The Supreme Court yesterday ruled (6 agreeing, though for different reasons, and 1 dissenting) that the constitutional right to reasonable access to a lawyer does not extend to a right to have a solicitor present during Garda interviews. In May 2014 the DPP had instructed gardaí to permit solicitors to attend interviews where requested, stemming from the fact that Irish and European jurisprudence and regulation was moving in that direction. There had not, at that point, been a ruling that there was such a right under the Irish Constitution, and Ireland has not opted into the EU Directive on Right of Access to a Lawyer in Criminal Proceedings. However, it had been strongly indicated in obiter statements in the case of DPP v Gormley and White that this was possible. The decision in Doyle indicates that Irish constitutional law has not reached that point, not yet at least. Continue reading “The Right to Legal Advice in the Garda Station: DPP v Doyle”
We are pleased to welcome this Guest Post from Eimear Spain and Shane Kilcommins.
The Garda Siochana Ombudsman Commission is an independent agency established under the 2005 Garda Siochana Act to deal with matters involving possible misconduct by members of the Garda Síochána. Last month it was revealed that it scrutinised the phone records of two journalists. The Minister for Justice and Equality, Frances Fitzgerald, has appointed Mr Justice John Murray to carry out a review of the legislative framework in respect of access to communications data of journalists. In defending the use of such powers, the current GSOC Commissioners pointed out that it was the legislative body of the State which made Garda leaks a serious offence, and it was also the same body which granted powers to access phone records and internet data to GSOC. As the Commissioners noted: “Gsoc must use any lawful means provided by the legislature ‘to ensure that its functions are performed in an efficient and effective manner…’”.
Surveillance powers are provided for under three main pieces of legislation in Ireland: the use of surveillance and tracking devices under the Criminal justice (Surveillance) Act 2009; the interception of postal packets and telephone conversations (phone tapping) under the Postal Packets and Telecommunications Messages (Regulations) Act 1993; and the use of information that has been generated by various service providers arising from the use of mobile phones and landlines under the Communications (Retention of Data) Act 2011. Under the 2011 Act, a request for disclosure of data may be made if a member of An Garda Siochana is satisfied that the data is required for the prevention, detection, investigation or prosecution of a serious offence. It is clear that the legislature made leaking of data by a member of An Garda Siochana is a serious criminal offence under section 62 of the Garda Siochana Act 2005, thus giving power to request data in any such investigation.
What are GSOC’s surveillance powers?
Upon establishment in 2005, designated officers within GSOC were conferred with all the powers, immunities and privileges conferred on any member of the Garda Síochána under any enactment or common law in existence at that time or enacted subsequently including powers of entry, arrest, charge, summons, search, detention, questioning, and the taking of bodily samples. The only exclusions were contained in section 98(5) of the Garda Siochana Act, 2005 and related to powers under the Offences Against the State Acts and in relation to phone tapping. GSOC were specifically excluded from having powers under the 1993 Act, with members of the legislature submitting that giving GSOC powers to tap telephones would permit them to act ‘as a separate police force’. Michael McDowell, the then Minister for Justice, was even more explicit: “I would not be comfortable giving the Ombudsman Commission the right to tap the telephones of politicians or journalists in pursuit of its criminal investigations’. GSOC were also subsequently specifically excluded from the 2009 Surveillance Act, section 17 of which expressly provides that the powers under the Act, including surveillance and tracking powers, did not apply to them. This provoked considerable debate in the Dail but a proposed amendment to provide them with surveillance powers was not carried (69 against the proposed amendment as opposed to 63 for it).
However, GSOC were given powers upon establishment in 2005 under the Postal and Telecommunications Act 1983 (as amended) to request information on the use made of telecommunications services. They were also conferred with powers under the Criminal Justice (Terrorist Offences) Act 2005 which compelled a service provider to comply with a request for disclosure of traffic or location data retained for the purposes of the prevention, detection, investigation or prosecution of crime (including but not limited to terrorist offences). This Act was replaced by the Communications (Retention of Data) Act 2011, which was introduced in the dying days of the 30th Dail. Most recently, section 5 of the Garda Síochána (Amendment) Act 2015, permits GSOC to use surveillance and tracking devices, and to intercept postal packets and telephone conversations, powers which were previously unavailable to them.
What are the potential issues with GSOC’s accessing of phone records under the 2011 Act?
The Communications (Retention of Data) Act 2011 provides under section 6 that a member of An Garda Siochana not below the rank of Chief Superintendent, an officer of the Permanent Defence Forces below the rank of Colonel, or an officer not below the rank of principal officer in the Revenue Commissioners could request data from the service providers under the Act. While GSOC was not mentioned in the section 6 access provision, as the Act conferred powers on members of An Garda Síochána, it is reasonable to argue that GSOC had an implied power under the 2011 Act. Nevertheless such an interpretation raises a number of concerns.
When the legislature confers powers on any agency to suspend or qualify the individual rights of citizens it should, where possible, not do so by implication. In order to maintain the integrity of the right in issue, the legislature should expressly provide the agency with the power, and be in a position, particularly at debate stage, to justify that power in the light of the right at issue. This ensures that limitations on the right have been reflected upon and considered, better ensuring that any limitations are proportionate, the least restrictive in the circumstances, and apply only so far as is strictly necessary. Catch-all provisions, such as that provided for under section 98 of the Garda Síochána Act 2005, do not facilitate or promote reflection about the rights of citizens in the Dáil.
The second concern relates to clarity around the existence of GSOC’s powers to access data under the 2011 Act. Given the value placed by society on the autonomy of the individual, it follows that our laws should be predictable and certain so as to ensure that each citizen has fair opportunity to know the rules and how they will be applied. While it may be implied that the powers conferred upon An Garda Síochána by section 6 were also conferred upon GSOC, it is significant in this regard that section 12 of the Act, which provides for judicial oversight of compliance by the various agencies with powers under the Act, makes no reference to GSOC as one of the bodies subject to review. The Garda Siochana, the Defence Forces, the Revenue Commissioners and, since 2014, the Competition and Consumer Protection Commission are specifically mentioned. If the legislature intended to confer the relevant powers on GSOC, why did it not specifically reference it in the review provision under section 12 given that it did so with the other agencies? Furthermore, legal commentaries on the 2011 Act in the Annotated Statutes and Bar Review did not refer to GSOC in their interpretations of the agencies conferred with powers under section 6 of the 2011 Act. Such gaps do little to enhance comprehension or conceptual consistency; if lawyers are unsure, how does this sit with the ‘fundamental value’ that citizens “should know, or at least be able to find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful”?
Given such ambiguity, one wonders whether GSOC sought clarification on its interpretation of s.6 of the 2011 Act, particularly in the light of the rights at stake and its absence from the provision for review under section 12. This requirement of certainty takes on an added resonance when the rules in question provide powers to lawfully curtail the individual rights of citizens. Power conferring laws that suspend or qualify rights should – in order to maintain the integrity of the right in issue – be expressly provided for and justified in each instance, rather than included by in a catch-all provision under the 2005 Act which offers a rather imperfect mandate. The European Court of Human Rights has, for example, noted as far back as 1984 that because the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, ‘the substantive law itself…must indicate the scope and manner of exercise of any such discretion with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference’. More recently in Shimovolos v Russia (2011), the European Court of Human Rights held that
‘because of the lack of public scrutiny and the risk of abuse intrinsic to any system of secret surveillance, the following minimum safeguards should be set out in statute law to avoid abuses: the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law’.
In addition to promoting clarity, this demand for positive express legislative authorisation, review and justification can serve the important didactic purpose of reminding the power bearer of how seriously the State takes the rights of its citizens.
The third issue relates to legality, and in particular whether the designated judge has jurisdiction to review the exercise of powers by GSOC under the 2011 Act. It is important to note here that the 2005 Act confers the powers, immunities and privileges of membersof An Garda Siochana on designated officers of GSOC. While the 2005 Act specifically equates personnel within the two organisations, at no point in the 2005 Act is GSOC equated with An Garda Síochána. Section 12 can therefore not be read as providing for a review of compliance by GSOC with the terms of the Act by the designated High Court judge. This is significant, and raises issues about the actual existence of an express legal framework for reviewing GSOC’s practices, together with the lawful authority of an overseer to do so.
Aside from the difficulties relating to the protection of rights, clarity and legality, there are also questions to be addressed in relation to the oversight process between 2011 and 2014. It is not clear what oversight existed in relation to the 2011 Act until 2014. The designated judge under section 12 of the 2011Act makes no reference to GSOC in his 2011, 2012 or 2013 reports. It is only in the 2014 report that the designated judge mentions for the first time that he ‘attended the Office of An Garda Síochána Ombudsman Commission’. The report of 2015 also mentions that GSOC was visited. The legitimate question this begs is whether GSOC was using its perceived powers under the 2011 Act prior to 2014, and, if so, what independent oversight was in place in that period. If it was using its powers under the Act between 2011 and 2014, but was not subject to oversight, does this have consequences for information gathered by GSOC during that period?
If, as seems to be the case, powers to access data records were also exercised by GSOC between 2005-2011, the question of whether there was any oversight of the exercise of those powers also looms large. Again there is no reference to oversight of compliance by GSOC in any publically available reports by the designated judge under the 1993 and 2005 Acts in the relevant period. Such practices would also have to be measured against ECHR jurisprudence, which demands at a minimum that oversight mechanisms in respect of surveillance ‘must be vested with sufficient powers and competence to exercise an effective and continuous control over the surveillance’. In Klass v Germany the ECtHR noted that “[t]he Court must be satisfied that, whatever system is adopted, there exist adequate and effective guarantees against abuse.”
The right to privacy is viewed as a fundamental right that promotes autonomy and human dignity whilst also ensuring democratic freedom of association and expression. If the essence of such a right is to be protected and valued in a society, it requires that any limitations on its exercise should be justified, laid down in clear laws, apply only so far as is strictly necessary, and have robust, continuous, and effective statutory oversight mechanisms. Even from a simple analysis of the legislative process through which powers of surveillance have been conferred on GSOC, it is not clear that the legislature is taking such rights very seriously in Ireland.
Professor Shane Kilcommins and Dr Eimear Spain lecture at the School of Law at the University of Limerick.
General Election 2016 has, unsurprisingly, been dominated by the economy. However, an unlikely high-profile issue is that of the existence of the Special Criminal Court. Sinn Féin has thrust this issue into the lime-light with a pledge to repeal it in its manifesto. This has promptly led to attacks from other political parties, drawing attention to Sinn Féin’s connections with the IRA, and particularly the recent high-profile conviction of Thomas Murphy in the Special Criminal Court for tax-evasion. The level of this debate from both sides so far has, however, been wholly unsatisfactory from a human rights perspective. Gerry Adams’ suggestion that the existence of gangland murders shows that the Special Criminal Court does not work is as equally frustrating as Brian Hayes asking Mary Lou Mc Donald as to whether she thinks that Thomas Murphy is a good republican.
The relevance of this debate is not, however, limited to Ireland. Parallels can be drawn between Ireland’s experience of the Special Criminal Court and French Constitutional amendments currently being debated by its parliament. In turn, this can illuminate the key human rights issues at the heart of both states’ emergency responses.
France’s State of Emergency
Less than 72 hours after the attacks on Paris, French President François Hollande declared that France was at war and stresed the need for sweeping new laws to confront the terrorist threat. Hollande followed this up with the declaration of a state of emergency which was subsequently extended by parliament for a further 3 months. The emergency powers triggered by this declaration date back to 1955 and France’s last declaration of a state of emergency to deal with Algeria’s struggle for independence. These powers – outlined in legislation, not the French constitution – give French police the power to search homes without a warrant, ban protests and other public gatherings, and can potentially ensure control of the press and radio; although these latter provisions have not yet been triggered.
Hollande has also signalled his intention to effect permanent constitutional changes. The motivation for this is to place France’s emergency powers on a constitutional footing, insulating them from the possibility of a successful legal challenge. While France already has a number of constitutional emergency powers in its constitution – for example the militaristic state of siege – these powers are extremely draconian. By placing the existing legislative powers on a constitutional foothold, Hollande is seeking to enable ‘exceptional security measures without having to resort to the most drastic options currently in the Constitution.’
In principle this sounds like a positive development for human rights and the rule of law. The potential for the most draconian of measures that encroach severely on human rights is avoided while at the same time, the state’s response to terrorist threats can be beefed up.
Exceptional but not Drastic: The Special Criminal Court
This idea of having ‘exceptional security measures without having resort to the most drastic options currently in the Constitution, is strikingly similar to what the drafters of the Irish Constitution had in mind when constructing the emergency powers system in this state. Ireland’s principal emergency powers contained in Article 28.3.3° of the Constitution essentially allow for the suspension of every article of the constitution in a ‘time of war or armed rebellion’. The only restriction on this power is that the death penalty may not be re-introduced. Ireland was under a perpetual state of emergency from the outbreak of World War II in September 1939 until February 1995 following an IRA ceasefire.
The 1935 Constitution Review Committee upon whose recommendations the Constitution’s emergency powers are based upon also suggested a procedure for less serious emergencies to be included in the draft constitution. Such crises would be when ‘the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order’ and would permit the establishment of non-jury special courts. In this manner the need to declare a state of emergency and the extreme powers that would flow from this would be avoided.
While Ireland’s state of emergency remained in force from 1939-1995, in practice, no emergency legislation was actually on the statute books for much of this time. In contrast, the special courts clause contained in Article 38.3.1° of the Irish Constitution has resulted in the Special Criminal Court becoming a permanent feature on the Irish legal landscape. Indeed, its role has expanded to not only deal with terrorism-related offences but with organised crime. Minister for Justice Frances Fitzgerald also recently agreed to establish a new Special Criminal Court in order to alleviate the backlog in the existing system. In a similar pattern of normalising exceptional powers, the French authorities have already used their new emergency powers, not in the fight against suspected ISIS terrorists, but to place climate change protestors under house arrest during the Paris Climate Summit in December.
A declaration of a state of emergency and the requisite powers that flow from this are serious and present a profound challenge for human rights and the rule of law. Emergencies, however, may also protect human rights by quarantining exceptional powers to exceptional times; thus preventing them from seeping into the ordinary, everyday legal system. Divorcing ‘less-exceptional’ measures from the more extreme measures dilutes the stigma attached to them and increases the propensity for these ‘less-exceptional’ measures to become normalised and permanent. The permanent nature of the Special Criminal Court in Ireland is a testament to this. The current debate as to the continued existence of the Special Criminal Court has, however, been frustrating, ignoring these key concerns and instead focusing on cheap attacks or questionable reasoning.
The Challenge of Terrorism
It is not hard to imagine that a similar situation to Ireland’s Special Criminal Court will arise in France. Hollande has labelled the existing constitutional regime for a state of emergency and state of siege unsuitable for the fight against ISIS. They were designed for a different time and a different type of enemy. Thus while Hollande may have declared ‘war’ on ISIS and subsequently ordered airstrikes on the Islamic state and sought a UN Security Council resolution authorising ‘all necessary measures in compliance with international law’ to tackle ISIS in Syria and Iraq, he nevertheless views this war as qualitatively different from those France has waged in the past.
Declaring war on something implies that the solution is military. It also implies that it is temporary. The constitutional changes proposed by Hollande are, however, to the criminal justice sphere and police powers. Terrorism thus blurs the lines between war and crime. Crime, unlike war, is viewed as a permanent threat that we must live with every day. Counter-terrorist laws therefore are framed as being necessary in order to confront a threat of great magnitude, akin to war; however, they are also framed as being a necessarily permanent change to confront a permanent threat akin to criminality. It is because of this that many of the counter-terrorist measures we’ve seen enacted around the world in the aftermath of 9/11, and indeed the Irish Special Criminal Court are permanent.
A rush to draft laws in the aftermath of a serious crisis, where emotions run high, when people are afraid, and when the temptation to over-react is at its greatest must be resisted. This danger becomes even more heightened when the legal changes are to the permanent constitution of a state. France would do well to heed the lessons from Ireland.
Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. His research focuses on states of emergency, counter-terrorism, and human rights. He tweets @DrAlanGreene
We are delighted to welcome this guest post from Deirdre Malone, Director of the Irish Penal Reform Trust. The Trust recently launched a report on the experiences of LGBT people in prison in Ireland.
On 22 May 2015 I stood in the yard of Dublin Castle with my own brand new husband and watched the whooping victory of equality over discrimination. As happy newlyweds ourselves, we felt the profound importance of the occasion deeply. We saw Ireland shedding her old identity, becoming something new and brave and proud. On that day, victory felt swift and definitive. In reality it was the culmination of a decade of tenacious work and thousands of brave conversations. It was a challenge to a social system that once felt monolithic, intractable and inevitable. It represented a final blow of years of steady chipping at the hard crust of institutionalized inequality. But I wondered, were LGBT people in prison celebrating too on that day? Would they feel safe to do so?
While for those who work in the NGO sector, 22nd May 2015 was a jolting, joyful reminder that monumental change is indeed possible, the 33rd Amendment did not mark the end of homophobia, harassment or discrimination of LGBT people. That is doubly true for lesbian, gay, bisexual and transgender people who are in prison. LGBT prisoners form a “twice marginalized” population, falling outside of the ‘mainstream’ of LGBT community organizing and support services but also hidden and largely overlooked in terms of current prison policy.
International research reveals that homophobia is often amplified in male prisons as a result of a culture of “hyper-masculinity” and the traditional hierarchical structure which prevails. Transgender prisoners, particularly women, face disproportionately high instances and severity of violence and discrimination, both in and out of prison. They are not easily accommodated within the strict male/female structure of most prisons and may also experience violence and voyeurism in the context of prison showers or toilets – a particular concern in Ireland where 45% of prisoners are still required to use the toilet in the presence of another.
LGBT prisoners are also particularly at risk of experiences of discrimination, violence, sexual coercion and verbal harassment. Putting up a front, threatening or even engaging in violence in order to avoid being a victim of abuse is seen as something necessary within the prison environment
Of course, issues of homophobia, transphobia and the wider culture of heteronormativity also affect LGBT prison staff who also have experiences of homophobia, including being the targets of abuse by prisoners. The Irish Prison Service currently participates in the GLEN Diversity Champions programme through the ‘Inside Out’ network for LGBT prison staff but to date there has been no research or policy response addressing the specific needs and experiences of LGBT prisoners.
General good practice measures for safer prisons such as single cell accommodation as standard would help. It is common in many jurisdictions for “at risk prisoners” and LGBT prisoners especially, to be placed in protective custody to safeguard them from victimisation. However in practice conditions in protective segregation are often identical to conditions for prisoners placed in segregation for disciplinary reasons thus breaching fundamental rights principles. This can lead to longer term issues including mental health difficulties caused by the effects of isolation and more limited access to services. It is vital therefore that violent cultures and opportunities for abuse are targeted through the education of prison populations, training of staff, and effective independent complaints procedures. Further research is also needed in the areas of sexual health and behaviours in prison, the experiences of young LGBT people in prison and on the issue of sexual violence and coercion and their prevalence within the prison context.
For many years now, the Irish Penal Reform Trust have been examining and listening to the experiences of diverse vulnerable groups in prison, including Travellers, women, children and young people, and immigration detainees. The recent passage of the Irish Human Rights and Equality Commission Act 2014 sets out the positive duties of public bodies to eliminate discrimination, promote equality and protect human rights, and should act as a catalyst to address this area which has been neglected to date. We also hope that the result of the recent same-sex marriage referendum and the passage of the Gender Recognition Act 2015 will provide further impetus for reform to ensure that no LGBT person, wherever they might be, is left behind.
All of this must be understood in the wider context of overuse of imprisonment generally, and the ineffectiveness of the idea of retribution in challenging the conditions which are at the root of most punished crime – poverty, unemployment, homelessness, mental illness, addiction, desperation. The reality is that prison warehouses human misery, and by doing so, compounds it. It takes courage to challenge the status quo, but in every generation it is those that do who will also see the rewards of that courage. A challenge to the overuse of prison would lead to a more progressive, more effective, more humane, evidence-led criminal justice system – something which ultimately benefits us all.
Deirdre Malone is Executive Director of the Irish Penal Reform Trust www.iprt.ie
The IPRT report “Out on the Inside” was launched on 2 February 2016 at Wood Quay Venue, Dublin on 2 February 2016. It is available to download here
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We are pleased to welcome this guest post from Dr Aoife Duffy, Lecturer in International Human Rights Law at the Irish Centre for Human Rights, National University of Ireland Galway
On 10 November 2015, a 66-year-old ex Lance Corporal of the British Army’s Parachute Regiment was arrested in relation to the killing of three individuals who died during Bloody Sunday, which resulted in the deaths of 14 civilians following an anti-internment march in Derry on 30 January 1972. Accounting for conflict related violence and killings committed by the security forces in Northern Ireland has been problematic due to the hegemonic position of official discoures related to conflict, underpinned by various denial strategies, as outlined by Stanley Cohen in his seminal work, States of Denial: Knowing About Atrocities and Suffering. In Northern Ireland, a structure of denial was sustained at various points throughout the UK administration and the military-security establishment, including through close cooperation between between senior officers in the British army and the Attorney General regarding the prosecution of soldiers on serious criminal charges. The General Officer Commanding (GOC) the British Army in Northern Ireland, Sir Frank King, met with the Attorney General on 8 January 1974 and subsequently wrote to one of the most senior officers in the British Army, the Adjutant General Sir Cecil Blacker, based at Ministry of Defence offices in Whitehall, about the meeting. In short, General King was reassured by the position taken by the Attorney General, who informed him in no uncertain terms that ‘not only he himself but also the DPP and senior members of his staff, having been army officers themselves, having seen active service and knowing at first-hand about the difficulties and dangers faced by soldiers, were by no means unsympathetic or lacking in understanding in their approach to soldier prosecutions in Northern Ireland.’ Approximately 350 deaths were caused by state security forces between 1969 and 1994, and the army were responsible for 90% of these killings between 1969 and 1974. 54.1% of those killed by the security forces in Northern Ireland were civilians and 84% of these victims were Catholic. General King was informed that only 10% of the cases submitted to the DPP were prosecuted; that borderline cases (he cited the shooting of Joseph McCann) were routinely dropped, ‘unless there was evidence of brutality or callousness on the part of that soldier or evidence that the soldier had clearly, unjustifiably and substantially overstepped the mark in the use of force.’ Continue reading “Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland”
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 “Rape and the Criminal Justice System”
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 “Politics and The Policing Authority”
We are pleased to welcome this guest post by Conor Talbot. Conor is a PhD Candidate at the European University Institute, Florence, and an Associate Researcher at the Department of Economics, Trinity College Dublin. He can be contacted at email@example.com.
‘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.