included, suspect they would do anything to boost these ad hoc, localized organs at the expense of the ICC, but that’s a rant for another day). What we may now be experiencing is the flip-side of this decision – that the Mugabes and Kabilas of this world will only leave their posts in a coffin for fear of arrest and extradition to trial by the very imperialists they have railed against for decades. Former ZANU-PF strongman Edgar Tekere was reported to have told a meeting in January that President Robert Mugabe was afraid of stepping down because he would be tried for his crimes, especially the massacres in Matabeleland in the 1980s. “Mugabe is afraid of his crimes. If he leaves office we will have another Charles Taylor incident. So when Mugabe sits down and thinks of Gukurahundi, he won’t step down.”

The option exists for Mugabe to enter into an agreement with South Africa or Zambia for sanctuary, but it can be worth little more than the paper it is written on if addendums can be added outlawing safety from prosecution for war crimes or crimes against humanity, as was the case in the Lomé accord, signed by rebels and the Government in the Sierra Leone Civil war nine years ago. Providing sanctuary for dictators and mass criminals can cost host countries hundred’s of millions of dollars in punitive sanctions and even more in credibility.

International criminal justice is often justified on the basis of its deterrent effect - criminals will refrain from committing criminal acts, even where they desire to commit them and retain the capacity to do so, out of fear of judicial punishment. Even leaving aside the obvious flaws in the theory (most mass criminals initially presume their cause will win out and that they will never be held to account, or reason that in defeat, they will not be apprehended),the opposite may now be happening – leaders who might otherwise retire due to old age or unpopularity are now deterred from quitting their bloody reigns by the spectre of the ICC. Once more, the world must ask how willing it is to prioritise the vindication of human rights through retrospective prosecutions over the prospective realisation under a successor regime

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Monday, 14 April 2008

The House of Lords is Blogging

Via Damien Mulley comes news that the House of Lords has launched a blog, entitled Lords of the Blog, where Peers are discussing everything from Arsenal football club and the political benefits of liking football, to the relative merits of holding referenda. (The blog also received coverage in The Guardian)

The list of blogging peers does not include any judicial members (and for obvious reasons, it seems, will not in the future) but nevertheless is an interesting venture. It will be particularly fascinating to see whether the peers begin to discuss legislative controversies on the blog - especially since comments are open and there is already a tendance towards lively discussion on some issues.

The blog itself states that "The aim of the blog is to help educate, raise awareness and engage with the public on a range of issues relating to the role and business of the House of Lords" and makes it clear that this is, in essence, an experiment. The Hansard Society, we are told, will evaluate the blog in time including its scope and reach, in order evaluate whether it is a valuable exercise.

While we have some blogging politicians in Ireland (most notably Ciaran Cuffe TD) it seems that we are quite some distance from a move as technologically progressive as this. However the birth of Lords of the Blog does appear to be an interesting way to make the public more involved in parliamentary discussion/communicate the views of the public to the upper parliamentary house whose members would not normally have a constituency role comparable to that of members of the lower house. It's certainly a development worth keeping an eye on.

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Wednesday, 9 April 2008

(UK) Court of Appeal applies Saadi v Italy and Prevents Deportation to Libya

Today the Court of Appeal (Civil Division) released its judgment in AS & DD v Secretary of State for the Home Department [2008] EWCA Civ 289, which concerned the lawfulness of the deportation of the applicant to Libya, pursuant to a Memorandum of Understanding with the proposed receiving state.

The applicant was considered to pose risks to national security in the United Kingdom. He claimed that his right to be free from torture, inhuman and degrading treatment and punishment under both the ECHR and the Human Rights Act 1998 would be violated by the deportation as he faced a substantial risk of such treatment on return to Libya, and that the memorandum of understanding provided was not sufficient to discharge the United Kingdom’s positive obligations under Article 3, ECHR (on which see, esp., Soering and Chahal).

Drawing very heavily on the European Court of Human Right’s recent decision in Saadi v Italy (previously discussed on the CCJHR blog here), the Court of Appeal held that the test to be applied when considering whether deportation would constitute a human rights violation was as laid down in Saadi as follows:

Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment ... in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 128 and 132 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion. (paragraph 142)

The Secretary of State for the Home Department conceded that this test would have been satisfied beyond doubt in this case were it not for the fact that a Memorandum of Understanding (i.e. diplomatic assurances) had been concluded between the UK and Libya. This memorandum, the respondent claimed, was sufficient to discharge the UK’s duty of non-refoulement under Article 3 ECHR.

In this respect the Court of Appeal held that the sufficiency of any memorandum must be decided on a case-by-case basis (paragraph 75). Although the Court did not, perhaps, articulate the principles of assessing the sufficiency of particular memoranda of understanding as clearly as it might have done, it did clearly state that in assessing whether Article 3 is satisfied it is important to consider the reality on the ground in the receiving country and the extent to which – taking into account the unpredictability of the future – it is likely that treatment violating Article 3 might take place notwithstanding the memorandum of understanding.

Whether this decision will be appealed to the House of Lords remains to be seen, but as the judgment is substantively based on Saadi it seems unlikely that the Law Lords would reverse. In essence, then, the judgment outlines three principles:

  1. The protections of Article 3, ECHR are absolute and remain absolute notwithstanding the alleged misbehaviour/terrorist status/national security risk posed by the individual(s) concerned;
  2. In assessing whether deportation would constitute a violation of Article 3 a Court must consider whether there is “a real risk of ill-treatment”, taking into account all of the evidence before it and the necessarily speculative nature of the exercise;
  3. A Memorandum of Understanding/diplomatic assurance can, in principle, be sufficient to ensure compliance with Article 3, but the mere existence of such a memorandum is not sufficient in and of itself. Rather, the court must be satisfied that the situation in the proposed receiving state is such that the memorandum will be effective in protecting the individual from behaviour that violates Article 3.

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Monday, 7 April 2008

The 2nd Postgraduate Conference in Criminal Justice and Human Rights

The second annual postgraduate conference on criminal justice and human rights will take place here in the Centre for Criminal Justice and Human Rights on 1 May 2008. The papers are drawn from postgraduate students in Ireland, the UK, the US and Singapore and offer a very broad range of perspectives on criminal justice, human rights, and the interaction between the two. All interested parties are welcome to attend, although you ought to register on or before the 25th of April 2008, using the registration form that can be found here.

The keynote address is entitled The Future of UN Human Rights Treaty Monitoring and will be presented by Professor Michael O’Flaherty of the University of Nottingham and the (UN) Human Rights Committee. The conference will also feature an after-lunch presentation by UCC Law's Professor Steve Hedley entitled "Finding Employment and Getting Published", which should be of interest to all aspiring academics.

As in 2007, the conference is supported by Clarus Press. Full details of the conference, including the full programme, are available here.

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Sunday, 6 April 2008

Plenary 4: Ombudsman for Children Emily Logan - Respecting the Voice of the Child

Ombudsman for Children, Emily Logan began by giving a brief background to her Office. It has been in operation for three years and began with fifteen staff and a small budget of €280,000. The Office has so far received 1700 complaints from children. Children were involved from the very establishment of the office. A constant theme that ran throughout Logan’s address is that the voice of the child is all important. Article 12 of the UN Convention on the Rights of the Child addresses this issue; the child has a right to form their own views and to be heard.

In Ombudsman Logan’s experience children attach a great weight to being heard during decisions that may affect them. Many complaints to the Office have come from children who have been subject to administrative decisions with the decision makers underestimating the effect of such decisions on the child. There is a consistent denial of the right to participate in decisions and Ombudsman Logan expressly mentioned the issue of family separation. Other complaints from children involve children in the care of the state. Children are often troubled by their lack of access to siblings when they are in care. Logan pointed out that decision makers often claim to have carried out a comprehensive examination of a particular situation but may not in fact ascertain what the child thinks should happen. Logan also highlighted the recent criticism of teachers about student’s behaviour in class. Their complaints are about very minor disruption and Logan expressed her disappointment about this.

She then presented a series of pictures on power point to reveal a number of findings. She showed that young people often have the capacity to be comfortable with issues such as death that adults are not so comfortable with. A child should never be underestimated because of their age. There are different ways to engage young people to find out what their views are, art is a good example. Participation of the child does not always have to be resource intensive.

She then went on to show two DVD presentations. The first was of a boy from the Travelling Community talking about his experience in education. Logan pointed out that when he was asked to take part in the DVD he wanted someone else’s voice to be used as he was embarrassed about how he would come across. In fact he highlighted the issues he faced perfectly through his own voice. The second DVD presentation was of the Big Ballot that the Office recently carried out. 75,000 children in 500 schools took part across a broad section of the community. The ballot sought to find out what were the concerns facing children in Ireland today at a time of rapid change. Not everyone is happy with the work of the Office and one individual did bring a legal challenge against the ballot for undermining the place of the family in the Irish Constitution.

In conclusion Ombudsman Logan stressed that legislation is required to properly hear the voice of the child. People working with children can make the difference while waiting for this change.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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Plenary 4: The Honourable Mr Justice John McMenamin - The Minor List in the High Court: A case study

Mr Justice John McMenamin was in charge of the minor’s list in the High Court for three years. The list evolved in the 1980s in response to holes in the statutory regime. Young persons at risk of suicide, drugs, prostitution, abuse and other exceptional circumstances would be taken out of the custody of their parents but there was no suitable legislative framework at the time, so the minor’s list in the High Court evolved as an important response. Justice McMenamin said an important lesson he learned after taking over the list is that one does not have to reinvent the wheel every time a new judge takes control of the list. Other judges had been dealing with the same issues in the past – shortages of resources, the channelling of cases to court, and the upholding of order, for example. In this paper Justice McMenamin brought attention to the particular kind of difficulties that arise in balancing a youth’s right to liberty and right to life and the benefit of inter-agency discussion and co-operation in trying to arrive at sensible and appropriate solutions to these difficulties. These issues were highlight by means of a case study from the Judge’s experience in managing the Minor’s list.

In this paper he presented a case study, based on the story of an individual he referred to as Shay (not his real name). At 15 Shay found himself before the court – he had no contact with his father, he had been the victim of sexual abuse within the family, he had been assaulted by a neighbour, he suffered from an attachment disorder and had psychological and drug-related problems but he had never been convicted of an offence. He was placed in the centre in Finglas where he did well but once he left Finglas there was a difficulty as to where he could go. The right to liberty militated against him being detained - he could be placed in a unit with youths who had committed offences, but he had not been convicted of any offences; he could have been left free but there was a high risk of suicide; he could be placed in a low security unit but there was a risk he would abscond. Thus the High Court had to come up with some kind of solution that would respect both Shay’s right to liberty and his right to life

Ultimately Justice McMenamin took the unprecedented step of bringing all parties and agencies together to sit down and examine the problems faced in practice and the shortcomings in the system. There was an attempt to work through the issues. The central issue in Shay’s case was whether a long-term order could be made for his detention up to the age of eighteen. The making of long-term orders without review is outside the limits of our constitution. Just as Justice MacMenamin was about to make an order in the case the District Court were also making an order the same day. Shay had two different legal representations. He pointed out that this typifies the need for joined up courts and law and an idea of what is in the best interests of a child. He pointed out that in only 2% of the cases before him parents were represented; it was mainly the state who took an interest in a child. Frequently parents suffered their own problems. Ultimately after balancing out all the issues a decision was made to detain Shay in a high security unit under review.

Justice McMenamin concluded by highlighting some of the lessons that can be learned. Involvement of the courts should be as a last resort. They should be use in an emergency as a means of intervention on the behalf of the state. The duties of parents are correlative to the rights of minors. This is difficult when parents do not want to be responsible. The balancing of libertarian values and the right to life offer difficult problems. He pointed out that there will always be holes in the system, no system is perfect. There is a strong indication that one size does not fit all, the institutions available do not suit all scenarios. Agencies can all interact in a positive manner to intervene where necessary.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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Semi-Plenary 1: Brian Fitzpatrick - Restorative Justice an Irish Perspective: Reflections on the National Commission on Restorative Justice

Mr Fitzpatrick of the National Commission on Restorative Justice, began by outlining who is on the National Commission. The committee has representation from the Gardai, the Courts Service, the Probation Service, the Principal Prosecution solicitor and two lay members. The recent Joint Oireachtas Committee report was significant in the area of restorative justice (RJ) as it had cross party consensus, this helps to create momentum. The report recommended more use of RJ, put it on a statutory footing, foster judicial interest and to profile the benefits of RJ for victims.

He then went onto examine what exactly RJ is. Like O’ Mahony he conceded there was no unanimous idea of what it is and he gave a sample of the definitions available. It offers the victim fairness, respect and satisfaction. It offers them the opportunity to speak, participate in the outcome and to receive an apology. It offers the offender a greater appreciation of the harm caused and hopefully a positive impact on recidivism. It empowers the community via involvement.

Over 80 countries use some form of RJ, with Canada having 12 distinct models. Fitzpatrick pointed out that many models of RJ are rooted in the community and address cultural and ethnic issues. He then went on to highlight how RJ is used throughout the world and its use in both adult and juvenile cases. After this brief discussion he focused his attention on Ireland how we have used RJ. He focused mainly on the Garda Diversion Programme. He applauded the Gardai’s commitment and professionalism in helping with implementation of the 2001 Children Act. There was a 93% satisfaction for victims in the restorative approach. Juveniles said it was not an easy option. There was a 33% reconviction rate of juveniles subsequent to diversion. Fitzpatrick pointed to the distinct advantage of having both the victim and the offender’s family involved.

He went on to point out that RJ in the future will only be one of a number of options available to the criminal justice system, it will not overtake the existing system but offers some distinct benefits. He pointed out the large number of people receiving sentences of six months or less. It is his belief that if more of them were diverted there would be better outcomes for both victims and offenders.

He concluded by saying that RJ has now gained a foothold in Ireland and can be used as an alternative to tackle crime. It is limited but growing and the Commission’s task is a work in progress.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin

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Semi-Plenary 1: David O'Mahony - Restorative justice and criminal justice: Complementary or conflicting paradigms?

O’ Mahony opened by acknowledging the fact this is a topical debate and providing a background for the emergence of restorative justice. There has been a growth in the area of alternative dispute resolution as well as the increasing dissatisfaction of victims with the criminal justice system. Restorative justice (RJ) offers, perhaps, a more active role for victims, who for many years were alienated by the mainstream criminal justice system. O’ Mahony pointed out the various international attempts to make RJ more a part of criminal justice. An EU framework promoted mediation as advantageous and the UN Vienna Declaration also committed members to implement RJ.

He then attempted to define RJ. This he pointed out is not an easy task as there are in existence many varying definitions of RJ. Many of these definitions are too broad and vague. The danger of this according to O’ Mahony is that RJ may mean all things to all people, in other words nobody knows exactly what it is all about. He set about highlighting some of the varying definitions in a bid to bring some clarity to the purpose of RJ.

The implementation of RJ programmes may vary greatly; different programmes attempt to achieve different things. Some may be special to a particular locality such as the work done with the Loyalists in Northern Ireland. Some commentators would argue that RJ belongs in the community rather than the criminal justice system. He then added that RJ is divergent in its scope, range and intention.

RJ may contrast in many ways to the criminal justice system. The state takes the conflict away from the key people in the offence, whereas in RJ these people are at the heart of any programme. Criminal justice seeks to be cold and impartial. Punishment is objective and retrospective, whereas RJ will often look at the potential to repair future harm. Criminal justice is effective at fact finding but RJ is all about dealing with the aftermath of the facts.

O’ Mahony then went onto examine some of the main types of RJ. First he examined victim-offender mediation. This is marginalised from criminal justice. It began in Canada and operates only on a small scale in the UK; it is developed on an ad-hoc basis. It is developed at a local level and is operated by the Probation service. The second example of RJ was community reparation boards. These help to give the community a further stake in the criminal justice system. In the UK they are mandatory for first time offenders and low-level offenders. According to the Newburn study their outcomes have been mostly positive. O’ Mahony pointed out that victims and offenders are generally more satisfied than the traditional criminal justice route. However he also noted the problems with resources and the low-level of victim participation (only 13%). He begged the question if this is truly a restorative measure with such a small uptake from victims. Also the mandatory participation of offenders also makes this questionable.

The next example of RJ was police-led restorative conferencing. Similar initiatives to this are available in Ireland. Although police participation is strong, victim participation is again weak (14%). O’ Mahony pointed out that the Irish system is much stronger in this area with high levels of participation from all parties. There were 320 such conferences in 2006. However, he did point out that this was out of 27,000 referrals. So the good progress was on a small scale. Finally, he gave the example of restorative conferencing. According to O’ Mahony, only Northern Ireland has a fully-fledged system. Victim participation is high (69% in 2005). It is a resource intensive process. 91% of victims get at least an apology, with only 11% who would have preferred to have gone to court.

He concluded by saying that RJ is no panacea but the process has some distinct advantages. It needs to be managed carefully. It has the potential to be harmful if it is not operated effectively. RJ and criminal justice can be brought together with effective safeguards and if managed properly.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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Plenary 3: Michael Donnellan, Director of the Probation Service

Mr. Donnellan, the Director of the Probation Service, began by giving a brief overview of probation in Ireland and its continued use today. In 2004 the Irish Youth Justice Review decided a dedicated youth probation service was required. In the limited time available to him he wished to highlight some of the options available to the probation when a case is referred to them.

The first of these options is the Family Conference. This is a restorative option that diverts the youth from the core criminal justice system. It is an intervention that can be powerful for the offender; it offers them a voice in proceedings. In court they would not have such an opportunity. It also offers the victim a voice. There have been 140 to date. Donnellan pointed out that the remorse of children was often heartfelt. The victims are often only looking to explain how the offence affected them; they do not wish to be punitive. Donnellan believes that there is a need for more multi-agency conferencing and that conferences should be used sparingly as they can be resource intensive.

The next option that may be used is the Parental Supervision Order. This strengthens the family conference model. It is popular in other jurisdictions. Its core strength is that it involves working with children and parents together. It has been piloted in Cork and is about to extend to other locations around the country. It involves 14 sessions with a multi-agency approach. It costs €10,000 per programme but there may be up to 45 people involved. It works out about €17 per person per night.

Finally, he referred to the Mentor (family support) Order. This was set up by the Le Cheile project and is similar to the buddy programme run in the USA. A youth is assigned a mentor who will help them with their educational and welfare needs. There are currently 70 in Ireland and there is an intention to extend the scheme to parental mentor supports as it has been identified that parents often need as much support as their children.

Donnellan concluded by saying that there are a number of developments in the pipeline such as the introduction of remand fostering rather than detention. It is also their intention to pilot a bail support scheme in Limerick. He hopes to see the introduction of more innovative programmes with some joined up thinking. Finally he made the point that the probation service is currently just a 9-5, Monday to Friday organisation. He stressed that children exist outside these times and need a system that reflects this.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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Plenary 3: Assistant Garda Commissioner Louis Harkin

Assistant Garda Commissioner Harkin opened by saying that it is important for the Gardai to be involved in this type of conference in order to get a flavour of what aspects of the system the various organisations and academics believe are in need of improvement. In his paper, Assistant Commissioner Harkin sought to deal primarily with the Gardai’s role in the system and what they can offer in terms of juvenile justice. He began by examining the diversion programme run by the Gardaí. This programme was highlighted several times throughout the two day conference, most notably by Sergeant Ben Flahive who presented a comprehensive power-point during one of the parallel sessions. Harkin indicated the high levels of training undertaken by the Juvenile Liaison Officers to take part in the programme. He highlighted the criteria for inclusion on the programme and the success rates of the programme. He addressed criticisms of the programme saying that critics need to take a more holistic view of the programme. A youth taking part in the programme may re-offend while still working through some behavioural issues and Harkin believes it is unfair to deem work in progress a failure. Harkin also noted the use of the Youth Diversion programme. It is based in the community and seeks to target those most at risk of offending.

He then went on to explain the Restorative Justice Programme. This is a conference where the victim will attend. The offender hopefully realises the effect of the crime on the victim, also that the crime was not just against the victim but against the community as a whole. There were 378 restorative conferences in 2007 and figures show that 60 % do not re-offend in the following 12 months.

He then went on highlight the challenges facing Gardai. It is Harkin’s belief that the delivery of services provided by the Gardai must be effective to both the offender and to society. The multi-agency approach so talked about must be embraced. A large number of people from many cultural and ethnic backgrounds have settled in Ireland in the recent past and a relationship of trust must be built between the Gardai and these new communities. Many of these communities are coming from countries where there are hostile police forces; the Gardai must present themselves as approachable and even-handed.

He concluded by saying that Youth Justice in Ireland is changing dramatically and that the Gardai are looking forward to working closely and developing links with other relevant agencies.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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Plenary 3: Michelle Shannon - Irish Policy Makers and Services Providers: Challenges and Reform

Ms. Shannon, National Director of the Irish Youth Justice Service, began her paper by highlighting some of the recent reforms of the youth justice system in Ireland such as the formation of the Irish Youth Justice Service and the Office of the Minister for Children. All provisions of the 2001 Act have now been commenced, more resources have been provided to the Garda Diversion Programme, and more Children’s Court judges have been appointed. The Government have approved the National Youth Strategy 2008-2010 and new detention school facilities.

She then pointed out the goals of the National Youth Justice Strategy and the need for a multi-agency approach. She argued that is gone beyond the time for talking, there is now a need for action and outputs; a Youth Justice Oversight Group has been established and approved by the government to help in this respect. This will include representatives from various agencies and departments that will come together to work on a more holistic basis. At local level Local Youth Justice Teams linked to Children’s Service committees have been established, which seek to develop best practice and interventions are targeted having regard to level of risk.

Shannon pointed out that the 2001 Act compared favourably with international standards and highlighted the need to be aware of international standards and obligations. There needs to be justice, fairness and accountability. All initiatives must also have the confidence of the public. There is a real hope that with this multi-agency approach that there can be a reduction in offending, value for money and efficiency.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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Plenary 3: Máiréad Seymour - The Irish Youth Justice System

In Dr. Seymour’s paper she endeavoured to give a brief overview of the Youth Justice System in Ireland as a way of setting the scene for the session. She began by pointing out that developments in this area are relatively new. The Children Act 2001 was the first piece of legislation to deal solely with children since 1908. The 2001 Act has been broadly welcomed but Seymour pointed out the well known problem with its slow implementation. She pointed out that a significant reason behind this delay was the fact that there were a number of departments responsible for children. She went on to add that the Criminal Justice Act 2006 contained several provisions relating to children. This resulted in amendments to some sections of the 2001 Act before they had even been commenced. She then highlighted the fact that a Youth Justice Review took place at the end of 2005 with the Irish Youth Justice System set up in 2006 as a result of this. Seymour pointed out that this conference was timely as the National Youth Strategy 2008-2010 had been published in recent weeks. She concluded her examination of the background of the Irish system by highlighting the dearth and quality of data and research in the area of Youth Justice. However she was confident that this is changing thanks to various third level institutions and interest groups.

Seymour then moved on to point out some of the key aspects of our juvenile justice system. She began by speaking about our age of criminal responsibility which was raised to 12 in the 2001 Act. However, she added that in the 2006 Criminal Justice Act an exception was introduced to charge 10 and 11 year olds with serious offences. The consent of the DPP is required to prosecute a child under the age of 14. Seymour then moved onto explain the Garda Juvenile Diversion Programme. She ran through the eligibility requirements, the responses available and how it all works in practice. She pointed out that the diversion programme has now been extended to 10 and 11 year olds despite the fact that they can only be prosecuted for serious offences at this age as envisaged by the 2006 Act. Garda statistics would indicate that the programme is a resounding success, but Seymour argued that there is limited data and the Garda statistics lack transparency. There are concerns around net widening, the absence of due process that are available in the legal process and the absence of external evaluation. She then briefly reviewed behavioural orders which are a recent addition in Irish law. The breach of this civil order can bring a child into the criminal system but to date no such order has been issued.

Seymour then moved on to the Children’s Court. The 2001 Act has much to say about how these courts should be run. They should take place at a different time and preferably a different place to the normal business of the court to avoid the mixing of juveniles with adult. She pointed out that this is easy in Dublin where there is a dedicated Juvenile Court but more difficult everywhere else. Hearings are in private but if a child is sent forward to the Circuit or Central Criminal Court for trial they may be identified in the media if it is in the public interest. Parents are obliged to be present but often do not come to court. This results in the issue of a bench warrant.

She then highlighted the principles contained in the 2001 Act that form the basis of the system. The child has a right to be heard and to participate, criminal proceedings should not be used to sort out care and protection issues, detention should be a last resort and be for the minimum amount of time possible and the child’s age and maturity should be taken into consideration. She went on to examine some of the sanctions available but emphasised that not all sanctions are in operation due to funding issues. 17 % of cases finalised result in detention. There appears to be a downward trend in the use of custody, but Seymour expressed caution here as the continuous flow of prisoners if counted may give a different result. The main detention facility for those 16 and over is St. Patrick’s Institution. Seymour revealed a statistic that is quite staggering in respect of Pat’s, a third of all detainees are on remand.

She concluded her paper by examining the challenges and issues faced by Ireland. She stressed the need to comply with international standards, the need to co-ordinate the delivery of effective youth justice services and the need to build a knowledge base for youth justice in Ireland.

Summary submitted by LL.M (Criminal Justice) candidate, John Cronin.

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Saturday, 5 April 2008

Semi-Plenary II – Policing, Accountability and Youth Justice

This second of two semi-plenary sessions comprised a presentation by Niamh McKeague of the Garda Siochána Ombudsman Commission (GSOC) followed by a Q&A session from the floor with Ms. McKeague and Michael O’Neill BL, Legal Advisor to the GSOC. The session was chaired by Sophie McGuinness of the Office of the Ombudsman for Children.

Ms. McKeague began by outlining the functions and processes of the GSOC as provided for by the Garda Síochána Act 2005. The GSOC began to operate in May 2007 and can consider complaints relating to Garda conduct (including breach of discipline), investigate any practice, policy or procedure of the Gardaí with a view to reducing the level of complaints relating thereto, and consider matters referred by either the Garda Commissioner or the Minister for Justice.
After outlining the remit, functions and processes of the GSOC Ms. McKeague proceeded to provide a number of statistics about the Commission’s work up to the end of January 2008. From its establishment to the end of January 2008 the Commission had received over 2000 complaints, just under 2% of which had come from children and young people. The Act provides that a complaint may be made by any member of the public and does not impose any age-related standing requirements for complainants, therefore children are eligible to submit complaints to the commission. It was on the appropriate way to deal with such complaints, and the particular challenges arising therefrom, that the remainder of the presentation focused. More information on the GSOC is available here.

Ms. McKeague firstly considered the challenge of deciding on the definition of ‘child’ for the purposes of the GSOC – although the Act does not prohibit children from complaining, it does not offer any substantive guidance on the particular challenges connected thereto. Having considered the various ages by which childhood is defined in different instruments (UNCRC – 18; Non Fatal Offences against the Person Act 1997 – 16;12 for criminal responsibility) the GSOC decided to treat all complainants under the age of 18 as child complainants in order to ensure that, as much as possible, potentially vulnerable complainants would be identified and appropriately dealt with. In this connection she also noted the commitment of GSOC to providing appropriate training to GSOC staff and the cooperation between GSOC and the Office of the Ombudsman for Children in equipping the GSOC to deal with child complainants.

Ms. McKeague then addressed two particular challenges to the GSOC in dealing with child complaints. The first related to information and the provision of information to certain parties once a complaint had been lodged. She noted the importance of making it clear to child complainants that GSOC can not guarantee the absolute confidentiality of complaints, particularly since s. 103 requires that all interested parties be kept informed about the progress and results of an investigation. In this context, interested parties might, she reflected, sometimes include parents of the child complainant. The issues surrounding information are further complicated by s. 81 of the Act which prohibits the disclosure of information to anyone where such disclosure may have a harmful effect. Although certain bodies are exempted from causing harmful effect through receipt of information, the HSE and parents are not included in this list. Thus, the investigators must make a case by case determination of whether or not disclosure of information to a non-exempted party such as parents or the HSE might have a harmful effect and advise the individual commissioners in each case as to whether or not they can sanction release of information. The disclosure of information in violation of s. 81 can result in criminal sanctions and can therefore cause significant difficulties for investigators working in the GSOC.

Ms. McKeague also considered the difficulties relating to duty of care. While all parties accept that there is a duty of care to children, certain structures involve numerous actors all of which may have a duty of care but where there is no clear delineation of whether one party’s duty stops and another’s begins. In this context she referred specifically to the area of child protection and the Children First strategy in which parents, the HSE and an Garda Síochána are all relevant actors. Children First has been incorporated into the Garda code, therefore a question arises as to whether or not a member could be investigated for and found to have engaged in dereliction of duty for not acting in a particular way in relation to a child and the difficulties that would pose in a situation where there is no clear delineation of duties between the three main actors.

Finally Ms. McKeague reflected on the usefulness of meaningful communication and co-operation between GSOC and various different bodies in developing a policy relating to child complainants and considering the manner in which the questions that arise in the early stages a new scheme can be resolved in a manner that ensures the paramouncy of the child’s best interests.

The Q&A session involved a fruitful exchange between the representatives of the GSOC and delegates from Include Youth (Edel Quinn), Children’s Law Centre (Paddy Kelly), Finglas Child and Adolescent Centre (Colette Walsh), the Bar (Mary Ellen Ring SC), and the Ombudsman for Children, Emily Logan.

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Friday, 4 April 2008

Plenary Session 2: Thomas Hammarberg - Youth justice based on child rights norms

Commissioner Hammarberg (Council of Europe Commissioner for Human Rights) opened his address by highlighting the fact that east is starting to look west as many countries’ systems have failed from a human rights perspective and also from a recidivism perspective. He gave some examples of countries to the east of Europe that have criminal justice systems that are far from desirable; where there is disproportionate imprisonment of ethnic minorities and difficulties within youth detention centres. Having highlighted a number of problems being experienced in the east of Europe, he then went on to focus the remainder of his presentation at Ireland and the UK

The Commissioner noted that he had just arrived from inspecting detention centres in England and a report is due out in 2008. Previous reports have criticised the UK for the large numbers of young people in detention; a situation that Hammarberg noted has yet to be addressed. He also noted in particular the use of restraints in youth detention centres and the ongoing debate as to what types of restraints are permissible. This is an issue that Mr. Hammarberg believes there is a striking focus on in the UK, perhaps more so than in other countries. He then went to note that as the UK is seen by other countries as an important role model, it is imperative that it would bring its system in line with international standards. He referred to the unanimity between academics and practitioners over how the English system ought to operate, but also that media and public opinion may make it difficult to make these changes from a political perspective.

Commissioner Hammarberg then moved on to consider the age of criminal responsibility, which he noted was too low in both the UK and Ireland (in spite of the fact that there is no actual age specified in the international standards). He went on to say that too many young people are being brought into the system and labelled as criminals when in fact they are victims of their background. There are many more detained who should be in special units to tackle their mental issues. He referred briefly to his recent examination of the Irish youth justice system although he could not go into much detail as the report is due out at the end of April. There will be a number of recommendations in the report.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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Plenary Session 2: Lesley McAra - In the best interests of the child? Scottish youth justice in comparative context

Dr. McAra opened by outlining the Scottish model of justice based on the Kilbrandon philosophy. Under this model, offending is seen as a symptom of deeper-seated needs, and it is acknowledged that decisions ought to be made in the best interests of the child and that the experience of the criminal justice system ought to be as de-stigmatising as possible. McAra highlighted the strong association between offending and vulnerability and noted that violent offenders in particular are most vulnerable as they have high levels of self harm and para-suicide.

McAra then went on to point out that the Kilbrandon model has been under pressure since devolution. There has in fact been a convergence of policy with New Labour in England. Many of the changes in the English system have also been adopted north of the border; a process that McAra refers to as ‘de-tartinization’. She then went on to acknowledge the tension that now exists in Scotland in terms of youth justice policies. There are two opposing camps, one of which favours the punitive approach and the other of which remains committed to the Kilbrandon system. McAra however believes that the punitive voice is shouting loudest and that the Kilbrandon approach has been undermined by both the police and the Reporter.

Certain categories of young people are recycled in the system and stigmatized. According to McAra, there is a labelling process going on whereby these young people are consistently charged with offences whereas other equally serious and vulnerable offenders escape tutelage of agencies altogether. McAra gives the interesting statistic that at age 15, 72% of self-reported violent offenders remain ‘unknown’ to social work or the children’s hearing system. McAra highlighted that the findings in the Edinburgh survey mirror those in international comparative research, namely the Denver/Bremen longitudinal studies. The further you take a young person into the system the more damaging it is for the young person. The most vulnerable children are propelled into the adult system. McAra then moved on to suggest that early behavioural problems are not generally a good indicator of later offending.

McAra concluded by suggesting some lessons that need to be learned from the Scottish experience: it is crucial to protect our most damaged young people, in particular those who are hidden offenders; there needs to be maximum diversion and minimum intervention; and there should be early intervention to problem areas rather than just problem families.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin

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Plenary Session 2: Barry Goldson - From pre-emptive intervention to custodial detention: Systematic human rights violations in English ‘justice’

Professor Goldson began by highlighting the well-known fact that youth justice has become much more punitive in the last 15 years. He added that the English system flagrantly violates most human rights. He also wished from the outset to dispel the myth that Wales and England should be treated as one, highlighting that Wales has undergone devolution and is now largely compliant with international standards. Goldson sought to raise three propositions to support his views that England is systematically violating human rights standards in relation to youth justice.

The first proposition is that England comprises one of the most punitive juvenile justice systems in the industrialised democratic world. The second proposition is that punitivity has been institutionalised over the past 15 years by an endless stream of legislation. Goldson outlined briefly the legislation that has been brought in that has an effect on the youths in England. His final proposition is that the net effect of this legislation serves to systematically violate the human rights of children.

Young people are now targeted by the system in a very particular way. A child may not even have committed an offence and yet the mere fact that they may be at risk of committing an offence in future may bring them into the system. This is anathematic to traditional principles of criminal justice. It used to be the case that children only came into the criminal justice system where they had committed an offence and in those circumstances there were clearly defined guidelines for the administration of justice. This would have been in line with international standards. Now intervention can take place before an offence is carried out. Children are exposed to intervention on the basis of what they might do. Goldson argued that perceived risk is not a crime; they are innocent and this innocence is being seriously compromised. It appears from expert evidence that Goldson referred to that there is little to show that early intervention is successful; rather the idea is dismissed as ‘fanciful’.

The UN first expressed concern in 1995 about the levels of detention and since then numbers have actually doubled, which Goldson noted was a graphic violation of children’s rights including the right to life: from 1990 to 2007 there have been 30 youth deaths in detention. A youth of colour is 6.7 times more likely to get a sentence of over 12 months than a white youth. The UN is due to report again this year but Goldson expects them to express few positives and quite a number of negatives. Goldson concluded by arguing that the challenge for those concerned is not to seek out the interventions that work but rather to abandon the ones that do not work.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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Plenary Session 1: Tapio Lappi-Seppälä - The Nordic model of Juvenile Justice as applied in Finland

Mr. Lappi-Seppälä opened by giving a brief history of how Finland has dealt with offending behaviour amongst young people. Child protection legislation was introduced in the early 1900s and Finland has two models running side by side: the child welfare system and the criminal justice system. The former concerns the best interests of the child, the rights of the child, intervention, support, open care and residential care. Those who find themselves in the criminal justice system will be subject to the principle of proportionality, although in Finland there is an avoidance of custody where possible. From the 1960s onwards there has been a movement against incarceration; there was a general decarceration at all levels of the criminal justice system. In 1975 there were 761 15-17 year olds in detention compared to 65 in 2006. There were 1000 15-17 year olds in reform schools in 1965 and in 2007 there were 200.

The child welfare system has been growing in popularity since the 1960s and in 1995 there was a constitutional reform on the rights of the child. The majority of child welfare interventions are family support, open care options. Mr. Lappi-Seppala acknowledged that 20% of these interventions are non-consensual. The primary objective of these care options is that they are there to educate the young people. Issues surrounding substance abuse and mental health are also addressed.

He then posed the question of whether or not juvenile justice systems in different jurisdictions can be compared in terms of penal severity and deprivation of liberty. Although age would be the most reliable factor when examining court imposed sanctions, countries use different methods of filtering and diversion making effective comparisons difficult.

He concluded by examining how well Finland has done in adhering to international standards and felt that the country had done well in adhering to the principle of imprisonment as a last resort, and in finding alternative methods to the criminal justice system to deal with young offenders. In addition he highlighted the publication, in 2006, of the Child Protection Law Reform to improve legal safeguards. Criticisms to Finland from the UN Committee on the Rights of the Child have normally focused on how the country has tackled the psychosocial problems of its young people. Mr. Lappi-Seppala outlined the increased investment and continuing improvement in this area.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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Plenary Session 1: Chris Cunneen - Juvenile Justice in Australia: How well do we comply with international standards?

Professor Cunneen opened by highlighting the fact that Australia has a federal system and consequently there are differing standards and strategies applied across the jurisdictions. Cunneen sought to use three general principles to examine whether or not Australia is compliant with international standards.

The first principle he used was that of imprisonment and detention as a last resort. Currently there are 29.1 per 100,000 imprisoned in the country but as was pointed out this figure masks the difference between states. The Northern Territory for example has a rate of 97.5 per 100,000. Cuneen pointed out that this figure was worrying when one factored in the high number of Aboriginals resident in this jurisdiction. He then highlighted the different rates of imprisonment between New South Wales and Victoria, two jurisdictions comparable when taking into consideration population size. Victoria has a rate of 7.1 whereas New South Wales has a rate of 35. The last 25 years has seen a reduction in the rate of incarceration, Cunneen did identify a slight upswing of late but he is hopeful that this is a temporary change. A negative issue that has recently become apparent is the large number of youths on remand having been refused bail. In 2006 58% of the detention population was made up of remand prisoners. There has been a tightening of the bail laws in the adult legislation that has now also been applied to juveniles without any thought. Cunneen pointed out the knock on effect of this is that a large number of youths are placed in detention system pending their trial and because they have been convicted of no crime, no programmes can be implemented to tackle any problems the youths may have.

The second principle he used was the availability and use of diversion options. Cunneen pointed out that Australia has a number of similar initiatives to Ireland in operation to divert youths from the full rigours of the criminal justice system. Again he stressed how each jurisdiction differed slightly in their approach. Warnings, cautions and family conferencing are all at the heart of diversion. The criteria for their use is established in legislation where the seriousness of the offence, level of violence, harm and the offending history of the child are all taken into consideration when deciding what route to take. The family conference is taken from the New Zealand model. The youth must admit to the offence, agree to participate and the victim must also agree to participate. The police, DPP or a judge may refer a case to a conference. Cunneen acknowledged the mixed results of conferences internationally. In New South Wales youths are less likely to re-offend if they are diverted for property or violent offences than if they came before the courts for the same offence. There is a limited use of drug courts in Australia where half the people referred to the programme are refused admission and 40 % who are admitted complete the programme. Cunneen pointed out that a recent problem has been the increase in the number of people before the courts where the number being diverted has remained the same. The enthusiasm for reform can wear out after a period.

The final general principle Professor Cunneen examined was the prohibition against racial discrimination. He opened by highlighting the fact that Aborigines do not enjoy the same of benefits of diversion. He gave the example of a young female shoplifter. If the shoplifter is black s/he three times more likely to be arrested than if s/he is white. The result is a massive over representation of Aboriginals in the Australian detention system. More than 50 % of the detention population are of Aboriginal extraction. Cunneen pointed out that where detention levels are going down overall, the numbers of Aboriginals being held in detention is rising.

Professor Cuneen concluded by outlining how the diversion system can improve. There needs to be a range that responds hierarchically to the seriousness of offending, adequate resources, the diversion options must be seen as viable options and there is the need for legislation to provide clarity and consistency. He finished by arguing that once rates of recidivism for diversion are as good, if not better, than those for detention then they must be used.

Summary provided by John Cronin, LL.M (Criminal Justice) Candidate

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Wednesday, 2 April 2008

Youth Justice 2008: Blogging the Plenaries

Youth Justice 2008, a major conference organised by CCJHR member Dr. Ursula Kilkelly, begins tomorrow in UCC. The full programme for this two-day event is available here. The event includes plenaries on both Thursday and Friday, which will be summarised with the summaries posted here on the blog over the weekend. The plenary summaries will mostly be compiled by LL.M (Criminal Justice) candidate, John Cronin.

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