Updates on Irish and Northern Irish Law (Darius Whelan, School of Law, University College Cork)
Wednesday, December 05, 2007
Frozen Embryos in the High Court
The full decision is now available on BAILII:
M.R. v T.R. and Others  IEHC 359 (15 November 2006)
The earlier High Court case was
M.R. v T.R.  IEHC 221 (18 July 2006)
Sample News Story:
Legislation prospect after embryo ruling
"The Minister for Health & Children, Mary Harney, has said she had already instructed her Department to begin preparing for legislation in the area of assisted reproduction.
Ms Harney's statement followed a High Court judgment rejecting the case of a woman seeking to have three frozen embryos released to her against the wishes of her estranged husband.
The woman argued that the embryos had a right to life under the Constitution, but the High Court ruled that the protection of the unborn does not include embryos outside the womb.
However, today the High Court concluded that the three frozen embryos are not unborn within the meaning of the Constitution.
Mr Justice Brian McGovern said that it had never been in the minds of people voting on the 1983 Constitutional Amendments on Article 40.3.3 that the unborn meant anything other than the foetus in the womb.
The judge also said it was not possible for the court to decide when unborn life begins - that was not necessary to resolve the issues in this case."
Monday, November 19, 2007
Transgender Law - Lydia Foy in High Court
Sample news stories and blog posts:
"State in breach of ECHR in transgender case
The High Court has ruled that the State is in breach of the European Convention on Human Rights (ECHR) over its failure to recognise a sex change that a transgendered person underwent more than a decade ago. "
Sex change law incompatible with ECHR:
The Foy Case (CCJHR Blog - Fiona De Londras):
Tanya Ní Mhuirthile, Time to respect the rights of all gender identities, Irish Times:
Previous Lydia Foy case:
Tuesday, October 30, 2007
Media and Tribunals
The full judgment is not yet on the Courts Service website but is available here.
Title: Judge Mahon and Others v Keena and Kennedy,  IEHC 348, High Court, 23 October 2007.
[Update 19 Nov. 2007:
The judgment is now available on the Courts Service website here.]
Cases cited in the judgment include
Oblique Financial Services Limited v. The Promise Production Company 
Kiberd v. Hamilton  2 I.R. 257
Haughey v. Moriarty  3 I.R. 1
O’Callaghan v. Mahon  2 I.R. 32
O’Callaghan v. Mahon (No. 2), Supreme Court, 30th March, 2007
Mahon v. Post Publications Limited, High Court, 4th October, 2005
Mahon v. Post Publications Limited, Supreme Court, 29th March, 2007
Commonwealth of Australia v. Fairfax  147 C.L.R. 39
Sunday Times v. The United Kingdom (1979) 2 EHRR 245
Lingens v. Austria (1986) 87 EHRR 329
Castells v. Spain (1992) 14 EHRR 445
Goodwin v. The United Kingdom (1996) 22 EHRR 123
Dehaes and Gijsels v. Belgium (1997) 25 EHRR 1
Fressoz and Roire v. France (1999) 31 EHRR 28
Tromsov v. Norway (1999) 29 EHRR 12
Radio Twist AS v. Slovakia, European Court of Human Rights, 19th December, 2006
Tonsbergs & Blad A/S v. Norway, European Court of Human Rights, 1st March, 2007
Kwiecien v. Poland, European Court of Human Rights, 9th April, 2007
Ustun v. Turkey, European Court of Human Rights, 10th May, 2007
Ashworth Hospital Authority v. MGN Limited  WLR 2003
Extract from the judgment:
In our view, nothing could be more damaging to the capacity of the Tribunal to carry out its functions than the perception that the Tribunal itself leaked information given to it in confidence. Thus, where a leak occurs as in this case, the Tribunal must inquire to establish the source of that leak as it has sought to do. Establishing that the Tribunal itself was not the source of the leak is in itself a legitimate aim and a pressing social need. At this stage, having regard to the destruction of the documents, the only means remaining to pursue that aim is by way of the proposed questioning of the defendants. If a Tribunal is not enabled to pursue the aim of establishing that it was not the source of the leak, even if it is not able to ultimately identify the source of the leak, the process of public inquiry in private investigative phase will be damaged to such an extent that there would be an inevitable loss of confidence in the integrity of the process and in all probability a significant reductionSample News Story: http://www.rte.ie/news/2007/1023/mahon.html
in the voluntary co-operation of the public in its inquiry.
In the circumstances of this case we conclude that the defendants’ privilege against disclosure of sources, is overwhelmingly outweighed by the pressing social need to preserve public confidence in the Tribunal and as there is no other means, by which this can be done other than the enquiry undertaken by the Tribunal, we are of opinion that the test “necessary in a democratic society” is satisfied.
Accordingly, we will grant the relief sought.
Blog Posting by Daithi Mac Sithigh:
Extradition of Exoo Refused
It's now being reported that Exoo's extradition has been refused:
RTE: Extradition of Exoo halted in US
The Times West Virginian: Ex-Beckley minister free
Irish Times: Minister in suicide case calls for change in Irish law
The judgment was issued by the U.S. District Court, Southern District Court of West Virginia. The judge was Magistrate Judge R. Clarke VanDervort.
The court website is at http://www.wvsd.uscourts.gov/
Update May 2008:
The Exoo case Opinion is available here.
Friday, October 05, 2007
Mandatory Life Sentences, the Constitution and the ECHR
Challenges to life sentences rejected Friday, 5 October 2007 16:20
"Two convicted murderers have lost their High Court challenge to the constitutionality of the mandatory life sentence for murder.
They are 25-year-old Peter Whelan, who was jailed for life in 2002 for the murder of Cork student Nicola Sweeney, and 30-year-old Paul Lynch, who pleaded guilty in 1997 to the murder of Donegal pensioner, William Campbell.
Each claimed the sentence breached their rights under the Constitution and under the European Convention of Human Rights.
The two men claimed the mandatory life sentence interfered with the role of the judiciary and offended the independence of the judiciary enshrined in the Consitution.
They also claimed their rights under the Convention were breached because they have no way of knowing how or when they are likely to be released.
The case could have had implications for more than 250 people serving life sentences for murder in Ireland.
But Ms Justice Mary Irvine rejected the men's claims on all grounds."The full story is here.
Friday, September 28, 2007
The Latest from UCC Law Faculty ...
Forthcoming UCC Centre for Criminal Justice and Human Rights (CCJHR) events are listed here.
- 25 October 2007: Mental Health and Human Rights Seminar
- 3 April 2008: Youth Justice Conference [call for abstracts now online]
Thanks to Fiona De Londras, the new CCJHR blog is here.
Thursday, September 13, 2007
High Court Case on Unmarried Fathers
The full judgment doesn't appear to be on the Courts Service website yet.
[Update 23 November 2007:
The judgment is now available. The case is
T. v O.  IEHC 326, Mc Kechnie J., 10 September 2007]
Here are some of the news reports:
Landmark Ruling on Father's Rights (RTE)
Unmarried Father Wins Right to Seek Return of Twin Boys (Irish Times)
Judge Calls for Review of Fathers' Rights (Irish Examiner)
Unmarried Father Makes History in Custody Case (Irish Examiner)
International Herald Tribune Story
Wednesday, September 05, 2007
Forthcoming Irish Law Events
It includes forthcoming events such as the following:
Fri. Sep 7, 2007
Preventing Ill-Treatment - Ireland and the OPCAT - Irish Council for Civil Liberties, Dublin Seminar on Optional Protocol to the United Nations Convention Against Torture (OPCAT)
Mon. Sep 17, 2007
Recent Developments in Medical Negligence - Law Society Seminar, Dublin www.irishlaw.org/events/lawsoc07-08.shtml
Sat. Sep 29, 2007
50 Years of the Treaty of Rome: Reflecting on Past Achievements and Future Challenges - Faculty of Law, NUI Galway
Sun. Sep 30 – Tue. Oct 2, 2007
Ireland, Gateway between the United States and the European Union - ABA Conference, Dublin www.abanet.org/intlaw/fall07/agenda_dublin.html
Wed. Oct 3, 2007
Obstacles to Harmonisation of International Maritime Law - Irish Maritime Law Association, Dublin
Sat. Oct 6, 2007
Equality, Legislation and the Constitution - Faculty of Law, NUI Galway
Tue. Oct 9, 2007
Consumer Protection Act 2007 - An Overview - Law Society Seminar, Dublin www.irishlaw.org/events/lawsoc07-08.shtml
Mon. Oct 15, 2007
Anti-Money Laundering Conference - IIR Conferences, Dublin
Quote VIP Code KM1976IRLWW for 10% discount when booking.
Tue. Oct 16, 2007
Restorative Justice - Association for Criminal Justice Research and Development Conference, Dublin
Tue. Oct 16, 2007
Data Protection Conference - IIR Conferences, Dublin
Quote VIP Code KM1976IRLWW for 10% discount when booking.
Wed. Oct 17, 2007
Corporate Governance Conference - IIR Conferences, Dublin
Quote VIP Code KM1976IRLWW for 10% discount when booking.
Fri.-Sun. Oct 19-21, 2007
Politics and the Law - Political Studies Association of Ireland, Dublin www.psai.ie/conference.asp
Wed. Oct 24, 2007
Residential Tenancies and Commercial Leases - Law Society Seminar, Dublin www.irishlaw.org/events/lawsoc07-08.shtml
Fri. Nov 2, 2007
The Impact of the Fight against Terrorism on EU Law - Academy of European Law (ERA) Seminar, Dublin www.era.int/web/en/html/nodes_main/4_2127_474/conferences_0000_Date/5_1796_3984.htm
Thu. Nov 8, 2007
Environmental and Planning Law - Law Society Seminar, Cork www.irishlaw.org/events/lawsoc07-08.shtml
Sat. Nov 17, 2007
Law and Mental Health - Faculty of Law, NUI Galway
Wed. Nov 21, 2007
Criminal Justice Act 2007: A Bridge Too Far? - Law Society Seminar, Dublin www.irishlaw.org/events/lawsoc07-08.shtml
Fri. Nov 23, 2007
The Enforcement of National and EC Competition Laws in Member States: Consistency, Coherence and Diversity, Dublin
Joint Conference of the Irish Society for European Law and the UK Association for European Law
Fri. Nov 30, 2007
Troubleshooting Areas in Family Law Practice - Law Society Conference, Dublin www.irishlaw.org/events/lawsoc07-08.shtml
For the full list of forthcoming events, go to
To join the Irish Law Updates e-mail list (received by 2,130 people), go to
Statutory Instruments 2007
Strangely, there's now a gap in public Statutory Instrument coverage:
- From 1922 to Number 350 of 2005, go to www.irishstatutebook.ie or www.bailii.org/ie/legis/num_reg/
- There's then a gap for 2005, numbers 351 to 926, and all of 2006.
- For 2007, go to www.attorneygeneral.ie/esi/2007/esi_num.html
The gap is partially filled by the IRLII index of Statutory Instruments, hosted here at UCC by Professor John Mee - see http://www.ucc.ie/law/irlii/si/si.php
However, as is well known, the IRLII Index can only link to SIs which have been published on Government websites, and so is incomplete.
A quick glance at the 2006 list on IRLII suggests that full text PDF links are provided for 36 of the 911 SIs in that year.
Commercial coverage of the SIs is provided by www.firstlaw.ie.
Sunday, August 19, 2007
Extradition / Assisted Suicide
"Judge considers verdict in suicide case
A US judge has adjourned the case of a man accused of assisting an Irish woman with suicide to consider whether the alleged crime warrants his extradition.
The Reverend George Exoo, a former Unitarian minister, has been accused of assisting a 48-year-old Irish woman with her suicide in Dublin in 2002.
Since then gardaí have been seeking to have Mr Exoo brought to Ireland to stand trial."
Read / view more on the following pages:
Assisted Suicide Blog
Friday, August 17, 2007
Irish Law RSS Feeds
- The IRLII Lastest Irish Cases RSS News Feed
This feed has been on the IRLII site for quite a while now (about a year?) and is maintained by my colleague John Mee with the assistance of Micheal O'Dowd.
- The www.courts.ie Judgments RSS News Feed
This is an experimental feed I created using
feedyes.com(update 5 October: the feed now uses ponyfish.com.) Unfortunately the headlines consist of the dates of judgments rather than titles, but at least when new judgments are posted on the site they'll show up in your feed reader.
A reminder of two other RSS feeds which we already have:
If you haven't heard of RSS feeds, a brief outline of how they work is available here.
LRC Report on Spent Convictions
Here's an extract from the press release:
"The Report sets out in detail the elements of the proposed spent convictions law and it also includes a draft Spent Convictions Bill to implement the Commission’s recommendations. The key elements include:
- the types of offences which should be excluded completely from the proposed law: (a) any offence triable by the Central Criminal Court, such as murder; (b) any sexual offence as defined in the Sex Offenders Act 2001; and (c) any other offence where a sentence of more than 6 months (including a suspended sentence) has been imposed in court;
- the length of time a person must be conviction-free to qualify for the conviction to be regarded as “spent”: 7 years from the date of conviction where a custodial sentence of up to 6 months is imposed; 5 years from the date of conviction where a non-custodial order is made, such as a fine or disqualification;
- all convictions, including spent convictions, would still be disclosed at a sentencing hearing and in some non-criminal cases such as involving access to children.
- The system would be automatic, rather than requiring the person to apply to court to have their conviction declared to be spent, as an application-based system would not be transparent and consistent."
Sample News Story:
Extending the Scope of Employment Equality Legislation (2004)
(The above report included a section on the criminal conviction / ex-offender / ex-prisoner ground.)
Updates 2008-9 - See also:
Spent Convictions Group, Proposals on a Rehabilitation of Offenders Bill (2009)
Spent Convictions Bill 2007
Irish Human Rights Commission, Observations on Spent Convitions Bill (2009)
Irish Penal Reform Trust Position Paper on Spent Convictions
Update May 2012:
A new Criminal Justice (Spent Convictions) Bill 2012 has been published.
Update July 2013:
See the recent Irish Times article by Remy Farrell S.C. here.
Sunday, July 29, 2007
Review of Mental Health Act 2001 published
The review suggests very few changes to the Act, but some interesting points include the following:
- The Minister accepts in principle that the references to "unwilling" in sections 59 and 60 should be removed, but this will need to be done in the context of any new capacity legislation
- The Minister accepts that there appears to be a drafting error in section 61
- As consultant numbers increase consideration should be given to reducing the 14 day time period allowed for in section 17(1)(c)(iii) to receive the second consultant’s report. This would also facilitate the earlier scheduling of Mental Health Tribunals and provide earlier access by patients and their legal advisors to the second opinion reports prior to hearings.
- When a voluntary patient has a mental disorder and requires involuntary admission for treatment, the use of the normal involuntary admission procedures is preferred. The status of patients should not lightly be changed from voluntary to involuntary, and the rights of patients in this regard must be fully safeguarded. The legal scope for using the normal admission procedures under sections 9 and 10 will be examined.
- The Act should be amended when a suitable opportunity arises to provide for the closure of approved centres.
- A monitoring group, consisting of representatives of the Department of Health and Children, the Department of Justice, Equality and Law Reform, the HSE, the Mental Health Commission, service providers and service users should be established to address any difficulties with the Mental Health Act 2001, to oversee the linkages between the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006 and to contribute to the development of any proposed capacity legislation.
Friday, July 13, 2007
Family Law Matters
The paper by Judge Gibbons shows that of the children in care in Ireland 43% are as a result of a court care order are 57% voluntary placements. It goes on to show that the major reasons children are in care are:
- neglect 1,386
- physical abuse, 290
- sexual abuse, 159
- emotional abuse, 147
- emotional and behavioural problems, 134
- mental health problems / intellectual disability, 19
- abusing drugs / alcohol, 9
- physical illness/ disability, 8
- pregnancy, 7
- involved in crime, 4
- other, 146
The figures also show that of the 5,060 children in care in Ireland only 442 are in residential care with the vast majority being in some form of foster care and with 32 being cared for at home under supervision.
The Family Law Reporter is Dr Carol Coulter.
Full Press Release:
Full text of reports:
Titles of reports:
Maintenance procedures in the district court.pdf
Family Law Matters - Vol. 1 No. 2 2007 - Summer 2007.pdf
Family Law Matters - Vol.1 No.1 - Spring 2007.pdf
Sample Media Coverage:
Advertising Law in the Information Age event
As part of the Institute, we have a guest lecture, open to all, as follows:
Advertising Law in the Information Age
Douglas Wood, Attorney, Reed Smith, New York
Wednesday 1 August 2007, 9.00 a.m.
Full details are here.
Thursday, July 05, 2007
Mahon Tribunal Case 4 July 2007
The title is
Fitzwilton Limited and Others -v- Judge Alan Mahon and Others  IESC 27
A brief extract from paragraph 14 of Denham J's judgment:
'I also note the words of the next paragraph. These are:- "The Tribunal may decide to continue its inquiries and/or proceed to public hearing in respect of one or more issues which are currently part of a matter designated and listed herein." The words "The Tribunal may decide" is not a record that a decision has been made. The words are not "The Tribunal has decided". Rather, the words, "The Tribunal may decide", indicate that a decision may be taken in the future by the Tribunal. It is clear that the Tribunal has considered the listed matters. This is the first step required by the Houses of the Oireachtas.
The second step the Tribunal was required to take was to make a decision as to the additional matters which should proceed to public hearing. The words in the document "… may decide to continue its inquiries and/or proceed to public hearing in respect of one or more issues … listed herein" indicate that the Tribunal reserved its decision to a future date, which may be a reference to the discretion conferred by paragraph J(6). The words "may decide", indicate an action in the future.
This is confirmed by the words stating that the Tribunal may do either of two things. The specific words: "and/or proceed to public hearing", describe a situation where the matters are under consideration not decision.
The third step is to record the decision. On its face the document of the 28th April, 2005, does not record a decision that specified additional matters go to a public hearing.'
Sample media coverage:
Friday, June 29, 2007
LRC Public Consultation - Dublin, 18 July 2007
Public Consultations on Law Reform
The Commission is coming to the end of its Second Programme of Law Reform 2000- 2007 and has started identifying new areas of law to be included in a Third Programme of Law Reform, which will run from 2008.
The Commission is committed to ensuring that the Third Programme will reflect the needs of a modern society, and is seeking the views of interested persons and groups on the laws in need of reform. A number of Public Consultations have already been held. The first Consultative Seminar took place at NUI Galway in March and the second was held in UCC in April. The final Consultative Seminar is planned for Dublin Castle on Wednesday 18 July, from 9 - 1 pm. This Seminar in will also be the Commission's Annual Conference for 2007 and is free to attend, but booking is essential.
The closing date for the Dublin Castle Seminar is Monday 16th of July.
Members of the public can make suggestions for law reform verbally or in writing. The Commission is interested in receiving submissions on laws that affect the daily lives of people. There is no standard format for a submission and there is no requirement to use technical legal language. Please send your submissions to:
Secretary / Head of Administration
The Law Reform Commission
35 - 39 Shelbourne Road
Thursday, June 21, 2007
Mental Health (Criminal Law) Review Board - new website
www.mhclrb.ie [link fixed 22 June'07 12.15 p.m.]
A brief summary of the provisions of the Criminal Law (Insanity) Act 2006 is available on the Citizens' Information website.
Tuesday, April 17, 2007
Another James Joyce Copyright Case
Sweeney v. NUI Cork T/A Cork University Press  IEHC 70 and Sweeney v. MacMillan Publishers  EWHC Ch 460.
In 2004, a brief amendment to the Copyright legislation was passed due to concerns about possible litigation concerning Joyce's works. See the Copyright and Related Rights (Amendment) Act 2004 and Matthew Rimmer, "Bloomsday: Copyright Estates and Cultural Festivals", (2005) 2:3 SCRIPT-ed 345.
Lawrence Lessig now reports that a case filed in the Californian courts concerning James Joyce's works has been settled, with the academic author, Professor Carol Shloss, being enabled to publish a supplement to her book on Lucia Joyce. The supplement may be published in print form within the United States and in electronic form "accessible only within the United States to computers with a U.S. Internet Protocol (I.P.) address." So we Europeans will have to hop on an Aer Lingus flight if we want to look at the site. For those of you currently in the U.S.A., go to
'An Important Victory For Carol Shloss, Scholarship And Fair Use'
Press Release from Stanford University
Court Action re Constituency Boundaries
Two Independent TDs have initiated a legal challenge to the constitutionality of holding the general election on the basis of the current constituencies, given the huge disparities in population revealed by the census figures.
Monday, April 16, 2007
New IrishLaw Update Published
This includes a list of forthocoming events such as the following:
Tue.24 Apr.'07: Competition and the Legal Profession - Irish Centre for European Law Conference, Dublin
Wed. 25 Apr.'07 - Personal Injury Claims: A Review of Recent Developments - Law Society seminar, Dublin
Thu.26 Apr.'07: Law and the Environment 2007 - Fifth Annual Conference for Environmental Professionals, Faculty of Law, University College Cork
Thu.26 Apr.'07: Evidence in Early Irish Law: What do the Documents Tell Us? - Lecture by Professor Fergus Kelly - Sixteenth Hugh M. Fitzpatrick Lecture in Legal Bibliography - Dublin
Wed.2 May'07: "What's wrong with the European Convention on Human Rights?" - Professor Steven Greer - Belfast
Thu.3 May '07: Postgraduate Conference on Criminal Justice and Human Rights - Centre for Criminal Justice and Human Rights, Faculty of Law, University College Cork
Fri.-Sun.4-6 May'07: Law and Politics A Contemporary and Brehon Perspective - Burren Law School 2007, Clare
Thu.10 May'07: The Protection of Human Rights in the War on Terror - Human Rights Lecture by Baroness Helena Kennedy QC - Law Society Third Annual Human Rights Lecture, Law Society, Blackhall Place, Dublin http://www.lawsociety.ie - see Forthcoming Events
Attendance is free, but prior booking is recommended. Please contact email@example.com to register.
Tue.15 May'07: Public Lecture by Professor Richard Fallon, Harvard Law School entitled 'Reflections on the Morality and Legality of Coercive Interrogation by the US' - Harvard Law School Association of Ireland in association with School of Law Trinity College Dublin. Trinity College Dublin, Room 21.
Lecture begins at 6.30pm. Professor Fallon is a leading scholar on US constitutional law.
Tue.15 May'07 - Competition Law : Key Issues for the General Practitioner - Law Society seminar, Dublin
Thu.17 May'07 - Mergers, Acquisitions and Disposals of Irish Legal Practices in a Changing Market - Law Society seminar, Dublin
Fri.18 May '07: Society of Trust and Estate Practitioners Annual Conference 2007
Wed.23 May '07: Annual Family Law Conference - Law Society event, Clontarf, Dublin
Fri.29 Jun'07: Annual Criminal Conference, Faculty of Law, UCC, Cork
Wed.18 Jul.'07: Public Consultation on Law Reform Commission's Third Programme of Law Reform - Dublin Castle
9 July- 3 August '07: E Law Summer Institute - University College Cork Law Faculty
Tuesday, April 10, 2007
Vacancies: Lecturers in Law (2), University College Cork
University College Cork
LECTURERS IN LAW (2 POSTS)
College of Business and Law
The Department of Law has established itself as one of the leading law schools in Ireland. It has a distinguished history over many decades in attracting high quality students and recruiting high quality staff nationally and internationally. Over its modern history, the Law Department has consistently pursued a policy of innovation and development. The Department operates with a complement of twenty-five full-time academics taff providing BCL, LLB, LLM and PhD programmes in addition to an Evening BCL programme.
Applications are invited for two full-time permanent Lecturer posts in the Department of Law. The holders of these posts, working under the direction of the Head of Department and Dean of the Faculty of Law, will be expected to contribute to all day and evening law programmes offered at undergraduate and postgraduate levels. Applicants must hold a post-graduate qualification in law. The post holders will be expected to teach under the direction of the Head of Department, hold administrative roles, and be actively engaged in research.
Faculty of Law Website: http://www.ucc.ie/law
Informal enquiries to: Professor Caroline Fennell, Head of Department of Law
Salary scale [new entrants]: 34,912 - 56,713 euro.
There is provision for subsequent progression to a higher salary scale maximum 81,867 euro.
Closing date: Friday, 20 April 2007
Completed application forms should be returned to:
Department of Human Resources, University College Cork, College Road, Cork,
Ireland. Tel: + 353 21 4903073/ Email: firstname.lastname@example.org
Fax + 353 21 4276995
Full details and application material:
Thursday, March 29, 2007
Final Report of the Balance in the Criminal Law Review Group
Final Report of the Balance in the Criminal Law Review Group
The Tanaiste and Minister for Justice, Equality and Law Reform, Michael McDowell, T.D, has published the final report of the Review Group he established last November, chaired by Dr. Gerard Hogan, S.C., to examine and review aspects of the criminal law. The Tanaiste established the Group following a speech he made in Limerick last October about whether there was a need for a rebalancing of some fundamental aspects of our criminal law and, in particular, whether the system could reflect better the interests of victims while at the same time preserving the integrity and fairness of our criminal justice system.
Announcing the publication of the report which he received earlier this week on his return from the United States, the Tanaiste said "I warmly welcome this report and I am very grateful to Dr. Hogan and the other members of the Balance in the Criminal Law Group for their sterling and dedicated work on these important issues. It is a fair and balanced report and will I believe form a sound basis for taking forward proposals for reform in the areas with which it deals."
The Report deals in particular with the right to silence, allowing character evidence of an accused, the exclusionary rule of evidence, requiring an accused to outline the nature of his defence before or at the commencement of trial, re-opening new evidence, nullifying an acquittal where there is evidence of jury or witness tampering, "with prejudice" appeals in the case of wrongful acquittal, extending alibi evidence rules to other analogous situations, allowing submissions by the prosecution before sentencing and modifying the rule in relation to hearsay evidence.
The Tanaiste said "The Criminal Justice Bill before the Oireachtas at present already addresses the Group's thinking on the right to silence issue as set out in their earlier interim Report. Where other action is practical in the short term to take forward recommendations I will take it.
For example, I will introduce amendments to the present Bill dealing with the taking of statements in Garda questioning by electronic means and to deal with the problem highlighted in the Report where persons are entitled to video recordings of their questioning in Garda custody.
Of their nature, other proposals in the Report will take more time to advance and, indeed, the Group felt that some issues are in need of more detailed research and my Department will progress this. Nevertheless the Group's proposals form a sound basis for an agenda for sensible reform which I strongly believe should be built on and taken forward as quickly as possible.
On some aspects, I would go further than the Group's recommendations. For example, the issue of requiring a defence statement is one which, in my view, could be of huge assistance to a jury in their consideration of a case. Criminal trials are getting longer and more complicated and it would be of assistance to a jury to have a summary of the contested elements of the case before they hear the evidence."
During the course of its work, the Review Group sought written submissions from interested groups and members of the public. The Review Group also met with a number of interested parties including victims' groups, members of the judiciary, senior members of An Garda Síochána, the Director of Public Prosecutions and Chief Prosecution Solicitor, journalists, representatives of the Human Rights Commission and legal practitioners.
A summary of the recommendations contained in the report are attached at Appendix A and the full text of the Report is published on the Department's website at www.justice.ie and the Tánaiste's speech in Limerick last October is at http://www.justice.ie/80256E01003A02CF/vWeb/pcJUSQ6UTMDB-en
23 March 2007
The main recommendations of the Report are as follows:
1. The right to silence
* Inferences as to the credibility of a defence to be drawn from a failure to mention the fact relied on in the defence when in custody
* Inferences to be drawn from a failure to explain suspicious circumstances in custody
* Judges' Rules would cease to have effect and would be replaced by regulations, to be made by the Minister, regarding the conduct of interviews.
* A recorded interview should not be required to be the subject of a written note, subject to suitable safeguards
* Where the detained person requests that recording would not apply, the requirement for a note to apply to any admission made in an interview.
* Routine audio and video taping of common areas in Garda stations such as corridors etc to minimise the potential for issues arising concerning utterances or incidents in such common areas.
* The present practice regarding the supply of the videotapes of Garda interviews to suspects be changed so that the videotapes are only required to be made available by way of prosecution disclosure following the charging of the suspect or by order of a court
* Creation of a new offence of disclosing or showing an interview
videotape without lawful excuse.
A majority of the Group considers that neither the trial judge nor the prosecution should be permitted to comment on the failure of the accused to give evidence at his or her trial.
A separate dissent on this topic from two members of the Review Group is attached to the Report.
At the request of the Tanaiste, the Group had already issued an Interim Report on the right to silence in February 2007 and some of the Group's recommendations are contained in Part 4 of the Criminal Justice Bill 2007.
2. Allowing character evidence of an accused
* Where the defence attacks the character of the injured party in a case where the injured party has died or has become incapacitated and is unable to give evidence, the shield would be dropped and the accused would be liable to cross-examination as to his or her character without leave of the court.
* 10 days notice to be given of an intention to make an imputation against a deceased or incapacitated victim. (In the absence of such notice, the leave of the court would be required by the defence to make the imputation).
* Where the accused has engaged in an attack on the character of the prosecution witnesses or, the injured party who is deceased or unavailable to give evidence, or has adduced positive evidence of his own good character, or asked a question designed to elicit such evidence from any witness, the prosecution would be entitled to adduce evidence regarding the defendant's character.
* Allow an express power to call further prosecution evidence regarding the character of the deceased or an incapacitated victim where the victim's character has been put in issue.
3. The exclusionary rule of evidence
* Court to have a discretion to admit unconstitutionally obtained evidence or not, having regard to the totality of the circumstances and in particular the rights of the victim.
* Allow time for a possible change in jurisprudence to emerge following use of the appeal provisions of the Criminal Justice Act 2006. If not, other options, including various legislative models or possibly constitutional change, to be examined and considered.
A separate dissent on this topic from the Chairman is attached to the Report.
4. Require the accused to outline the nature of his defence before or at the commencement of a trial and 5. Extending alibi evidence rules to other analogous situations
* Limit the obligation of additional disclosure to the expert or technical reports or witness statement of experts on which the defendant intends to rely.
* Provide that, following such disclosure, the prosecution would not be entitled to call any witness making such a report without the consent of the defendant.
* Allow the prosecution to require the defence to tender a witness where a report or witness statement has been furnished, but the defence does not, in the event, wish to call the witness at the trial.
* When the obtaining of expert evidence takes a longer period of time the defence should be permitted to give details of the efforts being made to obtain a statement if the statement itself is not to hand at the time for disclosure. In any event, such reports should be disclosed well in advance of the trial.
Disposal of Admissibility Issues pre-trial
* Provide that admissibility issues be determined prior to the swearing in of a jury on the first day or days of a trial.
* The principle that consideration be given in sentencing to the stage at which a plea is tendered should be stated expressly in statute.
6. "With prejudice" appeals in the case of wrongful acquittal
* "With prejudice" appeals in respect of trials on indictment in the case of wrongful dismissals - A "with prejudice" right of redress against erroneous decisions by a trial judge, whether that is an interlocutory or evidential ruling (including a ruling which weakens the prosecution case, followed by a jury acquittal) or a directed acquittal.
* "With prejudice" appeals in respect of decisions of the District Court - No change.
7. Re-opening new evidence
* A right to the prosecution to complain in respect of miscarriages of justice on the basis of new or newly discovered evidence with recommended safeguards against a possible abuse of procedure which, of its nature, should only be used in exceptional cases.
* Such right to be exercised if the Supreme Court so decides, notwithstanding a foreign acquittal subject to consideration of the legal issues arsing under the Schengen implementation agreement.
8. Nullifying an acquittal where there is evidence of jury or witness tampering
* Review of acquittals in the event of interference with the trial process, whether in respect of the jury or otherwise.
* Supreme Court to be satisfied that there is sufficient evidence warranting a quashing of the acquittal.
9. Allowing submissions by the prosecution before sentencing
* Amendment to the Guidelines for Prosecutors to allow the prosecutor to volunteer information regarding sentencing precedents whether requested by the judge or not.
* Develop guideline judgments by the Court of Criminal Appeal or Supreme Court, where a number of appeals concerning the same offence would be heard together and a general guideline judgment given, indicating the approximate mid point on the scale of severity and the factors that might result in a significant adjustment up or down.
* Consider possible statutory mechanism for the requesting of a guideline judgment by the Director or the giving of such a judgment on the court's own motion.
10. Modifying the rule in relation to hearsay evidence
* Identify any particular areas that warrant specific exceptions being permitted rather than a radical break from existing norms.
* Consider legislative provisions which would allow proof of purely formal or technical matters to be proved by certificate
* Department of Justice, Equality and Law Reform to keep under review section 6 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, (evidence of scene preservation to be proven by certificate) and section 188 of the Criminal Justice Act, 2006 (handling of forensic samples), to see whether any extension of these provisions is warranted.
11. Identity parades
Allow an injured party to identify a suspect through a one-way screen in as far as practicable.
12. The judge's charge
Development of "Bench Books" as recently recommended by the Law Reform Commission which should bring greater standardisation to the formulae used for certain aspects of judges charges.
13. Victim impact reports
* The statutory provision should be recast to permit the person or
persons who have been most directly affected by an offence, to give evidence at the sentencing stage - for example next of kin of a deceased victim of crime, subject to the Court's discretion in any case.
* Include a power vested in the court to direct that the statement as
delivered or any part of it would not be published or broadcast, without prejudice to any other power of the court.
* Welcome the Tánaiste's recent decision to ensure that the Parole Board would have access to the book of evidence in any case in which parole was applied for.
* Victim impact statement should also be given to the Parole Board and
considered prior to any decision on parole.
* In addition - particularly for the category of relatives or victims
who did not get the opportunity to make a victim impact statement - the Department of Justice, Equality and Law Reform to examine further whether there might be merit in allowing such victims to be heard by the Parole Board in the presence of the offender, perhaps as a condition for eligibility for consideration of the request for parole.
14. Implications for the Defence Acts
Amendments to the Defence Acts to reflect (in the military justice context) the changes to the criminal justice system proposed.
Tuesday, March 13, 2007
Cork Online Law Review 2007
Foreword by Dr Carol Coulter, Family Law Reporter, Courts Service
1 Anthony Finegan - Asbestos-Related Injury Litigation
2 Eilionoir Flynn - Access to Services for People With Disabilities
3 Eleanor Leane - Principles of Juvenile Justice
4 Tom Flynn - Copyright Law in a Digital Age
5 Paul Daly - The House of Lords and the Government
6 Olufemi Amao - Reflexive Law and the C.S.R Debate
7 Ger Sadlier - The Success of the ECHR
8 Michelle Buddecke - Evolution of the Commercial Agent
9 Shannon Haynes - Statutory Rape Crisis
10 Pablo Cortés - Adapting Irish Small Claims Procedure
11 Stephanie Switzer - US Efforts to Impose TRIPS-Plus Standards
12 Brendan Ryan - Jus ad Bellum in the Israel-Hezbollah Conflict
13 Ronan O Brien - Analysis of the Postal Rule
Monday, March 05, 2007
Defamation Bill 2006
For detailed discussion of the Defamation Bill 2006, see
Video: Eoin O'Dell, "Careful What you Wish For? The Defamation Bill, 2006", University College Cork Law Society Conference 2006, at
Eoin O'Dell's various Blog Entries on the Bill:
Wednesday, February 28, 2007
Proposed Referendum Regarding Children
The proposed Article 42(A) would say:
- The State acknowledges and affirms the natural and imprescriptible rights of all children.
- 1. In exceptional cases, where the parents of any child for physical or moral reasons fail in their duty towards such child, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
2. Provision may be made by law for the adoption of a child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child, and where the best interests of the child so require.
- Provision may be made by law for the voluntary placement for adoption and the adoption of any child.
- Provision may be made by law that in proceedings before any court concerning the adoption, guardianship or custody of, or access to, any child, the court shall endeavour to secure the best interests of the child.
- 1. Provision may be made by law for the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse, or risk thereof, of children, or other persons of such a class or classes as may be prescribed by law.
2. No provision in this Constitution invalidates any law providing for offences of absolute or strict liability committed against or in connection with a child under 18 years of age.
3. The provisions of this section of this Article do not, in any way, limit the powers of the Oireachtas to provide by law for other offences of absolute or strict liability.
See also the usual media sites such as www.rte.ie/news/
Friday, February 02, 2007
Launch of Centre for Criminal Justice and Human Rights, UCC, Cork
Faculty of Law, University College Cork
The Centre for Criminal Justice and Human Rights was established by the Faculty of Law, U.C.C. in 2006, building on the Faculty's expanding research and teaching programs in these fields. The Centre will be formally launched on Tuesday February 27th, 2007 with the first in a series of Annual Distinguished Lectures in Criminal Justice and Human Rights. Addressing one of the key questions for criminal justice and human rights today, Professor Conor Gearty, Rausing Director of the Centre for the Study of Human Rights, L.S.E, will speak on the topic:
'Criminal Justice and Human Rights: Rising to the Challenge of Counter-Terrorism'.
Venue: Aula Maxima, U.C.C.
Time: 6pm (registration from 5.30pm)
Date: Feb. 27th
RSVP: Feb. 20th email@example.com
Professor Conor Gearty
Conor Gearty was born in Ireland and graduated in law from University College Dublin before moving to Wolfson College, Cambridge in 1980 to study for a Master's Degree and then for a PhD. He became a fellow of Emmanuel College Cambridge in 1983 and in 1990 he moved to the school of law at King's College London where he was first a senior lecturer, then a reader and finally (from 1995) a professor. On 1 October 2002, he took up a new appointment as Rausing Director of the Centre for the Study of Human Rights and professor of human rights law at LSE.
Conor Gearty has published widely on terrorism, civil liberties and human rights. His books include Terror (Faber, 1990) and two books with K D Ewing, Freedom under Thatcher (1989) and The Struggle for Civil Liberties (2000). One of his more recent books, Principles of Human Rights Adjudication, is a study of the place of the Human Rights Act in Britain's constitutional order. It locates the measure in its political and historical context and analyses the case law from the perspective not only of principle but also of practical experience. In his latest book, Can Human Rights Survive? <http://www.cambridge.org/catalogue/catalogue.asp?isbn=0521685524> , Conor analyses the problems facing human rights today and the challenges that need to be overcome if the subject is to continue to thrive. The book is based on the Hamlyn lectures that Conor gave in 2005.
Conor Gearty is also a barrister and was a founder member of Matrix chambers from where he continues to practice. He has been a frequent adviser to judges, practitioners and public authorities on the implications of the UK Human Rights Act, and has frequently lectured at home and abroad on the topic of human rights. He has appeared in human rights cases in the House of Lords, the Court of Appeal and the High Court.
About the Centre for Criminal Justice and Human Rights
The Centre for Criminal Justice and Human Rights was established by the Faculty of Law, U.C.C. in 2006. The study of crime, justice and human rights raises complex and often challenging questions for lawyers and policy makers. The Centre seeks to contribute to national and international debates on these questions, through the promotion of critical legal research, innovative programmes of legal education and training, and key partnerships with Government, statutory bodies and civil society organisations. The Centre builds on the success of the LLM Criminal Justice (Clinical) programme and the Faculty's growing international reputation for excellence in the fields of crime, justice and human rights.
For further information contact:
Dr Siobhan Mullally, Co-Director, Centre for Criminal Justice and Human Rights, firstname.lastname@example.org <mailto:email@example.com>
Monday, January 29, 2007
Forthcoming Events 29 January 2007
The full e-mail is available online at
Sample events include:
Tue.30 Jan.'07: Parental Rights to Custody - Annual Moot Court at Courthouse, Washington Street, Cork - UCC Faculty of Law
Tue.30 Jan.'07: The English Privacy Emperor is Not Wearing Strasbourg’s Clothes - Trinity College, Dublin http://www.lexferenda.com/?p=196
Wed.31 Jan.'07: Launch of Results of ISSA/ UCD Irish Cybercrime Survey - Dublin http://www.issaireland.org/cybercrime
Wed.7 Feb.'07: Practical IT Workshop - Faculty of Law, UCC, Cork http://www.ucc.ie/en/lawsite/eventsandnews/events/
Wed.7 Feb.'07: Acting for the Vulnerable Client - Law Society Seminar, Dublin http://www.irishlaw.org/events/lawsoc06-07.shtml
Tue.13 Feb.'07: Practical IT Workshop - Faculty of Law, UCC, Cork http://www.ucc.ie/en/lawsite/eventsandnews/events/
Mon.19 Feb.'07: Drunk Driving Offences: A Review of Recent Developments - Law Society seminar, Dublin http://www.irishlaw.org/events/lawsoc06-07.shtml
Wed.21 Feb.'07: Children's Rights and the Constitution - Trinity College Dublin Law School http://www.tcd.ie/law/events.html [postponed from earlier January date announced]
Sat.24 Feb.'07: New Developments in Probate and Succession: Implications for Legal Practitioners - Trinity College Dublin Law School http://www.tcd.ie/law/events.html
Tue.27 Feb.'07: Criminal Justice and Human Rights: Facing up to the Challenge of Counter-Terrorism - Launch of Centre for Criminal Justice and Human Rights, Faculty of Law, UCC, Cork http://www.ucc.ie/en/lawsite/centres/CJHR/
Tue.27 Feb.'07: Divorce: Ten Years On - Law Society seminar, Dublin http://www.irishlaw.org/events/lawsoc06-07.shtml
Wed.28 Feb.'07: Occupiers' Liability: A 2007 Update - Trinity College Dublin Law School http://www.tcd.ie/law/events.html
Thu.8 Mar.'07: Employment Law Rights of Immigrants and Other Issues - Law Society seminar, Dublin http://www.irishlaw.org/events/lawsoc06-07.shtml
Mon.12 Mar.'07: Corporate Governance in Ireland - Dublin Quote VIP No. KM1869IRLWEM2 when booking to receive a 10% discount
Tue.13 Mar.'07: Anti Money Laundering Ireland - Dublin Quote VIP No. KM1869IRLWEM2 when booking to receive a 10% discount
Tue.13 Mar.'07: Personal Injury Claims: A Review of Recent Developments - Law Society CPD Seminar, Stillorgan, Dublin http://www.irishlaw.org/events/lawsoc06-07.shtml
Wed.14 Mar.'07: Data Protection in Ireland - Dublin Quote VIP No. KM1869IRLWEM2 when booking to receive a 10% discount
Thu.15 Mar.'07: Freedom of Information Ireland - Dublin Quote VIP No. KM1869IRLWEM2 when booking to receive a 10% discount
Thu.26 Apr.'07: Law and the Environment 2007 - Fifth Annual Conference for Environmental Professionals, Faculty of Law, University College Cork http://www.ucc.ie/en/lawsite/eventsandnews/events/
Thu.3 May '07: Postgraduate Conference on Criminal Justice and Human Rights - Centre for Criminal Justice and Human Rights, Faculty of Law, University College Cork http://www.ucc.ie/law/postgradconference2007
Fri.29 Jun'07: Annual Criminal Conference, Faculty of Law, UCC, Cork http://www.ucc.ie/en/lawsite/eventsandnews/events/
9 July- 3 August '07: E Law Summer Institute - University College Cork Law Faculty http://www.ucc.ie/en/lawsite/students/elsi/
CURRENT PUBLIC CONSULTATION DEADLINES
Consultation on Law Reform Commission's Third Programme of Law Reform - 15 June 2007 http://www.lawreform.ie/submissions/submission.htm