Eimear Spain
University of Limerick, Law School, Faculty Member
This articles discusses the Consultation Paper on the defences of duress and necessity launched by the Irish Law Reform Commission including the need for reform, necessitated by the vague and uncertain nature of the law relating to the... more
This articles discusses the Consultation Paper on the defences of duress and necessity launched by the Irish Law Reform Commission including the need for reform, necessitated by the vague and uncertain nature of the law relating to the defences of duress and necessity, both in Ireland and beyond. Focus is placed on three issues which need to be addressed by the Law Commission prior to issue of the final report in relation to its review of the defences of duress and necessity, which it failed to adequately deal with in its 2006 consultation paper, namely: (1) the rationale underlying the defences; (2) whether they are justificatory or excusatory defences; and (3) operation of the proposed necessity defence in practice.
Research Interests:
Discusses the decision of the Grand Chamber of the European Court of Human Rights in the case of Vo v. France. The applicant, Mrs.Thi-Nho Vo, argued that France had violated Art. 2 of the European Convention on Human Rights 2 (ECHR) by... more
Discusses the decision of the Grand Chamber of the European Court of Human Rights in the case of Vo v. France. The applicant, Mrs.Thi-Nho Vo, argued that France had violated Art. 2 of the European Convention on Human Rights 2 (ECHR) by failing to provide a criminal remedy for the unintentional homicide of her unborn child. The European Court of Human Rights rejected this argument, and in so doing provided an interesting insight into the court's persistent tendency to analyse Art. 2 in terms of the abortion issue. The court's reluctance to guide individual states in such sensitive areas as the question of when the right to life begins is also highlighted by the Vo case. In addition to discussing the Vo case, this article will examine whether a criminal conviction is possible in Ireland in relation to the homicide of a foetus in utero.
Research Interests:
This article serves as an introduction to this special edition of the I.J.L.S. on the recent developments on abortion law in Ireland. It briefly explains what were the two main drivers behind the introduction of the Protection of Life... more
This article serves as an introduction to this special edition of the I.J.L.S. on the recent developments on abortion law in Ireland. It briefly explains what were the two main drivers behind the introduction of the Protection of Life During Pregnancy Bill 2013, namely the European Court of Human Right’s judgment against Ireland in the case of A., B. & C. v. Ireland, no. 25579/05 [2010] E.C.H.R. 2032 (16 December
2010) and the untimely death of Savita Halappanavar. It then reviews a series of public hearings, heard by the Joint Committee on Health and Children in January and May 2013, on how to best meet Ireland’s obligations under the European
Convention on Human Rights and under the Constitution. Finally it details the genesis of this special edition and introduces the work of the contributors.
2010) and the untimely death of Savita Halappanavar. It then reviews a series of public hearings, heard by the Joint Committee on Health and Children in January and May 2013, on how to best meet Ireland’s obligations under the European
Convention on Human Rights and under the Constitution. Finally it details the genesis of this special edition and introduces the work of the contributors.
Research Interests:
The inability of women carrying foetuses suffering from fatal abnormalities to access a termination in this jurisdiction has been discussed widely in the media and the political sphere in recent times. Diverging views have emerged on... more
The inability of women carrying foetuses suffering from fatal abnormalities to access a termination in this jurisdiction has been discussed widely in the media and the political sphere in recent times. Diverging views have emerged on whether Article
40.3.3 could accommodate terminations in these circumstances with the government taking the view that the termination of a pregnancy of this nature is not permissible under the Irish Constitution. This article proposes to unpick this
presumption, focusing on three interpretations of Article 40.3.3which would permit terminations in these circumstances. The first argument is that the definition of the
unborn does not include a foetus which does not have the capacity to survive outside the womb where such incapacity is not due exclusively to extreme immaturity.
Secondly, it is argued that the life in question (that is, unviable life) can not be considered equal to the right to life of the mother. Finally it is argued that it is not practicable for the State to defend and vindicate this life. Essentially it is a question of
whether there is a shift in the manner in which the two rights are balanced in these circumstances. Ultimately, it is argued that the termination of foetuses suffering from fatal abnormalities, such that they are incompatible with life outside the womb, is constitutionally permissible, and that a referendum to allow such terminations is not necessary. It is inevitable that a case involving circumstances such as these will
appear before the Irish courts: we argue that the Government should pre-empt such a case, and legislate to allow for terminations where the foetus is suffering from a fatal abnormality.
40.3.3 could accommodate terminations in these circumstances with the government taking the view that the termination of a pregnancy of this nature is not permissible under the Irish Constitution. This article proposes to unpick this
presumption, focusing on three interpretations of Article 40.3.3which would permit terminations in these circumstances. The first argument is that the definition of the
unborn does not include a foetus which does not have the capacity to survive outside the womb where such incapacity is not due exclusively to extreme immaturity.
Secondly, it is argued that the life in question (that is, unviable life) can not be considered equal to the right to life of the mother. Finally it is argued that it is not practicable for the State to defend and vindicate this life. Essentially it is a question of
whether there is a shift in the manner in which the two rights are balanced in these circumstances. Ultimately, it is argued that the termination of foetuses suffering from fatal abnormalities, such that they are incompatible with life outside the womb, is constitutionally permissible, and that a referendum to allow such terminations is not necessary. It is inevitable that a case involving circumstances such as these will
appear before the Irish courts: we argue that the Government should pre-empt such a case, and legislate to allow for terminations where the foetus is suffering from a fatal abnormality.
Research Interests:
This issue of assisted dying is once again in the public consciousness given several recent high-profile cases on both sides of the Atlantic challenging the legal prohibition on assisted dying. Central to any debate on this topic are the... more
This issue of assisted dying is once again in the public consciousness given several recent high-profile cases on both sides of the Atlantic challenging the legal prohibition on assisted dying. Central to any debate on this topic are the emotions which motivate those involved in assisted dying. It is difficult to imagine a more emotionally charged event than the taking of life, particularly the life of a loved one who is suffering, a fact often acknowledged by the courts. Yet, the courts, review bodies and commissions, legislators and commentators have failed to place emotions at the centre of the debate. This article will concentrate on the role which emotions play in end of life decisions and the proper legal response to such decisions given the strong emotions which underpin them. It seeks to address the questions of whether and why these emotions are relevant to the imposition of criminal liability by pointing to the properly exculpatory nature of emotions of this nature in the criminal law, particularly given the modern understanding of emotions as capable of both rationality and evaluation. The existing state of the law in this area is examined, focusing on the availability of existing criminal law defences and how these could be utilised, reformed or supplemented to deal with the circumstances under consideration. Following a review of the existing defences available to one who assists another to die, a new defence is proposed which looks to the love and/or compassion experienced by the defendant.
