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.

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.

Victims' rights in Ireland: influences, illusions and impacts

Following international trends victims of crime in Ireland have increasingly become a source of political, policy and to a lesser extent academic concern. Although it is assumed that the Irish victims’ rights movement is having a profound impact on the criminal justice system there are very few studies addressing this assumption or the genesis of the Irish movement. At the time a victims’ rights movement was established in Ireland there were movements already established in the U.S. and Britain. To determine which model Ireland followed, if any, in establishing its movement a comparative analysis of the emergence of the victims’ rights movements in these three common law jurisdictions was undertaken. This research examines possible victim policy transfer to test the transfer route perception that the victims’ movement began in the U.S., was transferred into Britain and then onto Ireland. At the same time that the victims’ rights movements were emerging in the U.S., Britain and Ireland, and asserting pressure on their national governments for beneficial changes for victims of crime, international organisations such as the U.N. and Council of Europe were being pressured by victims’ rights groups into introducing victim centered instruments of guidance and best practice for member states. Eventually the E.U. became involved and enacted a binding instrument in 2001. These victim centered instruments provide legal and service provision rights to Irish victims of crime, but they do not generate much academic interest. This research, in addition to providing a detailed account of the victim centered instruments, analyses the jurisprudence of the European Court of Human Rights, and identifies and analyses the primary victim centered statutory modifications and case law in Ireland over the past three decades. Lastly, the current law and practices in Ireland are evaluated against Ireland’s obligations under international and E.U. law.

More than a nuisance: personal injury under Rylands

Discusses, by reference to case law, whether damages for personal injury are recoverable under Rylands v Fletcher liability. Considers the issue by reference to a hypothetical scenario in which a claimant suffers personal injury as a result of a chemical leak from a factory for which the factory owner is not at fault. Considers claims based on diminution in amenity and for consequential loss.

Meaning of "residing with" and succession rights

Reviews case law on the meaning of the phrase "residing with" as used in the Housing Act 1985 s.87 to identify one of the qualifying requirements for the right to succeed to a secure tenancy. Focuses on the Court of Appeal decision in Freeman v Islington LBC on whether a daughter intended to have her settled home with her father where, in the year preceding her father's death she lived with him full time in order to care for him whilst retaining her own flat and using it as her correspondence address for everything but her credit card. Lists conclusions that can be drawn from the case law.

The promised land

Examines the House of Lords ruling in Thorner v Curtis on whether the claimant could rely on proprietary estoppel against the estate of the deceased, who had died intestate, based on an assurance given by the deceased that the claimant would inherit the deceased's farm. Reviews case law on proprietary estoppel and testamentary promises, and considers the possible application of constructive trust doctrine in similar cases.

Contractual termination of leases: lessons from the Commonwealth: Pt. 3

This, the third part of a three-part article on the contractual termination of leases, examines, with reference to UK and Commonwealth case law, the connection between contractual termination and the provisions of legislation including the the Landlord and Tenant Act 1954 Pt II relating to forfeiture and termination of business tenancies. Considers why contractual termination by acceptance of a repudiatory breach is a necessary development to protect tenants in the event of a landlord's significant default.

Chattels: I have bought it all for you

Outlines the ways by which personal property can be acquired through the gift of chattels, referring to case law including the Court of Appeal rulings in Re Cole (A Bankrupt) and Re Kirkland, and through the declaration of trust, with reference to the Chancery Division ruling in Rowe v Prance. Compares this to the use of constructive trusts or proprietary estoppel to secure assets and considers the need to prove detrimental reliance.

Dizzy heights and occupiers' liability

Reviews case law on the occupier's duty of care to trespassers under the Occupiers' Liability Act 1984 s.1, including the issues that apply where the trespasser engaged in risky behaviour, was a child, and where the property was inherently dangerous.

Giving credit where it's due

Discusses the entitlement to occupation rent where one party to a relationship no longer lives in the matrimonial or family home in which he/she has an interest and a right of occupation. Describes the case law illustrating that forceful exclusion of the non-occupying party is not a prerequisite to entitlement to an occupation rent. Considers the calculation of the parties' respective credits where the occupying party has made mortgage repayments since the separation and the other is entitled to an occupation rent.

Mistake, frustration and implied conditions in leases

Discusses the Court of Appeal decision in Graves v Graves on determination of a tenancy by reason of common mistake and frustration. Reviews earlier case law regarding the effects on a contract of a common mistake or frustrating event. Considers the effect of the common mistaken belief held by the parties in Graves when executing a tenancy agreement that the tenant would be entitled to housing benefit, in particular whether by reason of it a condition was implied into the tenancy that the contract would be terminated if housing benefit was unavailable.

Patch me if you can

Considers the circumstances in which repair works may be more appropriate than replacement where a landlord is attempting to claim under a repair covenant. Examines case law on which method is more appropriate and on the standard of remedial work to be undertaken. Reflects on the situation where performance of remedial works would be futile. Comments on the Technology and Construction Court ruling in Carmel Southend Ltd v Strachan & Henshaw Ltd on whether a landlord had been correct to carry out overcladding works to a roof where surveyors had agreed that patch repairs would be adequate.

Penalties on car rental agreements

Examines the Cambridge County Court ruling in Volkswagen Financial Services (UK) Ltd v Ramage on whether a clause in a car hire contract which allowed the finance company, upon repudiation of the contract after the hirer fell into arrears, to claim compensation equivalent to the lost future rental payments was unenforceable as a penalty clause, rather than being a reasonable pre-estimate of actual loss. Refers to case law including the Court of Appeal ruling in Anglo Auto Finance Co v James in considering the differing losses which would occur during the course of the hire term according to the natural depreciation of the value of the car. Notes the reasoning of the Court on: (1) contracts of hire compared with hire purchase agreements; (2) the comparative position of the parties and the freedom to contract elsewhere; and (3) the reasonable prediction of future losses.

Trespass revisited

Discusses the Chancery Division ruling in Sinclair v Gavaghan on the measure of damages to be awarded for temporary trespass during the development of land where no physical damage to the land had been sustained. Examines case law prior to Sinclair involving temporary occupation and permanent encroachment. Considers the factors to be taken into account when determining a valuation based on hypothetical negotiations for a licence.

Forfeiture relief

Looks at the common law forfeiture rule, preventing a person who has unlawfully killed another from profiting from the death, and the granting of relief under the Forfeiture Act 1982. Reviews case law on the forfeiture rule, its modification under s.2 in the interests of justice and the provision under s.3 that the rule does not preclude an application under the Inheritance (Provision for Family and Dependants) Act 1975. Reviews the Chancery Division ruling in Land v Land (Deceased), highlighting the ability for a claimant to choose whether to seek relief from forfeiture under s.2 of the 1982 Act or pursue a claim for reasonable financial provision from a deceased's estate under s.2 of the 1975 Act.