Monday, 22 March 2010

Changes needed to Mental Health Act 2001

The Mental Health Commission has started work on developing a Code of Practice on the Mental Health Act 2001. The Commission seeks views on which parts of the Act, if any, further guidance should be provided on and the closing date for receipt of feedback is Wednesday 28th April. For further information, see this page.
Meanwhile, papers and videos from the recent Mental Health Law conference at University College Cork are available here. The conference was jointly organised by UCC Faculty of Law and the Irish Mental Health Lawyers Association. Speakers included Mary Forde of Amnesty International Ireland, Patricia Rickard-Clarke of the Law Reform Commission, Michael Lynn, B.L., Diarmaid Ring, Mental Health Service User and Activist, Dr Mary Donnelly of UCC, Áine Hynes, Solicitor, Hugh Kane, CEO of the Mental Health Commission, Mark Felton, Solicitor, and Dr Darius Whelan of UCC. Dr Mary Henry, former independent Senator, spoke at the book launch which followed the conference. Each session was lively and informative, with plenty of genuine engagement between the 120 members of the audience and the speakers. One of the many interesting slides was one from Hugh Kane about the need for reforms of mental health law, which included the following items:
  • Urgent need for Capacity Legislation
  • Review of Section 59(1), Mental Health Act 2001 [This concerns Electro-Convulsive Therapy]
  • Section 23/24, Mental Health Act 2001 [Re-grading of patients from voluntary to involuntary status]
  • Measurement of performance, overall impact of mental health tribunals, Section 49, Mental Health Act 2001
  • Need for automatic independent legal representative for children admitted to approved centres, Section 25(14), Mental Health Act 2001.
  • Definition of ‘best interests’, Section 4, Mental Health Act 2001

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Thursday, 4 February 2010

Mental Health Law Conference & Book Launch

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

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

For full details and a booking form for the conference, see

Speakers at the conference include:

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

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Friday, 22 January 2010

Extended: 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 crimial law, criminal justice and human rights.

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

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

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

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

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

For further information, registration details etc. please visit For updates on accepted papers and the provisional programme connect with us on Twitter and feel free to retweet to friends and colleagues!

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

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Friday, 8 January 2010

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

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Friday, 27 March 2009

CCJHR Third Annual Postgraduate Conference: The Promise of Law: Political Claims and the Boundaries of Justice

The Centre for Criminal Justice and Human Rights at UCC will host its third annual postgraduate conference on April 30th, 2009.

The theme for this year's event is “The Promise of Law: Political Claims and the Boundaries of Justice.” The conference will focus on the intersection of law and politics and the tensions between liberty and political expediency in view of contemporary challenges to civil and human rights principles.

This year’s conference features an exciting mix of papers on a diverse range of topics, approached from empirical, doctrinal and theoretical perspectives. With 50 presenters drawn from a variety of institutions across Ireland and the UK, the 2009 conference is the largest postgraduate conference of its kind.

The keynote address will be delivered by Barbara Hudson, Professor in Law at Lancashire Law School, University of Central Lancashire. Professor Hudson has published widely on gender and criminal justice, penology and social justice. Her latest book is Justice in the Risk Society: Challenging and Re-affirming Justice in Late Modernity (Sage: 2003). The closing address will be delivered by Maleiha Malik, Reader in Law at King’s College London, who has written extensively on discrimination law, minority protection and feminist theory. She is co-author of Discrimination Law: Theory and Practice (Sweet and Maxwell: 2008).

To reserve your place at the conference, please complete a registration form and send it to . There is a €30 attendance fee which can be paid on the day.

For further details of the conference program and to access the registration form click on the link below which will take you to the relevant page of the UCC Law Faculty website:,72483,en.html

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Friday, 28 November 2008

Call for Papers – Postgraduate Conference

The Centre for Criminal Justice and Human Rights at University College Cork is pleased to announce its 3rd Annual Postgraduate Conference. The theme for this year's event is “The Promise of Law: Political Claims and the Boundaries of Justice.” The conference will take place on April 30th 2009.

The conference will focus on the intersection of law and politics and the tensions between liberty and political expediency in view of contemporary challenges to civil and human rights principles. This international one-day conference will attract promising research scholars from Ireland, the UK and Europe. Although a young event, it has become a significant fixture on the Irish legal calendar, and the Centre for Criminal Justice and Human Rights has established a reputation for excellence in this area of scholarship.

We are especially interested in papers that relate to human rights, criminal justice or the intersection of these fields. However, we also welcome papers dealing with issues outside these areas that fall within the broad theme of the conference. It is envisaged that the best papers delivered at the conference may be published online.

The keynote address will be delivered by Barbara Hudson, Professor in Law at Lancashire Law School, whose areas of expertise include cosmopolitan theories of justice and feminist jurisprudence. The closing address will be delivered by Maleiha Malik, Reader in Law at King’s College London, who has written extensively on discrimination law, minority protection and feminist theory.

Please submit an abstract (max. 300 words) to the organising committee by Friday February 13th 2009. Successful conference submissions will be notified by February 27th 2008. Submissions and further enquires should be directed to

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Tuesday, 8 July 2008

6th International Conference on Clinical Legal Education

UCC will host the 6th International Journal of Clinical Legal Education Conference on 14th and 15th July, 2008. The Conference, Lighting the fire: the many roles of clinical legal education, is being generously sponsored by Matheson Ormsby Prentice, solicitors.

The conference programme comprises International and Irish speakers. Academics from Universities all over the world (including the US, South Africa, Canada, Australia, India, Puerto Rico and Europe) as well as from Ireland will present and discuss on the following themes:

  • clinic and education for justice
  • integration of clinical learning in the curriculum
  • student responses to clinical initiatives
  • clinic and life long learning

The Conference is being held in association with the University of Northumbria. Since its inception, the International Journal of Clinical Legal Education Conference has provided an opportunity for legal educators from diverse jurisdictions to meet, to exchange ideas and experiences and to learn together. Previous conferences in London, Melbourne, Johannesburg and Edinburgh have been truly international gatherings, and an opportunity for legal educators working in very different social and legal contexts to share visions of practice, and to learn from one another.

The Law Faculty UCC has been to the fore in the development of Clinical Legal Education in Ireland. In 2004 Mr Gerard Murphy was appointed as the first full-time Clinical Education Coordinator in the Law Faculty with responsibility for the development of clinical legal education including the Faculty's two highly successful clinical programmes: the LLM (Criminal Justice) (Clinical) and the BCL (Clinical). The BCL (Clinical) programme will be offered to students on the CAO from 2009.

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Wednesday, 2 July 2008

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 [2006] 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.

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Panel 2: Security Council Resolution 1325: Women, Peace and Security

Madeleine Reese, Head of Women's Rights and Gender Unit, Office of the UN High Commissioner for Human Rights, began her presentation by noting the limitations of international law as a tool of social transformation in post-conflict zones. She observed that progress in this arena has been tremendously slow, such that what often passes for success in the context of international law might not be so regarded elsewhere. In evaluating the potential of Security Council Resolution 1325 on women, peace and security, she stated that while it contained some 'packages' which would prove useful in improving women's political participation, ultimately its recognition of women as agents for social change was muted - particularly in its language, which advocates the participation of women 'where possible'. This presentation followed a broader theme which emerged in the papers presented at the conference: that blackletter law has little impact in the absence of proper implementation, backed by solid gender analysis. Ms. Reese argued that polarisation during conflict begins before conflict and is ultimately the product of social norms. While formal justice mechanisms were therefore important, they were unlikely to bear fruit unless regard was had to issues of recognition and redistribution.
First, it was important to ensure that transitional justice processes described women's experience of conflict accurately. Procedure and process ought to be adapted to fit the emotional and practical needs of participating women. To illustrate the problems which can arise in practice, Ms. Reese cited examples from the ICTY; including women travelling unaccompanied to the Hague to participate in the tribunal and unsupported on their return home. The jurisprudence on rape itself also generates difficulties for female victims. The requirement to prove that the victim did not consent deterred women from participating in the Yugoslav and Rwandan tribunals. Ms. Reese advocated more intelligent prosecution to overcome this difficulty. For example, prosecuting sexual violence against women as torture (as is often done in the case of sexual violence against men) would overcome the consent requirement. Second, women's social and economic rights ought to be enhanced so that they could overcome the social barriers which tended to exclude them from post-conflict negotiations. Ms. Reese argued that temporary special measures of positive discrimination ought to be applied post-conflict.

Col. Ben Klappe, Military Judge/Judge in the District Court Arnheim/Netherlands Defence Academy, presented ongoing efforts to prevent sexual abuse and exploitation by UN peacekeepers. He began by noting that UN peacekeeping forces have been dogged by allegations of sexual abuse since the Balkan missions in the early 1990s. Col. Klappe's own presentation centred on allegations made against UN peacekeeping personnel in Bunia, DRC in 2004. The most recent set of allegations is contained in the Save the Children report No One to Turn to, published in May 2008, which claimed that sexual violence perpetrated against children went largely unreported. Col. Klappe outlined the following UN initiatives which aimed to tackle this problem:

Col. Klappe argued that a key obstacle in this area was the difficulty in disciplining perpetrators. Disciplinary power extends at most to repatriation and sending States retain exclusive criminal jurisdiction. The Special Committee on Peacekeeping Operations mandated the development of a legal framework enabling criminal prosecution. The 2007 model memorandum of understanding between the UN and sending countries has shored up possibilities for enforcement. In the memorandum, sending countries undertake to bring the full force of their legal sanctions to bear in enforcing agreed standards of conduct for troops. Another important recent development from the victims' perspective is the General Assembly's adoption in 2007 of a victim assistance strategy. Under this strategy, victims would receive assistance to address their needs which could include medical treatment, social support, legal services or material care.

Lt. Col. Oliver Barbour, Irish Defence Forces/GBV Consortium, dealt with two related areas. First, he touched on the work of the Irish Consortium on Gender Based Violence which has 14 members, including two Irish government departments as well as Irish human rights, humanitarian and development agencies. Its objectives are: to ensure that actions to prevent and respond to GBV are visible and systematically addressed in the work of its member agencies; to document and share resources on the prevention of GBV and to develop an advocacy strategy to promote awareness of and improve actions on prevention of GBV. The Consortium's Advocacy Group works to raise awareness of the consortium’s work and GBV, and is promoting the development by the Irish government of an effective Irish National Action Plan on UNSCR 1325. During 2008, the Consortium will build on its current training and dissemination work and will also host an international conference in Dublin.
Second, Lt. Col. Barbour discussed the wide range of attempts to integrate a gender perspective into EUFOR's recent operation in the Democratic Republic of Congo. His core message was that gender issues ought to be given effect at a practical operational level. In explaining the successes of efforts in the DRC, he discussed a number of key initiatives:
  • gender issues had been incorporated into the planning stage of the mission and eventually formed part of the operational plan.
  • a gender advisor was appointed to the EU OHQ to provide basic training for OHQ and FHQ personnel
  • reports on gender issues were compiled weekly.
  • a gender issues soldiers' card was developed which provided for a zero tolerance policy on sexual exploitation and abuse.
  • women were specially trained to take part in patrols along with soldiers.

Lt. Col. Barbour reported that, as a result of these efforts, the force's credibility among local women and among influential women's organisations improved tremendously. However, he expressed concern that the legal officer was appointed gender officer at FHQ as he suggested that this 'double-hatting' undermined the importance of the role.

Summary provided by PhD candidate and IRCHSS scholar Máiréad Enright.

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Monday, 30 June 2008

Panel 3: The Role of Transitional Justice in Addressing Crimes of Sexual Violence

The second afternoon session, examining the response of transitional justice mechanisms such as truth commissions, trials and reparations to sexual violence was as depressing as it was informative. The three speakers brought experiential, methodological and geographic diversity to their papers, but the recurring theme was the immense difficulty of responding adequately to the psycho-social trauma of mass rape in the post-conflict environment.
Fionnuala Ní Aoláin focussed her discussion of truth, DDR and reparation mechanisms, but concentrated mainly on the limits of our understandings of harm. She argued that the exclusionary emphasis on sexual violence fails to fully understand the problem of women’s experiences in conflict situations. She used an examination of the afore-mentioned mechanisms to illustrate the gap between what women cite as harms and those that Truth Commissions and courts say are harms. Prof. Ni Aoláin also referred to the consistent criticism of transitional justice that it replicates the centuries-old division between the public and private sphere, reflecting make fears of violation over those suffered by many women. Similarly, the emphasis of transitional mechanisms on primary harms instead of secondary harms marginalises the experience of women who experience the latter in the same way as the former.
Professor Penny Andrews spoke of her extensive experience of transitional justice in South Africa, prefacing her remarks with the sobering observation that sexual violence rates have reached “epidemic” levels after 1994. Though international law has had a major impact on legal development in the State, it has not translated into protections for women bar in some encouraging isolated cases highlighted by the speaker. As Prof. Andrews pointed out, “a legal edifice can be in place but it doesn’t addresses attitudes”. A theme running through the three speaker’s comments was the inadequacy of transitional justice to respond to “ordinary” rape and the need for multi-faceted approaches. Prof. Andrews’ brief treatment of the Jacob Zuma case and the racialisation of gender-based violence shows how far justice and freedom in the private sphere are from the ostensible freedom in the constitution and state structures.
Judge Teresa Doherty, currently sitting in the Special Court for Sierra Leone and formerly of the Papua New Guinea Magistrate, High and Supreme Courts brought her experience in these courts to illustrate the difficulties of trial-based responses to gender-based violence. As presiding Judge in the AFRC trial, she has been responsible for crafting original jurisprudence on the crimes of forced marriage and sexual slavery. Prosecutions for rape and sexual violence remain all too rare so it was comforting to hear of this progress. Nonetheless, Judge Doherty’s references to trial of gender-based violence and sexual slavery in Papua New Guinea were once more sobering, capped by a tragicomic tale of a man who beat his wife to death who came before her court unable to understand that domestic chores might be subject to division between man and wife. In concurrence with her two preceding speakers, Judge Doherty stressed the necessity of education, and incontestable argument in light of the three discussions.

Summary provided by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe.

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Panel 1: Responding to Sexual Violence – Recent Developments in International Law

The first panel session focused on the role played by International Law, and in particular, International Tribunals, in responding to Sexual Violence in conflicts. The session provided both an account of some positive developments in the area as well as problems, in respect of law (both International and domestic), and cultural and political challenges in responding to sexual violence.
The first speaker, Dr Kelly Askin, opened the session with an account of how the past 15 years has the recognition of Gender Based Violence (GBV) as a human rights issue. Taking the conference through the key court decisions from the International Criminal Tribunals for the former Yugoslavia and Rwanda, she informed the conference that the cases have established that GBV can be prosecuted as a war crime even in cases of defendants who were “in charge” rather than directly involved in the crimes. However, setting the tone for the rest of the speakers, Dr Askin went on to note the many missed opportunities and acquittals, and the fact that it takes sustained pressure for these crimes to be successfully prosecuted in practice. She also noted that now that the International Tribunals had set down the jurisprudence, it was time for the domestic courts to “step up” and do more to prosecute GBV.
The downbeat tone was picked up by the next speaker, Professor Doris Buss, who presented findings on the legacy of the International Criminal Tribunal for Rwanda. Reporting on the “bleak” record of the Tribunal she noted that there was a very low success rate in prosecuting sexual offences. Problems were found at all points in the system – investigations, prosecution and trials. Professor Buss noted that whilst in International Law rape had become visible as a mass crime, it remained almost invisible at the point of the individual; and whilst International Law has developed significantly in relation to prosecuting GBV, the institutional and the cultural problems continue.
The final speaker, Amira Khair, presented a disturbing account of the practical experience of working with women victims of sexual violence in Sudan. The experience made clear how Sudanese law is not a solution to GBV, but is in fact part of the problem. The law on rape exposes the victims to further abuse, as it requires four male witnesses to establish a victim did not consent to the sexual act. Without these witnesses there is a danger that the victim could be prosecuted for adultery because she had sex outside marriage. The law therefore does not provide the space for victims to seek legal protection and/or justice; something reinforced by the cultural context of not speaking out in relation to sex.
The session concluded that International Tribunals using International Law were only part of the way in which rape victims can obtain justice. Local courts, truth and reconciliation commissions, reparations, all had a part to play in tackling GBV after a conflict. It also took courage on the part of the legal players; which in itself was a telling issue as Professor Buss concluded “How did we get to the point where it needed courage to convict someone for rape?”

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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.

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Friday, 27 June 2008

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 2008-2009.
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.

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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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Tuesday, 8 January 2008

Call for Papers: CCJHR Post-Graduate Conference on Criminal Justice and Human Rights

The Centre for Criminal Justice and Human Rights is pleased to announce the second postgraduate conference on criminal justice and human rights to be held on Thursday 1 May 2008.

This one-day international conference will attract postgraduate research scholars whose work pertains to criminal justice and human rights. In addition to exploring topics specific to the scholarship of criminal justice or human rights, the conference aims to consider the intersections of both fields. The conference will serve as a forum for discussion and debate among researchers within both fields and between the two fields of study themselves.

The keynote address will be delivered by Michael O'Flaherty, Professor of Applied Human Rights and Co-Director of the Human Rights Law Centre in the School of Law, Faculty of Social Sciences, Law and Education at the University of Nottingham. Professor O'Flaherty is also an elected member of the United Human Rights Committee.

The organisers invite abstracts from postgraduate students working in these areas. The presentation of ongoing work is especially welcome.

The conference will be organised into streams, including but not limited to the following topics:

* Discourses of rights and crime.
* New directions in human rights enforcement.
* Human Rights, Criminal Justice and the War on Terror.
* Transitional justice.
* ECHR and domestic law.
* Asylum and immigration.
* Multiculturalism, minority rights and human rights.
* New trends in International criminal justice.
* Gender and Human Rights.
* Policing.
* Victimology.
* Juvenile justice.
* Punishment and penal policy.

Please submit an abstract (max. 300 words) to the organising committee by February 15th 2008. Successful conference submissions will be notified by February 29th 2008. Submissions and further enquires should be directed to a.d.odonovan[AT]

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Wednesday, 21 November 2007

Models of Guardianship: Protecting Migrant Children

On 28th November the Irish Refugee Council (whose director, Dr Siobhan Mullally, is also co-director of the CCJHR) will hold a one-day seminar in Cork entitled Models of Guardianship: Protecting Migrant Children. The objectives of the seminar are to:

  • Raise awareness about relevant national and international obligations regarding the role and responsibilities of guardians for separated children
  • Highlight research and showcase good practice from other countries
  • Compare Irish practice with international standards and good practice models
  • Solicit recommendations for improving Irish practice in the future

Speakers will include Thomas Hammarberg, COE Commissioner for Human Rights, Céline Dermine (Belgian Legal Expert), Manuel Jordão UNHCR Representative in Ireland, Freda McKittrick , Beacon Guardian ad Litem Service, Barnardos; Lea Nykänen, Finnish Guardian; Nadine Finch Barrister at Law, Garden Court Chambers, U.K.; Save the Children U.K.; Geoffrey Shannon Special Rapporteur for Child Protection; and Dilly O'Brien of the Office of the Minister for Children.

Completed registration forms should be returned asap to emilia[at] or faxed to 01 873 00 88.

Full details - including how to book - are available here.

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