Supreme Court Decision on Sentencing in Rape Cases

RTE News reports that the Supreme Court this morning held that a life sentence can be imposed as a result of rape, even where the accused has pleaded guilty. On two levels this decision is particularly significant.

First of all it is significant in terms of the recognition of the seriousness of rape as a criminal offence and the sentence imposed as a result. The Central Criminal Court has frequently advocated apparently lenient sentences in rape cases in the past, thus the court’s decision to uphold the life sentence imposed on the appellants in this case is particularly noteworthy, although the court does appear to have stressed the particular nature of the circumstances in this case in reaching this decision. ). The appellants in this case had been found guilty of multiple charges of rape perpetrated against their children and, in one of the cases, against his nieces. According to the BBC, Kearns J. held that “[i]t is impossible to conceive of a greater breach of parental responsibility than occurred in these cases”.

On the second level the decision is important because of Kearns J.’s decision that a guilty plea does not necessarily result in a reduced sentence. The so called ‘guilty plea discount’ has long been an accepted element of sentencing policy and law, but has at the same time been subject to some fairly rigorous criticism. While Kearns J. – delivering a unanimous judgment of the Court – held that a guilty plea would be a mitigating factor, this did not necessarily mean that a guilty plea would save one from the maximum sentence (i.e. life imprisonment.

The judgment is not yet up on the Courts Service website.

The Foy Case

On Friday, October 19th the High Court declared its intention to issue the first ever Declaration of Incompatibility in Irish law. These declarations are allowed for by s. 5 of the European Convention on Human Rights Act 2003 and are to be issued if Irish law is found to be incompatible with the European Convention on Human Rights. The Declaration is to be handed down in the case of Lydia Foy – a dentist who was born male and, prior to transitioning to female, married and had a number of children. She later transitioned including having irreversible surgery partly funded by the state and sought to have her birth certificate altered to identify her as female because of the considerable humiliation and trauma caused when she was required to prove her identity by means of a birth certificate on which she was still identified as male.

In the original action her claim was unsuccessful, however the European Court of Human Rights handed down the Goodwin v United Kingdom decision only two days later and, as a result, the High Court was to rehear the case taking the ECHR into account (as the 2003 Act requires). On this basis the High Court last Friday found that although Irish law was not unconstitutional and although Lydia Foy was not entitled to an altered birth certificate under Irish law, this position was clearly incompatible with the Convention and therefore a Declaration of Incompatibility would be appropriate. The Court gave counsel three weeks to consider the judgment (which does not yet appear to be online) and once the Declaration is issued the Dáil (lower house of parliament) will be required to consider it within 21 days.

This case and the repercussions of the Declaration of Incompatibility are exceptionally important developments in Irish law. First of all, from the perspective of those interested in the real impact that the Convention will have now that it has been incorporated (Ireland is a dualist state under Article 29 of the Constitution) it affords the opportunity to see whether the legislature will in fact respond to the political imperative to legislate for the recognition of the realigned gender of transpersons – it has no domestic legal obligation to do so. From a gender perspective the decision is also important. Irish law has traditionally been strongly gender-structured emanating from a gendered Constitution that includes a provision in Article 41.2 to the effect that “In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved”. Legislating positively in the context of transpersons may well introduce a much needed realignment of gender notions in Irish law – or at least force a (hopefully informed and balanced) debate on the law’s reliance on gender as a classification and the complexities of gender that simple ‘assignment at birth’ policies tend to obscure.

Later this week Tanya ní Mhuirthile, a PhD candidate at the CCJHR whose research focuses on the legal implications of intersexuality, will guest blog a post on Foy and on the implications of this case for Irish law and policy on gender identity.

Mental Health & Human Rights: Challenges for Law and Practice

Posted below are details of a seminar to be hosted by the Centre for Criminal Justice and Human Rights, Faculty of Law, UCC on human rights implications of mental health law. Please circulate this to all those who you think might be interested and to any students, practitioners or researchers who may wish to attend. The seminar should of equal interest to lawyers and mental health and welfare professionals and students. Please RSVP as soon as possible to d.appelbe@ucc.ie
Full details are available here

5.30 Registration; Tea/Coffee

6.00 p.m.
• Welcome and Introduction: Professor Caroline Fennell, Dean of the Faculty and Head of the Department of Law, U.C.C.
• Seminar Chair: Dr. Edmond O’Dea, Chairman, Mental Health Commission
• Keynote address: Dr. Jimmy Devins, T.D., Minister of State with responsibility for Disability and Mental Health
• Dr. Darius Whelan (Faculty of Law, U.C.C.) – ‘European Human Rights Standards in the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006’

This paper will discuss the compatibility of the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006 with the European Convention on Human Rights. It will consider issues relating to the powers and structure of Mental Health Tribunals and the Mental Health (Criminal Law) Review Board. The primary focus will be on Articles 5 and 6 of the ECHR and case-law such as Winterwerp v Netherlands, Johnson v UK and L.R. v France.

• Ms. Áine Hynes (Roger Greene & Sons, Solicitors, Dublin) – ‘The Mental Health Act 2001 in Practice: a Legal Representative’s Viewpoint’

• Dr. Mary Donnelly (Faculty of Law, U.C.C.) – ‘Treatment for Mental Disorders and Protection of Patients’ Rights’

This paper considers a range of human rights issues arising in the context of treatment for a mental disorder. Its focus is not just on patients who have been compulsorily detained under the Mental Health Act 2001and who come under the treatment framework set out in the MHA but also on those patients in psychiatric facilities (the vast majority) whose treatment is not covered by the MHA and which, currently is subject to the most minimal legal oversight.

Trafficking of Women and Children in Ireland

A report prepared by a research team from NUI Galway and released today includes findings that human trafficking is a more significant problem in Ireland than sometimes intimated by the Government (RTÉ News).

The timing of the report, which is available here, is interesting coming as it does just a week after the Minister for Justice, Equality and Law Reform commenced the long-awaited Criminal Law (Human Trafficking) Bill 2007 and only a few weeks after the Gardaí began work on Pantameter 2 (considered here).

The Bill incorporates the Convention on Action against Trafficking in Human Beings in part and takes into the EU Council Framework Decision on combating trafficking in persons, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons of the UN Convention against Transnational Organised Crime and the Optional Protocol to the UN Convention on the Rights of the Child and the Sale of Children, Child Prostitution and Child Pornography.

The Explanatory Memorandum to the Bill explains its purpose thus:

The primary purpose of the Bill is to create offences criminalising trafficking in persons for the specific purposes of their sexual or labour exploitation or the removal of their organs and to provide severe penalties for anyone found guilty of committing the offences. The offences are in line with international norms….It also criminalises the selling or purchasing of human beings, both children and adults, for any purpose. The sale of children for the purpose of exploitation is a requirement of the Optional Protocol to the United Nations Convention on the rights of the child on the sale of children, child prostitution and child pornography.

In relation to children, the Bill complements the Child Trafficking and Pornography Act 1998 which already criminalises the trafficking (and organisation of trafficking) of children for the purposes of sexual exploitation.

A New LawBlog Relationship

Fiona de Londras of the CCJHR has been invited to be a contributing blogger to IntLawGrrls – a blog written by women working in the international law academy primarily from the United States and France. The IntLawGrrls blog has a different mission to the CCJHR blog; it aims to bring international legal developments primarily affecting women to light and to provide commentary on international legal controversies. Thus, while there is some cross-over between the two blogs their focus material is different.

This represents the first ‘blog partnership’ of the CCJHR and relevant posts will be cross posted to both the CCJHR Blog and IntLawGrrls.

Carney J’s Second Lecture

Adjunct Professor of Law and Judge of the High Court, the Honourable Justice Paul Carney, last night delivered his second lecture on ‘The Role of the Victim in the Criminal Process’ to the Centre for Criminal Justice and Human Rights and the Faculty of Law. An audience of more than 150 people attended the lecture, including representatives of the judiciary, the legal professions, an Garda Siochana, politicians, victim support organisations, students and academics.

Media coverage is available at
Irish Times (transcript)(news piece)
Irish Independent 1, 2, 3, 4, 5, 6

Some Irish Prisons Unsafe

A report by the (COE) Committee for the Prevention of Torture claims that three Irish prisons – St. Patrick’s, Mountjoy and Limerick – are unsafe and degrading due to a high rate of inter-prisoner violence and intimidation, which it links to a lack of activities and the easy availability of drugs. Detainees interviewed also claimed that they were frequently subjected to abuse (verbal and physical) when arrested. The Irish government has made the Report public (which it is not required to do) and claims that it is working to ensure adequacy of activities and to restrict the availability of illegal drugs inside prisons.

Irish Independent; Irish Times

Guantánamo Bay News

Two interesting developments in the US are worthy of note this morning.

First of all the Government has submitted a 74-page Merits Brief to the US Supreme Court in the Boumediene and Al Odah litigation, which concerns whether or not aliens detained in Guantánamo Bay have constitutional rights. According to the Brief there is a “long standing” constitutional rule that such detainees have no constitutional rights. It is unclear whether by this the Brief means that there is a rule that ‘enemy combatants’ have no such rights, or that ‘aliens’ have no such rights, or that people held in Guantánamo Bay have no such rights (or, indeed, all three). On either interpretation, however, the Brief can be rebutted. Firstly the mere status of ‘enemy combatant’ does not necessarily strip one of constitutional rights (Hamdi); secondly aliens who have a nexus to the US do have constitutional rights although they might not enjoy the full panoply thereof (INS v St Cyr); and thirdly Guantánamo Bay could be defined as an ‘unincorporated territory’ of the US resulting in constitutional rights for those detained there (The ‘Insular Cases’ – wiki with useful links). There are more expansive internationalist arguments to be made on the final point, but the Insular Cases offer a simple argument based on US precedent to immediately refute the ‘no rights’ claim.

The Brief goes on to argue that even if such detainees did have constitutional rights (and the right they are primarily seeking to exercise is the right to habeas corpus) those rights are not being breached. US constitutional jurisprudence clearly establishes that the constitutional right to habeas corpus can be satisfied by an “adequate alternative” and, according to the Brief, the Combatant Status Review Tribunals offer such an alternative.

The CSRTs were established by Congress in the Detainee Treatment Act but are marred by well-publicised criticisms including lack of equality of arms, admissibility of dubiously-acquired evidence, lack of adequate access to counsel etc that have been notably documented by Prof. Mark Denbeaux and a team of his students from Seton Hall Law School (reports collected here). Ultimately the US Supreme Court – if it finds constitutional rights (as seems likely) – will be required to consider the adequacy of the CSRTs.

The Brief, of course, contains argumentation on further points and can be accessed here, but the case promises to put the issue of constitutional habeas corpus front and centre (finally) in the ongoing Guantánamo litigation. A Reply brief is expected within a few weeks.

The second development of note is a decision in the District of Columbia District Court of Judge Gladys Kessler to block the transfer of a Guantánamo Bay detainee to Tunisia because of the fears that he would be subjected to torture there. The Court held that she would stay the transfer until the Supreme Court had clarified the rights of the Guantánamo Bay detainees.

Hunger Strike at the ICTR

JURIST reports that forty prisoners in Tanzania who are awaiting trial by the International Criminal Tribunal for Rwanda have gone on hunger strike in protest over the Prosecutor’s application to transfer them for trial in a Rwandan national court. The ICTR’s mandate runs only until December 2008, therefore we can perhaps expect that more applications of this nature will arise in order to ensure that the ICTR completes its work within its given time frame. The prisoners’ protest, however, that the Rwandan courts can not guarantee them a fair trial.

The problems surrounding transfer of prisoners of this nature and, indeed, the fate of people acquitted by the international tribunals (can they be returned to the country in which the alleged crimes took place? Are they prohibited from seeking asylum because of suspicion of involvement in war crimes, crimes against humanity etc…) have not attracted much attention in the scholarship, but Kevin Jon Heller (U Auckland) has a working paper on SSRN about the issues surrounding the destination of acquittees that raises some interesting points. The paper is a working piece and, some might say, could pay more attention to jus cogens or non refoulement but the issues that it raises are expressed in Heller’s characteristic evocative style and it comes recommended to anyone with an interest in these issues.