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TCLR Secondary School Essay Competition Winner: Should States Be Held Liable for Their Contribution to Global Warming?

TCLR Secondary School Essay Competition Winner: Should States Be Held Liable for Their Contribution to Global Warming?

Jane Prendergast, St. Mary's Secondary School

The last year has been a landmark period for the climate movement. Motivated by young activists, from Greta Thunberg to Ireland’s Beth Doherty and Saoirse (Saoi) O’Connor, millions of people have taken to the streets to march in protest of climate inaction by their governments around the world. Major businesses have also taken steps to “greenify” their companies. Fast food giant McDonald’s has eliminated certain plastic items, and multiple fashion chains, such as H&M and Zara, have bowed to demand and began to produce environmentally sustainable ranges. Ethical veganism has recently been declared a philosophical belief in England after a legal case (Casamitjana v. League Against Cruel Sports), meaning that its followers are now protected from discrimination under the Equality Act 2010.

However, recklessness has still been shown by various governments. In Ireland, the fiasco that is the Shannon Liquefied Natural Gas Terminal still drags on, and the Norwegian government has announced plans to increase fossil fuel exploration over the next number of years.

In this essay I will outline why yes, states should be held liable for their contribution to the climate crisis, and suggest a method of doing so.

Firstly, why should states be held liable for their contribution to global warming? Many argue that most damage is done to the climate by major corporations or industries in general, e.g. the oil industry, and this is quite true. The Carbon Majors Report of 2010 pinpointed how only 100 fossil fuel companies are responsible for 70% of the world’s greenhouse gas emissions since 1988.

Therefore, some believe that states should not be held accountable for something that is not directly their fault. This is technically true, except climate damage by industries or corporations is legalised and justified by the State in the majority of cases. Also, thanks to the existence of the law, official bodies alone have the power to prevent major damage to the climate via corporations or industry.

States give licenses to fossil fuel companies, for example, for oil and gas exploitation. These are extractive industries that have immensely negative effects on local flora and fauna. These industries also produce massive amounts of waste which is usually only suitable for landfill, and they are directly responsible for an abundance of CO2 and methane in the atmosphere. 

Thus, states are still responsible for negative climate action, and they should be held liable for the simple reason that State decisions are made by elected officials. They are chosen to represent the country on a grander scale and to make sweeping positive changes for their country. Therefore, when they continue to legalise reckless exploitation that will do nigh on irreversible harm to our planet, they must be held liable.

The State is held up by the will of the people, and when the State fails to act in the best interest of the people, the State must be held liable.

Furthermore, states should be held liable for climate damage by the pressure of their citizens. Only a colossal human effort can halt the climate crisis in its tracks, and the widespread demands for change over recent months show that there is a sincere desire for positive action to take place. Democratically elected politicians should never forget that they owe their position to the will of the majority, and defying climate action would be a clear contradiction of what is desired globally at present by the younger generation - their future voters.

On a practical level, the current method of punishing countries for their contribution to global warming is ineffective. Permitting countries to purchase “allowances” that will let them exceed their allowed emissions level means that there are no serious implications for failing to reach targets. For example, the Republic of Ireland is not on track to achieve their 2030 or even 2050 emission targets. The State will be allowed to pay allowances of around €150m, entitling them to miss their targets for what is really a minimal punishment. Consequently, countries face minimal repercussions if they fail to reach their targets, thus providing them with a minimum of motivation. 

Therefore, I believe that states should be held accountable for their crimes to the environment by an overseeing body. Ideally, I believe that a coalition of environmental scientists and lawyers would best oversee an action like his. The United Nations could commission eminent scholars to;

  1. Review current Climate Action Plans and modify them if necessary, in light of recent events.
  2. Create a panel of independent overseers who would monitor each country’s commitment to the amended Climate Action Plan, deciding if they pass or fail the desired action levels every year.
  3. If a country is found to fail on any element of the Plan, they will receive aggressive fines on a yearly basis (the size of which will be proportionate to the economy of the country and its contribution to climate damage). If the damage is severe enough, I would also recommend some form of political exclusion on an international scale, such as restricted access to EU grants if the country is in the EU.

I believe that holding states liable for their contribution to the climate crisis in this manner would result in a genuine desire to take action on state levels. The will of the Irish people has, for example, caused referendums to be held and even eliminated government taxes. It would be wise for states to yield to the calls for climate action that are echoing around the world, and make a lasting impact. 

Having an official body to oversee the action, headed by those who have studied the problem in great detail, would also promote action. The threat of severe punishments for the states that do not take adequate action would be a further motivator for action. 

As Thunberg says, “Our house is on fire - we want you to listen to the science”.

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The Legal and State Repression of the 1970s European Punk Movement

The Legal and State Repression of the 1970s European Punk Movement

Lily Murphy

Patrick Devlin argued in 1965 that the law should serve as a tool with which to enforce the norms of a society’s culture.[1]In 1970s Europe, no subculture presented itself as a challenge to these norms with such boisterous pride as punks. As a movement, punk can be difficult to define, largely due to the pluralism of identities and political aspirations associated with it. Since its emergence in the 1970s, punks have adopted a wide variation of symbols, clothing, and ideologies to express their oppositional and anti-conformist views. Kevin Dunn states that punk is best understood as a set of social practices, which in tandem function as resources for empowerment against establishment status quo.[2] This rebellious attitude, linchpin of the subculture, is why, as punk gained popularity throughout the 1980s, it came under the scrutiny of European authorities. Official reactions to punk were ambivalent. In the United Kingdom, punk’s perceived violent degeneracy kickstarted a media-fuelled, moralising panic. Meanwhile in Eastern Europe, Soviet authority consensus was that punk was a product (and proof) of capitalism’s failings. This essay examines how state laws were used or developed to suppress the European punk movement of the 1970s and ‘80s.

In November of 1976, many in the UK received their first introduction to punk with the release of the Sex Pistols’ “Anarchy in the UK”. The snarling lyrics were “a call to arms”[3] to those who felt disenfranchised amid the economic downturn of the 1970s, and the proudly declared affinity for anarchism irreparably sowed in the minds of listeners punk’s violent nature. The subsequent controversy and popular outrage surrounding the release of the iconoclastic “God Save the Queen” during the celebration of Queen Elizabeth II’s Silver Jubilee, was enough, in 1977, to bring the topic of punk to the attention of parliament. Here, an official consensus was solidified among the top echelons of government, on both sides of the political spectrum: punk was neither music nor culture, but a deliberate provocation of violence.[4] In spite of Parliament’s disapproval of the culture, the Home Office was hesitant to introduce new legislation to regulate ‘music and dancing’ for fear of inciting ‘political controversy’.[5] Subsequently, no official legislation was newly introduced to suppress punk in the UK, it was instead left to the discretion of local councils to use powers granted under the Public Health Act of 1890 to regulate places of music and dancing.[6] This permitted local authorities to ban punk bands from playing in their towns over concerns regarding ‘social disorder’.[7]

When comparing legal perspectives between Eastern and Western Europe, a key difference to note is how great a threat punk was perceived to be by authority. The fact that there was no mass, sweeping suppression of punk in the UK was largely due to the belief that, though crass, violent, and degenerate, punk was not a political threat.[8] Concerns over punk in the UK were moral and aesthetic.[9] Of course, this varies substantially from the perception of punk which was held by Soviet authorities behind the Iron Curtain. From the first moment that punk music began to make its way into the Eastern bloc, authorities tried to understand, appropriate, and mainly to censor it.

Following WWII, popular culture in the Soviet Union was hyper-politicised, done to facilitate the recovery of cultural life. Soviet policy and law oversaw culture. As rock and roll eventually made its way across the Wall in the 1960s, the Central Committee of the East German Communist Party established new laws for music and band licensing. To work as a professional, musicians would now have to study music and audition in order to receive a license permitting them to play in public.[10] Strict categories of approved music were upheld: ‘serious’ music, which was thought to uplift culture, and ‘recreational’ music, which facilitated entertainment and relaxation. In the eyes of the Soviet states, punk fit into neither category.[11] Furthermore, in certain Soviet countries, such as Poland, punk emerged seemingly in lockstep with the rise of labour unions in the 1980s.[12] The atmosphere of crisis and dissent was sufficient in the eyes of communist government to declare martial law in 1981. Under this regime, punk, along with many other aspects of cultural expression, were strictly monitored and censored. At the Jarocin rock festival, an event seen by authorities as a ‘safe’ outlet for restless youth, performing bands were expected to submit their song lyrics for inspection.[13] If their content was deemed overtly anti-establishment, they would be removed, and the bands themselves could be suppressed following a 1984 security report for the Division of Culture advising the “prevention and elimination” of punk.[14] Such was the case with the band Brygada Kryzys (Crisis Brigade), who saw their shows routinely raided by police, and who would eventually be banned and forbidden to leave the country.[15] Anti-punk policy was even more stringent in areas such as Ukraine, where the punk movement was so heavily suppressed it was forced entirely underground,[16] and in the German Democratic Republic (GDR), where authorities were troubled by the punk’s Western influences. During punk’s naissance in East Germany, Stasi forces would arrest or detain young punks for minor infractions, from loitering to ‘asoziales Verhalten’. This was the crime of antisocial behaviour, understood as failure to be productive to the regime.[17] Stasi authorities sought to keep punks out of public view; any punks they encountered in public could be subject to interrogation, and there was a ban put in place in bars, restaurants, and youth clubs preventing their entry.[18]

Punk, from its inception, presented itself as contrary to the status quo. Its passionate anti-establishmentarianism provided tools for self-empowerment, as well as space for expressions of political resistance. While its boastful anti-conformity won it many followers and adherents among European youths, European authorities were more sceptical, even threatened. Law was one apparatus used to suppress the movement, particularly within the Eastern bloc. Despite establishment attempts to quash the movement, punk remains forty years on an important facet of Europe’s cultural narrative.

[1] Patrick Devlin, The Enforcement Of Morals (1st edn, Oxford University Press 1965); Robert Post, 'Law And Cultural Conflict' (2003) 120 UC Berkeley Public Law Research Paper.

[2] Kevin C. Dunn, Global Punk: Resistance And Rebellion In Everyday Life (Bloomsbury Academic 2016).

[3] 'The Wisdom Of Malcolm Mclaren' (NME.COM, 2010) <https://www.nme.com/photos/the-wisdom-of-malcolm-mclaren-1423776#17>.

[4] Raymond A. Patton, Punk Crisis: The Global Punk Rock Revolution (Oxford University Press 2018).

[5] John Street, Matthew Worley and David Wilkinson, '‘Does It Threaten The Status Quo?’ Elite Responses To British Punk, 1976–1978' (2018) 37 Popular Music.

[6] Raymond A. Patton, Punk Crisis: The Global Punk Rock Revolution (Oxford University Press 2018).

[7] John Street, Matthew Worley and David Wilkinson, ‘Does It Threaten The Status Quo?’ (2018)

[8] Ibid.

[9] Patton, Punk Crisis (2018)

[10] Tim Mohr, Burning Down The Haus: Punk Rock, Revolution And The Fall Of The Berlin Wall (Dialogue Books 2019).

[11] Patton, Punk Crisis (2018)

[12] Balázs Apor, Péter Apor and Sándor Horváth, The Handbook Of COURAGE: Cultural Opposition and Its Heritage in Eastern Europe (Courage Registry 2018).

[13] Jacek Skolimowski, 'Anarchy In The E.U: The History Of Punk In Poland' (Europavox, 2017) <https://www.europavox.com/news/anarchy-in-the-e-u-the-history-of-punk-in-poland/> accessed 1 March 2020.

[14] Patton, Punk Crisis (2018) 157

[15] Dunn, Global Punk (2016)

[16] Apor, Apor and Horváth, The Handbook Of COURAGE (2018)

[17] Mohr, Burning Down The Haus (2019)

[18] 'Punk Persecution: How East Germany Cracked Down on Alternative Lifestyles - In Pictures' (the Guardian, 2019) <https://www.theguardian.com/world/gallery/2019/nov/05/punk-persecution-east-germany-stasi-secret-police-in-pictures>

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Public Access in Ireland: A Challenge to the Bar?

Public Access in Ireland: A Challenge to the Bar?

Cormac Donnelly

‘The Bar has developed as a referral profession’[1]

Introduction

The evolution of the Common-law system saw the creation of two distinct professions for lawyers; solicitors, employed to interact directly with clients and manage the requisite documents of the court, and barristers, referred by solicitors to cases in order to present arguments in court and offer specific legal expertise in cases.  Traditionally, barristers were required to act only on the instructions of a solicitor and could not accept private employment from individual members of the public.  This has created an inter-reliant profession in the practice of law.  In modern times, the distinction between the two occupations has devolved significantly.  Solicitors now enjoy a right of audience in all Irish courts, allowing them to assume the role of barristers in the court system.[2] Solicitors are now in a position to compete in court and in business with barristers.  Should barristers in turn be permitted to work directly for clients in the court system in order to compensate for the modern changes in the legal profession? If so, in what way, and to what extent does this jeopardise their role as the ‘referral profession’?

Historical development of  a ‘ Split Profession’

The origins of the split legal profession and restrictions upon barristers lie in the common-law legal system of medieval England.  Out of informal roles fulfilled by plaintiffs and their associates arose two distinct categories of lawyer; ‘Pleaders’, the predecessor of barristers, employed to present the case of a plaintiff and argue points of law in court, and ‘Attorneys’, from which arose the solicitor; employed to represent the client in court and perform the complex clerical work associated with pursuing a case in court.[3]  By the eighteenth century these roles had largely evolved into their modern counterparts.[4]  This distinction was maintained in Ireland until the Courts Act of 1971 granted practising solicitors rights of audience in all Irish courts.[5] Similar privileges would not be granted in England and Wales until 1990.[6] Initial use of this right was limited in the courts, accentuated by the barrister-centred nature of the courts system: until 1995, solicitors could not be considered for appointments to the judiciary in Ireland.[7]  However as the court system developed, solicitors increasingly appeared both before and within the courts. The number of practising solicitors in Ireland today is far higher than the number of barristers: approximately 2,300 barristers[8] are now left to compete with the 11,618 practising solicitors recorded in 2019.[9]  Since 1888, English barristers had been forbidden to receive instructions from clients directly and instead had to act on the instructions of solicitors.[10]  This has left members of the bar caught between their role as a ‘referral profession’ and the evolving legal field in which they operate.

Modern Problems Posed by a Split Profession

The problem posed by the ‘split profession’ model to a modern litigant is straightforward: to pay for costs of court and the services of one or more legal professionals is prohibitively expensive.  This is highlighted in the comments of  Chief Justice Clarke in SPV OSUS v HSBC Institutional Trust Services: ‘I remain very concerned that there are cases where persons or entities have suffered from wrongdoing but where those persons or entities are unable to vindicate their rights due to the cost of going to court’.[11]  In England and Wales similar criticisms have been levied against the current system, notably in the ‘Access to Justice’ report by Lord Woolf wherein it is acknowledged that ‘litigation is so expensive that the majority of the public cannot afford it unless they receive financial assistance.’[12] This prohibitive cost of justice is only increased in a system wherein two separate class of legal professionals are expected to be employed by a litigant.  The duplication of costs for potential litigants by maintaining this traditional divide and mandatory use of barristers as representatives has thus proven untenable in the modern justice system which increasingly involves litigants of average means, resulting in the aforementioned reforms to the courts system and provision of rights of access to solicitors.

As much as this approach has sought to address inequality of access within the courts and streamline the legal system, it leaves members of the Bar in a perilous position: as solicitors are equal in access to barristers, and the justice system de facto mandates the retention of a solicitor for the majority of individual cases in order to navigate the complexities of court application and the legal process, the ‘referral role’ of the barrister is now more than ever placed into sharp relief in this jurisdiction.  The modern barrister is, by virtue of the expanded remit of solicitors, no longer a necessary actor in the pursuit of justice, and represents an expensive addition to a case which may or may not prove useful in deciding its outcome.  The advantages of enlisting the services of a barrister, in particular the objectivity with which they may view a case owing to their separation from a given client, are lost if their roles as advocates are incorporated into the sundry services supplied by a solicitor.  In essence,  the dualistic nature of this aspect of the legal profession has bound barristers to their detriment to a position of strict referral, preventing them from pursuing cases independently, whilst no such burdens are placed upon solicitors, who need not act within the strict parameters of this traditional model.

Direct Access

The Westminster parliament extended full rights of audience to solicitors in 1990.[13]  This led to a broad amalgamation of the two professions in the early 21st century: according to the Clementi report, it was not uncommon to find solicitors addressing in court while many barristers carried out the clerical duties formerly expected of solicitors.[14]  In order to address this, the Public Access Scheme was introduced in England and Wales in 2004.[15]   Under the terms of this scheme, barristers were permitted to accept instruction directly from clients to represent cases in court or simply provide legal advice with specific caveats; court proceedings could not be drafted nor submitted by the barrister, barristers could not manage client’s cases nor handle client money, could not submit documents to court and were not permitted to instruct witnesses on the client’s behalf.[16]  This scheme addresses the issue of high fees for those litigants to whom it applies: if a barrister’s counsel and ability to act in court is required by the litigant, it is unnecessary to pay both a barrister and solicitor provided the litigant is willing to undertake the management of a case themselves.  This Public Access scheme did not destabilise the legal field upon its introduction, as in a 2008 poll of 11,981 barristers only 66 performed public access work.[17]  However the low number of participating barristers would suggest that this scheme does not have the requisite impact upon the Bar as a whole to realign it from its current referral status and attempt to resolve the above issues of partial amalgamation highlighted in the Clementi report.

The tight restrictions placed upon the role of the barrister in such cases seem to incentivise the use of this scheme not for the lay-litigant but for larger bodies which may retain the use of legal professionals or be sufficiently familiar with the legal process that the retention of a solicitor is unnecessary in their case.  Thus the Public Access scheme does not seem to address the problems of the wider public, from which little experience or competence in the navigation of the courts system should be expected.  Nor does it aid the majority of barristers in pursuing cases beyond the scope of their traditional ‘referral’ remit.  This ‘Public Access’ thereby confounds the convenience of private sector interests with a provision of service to the broader public and a novel route to employment for barristers.  Such a scheme in this jurisdiction would require an overhaul of its requirements with respect to the duties of the litigant in order to fulfil its eponymous role and allow the public to access the talents of barristers, and vice versa.

A similar scheme does exist in Ireland to permit a more circumscribed form of direct access to barristers in the form of the ‘Direct Professional Access’ scheme.[18]  This system allows certain organisations to apply to the Bar council of Ireland in order to be permitted to contact barristers directly for legal advice.  The extent of this scheme ends here, however; barristers may not represent clients nor assist them in contentious manners within the courts. The self-stated aim of the scheme is to ‘provide cost-effective and speedy professional advice’ and ‘helping to avoid litigation in the long term’.[19]  This form of barristerial relationship is further narrowed in scope by the strict set of criteria which organisations are expected to meet in order to be considered for acceptance to this system.  Thus the Irish public access equivalent is beset with an amplified set of the issues associated with its English counterpart; namely, that it is not truly public access, nor broadly applicable to the majority of cases within the courts.

It is reasonable to expect some heightened level of increased competition between solicitors and barristers due to this scheme, and a further break from the traditional  litigation system, however the origins of any such conflict lie in the lack of distinction between the two guilds, a result of modern legislation granting greater advocacy privileges to solicitors.  It cannot be said that the Public Access scheme would serve to overhaul the nature of barristerial work in Ireland if the results of such a scheme in England and Wales are a reliable forecast.  Instead more comprehensive and radical change to the litigation system would be necessary in order to implement such a system in this jurisdiction with the aim of removing the mandatory referral process for barristers whilst retaining the privileges of yesteryear hitherto granted to solicitors.  Neither scheme, in Ireland nor England, gives any clear method on which to base this overhaul, as the neutered forms of ‘public access’ and ‘direct professional access’

Professional Fusion

What alternatives exist then, in implementing such a radical overhaul of the legal system and addressing the issues of the current professional division?  In many common law jurisdictions, notably the United States and Canada, the traditional division between barrister and solicitor is absent, and legal representatives known as ‘attorneys-at-law’ perform both clerical work and advocacy.  Such a fusion of professions is complemented by many aspects of the American legal system; attorney’s fees are as a rule paid by those for whom the attorney is operating, whereas solicitors and barristers are paid for by the defeated party.[20]  This unification of the legal profession allow attorneys full oversight in cases and provide litigants a closer connection to their advocates in court, as they are directly hired and not referred by another professional.  It has the potential to reduce costs as the litigant is paying a single lawyer in order to both manage and plea their cases before the courts, and streamlines the process of litigation by reducing the number of actors upon which a litigant must rely upon.

The concept of a fused profession is not a novel idea in Irish legal theory.  Calls for such a fusion of professions had been made and rebutted by the Incorporated Law Society of Ireland as early as 1884 when it was posited that it would be “to the advantage of the public and of the profession that the professions of barrister and solicitor should be amalgamated, so that all members of the legal profession should have the same rights and privileges.”[21]  The prevailing opinion at the time was that whilst it may be of economic value to the public to amalgamate the professions, such a fusion would bring a lower standard of litigation before the courts as the fused professional would be expected to perform twofold work in managing and presenting cases, leading to a decline in quality of legal work.  In short, “though cheap law may be a good thing, bad law is worse.”[22]

Further calls for such a fusion have been made in recent years in England and Wales, leading to a revived discussion of the respective merits of fusion and division.  Such discussions are framed more easily in the modern era of quasi-amalgamation of the professions, with solicitors and barristers adopting the traditional roles and skillsets of their analogues.  The distinction between the two could today be seen to be “outdated and irrelevant.”[23]  Might developments in the devolution of the divide between solicitors and barristers simply serve to increase the need for fusion and the abandonment of the bisected model of the legal profession?

Conclusion

Ireland has had a history of embracing change in common law, often more eagerly than in the UK. The right of audience was extended to solicitors a full 21 years ahead of the 1990 act in England and Wales and the Irish Supreme Court was established upon the adoption of the constitution, whereas the English supreme court only formed in 2009.[24] The Irish court system is, by virtue of its republican nature, not as heavily bound by common law and feudal tradition as the English legal system, and therefore it is logical to assume a more rapid rate of change in Ireland.  It is disappointing then to see little attempt to address the above issues with the split profession model in Ireland.  The lack of a broadly applicable scheme of public access and a diffuse distinction between barrister and solicitor directly impact public access to justice through their effect on the costs of court.  The high costs of a court case involving barristers could be mitigated by allowing public access akin to the UK: limiting the role of the barrister to an advisory and representative role to avoid the subsumption of the solicitor in the legal process, while incentivising the use of solicitors to avoid the labour associated with managing complex cases and court submissions.  Should such a scheme prove ineffective or limited in its application, the legislature, alongside the governing institutions of the respective legal professions, must examine whether the continuation of the present division is tenable, necessary, or sustainable moving forward In elevating the role of solicitor and allowing their advocacy in court, the legislature created an imbalance in the courts and the wider legal world, which they now bear the responsibility of redressing.

[1] John Flood & Avis Whyte, ‘Straight there, no detours: Direct access to barristers’ (2009) 16 IJLP 131.

[2] Courts Act 1971, s 17.

[3] W.W. Boulton, ‘The Legal Profession in England: It’s Organization, History and Problems’ (1957) 43 ABAJ 507.

[4] ibid 508-509.

[5] Courts Act 1971, s 17.

[6] Courts and Legal Services Act 1990 (UK)

[7] Courts and Court Officers Act 1995 s 16(7)(a)

[8]The Bar of Ireland, ‘About Us’ (Bar of Ireland Website)  <https://www.lawlibrary.ie/About-Us.aspx> accessed 10 October 2019.

[9] Michael Quinlan, ‘Annual Report 2018/2019’ (Law Society of Ireland Website) <https://annualreport.lawsociety.ie/> accessed 1 March 2020.

[10] Flood & Whyte (n1) 133.

[11] [2018] IESC 44, [2018] 7 JIC 3106.

[12] Lord Woolf, ‘Access to Justice: Final Report’ (HMSO 1996) 2(7).

[13] Courts and Legal Services Act 1990.

[14] Sir David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales (UK Ministry of Justice, 2004) <https://webarchive.nationalarchives.gov.uk/+/http://www.legal-services-review.org.uk/content/report/index.htm> accessed 3 March 2020.

[15] Bar Standards Board, ‘The Public Access Scheme Guidance for Lay Clients’ (2010) < https://www.barcouncil.org.uk/media/119600/public_access_guidance_for_lay_clients_-_mar_2010_-_as_at_25_oct_2011__1_.pdf> Accessed 10 October 2019.

[16] ibid, 3.

[17] Flood & Whyte (n1) 137.

[18] The Bar of Ireland, ‘Direct Professional Access’ (Legal Services) <https://www.lawlibrary.ie/Legal-Services/Direct-Professional-Access.aspx> Accessed 3 March 2020.

[19] The Bar Review, ‘Direct Professional Access’ (2006) 11(3), 74.

[20] Harry Cohen, ‘The Divided Legal Profession in England and Wales – Can Barristers and Solicitors Ever be Fused?’ (1987) 12 J Legal Prof 7.

[21] William Lawson, ‘The Fusion of the Two Branches of the Legal Profession’ (1891-92) 9(72) JSSIS 632.

[22] ibid 636.

[23] Quentin Bargate, ‘Time for a Fused Legal Profession in England’ (Bargate-Murray, 28 April 2014) <https://bargatemurray.com/time-fused-legal-profession-england/>  Accessed 5 March 2020.

[24] Constitutional Reform Act 2005, s 23.

 

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A Critical Analysis of the Criminalisation of Omissions

A Critical Analysis of the Criminalisation of Omissions

Samuel Carthy

Introduction

This essay aims to critically analyse the place of omissions within the criminal law, which traditionally has primarily focused on acts of commission which result in harm to another. However, in certain circumstances, it can penalise an act of omission, which is ‘something which is not done in circumstances where there is some reason or expectation for that thing to be done’.[1] This essay aims to assess the circumstances where such an expectation is held by the justice system. The common law generally imposes such a duty to act in four specific circumstances: where the defendant is a public servant, has a familial relationship to the victim, voluntarily assumed responsibility for the victim or created the danger to the victim.[2] In all other circumstances, there is generally no duty to act, even when it would be morally reprehensible to fail to do so. For example, an able-bodied person who does not attempt to save a drowning baby is not a murderer in the eyes of the law.  In some other jurisdictions, attempts have been made to impose a duty to help others in the form of ‘Good Samaritan’ laws.  This essay will also examine their application in continental jurisdictions.

Familial Relationship

As mentioned above, there are limited circumstances where criminal law imposes a duty to act. Perhaps the most obvious of these is when there is a familial relationship between parties. One of the earlier examples of this is R v Senior,[3] where a father was found guilty of manslaughter for refusing medication to treat his son’s pneumonia because of his religious beliefs. The rationale here is pragmatic. As a father, it is his fundamental duty to keep his son alive; by refusing to seek medical help, he was as responsible for his son’s death as the ailment that killed him.  This was somewhat contradicted decades later in R v Lowe,[4] when a father of low intelligence was acquitted of manslaughter. His daughter died after he failed to call a doctor; here, the rationale being that he had not foreseen the consequences of this failure. It is submitted this argument is overly cautious in its unwillingness to criminalise an omission, suggesting that parents caring for infants do not have a duty to know when to call for medical help. While this judgment was influenced by the low intelligence of both the father and the mother, surely such knowledge is a non-derogable requirement of parenthood, and as Mr Lowe had had children taken from him before,  he ought to have been even more vigilant in the circumstances.

The reverse relationship was considered in DPP v Joel,[5] where a mother with MS died whilst living in the home of her daughter and her daughter’s partner. She was poorly cared for and developed infected bedsores as a result of her condition. She contracted pneumonia and passed away after being taken to hospital for treatment. The daughter was found to have been negligent in the care of her mother, however questions raised concerning the negligence of the HSE lead to no conviction for the mother’s death. The prosecution also failed to prove that the daughter’s partner owed the mother a duty of care in this case. This particular case is interesting due to the family dynamic it encompasses. While parents have a natural responsibility to care for their underage children, there is a debate to be had on whether children have a responsibility to care for their parents, and whether that responsibility is a natural or legal one. In this case, neither the daughter nor her partner wanted the mother in their home. There is an argument to be made that the law should not impose a duty of care on them where they had no choice in the matter.

Public Service

Omissions are also penalised when the defendant is a public servant, as these people have duties to safeguard the public and their failure to do so can have very serious consequences. One harrowing Irish example is DPP v Bartley,[6] where a woman endured sexual abuse by her stepbrother for 25 years after her complaint to a Garda was ignored. The Garda was ultimately found to have failed in their duty to investigate all credible claims. The earlier case, R. v Dytham,[7] was cited as a precedent, where a police officer was convicted of misconduct in a public office for watching a man be beaten to death and not intervening. Both these cases establish the important precedent that police officers have a duty of care to all of society, and because of the high-stakes nature of their work, failing to act when they clearly should have acted can lead to criminal convictions. This ensures that they feel obliged to perform their job correctly and comprehensively and that the public receives the protection  they deserve.

Creation of Danger

One of the more abstract conditions where an individual can be held criminally liable for an omission is in a situation where they created a danger to others. In R v Miller,[8] the House of Lords found the defendant guilty of arson by omission. He had fallen asleep with a cigarette in his hand, woken up to find the mattress on fire, and instead of making an effort to put the fire out, moved to another room and allowed the building to be damaged. This established a common-sense precedent that a person who creates a danger is under a legal duty to alleviate the effects of that danger. The Court of Appeal extended this principle in R v Evans,[9] where they upheld a manslaughter conviction. The defendant had acquired heroin for her sister on which she overdosed and died, but both she and her mother did not seek medical help for fear of legal trouble. They found that an individual who contributes to a life-threatening state of affairs has a duty to take reasonable steps to save the other’s life. These rulings are not consistent with the emphasis put on autonomy and free will in criminal law,[10] but nonetheless, they are justified. In both of these cases, the defendants acted callously in failing to mitigate danger and prevent serious harm to others when they could have easily done so. In the interest of the common good, such negligent behaviour must be criminalised.

Voluntary Assumption of Duty

Perhaps the most unclear criminalisation of omissions comes in the form of voluntary assumptions of duty. In R v Gibbins and Proctor,[11] the first defendant left his wife and brought his children with him to live with the second defendant. The second defendant deprived one of his daughters of food and allowed her to starve to death, and both were ultimately convicted of murder. Even though the second defendant was not related to the deceased, she had acted as her mother and therefore owed her a duty of care. In R v Stone and Dobinson[12] the first defendant’s sister, who rented a room from him, died after living in squalor. Both he and the second defendant, his mistress-cum-housemaid, were convicted of manslaughter. As she had washed and provided food for the deceased, as well as attempted to summon a doctor, the second defendant had voluntarily assumed a duty of care. There is a grey area here regarding the liability of the second defendant. It may be argued that due to the lack of a concrete relationship between her and the deceased, as well her bona fide efforts to care for the deceased, she should not have been responsible for her death.

The principle of voluntary assumption of duty was arguably extended too far in the case of R v Taktak.[13] The defendant had brought a prostitute, who was nearly unconscious when he collected her, to his heroin dealer’s home, where he tried to help her but did not call a doctor. When the dealer arrived, he called a doctor, who pronounced the prostitute dead. It was found that the defendant had assumed a duty of care for her as, by bringing her to the dealer’s home, there was no chance of anyone else helping her. This is a tentative argument, as the defendant had no prior relationship with the woman. It is predicated on the assumption that, had he not collected her, a passer-by would have gotten medical assistance for her. This is a worryingly broad interpretation of a voluntary assumption of duty to a stranger. Will the courts one day impose the duty to call an ambulance on said passers-by? Any further extension of Taktak would be moving beyond the realm of administering justice and verging on infringing on individual liberty and autonomy.

Duty to Rescue and Duty to Act – An Alternative?

One of the proposed alternatives to this dilemma that we have seen in other jurisdictions, such as in France and Germany, is the imposition of so-called ‘Good Samaritan’ laws. These laws range from imposing a duty to rescue someone in peril to imposing a duty to act to prevent a crime. Both jurisdictions impose a ‘duty to rescue’ incurring a penalty of imprisonment or a fine. Section 323(c) of the German Criminal Code mandates assisting in the case of an accident, danger or emergency where it would not endanger oneself, while Article 223(6) of the French Penal Code requires offering assistance to a person in danger where it would not endanger oneself. It is submitted that the German laws in this area are fairer and less imposing on the general public than the French equivalents. The German duty to rescue, unlike the French, hinges on necessity in a manner analogous to the requirement for causation in the tort of negligence, as well as reasonability. Failing the French duty, on the other hand, does not require that your failure to help a person in danger actually had harmful consequences, or proof that your assistance would have been successful.[14]

Germany has an interesting approach to a ‘duty to act’. The official English translation of section 13 of the German Criminal Code sets out not a duty to act, but rather a penalty for ‘whoever fails to prevent a result which is an element of a criminal provision (...) if they are legally responsible for ensuring that the result does not occur and if the omission is equivalent to the [commission of] the offence through a positive act’. This provision is much more limited in scope than a more generic ‘duty to act’, while still achieving the desired result. It essentially imposes a duty to act only on parties with some degree of responsibility for would-be criminals.[15] More importantly, this duty is only breached should the crime actually occur, and where failing to prevent the crime is morally reprehensible enough to be equivalent to actually committing the crime oneself.[16] Opponents of these laws in other jurisdictions argue that the many nuances involved in the decision to undertake a rescue would make a failure to rescue difficult to prosecute. The potential rescuer may have only a split-second to assess their capabilities to perform a rescue and the danger they may face in doing so.[17] In any serious attempt to deal with rescuers under the law, courts would need to adopt a subjective test as to the difficulty of the rescue from the rescuer’s perspective at the time.[18]  It is submitted that the German provision here is effectual, but no more so than the current state of the common law.

Conclusion

Using a literal interpretation of actus reus, no omission could constitute a crime. However, the courts have correctly adopted a pragmatic, albeit cautious, approach to situations where a person’s failure to act should be considered criminal. In some of the cases mentioned above, particularly those where people have sat back and allowed their family members to die from neglect, there can be no doubt that the severity of a criminal conviction is deserved. This desire to issue just rulings must be carefully balanced with the fundamental legal principles of individual liberty and autonomy. Good morals cannot and must not be mandated by the judiciary. Legislative attempts to impose a duty to help others may be well-meaning, but to be effectual, they would have to be no more broad in scope than the current state of the common law. In Germany we have seen a more practical approach when compared to the paternalistic approach taken by France. Only those most heinous omissions should be criminalised, and even then only in situations where the person in question had a clear duty to act, be it as a result of their behaviour, their profession or their close relationship to those affected by their omission.

 

[1] A P Simester, ‘Why Omissions are Special’ (1995) 1 LEG 311.

[2] Conor Hanly, An Introduction to Irish Criminal Law (3rd edn, Gill & Macmillan 2015) 59.

[3] [1989] 1 QB 283.

[4] [1973] 1 QB 702.

[5] [2016] IECA 120.

[6] [1997] 6 JIC 1301.

[7] [1979] 1 QB 722.

[8] [1983] 2 AC 161.

[9] [2009] 1 WLR 1999.

[10] Hanly (n 2) 57.

[11] [1918] 13 CrAppR 134.

[12] [1977] 1 QB 354.

[13] [1988] 34 ACR 334.

[14] Andrew Ashworth and Eva Steiner, 'Criminal Omissions and Public Duties: The French Experience' (1990) 10 LS 153

[15] George P Fletcher, 'Criminal Omissions: Some Perspectives' (1976) 24 AJCL 703.

[16] ibid.

[17] Gavin Dingwall and Alisdair A Gillespie, 'Reconsidering the Good Samaritan: A Duty to Rescue' (2008) 39 Cambrian L Rev 26.

[18] ibid.

 

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Re-Examining the Boundaries of Cross-Examination in Light of the Belfast Rape Trial

Re-Examining the Boundaries of Cross-Examination in Light of the Belfast Rape Trial

Théo Martin

Introduction

The cross-examination of witnesses in Ireland and elsewhere has been an integral part of the legal system’s fairness, justice and equity. Most recently, the case of R v Jackson & Olding (The Belfast Rape Trial) explored this facet of the inner workings of the courtroom, and the question was raised as to what length the courts are willing to go to protect the defendant’s right to a fair trial. The limits of cross-examination remain particularly important  in many fields, including  dismissal law and criminal law, however this article will specifically focus on the use of cross-examination in the prosecution of sexual offences and attempt to identify possible remedies in light of the Trial  that divided the country.

Cross-examination

Cross-examination is a central element of a trial,  given significant attention during student courses on the law of evidence, as well as professional barrister training courses on trial advocacy. It can be defined as ‘the examination of a witness who has already testified in order to check or discredit the witness's testimony, knowledge, or credibility’.[1] While  closing arguments are often thought to be the most memorable  moments in a trial, the cross-examination of witnesses may often be the turning point  and deciding factor in determining the defendant’s guilt.[2]

The contentious nature of cross-examination draws scrutiny when controversial issues arise, as occurred in the Belfast Rape Trial, in the media. Often this usually occurs where exchanges are captured  involving seemingly hostile behaviour towards the witness or victim by the opposing counsel. This blogpost will weigh the merits of cross-examination against its flaws and attempt to find any remedies that could be applicable in making this process less demeaning and more humane, while remaining an impartial and helpful method of investigation.

Merits

Although many controversial cases of cross-examination exist, the method of eliciting inculpatory evidence ostensibly has redeeming qualities, allowing defendants to be exonerated of their charges if innocent and conversely, allowing key witnesses to incriminate guilty parties. Twentieth Century American jurist John Henry Wigmore summarised the advantages of cross-examination as: ‘the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it’.[3]

Not only is it a routine method used by lawyers, its existence upholds the right to a fair trial of a person charged with a crime. Bunreacht na hÉireann dictates that ‘no person shall be tried on any criminal charge save in due course of law’.[4] The right to trial under due course of law includes the presumption of innocence which is, although not listed explicitly in the Constitution, implied by Article 38.1. This ethos was reiterated in the decision of Re Haughey, which upheld a right to cross-examine as being fundamental to fair procedures and constitutional justice.[5]  These steps are necessary in maintaining a ‘sovereign, independent, democratic state’.[6]

Mr Eamonn Leahy SC would go one step further[7] and argue that: ‘Cross-examination is there in order to allow people to defend and vindicate their good name and is a constitutional right . . . the right to confront our accuser promptly, on him assessing his direct evidence, is a constitutional right.’[8] Here it is clear that the right to cross-examine is closely intertwined with the right to a fair trial in Ireland. Currently, however, there is no explicit right to confrontational cross-examination. The 1998 case of Donnelly v DPP affirmed the importance of cross-examination as a vital element of due process, yet states that the physical presence of a witness is not required and that a testimony made under oath would suffice.[9]

It can therefore be established that cross-examination is exceedingly important in the eyes of legal practitioners for obvious reasons. However, from a non-legal perspective it is unclear whether the virtues of cross-examination stand up to scrutiny.

Flaws

Historically, law has been the frequent subject of popular entertainment and through movies like ‘To Kill a Mockingbird’, the majority of society has become accustomed to seeing petrified victims take to the stand only to be intimidated by a menacing lawyer.  While such action is celebrated by persons like Wigmore,, Louis Nizer, a late Jewish-American trial lawyer argued; ‘[i]n cross-examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.’[10] Such a blanket criticism of cross-examination is unjustified, but he perfectly encapsulates the stereotypically belligerent behaviour that frequents our screens and our courts.Nizer’s quote is further indicative of an underlying issue. Although the need to balance competing rights is fundamental, the process can be arduous on the witness or plaintiff and play out chaotically in court. This is particularly true in the prosecution of sexual offences, where an acutely vulnerable person may be subjected to intense, personal questioning and public humiliation.. Ultimately, while the purpose of cross-examination is to protect the rights of the innocent, but the social cost and the effect on the victim must be taken into consideration.

In order to illustrate this point, it is useful to discuss the infamous ‘Belfast Rape Trial’, whichcaused ripples throughout both Northern Ireland and the Republic of Ireland in 2018[11] when a woman’s underwear was held up in court to merit a counsel’s cross-examination.[12] The proceeding exchange between the victim and the accused’s lawyer  caused public outrage and questioned the validity and legality of his presentation of such a personal piece of evidence. Is there a line that cannot be crossed in questioning? How is this rule established and by whom? These are questions that are poignant given the circumstances in the case and pertinent given the flawed aspects of cross-examination. The courts could be more concrete in their recognition of boundaries that ought to be respected or when determining which lines of questioning are appropriate.

The Belfast Rape Trial

In 2017, charges were brought against Irish International rugby players Paddy Jackson and Stuart Olding, alongside Blane McIlroy and Rory Harrison, for the rape of a young woman. They denied these allegations and claimed that all acts were consensual. Her identity was kept hidden from the public due to a rule in the United Kingdom that protects ‘vulnerable witnesses’ from the harsh and unnerving aspects of the trial process.[13] Hence, a blue veil was drawn across the witness box as she was giving evidence, preventing her from having to look at her alleged attackers.[14] Similar laws exist in the Republic of Ireland, such as the Criminal Justice (Victims of Crime) Act 2017 which empowers judges to provide special measures to a victim where there is a risk that testifying will provoke secondary victimisation.[15] It is also noteworthy that under section 21 of the aforementioned act, the trial judge may give directions about questions in cross-examination that concern aspects of the victim’s private life, unrelated to the offence.

This is an important step in recognising how daunting testifying can be and is a necessary and straightforward precaution in protecting the wellbeing of the complainant, something that was evidently lacking in R v Jackson & Olding. The woman is legally entitled to lifelong anonymity in Northern Ireland, however the public is allowed to observe rape trials and her name to circulated rapidly on social media.[16] Interestingly, the UK’s legal system allows for the accused parties to be named immediately, compared to the Republic of Ireland, where Paddy Jackson’s name would have remained unknown.

Overlooking the case’s inflated media exposure and lack of protection afforded to the complainant, the persisting concern in its wake is the ostensible need to constrain the limits of  cross-examination. The accuser gave evidence on just one day out of the nine-week trial but was cross-examined by each of the defendant’s lawyers and spent a total of eight days in the witness box.[17] Jackson was represented by Queen’s Counsel Brendan Kelly who focused on the woman's behaviour on the night in question when the incident occurred. CCTV footage was shown that criticised her ‘flirtatious behaviour’ towards other men in the nightclub and Kelly accused her of going to the VIP area simply to meet celebrities.[18] These inferences of her promiscuity were made in an attempt to discredit her testimony, which may have been protected in Ireland under the guidelines of section 21 of the Criminal Justice (Victims of Crime) Act 2017.

A particularly disturbing and controversial aspect of this trial was the admittance of the woman’s underwear from the ‘rape’ as evidence. The ‘blood-soaked garment’[19] was passed around the room, to the jury then to the judge, upon Kelly’s request. The implications of this act set a troubling precedent and imply that a woman’s dress is an excuse for sexual assault, which could potentially skew the jury’s opinion and open floodgates for other spurious defences. In a similar case in the Republic of Ireland in 2018, a seventeen-year-old’s underwear was used as evidence which prompted the widespread use of ‘#ThisIsNotConsent on social media.[20]  Arguably, the subsequent international frenzy following these cases amounts to a strong mandate for reform, such that the scope of action open to counsel needs to be defined and regulated.

In the Republic of Ireland, the right to privacy is one of the unenumerated rights that stem from our constitution, whereby ‘The state guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen’.[21] Article 40.3 alone is a valid justification for needed reform in this area. Although the defendants in the ‘Belfast Rape Trial’ were acquitted of all charges, the momentous response to the case is certain to leave a lasting impression in the minds of many and may be the catalyst needed to encourage immediate action.

Remedies

Certain areas of law are averse to progress, and sexual assault cases are greatly affected by a stagnant system. A study conducted in Australia and New Zealand analysed tactics employed by lawyers during cross-examinations in cases of rape. Researchers found that there was little to no difference in the methods used in modern-day proceedings and those of the 1950s, which include; endorsing the defendant’s character, highlighting the victim’s lack of injury and questioning their lack of resistance.[22] It was concluded that, amoung other solutions, the manipulation of archaic stereotypes of victimisation must be stopped.

Other remedies could consist of more in camera proceedings and jury sequestration as well as informative campaigns. Following a 9.3% rise in sexual assault in Northern Ireland from 2017 to 2018, the PSNI launched ‘No Grey Zone’, a media campaign aimed to educate young people about the definition of sexual assault, particularly important now in the aftermath of R v Jackson & Olding.

Conclusion

Ultimately, it ought to be concluded that t cross-examination is a tool which has the capacity to be immensely destructive to a victim’s life, yet paradoxically, as  Mahoney notes, may be the ultimate deciding factor of a judgement.[23] Somewhat predictably, the complainant in the Belfast Rape Trial was made to publicly relive a harrowing and traumatic event, yet unfortunately, despite her sacrifice, was left unvindicated.. Her case, and many others like it, suggest a need for more defined limitations of cross-examination. Such a response would hopefully  succeed in avoiding the replication of her experience  and restore victims’ faith in a system that is there to vindicate their rights.

 

[1] Miriam Webster Dictionary Online

<https://www.merriam-webster.com/dictionary/cross-examination> accessed 12th October 2019.

[2] Kevin J. Mahoney, Relentless Criminal Cross-Examination (James Publishing 2008).

[3] John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (2nd edn, Little, Brown & Co 1923) [1367]

[4] Article 38.1.

[5] Re Haughey [1971] IR 217

[6] Article 5.

[7] Christine Newman, ‘Counsel demands constitutional right to cross-examine Gogarty in traditional way’ The Irish Times (Dublin, 26 January 1999).

[8] Bailey & Bovale Developments Ltd v Flood (HC, 1999).

[9] Donnelly v DPP [1998] 1 IR 321

[10] <http://www.greatthoughtstreasury.com/author/louis-nizer> accessed 16th October 2019.

[11] Keith Duggan, ‘Uncomfortable questions raised by Belfast rape trial continue to resonate’ The Irish Times (Dublin, 15 June 2019).

[12] Conor Gallagher, ‘Inside Court 12: the complete story of the Belfast rape trial’ The Irish Times (Belfast, 28 March 2018).

 

[13] UK Youth and Criminal Justice Act 1999.

[14] Gallagher (n 11).

[15] Criminal Justice (Victims of Crime) Act 2017

[16] Gallagher (n 11).

[17] ibid.

[18] ibid.

[19] ibid.

[20] ‘Irish Outcry Over Teenager’s Underwear Used in Rape Trial’, BBC News (14 November 2018)

[21] Article 40.3.

[22] Sarah Zydervelt, Rachel Zajak, Andy Kaladelfos and Nina Westera, Lawyers’ Strategies for Cross-Examining Rape Complaints: Have We Moved Beyond the 1950s? (British Journal of Criminology 2016)

[23] Mahoney (n 3).

 

 

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