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Archive for March, 2010

CCHJR 4th Annual Criminal Law Conference

March 29, 2010 Leave a comment

From the Centre for Criminal Justice and Human Rights (CCJHR) blog comes news of the 4th Annual Criminal Law Conference which will focus on victims in the criminal justice system.

Further information on the conference, and registration details, can be found here.

Kenny on Carson & Ors. v The United Kingdom

March 29, 2010 1 comment

We are delighted to welcome this guest contribution from Jo Kenny, Legal Officer at the Public Interest Law Alliance (PILA), a project of the Free Legal Advice Centres (FLAC). You can learn more about Jo on our guest contributors page.

On 16th March 2010 the Grand Chamber of the European Court of Human Rights delivered its judgment in Carson & Ors. –v- the United Kingdom (Application No.42184/05). This is the end of Mrs Carson’s long road in challenging UK state pension policy.

Mrs Carson emigrated to South Africa and subsequently retired there. She had previously worked in the UK and made full contributions to the UK state pension. Indeed she continued to make such contributions on leaving. However when her state pension came into payment, it was not index-linked – it was frozen and would not be uprated to reflect the effect of inflation. The UK does not index-link state pensions paid in South Africa. The question for the Grand Chamber was whether this policy unlawfully discriminated against Mrs Carson on the basis of her place of residence, in breach of Article 14 in conjunction with Article 1 Protocol 1. Read more…

Modernising Jury Selection: Law Reform Commission’s Consultation Paper on Jury Selection

March 29, 2010 2 comments

 

The Director of Public Prosecutions will launch the Law Reform Commission’s Consultation Paper on Jury Service this evening.   The Consultation Paper will be available here this afternoon.  The Commission is examining jury service as part of its Third Programme of Law Reform 2008-2014.  It received a large number of submissions as part of its consultation on its work programme in 2007 calling for a review and modernisation of the law regulating juries.   This is the first substantive review of jury service in Ireland since the introduction of the Juries Act 1976 (which was based largely on recommendations contained in Reports of the Committee on Court Practice and Procedure, 1965)

Read more…

Irish Blog Awards 2010

March 29, 2010 Leave a comment

The Irish Blog Awards took place last Saturday in Galway. HRinI was a finalist for the best news/current affairs blog sponsored by Dediserve. The prize in that category rightly went to Maman Poulet, run by the irrepressible Suzy Byrne. We were ably represented by Liam Thornton on the night.

The IBAs were started by Damien Mulley fadó fadó (in internet time at least) and have grown from a relatively small gathering to a large and very fun annual event with numerous side events and the inevitable morning-after brunches. It is, as an event, a real example of how online activity can translate into meaningful off-line interactions and events. It is also an enormous undertaking organisationally for which Damien and the whole team deserve a great deal of gratitude. I was pleased this year to be a judge in the IBAs and I can attest to the quality of the many blogs I judged along the way, finding myself almost never in a position of awarding a poor mark.

Blogging is an important activity—it is a way for people to express their own views, a way to share emotions, a way to shed light on events or perspectives that perhaps do not make waves in the main stream media, a way to present news and current affairs with a different audience or perspective in mind. Academic group blogging is really beginning to take off in Ireland, with the charge perhaps being led by Irish Economy and now very ably joined by Political Reform. As a group academic blog, HRinI was conceived of as a way to do four things: (1) to aggregate information about Irish scholarship and events in human rights; (2) to provide quick-reaction commentary on what is happening in Ireland from a human rights perspective; (3) to create a space where the academy, practitioners, NGOs and all other interested parties can interact; and (4) to bring scholarship and legal commentary out of the university and democratise it to the extent that a dozen or so (mainly early career) academics can.

We certainly hope to continue to fulfil these functions over the next year. As always, we are delighted to hear suggestions and feedback from readers either in the comments here, on our facebook page, on twitter, or by contacting us (all our details are here).

Symphysiotomy in the Courts: Kearney v. McQuillan

On Friday the Supreme Court cleared the way for Louth woman Olivia Kearney to bring an action in respect of the symphysiotomy which was performed on her in Our Lady of Lourdes Hospital Drogheda in 1969, when she was 18.  The judgment is here. We blogged about the question of symphysiotomy in February. The Minister for Health has since commissioned a report into the practice from the Institute of Obstetricians and Gynaecologists. Although symphysiotomy is often argued to be justified where it would be dangerous for a woman to attempt to deliver her baby without it, Ms. Kearney was – for reasons which are not clear – subjected to the operation after the birth. Her argument is that ‘there was no justification whatever, in any circumstances, for the performance of symphysiotomy on the plaintiff at the time it was performed and following delivery by caesarean section’. The hospital, as Hardiman J. noted, will be able to ‘defend the case by establishing in credible evidence some realistic reason for the procedure in the circumstances actually prevailing in relation to the plaintiff in 1969’.


‘Am Only Saying It Now’: New Report from AkiDwA

AkiDwa, a leading minority ethnic-led national network of African and migrant women living in Ireland, has published Am Only Saying It Now; a report which documents the experiences of female asylum seekers in Ireland, and gives space to a great deal of important direct testimony by women living in direct provision centres. Susan McKay, who is Director of the National Women’s Council of Ireland, contributed a very insightful response to the report to the Irish Times on Thursday. The report is short, accessible and thought-provoking. It recommends that:

• Gender guidelines in asylum and reception processes should be introduced and implemented [3]. Gender guidelines in asylum processes should be introduced into pending immigration legislation in Ireland.

• A mandatory code of conduct, a comprehensive training programme and Garda vetting should be introduced promptly and fully implemented for all personnel, management, accommodation owners and government department officials working with individuals seeking asylum, protection and leave to remain in the direct provision accommodation system.

• Mandatory training and capacity building should be conducted on a regular basis with key providers of State services to individuals seeking asylum, protection and leave to remain and should include gender based issues and the prevention of, and response to, abuse and exploitation.

• An independent, transparent and confidential complaint and redress mechanism should be fully put into place for individuals seeking asylum, protection and leave to remain, and made accessible to all residents in direct provision.

• An independent commission of inquiry should take place to assess the mental, emotional and physical effects of long term confinement of individuals seeking asylum, protection or leave to remain in Ireland

Cardinal Brady and the Civil Action Taken by alleged victim of Brendan Smyth

The Irish Times reports that Cardinal Seán Brady, the besieged leader of the Catholic Church in Ireland, has said today that he wants a “just resolution” to a civil case taken against him by an alleged victim of the convicted child abuser Father Brendan Smyth. The man is suing Cardinal Brady in his capacity as Archbishop of Armagh and as the Catholic Church’s representative in Ireland. The action was initially taken some 13 years ago, in 2007. The Cardinal has asked his lawyers to engage with the complainant’s solicitor “with a view to progressing the case”.

The man claims he was repeatedly sexually abused by Brendan Smyth in Dundalk in the early 1970s. According to the Irish Times, the man is alleging that the Catholic Church called an ecclesiastical court to deal with the allegations and assured the man that Smyth would never be placed in a siutation where he could abuse children. Read more…

“Romeo and Juliet”: Gender discrimination law challenge rejected

March 26, 2010 2 comments

The High Court has today rejected a challenge to the Criminal Law (Sexual Offences) Act, 2006 which was based on a claim of gender discrimination. The case involved a young man, now aged 18, who had sexual intercourse with a girl of 14 when he himself was 15.

The legislation in question provides for the offences of “defilement of a child under 15 years of age” (s. 2) and “defilement of a child under 17 years of age” (s. 3). Under both of these provisions it is an offence to engage in a sexual act with a child under the relevant age. However, s. 5 of the 2006 Act states that

A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.

The claim before  the High Court was that the 2006 Act involved old-fashioned gender discrimination, which had no legitimate justification. Read more…

Carlin v DPP: Prosecutorial Discretion and the Decision (not) to Prosecute

March 25, 2010 2 comments

Last week the Supreme Court issued an important decision on the right of the DPP to reverse a previous decision not to prosecute. The decision in Carlin v DPP confirms the partial immunity from judicial review enjoyed by the DPP in relation to the decision to prosecute.

Up until the 1980s, the DPP enjoyed a practically absolute immunity from judicial review of his discretion, however that position has been modified some what to conclude that a “special protection” attaches to his decisions to prosecute or not. In Eviston v DPP [2002] 3 I.R. 260 the Supreme Court affirmed the application of fair procedures to the decision making processes of the DPP. Without going into the details of Eviston (see Micheal O’Higgins SC’s incisive analysis here) the Supreme Court held that the Director was entitled to review an earlier decision not to prosecute and to arrive at a different decision even in the absence of new evidence and was not obliged in either instance to give reasons. Stress caused to the applicant by the initiating of the prosecution following the communication to her of a decision not to prosecute would not, of itself, afford her legal grounds for an order halting the prosecution. The Court also found that the DPP was required to apply fair procedures in the exercise of his statutory functions in particular circumstances and that, on the facts of this particular case, the DPP had failed to accord the applicant fair procedures and on that basis the prosecution should be stopped. An important part of the Court’s finding in this regard was the communication to Mrs Eviston of the decision not to prosecute. Read more…

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Passports, Industrial Action and Constitutional Rights

March 24, 2010 Leave a comment

At a meeting of the Oireachtas Committee on Foreign Affairs today, Fine Gael’s Alan Shatter T.D. suggested that recent industrial action by public service workers in the passport office may be breaching constitutional rights.

The industrial action in question has caused a backlog of over 40,000 passport applications and citizens are currently experiencing long delays in acquiring their passports. As noted by Deputy Shatter, the right of Irish citizens to travel abroad and to obtain a passport (subject to meeting the relevant requirements) was established as constitutional in nature by the Irish courts in the 1970s. In State (M) v A.G. [1979] IR 73, it was held by the High Court that Irish citizens have an unenumerated constitutional right to a passport (with certain conditions applying and other restrictions of a legal nature operating).  That particular case dealt with s.40 of the Adoption Act, 1952 which forbade the removal of certain categories of children from the State and made no allowances for exceptions to that rule.  This was found to be a breach of the recognised constitutional rights. Read more…