G and D: The Forced Marriage (Civil Protection) Act 2007 in Northern Ireland

April 20, 2010 1 comment

In November of last year the Ministry for Justice reported that some 86 forced marriage protection orders were made in the first year of operation of the Forced Marriage (Civil Protection) Act 2007 (see the Guardian on the shortcomings of the order scheme here).

Last month, in the case of G and D (Risk of Forced Marriage: Forced Marriage Protection Order) [2010] NIFam 6 (26 March 2010),  Stephens J. examined these orders in what appears to be Northern Ireland’s first major case under the Act. The judgment is available on BAILII and the Belfast Telegraph reports here. G and D are sisters of Pakistani Muslim descent living in Northern Ireland. They are aged 12 and 14 and have 4 older brothers. When the girls were aged 10 and 11, a Trust, as the judgment has it:

brought wardship proceedings on the basis that the parents had arranged for G and D to travel to and remain for a number of years in Pakistan so that they could be educated in that country. The Trust alleged that this was a pretext, that no arrangements had been made for their education [The relevant facts are set out at [42]-[57]] and in reality, based in part on the previous experience of the forced marriages of their brothers S and T [now in their 20s] in 2005, [the High Court had determined in the course of wardship proceedings brought in respect of T in 2006 that he had indeed been forced to marry. The circumstances of his religious marriage ceremony are described at [31]-[41]] that once in Pakistan they were to be isolated, attended to and prepared so that they also could be forced  to marry… . The Trust also contend[ed] that the parents either chose to ignore the distinction between a forced and an arranged marriage or have no insight into the emotional and physical pressures that they have applied in the past and for instance still apply in a different context in relation to [their son] U [who had been excluded from the family home for refusing to obey rules established by the mother]. [Their sons U and V had visited Pakistan without being forced to marry].

Read more…

Fathers and the Law seminar at DCU postponed due to volcanic ash aviation disruption

April 19, 2010 Leave a comment

Unfortunately, the seminar on “Fatherhood, Law and Personal Life: Rethinking Debates about Fathers and Law” which was to be delivered by Professor Richard Collier at Dublin City University on this Wednesday April 21st has had to be postponed due to the current disruption in aviation caused by the cloud of volcanic ash. It will be re-arranged in the Autumn – details to follow.

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The Murder of Toyosi Shittabey and Racial Tension in Dublin

April 19, 2010 2 comments

Some weeks ago (on Good Friday, in fact) a 15-year old boy was killed in Tyrellstown, Co Dublin. Toyoshi Shittabey was walking home from the swimming pool when, it is reported, he and a friend were subjected to a racist verbal assault. It has been reported that while Shittabey and his friend walked away from the scene, the assailants went to a house, acquired a knife, followed the youngsters to their car, and stabbed Shittabey in the heart. The Gardaí have charged one young man with manslaughter. Although there has been a huge public outpouring of grief and solidarity with the family of Toyoshi Shittabey and with the Nigerian community in Tyrellstown in the wake of the stabbing, this murder exposes potentially deep racial fault-lines in Irish society and poses difficult but important challenges for the Gardaí. It also poses difficult questions for the criminal law in this jurisdiction.

The Gardaí’s investigation has not officially ended, and it is possible that the final charge will in fact be murder and not manslaughter, but the investigation of this crime takes place within a palpable atmosphere of racial tension and poses challenges that one hopes the Gardaí will be able to face. Should it come to that point, the sentencing process will also be challenging for the court. If it is established in the course of the trial (whether that is a trial for manslaughter or for murder) that this homicide was racially motivated, ought that to be taken in to account in the sentencing decision? We previously discussed the lack of hate crimes legislation in Ireland here, and this may well be a case that helps us to gauge how well our criminal justice system can calculate prejudice in sentencing without specific law in this relation. However, the killing of Toyoshi Shittabey is not only a challenge for the Gardaí and the Courts; it is a challenge for Irish society in and beyond Tyrellstown. Read more…

The Labour Party’s “One Ireland” and a Constitutional Convention

April 18, 2010 4 comments

Last night Éamon Gilmore gave the leader’s address at the Labour Party’s annual conference. Entitled ‘One Ireland’ the conference has had a distinctive emphasis on moving forward, as a country, away from what is conceived of as broken or corrupt and towards a more mature political life in this jurisdiction. The Gilmore speech, which can be watched in full here or read here, was extremely strong on this theme and—regardless of the colour of one’s politics—is worth watching or listening to as an exercise in oratory and speech writing. What struck me in particular, however, was the proposal by Gilmore that there would be a constitutional convention with a new constitution being ready for enactment in 2016 (at the centenary of the 1916 Rising).

I have written before on HRinI of my anxiety about populist constitutional reform. What Gilmore suggested seems to have been something at once more radical and less populist than what we have seen proposed by Fine Gael recently. Gilmore suggested that we would establish a constitutional convention made up of experts and a randomly selected portion of the community (he did not mention how large the sample would be) to debate and propose new constitutional structures. The justification given for this was that the Constitution is a document written in the 1930s for the 1930s when there was considered to be one Church in Ireland and one role for women (I am paraphrasing but, as you will hear if you listen to the speech, not by much). Similar themes were recently in evidence at the excellent political cabaret, Leviathan, which suggested a new Constitution and Second Republic earlier this year. Fine Gael’s New Politics which we have written about before suggests some major constitutional reforms but does not suggest a whole-scale redrawing of the Bunreacht. Read more…

Student Law Reviews at TCD and UCC

April 17, 2010 1 comment

The latest edition of the Cork Online Law Review is now available (free) here and features a number of interesting articles by undergraduate and postgraduate law students from Ireland and abroad. Articles likely to be of interest to our readers include:

The editors invite submissions for the 10th edition by December 12 2010. I should mention that two of us here at HRinI were on the first editorial board of  the Review while many more of us had our first publications in the journal. Although it is terrifying to think that COLR will be 10 years old in no time, it is wonderful to see that the publication has gone from strength to strength.

The latest edition of the Trinity College Law Review, dedicated to the memory of the late Gernot Biehler, was launched in February. Subscription information will be available on the website shortly and articles of interest include:

  • Lesbian Co-Parenting and Assisted Reproduction
  • I Can’t Get No Satisfaction : An Analysis of the Influence of the European Convention on Human Rights on the Repossession of Public Housing in Ireland
  • The Case for an Originalist Approach to Constitutional Interpretation in Ireland
  • Maximising Justice: Using Transitional Justice Mechanisms to Address Questions of Development in Nepal
  • Subsidiarity and Seanad Eireann
  • Informed Consent, Patient Autonomy and Causation: Competing Perspectives – The United States, Ireland and Germany
  • Roche v Roche: Some Guidance for Frozen Embryo Disputes
  • An Analysis of the Courts’ Interpretation of Article 40.1 in JD  v Residential Institutions Redress Committee

Student-run law reviews are thriving in Ireland at the moment. NUI Maynooth has established a new one while the next editions of the UCD Law Review (available on HeinOnline), the Hibernian Law Journal (Blackhall Place)  and the Irish Student Law Review (King’s Inns) are in the pipeline.

Whitaker on Politics and the NI Bill of Rights

April 17, 2010 Leave a comment

The latest issue of Irish Political Studies features an article by Dr Robin Whitaker entitled “Debating Rights in the New Northern Ireland”. We have written before (here, here, here, here, here and a guest contribution here) about the difficulties ongoing in the NI Bill of Rights process and this article lends a useful political science perspective to this debate and ongoing commentary. The abstract states:

The 1998 Belfast Agreement provided for a Bill of Rights ‘to reflect the particular circumstances of Northern Ireland’. Opinion poll evidence indicates strong approval for such a charter. Diverse civil society groups have offered support, as have all the main parties. Yet, over a decade on, the Bill of Rights remains among the unfinished business of the Agreement. What Northern Ireland’s ‘particular circumstances’ demand in terms of codified rights is a matter of considerable dispute. Political unionism supports a narrow interpretation and a minimalist bill; nationalists argue for an expansive reading, encompassing socio-economic issues. Debate about rights looks at first glance like just another battleground for constitutional conflict. However, an examination of the scope of the debates together with their substance complicates any such reductionist reading, although this complexity tends to recede where the demands of formalised cross-community consent are strongest. Read more…

Debating the role of the Special Criminal Court

April 15, 2010 6 comments

The Association of Garda Superintendents held their annual conference yesterday and the issue of the use of the Special Criminal Court was discussed. Supt Jim Smith, President of the Association, called for greater use of the Special Criminal Court in gangland cases for fear of jury intimidation. He referred in particular to a recent incident where lists with the names and addresses of jury members were found during a search on the home of an associate of a leading gangland criminal. In this special post Vicky Conway and Fergal Davis explore the pros and cons of this suggestion.

Vicky Conway writes:
The case referred to at the AGS conference yesterday and the finding of a list of jurors’ names is indeed a very worrying development. On the back of this the Association expressed the view that the [non-jury] Special Criminal Court could be used more and thereby negate the danger to jurors.

By way of background the Criminal Justice (Amendment) Act 2009 scheduled a number of organised crime offences, meaning that they must be tried before the Special Criminal Court. The DPP retains the power to direct any other offence to the Special Criminal if he feels the ordinary courts ‘are unable to secure the effective administration of justice.’

The use of the Special Criminal Court is controversial in Ireland, both because of the denial of the right to trial by jury and because it has now existed in Ireland on an emergency basis, without regulating legislation, for close to 40 years. International bodies such as the UN have expressed concern at its continued existence given the Peace Process in Northern Ireland. It must of course be conceeded that when real threats are posed to jurors questions must be asked about the operation of the jury system, but that should not automatically mean that in non-emergency situations we deny citizens of this State their rights.

In the context of the facts as recounted yesterday (re a list of names and addresses being found in a criminal’s home) the appeal of the Special Criminal Court is great. However, this author would urge caution before coming to that conclusion. An investigation into how those lists came into that person’s hands must be conducted swiftly. The regulations around who has access to those lists then need to be reconsidered. In response to AGS’s statement yesterday the Minister for Justice stated that at present defence lawyers have access to these lists as they are entitled to know whether neighbours or friends are on the panel. This could clearly be tightened up and such checks could be performed independently. This is perhaps symptomatic of the general situation, whereby the Special Criminal Court is resorted to when other action could be taken to protect jurors.

Fergal Davis writes:
The Association of Garda Superintendents has advocated broader use of the Special Criminal Court. To the best of my knowledge they made no mention of my previous post on the subject but we live in hope.

The use of the Special Criminal Court in “gangland” cases is not as clear cut as might at first be assumed. A kneejerk rejection of non-jury trial would be foolish. The Special Criminal Court is constitutionally and legislatively anticipated by Article 38.3.1˚ of Bunreacht na hÉireann and S.35(2) of the Offences Against the State Act 1939 which determines that the court may hear cases where ‘the ordinary courts are inadequate’. Where a substantial risk of jury intimidation exists the ordinary courts are inadequate. If a criminal organisation, whether that be a terrorist organisation or a criminal gang, can obtain a list of names and addresses of juror members this gives rise to concerns about the protection afforded by the State to those jurors. Such a situation results in three problems:

  1. The State owes a duty of care to jurors whom they have placed in a position of danger. If the State cannot guarantee their security it should not ask individual citizens to fulfill this role.
  2. As Lord Diplock has observed, ‘a frightened juror is a bad juror even though his own safety and that of his family may not actually be at risk’. (INQUIRY INTO LEGISLATION AGAINST TERRORISM, 1996, Cm. 3420) If jurors believe that their details might not be secure this perception could understandably alarm juries and undermine their ability to function effectively.
  3. The Special Criminal Court has been used in non-subversive cases since 1942. The Court was used to try Black market offences during ‘the Emergency’ when it was believed by the then Attorney General (and future President) Cearbhall Ó’Dálaigh that while swift and severe punishment was required in cases of rationing offences juries would be unwilling to convict (Fergal Davis (2007) The history & development of the Special Criminal Court, pp 96-99).

So, there is precedent and possible justification for utilising this ‘extraordinary’ court. Furthermore, although the use of juries is to be valued because it

…always retains a republican character in that it entrusts the actual control of society into the hands of the ruled, or some of them, rather than into those of the rulers… (Alexis de Tocqueville, Democracy in America, trans. GE Bevan (2003) pp 317-18)

This does not, in and of itself justify the use of juries where such use would entrust the control of society to those criminals who can exercise some control over the jury.

On the other hand, there is no need to throw the baby out with the bath water. The Special Criminal Courts may be justified but this does not mean we ought to employ it at the drop of a hat. The jury – as an institution – has much to commend it. Juries add legitimacy to the decisions of courts precisely because they involve the governed in the process of governing. If they can function they ought to function and so, before resorting to the Special Criminal Court we should first consider other means through which we could strengthen the jury system – being more selective in the information we release regarding jury panels might be a less intrusive means of resolving this problem. But in the final analysis if trial by jury is unable to deliver a fair trial then we should be willing to set it aside and the Special Criminal Court provides a ready alternative.