The analytical approach of the European Court of Human Rights in surveillance cases—the implications, justifications, and future of the Court’s reasoning, with a focus on the legislative impact in Ireland

A notable feature of the surveillance case law of the European Court of Human Rights has been the tendency of the Court to focus on the “in accordance with the law” aspect of the Article 8 ECHR inquiry. This focus has been the subject of some criticism, but the impact of this approach on the manner in which domestic surveillance legislation has been formulated in the Party States has received little scholarly attention. This thesis addresses that gap in the literature through its consideration of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 and the Criminal Justice (Surveillance) Act, 2009. While both Acts provide several of the safeguards endorsed by the European Court of Human Rights, this thesis finds that they suffer from a number of crucial weaknesses that undermine the protection of privacy. This thesis demonstrates how the focus of the European Court of Human Rights on the “in accordance with the law” test has resulted in some positive legislative change. Notwithstanding this fact, it is maintained that the legality approach has gained prominence at the expense of a full consideration of the “necessary in a democratic society” inquiry. This has resulted in superficial legislative responses at the domestic level, including from the Irish government. Notably, through the examination of a number of more recent cases, this project discerns a significant alteration in the interpretive approach adopted by the European Court of Human Rights regarding the application of the necessity test. The implications of this development are considered and the outlook for Irish surveillance legislation is assessed.

Child care proceedings in non-specialist courts: the experience in Ireland

It is widely accepted that court proceedings concerning child protection are a particularly sensitive type of court proceedings that warrant a different approach to other types of proceedings. Consequently, the use of specialized family or children’s judges or courts is commonplace across Europe and in common law jurisdictions. By contrast, in Ireland, proceedings under the Child Care Act 1991 are heard in the general courts system by judges who mostly do not specialize in child or family law. In principle, the Act itself and the associated case law accept that the vulnerability of the parties and the sensitivity of the issues involved are such that they need to be singled out for a different approach to other court proceedings. However, it is questionable whether this aspiration has been realized in a system where child care proceedings are mostly heard in a general District Court, using the same judges and the same physical facilities used for proceedings such as minor crime and traffic offences. This article draws on the first major qualitative analysis of professional perspectives on child care proceedings in the Irish District Court. It examines evidence from judges, lawyers, social workers, and guardians ad litem and asks whether non-specialist courts are an appropriate venue for proceedings on an issue as complex and sensitive as child protection, or whether the establishment of specialist family courts with dedicated staff and facilities provides a better solution.

The role of the community service order and the suspended sentence in Ireland: a judicial perspective

Imprisonment is the most severe penalty utilised by the criminal courts in Ireland. In recent decades the prison population has grown significantly despite expressions both official and public to reduce the use of the sanction. Two other sanctions are available to the Irish sentencer which may be used as a direct and comparable sentence in lieu of a term of imprisonment namely, the community service order and the suspended sentence. The community service order remains under-utilised as an alternative to the custodial sentence. The suspended sentence is used quite liberally but its function may be more closely related to the aim of deterrence rather than avoiding the use of the custodial sentence. Thus the aim of decarceration may not be optimal in practice when either sanction is utilised. The decarcerative effect of either sanction is largely dependent upon the specific purpose which judges invest in the sanction. Judges may also be inhibited in the use of either sanction if they lack confidence that the sentence will be appropriately monitored and executed. The purpose of this thesis is to examine the role of the community service order and the suspended sentence in Irish sentencing practice. Although community service and the suspended sentence present primarily as alternatives to the custodial sentence, the manner in which the judges utilise or fail to utilise the sanctions may differ significantly from this primary manifestation. Therefore the study proceeds to examine the judges' cognitions and expectations of both sanctions to explore their underlying purposes and to reveal the manner in which the judges use the sanctions in practice. To access this previously undisclosed information a number of methodologies were deployed. An extensive literature review was conducted to delineate the purpose and functionality of both sanctions. Quantitative data was gathered by way of sampling for the suspended sentence and the part-suspended sentence where deficiencies were apparent to show the actual frequency in use of that sanction. Qualitative methodologies were used by way of focus groups and semi-structured interviews of judges at all jurisdictional levels to elucidate the purposes of both sanctions. These methods allowed a deeper investigation of the factors which may promote or inhibit such usage. The relative under-utilisation of the community service order as an alternative to the custodial sentence may in part be explained by a reluctance by some judges to equate it with a real custodial sentence. For most judges who use the sanction, particularly at summary level, community service serves a decarcerative function. The suspended sentence continues to be used extensively. It operates partly as a decarcerative penalty but the purpose of deterrence may in practice overtake its theoretical purpose namely the avoidance of custody. Despite ongoing criticism of executive agencies such as the Probation Service and the Prosecution in the supervision of such penalties both sanctions continue to be used. Engagement between the Criminal Justice actors may facilitate better outcomes in the use of either sanction. The purposes for which both sanctions are deployed find their meaning essentially in the practices of the judges themselves as opposed to any statutory or theoretical claims upon their use or purpose.

Edmund Burke and the heritage of oral culture

The dissertation proposes that one of the more fruitful ways of interpreting Burke's work is to evaluate him as an oral performer rather than a literary practitioner and it argues that in his voice can be heard the modulations of the genres and conventions of oral composition of eighteenth-century Gaelic Ireland. The first chapter situates Burke in the milieu of the Gaelic landed class of eighteenth-century Ireland. The next chapter examines how the rich oral culture of the Munster Gaelic gentry, where Burke spent his childhood days, was to provide a lasting influence on the form and content of Burke's work. His speeches on the British constitution are read in the context of the historical and literary culture of the Jacobites, specifically the speculum principis, Párliament na mBán. The third chapter surveys the tradition of Anglo-Irish theoretical writings on oratory and discusses how Burke is aligned with this school. The focus is on how Burke's thought and practice, his 'idioms', might be understood as being mediated through the criterion of orality rather than literature. The remaining chapters discuss Burke's politics and performance in the light of Gaelic cultural practices such as the rituals of the courts of poetry, the Warrant Poems or Barántas; the performance of funeral laments and elegies, Caoineadh, the laments for the fallen nobility, Marbhna na daoine uaisle, the satires and the political vision allegories of Munster, Aislingí na Mumhan; to show how they provide us with a remarkable context for discussing Burke's poetical-political performance. In hearing Burke's voice through the body of Gaelic culture our understanding of Burke's position in the wider world of the eighteenth century (and hence his meaning) is profoundly affected.

Principles and prejudice: The erosion of fairness in admissibility determinations relating to historic child sexual abuse trials in Ireland

This thesis interrogates the construction of fairness to the accused in historic child sexual abuse trials in Ireland. The protection of fairness is a requirement of any trial that claims to adhere to the rule of law. Historic child sexual abuse trials, in which the charges relate to events that are alleged to have taken place decades previously, present serious challenges to the ability of the trial process to safeguard fairness. They are a litmus test of the courts’ commitment to fairness. The thesis finds that in historic abuse trials fairness to the accused has been significantly eroded and that therefore the Irish Courts have failed to respect the core of the rule of law in these most serious of prosecutions. The thesis scrutinises two bodies of case law, both of which deal with the issue of whether evidence should reach the jury. First, it examines the decisions on applications brought by defendants seeking to prohibit their trial. The courts hearing prohibition applications face a dilemma: how to ensure the defendant is not put at risk of an unfair trial, while at the same time recognising that delay in reporting is a defining feature of these cases. The thesis traces the development of the prohibition case law and tracks the shifting interpretations given to fairness by the courts. Second, the thesis examines what fairness means in the superior courts’ decisions regarding the admissibility of the following kinds of evidence, each of which presents particular challenges to the ability of the trial to safeguard fairness: evidence of multiple complainants; evidence of recovered memories and evidence of complainants’ therapeutic records. The thesis finds that in both bodies of case law the Irish courts have hollowed out the meaning of fairness. It makes proposals on how fairness might be placed at the heart of courts’ decisions on admissibility in historic abuse trials. The thesis concludes that the erosion of fairness in historic abuse trials is indicative of a move away from the liberal model of criminal justice. It cautions that unless fairness is prioritised in historic child sexual abuse trials the legitimacy of these trials and that of all Irish criminal trials will be contestable.

Stair na Gaeilge i gContae Thiobraid Árann 1700-1901

Stair na Gaeilge i gCo. Thiobraid Árann i rith na tréimhse 1700-1901 atá á ríomhadh sa tráchtas seo. Tar éis a cúlra agus a comhthéacs a shuíomh i gCaibidil a hAon, déantar scríobhaithe an cheantair a áireamh, fara tráchtaireacht orthu, i gCaibidil a Dó. I gCaibidlí a Trí agus a Ceathair, féachtar ar thionchar na hEaglaisí Caitlicí agus Eaglais na hÉireann (i measc eaglaisí Protastúnacha eile) ar an dteangain. I gCaibidil a Cúig, faightear spléachadh ar ghnéithe éagsúla de shaíocht an chontae, ag tabhairt léargais ar tháirgí na scríobhaithe, ar leabhair a clóbhualadh sa réigiún, agus ar fhilí móra na háite, leithéidí Liam Daill Uí Ifearnáin, ag sonrú limistéir faoi leith, an t-oirdheisceart, mar shampla. Léirítear éifeacht na gcumann Gaelach agus na ndíograiseoirí iomadúla a bhain leo. Ábhar suime, leis, feidhm na Gaeilge sna cúirteanna dlí. Tugtar faisnéis i gCaibidil a Sé ar fhianaise cuairteoirí ar an Ghaeilge mar urlabhra i dTiobraid Árann. Is anseo chomh maith a deintear anailís ar Dhaonáirimh na mblianta 1861-1901, le mórchuid adhmaid á baint as ceann 1901 go háirithe. Breactar as ainmneacha sagart agus múinteoirí le Gaeilge, agus tráchtar ar aicmí suntasacha eile, na póilíní agus na saighdiúirí a raibh an teanga sin ina mbéal acu. Tugtar le chéile dá réir na snáithíní difriúla eolais ar an dúiche ar bhealach nár tharla cheana don gcontae casta fairsing seo le haghaidh na tréimhse atá idir lámha ag an saothar.

Preserving patent policy space and securing access to medicines in developing countries: the role of states and pharmaceutical corporations

This thesis examines the tension between patent rights and the right to health and it recognizes patent rights on pharmaceutical products as one of the factors responsible for the problem of lack of access to affordable medicines in developing countries. The thesis contends that, in order to preserve their patent policy space and secure access to affordable medicines for their citizens, developing countries should incorporate a model of human rights into the design, implementation, interpretation, and enforcement of their national patent laws. The thesis provides a systematic analysis of court decisions from four key developing countries (Brazil, India, Kenya, and South Africa) and it assesses how the national courts in these countries resolve the tension between patent rights and the right to health. Essentially, this thesis demonstrates how a model of human rights can be incorporated into the adjudication of disputes involving patent rights in national courts. Focusing specifically on Brazil, the thesis equally demonstrates how policy makers and law makers at the national level can incorporate a model of human rights into the design or amendment of their national patent law. This thesis also contributes to the ongoing debate in the field of business and human rights with regard to the mechanisms that can be used to hold corporate actors accountable for their human rights responsibilities. This thesis recognizes that, while states bear the primary responsibility to respect, protect, and fulfil the right to health, corporate actors such as pharmaceutical companies also have a baseline responsibility to respect the right to health. This thesis therefore contends that pharmaceutical companies that own patent rights on pharmaceutical products can be held accountable for their right to health responsibilities at the national level through the incorporation of a model of civic participation into a country’s patent law system.