User Preferences

  • Language - en | ga
  • text size >>
  • make this your indymedia front page make this your indymedia front page

Blog Feeds

forward

Cedar Lounge
For lefties too stubborn to quit

offsite link And some views on Scottish and British nationalism? 12:12 Wed Sep 17, 2014 | WorldbyStorm

offsite link More on the latest RedC/SBP poll 10:54 Wed Sep 17, 2014 | WorldbyStorm

offsite link What you want to say ? 17th September 2014 03:51 Wed Sep 17, 2014 | WorldbyStorm

offsite link Last few polls in Scotland? 21:20 Tue Sep 16, 2014 | WorldbyStorm

offsite link Area man says Fine Gael ?have gone very right wing?? He should know. 21:06 Tue Sep 16, 2014 | WorldbyStorm

Cedar Lounge >>

Dublin Opinion
Life should be full of strangeness, like a rich painting

offsite link Global Finance, Money and Power: Lecture One - The Nature of Money and Credit 10:21 Thu Sep 11, 2014

offsite link MANDATE TRADE UNION TRAINING - IRELAND AND FINANCE (SEP 2014) 08:58 Tue Sep 09, 2014

offsite link I SEE THE CLICHÉ CHICKENS ARE BACK AGAIN TED 10:02 Sat Aug 30, 2014

offsite link IRELAND?S TAX HAVEN INDUSTRY 22:01 Tue Aug 05, 2014

offsite link IPA Summer School - Social Justice, Poverty and Ireland - 28 July 2014 11:56 Mon Jul 28, 2014

Dublin Opinion >>

Irish Left Review
Joined up thinking for the Irish Left

offsite link China?s Economic Growth in the Light of the Findings of Modern Western Economic ... Wed Sep 17, 2014 12:24 | John Ross

offsite link Appreciating Facts Tue Sep 16, 2014 13:48 | Michael Taft

offsite link The September Socialist Voice Out Now Tue Sep 16, 2014 13:36 | Irish Left Review

offsite link The Rising Tide ? LookLeft 19 in Shops Now Fri Sep 12, 2014 17:17 | Irish Left Review

offsite link Phil Hogan, the Embodiment of the Crony Capitalist Links Between Business and Po... Wed Sep 10, 2014 21:16 | Andy Storey

Irish Left Review >>

Human Rights in Ireland
www.humanrights.ie

offsite link PILnet?s 8th Annual European Pro Bono Forum Tue Sep 16, 2014 15:14 | GuestPost

offsite link 12th Annual Human Rights Conference: Criminal Justice and Human Rights in Ireland Tue Sep 16, 2014 15:08 | GuestPost

offsite link On Repealing the 8th Amendment. #repealthe8th Thu Sep 11, 2014 08:43 | admin

offsite link ?Let us Play?: Support Children in Direct Provision Wed Sep 10, 2014 10:05 | Liam Thornton

offsite link The Northern/Irish Feminist Judgments Project begins next month! Tue Sep 09, 2014 13:11 | admin

Human Rights in Ireland >>

GuestPost - Tue Sep 16, 2014 15:14
Emma Cassidy is Legal & Communications Trainee in PILnet, The Global Network of Public Interest Law. PILnet: The Global Network for Public Interest Law is pleased to announce that registration for the  2014 European Pro Bono Forum?to take place on 5-7 November in London, U.K.?is now open. The Forum has played a major role in building(...)

PILnetEmma Cassidy is Legal & Communications Trainee in PILnet, The Global Network of Public Interest Law.

PILnet: The Global Network for Public Interest Law is pleased to announce that registration for the  2014 European Pro Bono Forum?to take place on 5-7 November in London, U.K.?is now open. The Forum has played a major role in building support for pro bono across the continent and around the globe. By bringing together a growing community that recognizes the urgent need for pro bono?leading figures from law firms, corporations, bar organizations, NGOs, and law schools?the event offers a setting where participants can explore how they can most effectively collaborate to address critical issues of social justice. Through interactive workshops, engaging social events, and structured networking opportunities, attendees gain insight into the pro bono community and forge alliances that can help deliver justice and protect rights around the world.

The 2014 Forum will include a heightened focus on the real-world tools that are needed to run a successful pro bono program, projects for in-house counsel, Roma rights, and the use of technology to promote change. Local, European and global concerns regarding the application of pro bono will all be on the table. The winners of PILnet?s prestigious European Pro Bono Awards will also be announced at the Forum.

The Forum will run as a central event of the U.K.?s National Pro Bono Week–a time to celebrate and encourage the contributions lawyers make, free-of-charge, to those in need.

The essential event for pro bono lawyers, NGO leaders, and others who are dedicated to using law to achieve social justice. PILnet?s eighth annual European Pro Bono Forum will be held 5-7 November in London, U.K. 

For more details and to register, visit
www.probonoforum.eu
Register Now

GuestPost - Tue Sep 16, 2014 15:08
Helen Kehoe is policy development executive at the Law Society of Ireland. The Irish Human Rights and Equality Commission Designate and the Human Rights Committee of the Law Society extend an invite to  ?Criminal Justice and Human Rights in Ireland? – the Annual Human Rights Conference 2014. The 12th Annual Human Rights Conference will take place(...)

Law SocietyHelen Kehoe is policy development executive at the Law Society of Ireland.

The Irish Human Rights and Equality Commission Designate and the Human Rights Committee of the Law Society extend an invite to  ?Criminal Justice and Human Rights in Ireland? – the Annual Human Rights Conference 2014.

The 12th Annual Human Rights Conference will take place on Saturday, 11 October 2014, in the Law Society of Ireland, from 10 am ? 2 pm.

The aim of this conference is to examine recent developments in the area of criminal justice in the light of Irish human rights law. Topics will include police accountability and possible reform, the broader social issues affecting Irish prisons and penal policy, and the Irish prison system and related human rights issues.

Speakers include:

Frances Fitzgerald, T.D., Minister for Justice and Equality

Dr Vicky Conway, Senior Lecturer in Law, University of Kent

Conor Brady, Former Member of the Garda Síochána Ombudsman Commission

Fr Peter McVerry, Peter McVerry Trust

 Michael Donnellan, Director General of the Irish Prison Service

The event is free to attend. For further details and to register ? please visit https://www.lawsociety.ie/Criminal_Justice_and_Human_Rights_in_Ireland.aspx#.VAnW3fldVqX ? or complete the booking form and return to Lspt@lawsociety.ie.

admin - Thu Sep 11, 2014 08:43
Our regular contributor Mairead Enright spoke at the recent ‘Repeal the 8th’ conference in Dublin last Saturday. A video of her presentation is below. You can find other videos of the day (by Paula Geraghty) here. To join Lawyers for Choice, email lawyers4choice@gmail.com. To write to your TD on the issue see here. To sign(...)

Our regular contributor Mairead Enright spoke at the recent ‘Repeal the 8th’ conference in Dublin last Saturday. A video of her presentation is below. You can find other videos of the day (by Paula Geraghty) here.

To join Lawyers for Choice, email lawyers4choice@gmail.com.

To write to your TD on the issue see here.

To sign the Repeal the 8th petition see here.

For details of the March for Choice see here.

 

The effects of the 8th Amendment range far beyond abortion. The Amendment has come to have consequences for all cases of maternal-foetal conflict.

For example, it may be that prevailing interpretations of the constitution entail that:

  • A living but unviable foetus (fatal foetal abnormality or inevitable miscarriage) can evidently assert the constitutional right to life against the mother, even at grave cost to the woman?s health.
  • It may be that the unborn has a right to an opportunity to be born alive, such that doctors are required to
    • attempt to sustain a second semester pregnancy until viability, even at grave cost to the mother’s mental and physical health.
    • favour an attempted early live birth even where this is not in the best interests of woman or child.
  •  The mother’s consent to medical treatment ? as an offshoot of her constitutional rights to privacy, dignity and bodily integrity – plays almost no constitutional role in cases of maternal/foetal conflict. Thus women can be subjected to treatment in the form of Caesarean section, induced labour and so on, without very much regard for their best interests, or their refusal of medical treatment. There is more than an echo of the past justification of symphysiotomy here.

There is no legislation or reported judgment, which adequately clarifies the law as it applies to any of these scenarios. Very little has been published to explain the ethical and legal underpinnings of likely treatment options. At the very least we should investigate opportunities for specific legislation on maternity care in cases of maternal-foetal conflict.

The presence of the 8th Amendment leads to the mischaracterization of certain medical issues which can occur during pregnancy as ?abortion adjacent?, when they are nothing of the sort.  The 8th Amendment requires us to misinterpret and misconstrue women?s valid treatment needs.

The 8th Amendment is poorly designed. It has strayed away from the people?s intention, and ground to a halt. When a constitutional provision becomes mechanically unworkable in this way, repeal and replacement are standard responses.

The 8th Amendment is an unusual constitutional provision because ? through the Protection of Life During Pregnancy Act 2013 and practice guidelines for the medical professions ? it is regularly interpreted and applied by agents other than the courts. Indeed, we might say that doctors are the primary interpreters of the 8th Amendment.

Over the course of thirty years, we would have expected the courts to flesh out the text of the Amendment much more than has already been done. However, the courts very rarely have the opportunity to consider the Amendment because it is often impossible for a pregnant woman ? especially if she is ill or distressed – to bring her case to the superior courts in good time, and because it will be very difficult for her to assert standing before the courts if her pregnancy is already terminated. The criminalization of abortion poses another obstacle to the emergence of suitable litigation. Most of our constitutional jurisprudence on abortion derives from (i) cases brought by third parties such as S.P.U.C. and (ii) unusual cases of young women in the care of the state.

Because the courts so rarely have the chance to consider the 8th Amendment:

  • Our abortion jurisprudence is very vague and very thin. The X case (which concerns a raped, suicidal, teenage girl in early pregnancy) has been stretched to apply to very different kinds of case.
  • Doctors must guess at the application of the X case to a wide range of scenarios which have never been considered by any court.
  • The 8th Amendment has fossilized. This is because doctors are not judges. They do not have the authority to develop new law. They have, naturally, been unduly cautious and the law has stagnated. The Supreme Court has repeatedly expressed that the Constitution should adapt to the developing needs of the people, but the 8th Amendment is no longer able to do so.

 When a constitutional provision is placed beyond workable interpretation, we are entitled to remove that provision and start again. There are plenty of precedents for this course of action. For example:

  • The 1992 referendum which secured the right to information and the right to travel was a response to judicial restriction of those rights by virtue of their interpretation of the 8th Amendment.
  • The Citizenship referendum in 2003 was, in part, a response to judicial decision-making on the rights of Irish-born children whose parents were vulnerable to deportation.
  • The recent children?s rights referendum was, in part, a response to judicial interpretations of the constitutional rights of the marital family.
  • The forthcoming marriage equality referendum is designed to respond to difficulties with the interpretation of the constitutional provisions on marriage.

A Referendum on the 8th Amendment is an opportunity to bring the Constitution into line with prevailing social values around pregnant women?s medical care.

 The Constitution is the place for broad statements of shared communal values, which guide the courts in their interpretation of the law, and in their development of constitutional rights.  It is not the place for tests, rules and regulations.

If we remove the 8th Amendment, the right to life will remain, and it will be possible to maintain strong  (but not unworkably absolute) standards of respect for unborn human life. In addition, it will be possible for certain of women?s constitutional rights, which have been limited by the 8th Amendment, to bloom in the gap it will leave. There is a strong argument for adding an expressly enumerated right to bodily integrity to the Constitution. The right already exists as an unenumerated right. Explicitly including it in the Constitution, in the context of a repeal of the 8th Amendment, would:

  • Firmly guide the Courts in future cases of maternal-foetal conflict, and prevent the re-introduction of an 8th Amendment style interpretation ?by the back door?.
  • Incentivise the future development of human rights oriented medical practice in Ireland.
Liam Thornton - Wed Sep 10, 2014 10:05
The Children’s Rights Alliance are currently fundraising to fund football equipment, club registration fees and football gear for kids in the direct provision system. You can make a donation to this fundraising event here. The system of direct provision has been under sustained media and public scrutiny since Carl O’Brien’s  excellent Irish Times series, Lives in(...)

CRAThe Children’s Rights Alliance are currently fundraising to fund football equipment, club registration fees and football gear for kids in the direct provision system. You can make a donation to this fundraising event here.

The system of direct provision has been under sustained media and public scrutiny since Carl O’Brien’s  excellent Irish Times series, Lives in Limbo (and indeed from the series of reports from October 2013 on conditions in direct provision centres). Various protests have occurred, organised by those condemned to direct provision centres, in Limerick and Athlone, highlighting the daily struggles that asylum seekers have with companies, with the support of the Reception and Integration Agency, from moving persons who complain, to highlighting the poor food and conditions  in direct provision centres. In addition, it should be noted that there have not been any new statistics made available to the public on the numbers residing in direct provision since December 2013. Despite a promise by a Reception and Integration Agency official to upload these statistics ‘immediately’ at a conference on World Refugee Day hosted by NASC and UCD School of Law in June 2014. It had been standard practice, for some time, that these statistics were uploaded once every month.

RTE’s Brian O’ Connell has reported extensively (see here, here, here, here, and here) over the last number of weeks on the on-going issues with direct provision.  In particular, given the paltry allowance of ?19.10 per adult and ?9.60 per child (with almost no entitlement to any other social security payments), O’Connell has highlighted that some female asylum seekers in direct provision are having to prostitute themselves so as to provide for basic needs and/or to allow children to fully participate in activities that all children should have a right to. The Minister for Justice, Frances Fitzgerald, expressed ‘shock’ at this (see this from 2009). The Minister requested a report from the Reception and Integration Agency, however no further information on this have emerged, other than the Reception and Integration Agency cannot (yet again) answer basic questions about its role in this review. There has been no comment whatsoever, from Minister Joan Burton, the Minister whose Department  is responsible for paying direct provision allowance payments of ?19.10 per adult and ?9.60 per child per week.

There are promises for a review of the direct provision system (although seemingly the right to work will not be considered). However, going from the Department of Justice & Equality statement to Brian O’Connell in August 2014 (available here):

[T]here is no question of it [direct provision] being abandoned as a public policy.

In fairness, to the new Minister for Equality, New Communities and Culture, Aodhán O’Riordáin, he has expressed his opposition for some time to the system of direct provision (see also, here, here and here, with many other examples over the last three years available online ). Minister O’ Riordáin has also visited a number of direct provision centres (see here and here). Before any such review of direct provision should occur, I think it would be appropriate for Minister O’Riordáin to ask his Labour Party colleague and Tánaiste, Minister Burton to immediately raise the amount paid to asylum seekers in direct provision.

Direct provision is now 14 years and 6 months old.  To ensure that children can realise their right to play and participation in sporting activities like all other children, if you can, please donate to the Children’s Rights Alliance right to play appeal here.

 

admin - Tue Sep 09, 2014 13:11
Details of the first workshop in the Northern/Irish Feminist Judgments project have been published here. See www.feministjudging.ie or follow @irishfjp for further updates.

Details of the first workshop in the Northern/Irish Feminist Judgments project have been published here.

See www.feministjudging.ie or follow @irishfjp for further updates.

admin - Tue Sep 09, 2014 08:30
The March for Choice will see pro-choice activists, organisations and individuals from around the country come together in their thousands in Dublin on Saturday 27th September. The organisers need people to help out in the lead up to the march, and on the day itself. A range of volunteer positions are available, but our readers (...)

The March for Choice will see pro-choice activists, organisations and individuals from around the country come together in their thousands in Dublin on Saturday 27th September. The organisers need people to help out in the lead up to the march, and on the day itself. A range of volunteer positions are available, but our readers  may be especially interested in acting as legal observers – to monitor any interactions which may occur between the Gardai and those attending the march.  Legal observers must attend a training session in the city centre on the morning of Saturday, 27th September.

Further details here.

Máiréad Enright - Mon Sep 08, 2014 13:58
Survivors of Symphysiotomy are holding a demonstration outside Government Buildings on Thursday September 11th from 11-12.30. Many members of Survivors of Symphysiotomy are going, but many others are in poor health, and cannot attend.  If you can go along, even for a short while, please do. Women are asked to carry a brightly coloured high(...)

Survivors of Symphysiotomy are holding a demonstration outside Government Buildings on Thursday September 11th from 11-12.30. Many members of Survivors of Symphysiotomy are going, but many others are in poor health, and cannot attend.  If you can go along, even for a short while, please do. Women are asked to carry a brightly coloured high heel, to symbolise the physical damage done to survivors by the operation.

Despite strong criticism of its approach to survivors of symphysiotomy by the UNHRC in July, (see here for further explanation) the government has not made any offer to modify its proposed redress scheme, or to meet Survivors of Symphysiotomy’s reasonable and justified demands.

  • There will be no independent public inquiry, and no admission of blame..
  • The ex gratia redress scheme still stands. There will be no individual assessment of claims, and no judicial oversight of the scheme.
  • Survivors will still be required to waive their rights of access to the courts as a condition of access to the scheme, before they know how much money they will be offered by the State Claims Agency.
  • The scheme may be modified to further infringe on survivors’ human rights and constitutional rights.  It is likely to include a new category of ‘emergency symphysiotomy’, to encompass cases of ‘foetal distress’. The Walsh and Murphy reports accepted that symphysiotomies were not emergency operations. This appears to be a money-saving ploy.

 

Deirdre Duffy - Fri Sep 05, 2014 15:38
We are pleased to welcome this guest post from Dr. Deirdre Duffy, Lecturer in Social Science at Edge Hill University. Given the tendency of debates regarding abortion, reproductive rights and the management of obstetric care in Ireland to veer between impersonal moral hypothesising and personal case study analysis, I wish to start this note with(...)

We are pleased to welcome this guest post from Dr. Deirdre Duffy, Lecturer in Social Science at Edge Hill University.

Given the tendency of debates regarding abortion, reproductive rights and the management of obstetric care in Ireland to veer between impersonal moral hypothesising and personal case study analysis, I wish to start this note with an anecdote. When I announced my first pregnancy to my mother, among her many observations was that ? based on her experience having and raising seven children ? when it comes to pregnancy (before, during and after), there?s a lot to think about. Glib as this may seem to some, this observation has stuck in my mind  throughout the present debate on the management of and provision of care during pregnancy, as an invisible, but crucial, part of the discussion.

Quality assurance frameworks and antenatal care in Ireland

The issue of consistent quality assurance is of central import to health care provision and management. In light of continual references to ?clinical best practice? and the obvious confusion regarding what this involves on the part of front-line staff, it is important to question not just what ?best practice? is in the legal sense but how it is maintained in practice. There is an immediate need to analyse the practice of obstetric care in a more applied sense.

A key problem within the delivery of care in obstetrics in Ireland is the co-existence of discourses of ?best practice? which envisage maternity and antenatal care as both a simple and complex system. Antenatal healthcare is positioned as both:

  • a linear, treatment-oriented system (a simple system) with a discrete, single goal in mind (the birth of the unborn and survival of the mother) and
  • a complex system with multiple concerns, operations and without a definite end (reflected by the existence of post-natal care for example).

To see the co-existence of these models one need only look at the publications of the Healthcare Information and Quality Authority (HIQA). Following the death of Savita Halappanavar, HIQA conducted a critical evaluation of the case, with the stated aim of identifying both the causal factors behind Ms. Halappanavar?s death and make recommendations to improve services. Although the report claimed to take into account the complexity of antenatal care, it constructed a ?story? of antenatal care which is decidedly linear. Ms. Halappanavar entered into a system with a specific goal (to preserve her life and that of her baby) and this goal was not reached. In framing the main concern of the review as understanding why Ms. Halappanavar died, HIQA implicitly suggested that this was a straightforward case of mistreatment and there was a single outcome which was not achieved. The causal pathways it critiques and recommendations it makes are all intended to ensure that, in future, women entering into antenatal care reach the desired destination.

On the other hand, HIQA?s own guidance on designing research for monitoring and evaluating quality in healthcare emphasises the need to treat the health system as a multilayered agency. It advocates the use of multiple key performance indicators (KPIs) in assessments, reflecting the different levels at which healthcare operates ? the individual, the hospital, the community etc ? and the innumerable outcomes that can emerge from healthcare interventions (both physiological and emotional). In this way, HIQA presents the care system as inherently complex and advisers evaluators and policy-makers to conduct quality assessments and evaluations which reflect this complexity. Rather than look solely for the achievement of set outcomes, they should explore the dynamics of health service performance on multiple levels and identify the effects of performance at each level.

Set alongside each other, these reports suggest a degree of methodological confusion. In a review of antenatal care is the focus of the evaluation the achievement of a single outcome or to provide evidence on the dynamics of care at multiple levels? Is the primary concern ?the Three E?s? ? efficiency, effectiveness and economy ? in the achievement of goals or is it the maintenance of high quality care at every level? To treat these aims as synonymous is a grave error from the position of both the practitioner and the quality assessor. An efficient antenatal care system may not best meet the needs of its patients. Effectiveness does not equate to care. Moreover when designing inquiry reports, what are evaluators meant to critically assess ? whether set outcomes were achieved, how healthcare professionals acted or whether the needs of the patient were met at each level of care?

What this means for women and their families

All of the above seems quite technical. However within the technospeak there are, I feel, the two core issues for ensuring that antenatal care in Ireland is of high quality and demonstrates ?best practice?:

(i) what does high quality care for pregnant women look like and

(ii) what are we looking for we are assessing the quality of care?

To date, the evidence on high quality care is sparse. Unlike the UK which has explicit quality assurance frameworks dedicated to outline high quality antenatal care, Ireland has no national model, independent of practitioner organisations. What we do have are the reports of inquiries where mistakes have been made (the Halappavanar report is one and the promised report on Miss Y another). These are a poor substitute; their focus is identifying mistakes, not on indicating what practice should look like.

The second issue is equally worrisome. Within the confines of the present debate the label ?high quality care? is seemingly attributed to interventions where the lives of the unborn and the mother are preserved. Antenatal care in Ireland, regardless of my mother?s pithy observation, does not have a lot of things going on. It is a simple system with a specific end point and set outcome to be reached through a linear treatment process. As a result, where, as in the Halappavanar case, the assessment of quality is designed in terms of exploring the individual?s pathway through the antenatal care system, then the implication will always be that there is a theoretical ?correct pathway? which ends in the achievement of specific outcomes.

Put simply, if Ms. Halappavanar had survived and been discharged, could her experiences been deemed indicative of successful care regardless of the psychological impact on and potential trauma caused to her and her husband? Or, applied to another example, as both Miss Y and her child are still alive, does that mean that her antenatal care can be labelled ?of high quality? despite the fact it has resulted in severe psychological trauma for her and potential physical difficulties for her baby?

Even without recognising the need for greater clarity in quality assurance frameworks, this implication suggests a certain callousness. The professes itself to be focused on care, but is overwhelmingly oriented towards the birth of the child at all costs. This suggests that the Irish commitment to care only stretches as far as the preservation of life. What happens after the baby is born (or not) and the experiences of women who come into contact with obstetric and maternity care are removed from consideration. If the woman and child are alive at the end, the system was successful. If being alive at the end of pregnancy is the best outcome we can expect then there is clearly something wrong. We deserve much better.

Charles O'Mahony - Tue Sep 02, 2014 15:17
The School of Law at NUI Galway is currently accepting applications for two Doctoral Scholarships. Applications are sought from students who intend to pursue doctoral-level research on topics related to either: (a) European Human Rights, and/or (b) Constitutional Law Applications are particularly encouraged from but not confined to those interested in any of the following(...)

NUIGThe School of Law at NUI Galway is currently accepting applications for two Doctoral Scholarships. Applications are sought from students who intend to pursue doctoral-level research on topics related to either: (a) European Human Rights, and/or (b) Constitutional Law

Applications are particularly encouraged from but not confined to those interested in any of the following areas: the domestic application of international human rights law; the role of the Ombudsman in the area of human rights; public interest litigation and public interest law; processes of constitutional reform; or the right to equality.

The successful students will be supervised by Professor Donncha O?Connell, Head of the School of Law. These Scholarships will commence before the end of 2014 and are available for a period of four years, subject to satisfactory performance.

Scholarships comprise an annual stipend of ?16,000 inclusive of University tuition fees (accordingly a student receives a tax-free scholarship of approximately ?11,755 per annum).

The holder of a Scholarship is expected to reside in Galway, Ireland and, under the guidance of Professor O?Connell, will engage in a reasonable amount of research and research support, teaching and administrative tasks in the School of Law, NUI Galway, in addition to pursuing his or her own doctoral research.

Those interested in applying should submit the following:

  • A covering letter
  • A curriculum vitae
  • Two letters of reference from academics familiar with the work of the

    applicant

  • A statement of the proposed doctoral research topic (1,000 words).

    These materials must be sent to donncha.oconnell@nuigalway.ie by 5pm on 30th September , 2014.

    Award of a scholarship will be conditional on admission by the University.
    For further information on the School of Law, NUI Galway: http://www.nuigalway.ie/law/ 

GuestPost - Mon Sep 01, 2014 15:40
We are pleased to welcome this guest post from Wendy Lyon, who is a trainee solicitor with KOD Lyons, a human rights and criminal law firm. The recent High Court case of Win Lin v Governor of Cloverhill Prison ([2014] IEHC 214) allowed a brief light to shine on the issue of trafficking for forced labour(...)

We are pleased to welcome this guest post from Wendy Lyon, who is a trainee solicitor with KOD Lyons, a human rights and criminal law firm.

The recent High Court case of Win Lin v Governor of Cloverhill Prison ([2014] IEHC 214) allowed a brief light to shine on the issue of trafficking for forced labour in cannabis growhouses. In Ireland and the UK, this appears to be a growing problem, affecting mainly Vietnamese and Chinese migrants. Despite strong evidence of coercion in many cases, they are regularly prosecuted under the Misuse of Drugs Acts, some receiving lengthy custodial sentences. A recent report by the Migrant Rights Centre Ireland provides some detail on the scope of the problem.

Penalising people for offences they were trafficked to commit is a breach of Ireland?s European and international obligations. Under Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings, states are obliged to ?provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so?. Article 8 of EU Directive 2011/36/EU goes further in requiring states to also allow for non-prosecution, where the alleged offence was committed as a direct result of human trafficking. The Irish government considers these provisions to be satisfied by DPP guidelines which state that in such cases ?the prosecutor should consider whether the public interest is served by a prosecution of the suspect?. However, reading Article 8 in conjunction with Recital 14 of the same directive, it is clear that a policy of prosecutorial discretion will only suffice if that discretion is actually exercised in appropriate cases.

Win Lin?s case was an Article 40 (habeas corpus) application brought while Mr Lin was awaiting trial on cannabis cultivation, having been found by Gardaí locked into a growhouse. He argued that his prosecution ? and hence his detention ? was unlawful, having regard to the above-mentioned EU Directive. In his judgment, delivered on 23rd April, Justice Gerard Hogan declined to interpret the Directive as affording victims of human trafficking an entitlement not to be prosecuted; ?Article 8?, he wrote, ?at most ensures that the public prosecutor of each Member State is entitled to stipulate that no prosecution will take place where a trafficked person has been compelled to commit crimes which are as a direct result of having been trafficked?. He did, however, recognise that such a policy could not exist on paper only: ?it is clear that serious consideration would have to have been given by the Director of Public Prosecutions as to whether there should have been a prosecution in the first place?. Judge Hogan also made reference to the recent UK case L, HVN, THN and T v R, in which the Court of Appeals held that any such prosecution would be deemed an abuse of process.

Mr Lin?s application failed, however, on the basis that he had not established he was a victim of trafficking in the first place. It is this aspect of the decision that is concerning, as it seems to apply a stricter definition of ?trafficking? than that intended under Irish or international law.

The legal definition of ?trafficking? is poorly understood, and frequently misrepresented in both media and advocacy. It derives from the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. While some countries (notably the Netherlands and UK) have vastly expanded the definition in their own domestic law, Irish law follows the Protocol by requiring the presence of three elements, which are often summarised as the ?what?, the ?how? and the ?why? of human trafficking. These elements are contained in Sections 1 and 4 of the Criminal Law (Human Trafficking) Act 2008 as amended:

? The “what” element is satisfied where the trafficker procures, recruits, transports or harbours a person; transfers, delivers or places a person in the custody of another person; causes a person to travel into, out of or within the State; takes custody, care or charge of a person or takes a person under their control; or provides a person with accommodation or employment.
? The “how” element is satisfied by the use of coercion, threats, abduction or other force; deception or fraud; abuse of authority or taking advantage of vulnerability to the extent that the trafficked person had no real and acceptable alternative; actual/attempted sale of the person; or paying a fee or another benefit on a third party to allow trafficking to take place. The person’s consent is irrelevant.
? The “why” element is satisfied where the act is done for the purpose of exploitation, which can include labour exploitation (defined as forced labour or servitude), sexual exploitation, organ removal, forced begging or forced criminal activity.

In Mr Lin?s case, Judge Hogan explicitly accepted that the “why” element was present: ?It is true that Mr. Lin was exploited in the sense that I have found that his incarceration in the growhouse amounted to conditions of servitude within the meaning of s. 1 of the 2008 Act.? He also appeared to accept the presence of the “how” element: ?Mr. Lin was deprived of his liberty under the nascent ? but real – threat of violence for a significant period in circumstances where, by reason of his very vulnerability in terms of language and immigration status, he could not effectively independently secure his release?. Inexplicably, however, Judge Hogan?s approach to the “what” element failed to have regard to the criteria as outlined above (and as contained in the same Section 1 of the 2008 Act that he refers to in addressing the ?why?). Instead, he found that there was no evidence to show that Lin had been trafficked into the State. But there is no requirement in law that alleged victims show they were trafficked into the State. They simply have to show that they were trafficked, via the “what” and “how” elements, into the exploitative situation.

It is clear from the accepted evidence that the “what” conditions were, in fact, met: at minimum, Mr Lin was given accommodation and work by his exploiters. Indeed, this is likely to be the easiest condition for any alleged trafficking victim to satisfy. The threshold for the other two elements will generally be harder to reach; in particular, alleged victims may find it difficult to establish coercion. It is surprising to see an applicant succeed in proving those aspects of his claim, but fall on the other.

In media reports of this case, much was made of a photograph taken of Mr Lin posing with Gardaí during the visit of Queen Elizabeth. This was also a factor against him in the judgment, as it was taken to demonstrate that he was “at liberty” for some period of time. Yet Judge Hogan also accepted that at the time Lin was found, he was not at liberty and in fact had no ?obvious means of escape?. The importance Judge Hogan placed on the question of how Lin entered the State prevented him from considering that the trafficking offence could have taken place after the period in which he was at liberty. But nothing in the 2008 Act, or anywhere else, suggests that it couldn?t.

There are some positives to take from this judgment. The finding that Lin?s conditions did amount to servitude and coercion will undoubtedly serve as a useful precedent, and the approval of the ?abuse of process? jurisdiction for trafficked defendants is welcome (although the high degree of compulsion required under the UK judgment is a matter of some concern). Nonetheless, it is a harsh outcome for Mr Lin, who seems to have met all the criteria envisaged by the Oireachtas. It is likely to lead to harsh outcomes for others who seek to be identified as victims of trafficking – whether by the courts, the DPP or the Garda National Immigration Bureau. It will be very worrying if this judgment is seen as establishing a principle that complainants must prove they were trafficked at and from the moment they entered the State. As it is not required by the legislation, it is a burden that alleged victims of trafficking should not have to meet.

Human Rights in Ireland >>

© 2001-2014 Independent Media Centre Ireland. Unless otherwise stated by the author, all content is free for non-commercial reuse, reprint, and rebroadcast, on the net and elsewhere. Opinions are those of the contributors and are not necessarily endorsed by Independent Media Centre Ireland. Disclaimer | Privacy