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Joined up thinking for the Irish Left
Syriza?s Victory: Turning Hope into Reality Thu Jan 29, 2015 04:11 | Michael Burke
From Alpha to Omega Podcast #059: Test Those Theories Thu Jan 29, 2015 03:57 | Tom O'Brien
The Very Real Cost of Rising Inequality Thu Jan 29, 2015 03:43 | Michael Taft
Cead Mile Failte Thu Jan 29, 2015 03:35 | Michael Corrigan
Always the Artists: Week Three of the Bank Inquiry Fri Jan 23, 2015 03:31 | Conor McCabe
Health, Gender-Based Violence and the Right to Reparations in Ireland. Sat Jan 24, 2015 16:06 | Máiréad Enright
Mental Disorder and Punishment in Criminal Law ? Seminar Wed Jan 21, 2015 14:22 | Yvonne Daly
Protection against Cross-Examination by the Accused in Sexual Offence Trials ? The Criminal Law (Sex... Wed Jan 21, 2015 06:30 | GuestPost
Update on the Northern/Irish Feminist Judgments Project. Fri Jan 16, 2015 09:00 | admin
Seminar 5th Feb 2015 (Trans)Gender Recognition in Germany: The Role of the German Courts Thu Jan 15, 2015 08:30 | Liam Thornton
Máiréad Enright - Sat Jan 24, 2015 16:06
I do not accept the Deputy’s comment that the Government is neither sympathetic nor decent in respect of the work it does here. As pointed out with regard to the Magdalen laundries, Priory Hall and many other sensitive serious issues the Government has been sympathetic and decent. Enda Kenny, May 2014. Redress is in the news again. The(...)
Redress is in the news again. The long-awaited Redress for Women Resident in Certain Institutions Bill will be debated in the Dail next week. Justice for Magdalenes Research have condemned the Bill for ignoring Mr. Justice John Quirke’s recommendation that the women receive the equivalent of a HAA medical card.1 At the end of January, the first of many symphysiotomy cases comes on for hearing in the High Court. Meanwhile, the Harding Clarke redress scheme is clearly stalling badly, judging by its own progress reports. Progress on the Magdalenes redress scheme is similarly sluggish. Neither redress scheme has drawn much praise (see here and here). But now it appears that the government is unwilling even to fulfil the limited promises it made to victims.
In 2011, UNCAT said that the state must ?ensure that all victims [of the Magdalene Laundries] obtain redress and have an enforceable right to compensation, including the means for as full rehabilitation as possible.? Last summer, the UNHRC held that the state must “provide the survivors of symphysiotomy with an effective remedy for the damage sustained, including fair and adequate compensation and rehabilitation, on an individualized basis.” How do we understand the state’s current lacklustre responses to these obligations?
We already know that the state’s agents are willing to install, and vigorously police, essentially arbitrary distinctions between classes of citizen who have a claim to financial reparation for historical injury. A recent example is the State Claims Agency’s high-handed disregard for Louise O’Keeffe and another 135 adults who were sexually abused in primary schools before 1991. Others are written into the terms of reference of the inquiry into the mother and baby homes, which exclude both the Magdalene laundries, and private illegal adoptions from investigation. The state’s treatment of these issues is at an early stage. Indeed, it is not yet clear whether the mother and baby homes investigation will lead to a programme of redress, financial or otherwise. But the experiences of women who have applied to the state for redress gives us a sense of what awaits these groups in the future.
There has been almost no academic examination of the operation of established Irish redress mechanisms, or of the suite of practices which are already being used to minimise the redress paid to survivors of historical abuse. Such studies are badly needed. However, at the moment, we can clearly see that the state is undermining access to redress for both the Magdalene women and survivors of symphysiotomy and is using parallel techniques to do so.
Improper reliance on records which are untrustworthy or difficult to access: Women who have applied to the Magdalenes redress scheme have reported difficulties in establishing their length of stay. The size of a woman’s redress payment under the scheme is based on how long she was in a laundry. The relevant records are held by the religious orders. In 58% of cases, according to the McAleese report itself, the date of exit was not recorded. In other cases, women’s own testimony as to their length of stay is contradicted by the religious orders’ records, often by a matter of some years. In such cases, the government says that it will explore records held by other departments. So far, it is not clear whether a woman’s own word – for instance in a sworn affadavit – will do. Some women will be required to submit to an interview - which presents clear difficulties for those who cannot travel, who still live the religious orders who ran the Magdalene Laundry where they were first incarcerated, or who otherwise lack capacity. If a woman disagrees with the provisional assessment of her length of stay, she is expected to request that her claim be reassessed by ‘an officer of a higher grade’ within the Restorative Justice Implementation Unit at the Department of Justice, whose decision can then be appealed to the Ombudsman. The state makes a minimal contribution to her legal fees.
The symphysiotomy redress scheme is, at least, overseen by a judge but both schemes are driven by bureaucratic, paper-based assessment. So, the same issues arise in relation to symphysiotomy. In order to apply for a payment of 100,000 euro under the symphysiotomy redress scheme, women must show that they suffered various injuries as a result of the procedure, and that the injuries continued for more than 3 years after the symphysiotomy was performed. To demonstrate that temporal and causal link, the women must be able to provide records which date from the time of the symphysiotomy, including GP records. The Minister for Health believes that the women’s symphysiotomy-related disabilities are evident from looking at them, but that is not the sort of test the scheme applies.
Many women did not approach a doctor for years because of the traumatic effects of the surgery. Others did not obtain, at the time, appropriate treatment or referrals which would indicate the types of injury which qualify for redress under the scheme. Some women’s GPs have since died, and they are being asked to trace records from other specialists, hospitals and pharmacists. In order to apply for any redress payment at all, of course, women must be able to identify the hospital where they underwent the procedure, and the date when it was performed. This is another hurdle. In December, a cache of unpublished records relating to the performance of symphysiotomy in three major maternity hospitals was released, but women are still experiencing difficulties in obtaining their individual files.
The state is, of course, aware of these problems. In a recent progress report, those administering the Symphysiotomy Payments Scheme admit that most of the 568 applications received by the scheme closing date were not accompanied by the required records. It is inevitable that, like the Magdalenes scheme, this scheme will need to alter its expectations if the very large number of outstanding applications can be properly processed.
In sum, both redress schemes require ill, elderly, and in some cases very vulnerable women to navigate inadequate systems of record keeping, and the burden of proof is firmly on them.
Closing off other avenues to recompense: Both the Magdalene and symphysiotomy redress schemes require the women to waive any future legal claims against the state (and in the case of symphysiotomy against a raft of other private parties). State-funded hospitals are, of course, defending symphysiotomy claims with astonishing energy, leading to unnecessary delays in cases’ coming on for hearing, and perhaps discouraging women who would otherwise insist on their right to access the courts. Justice for Magdalenes Research has argued that the waivers are on shaky ground now, because they were signed on the understanding that the state would make very particular provision for the women. If the state’s position has now substantially changed, the women may have claims in legitimate expectation, or may be able to revive other substantive legal claims by setting the waiver aside. Members of Survivors of Symphysiotomy are bringing a batch of civil claims to court in the coming year (though, as I have written before, the redress scheme is designed to back them into a corner and persuade them to give the claims up).
Inadequate investigation of wrong-doing: We have been over this point – about the inadequacy of the McAleese and Walsh reports – many times before. Neither report was designed to establish liability, both reports ignored available routes to survivor testimony, and advocacy groups have repeatedly expressed disquiet about the ways in which both reports have downplayed the seriousness of the harms which women suffered. Justice for Magdalenes Research have been working on an alternative study which contradicts key findings of the McAleese report, while Survivors of Symphysiotomy look to the courts, and possibly other fora to produce better individualised narratives of the ‘truth’ of the practice. Women have also given important testimony to (largely foreign) media outlets such as the Guardian, Al Jazeera and the BBC. The investigations left the state with too much room for manoeuvre, because they do not attribute real responsibility to anyone. Both redress schemes are ex gratia, and this leaves payments especially vulnerable to ‘claw-back’. The State can present itself as ‘looking after the women’ rather than as obliged to atone, and to compel others to atone, in concrete terms, for specific wrong-doing. It can present itself as ‘facing up to the past‘ when its systems of redress often serve to compound the harm women have already survived.
Hostile administration of the schemes: All of the above points to the establishment of schemes which are essentially hostile to women’s claims. But there is more. I have already written about the state’s use of unreasonable time limits to manage would-be applicants to the symphysiotomy redress scheme, by putting both them and their legal advisors under pressure. (The Minister for Health says that these time limits were put in place to help the women to come to a resolution quickly…) It has also repeatedly deployed Patient Focus – a HSE-funded group which has a very poor relationship with the majority of survivors of symphysiotomy – to make statements downplaying women’s valid criticisms of the scheme. Many women will require professional and familial support to engage with either scheme. In that context, some will be vulnerable to exploitation. Justice for Magdalenes Research have also noted that the forthcoming Bill does not make proper provision for women who still live with the laundry orders, and whose decision-making capacity is in question, to have proper advocacy support. These tweets from last week’s Justice for Magdalenes Research press conference speak to women’s sense of disappointment and exclusion. I imagine many members of Survivors of Symphysiotomy would identify with them.
Yvonne Daly - Wed Jan 21, 2015 14:22
The Socio-Legal Research Centre, within the School of Law and Government at DCU, in association with the Irish Mental Health Lawyers Association and the Association for Criminal Justice Research and Development, is pleased to announce that Mr. Kris Gledhill, University of Auckland, will be the keynote speaker at the ?Mental Health and Criminal Law? seminar(...)
The Socio-Legal Research Centre, within the School of Law and Government at DCU, in association with the Irish Mental Health Lawyers Association and the Association for Criminal Justice Research and Development, is pleased to announce that Mr. Kris Gledhill, University of Auckland, will be the keynote speaker at the ?Mental Health and Criminal Law? seminar THIS Friday in the Law Society of Ireland.
Venue: Law Society of Ireland, Blackhall Place, Dublin 7.
Date: Friday, 23rd January, 2015
Time: 5.30 pm ? 8.00 pm
Mr. Tom O?Malley, National University of Ireland, Galway, and Ms. Aine Hynes, Irish Mental Health Lawyers Association, will respond to Kris Gledhill?s paper from an Irish perspective. Mr. O’Malley will deliver a paper entitled “Mental Disorder and Proportionate Punishment” and Ms. Hynes will speak under the following heading, “Operating The Criminal Law (Insanity) Act: a Legal Practitioner’s Perspective”. The seminar will be chaired by Judge John O?Connor.
An outline of Mr. Gledhill?s paper is as follows:
?This paper looks at developments in English statutory provisions and case law that are relevant to the question of the extent of criminal responsibility in the case of people with a mental disorder who are convicted of a crime. The focus is not on the situation when there is no responsibility (which arises when there is a successful claim of insanity) or the procedural question of whether a defendant cannot follow the trial process such that he or she cannot be put on trial (fitness to stand trial). Rather, the focus is on the level of responsibility when a defendant who is fit to stand trial is convicted.
One of the statutory developments relates to the circumstances in which responsibility is recognised to be reduced, namely the criteria for the partial defence to murder of diminished responsibility, which was amended in 2009. The other statutory development is two-fold: it involved the introduction of a new sentence under the Mental Health Act 1983, a hybrid order, which allowed the courts to combine a prison sentence with a direction that the defendant be placed in hospital, which was extended in scope by statutory amendments in 2007. As a result of these changes, there has been a significant body of case law, mainly in the context of sentencing decisions, as to whether a person who had a mental disorder at the time of the crime which played a role in the crime nevertheless retained responsibility that merited the punitive response of a sentence of imprisonment rather than the rehabilitative option of transferring the defendant simply to the hospital system (with release dependant on recovery).
What seems to be developing in the case law is the rise of the idea that it is possible to determine that even when a defendant has clearly been mentally unwell at the time of the offending and medical experts recommend that the proper response is that the defendant be transferred into the hospital system, it is possible for judges to discern a residual responsibility or a risk arising from criminality that makes proper a prison sentence even though the defendant clearly needs hospital treatment at the time of the sentence.
One question arising is the propriety of the approach in light of the rights of people with disabilities, including the formulation of those rights under the Convention of the Rights of Persons with Disabilities 2006. Some thoughts are offered on the application of the rights framework to this trend.?
The cost to attend this event is ?5.00 per person. Registration is required. To buy your ticket and secure your place, please click here.
Protection against Cross-Examination by the Accused in Sexual Offence Trials ? The Criminal Law (Sexual Offences) Bill 2014
GuestPost - Wed Jan 21, 2015 06:30
We are delighted to welcome this guest post by Sarah Bryan O’Sullivan BCL, LLM (Criminal Justice). Sarah is an Irish Research Council Scholar and a PhD Candidate at Trinity College Dublin. On the 27th of November 2014, the Minister for Justice and Equality Frances Fitzgerald announced the publication of the heads of the much anticipated Criminal Law (Sexual(...)
On the 27th of November 2014, the Minister for Justice and Equality Frances Fitzgerald announced the publication of the heads of the much anticipated Criminal Law (Sexual Offences) Bill 2014. The General Scheme of the 2014 Bill provides us with a tangible overview of what can be expected upon the Bill?s eventual publication.
The 2014 Bill has been long-awaited among academics and criminal justice stakeholders alike. Some of the more prominent aspects of the Bill have been the centre of much media reporting, discussion and debate, particularly the proposals aimed at strengthening the protection of children from sexual exploitation (here) , repealing and replacing section 5 of the Criminal Law (Sexual Offences) Act 1993 (recently written about on this blog by Alan Cusack, here) and reforming the law so as to criminalise the purchase of sexual services (here , here and here). Due to the extensive scope of this Bill and the high profile and at times controversial nature of some of the proposals, it was to be expected that certain aspects of the 2014 Bill would receive less attention than others.
Part 5 of the 2014 Bill proposes the introduction of a number of new provisions aimed at assisting witnesses to give evidence. This was described by Minister Fitzgerald as a section which ?sets out a number of sensitive amendments aimed at minimising the trauma on victims of sexual offences, particularly children? (here ). Many of these new provisions have long been campaigned for by victim advocates such as the Rape Crisis Network Ireland and include provisions allowing for evidence to be given behind a screen, for the removal of wigs and gowns in court and for the regulation of the disclosure of third party counselling records (an issue which was recently written about on this blog by Susan Leahy, here). While these new provisions are not without flaws, in a general context they are to be welcomed as legitimate attempts to minimise the trauma suffered by victims, particularly while giving evidence.
In this respect, Head 49 of the Bill is worthy of closer attention. Head 49 proposes to offer protection against cross-examination by the accused to minors who give evidence in certain sexual offence trials. This proposed provision is to be welcomed for addressing a relatively neglected area of procedural law relating to sexual offence trials. For years now the RCNI have issued repeated calls for the introduction of such a prohibition in relation to sexual offence complainants generally (for example, see here and here). Furthermore, Conor Hanly has highlighted this issue on a number of occasions and Susan Leahy has previously written about the lack of such a prohibition on this blog, warning of the traumatic effect such a cross-examination could have on a complainant (here). Beyond this there has been limited attention dedicated to this issue and it has remained unaddressed by the legislature. However, it now appears that the 2014 Bill may attempt to remedy this deficit, at least to a certain extent.
Head 49 of the General Scheme of the Criminal Law (Sexual Offences) Bill 2014 proposes the insertion of a new section, 14C, to the Criminal Evidence Act 1992. The key part of the proposed provision appears as follows in the General Scheme (see the full General Scheme for the provisions regarding jury warnings and legal representation here):
14C – (1) Where-
(a) a person is accused of an offence to which this Part applies, and
(b) a person under 14 years of age is to give evidence,
the judge shall direct that the accused may not personally cross-examine the witness unless the judge is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination.
(a) a person is accused of an offence to which this Part applies, and
(b) a person under 18 years of age is to give evidence,
the judge may direct that the accused shall not personally cross-examine the witness.
Certain aspects of the proposed provision deserve further examination and analysis and may be problematic. For example, the restriction distinguishes between categories of minors. While this is not particularly uncommon, it is an issue worthy of examination attention. However, this post will focus on another concerning aspect of the provision, the restriction?s limitation to minors. Thus, adult sexual offence complainants are not protected by the restriction.
It seems apparent that the intention of the proposed provision is to protect minors who are called to give evidence in such cases. As per the wording of the draft provision, these minors do not have to be complainants to avail of the protection offered by the provision, however, it can be assumed that in the vast majority of situations this will in fact be the case.
The justifications for prohibiting personal cross-examination of complainants generally in sexual offence trials are numerous. One of the clearest arguments supporting a prohibition relates to the potential trauma suffered by a complainant who is forced to endure such a cross-examination. The possibility that personal cross-examination could result in a violation of the complainant?s rights under the European Convention of Human Rights must also be considered. Conor Hanly has drawn attention to this possibility in a paper he presented at the Law Society?s Conference on Human Rights and Criminal Justice. (Available here ) Under Article 8 of the ECHR the complainant?s right to respect for her personal life could potentially be breached by excessively intrusive questioning. Similarly, Article 3 protects against degrading treatment, a right which could be violated if the victim is made to suffer a certain degree of anguish as a result of the cross-examination. In Ireland this issue has yet to present itself in the form of a case being taken to the ECHR as a result of exposure by a sexual offence complainant to personal cross-examination. However, there is evidence of this course of action being pursued by rape victims in other jurisdictions. A third potential consequence relates to the manner in which such cross-examination could affect the quality of the complainant?s evidence. It is widely acknowledged that where a witness is exposed to undue trauma or intimidation during cross-examination, the quality of that witness?s evidence may be adversely affected. Hence, where personal cross-examination of a sexual offence complainant by the defendant is permitted, it is arguable that such a repercussion appears almost inevitable.
While in Ireland there are constitutional considerations which must be taken into account when assessing this issue, other jurisdictions have recognised the problems associated with personal cross-examination and have legislated against it. Both England and Wales (Youth Justice and Criminal Evidence Act 1999, s.34) and New Zealand (Evidence Act 2006, s. 95 ) have restricted personal cross-examination by the accused in sexual offence trials, offering protection to sexual offence complainants generally.
The potential consequences which can stem from allowing personal cross-examination of the complainant by the defendant in sexual offence trials are problematic and concerning. However, if these problems are accepted as justifications for prohibiting personal cross-examination by the accused in sexual offence trials where minors are concerned, as with the proposed provision of the 2014 Bill, then surely the same reasoning can be applied to cases involving adult sexual offence complainants? Thus, the logic of limiting the prohibition to minors appears flawed. Surely a broader prohibition which includes adult sexual offence complainants, as well as minors, would be a more desirable and reasoned reform of the law which, as it stands, remains a hostile environment to sexual offence complainants, both old and young.
 See Conor Hanly, ?Finding Space for Victims? Human Rights in Criminal Justice? (Law Society Conference on Human Rights and Criminal Justice, Dublin, 2007) 25
 See ibid 21
 In England, following the case of R v Edwards (The Times, 23 August 1996) where the defendant subjected the complainant to a six day personal cross-examination, the victim, Julia Mason, decided to pursue her complaint to the European Court of Human Rights claiming breaches of article 3, 8, 13 and 14. However, Mason withdrew her complaint upon publication of the Youth Justice and Criminal Justice Bill. (See Paul Rock, Constructing Victims? Rights: The Home Office, New Labour and Victims (Clarendon Press, 2004) 349)
admin - Fri Jan 16, 2015 09:00
The Northern/Irish Feminist Judgments Project brings a new critical methodology to bear on Irish and Northern Irish legal studies. A collective of academics and practitioners will come together to write the ?missing feminist judgments? in appellate cases which have shaped Irish and Northern Irish law. (Click here for details of those involved and here for details of the(...)
The Northern/Irish Feminist Judgments Project brings a new critical methodology to bear on Irish and Northern Irish legal studies. A collective of academics and practitioners will come together to write the ?missing feminist judgments? in appellate cases which have shaped Irish and Northern Irish law. (Click here for details of those involved and here for details of the cases to be rewritten).
We have held two events so far: drafting workshops at the University of Ulster and at Queen’s University Belfast. At our Drafting Workshops, the academics acting as judges for the project present their draft judgments. They speak about the challenges they have encountered in re-writing the judgments in important Irish and Northern Irish cases, and about their aspirations for the re-written versions. Below are some of the podcasts we have made of their talks so far, together with links to the original judgment in each case, judges’ contact details and additional resources. Academics teaching these cases, or other students of judicial reasoning, are likely to find the discussions useful, and we welcome your feedback. The podcasts are usually about 25 mins long.
Feminist judging provides a means of re-imagining the role of the judge. It requires us to adhere to the rules of precedent and custom that typically bind judges, while demonstrating that it is possible to decide even very difficult cases in ways that take proper account of feminist concerns. For example, a feminist judgment, in reciting the facts of the case, might provide more detail on a woman litigant?s experience. It might take judicial notice of feminist ?common knowledge?. Or it might aim to give legal meaning to feminist conceptions of equality, autonomy or selfhood. (Click here for further discussion of the principles of feminist judging and their significance for Irish and Northern Irish legal studies.) Listening to one or two of the podcasts is one of the best ways to figure out what all of that means.
The next Drafting workshop is in UCC on February 5 and 6. The programme for the day is here. If you would like to attend, please email email@example.com. Our final workshop will be held at UCD and Griffith College Dublin in mid April. You can follow proceedings @irishfjp.
Aoife O’Donoghue and Ruth Houghton on McGimpsey.https://dl.dropboxusercontent.com/u/105719570/Workshop%201/Judges/Aoife%20(mp...
Catherine O’Rourke on In re Whitehttps://dl.dropboxusercontent.com/u/105719570/Workshop%201/Judges/Catherine%2...
Colin Murray on In re E (the Holy Cross case)https://dl.dropboxusercontent.com/u/105719570/Workshop%201/Judges/Colin%20Mur...
Eoin Daly and Deirdre McGowan on Flynn v. Powerhttps://dl.dropboxusercontent.com/u/105719570/Workshop%201/Judges/Deirdre%20M...
Claire McCann on SPUC’s Applicationhttps://dl.dropboxusercontent.com/u/105719570/Workshop%202/Claire%20McCann%20...
Kathryn McNeilly and Sarah Ramshaw on Re Family Planning Assoc. of Northern Irelandhttps://dl.dropboxusercontent.com/u/105719570/Workshop%202/Kathryn%20and%20Sa...
Lorna Fox-O’Mahony on NPBS v. Lyndhttps://dl.dropboxusercontent.com/u/105719570/Workshop%202/Lorna%20and%20Davi...
Olivia Smith on Stokes v. CBS Clonmelhttps://dl.dropboxusercontent.com/u/105719570/Workshop%202/Oliviapodcast.mp3
Patrick Hanafin on Roche v. Rochehttps://dl.dropboxusercontent.com/u/105719570/Workshop%202/Patrick%20Hanafinp...
Julie McCandless on A and B v. An NHS Trusthttps://dl.dropboxusercontent.com/u/105719570/Workshop%202/Julie%20McCandless...
Maebh Harding on the PKU Test casehttps://dl.dropboxusercontent.com/u/105719570/Workshop%202/Maebhpodcast.mp3
Liam Thornton - Thu Jan 15, 2015 08:30
The Free Legal Advice Centres (FLAC) and UCD Human Rights Network and UCD Sutherland School of Law invites you to a keynote address from Prof. Dr. Johanna Schmidt-Räntsch, Judge of the German Supreme Court, on ?(Trans)Gender Recognition in Germany: The Role of the German Courts? Date: Thursday, 05 February 2015 Time: 6.30pm-8.30pm Location: William Fry Theatre, UCD(...)
The Free Legal Advice Centres (FLAC) and UCD Human Rights Network and UCD Sutherland School of Law invites you to a keynote address from Prof. Dr. Johanna Schmidt-Räntsch, Judge of the German Supreme Court, on
?(Trans)Gender Recognition in Germany: The Role of the German Courts?
Date: Thursday, 05 February 2015
Location: William Fry Theatre, UCD Sutherland School of Law (directions and map)
A reception will follow Prof. Dr. Schmidt-Räntsch?s keynote address.
2 CPD Points available for practitioners
There is no charge for this event, however registration is required. You can register here. For registration enquires, please contact firstname.lastname@example.org . This event will be of interest to the Trans community, LGBTQQ activists, judges, lawyers, government and public administration officials, academics and students.
The Keynote Address
The Oireachtas begins 2015 with debates on the first ever legislation to officially recognise transgender persons in Ireland, the Gender Recognition Bill 2014. There is concern about some clauses of the proposed Bill, with transgender persons arguing that they are too restrictive and would exclude some people (see, here and here). A particularly contentious clause would require transgender persons who are already married or in a civil partnership to divorce as a pre-condition for recognition in their preferred gender.
What can we learn from the experience of other European countries like Germany, where the Constitutional Court struck down a similar ?compulsory divorce? provision and other provisions of the German Transsexual Law as being in breach of the German Constitution or Basic Law? Judge Schmidt-Räntsch will discuss the German experience of gender recognition legislation and fundamental rights.
Ms Justice Catherine McGuinness, former Judge of the Irish Supreme Court.
Michael Farrell (FLAC)
Broden Giambrone (Transgender Equality Network Ireland)
About the Keynote
Prof. Dr. Johanna Schmidt-Räntsch has been a judge of the German Federal Supreme Court since 2002. The Supreme Court is the highest court in Germany for criminal and private law matters. Dr Schmidt-Räntsch is also a professor of law at the Humboldt University in Berlin. She is an expert on the German Judiciary Act and co-author of the leading text on the Act and is also an expert on property law. Before being appointed to the Supreme Court, she was a senior advisor to the German Federal Justice Department from 1991 to 2002 and prior to that she was a judge in the higher regional court of Cologne and in Bonn.
About the Chair
Ms Justice Catherine McGuinness is a former Independent Senator in the Seanad (1979-1987); former President of the Law Reform Commission, a former judge of the Circuit Court (1994-1996), the first woman to serve on the Court, and justice of the High Court (1996-2000) and of the Supreme Court (2000-2006).
Michael Farrell is the senior solicitor with Free Legal Advice Centres (FLAC) and in that capacity he has been the solicitor representing Dr Lydia Foy in her struggle for legal recognition in her female gender since 2005. He was formerly a solicitor in private practice and took cases to the European Court of Human Rights, the UN Human Rights Committee and the European Committee on Social Rights. He is a member of the European Commission Against Racism and Intolerance and was a member of the Irish Human Rights Commission from 2001 to 2011. He is a former Chairperson of the Irish Council for Civil Liberties.
Broden Giambrone is the Chief Executive of TENI and has over ten years experience working with trans communities in Ireland and Canada. Prior to moving to Ireland, he worked in Toronto and Montreal where he co-founded and served on several Steering Committees of voluntary organisations (including Trans PULSE and the Gay/Bi/Queer Trans Men HIV Prevention Working Group). Broden holds a Master?s in Public Health (Health Promotion) from the University of Toronto, which focused on Community Development and Policy development in the field of trans health. In 2009, he was awarded a fellowship from Canadian Institutes of Health Research (CIHR) in Public Health Policy. Broden has been published in numerous academic journals such as BMC Family Practice, Journal of Community Psychology, Action Research Journal and the Center for AIDS Prevention Studies. He has also written opinion editorials for the Irish Times, Irish Sun and GCN.
Colin Murray - Wed Jan 14, 2015 15:44
The Counter-Terrorism and Security Bill currently being hustled through Parliament with unseemly haste was announced in a blaze of rhetoric. Theresa May told a rapt 2014 Conservative Party Conference that she wanted to see “new banning orders for extremist groups”. There was talk of re-establishing the Broadcasting Ban (which did so much in the 1980s(...)
The Counter-Terrorism and Security Bill currently being hustled through Parliament with unseemly haste was announced in a blaze of rhetoric. Theresa May told a rapt 2014 Conservative Party Conference that she wanted to see “new banning orders for extremist groups”. There was talk of re-establishing the Broadcasting Ban (which did so much in the 1980s and early 1990s to help out jobbing actors who could do a passable Gerry Adams impression – Stephen Rea included). “Foreign Fighters” would be prevented from returning to the United Kingdom. Foreign Secretary Phillip Hammond even floated the idea of levelling treason charges against those taking part in Islamic State activities overseas, even though various modern terrorism offences of universal jurisdiction exist.
Most of these policy proposals, however, remain no more than a wish list for a future Conservative Government. With Theresa May constrained by the requirements of coalition governance, the Bill presented to Parliament in November is something of a paper tiger. Whilst it introduces Temporary Exclusion Orders (TEOs) these orders do not fulfil the function that their title suggests, and are far removed from the powers first outlined last September, where the emphasis was firmly on “exclusion” and not on “temporary”. Whilst the Orders do give government the power to invalidate the passport of a UK national overseas, the passport is replaced by the ability to return subject to conditions. For Professor Clive Walker, in his evidence to the Joint Committee on Human Rights, this is not so much exclusion as ?a form of regulated re-entry and residence?.
Setting aside for one moment that the rhetoric swirling around these new orders puffs up their effect far beyond their actual reach, the most pressing human rights issue with the proposals is the Government?s insistence that no form of judicial scrutiny beyond ordinary judicial review ?after the event? is necessary. This was because the European Convention on Human Rights had no extra-territorial effect regarding exclusion orders (ECHR memorandum, ):
[T]hat the ECHR does not apply extra-territorially applies a fortiori in respect of temporary exclusion as opposed to deprivation. Compared with deprivation, temporary exclusion involves manifestly less significant interference with an individual?s ability to request the UK?s assistance overseas or to travel to the UK.
Professor Guy Goodwin-Gill does not accept that the UK?s obligations would stop in such a clear-cut manner. As it is a UK Government action which is affecting the rights of individuals subject to a TEO it is difficult to avoid the conclusion that such individuals are under the control of the UK in this regard. Where a foreign government deprives UK citizens of their rights, the Court of Appeal has recognised that the UK Government is under a duty to consider providing consular support and making diplomatic representations. When it is the UK?s actions which directly impact upon the lives of UK citizens overseas, it would be nonsensical for lesser duties to exist on the part of the UK Government.
One the need for some oversight, at least, the Government seems to have relented. The Joint Committee on Human Rights, reporting on the proposals this week, considered (at [3.9]) that the absence of such oversight ?gives rise to a very real risk that the human rights of UK nationals will be violated as a result of the imposition of Temporary Exclusion Orders?. The latest reports have indicated that some oversight process will be introduced during the Bill?s process through the House of Lords. The adequacy of such arrangements will largely depend, however, upon the Government?s acceptance of their underlying human rights obligations.
Significantly, the Bill does extend the powers available under Terrorism Prevention and Investigation Measures (TPIMs). TPIMs are measures imposed upon individuals suspected of links to terrorism when evidence against them is insufficient to form the basis of criminal charges or inadmissible in criminal trial. When TPIMs were introduced to replace Control Orders in 2011 the Independent Reviewer of Counter-Terrorism Legislation heralded them as a “new model” of executive measure which would not conflict with human rights. And sure enough, in the three years of TPIMS, no exercise of the power has been subject to successful human-rights challenge. With the MI5 Director, Andrew Parker, reporting an upsurge in the number of plots against the United Kingdom, one might have expected a surge in reliance upon TPIMs. Following a series of high-profile absconding incidents, however, the UK’s security agencies have concluded that the disruptive effect of TPIMs is not worth all of the effort involved in maintaining a such measures.
With the current TPIM powers not being used, there is arguably little justification for the extensions to these measures proposed in the new legislation. The government’s contention, however, is that restoring a relocation power (removed in 2011 in one of the most significant liberalisations introduced with TPIMs) might also renew the usefulness of these measures. Relocation is attractive to the security services in that it makes it harder for individuals to maintain their local networks, which they might use to continue to pursue ?extremist activities? or to support an effort to abscond from the TPIM. Alongside these outcomes, relocation also makes it much harder for an individual to pursue their ordinary family life (protected under Article 8 ECHR). The new legislation does propose limiting a relocation to a 200 mile radius to limit this adverse effect. Given that the courts overseeing control orders excised relocation requirements of 100 miles from orders as being disproportionate on Article 8 grounds, it can only be concluded that this safeguard will not be sufficient to ensure rights compliance in new cases.
With these reforms, the supposedly “new model” will look very like the control orders regime it replaced. But to soften this extension, the standard to which the authorities must prove that an individual is linked to terrorism is raised from one of mere “reasonable belief” to proof on the balance of probabilities. Requiring the authorities to establish that it is more likely than not that someone is involved in terrorism is not an unimportant safeguard, but it is one that the government feel that they can introduce without seriously impairing the operation of TPIMs. It still falls far below the standard required for a criminal conviction. The reason for turning to a TPIM, rather than a prosecution, is moreover often not linked to the weight of evidence but its admissibility. Evidence from intercepted communications is excluded from criminal trial, but can be heard in closed session in TPIMs cases, with the subject being expected to mount a defence with knowledge only of the gist of the case against them.
These measures are likely to satisfy none. For Human Rights groups they mark a further ramping up of counter-terrorism powers by rushed-through legislation, the very essence of a knee jerk response designed to show the public that something is being done to tackle terrorism. And the security services, on the other hand, might well agree. The powers on offer are far removed from Andrew Parker’s main “wish list” in the wake of the attack on Charlie Hebdo and the Le Marais supermarket siege (at ):
[I]f we are to do our job, MI5 will continue to need to be able to penetrate their communications as we have always done. That means having the right tools, legal powers and the assistance of companies which hold relevant data. Currently this picture is patchy.
The Bill does propose amendments to the Data Retention and Investigatory Powers Act 2014 (with the ink barely dry upon that legislation). These reforms would extend internet service providers’ data-retention obligations to enable the authorities to identify which devices (and their users) are using particular internet protocols at a given time. Whilst this is a specific and targeted reform it is a harbinger of the shift back towards the agenda set out in Communications Data Bill. This Bill, labelled the “Snooper’s Charter”, was shelved amidst Liberal Democrat concerns in April 2013 (opposition that Nick Clegg has continued this week). Public outcry surrounding the Edward Snowden revelations of summer 2013 seemed to have pushed the proposals into cold storage. But amidst the heightened security fears of the last week, and with an election fast approaching, the current Bill is likely to mark just the first phase of a slew of new counter-terrorism legislation.
GuestPost - Mon Jan 12, 2015 12:55
We are delighted to welcome this guest post from Dr Susan Leahy. Susan is a Lecturer in Law at the University of Limerick. Susan’s previous guest posts are available here. The General Scheme of the Criminal Law (Sexual Offences) Bill was published on the 27th of November and is a welcome development. However, whilst the Bill introduces(...)
The General Scheme of the Criminal Law (Sexual Offences) Bill was published on the 27th of November and is a welcome development. However, whilst the Bill introduces many important and much-needed reforms, it falls short of what is necessary in a number of significant respects. In this post, some of the noteworthy reforms of the substantive and procedural law relating to sexual offences are discussed. However, the primary aim of this post is to highlight other necessary reforms which have been omitted from the Bill as it currently stands.
Despite my intention of highlighting the shortcomings of this prospective piece of legislation, it would be remiss not to highlight a number of important reforms which it proposes to introduce. One of the most notable amongst these is the regulation of the disclosure of counselling records in sexual offence trials (Head 52). Currently there is no regime in Ireland to regulate the disclosure of these records. Lying within the hands of third parties such as rape crisis centres, these records do not fall within the disclosure responsibilities of the prosecution. However, there are no laws to regulate disclosure in this situation, previous judgments having confirmed that neither the civil process of third-party discovery (DPP v Sweeney  1 ILRM 532; H(D) v Groarke  3 IR 522) nor the subpoena duces tecum procedure (F v Judge Reilly & Anor  IESC 32) can be used by the defence to access these records. It has also been held that trial judges are not free to devise their own solutions to allow for disclosure of these records in criminal trials: HSE v White  IEHC 242. Whilst it is still open to the Supreme Court to overrule the decision in White, at present disclosure of such records is completely unregulated in Ireland, creating great uncertainty for complainants for whom the disclosure of such records would be both traumatic and potentially prejudicial. An initiative which seeks to ameliorate problems in the area are Memoranda of Understanding signed between DPP and various agencies which may hold personal records of complainants (e.g. HSE, Child and Family Agency, One in Four, Dublin Rape Crisis Centre). However, whilst these are significant, they are no replacement for legislative regulation of the introduction and use of this material at trial. This is what the new Bill offers, with a regime that is modelled largely upon section 278 of the Canadian Criminal Code which provides a scheme for regulating both the disclosure of these records and the use to which they can be put at trial. Trial judges are provided with clear guidelines to structure their discretion when admitting such material. The benefits of this regime have previously been highlighted by this author (see Leahy, “The Defendant?s Right or a Bridge Too Far? Regulating Defence Access to Complainants? Counselling Records in Trials for Sexual Offences? Part 1″ (2012) 22(1) Irish Criminal Law Journal 13 and “Part 2″ (2012) 22(2) Irish Criminal Law Journal 34) and were recently considered by the Law Reform Commission. The views of the LRC will inform this Head of the Bill as it proceeds through the legislative process.
Other significant developments in the Bill include the introduction of an age proximity provision into the statutory rape provisions in the Criminal Law (Sexual Offences) Act 2006 so as not to criminalise adolescent peers who engage in sexual activity. Head 20 provides that criminal liability will not attach for engaging in consensual sexual activity with an individual who is over fifteen years of age and the other individual is:
The Bill also proposes to reform the laws governing the sexual exploitation of individuals with limited decision-making capacity (Head 12). Although the shape of this reform is not yet finalised, increasing protection for those vulnerable to sexual exploitation as a result of intellectual disability or mental illness is long overdue. Hopefully the means of regulation chosen will achieve the difficult task of maximising protection, whilst at the same time allowing for these individuals to exercise their sexual autonomy.
However, in spite of the welcome aspects of the Bill as it relates to the substantive and procedural laws relating to sexual offences, there are some regrettable exclusions which should be highlighted. The most significant of these is the failure to introduce a statutory definition of consent, a reform which is long overdue, with Ireland lagging far behind other comparable jurisdictions such as England and Wales and Canada who have all legislatively defined consent. Given the difficulties in proving an absence of consent in sexual offence cases, any measure which could ameliorate such difficulties should be explored and a positive definition of consent could go some way towards clarifying the uncertainties which exist in this area. Such a definition would also send a symbolic message about what constitutes appropriate socio-sexual behaviour and hopefully contribute to counteracting some of the stereotypes which persist in society about ?real rape? and ?real victims? by making clear what is necessary for a genuine consent to sexual activity. For a detailed discussion of the need for a legislative definition of consent see: Leahy (2014).
In line with the need for a statutory defence of consent, it is necessary to reconsider the honest belief in consent defence (s. 2(2) Criminal Law (Rape) Act 1981). This provides that a man cannot be convicted of rape if he honestly believed that the complainant consented. This belief does not need to be based on reasonable grounds. This defence has been criticised for the negative message it sends (see Leahy, ?When Honest is Not Good Enough: The Need for Reform of the Honest Belief Defence in Irish Rape Law? (2013) 23(1) ICLJ 2). It is disappointing that the Bill again fails to follow best practice from other common law jurisdictions such as England and Wales and move towards a more objective construction of this defence which would require a defendant to have a reasonable belief in consent if this is to exculpate.
It is also disappointing that the Bill does not address other rules of evidence which pertain in sexual offence trials such as the regulation of the use of sexual experience evidence or the corroboration warning. These rules have not been reviewed for many years and there may be space for improvement here. For example, the current rules regulating the disclosure of sexual experience evidence are highly discretionary and there is an argument that judicial discretion needs to be more structured here in order to minimise any potential for the unnecessary disclosure of such evidence which is, in the same way as the disclosure of counselling records, both traumatic and prejudicial for complainants. This author has previously called for greater regulation in this area. Arguably, introducing a structured regime for the regulation of the disclosure of counselling records without reappraising the admissibility of sexual experience evidence creates an incongruence in the treatment of two forms of evidence which, due to the similar potential to traumatise and prejudice complainants, should be treated similarly.
The issues raised here require far more discussion than a short post can offer but perhaps it has provided some food for thought on the new Bill. There is no doubt that the Bill is an important development and will increase protection for victims of sexual violence. However, now that sexual offences have made their way onto the legislative agenda, it is important that the resultant legislation be as comprehensive as possible. The current Bill is a step in the right direction but more is needed if we are to honestly say that we have thoroughly and seriously reviewed the law in this area.
Cliodhna Murphy - Fri Jan 09, 2015 14:07
Liam Thornton has previously blogged about issues surrounding the enforcement of employment rights by undocumented migrants, particularly in the wake of the 2012 High Court judgment in Hussein v The Labour Court & Anor  IEHC 364. In this decision, Hogan J found that an undocumented migrant employee could not enforce statutory employment rights against(...)
Liam Thornton has previously blogged about issues surrounding the enforcement of employment rights by undocumented migrants, particularly in the wake of the 2012 High Court judgment in Hussein v The Labour Court & Anor  IEHC 364. In this decision, Hogan J found that an undocumented migrant employee could not enforce statutory employment rights against his employer, as the contract under which he was employed was ?substantively illegal?. As there were a number of developments in this area of law in Ireland and the UK in 2014, it is useful to review the state of the law and assess whether undocumented migrants are in a better position as a result of these developments.
Addressing gaps in protection: the Employment Permits (Amendment) Act 2014
The Employment Permits (Amendment) Act 2014 addresses some of the issues at the heart of the Hussein decision. Section 3 provides for a defence for the employee to the charge of having been employed without an employment permit, where they can show that they took all reasonable steps to ensure compliance with the section. In addition, section 4 permits the foreign national to take a civil claim for compensation against the employer, notwithstanding the illegality of the contract, again where it can be proved that they took all reasonable steps to comply with the requirement to have an employment permit, and provides that the Minister may take such an action on behalf of the employee.
These changes have been welcomed by migrant rights organisations. However, the Act?s approach of providing a ?carve-out? for civil, remuneration-related claims taken by undocumented workers, who played no part in the breach of the Employment Permits Act 2003, leaves the basic conceptual framework intact. The contract of employment remains illegal and, most significantly, those employees who do not take ?all reasonable steps? to ensure that an employment permit is obtained remain unprotected. The 2014 Act still leaves those who are in some way implicated in the illegality, for whatever reason. unprotected by Irish employment legislation.
Assessing the promise of UK developments: Hounga v Allen
The concept of illegality, relied upon in the Hussein decision, has been considered in the UK in the context of attempts to use equality legislation to obtain a remedy for discrimination resulting from irregular immigration status, even though the statutory tort of race discrimination does not necessarily depend on a valid contract of employment. In Hounga v Allen  UKSC 47 the applicant had accepted the findings of the tribunal and of the EAT that the defence of illegality precluded any claim which might arise under the contract of employment. However, the Court of Appeal had gone one step further and decided that the applicant (a Nigerian ?au pair?, described as ?a young, illiterate person of uncertain age although with a good command of English?) could not bring a race dismissal discrimination claim as she was working illegally.
Ms Hounga?s dismissal discrimination case relied on the argument that her employers had taken advantage of her illegal status and the fact that she had no right to be employed in the UK to treat her less well than a hypothetical white British comparator, thus, in the view of the Court of Appeal, ?making a direct link between the discriminatory treatment of which she complained and the circumstances in which she came to be, and was, employed by the Allens.?
In 2014, the Supreme Court upheld the domestic worker?s appeal. The primary basis for the Supreme Court decision was that, in the particular facts of this case, there was an insufficiently close connection between the appellant?s immigration offences and her claims for the statutory tort of discrimination, meaning that the ?inextricable link? between the facts giving rise to the claim and the illegality, required by tort law, had not been established. Her immigration offences merely provided the context within which the tort was committed.
Disagreement in the UK Supreme Court
There was significant disagreement among the members of the Supreme Court as to the precise basis for their unanimous overall finding that the appeal should be upheld. Lord Hughes (with whom Lord Carnwath agreed) was careful to specifically confine his judgment to tort cases, distinguishing the tort claims under consideration from the contractual claims initially made in the employment tribunal and EAT, which would be dependent on a lawful contract of employment.
Lord Wilson (with whom Lord Kerr and Lady Hale agreed), on the other hand, engaged in a more wide-ranging analysis of the public policy dimensions of the doctrine of illegality, finding that ?the considerations of public policy which militate in favour of applying the defence so as to defeat Miss Hounga?s complaint scarcely exist?. Lord Wilson placed great importance on his conclusion that Miss Hounga?s case was, effectively, one of trafficking for the purposes of forced labour, bringing it within the scope of the UK?s international obligations in this regard, including Article 4 of the ECHR. He even went so far as to suggest that the public policy considerations involved in trafficking cases could have possibly yielded a different result, had the contractual claims for unfair dismissal and unpaid wages been pursued in the appellate courts.
The approach of Lords Wilson and Kerr and Lady Hale could potentially provide a basis for a more nuanced application of the doctrine of public policy in purely contract-based claims, at least in cases involving trafficking. However, it is difficult to assess if and how this strand of reasoning will develop in future cases, given that Lords Hughes and Carnwath explicitly disagreed with the idea that the law of trafficking provided a specific basis for allowing the appeal. It was also their trenchant view (echoing the comments of earlier courts) that even if one assumed that Miss Hounga was subjected to forced labour, she had not been compelled to commit the relevant immigration offences, meaning that any contract of employment was substantively illegal.
Ultimately, despite the strong statements on trafficking and public policy in Lord Wilson?s judgment, the UK Supreme Court judgment in Hounga is (purposefully) narrow and does not, in the short term, have a real impact on access to justice in the UK for undocumented workers in the context of general employment law claims. Post-Hounga, the defence of illegality will not automatically operate to exclude tort claims related to their employment taken by undocumented migrants in the UK, however, as seen in the case of the Employment Permits (Amendment) Act 2014, the wider legal landscape has been left intact.
In the UK and Ireland, the exclusion of undocumented migrants from employment protections persists, despite recent legislative and jurisprudential developments. This results in state-constructed vulnerability to labour exploitation for this group of workers, with the State complicit in the creation and perpetuation of a decent work deficit for undocumented migrant workers.
Vicky Conway - Wed Dec 31, 2014 13:15
There is no doubt that 2014 was a difficult year for policing in Ireland. By policing, I refer not just to an Garda Síochána but to all the agencies of the state involved in policing. Not a month has gone by without some new headline revealing more inappropriate activities and responses. A quick look at(...)
There is no doubt that 2014 was a difficult year for policing in Ireland. By policing, I refer not just to an Garda Síochána but to all the agencies of the state involved in policing. Not a month has gone by without some new headline revealing more inappropriate activities and responses. A quick look at the website of the Garda Review reveals the extent of disquiet felt within the service.
The whistleblower scandal had begun back in 2012 when Maurice McCabe and others had approached the confidential recipient about concerns he held. While initially centring on promotion, the scale of allegations expanded later to include the wiping of penalty points and the handling of serious criminal investigations in the Ballieboro district. Early in 2014 the Garda Commissioner, Martin Callinan described the whistleblowing by the gardaí involved as ?disgusting? at a hearing of the Public Accounts Committee. There could be no more stark a revelation of the senior management attitude towards whistleblowing and accountability. A system to enable whisteblowers had been central to Justice Morris? recommendations and for those who are brave enough to speak out against wrongdoing to be labelled in this way by the most senior garda indicated just how engrained the cultural resistance to accountability was (Listen to a documentary on John Wilson?s experiences here).
Over the coming months this scandal lead to the dismissal of the confidential recipient, Oliver Connolly, the establishment of the Guerin review, a report from the Garda Inspectorate which supported the claims made about wiping penalty points and once Guerin?s report is submitted the Minister for Justice resigned in early May. More recently we?ve seen the appointment of Mr Justice Kevin O?Higgins to conduct an inquiry into the allegations concerning the investigation of serious crimes. The ?parochial focus? on this commission was rightly criticised by the ICCL.
At the same time as this resignation it emerged that over 2500 tapes existed for phone calls that had been recorded in garda stations between the 1980s up until 2013. After comments that we had entered GUBU territory a Commission of Investigation was established to examine what had occurred. Chaired by Mr Justice Niall Fennelly, the Commission is due to report to government in 2015 after an extension of its work was approved (terms of reference available here) and the findings will undoubtedly have serious implications for many cases and convictions. If found to be true, that such invasions of privacy were occurring throughout the country until 13 months ago should be of enormous concern to all. That was so pervasive, endemic and unchallenged indicates cultural acceptance of this practice.
Perhaps overshadowed by these events a monumental change occurred in May of this year. For the first time suspects in custody were permitted to have solicitors present during interrogations. This followed the combined Supreme Court cases of Gormley and White, which Liz blogged about here. This change brings Irish policing in line with human rights requirements but its implementation has not been without failings. I?ve heard anecdotally from both criminal defence solicitors and gardaí that there have been serious difficulties in implementation, as the practical ramifications struggle to be accommodated. Further, it should not be underestimated how much of a cultural shift this change is for investigating gardaí. Securing confessions is how most convictions are secured and so interrogations are the fulcrum of investigations. Proper guidelines and instruction on how to adapt to this change in the interrogation dynamic is needed badly.
In June the Cooke Report into allegations of bugging at GSOC?s offices was published. The report concluded that GSOC had overstepped the mark in how it responded to its concerns and that it should have communicated its concerns with government and senior garda management. The methods adopted in compiling the report were seriously criticised (see ICCL?s critique here) but Cooke refused to appear before a number of government committees to answer questions on this. There are two important comments to make on this report: 1. While Cooke does not conclude that bugging took place he also does not conclude that it does not. As explained in detail here by Phillip Boucher-Hayes, Cooke is unable to explain a number of events which did occur. 2. We should be very concerned at GSOC?s failure to discuss this with the Justice Dept and Garda HQ. We should be concerned at why GSOC felt they could not do this and what that indicates about the relationship that exists between this triumvirate. It does not appear to be functional or productive and that has serious ramifications for policing and police accountability.
New legislation is going through the Oireachtas aiming to amend the powers of GSOC and many of these changes will be positive. But, as I?ve argued extensively, the problem with GSOC is not primarily about the powers on paper, but on how these have been implemented and the cultural clash that occurs with an Garda Síochána. In July Ireland was examined by the UN Human Rights Committee in Geneva (see some of our coverage here and here), and while issues like abortion and symphysiotomy rightly appeared to dominate, the Committee did call for greater independence in GSOC investigations. Indeed, just one third of GSOC investigations are independently investigated (i.e. with no garda involvement). On paper, GSOC could do most investigations independently but, for a variety of reasons, it chooses not to.
Also in July, the Children?s Ombudsman, Emily Logan, found that gardaí had engaged in ethnic profiling in the removal of two Roma children from their families in late 2013. The Minister for Justice apologised to the families involved. Racism in Irish policing is an under-analysed area (some work has been done by James Carr and Amanda Hynes in UL) but these findings present some evidence of issues of racism existing within an Garda Síochána.
Respite did not come later in the year. In the autumn we saw allegations being made in all directions concerning the use of force at water protests. Some alarming footage was posted online at the treatment of peaceful protestors by gardaí. My understanding is that no complaints have been made to GSOC as yet, which raises further questions as to confidence in that body to effectively investigate such allegations.
In positive terms we?ve seen a government commitment to establish a Policing Authority. This may assist in achieving the desperately needed depoliticisation of Irish policing. The announcement was followed by a consultation process which culminated in a consultation day hosted by the Minister for Justice (presentations by myself and Baroness Nuala O?Loan given on the day can be accessed here). The initial draft of the legislation was published in November (see my commentary here) and as we know the Chair Designate was appointed that same month. The process of that appointment was heavily criticised: the post was advertised for just 10 days and it was not a fully independent appointments process.
A new Commissioner, Noirin O?Sullivan, was appointed in December. For the first time the post was open to international candidates. It is disappointing to me that government decided not to wait until the Policing Authority was operational so that this appointment could be removed from political considerations. There have been criticisms of O?Sullivan?s appointment, that an internal candidate cannot be detached from the scandals and concerns which shrouded the departure of the last Commissioner. Interestingly the term ?Old Boys Club? has been applied to describe her appointment: interesting given that in many people?s eyes the appointment of the first female Commissioner establishes with some certainty the demise of that old boys club. The significance of a female leader of any police force should not be underestimated as police are notoriously macho organisations.
But the most significant event of all, in my eyes, and that which perhaps has received far less attention than it deserves is the publication in November of the Garda Inspectorate Report into Criminal Investigations. Rather than any individual case or scandal, this report looks broadly at how an Garda Síochána investigate crime. Even for me, who has read all the reports and cases I can find, the findings documented here are shocking and distressing. The treatment of victims of crime is appalling. The reclassification of crimes is sickening. The failures to follow procedure are unacceptable. The deficiencies in technology are indefensible. I live-tweeted as I read the report and you can read that collection of tweets here. I don?t think it?s possible to read that report and not come to the conclusion that the investigation of crime is in crisis in Ireland. The problems pervade every aspect of the process. The whole system needs rebuilding and the elements of police culture that have been documented above need to be recognised as impact on this. The scale of change and reform required is monumental, no exaggeration. It?s alarming that this report faded into insignificance as quickly as it did. It should be the priority for 2015. We should be greatly concerned that every day victims of crime are brought within that failing system.
It?s hard not to conclude that this has been an Annus Horribilis for policing in Ireland. To find the bright note, we have a new Minister, a new Commissioner, the promise of a police authority, the possibility of a new Secretary General in the Department of Justice and documented evidence of what needs to change. We must hope, optimistically, that if ever there was an opportunity to change policing, we have that opportunity now.
Máiréad Enright - Fri Dec 26, 2014 19:09
The High Court handed down judgment in PP v. HSE today. The Irish Times provides a useful summary here. P., who was 15 weeks pregnant, died on December 3rd, but her body was subjected to medical processes to ‘facilitate the continuation of maternal organ supportive measures in an attempt to attain foetal viability’ for several more weeks. We(...)
The High Court handed down judgment in PP v. HSE today. The Irish Times provides a useful summary here. P., who was 15 weeks pregnant, died on December 3rd, but her body was subjected to medical processes to ‘facilitate the continuation of maternal organ supportive measures in an attempt to attain foetal viability’ for several more weeks. We call the experimental treatment her body received ‘somatic care’. ‘Somatic care’ seems a benign phrase, but it involved a tremendous amount of intervention designed to postpone the inevitable collapse and decay of P.’s other organs following the cessation of blood flow to her brain, thereby sustaining the pregnancy. Medical evidence given in court made clear that the eventual effects of these interventions on her appearance, and the consequent distress to her family, undermined her dignity in death. Nevertheless, doctors in both hospitals where she was treated apparently believed that the law required them to follow this unusual course of action, given that the foetus still had a heartbeat. By the time the case came to court, P.’s body was deteriorating rapidly. There was no real prospect that, even if treatment were continued, the pregnancy could be maintained until viability. Her family and partner wanted the somatic treatment discontinued, and her father applied to the court for this purpose. This morning, the High Court exercised its inherent jurisdiction and authorised P.’s doctors to discontinue treatment, at their discretion.
The judgment is, to my mind, a very strange one. I happened to be in Dublin when the case was being heard, and watched both days of the hearing. While it seemed clear to me that the court would grant the order, I did not anticipate the reasoning. This is not a conservative or cautious judgment. It seems to me to go further than was necessary to resolve the precise dispute before the court and, as such, it is likely to have significance for future cases. This is the first reported medical law case in which a court has used the Eighth Amendment outside of the direct abortion context. The court was invited by the plaintiff to hold, following Roche v. Roche and Baby O, that this case, since it is not about abortion, has nothing to do with the Eighth Amendment. But it insisted that the Eighth also creates an independent right to life of the unborn which applies to other cases. In addition, the court invents a new concept of the ‘best interests’ of the unborn child out of thin air. It is hard to predict what might happen to this concept in future cases.
Although the outcome was the one P.’s family sought, P. herself has precious little impact on the court’s reasoning. Talk of ‘vessels’ is not too wide of the mark.
As we have said, the court is primarily concerned in this judgment with the right to life of the unborn. The judgment focuses on the obligation under the Eighth Amendment to defend that right in as far as it is ‘practicable’ to do so. The court interprets ‘practicable’ in line with the principles on withdrawing life support in In re a Ward of Court. The state has an interest in preserving life but it need not be prolonged at all costs. The mechanism of ‘practicability’ is the Eighth’s safety catch. This judgment applies the Eighth to a non-abortion context but appears to reassure us that the Eighth works, that it cannot push us too far, that it contains within it some grain of humanity. However, this is a case at the very edge of practicability. The medical evidence did not establish that the foetus had any chance of being born alive. The somatic care was futile. Accordingly there was no constitutional reason to prolong the ‘life support’ of the unborn. Whether medical treatment can be considered impracticable where it is not entirely futile is another question. Again, ‘practicability’ is not ‘proportionality': it is conceivable that the test might require deeply invasive treatment.2
The court could have stopped there. However, it felt compelled to flesh out ‘practicability’ by reference to the best interests of the foetus. Ultimately the order is made on the grounds that is not in the unborn’s best interests to prolong its life. The court reasons by reference to S.R.; a 2012 wardship case about withdrawing ventilation in the best interests of a six year old who had suffered a catastrophic brain injury as a toddler. In Baby O, the Supreme Court rejected the notion that the right to life of the unborn encompassed a right to be born safely, or a right of access to medical treatment to ensure the child, once born survives infancy. The unborn can make no future claims on the state (at least not when, as in O, it is carried by a foreigner liable to deportation). This judgment suggests that, within the womb, the unborn can make extensive claims on the state to sustain the bare life of the pregnant woman in its ‘best interests’. The innovation here is brisk and without supporting authority, but allows the court to shore up its conclusions with worrying rhetoric. Under the influence of the best interests test, the foetus at 18 weeks becomes capable of suffering ‘distress’ (p.19). It is caught in the dangerous environment of P.’s womb, facing a ‘perfect storm’. The court summarises: ‘The unfortunate unborn has suffered the dreadful fate of being present in the womb of a mother who has died, and in which the environment is neither safe nor stable, and is failing at an alarming rate’. Again, the court refuses to see these beings’ interests as intertwined. It accounts for each separately. P.’s womb is not her pointlessly mutilated body, but a dying incubator. That her dignity and the unborn’s best interests point in the same direction is coincidence.
It is worth noting that the concept of the unborn child’s best interests is, to say the least, a very unusual one. In England and Wales, for example, a court cannot exercise its inherent jurisdiction in respect of an unborn child in utero, though it may sometimes make orders to take effect in the event of its birth. The language of the best interests of the unborn is most often associated, in law, with anti-abortion campaigners who argue for the application of the Convention of the Rights of the Child to the foetus. On the one hand, it seems sensible to read it as an offshoot of the Eighth which would not survive repeal. On the other, it may point to possibilities for re-creating unborn rights out of other ill-fitting constitutional materials.
In short, this may not be the Costello judgment in X, but it is scarcely evidence of progress.
Some commentators have been keen to suggest that P.P. is an exception, of little possible relevance to later cases. I disagree. P.P.may be a guide to the interpretation of the Eighth Amendment in future cases, including abortion cases, if they come to court. P.P. lies at the outer limits of the Eighth, but it gestures to the principles which should govern cases of other kinds. (Of course, we must bear in mind that abortion cases are rare. Women do not willingly put themselves through them, but seek terminations elsewhere instead. Pregnancies miscarry before cases can be heard.)
The notions of futility and best interests might be relevant in a future ‘termination for medical reasons case’. The court was clear that its judgment was not influenced by the fact that the foetus if born might be ‘impaired to any greater or lesser degree’, and it frames the case as being about ‘withdrawal of medical treatment’ rather than abortion (a neat distinction which again elides the physical interdependence of pregnant woman and foetus). Nevertheless, following the argument from practicability, a future court might accept, by analogy with P.P. that an abortion is permissible under Irish law in circumstances in which there is little prospect of a foetus surviving to full gestation. Famously in D v. Ireland the state argued that this was a permissible interpretation of the Eighth Amendment. It may also be that P.P. could be used to argue for access to abortion where foetal anomalies do not lead to death in utero, but a baby dies soon after. Otherwise we are dealing with the incoherent proposition that the foetus which will almost certainly die in utero has best interests before birth, but the foetus which will probably die immediately after birth does not.
This judgment might also be used to less liberal ends. It is worth noting that, in this case, there was no disagreement between the numerous medical expert witnesses. This is not a judgment about controlling medical practice. It is a judgment about deference to ‘highly experienced medical practitioners’, about removal of a legal obstacle to the exercise of medical judgement. This is a problem because the judgment seems to shore up Irish approaches to maternal care and abortion which are of dubious validity from a human rights perspective. For example, it seems entirely possible that if P.P.’s pregnancy had been more advanced, and if medical care had made it possible to provide a more stable ‘uterine environment’ for the unborn child, then the court would not have acceded to a family’s request requiring somatic care to be withdrawn. Indeed one of the doctors treating Ms. P testified that he had maintained a woman for 2.5 weeks in similar circumstances – the woman’s body was unable to sustain the pregnancy and attempts to deliver the baby early by C-section failed.
We also need to think very carefully about how the interpretation of ‘practicability as foetal best interests’ might interact with the doctors’ duty to ‘preserve unborn human life as far as practicable’ under the Protection of Life During Pregnancy Act 2013. The Guidelines to that Act already direct doctors to consider that very early delivery may be required instead of abortion where the foetus is viable. Might an idea of ‘best interests’ like that in P.P. give weight to efforts to prolong pregnancies to the point when a foetus has the best chance of surviving birth? Remember that it has been reported that doctors planned to prolong Ms. Y’s pregnancy to 30 weeks. If ‘practicability’ under the 8th is primarily about the chances of enabling live birth, even at grave cost to the woman’s body, we are in dangerous territory for human rights.
Medicine and the law.
It is worth saying something, briefly, about how this case came to court. Doctors in court repeatedly asserted that they and their colleagues felt bound by law to pursue a course of action which subjected a woman to treatment which they recognised as not only extraordinary but grotesque. Organisations such as the I.F.P.A. will test and sometimes outright defy the law, but leading doctors tell us again and again that they will follow it to the last gruesome letter. In the absence of any research on how the Eighth has infiltrated Irish medical practice, I can only guess at how it is that such people come to feel bound by the cruellest possible interpretation of an ambiguous and rarely litigated law. But some of the blame must lie with government. There is no good reason for criminalising doctors who are required, sometimes, to bring ‘unborn life’ to an end. There is no good reason for the absence of settled guidelines on circumstances of this kind. Listening to the medical evidence, it struck me that P.’s father might not have had to bring the case to court if she had collapsed in one of the major maternity hospitals, where medics are more confident about the requirements of the Eighth. The expert witness from the public voluntary hospital where P. was first treated was less confident. He described futile efforts to obtain legal advice from their own in-house team or from the HSE, and conjured up the spectacle of doctors reading the Eighth Amendment for themselves. Eventually P.’s family were directed to seek their own legal advice. This cannot be good enough. We are stuck now with a government which will neither repeal the Eighth nor administer it. We are stuck with the impossible.