Criminal Law: Recent Developments and Emerging Trends

Criminal Evidence and the ECHR: Recent Developments

The paper will analyse recent judgments of the ECtHR on criminal law and evidence. It will focus in particular on the right of access to pre-trial advice in light of the recent judgments of the Strasbourg Court in Ibrahim and Others v UK (2016) and Beuze v Belgium (2017). It will also consider M v the Netherlands (2017), which examined whether restrictions on access to classified information breached the applicant’s Article 6 rights. In addition, it will also explore the judgment in Van Wesenbeeck v Belgium (2017) which concerned the refusal by a trial court to allow examination of undercover agents. Finally, it will look at recent decisions on surveillance and entrapment.

Bail and the use of pre-trial detention: findings from an empirical study

The legal framework governing bail and the use of pre-trial detention in Ireland is well described, but empirical research into how it operates in practice remains limited. This paper will present findings from interviews with lawyers, judges and staff of the Probation Service on matters including: the operation of the grounds on which bail can be denied in practice; the use of conditions; and future developments such as electronic monitoring and increased focus on the risk of reoffending.

Culpability in Irish criminal law: recent developments in defences and mens rea

This paper focuses on significant legislative and judicial developments over the past two years or so pertaining to mental elements in crimes (mens rea) and affirmative defences such as duress and provocation. More specifically the paper analyses a retreat from strong subjectivism in sex offences as evident in the Criminal Law (Sexual Offences) Act 2017. By strong subjectivism is meant the idea that only intention, knowledge and advertent recklessness are appropriate at all points as mens rea in serious offences. Rejecting the assumption that mens rea alone does the work of reflecting and insisting on an offender’s culpability, the paper explores recent developments in defences such as provocation and duress. Finally the paper examines – principally through the careless driving case of DPP v O’Shea [2017] IESC 41 – a recent (subtle) shift in interpretive practices and the constitutional control of culpability in criminal law that again marks a retreat from strong subjectivism.

Structured Sentencing: The Contribution of the Court of Appeal

Since its establishment in 2014, the Court of Appeal has dealt with hundreds of sentence appeals most of which have been fairly routine in nature. However, the Court has also developed a certain body of more general sentencing jurisprudence. Most notably, it has been insisting that trial court sentencing decisions should be transparent and structured, at least to the extent of an appropriate “headline” sentence being indicated in every case. Admittedly, failure to specify a headline sentence will not necessarily constitute an error of principle if the ultimate sentence seems appropriate in light of all the relevant circumstances. Recently, the Court has re-affirmed its commitment to structured sentencing by rejecting the “instinctive synthesis” approach in a favour of a staged or two-step approach. In light of these and other developments, we shall ask if appeal court jurisprudence can generate a sufficient consistency of approach and outcome to satisfy the growing demand for more coherent and consistent sentencing.