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

Win Lin v Governor of Cloverhill Prison.

We are pleased to welcome this guest post from Wendy Lyon, who is a trainee solicitor with KOD Lyons, a human rights and criminal law firm.

The recent High Court case of Win Lin v Governor of Cloverhill Prison ([2014] IEHC 214) allowed a brief light to shine on the issue of trafficking for forced labour in cannabis growhouses. In Ireland and the UK, this appears to be a growing problem, affecting mainly Vietnamese and Chinese migrants. Despite strong evidence of coercion in many cases, they are regularly prosecuted under the Misuse of Drugs Acts, some receiving lengthy custodial sentences. A recent report by the Migrant Rights Centre Ireland provides some detail on the scope of the problem.

Penalising people for offences they were trafficked to commit is a breach of Ireland’s European and international obligations. Under Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings, states are obliged to “provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so”. Article 8 of EU Directive 2011/36/EU goes further in requiring states to also allow for non-prosecution, where the alleged offence was committed as a direct result of human trafficking. The Irish government considers these provisions to be satisfied by DPP guidelines which state that in such cases “the prosecutor should consider whether the public interest is served by a prosecution of the suspect”. However, reading Article 8 in conjunction with Recital 14 of the same directive, it is clear that a policy of prosecutorial discretion will only suffice if that discretion is actually exercised in appropriate cases.

Win Lin’s case was an Article 40 (habeas corpus) application brought while Mr Lin was awaiting trial on cannabis cultivation, having been found by Gardaí locked into a growhouse. He argued that his prosecution – and hence his detention – was unlawful, having regard to the above-mentioned EU Directive. In his judgment, delivered on 23rd April, Justice Gerard Hogan declined to interpret the Directive as affording victims of human trafficking an entitlement not to be prosecuted; “Article 8”, he wrote, “at most ensures that the public prosecutor of each Member State is entitled to stipulate that no prosecution will take place where a trafficked person has been compelled to commit crimes which are as a direct result of having been trafficked”. He did, however, recognise that such a policy could not exist on paper only: “it is clear that serious consideration would have to have been given by the Director of Public Prosecutions as to whether there should have been a prosecution in the first place”. Judge Hogan also made reference to the recent UK case L, HVN, THN and T v R, in which the Court of Appeals held that any such prosecution would be deemed an abuse of process.

Mr Lin’s application failed, however, on the basis that he had not established he was a victim of trafficking in the first place. It is this aspect of the decision that is concerning, as it seems to apply a stricter definition of “trafficking” than that intended under Irish or international law.

The legal definition of “trafficking” is poorly understood, and frequently misrepresented in both media and advocacy. It derives from the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. While some countries (notably the Netherlands and UK) have vastly expanded the definition in their own domestic law, Irish law follows the Protocol by requiring the presence of three elements, which are often summarised as the “what”, the “how” and the “why” of human trafficking. These elements are contained in Sections 1 and 4 of the Criminal Law (Human Trafficking) Act 2008 as amended:

• The “what” element is satisfied where the trafficker procures, recruits, transports or harbours a person; transfers, delivers or places a person in the custody of another person; causes a person to travel into, out of or within the State; takes custody, care or charge of a person or takes a person under their control; or provides a person with accommodation or employment.
• The “how” element is satisfied by the use of coercion, threats, abduction or other force; deception or fraud; abuse of authority or taking advantage of vulnerability to the extent that the trafficked person had no real and acceptable alternative; actual/attempted sale of the person; or paying a fee or another benefit on a third party to allow trafficking to take place. The person’s consent is irrelevant.
• The “why” element is satisfied where the act is done for the purpose of exploitation, which can include labour exploitation (defined as forced labour or servitude), sexual exploitation, organ removal, forced begging or forced criminal activity.

In Mr Lin’s case, Judge Hogan explicitly accepted that the “why” element was present: “It is true that Mr. Lin was exploited in the sense that I have found that his incarceration in the growhouse amounted to conditions of servitude within the meaning of s. 1 of the 2008 Act.” He also appeared to accept the presence of the “how” element: “Mr. Lin was deprived of his liberty under the nascent – but real – threat of violence for a significant period in circumstances where, by reason of his very vulnerability in terms of language and immigration status, he could not effectively independently secure his release”. Inexplicably, however, Judge Hogan’s approach to the “what” element failed to have regard to the criteria as outlined above (and as contained in the same Section 1 of the 2008 Act that he refers to in addressing the “why”). Instead, he found that there was no evidence to show that Lin had been trafficked into the State. But there is no requirement in law that alleged victims show they were trafficked into the State. They simply have to show that they were trafficked, via the “what” and “how” elements, into the exploitative situation.

It is clear from the accepted evidence that the “what” conditions were, in fact, met: at minimum, Mr Lin was given accommodation and work by his exploiters. Indeed, this is likely to be the easiest condition for any alleged trafficking victim to satisfy. The threshold for the other two elements will generally be harder to reach; in particular, alleged victims may find it difficult to establish coercion. It is surprising to see an applicant succeed in proving those aspects of his claim, but fall on the other.

In media reports of this case, much was made of a photograph taken of Mr Lin posing with Gardaí during the visit of Queen Elizabeth. This was also a factor against him in the judgment, as it was taken to demonstrate that he was “at liberty” for some period of time. Yet Judge Hogan also accepted that at the time Lin was found, he was not at liberty and in fact had no “obvious means of escape”. The importance Judge Hogan placed on the question of how Lin entered the State prevented him from considering that the trafficking offence could have taken place after the period in which he was at liberty. But nothing in the 2008 Act, or anywhere else, suggests that it couldn’t.

There are some positives to take from this judgment. The finding that Lin’s conditions did amount to servitude and coercion will undoubtedly serve as a useful precedent, and the approval of the “abuse of process” jurisdiction for trafficked defendants is welcome (although the high degree of compulsion required under the UK judgment is a matter of some concern). Nonetheless, it is a harsh outcome for Mr Lin, who seems to have met all the criteria envisaged by the Oireachtas. It is likely to lead to harsh outcomes for others who seek to be identified as victims of trafficking – whether by the courts, the DPP or the Garda National Immigration Bureau. It will be very worrying if this judgment is seen as establishing a principle that complainants must prove they were trafficked at and from the moment they entered the State. As it is not required by the legislation, it is a burden that alleged victims of trafficking should not have to meet.

Win Lin v Governor of Cloverhill Prison.

Taxes, juries and emergency powers: Murphy v Ireland

In a resolutely formalistic judgment, the Supreme Court yesterday rejected a constitutional challenge to the hearing of “ordinary” cases in the Special Criminal Court. Thomas Murphy had been charged with failing to make his tax returns — an indictable offence that is tried usually in the “ordinary courts” —  but the DPP certified that such courts are “inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of Thomas Murphy”.

Before trial, Murphy issued a plenary summons seeking declaratory relief, claiming, inter alia, that the DPP’s power of certification fails to guarantee his right to equality and his right to a fair trial in due course of law before a jury of his peers, and it does not permit the plaintiff argument to be heard before the issue of the certificate, or dispute it afterwards. Moreover, it was claimed that that the exercise of the DPP’s powers could be predicated on false or inaccurate reasons, but there is no means of ensuring disclosure of such reasons, and that review is possible only where mala fides is demonstrated.

The Supreme Court dismissed Murphy’s claims, allowing trial to proceed. Continue reading “Taxes, juries and emergency powers: Murphy v Ireland”

Taxes, juries and emergency powers: Murphy v Ireland

Reform of Irish Sexual Offences Legislation

We are delighted to welcome this guest post by Dr Susan Leahy. Susan is a Lecturer in Law at the University of Limerick.

In recent times, a series of cases have highlighted problems with sentencing in sexual offence cases. The trials of Anthony Lyons and Patrick O’Brien have caused many to question whether our criminal justice system is capable of providing justice for victims of sexual violence. Certainly, the issue of sentencing in sexual offence cases is a controversial one and one which will no doubt continue to generate debate. However, another serious problem with the law on sexual offences which has received less attention of late is the legislative inertia in relation to the substantive and procedural rules which define the offences themselves, as well as providing for special rules of evidence for sexual offence trials. The last substantial review of the law in this area occurred with the passing of the Criminal Law (Rape) Act 1981  and the Criminal Law (Rape)(Amendment) Act 1990. Since then, although there have been some piecemeal developments such as the reform of the statutory rape laws in 2006, the law has remained largely stagnant. In this respect, Ireland has lagged considerably behind other common law jurisdictions such as England and Wales who substantially overhauled their sexual offences law ten years ago with the introduction of the Sexual Offences Act 2003. Minister Alan Shatter has recently announced that the Department of Justice has been engaging in a review of Irish sexual offences law and the Taoiseach has promised that a sexual offences Bill will be published this year. This post outlines some reforms which it is to be hoped will be included in any prospective legislative reform. Continue reading “Reform of Irish Sexual Offences Legislation”

Reform of Irish Sexual Offences Legislation

Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond

The Department of An Taoiseach has published the overly ambitious legislative agenda for the current Dáil and Seanad session. The Immigration, Residence and Protection Bill 2010 will (hopefully!) be heading to Committee Stage this term. The 2010 Immigration Bill has been around in essence since 2006, and will unlikely be coming into force for some time to come yet, despite severe need for fundamental reform of Ireland’s immigration and asylum laws.  Previous blog posts have discussed concerns with the 2010 Bill and its provisions, as well as noting the severe delays in debating this bill [see, here, here and here].  In the immediate future, a number of significant bills are expected be published that will engage Ireland’s human rights obligations under domestic, European and international human rights law. Of particular note in this regard will be establishing the DNA database (see Vicky’s Blog Carnival posts on DNA databases) and reforming the law on mental capacity (see Law Reform Commission’s report here and Human Rights in Ireland contributions to the wider capacity debate here).

A large number of other  Schemes/Heads of Bills are currently being drafted up as bills, in particular as regards criminal justice issues, corruption Continue reading “Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond”

Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond

Assessing Lubanga

Human Rights in Ireland is delighted to welcome this guest post from Julie McBride. Julie is a PhD Candidate at Queen’s University Belfast, researching the development of the war crime of child soldier recruitment in international criminal law, and a member of the United Nations Global Experts, specialising in international crime and transitional jus

tice.

In the same week as Kony 2012 broke viral video records and the issue of child soldiers became the ‘cause du jour’, the International Criminal Court handed down its first judgment, in a case that had focused solely on the issue. At the end of an epic three-year trial that had suffered frequent delays and interruptions, Thomas Lubanga of the Democratic Republic of the Congo (DRC) was found guilty of recruiting children for use in armed conflict.

Lubanga’s crimes took place during a tribal conflict between the Hema and Lendu in the eastern district of Ituri that took place between 2000 and 2003. The conflict was exacerbated by the involvement of the Ugandan army and by the attractive presence of a variety of rich mineral deposits in the region. Lubanga admitted being the founding president of the Union of the Congolese Patriots (UPC), a Hema political party, but denied leading its military wing, the FPLC. However, Prosecutors at the ICC argued that he had played a military role with the aim of maintaining and expanding his control over Ituri and its gold reserves. Lubanga was arrested in 2005 by Congolese authorities on charges of genocide and crimes against humanity, Continue reading “Assessing Lubanga”

Assessing Lubanga

Self-issued Search Warrants and Constitutional Rights

Supreme Court judgments are coming thick and fast at the moment as two of the members of the bench (Finnegan and Macken JJ.) are set to retire at the end of the month. Last Thursday alone five judgments were issued including one rejecting a constitutional challenge to the Criminal Law (Sexual Offences) Act 2006. In another of the judgments, the focus of this post, a constitutional challenge had greater success.

Damache v DPP [2012] IESC 11 centred on the constitutionality of s.29(1) of the Offences Against the State Act 1939, as amended by s.5 of the Criminal Law Act 1976. The appellant was initially suspected by the Gardaí of involvement in a conspiracy to murder Lars Vilks, a Swedish cartoonist who had depicted the Islamic prophet Mohammad with the body of a dog. The appellant was also suspected of making a threatening phone call to an individual in the US. Following approximately six months of investigation, the Gardaí decided to search the dwelling of the appellant and, under the terms of s.29(1) as amended, Detective Superintendent Dominic Hayes issued a search warrant for that dwelling. The warrant was issued on March 8th 2010 and executed on the following day. Continue reading “Self-issued Search Warrants and Constitutional Rights”

Self-issued Search Warrants and Constitutional Rights

Call for Papers: Ireland and the United Nations Framework for Business and Human Rights

A one-day conference organised by the Irish Centre for Human Rights and the School of Law, NUI Galway entitled “Ireland and the United Nations Framework for Business and Human Rights” will take place on 24 March 2012 at the National University of Ireland Galway.  The conference seeks to explore and analyse issues of law and policy for Ireland arising from the 2011 adoption by the United Nations of Professor John Ruggie’s framework for business and human rights.  The framework emphasises a State’s duty to protect human rights, a corporate responsibility to respect human rights and the need to provide remedies to respond to violations of human rights by business.  This conference seeks to look beyond the voluntary corporate social responsibility approach to business and human rights; as Maurice Manning, President of the Irish Human Rights Commission has observed, “voluntarism can never be a substitute for global standards on businesses’ mandatory compliance with human rights”. The organisers welcome in particular contributions which address seek to address legal questions which arise in relation to the UN framework on business and human rights.  Ireland represents an obvious case study in this context, given the presence of numerous multinational corporations, increasing privatisation of public services and allegations of corporate involvement in human rights violations both in and outside of Ireland. The conference aims to address the following topics:

  • Legal and policy approaches to regulation of Irish companies for human rights
  • Obligations of the State and companies when public functions are privatised
  • Role of extraterritorial jurisdiction in Irish law to address violations committed overseas by Irish companies or multinationals based here
  • The potential role of criminal law to address violations of human rights by business
  • Civil litigation as a means accountability – lessons from the Alien Tort Claims Act
  • Remedies for victims

Abstract Submission

Abstracts should be sent by 21 December 2011 to: Dr Shane Darcy (shane.darcy@nuigalway.ie) and Dr Ciara Hackett (ciara.hackett@nuigalway.ie). Successful applicants will be informed in January 2012 of their acceptance to the conference. For further information and registration for the conference please contact: Hadeel Abu Hussein: h.abushussein1@nuigalway.ie

Call for Papers: Ireland and the United Nations Framework for Business and Human Rights

Pre-Trial Detention & Legal Aid in Malawi

HRiI is delighted to welcome this guest post from Sonya Donnelly, a barrister-at-law and law tutor, who will be working as a programme lawyer on pre-trial detention with the Department of Justice of Malawi in the Legal Aid Department. Sonya’s book (with Sarah Carew) The Devil’s Handbook was recently published by Round Hall.

Later this week I will be leaving these fair shores to spend a year in Malawi working on an access to justice and prison reform project with Pamodzi Promoting Rule of Law, a non-profit Rule of Law charity established by the Law Society and Bar Council. Myself and my two colleagues, barrister Ruth Dowling and solicitor Carolann Minnock, will be based in Lilongwe and partnering with the Ministry of Justice Legal Aid Department, the Department of Public Prosecutions and the Paralegal Advisory Service (PASI).  The project is focusing on increased access to Legal Aid for those within the Criminal Justice system, with particular emphasis on pre-trial prisoners. On any one day there might not be a qualified legal person in a criminal court, with a policeman acting for the Prosecution, the defendant unrepresented and Magistrate might not be in any way qualified legally. Our project will ensure the Rule of law is upheld in the Criminal Courts.  It is believed that increasing access to legal services will ensure a greater number of prisoners are released on bail, while also decreasing the time spent by those on remand.  Crucially, we are hoping to ensure that prisoners are monitored so cases are processed quickly, fewer become lost in the system and that legal representation will also result in a decrease of those  wrongly convicted.

Defendants in Malawi face physical, financial and language barriers to legal representation. Most live in remote rural areas on an income of approximately $1 per day, and do not speak English – the language of the court. With no representation defendants are often held in custody for years, until a trial court acquits or sentences them, often far longer than the maximum sentence allowed for the offences they are alleged to have committed.  Dockets are regularly misplaced Continue reading “Pre-Trial Detention & Legal Aid in Malawi”

Pre-Trial Detention & Legal Aid in Malawi

Irish Penal Reform Trust to Hold Forum on Spent Convictions

On Tuesday 10th of May the Irish Penal Reform Trust (IPRT) will run an event entitled “Breaking the Record: Spent Convictions & Discrimination” in Pearse Street Library from 5 – 6:30 pm.  Bobby Cummines the Chief Executive of UNLOCK – the National Association of Reformed Offenders in the United Kingdom will give a presentation and a panel will respond from an Irish perspective.  The Irish Penal Reform Trust are particularly interested in hearing from people who have experienced barriers as a result of having a criminal conviction and encourages people to attend and share their experiences.

According to IPRT Ireland is the only country in the EU, and one of a small number of member states of the Council of Europe that does not have legislation providing for the expungement of criminal records (for certain minor offences after remaining conviction-free for a specified period of time).  The Law Reform Commission published a Report on Spent Convictions in 2007 that made recommendations for the introduction of a statutory spent convictions scheme.  That work recognised that a criminal record can be a significant barrier to many areas of life including employment and education and has implications in many other arenas such as insurance, travel and banking.  The Spent Convictions Group (Human Rights Committee of the Law Society, in conjunction with Ballymun Community Law Centre, Ballymun Local Drugs Task Force, Business in the Community, Northside Community Law Centre and Northside Partnership) also published a Report in 2009 entitled “Disclosure of Criminal Convictions: Proposals for a Rehabilitation of Offenders Scheme”.

This body of work in conjunction with campaigning from the IPRT culminated in the Spent Convictions Bill, which was introduced into the Dáil in 2007.  Although the Bill meet with mainly positive cross-party support little legislative progress has been achieved.  The new Government has given a commitment to publishing a Bill on this area before July 2011, which has been welcomed by IPRT.  This forum is timely and provides an excellent opportunity for interested persons and organisations to engage in the law reform process.  The event is free to attend, however, there is limited availability as such early registration is advised.  See here.

Irish Penal Reform Trust to Hold Forum on Spent Convictions