Laura Cahillane (School of Law) wrote an article for the Irish Times on the subject of Article 41.2 in the Irish Constitution, commonly referred to as “the woman in the home” provision. This year the Constitution turns 80 and the provision that caused most controversy when it was first published has only recently been earmarked for… Continue reading Opinion: We need to talk about a woman’s ‘life within the home’
Laura Donnellan (School of Law) recently wrote an opinion piece for RTÉ Brainstorm on MMA (Mixed Martial Arts). In the article, she argues that the huge growth in interest in MMA has not been matched by regulation and universally accepted rules within the sport. Mixed martial arts (MMA) is a hybrid unarmed combat sport, which combines… Continue reading Opinion: Putting a legal and regulatory shape on MMA
Later this month, the Football Collective with gather at the University of Limerick to examine many of the ways in which football intersects with politics and popular culture. Prior to this conference, Dr James Carr, Dr Martin Power and Dr Stephen Millar of the Popular Music and Popular Culture Research Cluster, Department of Sociology, University of Limerick wrote an article for RTÉ'S Brainstorm:… Continue reading Article: More than a game: football, politics and popular culture
By Owen Worth, Department of Politics & Public Administration. This article was originally translated into French for Le Monde. There is a common-phase in politics that has been attributed to Francois Guizot, John Adams and Winston Churchill which has a number of variations, but basically says the same thing. That is that if you do… Continue reading Article: The Revenge of the Millennials
Dr Gisela Holfter (School of Modern Languages & Applied Linguistics) recently wrote a piece for De Gruyter Conversations online magazine on German-speaking refugees who came to Ireland between 1933-1945. An excerpt is below, the full post can be read here. Ireland has become a dream destination for German tourists since the 1950s, something for which Nobel Prize… Continue reading How German refugees found a new home in Ireland
Dr Fergal Quinn, a Journalism lecturer in the University of Limerick, recently wrote about Donald Trump and fake news for Cork Independent. The piece was picked up by Journal.ie. In the article, Quinn writes that the media needs to look at itself and remedy the kind of weakness that canny communicators like Trump can exploit: “Darkness… Continue reading Dr Fergal Quinn on Donald Trump and fake news
via An Evaluation of ‘Possession’ in the Construction of Criminal Liability | Criminal Justice in Ireland The common law did not consider possession a constituent element of the actus reus based on the idea that possession was not equated with the external manifestation of mens rea. However, with the development of the criminal law, with… Continue reading Article: An Evaluation of ‘Possession’ in the Construction of Criminal Liability
By Owen Worth, Department of Politics and Public Administration, University of Limerick On the 23rd June the UK voted in a referendum to leave the EU, thus becoming the first nation to endorse an exit since Greenland in 1985 and the first sovereign state. Due to the rather ad hoc nature of the British Constitution… Continue reading BREXIT: The road to God-knows where
Original post on Criminal Justice in Ireland blog // by Dr Andrea Ryan
The Victims Directive
In this post, I will discuss the third measure of the EU Victims legislative package, the Victims Directive (Directive 2012/29/EU Art 20.). However before proceeding to that, it is important to understand the EU legislative process – in a nutshell! Since the Lisbon Treaty, the pace of development of a European criminal justice system has accelerated, largely through the reform to the way measures relating to criminal matters are passed: under the older treaties, unanimity was required by all Member States before a measure could be adopted, but since the Lisbon Treaty this is no longer required. As already mentioned in the first post, under the Lisbon Treaty, Ireland and UK have the choice in relation to any legislative proposals falling under Title V of the TFEU to opt in to any proposed measure. The abolition of the unanimity requirement and the opt in provisions have resulted in legislative proposals passing much more speedily.
In terms of legislative tools, the most important legislative instruments were known pre-Lisbon as Regulations, Decisions and Framework Decisions. The first two became law in Member States without any domestic legislative action required, but the third category, Framework Decisions, required Member States to transpose the instruments into domestic law by a given deadline, leaving to them the ‘choice of form and method’ of implementation. Since the Lisbon treaty, the Framework Decision instrument is now called a Directive; like Framework Decisions they must be transposed into national law by a given deadline. Other instruments under Lisbon include Regulations and Decisions, both of which are directly applicable.
In terms of the Regulation on protection for domestic violence victims outlined in the first post, given that it is directly applicable, no measures were needed to bring it into our domestic law. However, it is a different story with the Victims Directive, to which Ireland has chosen to opt in: as a Directive, it must be transposed into national Irish law by the deadline 16 November 2015 – six months ago. Failure to transpose directives permits the Commission to bring infringement proceedings against a Member State to the European Court of Justice, and if that Court’s order to transpose is not carried out, then that can result in fines.
And so to the Victims Directive
The Victims Directive gives broad rights of protection and support to victims of crime: at the point of first contact with authorities the victim has the right to information about: support services; the procedure for making a complaint and their role in in criminal proceedings; protection measures available; translation and interpretation services; access to legal advice and legal aid.
The Directive requires Member States to establish ‘free of charge and confidential specialist support services’ in addition to general victim support services. The specialist support services ‘shall, as a minimum, develop and provide’ shelters or alternative appropriate accommodation for victims at risk of secondary and repeat victimisation, intimidation and retaliation, and trauma support and counseling services.
The victim has the right to be accompanied by a person of their choice and a legal advisor during interviews with authorities. In addition, interviews with victims must be conducted without unjustified delay and further interviews should be carried out only where strictly necessary.
Victims must be given information about their case, including any decision not to proceed with the investigation. If a decision is taken not to proceed with a prosecution, the victim must be give the reasons for the decision, and is also entitled to a review of the decision not to prosecute.
Victims are given the right of participation in criminal proceedings. Under Irish law, victims do not have any active role in the trial, other than their role as a witness, and their right to give a victim impact statement. This is in contrast to victims in many continental jurisdictions where victims have a very active role in the trial. They may be a party in the trial benefiting from legal representation and as such, may question the witnesses and the accused, and participate in closing arguments to the court. The Directive does not give these enhanced rights to victims in Ireland because the participation rights are required only to the extent that they provided by a domestic legal system. Ireland is therefore not required to change its system to allow victims to become a party in the proceedings.
In order to protect victims from secondary victimisation, provisions are made to decrease the possibility of contact between the victim and the accused during the trial including provision of separate entrances and waiting areas in the court. The Directive also provides rights for those victims that are considered to have specific protection needs – such persons include children; victims of domestic violence; victims of exploitation; victims of sexual offences and victims with disabilities. These rights include the possibility of using video recordings of interviews as evidence in the trial where the victim is a child and the ability of victims to give evidence without being present in the courtroom through the use of communication technology. In addition, measures must be made available to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence. The victim is also given the right to receive information about the release of the offender or where the offender has escaped from custody.
As noted above, Ireland must transpose the Directive into domestic law and the legislation must be in force by 16th November 2015. To date, all we have to go on is a General Scheme for a Criminal Justice (Victims of Crime) Bill 2015, published on the 8th July 2015. The Scheme to a certain extent repeats the provisions of the Directive, but not always accurately and in some respects fails to take account of provisions required by the Directive. I will not give any analysis of the Scheme at this stage but will await the publication of the Bill. According to the (most recent) Legislation Programme published in September 2015, the Bill is listed under the category of ‘Bills expected to be published from the start of the Dáil Session to the beginning of the next Session’. Furthermore, the Scheme makes provision for regulations to be made regarding ‘any matter that is required or permitted by this Act to be prescribed’; in short, these regulations will spell out the detail for practically all the rights noted above.
Experience of past legislation that has required regulations to give effect to provisions of an Act does not give cause for much optimism that the proposed regulations will be drawn up in tandem with the passing of the Act. For example, the Criminal Justice Act 1984 provided for the drafting of regulations relating to treatment of suspects in custody and for electronic recording of interviews. The custody regulations did not see the light of day until 1987; the electronic recording regulations finally appeared in 1997. More recently, a provision to prohibit questioning of suspects before they have had the opportunity to consult with a solicitor was contained in s 9 of the Criminal Justice Act 2011; that section has not yet come into force, because regulations are needed to give effect to it. There is still no sign of those regulations.
Until such time as legislation and the accompanying regulations are actually brought into force, Ireland runs the risk of infringement proceedings being brought by the Commission, giving rise to the possibility of daily substantial fines being imposed until such time as Ireland is in compliance with the Directive. Would it not be a far more profitable use of resources to spend the money, not on fines, but on the support services for victims envisaged by the Directive?
To be continued …
Dr Andrea Ryan, Director of the Centre for Crime Justice and Victim Studies, School of Law, UL
Dr Andrea Ryan
The Victims Directive
In this post, I will discuss the third measure of the EU Victims legislative package, the Victims Directive (Directive 2012/29/EU Art 20.). However before proceeding to that, it is important to understand the EU legislative process – in a nutshell! Since the Lisbon Treaty, the pace of development of a European criminal justice system has accelerated, largely through the reform to the way measures relating to criminal matters are passed: under the older treaties, unanimity was required by all Member States before a measure could be adopted, but since the Lisbon Treaty this is no longer required. As already mentioned in the first post, under the Lisbon Treaty, Ireland and UK have the choice in relation to any legislative proposals falling under Title V of the TFEU to opt in to any proposed measure. The abolition of the unanimity requirement and the…
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by Mary Tumelty, PhD Candidate, School of Law "To say that research methods and research methodologies are part of the hidden curriculum in the undergraduate law programme in Ireland is to perhaps overstate its presence… Even at completion of graduate studies, until recently, discussing methodology was dismissed as not really something lawyers did and was… Continue reading Research Methods in Law – Musings of a PhD Candidate
By Jennifer Schweppe and Mark Walters Only a few weeks ago, the International Network for Hate Studies held its biennial conference in the University of Limerick, hosted by the UL Hate and Hostility Research Group. This blog was written by the Directors of the Network, Dr Mark Walters of the University of Sussex, and Jennifer… Continue reading Thinking about Orlando