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Archive for October, 2009

The Language of Exclusion

October 29, 2009 6 comments

What to think of this story from today’s Irish Examiner, headlined ‘Judge: Roma raising kids to steal’? Colin has already blogged on the situation of Roma in the North. This story from the Republic turns on statements by two judges of the District Court; Judge Aingeal Ní Chonduin and Judge William Early about the case of a 16-year-old Roma girl. The girl had admitted theft of €320 worth of children’s shoes at Liffey Valley Shopping Centre, in Dublin, on June 11 last, possessing stolen underwear, taken from a shop in Dublin city centre, on a date last July and failing to attend her court case on another date. Her solicitor told the court that the girl had been brought to Ireland at the age of 13 by her partner, now aged 21, and his family. At age 15, she gave birth to their first child. The Health Service Executive had conducted a welfare assessment but had not deemed any action to be necessary.

Now to the judges’ statements. Yesterday, Judge Aingeal Ní Chonduin, passing sentence said: “That seems to be the culture, the family owns her that is the way the families function, unfortunately, to go about to steal…,” she said. “It is a different culture, it does not go with our ways and our shops are being robbed blind, I feel sorry for these children.” At an earlier stage in the case, Judge William Early  had expressed concern about the age gap between the girl and her partner. He  had said: “It seems we have a 15-year-old child who appears to be living with a 20-year-old gentleman…This is statutory rape if that man is responsible for the conception of the child.” The DPP had not recommended prosecution. In response, Judge Early remarked “Either there are two different laws for people in this country or there are not. If people are to be treated equally before the law they should be treated equally and there should be similar expectations of people…“I understand that some cultures are impenetrable to a certain extent but they should be treated equally before the law.”

This morning Rajan Zed,  president of the Universal Society of Hinduism and an advocate for Roma rights, asked for Judge Ní Chonduin’s resignation. I want to wait for further media and government reaction (if it comes) for a full post. But for now,  two observations will do.

  • Both judges suggest that crime – theft and statutory rape – characterise the Roma by reason of ‘culture’. This is what Etienne Balibar would call ‘neo-racism’, a racism which does not identify itself as such but which distinguishes between in and out groups on the basis of notionally ‘impenetrable’ culture rather than ethnic origin. It depends for its effect on the sort of denial inherent in Judge Ni Chonduin’s rhetoric – in setting up a ‘billiard ball’ model of culture; untouched by other social forces.
  • The gendered aspect of this racism is evident in the interrogation of the girl’s sexuality, relationships and motherhood. This move recalls the Citizenship Referendum of 2004, which focused on the supposedly deviant motherhood of migrant women and their consequent unfitness to ‘belong’ in Ireland. Siobhan Mullally, Ronit Lentin and – outside the Irish context – Nira Yuval Davis have written about this. The portrayal of Roma as inadequate parents, raising their children for crime, illicitly taking from a vulnerable Irish public, echoes the ‘Roundabout Roma’ controversy of 2007.
Ní Chonduin
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The Exclusionary Rule soon to be before the Supreme Court

October 29, 2009 2 comments

Supreme CourtThe case of DPP v Cash is listed for hearing in the Supreme Court on Monday November 16th 2009. This case may have major implications for the criminal justice process, policing in Ireland and the protection of suspect rights. The case is likely to allow for an exploration of the Irish exclusionary rule in relation to improperly obtained evidence. This rule, first established in People (AG) v O’Brien [1965] I.R. 142 and later modified in People (DPP) v Kenny [1990] 2 I.R. 110; [1990] I.L.R.M. 569, has come in for much criticism in recent times and many see the Cash case as the perfect opportunity for the Supreme Court to address the strict manner in which the rule operates in the context of unconstitutionally obtained evidence.

In O’Brien, a dichotomy was established between evidence obtained in breach of legal rights only and evidence obtained in breach of constitutional rights. In relation to the former, a trial judge holds a discretion to admit or exclude the evidence based on an assessment of the totality of the circumstances, including the nature and extent of the illegality, whether it was based on an ad hoc decision or settled policy, whether it was intentional or unintentional and whether the public interest would be best served by the admission or the exclusion of the relevant evidence.

However, the trial judge has no discretion in relation to the exclusion of unconstitutionally obtained evidence. Once it is shown that there has been a breach of constitutional rights, and there is a causal link between such breach and the impugned evidence, the evidence becomes automatically inadmissible. The only circumstances in which unconstitutionally obtained evidence might be admitted is where there are so-called “extraordinary excusing circumstances” in place which justify its admission, such as the need to rescue a victim in peril or to prevent the imminent destruction of vital evidence. Read more…

Ian Brady and the Right to Die

October 29, 2009 1 comment

I watched a very interesting docu-drama on BBC Alba last night on Ian Brady and the right to die (entitled, predictably enough, Ian Brady – The Right to Die), which has created a minor furore in Scotland about an issue which has largely been forgotten.  

 The Moors murders carried out by Ian Brady and Myra Hindley between July 1963 and October 1965, in and around the Greater Manchester area have, perhaps more than any other murders, passed into the popular consciousness of Britain and Ireland. The victims were five children aged between 10 and 17, at least four of whom were sexually assaulted. The murders are so named because two of the victims were discovered in graves dug on Saddleworth Moor; a third grave was discovered on the moor in 1987, over 20 years after Brady and Hindley’s trial in 1966. Read more…

Irish Language in the Courts, South and North

October 29, 2009 2 comments

The Irish Times reports that Irish was not even among the top ten most used languages in the courts last year. The cost of providing interpretation services for Irish  was less than €2,000 in total during 2006 and fell further to €1,012 in 2007,  according to official figures provided by the Courts Service.  By contrast, over 10,000  requests were made to the Courts Service last year for interpreters for 71  different languages. Polish topped the list. The other main languages were  Romanian, Lithuanian, Russian, Mandarin Chinese, Latvian, Portuguese, French, Czech and Arabic.

Section 8  of the Official Languages Act 2003 provides that a person has the right to be heard and to use the Irish language in the courts.  Irish is recognised as the first official language in Article 8 of the Constitution, but allows the legislature to make provision for the exclusive use of Irish or English in a particular context. The leading case is Ó Beoláin v. Fahy [2001] 2 I.R. 279. You can read about Ó Beoláin in Irish and in English in this article by UCC’s Seán Ó Conaill in the 2008 Irish Student Law Review. In that case, Hardiman J. held in the Supreme Court that:

 it is not possible (at least in the absence of law of the type envisaged in Article 8.3) to exclude Irish, which is the national language and at the same time the first official language of the State, from any part of the public discourse of the nation or from any official business of the State or from the official business of any of its members. Nor is it possible in these contexts to treat it in a manner which is less favourable than the way in which the second official language is treated. Neither is it possible to prevent those who are capable and desirous of using Irish in making their case or in communicating from so doing or to disadvantage them when so doing in any national or official context.
Read more…

Copenhagen Conference

October 28, 2009 2 comments

The upcoming Climate Conference in Copenhagencop15_logo_img is fast becoming a central point for debate and controversy. The Conference is supposed to reexamine the United Nations Framework Convention on Climate Change (UNFCCC) and to consider what steps need to be taken to reduce the rate and pace of climate change and to suggest solutions to the problems that will and have already arisen from the temperature changes that are now inevitable.  The Kyoto Protocol, which contains the cap-and-trade system (a system which allows countries who underused their carbon allocation to sell the excess to another state which has surpassed its limit)  and other legally binding limits on carbon emission and reduction has had limited success in stemming the rate of climate change. The use of ‘soft law’ solutions to international environmental issues has failed in its attempts to gently push states into compliance and it is now admitted even by the United States and China, two countries’ whose carbon emissions are of such a magnitude that without their co-operation it matters little what other states attempt to do, that action must be taken. Mairead blogged about the human rights link on HRinI here.

In Ireland progress towards legally binding limits have been slow with little impetus put into pulling back from the levels of current emissions. The Oireachtas Joint Committee on Climate Change and Energy Security announced today, ‘Unless there is a clear regulatory framework supportive of Ireland meeting its EU and international commitments, Government, investors, emitters and consumers will not have a context within which to take behaviour changing initiatives.’ It also set out Heads of a Climate Change Bill which is based upon what has already been introduced in other states. The proposed bill would include: the setting of national greenhouse gas emission reduction targets, setting of energy and electricity efficiency targets by 2020 and the setting up of  an independent Climate Change Commission. While this sounds marvelous one can’t help but think that this is a preemptive attempt to get around any international commitments that the EU signs up for at Copenhagen.

Lecturer in Human Rights/International Law

October 28, 2009 Leave a comment

The School of Law and the Transitional Justice Institute, University of Ulster (Magee) are seeking a lecturer in human rights/international law for a fixed term post until July 2012.

Further information on this post is available here. Closing date for applications is Friday, October 30 2009.

Asylum Seeking Women and Direct Provision

October 28, 2009 1 comment

R and I AgencySome worrying news from Galway’s and Mayo’s rape crisis centres.  Asylum seeking women are being propositioned for sex outside reception centres. Aoibheann McCann of Galway’s Rape Crisis Centre (GRCC) states that many of these women are vulnerable, after suffering rape in their countries of origin.  20% of those who report rape or sexual abuse to GRCC are asylum seekers.

Sen HealySenator Fidelma Healy Eames has called for random Gardaí (Irish police force) patrols outside direct provision centres to prevent men from preying on vulnerable child and adult asylum seekers. Senator Eames has also called for a more fundamental review of the direct provision system, noting that it costs  €27,000 to provide for an asylum seeker under this system, as compared to an average cost of  €18,000 per asylum seeker who is within traditional welfare state structures. (I have previously blogged on the direct provision system and asylum seekers, these posts can be found here and here).