Forensics: ID to Intelligence

We are delighted to welcome this guest post from Eimear Moroney, IRC Postgraduate Scholar and PhD candidate at the CCJHR and School of Law, UCC

From Sherlock Holmes at the end of the 19th century, to the emergence in the early 2000s of CSI and its televisual progeny, to the current ‘true crime’ serialisation phenomenon, public interest in forensics has long been piqued. In practice, cold cases are being re-opened and long-condemned individuals have been exonerated on foot of forensic (especially DNA) evidence, owing to to: (a) heightened modes of scientific analysis; and (b) the likes of the Innocence Network, a global association of not-for-profit organisations, which strive to prove the innocence of the wrongly convicted (see further: Irish Innocence Project). Following the activation of Ireland’s DNA Database System in November 2015, the nexus between forensic evidence, guilt and innocence has never been more topical.

The forensic science of popular cognisance developed, in the aftermath of the industrial revolution, out of concern to identify criminals for the purpose of meting out appropriate punishment: differential punishment was accorded to first time offenders and recidivists. This focus on repeat offenders manifested in Ireland and England through the enactment of the Habitual Criminals Act 1869 and the Prevention of Crimes Act 1871, the latter of which prescribed the maintenance of a Habitual Crime Register, entailing the photographing and measuring of prisoners. This anthropometric system, which measured prisoners’ heads and limbs, subsequently incorporated fingerprint marks. Less cumbersome and ultimately more accurate, fingerprinting supplanted the metric system.

As forensic techniques developed, policing agencies realised the Locardian principle “every contact leaves a trace” could play a role in criminal investigations. This role was traditionally conceived as a corroborative one within a case construction model of policing: forensic evidence was used to build up a case against an identified suspect for prosecutorial purposes.

However, a move away from a reductive model of reactive policing towards proactive, intelligence-led policing is increasingly discernible, both internationally and more locally: see for example, An Garda Síochána Policing Plans 2014 and 2015. Concurrently, Williams has suggested that the true utility of forensic science lies in intelligence-led policing, “… in other words as information to further direct ongoing criminal investigations and disruptions, rather than as props in the dramaturgy of a criminal trial.”

In Ireland, a 2007 report entitled Review of Resource Needs in the Forensic Science Laboratory and the Wider Scientific Context in Ireland  averred that “[t]he work of a forensic laboratory does not only concern evidence for the courts but should also give impulses to the investigation. The findings of the laboratory can often give valuable information that can assist the investigation or can be used as intelligence.” This theme has grown roots in the context of Ireland’s long-gestated DNA database,  from the Law Reform Commission, who in 2005, described the proposed database as an “intelligence tool,” to the Minister for Justice and Equality, who in November 2015 described the database as “a high quality intelligence tool” and “a hugely significant development in assisting the Garda Síochána in the investigation of crime.”

The utility of any database is necessarily commensurate with the quantity of samples contained therein. Accordingly, the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 sanctions the sampling of detained suspects, so as to generate a profile for the reference index of the DNA database system, under the authorisation of a member of An Garda Síochána not below the rank of Sergeant. In turn, this profile may be compared with profiles held in the crime scene index and the missing and unknown persons index. The sole fact of detention for a “relevant offence” is sufficient to ground the taking of a sample for this purpose. However, in order for this profile to be used for evidential purposes, the authorisation of a member of An Garda Síochána not below the rank of Inspector is required. To authorise same, the member must have reasonable grounds for suspecting the involvement of the detainee in the commission of the offence for which they are detained, and furthermore, that the sample will tend to confirm or disprove the involvement of the detainee in the offence.

In acknowledging that information generated by forensic science can form part of the detection process notwithstanding that such data is not (or possibly was never intended to be) admitted into evidence, the 2014 Act arguably places intelligence-led policing on a statutory footing. It follows whilst forensic science was initially used to compile and maintain a record of criminal identity, this very record-keeping function has had a renaissance in the Digital Age.

However, it cannot be forgotten that forensically generated information is nonetheless “potential evidence.”  To quote Ashworth and Redmayne, “[t]he possible end result of the process is adjudicative: a trial. Whether a trial will result will depend on many other factors. …  But what matters is the potential of the probability. Criminal procedure is a process that may lead to trial.”

Notwithstanding that a minuscule fraction of offences proceeds to a contested trial, the criminal justice continuum, and any analysis thereof, must be ultimately trial-oriented. Whether providing the impetus to an investigation, or eliminating potential suspects, it is clear that forensic science can impact the course of a criminal case prior to trial. After all, to advance along the continuum from criminal investigation to trial entails traversing a number of preliminary stages: a negative determination with respect to the decision to prefer charges results in exodus from the continuum prior to trial. Hence, the very “evidential potential” attaching to forensic data, from fingerprints to DNA analyses, may impact, or indeed determine, decisions throughout criminal process, including those pre-trial decisions relating to arrest, prosecution and plea.

Having regard to the potential for forensic science to play a determinative role in the pre-trial process, there is a heightened need to ensure the reliability of forensic science throughout the low-visibility portions of the continuum. When tendered as evidence at trial, forensic data is, in theory at least, subjected to the checks and balances of the adversarial process: it must first be admitted into evidence before being subjected to robust cross-examination. However, there is no equivalent oversight of forensic evidence pre-trial.

This lack of scrutiny is all the more disquieting given that, internationally, forensic science has received bad press in recent years: for example, see Broeders (reference below); here; and here. However, caution must be exercised before extrapolating from other jurisdictions.

Two agencies conduct forensic analysis for the State in Ireland, Forensic Science Ireland (FSI) and the Garda Technical Bureau (GTB), both of which sought and achieved accreditation to International Organisation for Standardisation (ISO) 17025, the international laboratory standard for calibration and testing (FSI in 2002 and more recently, the GTB in 2016). Maintaining this status requires that the laboratories must pass annual, independent inspections, whilst all routinely used methods must be validated and proficiency trials must be conducted. The efforts of FSI and the GTB in this respect must be recognised not only as positive developments but also as necessary advancements, having regard to the advent of forensic databases and the newfound emphasis on proactive, intelligence-led policing.

 

Non-hyperlinked References

Ashworth, A. & Redmayne, M., The Criminal Process, 3rd ed. (Oxford: OUP, 2005)

Barnes, J.G., “History” in National Institute of Justice, The Fingerprint Sourcebook (Washington DC: US Department of Justice; Office of Justice Programs; National Institute of Justice, 2012)

Broeders, A.P.A, “Of earprints, fingerprints, scent dogs, cot deaths and cognitive contamination-a brief look at the present state of play in the forensic arena” (2006) 159 Forensic Science International 148

Cole, S.A., “Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate” in D. Lazer, ed. DNA and the Criminal Justice System: The Technology of Justice (MIT Press, 2004)

Cole, S.A., Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge: Harvard University Press, 2009)

Finn, J., “Photographing Fingerprints: Data Collection and State Surveillance” (2005) 3(1) Surveillance and Society 21

Littlefield, M.M., “Historicizing CSI  and its Effect(s): The Real and Representational in American Scientific Detective Fiction and Print News Media, 1902-1935 (2011) 7 Crime Media Culture 133

McCartney, C., Forensic Identification and Criminal Justice: Forensic science, justice and risk (Devon: Willan, 2006)

Redmayne, M., Expert Evidence and Criminal Justice (Oxford: OUP, 2001)

Roberts, P., “Science in the Criminal Process” (1994) 14(4) Oxford Journal of Legal Studies 469

Schweitzer, N.J. & Saks M.J., “The CSI Effect: Popular fiction about forensic science affects the public’s expectations about real forensic science” (2007) 47 Jurimetrics 357

Thornton, J.I., “Uses and Abuses of Forensic Science” (1983) 69 ABA 289

Twining, W., Rethinking Evidence: Exploratory Essays, 2nd ed. (Cambridge, CUP, 2006)

Williams, R., “Policing and Forensic Science” in T. Newburn, Handbook of Policing, 2nd ed. (Devon: Willan, 2008)

CONVERGING LAW, FOUR POINTS OF VULNERABILITY AND THE SUPPOSED INVIOLABLE SPACES OF LEARNING

We are delighted to welcome this guest post from Sarah M. Field. Sarah has a blend of academic and applied experience supporting the fulfillment of international human rights law through international research and legal advocacy projects. She is presently a National Project Coordinator of the cross-European GENOVATE Project at University College Cork, Ireland and blogs occasionally at rights-streams.com. This is the first of a four part series; the second part ‘Converging law, equivocation and delimits on the supposed inviolability of spaces of learning’ is accessible here; the others are forthcoming and will be cross-posted here

CCJHR blog image

Image courtesy of Marcus Bleasdale

 

Chibok. Rafah. Peshawar. Garassa. Donetsk. Aleppo. Sana’a.

Disparate places, among others, bound by attacks—acts of violence—on the supposed inviolable spaces of lower and higher learning, schools and universities, among others. The attacks and their impact—the hurt and harm—on children and adults’ embodied selves resonate far beyond their geographical axis. Or, to invoke the Martens Clause, they may be supposed as violating ‘[…] the laws of humanity and the dictates of public conscience.’ And, in doing so, they undergird the continuing juristic shift of the past century towards the international legal protection of our ‘embodied vulnerability’ to hurt and harm of all forms.* Like other serious violations of international law, then, the attacks transcend the—sometime—distance between us.  But is the clarity of our collective sense of justice reflected in the law?

To an extent, the answer lies in the space: the spark to condemnation relates less to the violated spaces of learning and more to violated bodies within—the incursions of bodily and inner inviolability or violations of the rights to life, bodily integrity and security of the person, among others.  Thus viewed, the spaces of learning are less the object and more the holders of the object of protection: they are holders for embodied subjects of rights, principally learners, and their multidimensional right to education. There lies one source of international legal protection: international human rights law. Or viewed another way, there is a duo dimensional obligation to protect the embodied rights holder within the space from acts of violence and the space as a safe space of learning. And these continue within the converging contexts of emergencies, threats to international and peace and security and non/international armed conflicts. Indeed the latter triggers a second source: international humanitarian law. There is thus an international humanitarian obligation to respect and ensure respect for the principles of distinction between civilians and combatants and civilian objects and military objectives—or in other words to refrain from attacking learning spaces as civilian objects, and embodied persons in relation to the space, as civilians (persons not directly participating in hostilities). Indeed transgressions of these humanitarian rules may, infamously, be subject to domestic or international criminal investigations as war crimes.

The legal protection, then, may be viewed as doubling itself: the human rights obligation to protect the space from acts of violence and humanitarian obligation to refrain from attacking the space are complementary and mutually reinforcing. Considered in this way, there is legal and substantive convergence: the legal obligations to protect the space converge legally through the concurrent application of the two bodies of law, and substantively through the protection of ‘embodied vulnerability’ in relation to space within the context of non/international armed conflict. Of course probe more deeply and the convergence is partial. Though bound by embodiment, they are positioned on oppositional axes: in one body of law the embodied persons are subjects of rights; in the other they are more objects of protection—humanitarian rules limiting (the vulnerability creating effects of) violence in armed conflict. The framing of the respective obligations, therefore, diverge in form, content and scope. Held within the principle of distinction, for example, is international legal protection—and also its limits. Therein lies divergence in substantive protection. Learning spaces may lose their protection from attack; they may be transformed from a civilian object to a military objective including both a military contribution and advantage (whether by nature, location, purpose or use) and consequently be lawfully attacked.

Still this difference in scope may be viewed as a necessary accommodation to the extraordinary context of non/international armed conflict. Prima facie, if learning spaces are former learning spaces, there is minimal impact on learners and their teachers, among others, embodied selves. However viewed through a vulnerability lens* this potentiality may create, at least, four points of potential extraordinary embodied vulnerability to hurt and harm: (i) misinformed attacks on learning spaces of which remain civilian objects/retain their civilian character; (ii) proximate extraordinary embodied vulnerability in attack due to the likely close proximity of other aspects of civilian life (for example, learners’ homes); (iii) partial transformation of the space from a civilian object to a military objective by armed forces/groups; and (iv) broader multidimensional hurt and harm (or violations of the right to education and ipso facto violations of the rights in and through education) as a consequence of closure of learning spaces due to the potentiality of (i)-(iii).

Yet the narrative of the law, itself, is reflective of these four points of vulnerability in so far as it includes rules to limit the vulnerability creating effects of the principle of distinction. Of course in treaty law the determinacy differs between non and international armed conflict. However, three of the four points of vulnerability have determinate legal protection within customary law (see indicative overview), for example, the potentiality of misinformed attacks is limited by the obligation to do everything feasible to verify that targets are military objectives, among other rules. The fourth is more equivocal: there is no express obligation, for example, to respect the civilian character of learning spaces. Still it may be inferred from existing treaty and customary law: basic rules according protection to the civilian population and civilian objects, more specific rules informing their content and others. To these rules, there is a vital dignifying safeguard: the concurrent application of international human rights law generally—and the human right obligations to protect embodied rights holders in relation to the space specifically. As complementary international legal obligations, they continue at points of convergence and divergence in substantive protection, reinforcing the vulnerability limiting effects of applicable humanitarian rules (express or implied).

And, in doing so, they may have protective effects: law determining effects—or in others words, guide and inform the content of the humanitarian rules. Thus where the two bodies of law converge substantively, the applicable humanitarian rule may be determined with regard to (or interpreted in light of) the more specific human rights obligations, most particularly where it is less determinate or more equivocal than its human rights complement. And even where the protection diverges substantively (i.e. when the human rights obligation is determined by more specific humanitarian rules) the human rights obligation, as  a complementary international legal obligation, may be viewed as undergirding those rules, complementing and reinforcing their vulnerability limiting effects. Overall it creates a meta-juridical imperative to protect the inviolability of spaces of learning from attack and as spaces of learning. And this may have compliance conducing effects: domestic legal embodiment of the human rights obligations within the context of non/international armed conflict including knowledge and practice of law may (over time) effect practice of complementary humanitarian rules.

Considered in this way, rights-infused humanitarian law may be viewed as more reflective of our collective sense of justice. Yet the law is less converged and more converging. The protective effects are undercut by the undercurrent of oppositional legal argumentation vis-a-vis the concurrent application of the two bodies of law. And also by legal equivocation about its legal effects—specifically the content and scope of the multi-dimensional right to education. There remains a dual imperative to refute the former and contribute determinacy to the latter, most particularly at the point of divergence.

*On vulnerability and the law, see scholarship of Martha Albertson Fineman and Anna Grear, among others.

Migrant domestic and care workers in Ireland

We are delighted to welcome this post from Dr. Fulvia Staiano, Irish Research Council Post-doctoral Researcher based at the CCJHR, UCC.

 

In September 2015, the Migrant Rights Centre Ireland (MRCI) published a report entitled Migrant Workers in the Home Care Sector: Preparing for the Elder Boom in Ireland. The report describes the current state of the home care sector in Ireland and predicts an impending “elder boom” which will increase the demand for migrant domestic workers in the care and domestic work sector. Although Ireland has the fastest-ageing population in Europe, recent cuts to the Health Service Executive home care supports made this option expensive, fostering an informal care sector increasingly filled by migrant workers.

Despite this situation, Irish immigration law has become increasingly restrictive. From 2009, the issue of residence permits for the purpose of being employed as a domestic worker or carer in Ireland started to be increasingly limited. This process ultimately resulted in the inclusion of domestic workers among ineligible categories by the 2015 Employment Permits Regulations.

Predictably, the current impossibility to enter Ireland with an employment permit for the purpose of carrying out domestic or care work has not curbed the demand for workers in this sector. In this respect, the Report highlights how “an inevitable outcome of the absence of government labour migration policy in this area is a home care sector populated by informal and irregular workers – students and undocumented migrants”. At the same time, existing regulations on health services for the elderly (such as the Health Act 2007 or the 2012 National Standards for Safer Better Healthcare) do not apply to home care, which thus remains a widely unregulated sector in Ireland.

The retreat of law from the sector of domestic and care work is particularly worrisome for migrant workers. Demanding working hours, low pay, and difficult working conditions are often experienced by all workers in this sector regardless of nationality. Migrant care workers, however, run a particularly high risk of suffering from exploitation, abuse and discrimination. This was highlighted by both the MRCI and the Fundamental Rights Agency, which lists “activities of households as employers” as the fourth sector most at risk of exploitation in Europe. The same report places this sector at the top of the list for Ireland.

The Irish case is not at all unique in Europe. The exclusion of domestic work from general labour protections and the imposition of links with employers within labour migration law are recurring issues among EU Member States. For example in the UK section 57 of the National Minimum Wage Regulations 2015 allows employers to pay less than minimum wage to domestic workers who are “not a member of that family, but [are] treated as such.”  In Spain the Preamble of Real Decreto 1620/2011 states that the specific features of domestic work “justify the need for a different regulation than that of the common labour relationship”.

The legally-imposed dependence on employers in domestic immigration law is visible in both first-entry visa schemes and regularisation procedures. The UK Overseas Domestic Workers visa scheme, for instance, was reformed in 2012 so as to remove the possibility for visa holders of settling in the country by extending their stay and sponsoring family reunification. It also prevents migrants holding such visas to change employer. Despite the Government’s statement whereby such limitations offered “the biggest protection” against employers’ abuse, it appears that the prohibition on changing employer de facto presents domestic workers with the impossible choice of either enduring abusive and exploitative situations or jeopardising their residence status and risking expulsion. A similarly dangerous link between the regularity of domestic workers’ residence and continuous work for a specific employer was established in the past by an Italian regularisation procedure for domestic workers employed in the informal sector. In particular, law 102/2009 granted control to employers over the commencement and the continuation of the regularisation procedure, exposing domestic workers to blackmail by employers and discouraging them from reporting violence, abuse, sexual harassment or labour exploitation.

Against this background, it is worth noting that the European Court of Human Rights’ jurisprudence concerning the exploitation of domestic work has so far exclusively concerned extreme cases such as slavery and domestic servitude. Since its landmark judgment of Siliadin v. France, the ECtHR has identified positive state obligations under Article 4 of the ECHR which relate to the criminalisation of slavery, servitude and forced labour as well as their effective enforcement.

This commendable incursion of human rights law in the private realm of the household can be seen as a positive first step towards the protection of migrant domestic workers’ rights under the ECHR. However, this judgment and the following case law (C.N. v. the United Kingdom, C.N. and V. v. France and Kawogo v. the United Kingdom) reveal an exclusive focus on criminal law provisions, disregarding the broader issue of normative triggers to labour exploitation within other areas of domestic law. In Rantsev v. Cyprus and Russia, where the ECtHR found Cyprus in breach of Article 4 of the ECHR for putting in place a so-called “artiste visa” regime which, due to the strong control granted to employers over the employees’ migration status as well as living and working conditions, exposed foreign women to trafficking for the purpose of sexual exploitation.

The ECtHR case law also shows a clear focus on civil rights violations, without offering cues as to state obligations in relation to socio-economic rights. However, such a perspective is crucial for migrant domestic workers, because it relates to the more common forms of “everyday” exploitation experienced as a consequence of the described lack of legal protections in both labour and immigration law. Since the judgment in Airey v. Ireland the ECtHR has shown openness to examine claims related to socio-economic rights, including to a certain extent labour rights, but unfortunately to date it is not possible to identify meaningful examples of cross-fertilisation in respect to migrant workers’ claims in this field. This is particularly regretful in light of the low ratification rate among EU Member States of the 2011 ILO Domestic Workers Convention – which has yet to be acknowledged by the ECtHR.

In the light of the potential 5.5 million jobs in the Personal and Household Services Sectors predicted by the European Commission – a significant portion of which will be fulfilled by migrant women – the issue of the protection of domestic and care workers’ socio-economic rights is only destined to acquire relevance. In this respect, bridging the gap between the current focus of European human rights law on domestic servitude and migrant domestic workers’ need for legal protections in relation to “everyday” exploitation appears to be crucial.

Copyright Issues for Community Digital Archives

We are pleased to welcome this guest post from Orla Egan, PhD Candidate in Digital Arts and Humanities at University College Cork.

Cork has a long and rich history of LGBT (Lesbian, Gay, Bisexual, Transgender) activism and community formation and development. Since at least the 1970s the Cork LGBT community has established organisations, set up services, reached out to others and campaigned for social and legal change.  Yet this community, like many other LGBT communities worldwide, has been largely invisible in historical accounts and its contribution to social and political change and developments largely unacknowledged.

CorkLGBTHistory com (2)

This exclusion and invisibility has motivated me to develop a Cork LGBT Digital Archive to begin to document and acknowledge this rich and important history.  This community digital archive seeks to make available information and artefacts in relation to the history of the LGBT communities in Cork, including digitised copies of newsletters, leaflets, posters etc. produced by various LGBT organisations and activists.  The initial source of items for the digital archive comes from a private collection, the Arthur Leahy collection, and this will be added to with items from other community members.  Oral histories will also be recorded and added to the digital archive.

Given the nature of this work, it is important to give some consideration to copyright issues that may be relevant to this work.[1]   However, as I began to explore this issue, I found that very little work has been published in relation to copyright issues for community digital archive projects, particularly in the Irish context.

In Ireland Copyright and Intellectual Property rights are covered by the Copyright and Related Rights Act 2000 and the 2012 Statutory Instrument that updated the 2000 Act. The prime focus of this legislation is on the protection of ownership and any accruing economic rights and benefits.  The “author” of a work is seen as the first owner of copyright for that work and people can pay the author or copyright owner for the right to use, reproduce or distribute their work.  Section 38, for example, discusses this in relation to paying to play sound recordings.

The main focus then is on protecting ownership and economic rights and benefits. This emphasis can also be seen in the case law in the area (EMI v Eircom [2005] IEHC 233 and EMI v UPC [2013] IEHC 274), where most file sharing copyright cases in Ireland have been taken by record companies who have been trying to get Internet Service Providers (ISPs) to intervene to prevent illegal (and free) downloading of music.

The question arises then as to how well this legislation can apply to not-for-profit community activities and organisations, where there is no clear economic benefits to be gained from works produced?

The Cork LGBT Digital Archive that I am developing is a community-based and community-motivated project whose aim is to make the history of this community more visible and accessible and to acknowledge the community’s contribution to social and political change in Ireland.  The organisations whose materials I am digitising and sharing have a similar altruistic motivation and purpose i.e. to improve the experiences of LGBT people through service provision, political activism and community formation. It is challenging to fit this work into a legislative framework that is primarily designed to cover private ownership of profitable products.  If there is no profit to be made, what is being protected?

As copyright arises automatically, and does not have to be applied for, it must be assumed that there is copyright attaching to all the data and documents in the Arthur Leahy collection and other materials which will be included in the Digital Archive.   Who owns this copyright, and where it rightly resides, is complex and unclear, given the nature of materials and how they were produced.

Chapter 6 of Part II of the 2000 Copyright and Related Rights Act  covers Acts Permitted in Relation to Works Protected by Copyright. Section 50, subsection 4 of this Chapter is of particular relevance for my work.  It states:

“(4) In this Part, “fair dealing” means the making use of a literary, dramatic, musical or artistic work, film, sound recording, broadcast, cable programme, non-electronic original database or typographical arrangement of a published edition which has already been lawfully made available to the public, for a purpose and to an extent which will not unreasonably prejudice the interests of the owner of the copyright.”

The emphasis here is on use which “will not unreasonably prejudice the interests of the owner of the copyright.”

The Cork LGBT Digital Archive  is digitising, displaying and disseminating information in relation to the history of the Cork LGBT community, including a wide range of data and documents produced by various LGBT activists and organisations over the years.  These items were explicitly designed to be in the public domain, to highlight issues of concern to the LGBT community and to inform the public about activities and campaigns.  They were produced through collective endeavour with the explicit intention of creating community works.  They were not intended to be individual products produced for personal financial gain.

QuareTimesSpring84CorkEditionFront (2) - SMALL

The posters, newsletters, leaflets etc. were produced to provide public information and to increase awareness.  It is abundantly clear that there was never any intention by those who produced them, and therefore own the copyright, to prevent public access or to prevent the public dissemination of the information contained within.

I would argue therefore that enabling public access to these documents and artefacts, through inclusion in the Cork LGBT Digital Archive, is fair dealing and reasonable use as it does not in any way “unreasonably prejudice the interests of the owner of the copyright.”  By facilitating public access and the dissemination of information about the Cork LGBT community, through the Cork LGBT Digital Archive, my actions are in keeping with the ethos in which the artefacts were produced.   My work can be seen as a continuation of the same ethos and agenda of the individuals and organisations that produced the materials I am digitising and disseminating.

It should also be noted that, in digitising the materials, I am not modifying the content, only changing how it is displayed and made available.

Digitising these community resources in a publicly accessible digital archive can be seen as fair dealing and reasonable use of these materials and in keeping with the ethos and purpose with which they were produced (as defined in Section 50, Subsection 4 of Chapter 6, Part II of the 2000 Copyright and Related Rights Act).

It can be argued therefore, that I have the right to digitise these materials and have no need to seek permission to use them.  Despite this, however, I am also striving to take all reasonable steps to seek consent to use these materials, in as far as it is possible to do so.  I plan to use a permissions-based model, similar to that adopted by the Digital Library of the Caribbean (dLOC).

In addition to seeking permission to use the materials, I would seek to attach proper accreditation for those who produced the works.  This is what the dLOC refers to as respect for moral rights, which differs from copyright: “dLOC supports moral rights by ensuring proper attribution is included for materials, for their creators and the partner institution that contributing materials.”

The owner of the private collection, Arthur Leahy, has granted me the right to digitise, store and disseminate copies of the materials contained in his collection.   As well as owning the collection, he was also centrally involved in many of organisations that produced the items in the collection and is therefore one of the key people able to grant the right to use them.

In addition to obtaining the permission of the owner of the Arthur Leahy Collection, I am seeking permission from the LGBT organisations that produced some of the materials in the collection.  Two different paths are to be taken here, depending on whether the organisation still exists or not.

For organisations which still exist today, for example the Quay Co-Op and the UCC Gay Society (LGBT Society), I am seeking the permission of the current members of these groups to digitise and disseminate documents and artefacts in relation to their organisations.

A number of Cork LGBT organisations established in the 1970s, 1980s and 1990s no longer exist, so it is not possible to take the same approach as that taken with the still existing organisations. Where possible I will seek permission from people who were involved in these organisations. I am also taking an approach of establishing a lineage between these organisations and current LGBT organisations in Cork.  I would argue that there is a clear line of continuity, development and sometimes overlap between the earlier organisations and the current LGBT organisations. Therefore I am seeking permission from the current Cork LGBT organisations, LINC and the Cork Gay Project, to digitise and display information in relation to earlier organisations.

Exploring copyright issues in relation to such a community based and motivated project is complex.  It is often unclear as to who owns the copyright in relation to the various items to be included in the digital archive.   It can be strongly argued that there is no need to seek permission from the copyright holders as the inclusion of these items in the digital archive can be seen as fair dealing and reasonable use, as outlined above.  Despite this, however, I have taken all reasonable steps to ensure that I have the right to use, digitise, display and disseminate this important information in relation to the rich and vibrant history of the Cork LGBT community.

[1] I am grateful to Dr. Louise Crowley, School of Law, UCC for advice in relation to these issues.

Call for Papers Extended CCJHR PhD Symposium

Call for Papers: EXTENDED until 11th May 2015
Centre for Criminal Justice and Human Rights, U.C.C.
PhD Symposium (2015)
Rights in Conflict: Socio-Legal and Critical Approaches to Human Rights
June 8th-9th 2015
Keynote Speakers:
• Prof. Kieran McEvoy, Queen’s University Belfast
• Dr Liz Campbell, University of Edinburgh
• Prof. Illan Rua Wall, Warwick University
The Centre for Criminal Justice and Human Rights (CCJHR) at University College Cork welcomes submissions for its 9th Annual PhD Symposium. The symposium will examine socio-legal and critical approaches to human rights law and practice, with a particular focus on conflicting rights claims, and to rights in conflict. We welcome papers from doctoral candidates researching in law, politics, criminology, philosophy, sociology and related social sciences. The symposium will include workshops on a range of themes including: ‘Linking Research / Praxis’; Critical Research methodologies; Socio-Legal approaches to human rights.
Please forward an abstract (max. 300 words), including a working title, name and institutional affiliation to ucclawconf@gmail.com by May 11th 2015. Selected participants will be notified no later than 15th May 2015. To be considered for the best paper prize, full papers should be submitted by 22nd May. (Best Paper Prize: €200)
Please note: a registration fee of €20 will apply to all attendees.

For updates: Twitter: @CCJHRlawucc ; W: http://www.ucc.ie/en/ccjhr/
FB: (Centre for Criminal Justice and Human Rights Postgraduate Conference)

Annual CCJHR PhD Symposium at UCC – Call for Papers

Call for Papers: Centre for Criminal Justice and Human Rights, U.C.C.
PhD Symposium (2015)
Rights in Conflict: Socio-Legal and Critical Approaches to Human Rights
June 8th-9th 2015
Keynote Speakers:
• Prof. Kieran McEvoy, Queen’s University Belfast
• Dr Liz Campbell, University of Edinburgh
• Prof. Illan Rua Wall, Warwick University

The Centre for Criminal Justice and Human Rights (CCJHR) at University College Cork welcomes submissions for its 9th Annual PhD Symposium. The symposium will examine socio-legal and critical approaches to human rights law and practice, with a particular focus on conflicting rights claims, and to rights in conflict. We welcome papers from doctoral candidates researching in law, politics, criminology, philosophy, sociology and related social sciences. The symposium will include workshops on a range of themes including: ‘Linking Research / Praxis’; Critical Research methodologies; Socio-Legal approaches to human rights.

Please forward an abstract (max. 300 words), including a working title, name and institutional affiliation to ucclawconf@gmail.com by May 4th 2015. Selected participants will be notified no later than 8th May 2015. To be considered for the best paper prize, full papers should be submitted by 22nd May. (Best Paper Prize: €200)
Please note: a registration fee of €20 will apply to all attendees.

For updates: Twitter: @CCJHRlawucc ; W: http://www.ucc.ie/en/ccjhr/
FB: (Centre for Criminal Justice and Human Rights Postgraduate Conference)

The Right to Love: Over and under-criminalisation in the sexual autonomy of persons with intellectual disabilities

This post originally appeared on the Human Rights in Ireland blog. Alan Cusack is a PhD candidate and IRC Scholar in the School of Law, UCC. He is a member of the Centre for Criminal Justice and Human Rights.

To mark International Day of Persons With Disabilities, award-winning Galway production company Blue Teapot will stage a special performance of Sanctuary, written by Christian O’Reilly, this coming Wednesday night in the Liberty Hall Theatre, Dublin. The play tells the story of Larry and Sophie- two adults with intellectual disabilities- who, in the course of a daytrip to the cinema convince their care worker, Tom, to book them a hotel room so that they may have some private time together. Superbly written by O’Reilly and sublimely delivered by Charlene Kelly and Kieran Coppinger- both of whom have an intellectual disability- Sanctuary offers a funny, touching and human account of the barriers which unmarried adults with intellectual disabilities continue to face in Ireland.

At present, under Irish law, persons with an intellectual disability are faced with the threat of criminal prosecution if they engage in a sexual relationship with a person to whom they are not married. This highly draconian state of affairs owes its origin to section 5 of the Criminal Law (Sexual Offences) Act 1993 (hereinafter ‘the Act’) which explicitly criminalises the sexual activity of persons who, to quote the Act, have a ‘mental impairment’. Significantly, section 5 is a strict liability offence which means, in effect, that the fact that the parties consented to the sexual intimacy is not, of itself, a valid defence. No criminal offence is committed however if the parties are married to each other, or if the victim is shown to be capable of living independently and protecting him or herself against abuse.

Criticisms of the Act can be brought on two seemingly competing, but entirely legitimate grounds; that it both under-criminalises and over-criminalises this sensitive area of sexual activity. In relation to the former argument the Act has rightly been criticised, by academics and advocacy groups alike, for fundamentally failing to recognise that persons with an intellectual disability can engage in consensual sexual activity. Indeed this over-criminalisation of a person sexual autonomy was expressly acknowledged by the Law Reform Commission in its 2005 Consultation Paper, where it noted that

“a regrettable effect of section 5 of the 1993 Act is that, outside a marriage context, a sexual relationship between two ‘mentally impaired’ persons may constitute a criminal offence because there is no provision for consent as a defence in respect of a relationship between adults who were both capable of giving a real consent to sexual intercourse” (Law Reform Commission, Consultation Paper on vulnerable Adults and the Law: Capacity (Dublin: Law Reform Commission, 2005) at p.141).

Although no known prosecutions have been taken under the Act to date, the continued existence of this offence on our statute book has been strongly criticised- most notably by Inclusion Ireland- for cultivating a fear amongst care workers, family members and persons with an intellectual disability of engaging in any act which might be considered to facilitate such sexual activity. In the words of Senator Katherine Zappone, the Act has perpetuated, a “chilling effect” whereby persons with intellectual disabilities within Irish society are fearful of forming relationships (The Irish Times, 10 June 2014).

In addition, in relation to the latter argument- the theory that the Act under-criminalises this area of sexual autonomy- section 5 has been criticised for offering insufficient protection for persons with an intellectual disability. Indeed, as the Act only applies to sexual intercourse and buggery, there is an evident and palpable gap whereby the instrument fails to criminalise unwanted sexual contact more generally. The tragic consequences of this legislative gap were recently illustrated in the case of The People (DPP) v XY (Central Criminal Court, 15 November 2010, The Irish Times 16 November 2010). In this case the accused was alleged to have forced a woman with an intellectual disability to perform oral sex with him. As this form of sexual conduct did not come within the scope of section 5 of the Act, the accused was charged with an offence under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. On this issue White J., in his judgment, noted that “the Oireachtas when they introduced the 1993 act did not fully appreciate the range of offences needed to give protection to the vulnerable”. In the particular circumstances of this case, given that there was no evidence of assault or a hostile intent on the part of the accused, the trial judge directed the jury to acquit the defendant stating that it was no appropriate for the judiciary to fill the “lacuna in the law”.

From an international perspective, it is unquestionable that section 5 of the Act is in breach of Article 23 of the UN Convention on the Rights of Persons with Disabilities (hereinafter ‘UNCRPD’) which expressly requires State Parties to take “effective and appropriate measures” to eliminate discrimination against persons with disabilities “in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others”. Moreover, it is arguable that the Act is in breach the principle of equal recognition as enshrined in Article 12 of the Convention as it fails to respect the decision-making autonomy of persons with intellectual disabilities in the same way that the decisions of non-disabled persons are respected.

In light of its overtly discriminatory effect, section 5 of the Act has long been criticised for representing a disproportionate interference with the sexual autonomy of persons with intellectual disabilities. For instance, Inclusion Ireland has been vocal in its opposition of this provision since 2003 when the group argued in its consultation document ‘Who Decides and How’ that the existing law was overly onerous and insensitive. Similarly, the Law Reform Commission, in its Consultation Papers from 2005 and 2011 respectively, criticized the burdensome and discriminatory effects of the Act. In particular, in its 2011 Consultation Paper, Sexual Offences and Capacity to Consent: Consultation Paper, the Commission recommended that section 5 be replaced by a new provision which would cover all forms of sexual acts. Moreover the Commission recommended that “there should be a strict liability offence for sexual acts committed by a person who is in a position of trust or authority with another person who has an intellectual disability” (at p.179).

There is, however, a reason to be hopeful. Significantly, and in a long-overdue response to this growing body of public criticism, our legislature has recently expressed its commitment to reforming this sensitive area of law. The primary impetus for this belated, but very welcome, legislative activism can be attributed to Senator Katherine Zappone who, on 13 May 2014, published a new bill to reform this area of law, namely the Criminal Law (Sexual Offences) Bill, 2014 (‘the Bill’). Colloquially dubbed, the “right to love” bill, this legislation is aimed at reforming our law so as to ensure that persons with an intellectual disability have the same freedom to consent to sexual activity as persons without a disability. In this regard, it is expected that the bill will strike a better balance in respecting the sexual agency of a person with an intellectual disability while also providing an important safeguard against sexual abuse.

The Bill- which was researched by Dr. Eilionóir Flynn and Anna Arstein-Kerslake of the Centre for Disability Law and Policy at NUIG and Dr. Brian Hunt- seeks to amend our subsisting draconian law in two key respects. Firstly, and perhaps most importantly, the Bill will repeal section 5 of the Act and will create a disability-neutral offence of abuse of a position of dependence and trust for sexual purposes. This reform is directly reflective of the Law Reform Commission’s recommendation in 2011. Secondly, the Bill will redesign the concept of consent for the purposes of sexual activity so as to make this concept universally applicable so that the same standard will apply to all persons equally. Significantly, in this regard, the Bill removes any consideration of a person’s mental capacity in determining questions of consent for sexual purposes. This marks a fundamental amendment to our subsisting legal position whereby, under our current law, it must first be established that a victim has ‘capacity’ to consent before any consideration can be given to the substantive question as to whether in fact any meaningful consent existed.

While these draft provisions are to be welcomed for representing a carefully considered and long-overdue reformative programme for this very sensitive area of sexual activity, the final form which these protections will take in the official version of the Bill remains to be seen. The Heads and General Scheme of the Bill were formally published by Minister Frances Fitzgerald on 27 November 2014, however, it is notable that the wording of Head 12- the section of the Bill dealing with vulnerable persons- had not yet been finalised by this date. Thus, it is not yet clear if, and to what extent, the measures contained in Senator Zappone’s draft bill will be retained in the official version of the instrument. Regardless, however, of the specific form which the final provision takes, the Minister has solemnly pledged that the new proposal will “seek to better balance the need to respect the independence of the intellectually disabled while ensuring their protection from sexual exploitation”. Thus at long last, it seems that a universal right to love will finally be realized in Irish society. There is a reason to be hopeful for the year ahead.

Legislating for Surrogacy

This post originally appeared on the Human Rights in Ireland blog. Lydia Bracken is a PhD Candidate at the School of Law UCC and a Department of Children and Youth Affairs Research Scholar.

The urgent need to introduce legislation to govern the precarious position of stakeholders in the surrogacy process formed a common thread amongst the seven judgments handed down by the Supreme Court in its recent ruling in the MR and An tArd Chláraitheoir case. Each of the judges expressed disquiet about the current lack of legal regulation in this area and in relation to the fact that, presently, the legal status of children born via surrogacy is “determined by happenstance.” Certainty was said to be vitally important for families involved in the surrogacy process and such certainty could only be achieved through the enactment of legislation.

Initially, the Government had included provisions to regulate parentage in cases of surrogacy in the Children and Family Relationships Bill 2014. These provisions provided that, in a surrogacy arrangement, the woman who gives birth to the child (ie. the surrogate) would automatically be regarded as the legal mother. The commissioning parents could, however, subsequently apply for a parental order so as to extinguish the surrogate’s parental status and to acquire parental responsibilities and rights for themselves. These provisions have since been removed from the Bill, however, and so in light of the Supreme Court’s finding that the woman who gives birth to the child is to be regarded as the child’s legal mother, the question now arises as to whether these provisions will be reinserted and, if they are, whether this is appropriate.

It is questionable as to whether the original provisions would strike an appropriate balance between the rights of all stakeholders in the surrogacy process. In particular, it should be noted that the parental order, as envisaged in the Bill, could not be sought less than 30 days after and not more than 6 months after the child’s birth. Prior to the granting of this order, the surrogate would continue to be recognised as the child’s legal mother and her consent would be required before the order could be made. Therefore, until this consent is given, there would be uncertainty as to whether the child would remain as the legal child of the surrogate or whether parentage would be transferred to the commissioning parents. This leaves the commissioning parents in an undesirable position as their status as joint legal parents cannot be established until the surrogate has exercised her choice.

Although it is quite a rare occurrence, should the surrogate refuse to consent to the parental order, the only option available to the commissioning parents to establish a legal relationship with the child would be to apply for guardianship as per Head 42 of the 2014 Bill. Where the commissioning father is also the genetic father of the child, he may apply for guardianship immediately in the same manner as any other unmarried father. The commissioning mother, however, as a “non-parent”(notwithstanding the fact that she may also be genetically related to the child) would have to have shared responsibility for the child’s day-to-day care for a period of at least two years before she would become eligible to apply. Similarly, where the commissioning parents are a male same-sex couple, this two year waiting period would also apply to the genetic father’s partner. Moreover, the consent of the surrogate would be required before either of the commissioning parents could be appointed as guardians, although the court would be at liberty to dispense with the surrogate’s consent where it is unreasonably withheld and where it is in the best interests of the child to do so.

It is, however, quite uncommon that a surrogate would subsequently seek to keep the child and therefore refuse to consent to the parental order. Typically, the child will be taken into the care of the commissioning parents prior to the making of the order. It should be noted, however, that in this period prior to the making of the parental order, the surrogate, as opposed to the commissioning parents, would be entitled to make decisions in respect of the child, for example in relation to consent to medical treatment. A genetic father could enter into a guardianship agreement with the surrogate so as to obtain parental responsibilities and rights in advance of the making of the parental order, but this option will not apply to a non-genetic commissioning father or indeed to a commissioning mother. The child could, therefore, be left in a vulnerable position as the commissioning parents may be hindered from fully protecting his or her interests during this intervening period. Furthermore, if the surrogate was to die during childbirth, the child, as the legal child of the surrogate, would be entitled to succeed from her estate under succession law. It is unlikely that this would have been intended by the parties at the outset of the agreement.

By contrast, other countries have dealt with the question of the allocation of parentage in surrogacy arrangements through the use of pre-conception orders. In South Africa, for example, under the Children’s Act 38 of 2005, surrogacy agreements can be validated by the High Court before the surrogacy is undertaken. Where validation is granted, the commissioning parents will be treated as the legal parents from the moment of the child’s birth. The surrogate will not acquire any parental status and she is legally required to “hand over” the child as soon as is reasonably possible after the birth. It should be noted, however, that a distinction is made in South African law between “full” and “partial” surrogacy. In the latter case, where the surrogate is also the genetic mother of the child, she retains the right to terminate the surrogate agreement within sixty days of the birth of the child. In Ireland, however, given that the original provisions of the 2014 Bill proposed to exclude the use of “partial” surrogacy, this issue would not arise.

Requiring that parental status is determined prior to the birth of the child would seem to strike a more appropriate balance between the interests of those involved in the surrogacy process than the original Irish proposals. The pre-conception order provides certainty and it removes the difficulties which can arise prior to the making of a parental order, as discussed above. Furthermore, it should be recalled that the Report of the Commission on Assisted Human Reproduction recommended by a majority in 2005 that the commissioning parents should be presumed to be the legal parents of any child born through surrogacy. Legislating for pre-conception orders to confer legal parental status on the commissioning parents from the moment of the child’s birth would, therefore, be in keeping with this recommendation.

Whatever legislative approach is ultimately undertaken, it is to be hoped that it will occur without unnecessary delay. As O’Donnell J. stated in the MR case, “[t]he absence of legislation does not mean an absence of assisted reproduction; rather it means an absence of regulation.” The families involved in the surrogacy process require and deserve security. In particular, the children born through the process require protection so as to avoid the “legal half-world” into which they are currently born and so it is to be hoped that legislation will be forthcoming.

An Inconvenient Truth: Epistemic Flaws in the Adversarial Legal Tradition

 

Alan Cusack

Alan Cusack is a PhD candidate and IRC Scholar in the School of Law, UCC. He is a member of the Centre for Criminal Justice and Human Rights at University College Cork and The Institute for Social Sciences in the 21st Century (ISS21) at University College Cork. His research is in the area of access to justice for victims of crime with disabilities. Specifically, Alan’s research assesses how traditional adherence to normative adversarial processes at each of the pre-trial, trial and post-trial stages of the Irish justice system inhibits participation by victims of crime with disabilities.

INTRODUCTION

According to Damaska an adversarial model of justice is characterised by an entrenched value system which comprises “a relatively passive tribunal that ideally comprises both judge and jury; the presentation of evidence by the parties through their lawyers who proceed by direct questioning and cross-examination…a presumption that the defendant is innocent until proven guilty; and the principle that he cannot be forced to testify against himself” (1983: 25). Within this formulation, three fundamental principles can be identified which have long been considered – not only by Damaska but by our wider Anglo-American legal community – as essential to the pursuit of adversarial justice, namely: the principle of party autonomy and judicial passivity, the principle of orality and the principle of fair procedures. Significantly however, each of these principles accommodate fatal epistemic flaws which, although rarely admitted, fundamentally inhibit the system’s efficiency in ascertaining the truth and restrict its accessibility to those select quarters of society who meet its normative demands.

EPISTEMIC FLAWS IN ADVERSARIAL IDEOLOGY

1. The Epistemic Flaw in the Principle of Party Autonomy and Judicial Passivity

It is a fundamental tenet of adversarial ideology that parties enjoy private autonomy in the vindication of their legal rights. Indeed, within the Anglo-American legal tradition parties enjoy almost unfettered freedom in initiating, investigating and presenting legal cases before our courts. The greatest courtroom casualty within this autonomous environment is the truth. With success being measured by the satisfaction of a client, not by the announcement of a true verdict, advocates are actively encouraged to tailor the available evidence in the interest of strengthening their client’s case. Thus not only do we find advocates wilfully concealing inaccuracies in the evidence which supports their cause, but we also find them actively supressing any evidence which might be disruptive to their client.

The autonomy of the parties starkly contrasts with the investigative passivity of the judiciary. Unlike their European counterparts, members of the Anglo-American judiciary occupy a reactionary role with no positive fact-finding mandate. The jury occupies a similarly passive position. Indeed famously described by Glanville William as “a group of twelve men of average ignorance” (1963: 271), the jury is faced with the unenviable task of organising “an incoherent mass of data…into a story which they can understand” without the support of a pro-active investigative jurisdiction (Bennett and Feldman, 1981: 10).

2. The Epistemic Flaw in the Principle of Orality

Every aspect of the adversarial model is strategically designed around the fundamental notion that the truth can best be achieved through the immediate observation of a testimonial account in open court. According to Bennett and Feldman however, “the plausibility of stories has little to do with their actual truth status” (1981: 75). Placing faith in the revealing attributes of behavioural performance therefore risks, not only accepting the inaccurate testimony of an accomplished perjurer but also rejecting the honest account of an intimidated witness.

Moreover, in a further epistemological failing, this classic construction of orality fails to appreciate the inherent fallibility of witnesses and the formative influence which advocates enjoy in shaping the courtroom narrative. In essence, the adversarial model’s predication upon viva voce testimony presupposes the capacity of witnesses to deliver a flawless account of events. Even honest witnesses, however, can tender inaccurate testimony arising from an erroneous observation or an ill-conceived recollection of events. Similarly, it must be appreciated that “[o]ften a statement owes as much to the officer’s controlling hand as to the witness’s actual memory” (Wolchover and Heaton-Armstrong, 1997: 857). Thus, from their calculated employment of the pre-trial interview to shift a witness’s recollection of events to their abuse of the leading question protocol to cast doubt on peripheral details, advocates constantly compete to re-shape the courtroom narrative in a design which best supports their client’s case.

Significantly, the centrality of oral testimony also invites an inherent bias against those who “lack shared cognitive routines for presenting evidence in story-coded forms” (Bennett and Feldman, 1981: 171). The root for such inequality of treatment lies in a long-accepted, adversarial assumption that “all honest witnesses are equally capable of holding their own against [cross-examination]”. Significantly however, “people are not uniformly articulate, confident and emotionally balanced” (McEwan, 1998: 15). Within this flawed epistemological landscape the forgotten victims are those members of society “who cannot communicate in commonly accepted ways about their actions” (Bennett and Feldman, 1981: 168).

3. The Epistemic Flaw in the Principle of Fair Procedures

The adversarial model has evolved in a design which accommodates a rich artillery of exclusionary evidential rules. Thus, from the common law privilege against self-incrimination to the rules prohibiting hearsay statements and character evidence, the adversarial trial is predicated upon a series of procedural protocols which insist that courtroom actors meet exacting evidential standards in delivering testimony. In prioritising, however, the exigencies of fair procedures the adversarial model naturally sacrifices a measure of fact-finding accuracy. In practical terms, this strict insistence on procedural rectitude reduces the adversarial trial to little more than a glorified sporting event wherein it is “perfectly acceptable that a party, perhaps in the right on the merits, “lose” on a technicality- if he violated the rules regulating the contest” (Damaska, 1973: 581).

CONCLUSION

Unlike our European counterparts who, in subscribing to an inquisitorial model, have openly affirmed their social commitment to uncovering the truth, we find that, within Anglo-American legal culture, the primary social objective of the legal system is to achieve a fair result through the application of a just process. This dedication to procedural rectitude is, however, epistemically flawed, cultivating substantive barriers to the truth-distilling enterprise which are re-enforced through the subtle interplay of the three adversarial principles.

Moreover, the centrality of oral testimony in the adversarial courtroom imposes significant obstacles upon vulnerable victims who, through their inability to construct a story, are “vulnerable to having truthful accounts of their actions rejected” (Bennett and Feldman, 1981: 171). Thus within this flawed epistemological landscape the truth is not the only casualty. The real victims are those members of society who, through procedural intimidation, cognitive impairment or testimonial anxiety suffer a communicational deficit which, not only prevents them from delivering a coherent narrative in court but also from expressing publically their frustration with the biased nature of the system in which they find themselves.

Access to justice for Deaf victims of crime: Exploring the socio-spatial side of justice

Dr. Gill Harold is a postdoctoral researcher at the Centre for Criminal Justice and Human Rights at the School of Law, UCC. Her research is funded by the Irish Research Council and is entitled ‘Exploring the Experiences of Deaf Victims in the Spaces and Processes of the Irish Criminal Justice System’.

As a social geographer, my interest in this area was awakened in 2011 when I worked as project researcher on a study funded by the National Disability Authority entitled Access to Justice for People with Disabilities as Victims of Crime (Edwards, Kilcommins and Harold, 2012). In the context of that research, I was introduced to the principle of orality as a central tenet of the adversarial process in common law jurisdictions such as Ireland; the implication of this principle sees emphasis placed on the spoken word and oral testimony. Within adversarial proceedings, the ability to articulate one’s case well is highly significant. Proficiency in spoken (and written) communication is important for providing statements to the police about incidents, for the preparation of victim impact statements, and for liaising with professionals in criminal justice agencies. This system clearly benefits the witness who is capable of articulating their case well.

Concurrent with my involvement on that research project, I was in the process of preparing my doctoral thesis which was centrally-concerned with the manner in which notions of a homogenous hearing public are imagined and reproduced in the social construction of urban space. In that work, and later in this Environment and Planning D: Society and Space paper, I engaged closely with the concept of phonocentrism, a philosophical argument often associated with the work of Derrida, which sustains the view that the spoken word is the ultimate form of communication, and in so doing I considered the ways in which we see this replicated across urban spaces and the implications for culturally Deaf citizens whose first language is Sign Language. For me, the implications of phonocentrism clearly resonated with the underpinnings of adversarialism with its implicit orality. It also became apparent that relatively little attention has been granted to the experiences of Deaf victims in a manner that fully reflects the cultural and linguistic tenets of Deaf identities. I began to wonder whether or not, and indeed how, the spaces of the criminal justice process are a microcosm of public space and as such, socially constructed in ways which assume and prioritise hearing-ness, but in a way that is exacerbated by the tenets of adversarialism and the sets of behaviours instilled in the expectations of criminal justice professionals, the judiciary and other actors such as jurors and witnesses themselves. I was also prompted to consider articulateness, and the question of who do we deem to be articulate in contemporary society? What forms of expression, and indeed what ontological positions, have come to be culturally sanctioned? In what ways are those whose first language is sign language compromised by the critically unstable, yet largely unchallenged, conflation of language and speech.

While the issue of orality has been recognised as posing a challenge to a broader category of the victim constituency, including victims with disabilities, this research is focusing specifically on access for Deaf victims. Significantly, Irish Sigh Language is not recognised in the Republic of Ireland, either officially or constitutionally. For most members of the Deaf community in Ireland, which numbers approximately 5,000 people, Irish Sign Language is their first language. This research explores whether or not the emphasis on the spoken word in adversarialism has implications which compromise the levels of access afforded to Deaf victims as they seek justice. The research critically evaluates the spaces and processes of the Irish criminal justice system from Deaf-centric perspectives. It explores policy innovations and regulatory frameworks in other common law jurisdictions to contextualise direct engagement with members of the Irish Deaf community, regarded as a linguistic and cultural minority, to uncover the perspectives that are rooted in community perceptions of the Irish legal system from victims’ viewpoints. The research is also concerned with the views of key stakeholders, including criminal justice professionals and victim support advocates, as well as looking towards the Victims Charter of 2010 to determine the extent to which those organisations that stated commitments are aware of the specific communicative requirements of Deaf victims and whether or not this is reflected in their existing policy/provision.

Essentially, this research is concerned with the socio-spatial context in which the Irish criminal justice system operates. It is interested in the spaces of justice such as Garda stations and courtrooms, and the manner in which expectations and assumptions about “normal” communication are embedded in the social fabric, and how they inform encounters between Deaf victims and other criminal justice actors.

For more information about this research, please contact Dr. Gill Harold at g.harold@ucc.ie