- Law Department
New House
Maynooth University
Kildare
Ireland
https://www.maynoothuniversity.ie/law/our-people/sinead-ring
Sinéad Ring
Maynooth University, Law, Faculty Member
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The cover artist for this issue is Hannah Tiernan, who is currently studying art at the National College of Art and Design, Dublin. She works mainly in sculpture, installation and photography. The photograph is part of an installation... more
The cover artist for this issue is Hannah Tiernan, who is currently studying art at the National College of Art and Design, Dublin. She works mainly in sculpture, installation and photography. The photograph is part of an installation piece consisting of a large scale mono print on calico. In front hangs a muslin sheet imprinted with footprints and reflecting a projected series of fallen angles. For further information on the project, click on the attached document. More of Hannah Tiernan's work is on show at: https://www.facebook.com/HannahTiernanArtist?ref=stream.
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This article considers the phenomenon of historical gendered institutional harm, examining the widespread incarceration of women and girls in Ireland through the decades following independence in 1922. In this period, thousands of women... more
This article considers the phenomenon of historical gendered institutional harm, examining the widespread incarceration of women and girls in Ireland through the decades following independence in 1922. In this period, thousands of women and girls were confined in a network of sites including Magdalene Laundries and Mother and Baby Homes. The article considers the responses to this history, focusing on those fields which concern themselves with matters of “wrongdoing” and “harm,” responses grounded in law and legalism. We explore both the utility and the limits of these approaches before proposing a criminological research agenda which draws on the centrality of the state in the perpetration of gendered violence. Although Ireland has become a by-word as a case of historical institutional abuse internationally, it remains remarkably understudied by criminologists. The article explores how the Irish example can speak to the discipline of criminology by forcing us to reimagine how we conceive of gendered harms and state-perpetrated harms.
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A key contribution of Christie’s has been to show that the notion of the ideal victim (and offender) is concerned with meaning-making. It helps society to make sense of the suffering of individuals, and to respond appropriately to... more
A key contribution of Christie’s has been to show that the notion of the ideal victim (and offender) is concerned with meaning-making. It helps society to make sense of the suffering of individuals, and to respond appropriately to individuals’ demands for justice. However, as Christie (1986) makes clear, in order to qualify as an ideal victim, a person cannot threaten established social hierarchies. Similarly, the ideal offender must be someone who does not threaten the status quo: they must be outside the norm, a kind of monster. The contours of who can and cannot be an ideal victim or ideal offender illuminate the values held by a particular society. This chapter examines the salience of Christie's conceptualisation of the ideal victim/offender in the context of legal and political responses in Ireland to reports of historical childhood sexual abuse. It argues that abusers were typically constructed as monstrous, but victims were not ‘ideal’ because they threatened the established order of Church and State. It is argued that, contrary to Christie, non-ideal victims may still gain political purchase, if their offenders are constructed as ideal offenders.
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This thesis interrogates the construction of fairness to the accused in historic child sexual abuse trials in Ireland. The protection of fairness is a requirement of any trial that claims to adhere to the rule of law. Historic child... more
This thesis interrogates the construction of fairness to the accused in historic child sexual abuse trials in Ireland. The protection of fairness is a requirement of any trial that claims to adhere to the rule of law. Historic child sexual abuse trials, in which the charges relate to events that are alleged to have taken place decades previously, present serious challenges to the ability of the trial process to safeguard fairness. They are a litmus test of the courts’ commitment to fairness. The thesis finds that in historic abuse trials fairness to the accused has been significantly eroded and that therefore the Irish Courts have failed to respect the core of the rule of law in these most serious of prosecutions. The thesis scrutinises two bodies of case law, both of which deal with the issue of whether evidence should reach the jury. First, it examines the decisions on applications brought by defendants seeking to prohibit their trial. The courts hearing prohibition applications face a dilemma: how to ensure the defendant is not put at risk of an unfair trial, while at the same time recognising that delay in reporting is a defining feature of these cases. The thesis traces the development of the prohibition case law and tracks the shifting interpretations given to fairness by the courts. Second, the thesis examines what fairness means in the superior courts’ decisions regarding the admissibility of the following kinds of evidence, each of which presents particular challenges to the ability of the trial to safeguard fairness: evidence of multiple complainants; evidence of recovered memories and evidence of complainants’ therapeutic records. The thesis finds that in both bodies of case law the Irish courts have hollowed out the meaning of fairness. It makes proposals on how fairness might be placed at the heart of courts’ decisions on admissibility in historic abuse trials. The thesis concludes that the erosion of fairness in historic abuse trials is indicative of a move away from the liberal model of criminal justice. It cautions that unless fairness is prioritised in historic child sexual abuse trials the legitimacy of these trials and that of all Irish criminal trials will be contestable
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The cover artist for this issue is Hannah Tiernan, who is currently studying art at the National College of Art and Design, Dublin. She works mainly in sculpture, installation and photography. The photograph is part of an installation... more
The cover artist for this issue is Hannah Tiernan, who is currently studying art at the National College of Art and Design, Dublin. She works mainly in sculpture, installation and photography. The photograph is part of an installation piece consisting of a large scale mono print on calico. In front hangs a muslin sheet imprinted with footprints and reflecting a projected series of fallen angles. For further information on the project, click on the attached document. More of Hannah Tiernan's work is on show at: https://www.facebook.com/HannahTiernanArtist?ref=stream.
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Ireland has some of the most restrictive abortion laws in the world. Abortion has been criminalised since 1861, and the passage of the 8 th Amendment in 1983 introduced ‘the right to life of the unborn’ into the Constitution. The effects... more
Ireland has some of the most restrictive abortion laws in the world. Abortion has been criminalised since 1861, and the passage of the 8 th Amendment in 1983 introduced ‘the right to life of the unborn’ into the Constitution. The effects of the 8 th Amendment are felt on a daily basis by women leaving Ireland for abortion, by pregnant women receiving maternal care, by doctors caring for pregnant women, and by lawyers working for the health service. As predicted by the then-Attorney General Peter Sutherland at the time of the referendum, the 8 th Amendment has introduced an uncertain and practically unusable position to Irish law. It has, simply put, become “unliveable”. In late 2014 Labour Women, a branch of the Irish Labour Party, established a Commission for Repeal of the 8 th Amendment. That Commission comprised three groups: a political group, a medical group, and a group of legal experts. The authors of this paper are those legal experts. In this paper, we first outline the leg...
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in Special Issue on Towards Transitional Justice (eds K O’Donnell, M O’Rourke and J. M. Smith) 55:1-2 (forthcoming Spring-Summer, 2020). The history of the Irish State is littered with shamed bodies. For decades the State collaborated... more
in Special Issue on Towards Transitional Justice (eds K O’Donnell, M O’Rourke and J. M. Smith) 55:1-2 (forthcoming Spring-Summer, 2020). The history of the Irish State is littered with shamed bodies. For decades the State collaborated with religious orders in incarcerating children and single women, shamed by their poverty, race, disability, or association with sexual transgression (Fischer Gender, Nation; O’Sullivan and O’Donnell; Smith; Buckley). Shaming practices such as head shaving, using numbers to identify children, or flogging were used to punish and control (Arnold; Coleman 121; Commission to Inquire into Child Abuse [CICA] vol. 1, ch. 8). Women and children in industrial or reformatory schools, psychiatric hospitals, County Homes, and Magdalene Laundries were burdened with a stigmatized identity that meant total exclusion from society (O’Donnell and O’Sullivan 257). As they have begun to speak publicly about their experiences, victim-survivors have forced the State and Irish society to acknowledge this history. Their testimony to experiences of neglect, beatings, forced labor, sexual assault, and imprisonment are an indictment of the sovereign State’s claim to protect its most vulnerable and to detect and punish crime within its territory. In response, the State offers an architecture of apology, investigation, and redress. Scholars have traced patterns of violation of domestic and international norms at the core of this framework (Gallen and Gleeson; O’Rourke, “The Justice for Magdalenes Campaign”; Ring, “The Victim of Historical Abuse”). These legal responses can usefully be analyzed in terms of the key objectives of transitional justice (truth telling; accountability; redress and reparations, and guarantees of non- recurrence). However transitional justice and its processes are themselves contingent and capable of oppression. Suppressed and marginalized knowledges may be omitted or excluded in the name of transitional justice (Mamdani; van Marle; Koggel). This article contributes to the literature exploring epistemic injustice in transitional justice processes by scrutinizing the Irish State’s legal responses to historical institutional abuse.2 In particular, we develop a theory of State shame that describes and explains the ways the Irish State perpetuates epistemic injustices against people who suffered abuse in State institutions. We unpack the relationship between the State’s performance of shame in these legal responses and its need to preserve its sovereignty—its professed singular competence to determine how painful national events are understood and resolved (Dean). We argue that the State uses discourses of its own shame to legitimate legal responses that prioritize its sovereignty over the demands of true shame. We show how this produces significant epistemic injustices in the present against people who suffered institutional abuse as in the past.
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Adopting the special issue’s broad definition of criminal law reform, this article explores some of the ways the Irish criminal process is grappling with the demands for justice of adults who report childhood sexual abuse. In particular,... more
Adopting the special issue’s broad definition of criminal law reform, this article explores some of the ways the Irish criminal process is grappling with the demands for justice of adults who report childhood sexual abuse. In particular, it shows how the cultural notion of trauma is bound up with the construction of victims’ suffering. In historical child sexual abuse prosecutions, trauma is shown to be an effect of the abuse on the victim/survivor; a site of mediation of the relationship between the state and victims; and a site of mediation of the relationship between the state and its past. The article first explores these insights in relation to the law’s approach to questions of alleged procedural unfairness to defendants flowing from the passage of time. Trauma is exposed as both legitimating some forms of suffering, and disqualifying others. The article then employs the trope of trauma to expose the problems with current approaches to cross-examination of vulnerable victims a...
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This article reviews the decisions of the US state courts on the admissibility of expert testimony on recovered memory in historic child sexual abuse prosecutions. Unlike their English and Irish counterparts, most US courts scrutinise the... more
This article reviews the decisions of the US state courts on the admissibility of expert testimony on recovered memory in historic child sexual abuse prosecutions. Unlike their English and Irish counterparts, most US courts scrutinise the reliability of expert evidence on recovered memory. In examining the US decisions the article explores the challenges posed to the criminal process by the contested scientific status of recovered memory theory. It sets out due process arguments why expert evidence on the topic should not be admitted in a criminal trial.
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246 Irish Student Law Review [Vol. 14 History In 2004 the applicant (A) was convicted on a plea of guilty of the offence of unlawful camal knowledge of a girl under the age of 15 (also known as defilement of a girl under the age of 15)... more
246 Irish Student Law Review [Vol. 14 History In 2004 the applicant (A) was convicted on a plea of guilty of the offence of unlawful camal knowledge of a girl under the age of 15 (also known as defilement of a girl under the age of 15) contrary to section 1(1) of the Criminal Law ( ...
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This model piece of legislation provides for: "An Act to respect human life during pregnancy by affirming pregnant women’s constitutional rights; recognising that sustaining embryonic and foetal life in pregnancy is an important... more
This model piece of legislation provides for: "An Act to respect human life during pregnancy by affirming pregnant women’s constitutional rights; recognising that sustaining embryonic and foetal life in pregnancy is an important social role, which should be voluntary and consensual, and enabling access to abortion, and in respect of related matters".
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Prohibition applications relating to historic child abuse charges are a litmus test of the courts’ commitment to upholding fairness to the accused. This article argues that the prohibition case law reveals two trends: one in which... more
Prohibition applications relating to historic child abuse charges are a litmus test of the courts’ commitment to upholding fairness to the accused. This article argues that the prohibition case law reveals two trends: one in which fairness is being marginalised; and another in which it is given a contextualised meaning. The article argues that the latter approach represents an attempt to re-imagine fairness to the accused in prohibition applications. Analysing fairness in context is shown to be a continuation of a tradition in Irish constitutional jurisprudence of understanding fairness to the accused as both fundamental and evolving.
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in Special Issue on Towards Transitional Justice (eds K O’Donnell, M O’Rourke and J. M. Smith) 55:1-2 (forthcoming Spring-Summer, 2020). The history of the Irish State is littered with shamed bodies. For decades the State collaborated... more
in Special Issue on Towards Transitional Justice (eds K O’Donnell, M O’Rourke and J. M. Smith) 55:1-2 (forthcoming Spring-Summer, 2020).
The history of the Irish State is littered with shamed bodies. For decades the State collaborated with religious orders in incarcerating children and single women, shamed by their poverty, race, disability, or association with sexual transgression (Fischer Gender, Nation; O’Sullivan and O’Donnell; Smith; Buckley). Shaming practices such as head shaving, using numbers to identify children, or flogging were used to punish and control (Arnold; Coleman 121; Commission to Inquire into Child Abuse [CICA] vol. 1, ch. 8). Women and children in industrial or reformatory schools, psychiatric hospitals, County Homes, and Magdalene Laundries were burdened with a stigmatized identity that meant total exclusion from society (O’Donnell and O’Sullivan 257). As they have begun to speak publicly about their experiences, victim-survivors have forced the State and Irish society to acknowledge this history. Their testimony to experiences of neglect, beatings, forced labor, sexual assault, and imprisonment are an indictment of the sovereign State’s claim to protect its most vulnerable and to detect and punish crime within its territory. In response, the State offers an architecture of apology, investigation, and redress. Scholars have traced patterns of violation of domestic and international norms at the core of this framework (Gallen and Gleeson; O’Rourke, “The Justice for Magdalenes Campaign”; Ring, “The Victim of Historical Abuse”).
These legal responses can usefully be analyzed in terms of the key objectives of transitional justice (truth telling; accountability; redress and reparations, and guarantees of non- recurrence). However transitional justice and its processes are themselves contingent and capable of oppression. Suppressed and marginalized knowledges may be omitted or excluded in the name of transitional justice (Mamdani; van Marle; Koggel). This article contributes to the literature exploring epistemic injustice in transitional justice processes by scrutinizing the Irish State’s legal responses to historical institutional abuse.2 In particular, we develop a theory of State shame that describes and explains the ways the Irish State perpetuates epistemic injustices against people who suffered abuse in State institutions. We unpack the relationship between the State’s performance of shame in these legal responses and its need to preserve its sovereignty—its professed singular competence to determine how painful national events are understood and resolved (Dean). We argue that the State uses discourses of its own shame to legitimate legal responses that prioritize its sovereignty over the demands of true shame. We show how this produces significant epistemic injustices in the present against people who suffered institutional abuse as in the past.
The history of the Irish State is littered with shamed bodies. For decades the State collaborated with religious orders in incarcerating children and single women, shamed by their poverty, race, disability, or association with sexual transgression (Fischer Gender, Nation; O’Sullivan and O’Donnell; Smith; Buckley). Shaming practices such as head shaving, using numbers to identify children, or flogging were used to punish and control (Arnold; Coleman 121; Commission to Inquire into Child Abuse [CICA] vol. 1, ch. 8). Women and children in industrial or reformatory schools, psychiatric hospitals, County Homes, and Magdalene Laundries were burdened with a stigmatized identity that meant total exclusion from society (O’Donnell and O’Sullivan 257). As they have begun to speak publicly about their experiences, victim-survivors have forced the State and Irish society to acknowledge this history. Their testimony to experiences of neglect, beatings, forced labor, sexual assault, and imprisonment are an indictment of the sovereign State’s claim to protect its most vulnerable and to detect and punish crime within its territory. In response, the State offers an architecture of apology, investigation, and redress. Scholars have traced patterns of violation of domestic and international norms at the core of this framework (Gallen and Gleeson; O’Rourke, “The Justice for Magdalenes Campaign”; Ring, “The Victim of Historical Abuse”).
These legal responses can usefully be analyzed in terms of the key objectives of transitional justice (truth telling; accountability; redress and reparations, and guarantees of non- recurrence). However transitional justice and its processes are themselves contingent and capable of oppression. Suppressed and marginalized knowledges may be omitted or excluded in the name of transitional justice (Mamdani; van Marle; Koggel). This article contributes to the literature exploring epistemic injustice in transitional justice processes by scrutinizing the Irish State’s legal responses to historical institutional abuse.2 In particular, we develop a theory of State shame that describes and explains the ways the Irish State perpetuates epistemic injustices against people who suffered abuse in State institutions. We unpack the relationship between the State’s performance of shame in these legal responses and its need to preserve its sovereignty—its professed singular competence to determine how painful national events are understood and resolved (Dean). We argue that the State uses discourses of its own shame to legitimate legal responses that prioritize its sovereignty over the demands of true shame. We show how this produces significant epistemic injustices in the present against people who suffered institutional abuse as in the past.
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This chapter explores the role of law in determining the contours of contested pasts. It takes as a case study the jurisprudence developed by the Irish Superior Courts regarding applications to halt the trial of offences of historical... more
This chapter explores the role of law in determining the contours of contested pasts. It takes as a case study the jurisprudence developed by the Irish Superior Courts regarding applications to halt the trial of offences of historical child sexual abuse. The chapter argues that the concepts of ‘delay’ and ‘dominion’ that characterise this jurisprudence represent law’s attempt to create a linear notion of time. Linear time narrowed the limits of what could be deemed a ‘legitimate’ experience, and thus narrowed the limits of history. The chapter goes on to argue that the temporal ordering imposed in the delay cases may alternatively be understood in terms of the Bergsonian notion of duration (durée). Thinking law’s time through duration opens up the possibility of understanding connections, adaptations and change as being part of law’s ontology. In particular, seeing the tropes of ‘delay’ and ‘dominion’ as in keeping with law’s time as duration exposes the roots of these concepts in the past of law; in myths about sexual violence victims. Therefore, understanding law’s time as duration allows an understanding of the complex nonlinear relationship law has with its own past, as well as the unpredictability of future legal responses to historical violence.
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In recent years, Ireland has been rocked by revelations of historical child sexual abuse. This has led to a variety of state responses but one question remains particularly difficult to answer: why did the sexual abuse of children go... more
In recent years, Ireland has been rocked by revelations of historical child sexual abuse. This has led to a variety of state responses but one question remains particularly difficult to answer: why did the sexual abuse of children go unrecognized as a societal problem for so long? This article seeks answers by scrutinizing cases in which defendants sought to have their trial prohibited because of the delayed reporting. It explores the legal test used in the period 1999–2006, which focussed on the abuser’s ‘dominion’ over the victim. The use of the notion of dominion elicited valuable information about the reasons for the delay and how children were silenced. Uncovering these stories is essential to understanding the dynamics of child sexual abuse. However, a critical reading of the delay cases that draws on feminist critiques of battered woman’s syndrome and rape trauma syndrome reveals law’s power to impose hegemonic discourses onto victims and to produce new histories. Under the dominion paradigm, the courts distorted victims’ accounts of their experiences and sidelined stories that pointed towards a culture of indifference to abuse. Thus, law is shown to occupy a paradoxical position in relation to Ireland’s history of child sexual abuse.
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This article considers the evidential issues at the heart of prosecutions for historical child sexual abuse offences.
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(with E. Flynn, NUI Galway). This is a draft of the Feminist Judgment in the Irish case of DPP v C (2001) which defined the concept of consent in prosecutions for rape. The final version will be published in (eds Enright, O'Donoghue and... more
(with E. Flynn, NUI Galway). This is a draft of the Feminist Judgment in the Irish case of DPP v C (2001) which defined the concept of consent in prosecutions for rape. The final version will be published in (eds Enright, O'Donoghue and McCandless) Northern/Irish Feminist Judgments (Hart, 2017).
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On a reference from the Criminal Cases Review Commission (CCRC) the appellant appealed his convictions for three counts of indecent assault and one charge of rape. The complainant came to England from Nigeria at the age of 15. She lived... more
On a reference from the Criminal Cases Review Commission (CCRC) the appellant appealed his convictions for three counts of indecent assault and one charge of rape. The complainant came to England from Nigeria at the age of 15. She lived with her half-sister and her husband (the appellant) in South London. Within a year of living with them she made allegations of sexual assault and rape against the appellant to a counsellor at her school. The prosecution case was that the young woman had been subjected to progressively serious indecent assaults, leading ultimately to rape. The defence was denial: she was lying, perhaps out of a desire to be re-housed. In the first trial the appellant was convicted of three counts of sexual assault. The jury could not agree on verdicts on six other counts of sexual assault and one charge of rape. In January 2008 the appellant was convicted on a retrial of the rape offence. In both trials the examining doctor's witness statement indicated that the complainant's hymen was disrupted in three places. The doctor could not say when the complainant had first had sexual intercourse, beyond that it had been more than 72 hours previously. At the retrial on the rape charge the prosecution asserted that the evidence of hymenal penetration had resulted from the rape by the appellant. This was consistent with the complainant's statement that she had told the appellant that he had taken her virginity, that he had apologised and said he had not known that she was a virgin. Her evidence was that she bled for three days afterwards. In November 2011 the CCRC referred the case to the Court of Appeal based on fresh evidence: a previously undisclosed note made by an assistant social worker who had accompanied the complainant to a medical examination. The note stated that the complainant had reported at that meeting that she had been raped as a child. That appeal was dismissed ([2012] EWCA Crim 1961), the Court holding that the note was likely to be inaccurate because the statement of the examining doctor did not mention any assertion of childhood rape, and that statement was likely to be a more accurate record of the information provided by the complainant and was superfluous to the evidence already available in the ABE interview. This appeal was a second reference by the CCRC on the basis that new evidence had been disclosed: original notes of two examining doctors which supported the social worker's note to the effect that the complainant had reported having been raped as a child. This evidence confirmed the accuracy of the social worker's note and indicated that the complainant reported an incident which at least suggested that she had been penetrated vaginally at the age of five. The examining doctor stated that the hymenal injuries observed on examination could have been caused by the earlier incident and could not medically be attributed to one incident rather than another. The CCRC argued that the fresh evidence rendered the medical evidence relating to the damage
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This article reviews the decisions of the US state courts on the admissibility of expert testimony on recovered memory in historic child sexual abuse prosecutions. Unlike their English and Irish counterparts, most US courts scrutinise the... more
This article reviews the decisions of the US state courts on the admissibility of expert testimony on recovered memory in historic child sexual abuse prosecutions. Unlike their English and Irish counterparts, most US courts scrutinise the reliability of expert evidence on recovered memory. In examining the US decisions the article explores the challenges posed to the criminal process by the contested scientific status of recovered memory theory. It sets out due process arguments why expert evidence on the topic should not be admitted in a criminal trial.
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Prohibition applications relating to historic child abuse charges are a litmus test of the courts' commitment to upholding fairness to the accused. This article argues that the prohibition case law reveals two trends: one in which... more
Prohibition applications relating to historic child abuse charges are a litmus test of the courts' commitment to upholding fairness to the accused. This article argues that the prohibition case law reveals two trends: one in which fairness is being marginalised; and another in which it is given a contextualised meaning. The article argues that the latter approach represents an attempt to re-imagine fairness to the accused in prohibition applications. Analysing fairness in context is shown to be a continuation of a tradition in Irish constitutional jurisprudence of understanding fairness to the accused as both fundamental and evolving.
Published in (2013) Irish Criminal Law Journal 132-140.
Published in (2013) Irish Criminal Law Journal 132-140.
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This is a blog I posted in response to the play Language of the Mute by Jack Harte. The play deals with historic child sexual abuse in Ireland.
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This article considers the issue of prejudice caused to defendants by complainant delay in prosecutions for child sexual abuse. The focus is on the case law of the High Court and the Supreme Court in applications brought by defendants... more
This article considers the issue of prejudice caused to defendants by complainant delay in prosecutions for child sexual abuse. The focus is on the case law of the High Court and the Supreme Court in applications brought by defendants seeking to have their trials prohibited. These prohibition applications present the courts with an invidious dilemma; how to ensure the defendant is not put at risk of an unfair trial, while at the same time recognising that delay in reporting is a common feature in many child sexual abuse cases, particularly where there is familial relationship between the abuser and the victim.
First the development of the Superior Courts’ approach to delay is briefly set out, from the development of a fault-based tripartite test to the institution of a simplified, actual prejudice-based test in the case of S.H. v. DPP. This is followed by a detailed analysis of recent cases, the effect of which has been to narrow considerably the parameters for successful prohibition applications. Finally, the issue of jury directions as an alternative to prohibition is considered in an examination of case law emanating from the Court of Criminal Appeal.
First the development of the Superior Courts’ approach to delay is briefly set out, from the development of a fault-based tripartite test to the institution of a simplified, actual prejudice-based test in the case of S.H. v. DPP. This is followed by a detailed analysis of recent cases, the effect of which has been to narrow considerably the parameters for successful prohibition applications. Finally, the issue of jury directions as an alternative to prohibition is considered in an examination of case law emanating from the Court of Criminal Appeal.
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Prohibition applications relating to historic child abuse charges are a litmus test of the courts’ commitment to upholding fairness to the accused. This article argues that the prohibition case law reveals two trends: one in which... more
Prohibition applications relating to historic child abuse charges are a litmus test of the courts’ commitment to upholding fairness to the accused. This article argues that the prohibition case law reveals two trends: one in which fairness is being marginalised; and another in which it is given a contextualised meaning. The article argues that the latter approach represents an attempt to re-imagine fairness to the accused in prohibition applications. Analysing fairness in context is shown to be a continuation of a tradition in Irish constitutional jurisprudence of understanding fairness to the accused as both fundamental and evolving.
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"This article argues that in historic childhood sexual abuse prosecutions in Ireland, the risk of an unfair trial is unconstitutionally high. Support for this contention is found in two sets of decisions by the Superior Courts relating to... more
"This article argues that in historic childhood sexual abuse prosecutions in Ireland, the risk of an unfair trial is unconstitutionally high. Support for this contention is found in two sets of decisions by the Superior Courts relating to historic child sexual abuse cases: the prohibition decisions of the High Court and Supreme Court; and the decisions of the Court of Criminal Appeal in appeals brought by persons convicted on historic charges of child sexual abuse. It is argued that in light of the difficulties facing accused persons in trying to mount a defence, and in trying to establish prejudice, and in light of the lack of safeguards in terms of (a) judicial rulings on evidential and procedural matters arising from the delay, and (b) directions to the jury on how to incorporate the fact of delay into their deliberations, the risk of an unfair trial is unconstitutionally high, and guidance is urgently needed for trial judges in historic child sexual abuse cases.
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Ireland has some of the most restrictive abortion laws in the world. Abortion has been criminalised since 1861, and the passage of the 8 th Amendment in 1983 introduced 'the right to life of the unborn' into the Constitution. The effects... more
Ireland has some of the most restrictive abortion laws in the world. Abortion has been criminalised since 1861, and the passage of the 8 th Amendment in 1983 introduced 'the right to life of the unborn' into the Constitution. The effects of the 8 th Amendment are felt on a daily basis by women leaving Ireland for abortion, by pregnant women receiving maternal care, by doctors caring for pregnant women, and by lawyers working for the health service. As predicted by the then-Attorney General Peter Sutherland at the time of the referendum, the 8 th Amendment has introduced an uncertain and practically unusable position to Irish law. It has, simply put, become " unliveable ". In late 2014 Labour Women, a branch of the Irish Labour Party, established a Commission for Repeal of the 8 th Amendment. That Commission comprised three groups: a political group, a medical group, and a group of legal experts. The authors of this paper are those legal experts. In this paper, we first outline the legal status quo as regards abortion in Ireland before making a case for constitutional reform. Having established the desirability of, and need for, constitutional reform we then outline the working principles that informed our drafting of the accompanying Access to Abortion Bill 2015, bearing in mind our intention to craft a model for reform that would be workable from the perspective of women's lives, medical practice, and politics. Although drafted as part of the Labour Women Commission, and with some (limited) input from the other Commission groups, the proposed draft is that of the authors of this paper (working within the confines of our remit as 'legal experts' to the Commission) and not of the Labour Party or of Labour Women. It is made available here for discussion, debate and development by all interested parties.
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Ireland has some of the most restrictive abortion laws in the world. Abortion has been criminalised since 1861, and the passage of the 8th Amendment in 1983 introduced ‘the right to life of the unborn’ into the Constitution. The effects... more
Ireland has some of the most restrictive abortion laws in the world. Abortion has been criminalised since 1861, and the passage of the 8th Amendment in 1983 introduced ‘the right to life of the unborn’ into the Constitution. The effects of the 8th Amendment are felt on a daily basis by women leaving Ireland for abortion, by pregnant women receiving maternal care, by doctors caring for pregnant women, and by lawyers working for the health service. As predicted by the then-Attorney General Peter Sutherland at the time of the referendum, the 8th Amendment has introduced an uncertain and practically unusable position to Irish law. It has, simply put, become “unliveable”.
In late 2014 Labour Women, a branch of the Irish Labour Party, established a Commission for Repeal of the 8th Amendment. That Commission comprised three groups: a political group, a medical group, and a group of legal experts. The authors of this Draft Bill are those legal experts. In the accompanying paper, we first outline the legal status quo as regards abortion in Ireland before making a case for constitutional reform. Having established the desirability of, and need for, constitutional reform we then outline the working principles that informed our drafting of the Access to Abortion Bill 2015, bearing in mind our intention to craft a model for reform that would be workable from the perspective of women’s lives, medical practice, and politics. Although drafted as part of the Labour Women Commission, and with some (limited) input from the other Commission groups, the proposed draft is that of the authors (working within the confines of our remit as ‘legal experts’ to the Commission) and not of the Labour Party or of Labour Women. It is made available here for discussion, debate and development by all interested parties.
In late 2014 Labour Women, a branch of the Irish Labour Party, established a Commission for Repeal of the 8th Amendment. That Commission comprised three groups: a political group, a medical group, and a group of legal experts. The authors of this Draft Bill are those legal experts. In the accompanying paper, we first outline the legal status quo as regards abortion in Ireland before making a case for constitutional reform. Having established the desirability of, and need for, constitutional reform we then outline the working principles that informed our drafting of the Access to Abortion Bill 2015, bearing in mind our intention to craft a model for reform that would be workable from the perspective of women’s lives, medical practice, and politics. Although drafted as part of the Labour Women Commission, and with some (limited) input from the other Commission groups, the proposed draft is that of the authors (working within the confines of our remit as ‘legal experts’ to the Commission) and not of the Labour Party or of Labour Women. It is made available here for discussion, debate and development by all interested parties.