Procedural Law (Books and Journals)
The Role and Responsibility of the State in Litigation
This article considers the role of the State as a litigant before the Courts. The Australian model litigant obligation is examined and in line with this, some policy changes are suggested.
Carter V Boehm Considered
This article looks at the significance of Carter v Boehm in developing the duty of disclosure in insurance contracts and examines the evolution of that duty over the more than 250 years since the decision. Lord Mansfield espoused a narrow duty of disclosure in Carter, but a wider duty of disclosure developed in the English courts through the 19th and 20th centuries. A narrower duty is favoured by
Catholicism and the Judiciary in Ireland, 1922-1960
This article examines evidence of judicial deference to Catholic norms during the period 1922-1960 based on a textual examination of court decisions and archival evidence of contact between Catholic clerics and judges. This article also examines legal judgments in the broader historical context of Church-State studies and, argues, that the continuity of the old orthodox system of law would not be
Trends and Issues in Personal Injury
In this article the emerging trends in the trial and conduct of Personal Injury litigation in Ireland is examined. This will be through analysis of the role of the judge in these cases and an exploration of developments in statute and case law, with a particular focus on false and exaggerated claims and on s. 26 of the Civil Liability Act and Courts Act 2004. There is also a focus on debates...
Life imprisonment and the Parole Act 2019: Assessing the Potential Impact on Parole Decision-Making
This article examines the Parole Act 2019 and its likely impact on decision-making surrounding the release of life sentence prisoners in Ireland. The informal and political nature of the release process for life sentence prisoners has been the subject of considerable criticism. The Act will transition the release decision from the Minister for Justice and Equality to a statutory Parole Board....
Truth, Patriotism and the Heroic Narrative: The Case of Operation Anthropoid
This paper explores the concept of heroism and that quality of courage generally perceived as central to heroic behaviour. We base our analysis on the assassination in Prague in 1942 of senior Nazi leader Reinhard Heydrich by two Czechoslovak patriots and the reprisal killings which followed it. We highlight how faithfulness to the historical record must be central to any authentic national...
Our Herculean Judiciary?: Interpretivism and the Unenumerated Rights Doctrine
This paper examines the unenumerated rights doctrine through the prism of Dworkinian legal theory. It contends that an interpretivist attitude is evident in much of the essential judicial dicta, and further explores the extent to which judges in the unenumerated rights cases have exercised an interpretive methodology akin to law as integrity, Dworkin’s theory of law and adjudication propounded in
- Book Review: Leahy and Fitzgerald O'Reilly, 'Sexual Offending in Ireland: Laws, Procedures and Punishment'
Preferential Creditor Status in Irish Corporate Insolvency Law: A Need for more Priorities?
This article evaluates whether there is a need for further priorities within current preferential debts under Irish corporate insolvency law. In acknowledging the choices facing the legislature when attempting to achieve distributive justice, the article reflects on the reality of insolvency and whether according preferential status to creditors is as significant in practice as might be imagined.
- Book Review: McGrath, 'White-Collar Crime in Ireland: Law and Policy'
- Response: Criminal Responsibility of Trafficked Persons, including issues concerning how such persons are protected from prosecution and punishment
- How Courts Treat Vulnerability in Cases of Slavery and Human Trafficking
- Mental Capacity in Immigration: Effective Access to Justice
- The Rhetoric of Slavery in the 21st Century
- Inadequacy of Remedies in Cases of Human Trafficking and Modern Slavery
- The Legal Concept of 'Domestic Servitude' in the Jurisprudence of the French Cour de Cassation
- Criminal Responsibility of Trafficked Persons
Four Models Of Judicial Reasoning In Sentencing
The passing of sentence by a judge on a convicted offender comprises the most public stage of the criminal justice process, but how do judges go about this task? In particular, how does the judge arrive at a sentence that adequately reflects the seriousness of the crime and the circumstances of the individual offender, whilst still taking account of the interests of society? This article reviews...
- Child Law in Ireland. By Lydia Bracken
Who Am I To Judge? - The Appointment Of Academics To The Irish Judiciary
Legal academics will for the first time be applicable for appointment as judges in Ireland per the Judicial Appointments Commission Bill 2017. This article discusses the provision and compares it to the law in England and Wales under the Tribunals, Courts and Enforcement Act 2007. While the proposal is to be welcomed in principle it needlessly limits the potential pool of academic candidates by...
- Killing Time: Life Imprisonment and Parole in Ireland. By Diarmuid Griffin
Transparency In Family And Child Law Proceedings: Disentangling The Statutory Techniques And Terminology
Article 34.1 of the Constitution of Ireland, 1937 provides that justice shall be administered in public, save ‘in special and limited cases as may be prescribed by law’. Family law and child law proceedings are part of this ‘special’ category of cases. The Oireachtas has engaged both different techniques and different statutory phrases, such as, inter alia, ‘in camera’ and ‘otherwise than in...
Truth To Be Told: Understanding Truth In The Age Of Post-Truth Politics
The role of human rights in litigation and the pursuit of justice are emphasised in academic writing on court decisions. What is also central to any pursuit of a fair outcome to litigation is that the court determinedly pursue where the truth lies as between the various contending positions of the parties. This article emphasises the centrality of truth to all human processes, including...
From Legal Advice To Legal Assistance: Recognising The Changing Role Of The Solicitor In The Garda Station
The primary aim of this article is to encourage reflection by those working in the criminal justice sector on how recent developments, in Europe and Ireland, have brought significant changes for the work and role of criminal defence solicitors. These changes require specific skills and training and thus we provide an account of the ‘SUPRALAT’ training being rolled out in Ireland. But these...
Reflections On The Justice And Welfare Debate For Children In The Irish Criminal Justice System
An historic neglect of juvenile justice in Ireland was ultimately replaced with substantial legislative changes by the Children Act 2001. However, the Children Court still faces challenges. ‘Childhood’ is a transient status and children in conflict with the law frequently have multiple and complex issues. The question posed in this article is whether ‘childhood’ as a status deserves a wider...
EU Law And Mortgage Possession Cases - What Is It All About?
Over 25 years ago, the EU legislated against unfair contract terms in consumer contracts, and Ireland adopted that law. It is now being applied by the CJEU in mortgage enforcement cases, and has become a significant feature of an active EU consumer policy. National courts must carry out an ‘own motion’ or ‘ex officio’ examination of consumer contracts, in disputes, for any unfair terms. This...
Sentencing Methodology - Towards Improved Reasoning In Sentencing
This paper addresses the legislative and juridical context within which sentencing in Ireland takes place and examines how judicial discretion in sentencing in Ireland is in fact guided, while also looking at other means by which it might be guided. Against this backdrop, and in the context of responding to Dr Graeme Browne’s paper, it further looks at what the Irish appellate courts have been...