In the past few days two alarming stories have emerged pertaining to the response of the criminal justice system to rape allegations in Ireland. Both, if accurately reported, provide further evidence of the failure of the Irish system to respond appropriately, in a way which respects the rights of victims satisfactorily. Continue reading
Minister Frances Fitzgerald stated in the Seanad last week that she is “committed to delivering a sea change in the oversight of policing.” At the core of the reform package which will supposedly deliver this is the Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015 and the soon to be created Policing Authority. She has stated that this body Continue reading
‘The Embodied Subject’
The fourth workshop of the Northern/Irish Feminist Judgments Project was held in Griffith College Dublin on the 13th and 14th of April 2015. The Project, headed by Aoife O’Donoghue (Durham), Julie McCandless (LSE) and Máiréad Enright (Kent), seeks to add an oft-missed perspective in Northern/Irish jurisprudence by inserting a feminist judge on the bench of the Court in question in each case, and having them write the judgment addressing the issues overlooked or under-considered by the judgments handed down in the case itself.
The theme of the Dublin workshop was ‘the embodied subject’. As with most feminist consideration of the state of embodiment – especially that of women – there is often as much to be found in the silences as in the words. What does the law make of women’s bodies? Where are the gaps in consideration? How does the law address, or not address, the experiences of transgender and queer women – both in legislation, and in judicial opinion? Laws regulating the body, the physical self, can be blind to the social and psychological consequences they carry for the person thus regulated. If the law – as in most of the cases covered during the weekend – operates on a strict sex binary, where those female-assigned at birth are de jure considered female and those deemed male cannot be seen to be de facto female later in life, then the gendered experience of being a woman and experiencing one’s body is the square peg in the law’s round hole. Indeed, as Tanya Ní Mhuirthuile and Ivana Bacik ask in their judgment on Foy v An t-Ard Chláiritheoir, must sex assignation at birth be considered a statement of fact, or a rebuttable presumption?
The female sexed and gendered body forms an object for the law more often than its owner is deemed to be a subject and a participant in those laws. The selection of cases presented in this weekend displayed the judicial attitude to womanhood in all its forms, ranging from reproductive rights to gender recognition to adoption and ownership of one’s identity. The workshop also included cross-disciplinary talks from social scientists and activists which sought to place the question of law and the embodied subject into its fuller social context. The cases under consideration were McGee v Attorney General, McKinley v Minister for Defence, BJM v CM, Foy v An t-Ard Chláiritheoir, Barnes v Belfast City Council, Zappone and Gilligan v Revenue Commissioners, DPP v Tiernan, DPP v C, CC v Ireland, P.M. v. St. Vincent’s Hospital, and IOT v B.
These cases cover a broad spectrum of issues: the directly corporeal (BJM v CM, where the woman in question was treated as a body and nothing more by her ex-husband and the original judge) to the adminstrative (Zappone and Gilligan, two female spouses challenging an inequality in recognition and tax law) to the intersection of the civil right to privacy and the practical impact on health and family from denial of that right (Mc Gee v Attorney General). At times, the original judgments were considered to be broadly fair in their scope, in particular that of McKechnie J in Foy, where the rewriters found themselves in the curious position of being almost satisfied with the original opinion and looking for things to render it complete! Other cases, however, required fundamental change from the ground up. In Máiréad Enright’s opinion in McGee, she found herself breaking down the facts and circumstances of both the plaintifs, the McGee family, and the societal context in which the case took place. Máiréad questioned whether the right to use contraception was correctly identified as a right of the family unit, preferring to see it as a matter of individual privacy. The freedom to regulate one’s family planning could be considered to be a right of ’embodied conscience’ – living one’s civil and political rights through bodily experience.
One particularly egregious original judgment was that in BJM v CM. After having married, BJM was shocked to discover his wife had seriously physical scarring from a bad accident. He claimed that this scarring was physically repulsive enough that he had been tricked into the marriage and that his consent could not be considered informed; therefore, he sought a decree of nullity. Appallingly, this opinion was carried and the Ms’ marriage was annulled. This left CM in a position where she and her family found their lives in upheaval and their seventeen-year household suddenly without legal rights. The feminist judges remarked in particular on the voicelessness of CM throughout the case. The whole proceedings centres around BJM: his feelings and his experiences. CM is reduced to an object over which men are arguing. Indeed, the original judge goes so far as to state that concealing her scarring was to conceal something of ‘the fundamental nature of the person’ akin to a psychiatric illness. CM did not, however, suffer any such irregularity in personality or emotions – but due to her husband’s claimed lack of attraction to her, she was deemed defective enough that BJM could not have given informed consent to marrying her. She is regarded as her body and nothing more. The commentators also spoke about the lack of sexual identity of women before the Irish courts. The Madonna/whore dichotomy is very evident here; CM is either properly modest for not sleeping with BJM before marriage, or she is a dishonest fraud who sought to entrap a man before revealing her ‘dysfunctional’ self. Possibly she is both at once, but we cannot know what she herself was thinking because all the commentary on her life is coming from men – male husband, male doctors, male judge. If the embodied female subject in Irish law has a nadir in terms of respect, BJM v CM may possibly be it.
The interdisciplinary panels interspersed through the delivery of judgments covered issues of women in Irish society ranging from the history of the women politically active around the 1920s in Ireland, to the struggle for women’s right to sit on a jury. They included stories of front-line activism, such as that of front-line campaigner Ailbhe Smyth, and a powerful story from leader of the Survivors of Symphysiotomy support group Mary O’Connor. Most unexpectedly enthralling was the presentation of social geographer Mary Gilmartin, who spoke on ‘Bodies, Borders, and Scales’. She spoke of how the way in which we organise and conceptualise our physical space in society is one of the instruments through which we experience our lives within that society. The hierarchy of our esteem for space, placing cities as centres of power, alienates those without access to such power; similarly, when we consider the world as a collection of ‘more important’ versus ‘less important’ areas, we assign identity to people based on the physical space which they occupy and weigh their existence as more or less relevant than our own. In this way the symbolic value of that person’s physical existence is linked to their assigned place in the world – in Mary’s words, “the body, in effect, becomes the carrier of the border.”
Considering the physical self to own within it the borders of one’s assigned societal identity brings with it another way to understand the experiences of LGBTQ subjects in law. Whether it be a challenge to the legitimacy of one’s marriage or the ability to live without constant worry of being revealed to be transgender, the lives of the queer and trans* community in Ireland have never been easy. The brave women at the centre of the Foy and Zappone and Gilligan cases know that they carry with them the borders imposed on them by society, and in challenging those borders in the courts they opened their lives up to scrutiny and invalidation. The LGBTQ rights campaigns have always involved the assertion of both physical and psychological identity by those involved: the law addresses them solely as the product of their physical bodies in deciding who they are and with whom they may form a family. From a feminist viewpoint, the right to be considered a person in possession of full and equal human rights is essential. The feminist and LGBTQ struggle overlap and intersect, and it is right that we should deconstruct thinking around queer bodies as we do around female-sexed bodies more generally.
In thinking about bodies and their effects and uses, the questions of sexual activity, reproduction, and sexual violence arise. While the third IFJP workshop, in University College Cork, had centred on ‘the mothering subject’, this workshop looked at the effects of sexual regulation in Ireland on the woman as an individual as opposed to the carrier/mother of a child. Contraception was spoken of in the McGee judgment, and Máiréad also gave a colourful account of the condom-smuggling trade over the border in the 1970s. Caroline Fennell and Louise Kennefick had written their opinion on the DPP v Tiernan case, in which a sentence for rape was challenged and questions related to the law of sentencing overall arose. The feminist judges took issue with the views of Finlay CJ in the case, noting that his judgment contained stereotyped views of women and drew distinctions between different circumstances in which rapes occur. They wished to focus more on the role and experience of the victim-witness as an autonomous actor in the trial process (leading them to consider, also, the propriety of using feminist principles to argue for retributive justice for a victim). Eilinóir Flynn and Sinéad Ring looked at another case involving sexual autonomy, that of DPP v C. This case was based on the law around consent to sexual acts. The judges gave a thoughtful, complex look at the idea of consent both per se and as it can be regulated/proven in court. Foremost, again, were the ideas of autonomy and agency of the consenting party. They also noted that discussions of consent, as in this case, can be very heteronormative – just another way in which the embodied self finds itself playing a pre-determined role before the law.
The issue of corporeality is inseparable from the experience of being a woman in a sociolegal context. On a personal level, I took from this workshop a broader understanding of my existence before the law, along with the challenges of viewing the consequences of my own embodiment and that of others with a critical eye. From a wider perspective, being able to read a case with an eye to how the biological sex and true gender of the participants is an exercise which illuminates some repeating themes in Irish law: the body, the mother, the sexuality, the autonomy of choice.
  IESC 2 (Máiréad Enright (Judge) & Emily Cloatre (Commentator))
  2 IR 333 (Joanne Conaghan (Judge) & Fergus Ryan (Commentator))
  2 IR 547 (Aideen Ryan & Katie Dawson (Judge) & Christine Ryan (Commentator))
  IEHC. 116 (Tanya ní Mhuirthile (Judge) & Ivana Bacik (Commentator))
  NICA 19 (Marie Fox (Judge) & Fiona Cooke (Commentator))
  IEHC 404 (Fiona de Londras (Judge) & Siobhán Wills (Commentator))
  1 I.R. 250 (Louise Kennefick & Caroline Fennell (Judge) & Liz Campbell (Commentator))
  3 IR 345 (Eilionóir Flynn & Sinéad Ring (Judge) & Anna Arstein-Kerslake (Commentator))
  IESC 33 (David Prendergast (Judge) Cian O’Concubhair (Commentator))
  IR 321 (Mary Donnelly (Judge) & Claire Murray (Commentator))
  2 IR 321 (Katherine O’Donnell & Claire McGettrick (Judges), James Smith (Commentator))
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.
Leonard Taylor is a PhD candidate at the Irish Centre for Human Rights, NUI Galway, Ireland. His research topic is on Catholicism and international human rights. You can contact him l.taylor3[at]nuigalway.ie
The following post highlights current debate at the United Nations, particularly at the recent 28th Session of the Human Rights Council on the situation in Northern Iraq and Syria as a consequence of the spread of ISIS(Islamic State of Iraq and al Sham or sometimes called ISIL, Islamic State in Iraq and the Levant). Religious minorities and ethnic groups are of particular concern and the Holy See has invoked the doctrine of a responsibility to protect. The following post assesses this option in light of the impasse at the Security Council. The proposal to establish an ad-hoc tribunal for Syria and potentially northern Iraq appears to be the next most reasonable step.
Since 2014, the rapid spread of ISIS forces across northern Iraq has led to a humanitarian crisis. Ethnic and religious minorities have been particularly targeted, including Christians, Kaka’i, Shabak, Turkmen and Yezidis, with thousands killed and many more injured or abducted. The litany of crimes committed seems to be endless and irrational. The list of human rights abuses and breaches of humanitarian law including unlawful killings, deliberate targeting of civilians, forced conversions, targeted persecution of groups and individuals on the basis of their religion or belief, acts of violence against members of ethnic and religious groups, as well as destruction of places of worship and cultural heritage sites. In October 2014, Special Adviser of the Secretary-General on the Prevention of Genocide, and Jennifer Welsh, Special Adviser of the Secretary-General on the Responsibility to Protect, on the situation in Kobane, Syria stated, ‘this latest attack is part of a larger pattern of targeted violence committed by ISIL and other armed groups against religious and ethnic minority communities in both Syria and Iraq’. By 6 August 2014, an estimated 200,000 Christians and members of other ethnic and religious groups had fled from al-Hamdaniya, Ba’shiqa, Bartella, Tel Keif, and other towns and villages in the Ninewa plains before they were taken over by ISIL.
The international legal framework in Iraq amounts to an armed conflict of a non-international character involving ISIL and other affiliated armed groups, on one side, and Iraq army (ISF) and other armed forces, which support it, on the other. In Iraq military assistance is already underway by the United States, United Kingdom, Iran and others and appears to have the consent of the international community though not without debate. Similarly in Syria, it is a non-international armed conflict but in contrast to Iraq it remains in the main, isolated from the international community’s direct involvement. Continue reading
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  IESC 31.
The New Rule
The fundamental decision of the Court in DPP v JC  IESC 31 is that the exclusionary rule set out in People (DPP) v Kenny  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  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  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  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  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  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.
This post originally appeared as a guest column in the Immigrant Council of Ireland’s daily epaper, Immigrant News.
Heralded by the UK Home Secretary, Theresa May, as “an historic milestone” which brings the UK “closer to consigning slavery to the history books”, the UK Parliament adopted the Modern Slavery Act on 26 March.
The Act brings together and simplifies the existing UK law on slavery and trafficking and also contains a number of important innovations, including potential life imprisonment for traffickers, asset confiscation rules and a new Anti-Slavery Commissioner. Victims of trafficking are provided with a statutory defence in order to ensure that they are not inappropriately criminalised, and provision is made for “Reparation Orders” to be awarded by way of compensation. Also introduced is a requirement for large companies to annually report on efforts to identify and address modern slavery in their supply chains.
The Act has been broadly welcomed, including by campaigning groups such as Anti-Slavery International. The legislation also reflects developments in the case law of the European Court of Human Rights in Strasbourg, which requires States to put in place an effective regime for deterring, investigating and punishing slavery, servitude and forced labour.
The most contentious aspect of the legislative process was the failure of the Act to reform the migration status of overseas domestic workers in the UK to better protect this group. The terms of the “overseas domestic workers visa” ties these workers to their employer, with specialist NGOs such as Kalayaan arguing that this in itself creates conditions ripe for slavery and severe exploitation.
Slavery in Ireland
While the scale of the issue in the UK may be larger, it is beyond doubt that a significant problem of slavery and trafficking exists in Ireland. The Immigrant Council of Ireland has long advocated for and represented victims of sex-trafficking, in particular, while the Migrant Rights Centre of Ireland has produced reports on the trafficking and labour exploitation of those in the domestic work sector and cannabis production.
In 2012, the High Court case of Hussein v Labour Court and Younis vividly demonstrated the gaps in individual rights protection created by the intersection of Irish employment and immigration rules. Mr Younis had been required to work for seven days a week for a number of years and was paid “what amounted to pocket money”, but was told by the High Court that he could not pursue the employer for breaches of labour law as he was an undocumented migrant.
In the wake of the Hussein decision, a number of changes were made to the Irish system to deal with the injustices which had been highlighted. Forced labour is now a crime, under the Criminal Law (Human Trafficking) Act 2013. In addition, the Employment Permits (Amendment) Act 2014 means that undocumented migrants who are undocumented through no fault of their own may pursue their employer for outstanding remuneration. However, these piecemeal amendments do not constitute an anti-slavery code along the lines of the Modern Slavery Act 2015.
Should Ireland seek to emulate the Modern Slavery Act?
As academic Judy Fudge has noted, it is difficult to criticise the Modern Slavery Act, as “no one is ‘for’ slavery”. However, there are a number of reasons why the Irish government would be best to concentrate reforming energies elsewhere, rather than seek to simply emulate the approach taken in the UK Act.
First, the Act’s main focus is on the criminalisation and prosecution of slavery and trafficking offences rather than redress for victims, although the protection of victims was strengthened somewhat during the process due to pressure from campaigners. It also fails to address the obstacles faced by migrant workers, in particular, to seeking redress through the ordinary employment law system – a ready-made system designed to protect employment rights so that exploitation does not reach the severity of slavery, servitude or forced labour. These obstacles are practical (including cuts to legal aid) and legal (illegality of the contract of employment of most undocumented migrant workers).
Second, there must be question marks over the effectiveness of legislation seeking to address labour exploitation and trafficking, in the broader context of ever-tightening immigration rules and the devaluing of migrants’ contribution to the labour market and the economy. The Modern Slavery Bill stands in counterpoint to the increasingly hostile environment for migrants being created in the UK, including through restrictive changes to family reunification rules, imposing reporting requirements for landlords where they believe that a tenant may be undocumented, and the continued government refusal to acknowledge the vulnerabilities created by tying domestic workers to their employer.
Overall, the Modern Slavery Act contains some significant changes which may assist those who suffer the worst forms of labour and sexual exploitation. However, it does not address the root causes of such treatment and certainly will not make a difference to most migrant workers enduring the everyday indignity of low wages, poor working conditions and limited access to employment redress mechanisms.
So what should Ireland do?
From this perspective, rather than trying to ape the UK modern slavery package, Ireland would be better to undergo two, more fundamental, reforms (quite aside from a fundamental review of our trafficking framework, which was argued for in this newspaper by Nusha Yonkovo last week).
The first would be to further change the Employment Permits regime to fully legalise the employment contracts of all undocumented workers and thereby provide equal access to labour rights. Although this may seem radical in the Irish context, most European countries (the UK being a notable exception) provide a certain minimum level of employment protection for all workers, notwithstanding their undocumented status.
The second is to pursue the long-awaited comprehensive reform of the immigration system, providing on a statutory footing for secure and durable statuses, family reunification, and access to public services. The legal recognition of migrants’ contribution to the Irish economy and society is a vital, if intangible, element of tackling ‘modern slavery’.
The ICC Summer School at the Irish Centre for Human Rights is the premier summer school on the International Criminal Court, the world’s permanent institution for the trial of international crimes. This year’s ICC Summer School will take place from 15-19 June 2015 at NUI Galway, Ireland. The Summer School comprises a series of intensive and interactive lectures over five days given by leading academics and legal professionals working at the International Criminal Court. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures, operations, and applicable law. Specific topics covered include international crimes (genocide, war crimes, crimes against humanity & aggression), jurisdiction, modes of liability, the role of victims and prosecutorial discretion. This year’s Summer School will include a special session on Palestine and the International Criminal Court, which will involve the participation of the Palestinian Ambassador to Ireland, Ambassador Ahmad Abdelrazek. The Summer School is suited to postgraduate students, legal professionals, journalists and staff of civil society or intergovernmental organisations.
The 2015 ICC Summer School faculty includes:
- Professor William Schabas – Middlesex University & Irish Centre for Human Rights
- Professor Kevin Jon Heller – School of Oriental and African Studies, London
- Dr. Fabricio Guariglia – Office of the Prosecutor at the International Criminal Court
- Dr. Mohamed M. El Zeidy – Pre-Trial Chamber II at the International Criminal Court
- Dr. Rod Rastan – Office of the Prosecutor at the International Criminal Court
- Professor Ray Murphy – Irish Centre for Human Rights, NUI Galway
- Professor Don Ferencz, Visiting Professor, School of Law, Middlesex University; Research Associate, Oxford University Faculty of Law Centre for Criminology
- Dr. Kwadwo Appiagyei Atua – University of Ghana and University of Lincoln
- Dr. Michael Kearney – School of Law, Sussex University
- Dr. Noelle Higgins – Senior Lecturer, Law Department Maynooth University
- Ms. Salma Karmi-Ayyoub – Barrister, London
- Dr. Nadia Bernaz – School of Law, Middlesex University
- Mr. John McManus – Canadian Department of Justice
- Professor Megan A. Fairlie – Florida International University
- Dr. Mohamed Badar – Northumbria University, United Kingdom
- Dr. Shane Darcy – Irish Centre for Human Rights, NUI Galway
The deadline for availing of the early bird registration fee of €400 has been extended until 20 April 2015, with the fee for registrations after that date being €450. The closing date for registrations is 30 May 2015. The registration fee includes all course materials, all lunches and refreshments, a social activity and a closing dinner. The registration fee also includes a complimentary copy of: William A. Schabas, Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2011, 4th ed.).
To register and for more information, please visit our website at: http://www.conference.ie/Conferences/index.asp?Conference=405.
Should you have any queries, please email: firstname.lastname@example.org.
Jennifer O’Connell wrote for the Irish Times on Saturday that the Dwyer trial has forced light onto the darkest part of Irish society. More than anything, I hope it forces us to confront the true nature of violence against women in Ireland.
This trial was about a misogynist’s criminal desire to control, dominate, harm and kill a woman. Continue reading