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.

Towards a new model of criminal justice system in the era of globalised criminality: the biggest challenges for criminal process legislation

The main objective of this thesis is the critical analysis of the evolution of the criminal justice systems throughout the past decade, with special attention to the fight against transnational terrorism. It is evident – for any observer - that such threats and the associated risk that terrorism entails, has changed significantly throughout the past decade. This perception has generated answers – many times radical ones – by States, as they have committed themselves to warrant the safety of their populations and to ease a growing sentiment of social panic. This thesis seeks to analyse the characteristics of this new threat and the responses that States have developed in the fight against terrorism since 9/11, which have questioned some of the essential principles and values in place in their own legal systems. In such sense, freedom and security are placed into perspective throughout the analysis of the specific antiterrorist legal reforms of five different States: Israel, Portugal, Spain, the United Kingdom and the United States of America. On the other hand, in light of those antiterrorist reforms, it will be questioned if it is possible to speak of the emergence of a new system of criminal justice (and of a process of a convergence between common law and civil law systems), built upon a control and preventive security framework, significantly different from traditional models. Finally, this research project has the fundamental objective to contribute to a better understanding on the economic, social and civilization costs of those legal reforms regarding human rights, the rule of law and democracy in modern States.

Merleau-Ponty and Nishida: Artistic expression as 'motor-perceptual faith'

This dissertation carries out a dialogue between Maurice Merleau-Ponty and Nishida Kitarō concerning their theories of artistic expression and faith. Both philosophers go through remarkably similar trajectories in their philosophic projects: In their early works they focus on the motor-perceptual body of the artist, and as they move towards the mature articulation of their ontologies, the concept of faith becomes central. I propose the term “motor-perceptual faith��� to bring these seemingly diverse sets of concerns into a conceptual continuity. My study explores this connection, and argues that the artist’s motor-perceptual expressive body, as colourfully and sometimes poetically articulated in their early works, enacts the form of faith developed more abstractly in their later writings. Exploring these relations fosters a mutual expansion of the early by the later works, thus thickening the concept of faith by seeing it as enacted by the artist, while enlarging the concept of artistic expression by understanding it as a practice of motor‐perceptual faith. Framing these philosophers as putting forth a traditionally religious concept as illustrated by way of artistic expression, offers a new articulation of both of their writings, an important conceptual bridge between the two, while challenging un-ambiguous distinctions between art, philosophy and religion, and ultimately philosophy East and West.

The corporate social responsibility movement and law's empire: Is there a conflict?

At the heart of corporate governance and social responsibility discourse is recognition of the fact that the modern corporation is primarily governed by the profit maximisation imperative coupled with moral and ethical concerns that such a limited imperative drives the actions of large and wealthy corporations which have the ability to act in influential and significant ways, shaping how our social world is experienced. The actions of the corporation and its management will have a wide sphere of impact over all of its stakeholders whether these are employees, shareholders, consumers or the community in which the corporation is located. As globalisation has become central to the way we think it is also clear that ‘community’ has an ever expanding meaning which may include workers and communities living very far away from Corporate HQ. In recent years academic commentators have become increasingly concerned about the emphasis on what can be called short-term profit maximisation and the perception that this extremist interpretation of the profit imperative results in morally and ethically unacceptable outcomes.1 Hence demands for more corporate social responsibility. Following Cadbury’s2 classification of corporate social responsibility into three distinct areas, this paper will argue that once the legally regulated tier is left aside corporate responsibility can become so nebulous as to be relatively meaningless. The argument is not that corporations should not be required to act in socially responsible ways but that unless supported by regulation, which either demands high standards, or at the very least incentivises the attainment of such standards such initiatives are doomed to failure. The paper will illustrate by reference to various chosen cases that law’s discourse has already signposted ways to consider and resolve corporate governance problems in the broader social responsibility context.3 It will also illustrate how corporate responsibility can and must be supported by legal measures. Secondly, this paper will consider the potential conflict between an emphasis on corporate social responsibility and the regulatory approach.4 Finally, this paper will place the current interest in corporate social responsibility within the broader debate on the relationship between law and non-legally enforceable norms and will present some reflections on the norm debate arising from this consideration of the CSR movement.

Talom Rukbo and the Donyipolo Yelam Kebang: restructuring Adi religious practices in Arunachal Pradesh, Northeast India

The purpose of this dissertation is to examine and contextualize the recent changes in the articulation of Donyipolo faith among the indigenous community of the Adi from the 1980s until the present. This is achieved by documenting both ‘non-formalized’ and ‘formalized’ belief and ritual within this Eastern Himalayan community. Since the mid-1980s, the Adi – led by indigenous activist Talom Rukbo and the Donyipolo Yelam Kebang (Donyipolo Faith Council) – have been restructuring Donyipolo to fit the model of more mainstream religions via a series of processes that could be called ‘formalization’ or ‘institutionalization’, a reformation blueprint that has subsequently spread to neighboring ethnic groups. This ethnography, exploring both folk practice and the modern reformation, is rooted in radical empiricism – in this context, meaning to collect data and allow analysis to arise organically. Radical empiricism is employed alongside vernacular theorizing to allow for the acknowledgement of indigenous theory through which we can trace indigenous agencies and the construction of indigenous lifeworlds. Facilitating this space for the acknowledgement of ‘religious re-imaginings’ as a means of cultural preservation – and as a representation of creativity – is significant particularly when viewed in the context of contemporary research on similar movements in Northeast India, which sometimes tends toward the negation of indigenous innovation by representing such religious revivals as conversion tools attributed to the Hindu right. It is hoped that the reader will come away from this dissertation with an understanding of the ‘constellations of faith��� that comprise ‘traditional’ Donyipolo and a comprehension of the innovative institutionalization processes that have shaped the new Adi praxis. Donyipolo should be viewed as a complex, nuanced, and independent indigenous faith, whether in its forms of folk expressions or in its new structure as expressed through the Donyipolo Yelam Kebang.