LLM in Law with socio-legal focus at DCU

DCUThe School of Law and Government at Dublin City University (DCU) invites applications for its taught Masters in law (LLM). The School is unique in the Irish academic legal landscape for its core “law and society” research theme and its focus on socio-legal studies. DCU’s LLM in Law specifically sets out to be different from other taught Masters in law. It offers a fantastic range of innovative, challenging modules and aims to enhance and expand not only students’ substantive knowledge of the law but their practical legal skill-sets. The LLM programme team is dedicated to using innovative, experiential and skills-based pedagogical strategies in order to facilitate students with an active and student-centric learning experience. This LLM is designed to deliver strong potential employees to the marketplace, and strong critical thinkers to the research community. If you want to deepen your ability to examine and critique the law in its societal context and increase your applied legal competencies then this LLM is for you.

DCU’s LLM in Law is delivered as a one-year, full-time programme. Students will take one core year-long module in Legal and Socio-Legal Research Skills. This will provide students with important skills to analyse and critique the legal research of others, along with a robust grounding for their own completion of an independent research Dissertation (15,000 – 20,000 words). In addition to the core Legal and Socio-Legal Research Skills module and the Dissertation students can choose four optional modules (two in each semester).

Full details on these modules (which include international law modules, commercial law modules, socio-legal and public law modules) along with further information on the LLM programme are available here.

Applications are via www.pac.ie and the closing date is July 31st 2015.

LLM in Law with socio-legal focus at DCU

ACJRD Criminal Justice Essay Competition 2015

The Association for Criminal Justice Research and Development (ACJRD) has announced an essay competition to encourage written work on the subject of Criminal Justice.

There is a prize of €200 for first place and a second prize of €50. Both winning essays will also be published on the ACJRD website.

The competition is open to all third level students (including post graduates), pupil or devil barristers and trainee solicitors.

The 2015 Competition theme is: ‘An issue in need of reform in Irish criminal law or procedure’.

The competition closing date is June 30th 2015.

Further information, including the rules of the competition, is available here.

ACJRD Criminal Justice Essay Competition 2015

DPP v JC: Initial Observations on the Exclusionary Rule case

Where does one start to analyse six Supreme Court judgments (the Chief Justice concurred with the majority but did not issue a separate judgment), amounting to over 155,000 words, on a most fundamental rule of constitutional law and criminal procedure? This is not an easy task and what follows represents only an initial foray into the many significant issues which arise within, and as a consequence, of this week’s Supreme Court decision in DPP v JC [2015] IESC 31.


The New Rule

The fundamental decision of the Court in DPP v JC [2015] IESC 31 is that the exclusionary rule set out in People (DPP) v Kenny [1990] 2 IR 110, and in operation in this jurisdiction for the past twenty-five years, is no longer to be applied (for more on the existing rule see my 2009 post). The Court, in a 4:3 majority verdict (Denham CJ, Clarke, O’Donnell and MacMenamin JJ in the majority; Hardiman, Murray and McKechnie J dissenting), overruled its own previous decision in that case and declared a new exclusionary rule in relation to unconstitutionally obtained evidence. The basic rule, though there is more to it than this (as discussed below), is that inadvertent breach of constitutional rights in the obtaining of evidence will not lead to the exclusion of that evidence at trial. Knowing, reckless or grossly negligent breaches of constitutional rights will lead to such exclusion, except in exceptional circumstances.

While O’Donnell J specified that the decision in JC applies only in the context of search warrants, Clarke J, who actually sets out the specifics of the new rule, was not quite as restrictive. He suggested that the new rule applies only where there is a question about the manner in which a relevant piece of evidence was gathered, as opposed to any question relating to the probative value of the evidence given the way in which it was obtained. All of this is to say that the decision here does not relate to cases where, for example, a confession statement is alleged to have been obtained through oppression or threats. In such a scenario the reliability of the statement may be tainted by the circumstances in which it was obtained, but the presence of stolen goods in an individual’s home, for example, is not altered by the constitutionality or otherwise of the search warrant executed by the gardaí in order to search that home.

The new rule is set out very clearly in the judgment of Clarke J, and he helpfully provides clear reasons for the inclusion of each individual aspect of this rule. The main elements of the new rule are as follows:

  • The onus is on the prosecution to establish the admissibility of all evidence.
  • If a claim is raised that evidence was obtained in breach of constitutional rights, the onus is on the prosecution to establish either (i) that there was no unconstitutionality, or (ii) that despite any interference with constitutional rights the evidence should still be admitted.
  • Where evidence is obtained in deliberate and conscious violation of constitutional rights (in the sense of knowing breach of rights) it should be excluded, except in exceptional circumstances.
  • Whether or not a breach of constitutional rights was deliberate and conscious requires analysis of the conduct or state of mind of the individual who actually gathered the evidence, as well as any senior official or officials within the investigating or enforcement authority concerned who was involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.
  • Where evidence was taken in breach of constitutional rights, but this was not deliberate and conscious, there is a presumption in favour of exclusion, which can be rebutted by evidence that the breach of rights was either (i) inadvertent or (ii) derived from subsequent legal developments.

Basically, while the Kenny rule operated on a rationale of protectionism – if constitutional rights are breached the evidence will be excluded (except in extraordinary excusing circumstances) – the new rule under JC operates on a rationale of deterrence – evidence will not be excluded if it was obtained in inadvertent breach of constitutional rights. This is partly achieved through the determination that the term “deliberate and conscious” relates to the state of mind of the person obtaining the evidence (and/or any relevant senior officials) rather than his/her actions.


“Deliberate and Conscious”

One might have thought that in boldly overruling the Kenny case, as the majority of the Supreme Court has expressly done in JC, it might have been better to avoid this particular turn of phrase altogether, as its meaning has been so contentious over the years since People(AG) O’Brien [1965] IR 142 and on through Kenny. Indeed, the “deliberate and conscious” formulation is not fully accurate in terms of the new test emanating from the Court in JC as Clarke J clarifies (at para 5.14) that the concept of “inadvertence” for the purposes of the rule does not include recklessness or gross negligence. O’Donnell J concurs with this view. Accordingly, evidence obtained in knowing, reckless or grossly negligent breach of constitutional rights will be excluded, except in exceptional circumstances. So, “deliberate and conscious” breach of rights also includes reckless and grossly negligent breach of rights, which the everyday meaning of “deliberate and conscious” might not readily impart.

What will the impact of a “deliberate and conscious” breach of rights, within the meaning of the JC rule, be? It seems that a garda who knows he holds an invalid search warrant will obtain evidence that will later be excluded; a garda who is subjectively reckless, in the sense that he knows there is a risk that the warrant he holds may be invalid, will obtain evidence that will later be excluded; and, a garda who takes an objectively unreasonable risk that the warrant he holds may be invalid which falls so far below the standard of care that he ought to take in executing a warrant that it amounts to gross negligence, will also obtain evidence that will later be excluded. Only a garda who has no idea that the warrant he holds may be invalid will obtain evidence that can be admitted. The exact operation of this rule in practice obviously remains to be seen in individual, subsequent cases. But, it seems possible to me that the outcome could be something of a reversal of the practice which has come about since People (DPP) v Balfe [1998] 4 IR 50 of operating O’Brien and Kenny as alternative rules: O’Brien applying where there is an error on the face of the warrant, and usually admitting the relevant evidence; and Kenny operating where there is a deficiency in the authorisation of the warrant or its legal value and generally resulting in the exclusion of evidence.

If evidence is to be excluded now in circumstances involving gross negligence on the part of the gardaí, the O’Brien approach may in fact become the stricter one. In cases where the Kenny rule has led to exclusion of evidence in the past, gardaí have often not known at all that there was any difficulty in the way in which they had obtained or executed a given search warrant. Indeed, this was the case in Kenny itself, where the manner in which the warrant was obtained had been long-established and the difficulty therewith was only adverted to at trial. However, in O’Brien-type cases, the difficulty in the warrant is usually visible on its face – an incorrect address, for example, as in O’Brien itself, or in the more recent case of DPP v Mallon [2013] IECCA 29. In those types of cases, will the newly-expressed rule now require that gardaí check their warrants for the correct information before executing them? Surely a failure to do so could, and should, be viewed as reckless, or at least grossly negligent. Will these errors, previously viewed as mere typographical errors, now take on a greater significance?


Unconstitutionality derived from subsequent legal developments

Outside of issues relating to the mens rea of the gardaí in obtaining and executing warrants, a notable aspect of the new rule is the notion that evidence ought to be admitted where its unconstitutionality arises as a result of a subsequent legal development. This matter is directly related to the facts of JC itself (indeed, perhaps one could argue that other statements on inadvertence etc are obiter dictum as this is the real issue at play in JC – though for the record I doubt such argument would find traction). JC’s dwelling was searched under the authority of a search warrant issued under s 29 of the Offences Against the State Act 1939, and he was arrested by gardaí who had entered his dwelling on foot of said warrant. He was thereafter detained and questioned by gardaí and made a number of inculpatory statements. Section 29 was declared unconstitutional in the case of Damache v DPP [2012] IESC 11 between the execution of the warrant at JC’s dwelling and his trial before the Circuit Criminal Court in Waterford. As s 29 warrants were now viewed as unconstitutional, the Circuit Court judge effectively found that there had been no authority in the warrant to allow the gardaí to enter his dwelling and thereafter effect an arrest. Accordingly, and because there was no evidence to support any claim that the gardaí had entered the dwelling on foot of any other legal power, the accused was in unlawful custody at the time when he made the inculpatory statements, which were therefore inadmissible. Under the Kenny rule, this was absolutely the correct outcome of the circumstances which arose before the Circuit Criminal Court, and indeed all members of the Supreme Court in JC accepted that the judge had properly applied the Kenny rule.

Under the new rule as enunciated in JC, the statements obtained in a case such as the instant one would be admissible as although s 29 warrants are now invalid and could not be used to gain entry to a dwelling from the date of the Damache decision onwards, they were valid at the time of execution at JC’s dwelling. This, in my view, is worrying, to say the least. The constitutional difficulty with s 29 was that it allowed for warrants to be authorised by senior gardaí who were involved in the investigation for which the warrant was deemed necessary. This, as the Supreme Court found in Damache, provided no independent oversight of garda conduct and inadequate protection for the rights of citizens.

Section 29, accordingly, was struck down for good reason: independence and impartiality are essential to the integrity of the criminal process, and were not provided for by the s 29 procedure. The notion then that because it was viewed as good law at the time of the execution of a specific warrant, largely because no case had yet made it to the Supreme Court to test its constitutionality, should allow for evidence obtained thereunder to be admitted at a trial arising after it has been declared to be bad law, undermines the Supreme Court declaration of unconstitutionality and, indeed, draws the relevant trial court into acting upon evidence obtained in breach of the Constitution. Although the gardaí in the relevant circumstances were unaware of the unconstitutionality, as it had yet to be declared, a later trial court admitting and acting upon the evidence obtained does so knowing that such evidence was obtained in what are now viewed as unconstitutional circumstances. Surely this brings the administration of justice into greater disrepute than any alleged frustration of prosecution by the strictness of the Kenny rule.


The Strictness of the Kenny rule and Intellectual Honesty

In his dissenting judgment, McKechnie J points to an evidential gap in JC in terms of statistical information showing that the Kenny rule has led to significant frustration of prosecutions in the twenty-five years of its operation. While O’Donnell J (in the majority) listed examples of real scenarios in which the Kenny rule has applied, McKechnie J looking at each of those in turn suggests that in fact in each of those scenarios the outcome was either favourable to the DPP or unknown, such that they do not illustrate a significant difficulty with the rule to the level necessary to involve the Supreme Court in overruling its own previous decision, which should only be done for the most compelling reasons (as per The State (Quinn) v Ryan [1965] IR 70).

As mentioned above, the decision in Balfe in 1998 has allowed for courts to distinguish, in general terms, between cases where there was an error on the face of the warrant (where evidence obtained could still be admitted) and those which were issued without fulfilment of a statutory pre-condition or in the absence of jurisdiction (where evidence had to be excluded). This dichotomy was, surprisingly, not given any real acknowledgement or subjected to any analysis by the Court in JC. The majority judgments seemed eager to view the Kenny rule as an absolute rule of exclusion which has been operating in an overly strict manner. While this might well be true, and indeed I have previously characterised that rule as one of the strictest (if not the strictest) in the common law world (Daly, YM Police and Judicial Functions: Recent Developments in Criminal Procedure (2011) 1 Criminal Law and Procedure Review 35), the reality is that, at least since Balfe, O’Brien and Kenny have been operating as alternatives, thus providing the courts with an “out” from the strictness of Kenny and, to some extent, mitigating its hard edges.

It might be argued that there is a danger in providing courts with an “out” such as this, as it might give rise to contrived reasoning and the drawing of questionable parameters in order to avoid the application of the strict Kenny rule. It is perhaps more intellectually honest to operate a less strict rule through the application of clear principles than it is to create artificial dichotomies in order to circumvent the application of a strict rule.  In New Zealand where the prima facie rule of exclusion operated in a comparatively strict manner to our Kenny rule, there was some evidence of distortion of rights at the “front-end” so as to avoid the “back-end” remedy of exclusion (see Optican, Scott “ ‘Front-End’/‘Back-End’ Adjudication (Rights Versus Remedies) Under Section 21 of the New Zealand Bill of Rights Act 1990” (2008) 2 New Zealand Law Review 409). Such distortion of the definitional parameters of constitutional rights has not been a feature of the jurisprudence under Kenny in Ireland, though the dichotomy between O’Brien-type cases and Kenny-type cases might be viewed as an artificial one.

While on the subject of intellectual honesty I might mention at this juncture my firm view that the use of s 23 of the Criminal Procedure Act 2010 in the JC case is highly inappropriate and the acceptance of the majority that an appeal under s 23 lies to the Supreme Court on the facts of this case is, with all due respect, astonishing. It seems to me that s 34 of the Criminal Procedure Act 1967 would have provided a much clearer avenue of appeal for the DPP and would not have necessitated the linguistic acrobatics performed by the majority on s 23 in order to allow the appeal. I will say no more here on this matter as this post is already entirely too long! That, and (many) other matters, will have to wait for another day.

DPP v JC: Initial Observations on the Exclusionary Rule case

EU Criminal Justice Conference at University of Limerick

IJELEU Criminal Justice is a rapidly developing field. The adoption of the Lisbon Treaty has resulted in a proliferation of EU criminal justice measures, some of which are nearing deadlines for implementation into the national law of Member States, while others have some way to go. There is an increasing imperative for scholars and practitioners to familiarize themselves with this complex area of law. An upcoming conference hosted by the School of Law at the University of Limerick will address key developments to date.

The conference is entitled “On the Road towards a EU criminal justice system: problems, achievements and prospects” and it will be held on May 21st and 22nd. The programme is extensive and filled with contributions from many of the most influential researchers in this area. The full brochure are further details are available here.

EU Criminal Justice Conference at University of Limerick

PhD Scholarship(s) in Law at Dublin City University

DCUgenerous 4-year scholarship(s) is available for an outstanding PhD candidate(s) in the field of Law, within the School of Law and Government at Dublin City University. The scholarship will include fee waiver and a tax-free stipend of €14,000 per annum for a full-time PhD student. The School also supports its PhD students with funding for conference and research travel.

Members of staff have specific research areas, listed below, in which they would like to prioritise PhD research. Potential applicants should make informal contact with the member of staff whose research area covers their proposed doctoral work before formally applying for consideration.

Member of Staff Research Areas
Dr Brenda Daly right and access to healthcare; healthcare law; mediation
Dr Yvonne Daly criminal evidence; criminal procedure ; criminal justice
Dr Aisling de Paor medical law and bioethics; genetics and human rights; genetic discrimination and the law; genetic privacy and data protection; science, new technologies and the law
Dr James Gallen public international law; human rights; jurisprudence
Dr Tom Hickey constitutional law and political theory
Dr Adam McAuley healthcare law and ethics; family and child law; judicial politics
Dr Roderic O’Gorman EU constitutional law; EU citizenship; fundamental rights under EU law; environmental law; comparative constitutional law
Dr Olivia Smith work-care reconciliation; caring and the law; equality and discrimination law


Following informal consultation with the relevant staff member, applicants should send a full CV and research proposal to Alexander Baturo by Friday 8th May.


DCU offers a number of Graduate Training Courses which the successful applicant may attend. The successful applicant will be expected to provide some teaching within the School of Law and Government and to contribute fully to the life of the School. The successful applicant will benefit from career mentoring and professional advice from the academic legal experts within the School.


For more on Law at DCU see the website of the Socio-Legal Research Centre.



PhD Scholarship(s) in Law at Dublin City University

The Truth about Torture: Ireland v UK Revisited

Maynooth University Department of Law is hosting a talk by two of the ‘Hooded Men’, Jim Auld and Joe Clarke, followed by a legal analysis of the European Court of Human Rights Case with Fiona Duignan, LLM.

The event will talk place Monday, 9 March, at 5pm in CS2, which is located in the Callan Building on the North Campus of Maynooth University.

In 2014 the Irish government requested that the case of Ireland v UK be reopened before the European Court of Human Rights. The case concerned the treatment of the ‘Hooded Men’, republicans detained by British forces in 1971 and subjected to deprivation of food and water, deprivation of sleep, continuous loud noise, forced stress positions and prolonged hooding at Ballykelly British Army Base in Northern Ireland.

The Irish government brought a complaint against the UK to the European Court of Human Rights. While the Court found that the treatment of the men amounted to inhuman and degrading treatment, it held that it did not meet the threshold of torture.

Following a review of recently released British government documents which shed additional light on the treatment of the ‘Hooded Men’, and the evolution of the definition of torture, the Irish government has now referred the case back to the European Court and asked it to revise its decision that this treatment did not amount to torture.

This discussion looks at the background to the Ireland v UK case and analyses the importance of its reopening and the significance of a finding of torture by the Court.

For more information on this event click here.

The Truth about Torture: Ireland v UK Revisited

Law Lecturing positions advertised at Dublin City University

DCUAs part of its continuing development, the School of Law and Government at Dublin City University (DCU) intends to appoint new Lecturers in Law. The appointments, for a fixed term of five years, will commence on 1 September 2015.

Applications from candidates with demonstrated third-level lecturing experience and academic research expertise in any area of law are welcome. The school has particular teaching needs in the area of private law and that may be a factor in short-listing and final selection.

The School offers successful taught programmes in Law, including the BCL(Law and Society), the BA in Economics, Politics and Law, and Law as a subject in the BA (Joint Honours). The School will be launching a new LLM in Law (subject to accreditation) in September 2015, and it also offers both Research Masters and PhDs in Law.

The School is committed to high-quality research and it hosts the Socio-Legal Research Centre.

Further details on the posts, including the relevant advertisement (in full) and the application form are available here.

The closing date for applications is March 16th 2015.

Law Lecturing positions advertised at Dublin City University

Social and Economic Rights Panel Discussion at DCU

DCUDCU Socio-Legal Research Centre is proud to announce the launch of the latest edition of its Socio-Legal Studies Review, by Ms Justice Carmel Stewart. To celebrate this latest edition the Socio-Legal Research Centre is hosting a panel discussion on contemporary issues in social and economic rights. A panel discussion with contributions from Gerry Whyte (TCD), Claire-Michelle Smyth (DCU), Liam Thornton (UCD) and Fergus Ryan (NUIM) will be chaired by Brenda Daly (DCU) and followed by a closing address from Emily Logan, Chief Commissioner in the Human Rights and Equality Commission.
This event will take place on Monday 2nd March from 5pm in the School of Nursing, Dublin City University. Attendance is free but due to limited places registration is advised. To register contact claire-michelle.smyth[at]dcu.ie
Social and Economic Rights Panel Discussion at DCU

Mental Disorder and Punishment in Criminal Law – Seminar

The Socio-Legal Research Centre,  within the School of Law and Government at DCU, in association with the Irish Mental Health Lawyers Association and the Association for Criminal Justice Research and Development, is pleased to announce that Mr.  Kris Gledhill, University of Auckland, will be the keynote speaker at the “Mental Health and Criminal Law” seminar THIS Friday in the Law Society of Ireland.

Venue:  Law Society of Ireland, Blackhall Place, Dublin 7.

Date:    Friday, 23rd January, 2015

Time:  5.30 pm – 8.00 pm

Mr. Tom O’Malley, National University of Ireland, Galway, and Ms. Aine Hynes, Irish Mental Health Lawyers Association, will respond to Kris Gledhill’s paper from an Irish perspective.  Mr. O’Malley will deliver a paper entitled “Mental Disorder and Proportionate Punishment” and Ms. Hynes will speak under the following heading, “Operating The Criminal Law (Insanity) Act:  a Legal Practitioner’s Perspective”. The seminar will be chaired by Judge John O’Connor.

An outline of Mr. Gledhill’s paper is as follows:

“This paper looks at developments in English statutory provisions and case law that are relevant to the question of the extent of criminal responsibility in the case of people with a mental disorder who are convicted of a crime. The focus is not on the situation when there is no responsibility (which arises when there is a successful claim of insanity) or the procedural question of whether a defendant cannot follow the trial process such that he or she cannot be put on trial (fitness to stand trial). Rather, the focus is on the level of responsibility when a defendant who is fit to stand trial is convicted.

One of the statutory developments relates to the circumstances in which responsibility is recognised to be reduced, namely the criteria for the partial defence to murder of diminished responsibility, which was amended in 2009. The other statutory development is two-fold: it involved the introduction of a new sentence under the Mental Health Act 1983, a hybrid order, which allowed the courts to combine a prison sentence with a direction that the defendant be placed in hospital, which was extended in scope by statutory amendments in 2007. As a result of these changes, there has been a significant body of case law, mainly in the context of sentencing decisions, as to whether a person who had a mental disorder at the time of the crime which played a role in the crime nevertheless retained responsibility that merited the punitive response of a sentence of imprisonment rather than the rehabilitative option of transferring the defendant simply to the hospital system (with release dependant on recovery).

What seems to be developing in the case law is the rise of the idea that it is possible to determine that even when a defendant has clearly been mentally unwell at the time of the offending and medical experts recommend that the proper response is that the defendant be transferred into the hospital system, it is possible for judges to discern a residual responsibility or a risk arising from criminality that makes proper a prison sentence even though the defendant clearly needs hospital treatment at the time of the sentence.

One question arising is the propriety of the approach in light of the rights of people with disabilities, including the formulation of those rights under the Convention of the Rights of Persons with Disabilities 2006. Some thoughts are offered on the application of the rights framework to this trend.”

The cost to attend this event is €5.00 per person.  Registration is required.  To buy your ticket and secure your place, please click here.

Mental Disorder and Punishment in Criminal Law – Seminar

Human Trafficking – Modern Slavery in Ireland

The 14th annual UCC Law Conference takes place on November 19th in the Aula Maxima at University College Cork. This is the only student-run professional law conference in Ireland and it is sponsored by William Fry. This year’s theme is “Human Trafficking – Modern Slavery in Ireland” and the speakers include:

– Colm O’Dwyer BL – Victims of trafficking in the asylum/protection system.;

– Edel McGinley, Director of the Migrants Rights Centre on trafficking for labour exploitation, new trends in forced labour, criminal exploitation in cannabis production, the situation of potential victims in prison and new preventative measures to protect workers in the homes of diplomats.

– A former victim of forced labour discussing his/her experience and the realities of forced labour in Ireland.

– Aidan McQuade the Director of Anti-Slavery International on trafficking in the International Sphere;

– Mick Quinn of the Anti-Human Trafficking Unit from the Department of Justice on how Ireland is monitoring the issue of trafficking on our shores.

– Héilean Rosenstock-Armie,Immigrant Council of Ireland, on the issue of sex trafficking in Ireland and potential procedural reforms.

The organisers say that the aim of this year’s conference is to draw as much attention as possible to the issue of forced labour and trafficking in Ireland, and to open up an academic discussion on procedural reform and the efficiency of our approach. They contend that the issue of human trafficking is kept in the dark, and say that it is time for the student body to bring to light the fact that his problem in fact exists closer to home than one might imagine.

The conference will act as a forum for discussion regarding a legal issue at the forefront of both Irish and International law, and will be attended mainly by practitioners, academics, and students. The organisers hope that attendees will be inspired to do something about human trafficking in Ireland as a result of the conference.

All are welcome to attend the conference, though prior registration is required by emailing conferencecommittee@ucclawsociety.com. The registration cost is €40 (this can be paid on the day) and the event carries 4 CPD points as recognised by the Law Society of Ireland. Registration takes place between 8.45am and 9.20am with the event to begin at 9.30am sharp.

For more information see here.

Human Trafficking – Modern Slavery in Ireland