New Garda Sex Offences Unit to be Established

We at Human Rights in Ireland welcome the announcement by Garda Commissioner Fachtna Murphy yesterday that a new Garda Unit dealing with sex offences is to be established. Speaking at the Annual Conference of the Association of Garda Sergeants and Inspectors in Galway,  Commissioner Murphy said that the publication of the  Murphy and Ryan Reports had “highlighted shameful history of child sexual abuse in this State.”  He continued:

We now see the community looking for answers as to how such abuse occurred and An Garda Síochána has had to ask its own searching questions following critical findings and comment about the manner in which some complaints were investigated.

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.

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

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.

HSE Dublin North East Region and complaints of child abuse

Yesterday’s Sunday Tribune reports that from 2006-2008, the HSE‘s Dublin North East Region received 33 complaints of physical or sexual abuse from children in foster care, none of which resulted in criminal prosecutions. The article states:

In two of the most serious instances, the Director of Public Prosecutions (DPP) opted not to pursue a criminal case despite HSE and garda investigations into the complaints and the removal of one of the foster couples concerned from the HSE’s fostering register.

At least seven other allegations of physical or sexual abuse were also noted as “confirmed” following investigation by the HSE’s own childcare experts. But none led to a criminal prosecution or conviction.

While of course there is no way of knowing whether any of these allegations were well founded, the figures highlight the importance of a thorough and sensitive investigation in the prosecution of child abuse. Children in care (the vast majority of whom are in foster care) have already suffered through neglect, abandonment and/or physical or sexual abuse. The Gardai and HSE social workers play a critical role in interviewing the child and empowering him or her to provide a statement that can ground a prosecution. Due to the secretive nature of the offending, prosecutions for child abuse, particularly child sexual abuse, often pivot on the complainant’s account of events. The importance of gaining a detailed statement from the child cannot be underestimated; it will form the basis on which the DPP will decide whether or not to charge the suspect, it will form the notice of evidence to the accused on the Book of Evidence and, if the matter proceeds to trial, it is the statement around which the examination and cross-examination of the child will centre.

The crucial nature of the initial statement was recognised as far back as 1992, in section 16(1)(b) of the Criminal Evidence Act. That section provides for the videotaping of a child’s statement and the subsequent playing of that videotape at the trial. Inexplicably, however, given the probative advantages (from both a defence and a prosecutorial perspective) to be gained from having the child’s statement on record from day one, the section was not commenced until October 2008. While some members of the gardai and the HSE social workers have been trained to carry out videotaped interviews (see  Úna Ní Raiftearaigh, S.C.’s excellent article in the Bar Review last November), the exact figures are far from clear. Furthermore, not every child in foster care has a social worker assigned to him or her directly – for example, only 40% of children who are fostered by their relatives are currently assigned a social worker  (see the Health Information Quality Report into Children in Care , about which I blogged here), making the issue of reporting even more difficult for these children. If Irish society is serious about tackling the sexual abuse of children, it is essential that the authorities facilitate courageous children who seek to engage with the criminal justice system.  A first step would be the development of a coherent policy on collaboration between the HSE and the Gardaí on investigating and interviewing children in care who report abuse. As well as addressing the psychological and communication difficulties facing child complainants in abuse cases, the policy might also deal with the gathering of independent material and other corroborative evidence.

(See here for Nicola Carr’s blog about children in care and the proposed Constitutional Amendment on Children’s Rights as part of last Friday’s Children’s Rights Referendum blog carnival.)

ACJRD Annual Report 2009: Perspectives on Sex Offending

The Association for Criminal Justice Research and Development (ACJRD)’s 12th Annual Report was launched last week by Minister for Children Barry Andrews. The Report, Perspectives on Sex Offending- The Victim and the Offender contains the proceedings of the ACJRD’s October conference, and is an excellent source of information for researchers and criminal justice professionals dealing with sex offending.

Attendees at the plenary sessions were treated to fascinating papers on the reform of the Scottish investigation and prosecution of sexual crimes; attrition in rape cases; policy formulation on the management of sex offenders; and the effectiveness of psychological intervention with male sex offenders.

Of particular interest to criminal justice professionals and researchers are the insights offered by Professor Michele Burman of the Scottish Centre for Crime and Criminal Justice Research into attrition in rape cases. Prof Burman presented some of the findings of a 2009 Daphne Study which looked at attrition rates across the EU. One very welcome finding is that reporting rates have increased across Northern and Western Europe. In fact, the Irish rate of reporting has increased by 505% since the 1970s. Unfortunately, however the number of prosecutions has not kept pace with this increase, and stood at a mere 20% of reports in 2007 (down from 73% in 1977).

LRC Report on Criminal Defences

(from http://www.lawreform.ie)

The Law Reform Commission’s Report, Defences in Criminal Law was published yesterday and is available on their website. The lengthy Report is the result of extensive research and consultation, including a seminar and three consultation papers. The Report deals with the defences of legitimate defence; public defence; provocation and duress and necessity. The main recommendations of the Commission’s Report are available in the Commission’s press release here.

The Irish Times reports that the Minister for Justice Dermot Ahern intends to enact the draft Criminal Law (Defences) Bill 2009, which is attached as an appendix to the Report.

While space does not permit a detailed analysis of the recommendations, this blog discusses the recommendations relating to legitimate defence and provocation. For the rest of the recommendations, see here.

Legitimate Defence:

The Commission recommends a new defence of ‘legitimate defence’ to replace that of self-defence. The new term reflects the justificatory (as opposed to excusatory, as the partial defence of provocation) rationale underlying the defence; in other words, society is not condemning the defendant’s actions, because they are viewed as being in some way justified or required by the exigencies of the situation facing the defendant. It is therefore a full defence to a charge of murder.

The Commission’s recommendations are grounded in 4 key requirements, designed to help jurors navigate a path around discriminatory and biased assumptions and wholly subjective standards. These core requirements are:

(1) A threshold requirement concerning the type of unlawful attack on the person, especially where lethal force is used in response

(2) The imminence or immediacy of the attack

(3) The necessity of the defendant’s use of force including a duty to retreat where it is safe to do so.

(4) The proportionality of the force used, including where disproportionate lethal force is used. Crucially, the test of whether the use of force is necessary and proportionate is based on an objective standard of a reasonable person. Excessive self-defence is retained for cases in which the force used was not objectively necessary and proportionate.

In and of themselves, these recommendations are not particularly revolutionary. The case-law developed in relation to the defence of self-defence contains all of these requirements. The problem however is that they were bundled up into the rather confusing concept of “reasonable in all the circumstances”, thus forcing trial juries with the difficult takes of unpacking the meaning of reasonable and applying it to the defendant in the case before them.

The most newsworthy recommendations in the Report are likely to be those relating to the defence in the home. According to the Commission:

“ The Commission recommends that the general requirements for legitimate defence (Self-defence) should apply to defence of the dwelling and its vicinity.

The Commission recommends that the general rule that a person should retreat where possible does not apply where the attack is in the home.

The Commission also recommends that, if all the requirements of the defence are met, use of lethal force would be a complete defence to murder and would lead to an acquittal.”

This recommendation enshrines the castle doctrine – in other words, the defendant does not have to retreat when faced with an unlawful attack in his or her home. In this recommendation the Commission is echoing the judgment of the Court of Criminal Appeal in DPP v Barnes [2006] IECCA 165.  There the Court confirmed the constitutional protection afforded to the dwelling house by Article 40.3.3. Furthermore, under section 8 of the Non-Fatal Offences Against the Person Act 1997 the use of force is lawful in order to protect property. The issue of course is the amount of violence employed and its relation to the threat posed. Indeed the Court in Barnes stressed, “it is ridiculous to suggest that a private citizen, however outraged, may deliberately kill [a burglar] simply for being a burglar.”

Commissioner and Professor of Criminal Law at UCD Finbarr McAuley identifies the need for clarity in the law in this area:

“The current law leaves everything caught up in a vague rubric of reasonableness. We need to codify the law and set out limits in terms that give substance to overarching legal concepts,” he said.

“Shooting a man in the back as he flees in retreat can hardly be described as necessary. But on a vague reasonableness basis, who knows what a jury might think?”

Crucially, the changes proposed in section 3 of the Draft Bill in relation to the use of lethal force against an intruder, are prefaced by the words “ Without prejudice to the generality of section 2”. Section 2 contains the requirements of imminence, threshold, (which are repeated in section 3); necessity to retreat, where it is safe to do so (this is even in the case of the home) and proportionality.

If a person is attacked in their own home, it is highly likely that the requirement of imminence will be satisfied without any recourse to arguments about the importance of the dwelling home. Simply put, if the homeowner faced an imminent threat to his or her life or bodily integrity, then a proportionate and necessary response would quite possibly be the use of lethal force. In reality the threat to the home often also encompasses the threat to the homeowner’s personal safety. However, in cases where the intruder merely threatens the homeowner’s property interests- for example by simply entering the house, unarmed, to steal the car keys, the jury would surely not be expected to find that the use of lethal force was justified? This is the kernel of the controversy raised by the Commission’s recommendations. There is a dissonance between the Commission’s recommendations and the provisions of the Draft Bill. While the Report and the recommendations emphasise that the force used in defence of property should be subject to the requirements of imminence, necessity and proportionality,(p.45)  these factors are not made clear in the provisions of the Draft Bill. Section 3 sets out that a person is justified in using lethal force in his dwelling-or in the vicinity  of the dwelling- if that force is by way of a defence to the threat of or the use of serious personal harms,(eg rape, death)  but importantly, also to repel the entry or occupation fo eth dwelling or damage or destruction of the dwelling. It would therefore appear that the Commission’s Draft Bill goes much further than the CCA  did in Barnes and seems to be placing the right to defence of property above the right to life of the intruder. The constitutionality of such a move is doubtful. Indeed the courts will be vigilant to ensure that homeowners do not cross the line from defence  to revenge, as happened in a recent case in Britain. The ICCL has criticised the provisions  as a “have a go charter” that will place homeowners at increased risk of , by encouraging them to stand their ground even when it is safe to escape. However it is precisely this didactic function of the criminal law reform that Minister Ahern is keen to stress. He is cited on the Irish times website as saying that:

“This is putting burglars on notice that if they do go into houses in this way that the person in the house is given more protection than here-to-fore.”

In light of the predictable rise in property crime that tends to accompany recessions, it will be interesting to see what the courts, and more importantly, what jurors will make of  this defence, if enacted. Certainly while its instrumental character is consonant with current cultural narratives surrounding property crime and crimes against the elderly, it remains to be seen if the government will see fit to place on a clear statutory footing the requirements of necessity, proportionality and imminence, when considering the draft legislation.

In this regard it is also important to remember the case of DPP v Nally [2006] IECCA 128, which raised interesting questions about the role of the jury in the legitimacy of the criminal justice process. In that case the defendant’s first conviction for manslaughter was quashed by the Court of Criminal Appeal because the trial judge had failed to allow the full defence of self-defence to go to the jury, holding instead that the evidence supported a conviction for murder or for manslaughter, but not an acquittal. The trial judge’s insistence on a “truncated” version of self-defence was fatal, essentially because it undermined the legitimating function of the jury in the criminal justice system. In its report, the Commission notes that “The impact of the Court of Criminal Appeal decision in Nally cannot be underestimated in terms of procedural issues regarding self-defence and in terms of the relationship between judges and jury” (at p.42). However the Commission stressed that it was concerned with the substantive content of the defence.

Provocation:

The Commission also makes a number of recommendations relating to the defence of provocation. Space does not permit a detailed analysis here. However the key issue to note is that the Commission seems to be keen to inject an element of objectivity into the assessment of the defendant’s response to the allegedly provocative act.

“The defence should be based primarily on whether the provocation (words or acts,

such as assault) was such that it was reasonable for the accused, based on the

standard of an ordinary person, to have lost self-control. “

This is a most welcome development in light of the excessively subjective bias of the provocation defence under the current law. Indeed, in People (DPP) v Davis [2001] 1 IR 146,157- The Court of Criminal Appeal accepted that it is virtually impossible to disprove evidence of provocation once it has been introduced under the rubric of the subjective test established under DPP v MacEoin People (DPP) v Mac Eoin [1978] IR 27

In relation to cumulative provocation, the Commission emphasises that the focus should not solely be on the temporal link between the allegedly provocative act and the defendant’s actions. Instead ” the the presence or absence of an immediate response to provocation should be a matter which a jury is to take into account, along with all the other evidence, in deciding whether the accused lost self-control. This could be especially relevant in the context of cumulative violence.”

While the defence of Battered Women Syndrome has not been embraced in Irish law, a not dissimilar version was accepted by the Central Criminal Court in People (DPP) v Hennessy (Finnegan J) October 2000 and April 2001, where it appears to have been accepted that evidence of the “surrounding circumstances” leading to the killing could go to the jury on the issue of provocation. (Irish Times 11 October 2000 at 4 “Husband Killed wife in a moment of rage”).  Given that the circumstances in question were that the accused was suffering from stress occasioned by the fact that he had been suspended from his job on suspicion of embezzlement, and that the trial judge acknowledged the deceased’s contribution to his violent out burst – she had told him he was “no good” and had “slapped him across the face” – appeared to be of a very low level., the trial judge still allowed the appeal to go the jury. The jury found that there was a sudden temporary loss of self control. It was noted that the accused suffered from a very sever stress when the embezzlement began, but that he was responsible for the stress thus created.  He was sentenced to 8 years for manslaughter.

Last Friday a jury accepted a plea of diminished responsibility (a relatively new partial defence, created by the Criminal Law (Insanity) Act 2006) and acquitted a woman of the murder of her husband and found her guilty of his manslaughter.  The Irish Times Report is here.

The defendant hit her husband on the head 23 times with a hammer. Over six days the jury heard “harrowing evidence’ of an extremely violent and abusive marriage. The Sunday Tribune carries an evocative portrayal of the litany of abuse endured by the defendant and her children at the hands of the deceased.  Two psychiatrists who gave medical evidence on behalf of both the defence and prosecution agreed that the defendant was suffering from a mental disorder, i.e. severe depression, at the time of the killing.

From a critical feminist perspective, the construction of female anger and violence as occurring in circumstances of diminished responsibility is consonant with traditional legal systems construction of women defendants as mad or bad. The hystericisation and medicalisation of female defendants is in stark contrast to the male conception the defence of provocation.  Furthermore, quite apart from the issues of gendered binaries, is that of the medicalisation of women’s stories of lethal violence, where the ‘truth’ is filtered through a series of professional discourses, including psychiatric and legal discourses, that distances the public and the jury from the reality of violence against women and the reasons why they might use lethal violence.

While the Commission does not deal directly with these issues, it opens the door to a broader conception of the meaning of ‘relevant circumstances’, stressing that “[t] he fact that the killing did not immediately follow the provocation does not, in itself, mean that the defence cannot be raised. Instead, the presence or absence of an immediate response to provocation should be a matter which a jury is to take into account, along with all the other evidence, in deciding whether the accused lost self- control. This could be especially relevant in the context of cumulative violence.”

It remains to be seen whether this recommendation signposts a movement towards a broader conception of provocation, or whether women defendants will have to continue to resort to medicalised discourses in pleading mitigating circumstances.

Conference Report: Sibéal Listens: Fresh Voices and New Directions in Feminist and Gender Research

Last Thursday and Friday, the Women’s Studies Centre at the School of Social Justice, University College Dublin hosted Sibéal Listens: Fresh Voices and New Directions in Feminist and Gender Research, a one and a half day interdisciplinary postgraduate conference on gender and women’s studies. The conference, organised by feminist postgraduate network Sibéal, attracted budding feminist academics from a broad sweep of disciplines, with papers ranging from topics as diverse as gender and security, to women in Mexican Filmmaking, to low income women’s strategies for coping with consumerist culture. For a list of abstracts, speakers and delegates, see here.

The plenary session was chaired by Dr Katherine O’Donnell of UCD and featured a lively and optimistic discussion on the future of Sibéal. Panellists Dr Jennifer Redmond (NUI Maynooth) and Ms Maria Almquist (NUI Galway) conveyed their delight at the recent resurgence in interest in feminist and gender based research in Ireland, particularly in the last year. Delegates were overwhelmingly enthusiastic about the possibilities that lie ahead in terms of feminism being used to illuminate areas of research which would previously have been impervious to the feminist gaze, such as business studies, criminal law and security studies.

Sibéal (which means “she-mouth”) is a grassroots initiative of postgraduate students that aims to provide a platform for feminist networking and discussion. The website includes a list of members, and their research interests, and provides information and news about forthcoming conferences and publications in the field. The forum also creates a space for dialogue and interaction between feminist researchers at Irish schools and universities.

Any postgraduate researchers who incorporate feminist or gender based approaches (including masculinity studies) in their work, and who would like to join Sibéal, should contact the board at www.sibeal.ie.

The conference also featured the first Call for Papers for recently relaunched Irish Journal of Feminist Studies. To find out more about the Journal, please see the Sibéal website.

Implementation of the Ryan Report and Protection of Children in Care

Following the publication of the Report of the Commission to Inquire into Child Abuse (“the Ryan Report”) in May, Irish society has had to confront the appalling history of abuse, both sexual and physical in State-run institutions. The Ryan Report’s finding (Executive Summary at p. 21) that child abuse was endemic in Irish industrial schools for boys is shocking and difficult to grasp in its magnitude. The publication of the much anticipated Report of the Commission of Investigation into the Dublin Archdiocese (about which Pádraig posted here), will almost certainly compound the public sense of anger and frustration that the most vulnerable in society were victimised in the most horrific ways. In this climate of justified anger and shock, it is important to remember that the welfare of the children who are currently in State care is of paramount importance.

In this context, the recent publication of the Health Information Quality Authority National Children in Care Inspection Report is an urgent and timely reminder of the need for better policies and safeguards for the protection of children in State care. The Report reviews the findings of 38 inspections carried out by the Authority in 2008 of children’s residential care centres operated by the HSE and of foster care services operated in a HSE region.

The Safety of Sex Workers

The launch of a handbook for sex workers highlights the links between the sex industry, drugs and violence against sex workers. The booklet, “Stay Safe … Stay Wise” is published by Chrysalis Community Drug Project and advises sex workers on how to reduce their exposure to the risk of violence and disease.

The pragmatic and risk reduction purpose of the booklet is in keeping with recent research emphasising the exposure of drug-using sex workers to violence and to increased health risks. For example, the Report published earlier this year by the National Advisory Council on Drugs  recommended that policy makers and service providers need to focus on the broader societal and environmental factors affecting drug using sex workers. In particular it stressed the need to improve access to education and housing and improving employment prospects.