AuthorLaura Cahillane
PositionEditor in Chief
[2021] Irish Judicial Studies Journal Vol 5(2)
Welcome to the second edition of the Irish Judicial Studies Journal for 2021.
This edition begins with an article which considers some major questions around the
treatment of victims in the criminal process and which, I think, many will find very thought-
provoking. The piece by Peter Charleton and Orlaith Cross asks whether more can be done
to accommodate and ensure fairness for victims and whether it is possible to balance this
against fairness for the accused. Reforms such as separate legal representation or providing
the judge with more control of proceedings are assessed and suggestions for potential
reforms include limiting cross-examination in cases with multiple defendants and the
possibility of judicial control of cross-examination. The piece concludes by calling for
consideration on the action to be taken in terms of balancing of rights in the criminal process
and warns against a knee-jerk response to a future controversy which may not ensure fairness
to victim or accused.
Jamie McLouglin then explores how the Constitution might be used in future to advance
arguments that the State has obligations to protect the environment, in particular from the
threat posed by climate change. This article reviews the Supreme Court’s judgment in
‘Climate Case Ireland’, in particular, examining the constitutional rights arguments made in
the case, critiquing the Court’s finding regarding the claimed unenumerated constitutional
right to a healthy environment, and then explores the cases concerning those constitutional
provisions which the Supreme Court suggested may have a role to play in future climate
litigation to assess if they may provide a basis for a State duty of environmental protection
in the future.
In the next piece, Nuala Butler considers how to approach the task of judgment writing.
With the advent of judicial education and training in Ireland, this particular aspect of judge -
craft is gaining increasing attention with issues like plain English and accessibility of
judgments now being widely spoken about. This article considers both the practical and
structural issues around judgment writing as well as some of the bigger questions such as:
who is the judgment for? I suspect we will see more analysis of this issue in the coming years.
Davy Lalor then brings us through the Supreme Court of Canada’s judgment in Ontario
(Attorney General) v G [2020] SCC 38. In this case, the Court purported to ‘clarify’ and ‘update’
the principles governing its remedial practice in cases where it finds a violation of the
Canadian Charter of Rights and Freedoms has occurred and attempted to narrow the
grounds on which suspended declarations of invalidity could be granted. Lalor notes that
Court appeared to create something approaching a presumption for the use of ‘tailored’
remedies where Charter violations are found and he argues that Irish courts should consider
greater use of tailored remedies for laws which violate constitutional rights.
In the final article, Mary Stefanazzi, picking up on a piece published in IJSJ (2020) by Peter
Charleton, examines the concept of evil, through the lens of the Jung-White letters.
In the book review section, Seán Hurley looks at the New York Times best seller A Republic
if you can Keep it, by US Supreme Court judge Neil Gorsuch, who writes about his journey to
the Supreme Court as well as the role of the judge under the US Constitution and Margaret
Fitzgerald O'Reilly considers the recently published Reflections on Irish Criminology: Conversations
with Criminologists.

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