School of Law (Scholarly Articles)

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Retrospective law and release from prison
(Oxford University Press, 2025-03-06) kelly, Rory
This article draws out two injustices to which retrospective criminal legislation may give rise: undermining accessibility of law and challenging equality before the law. It is argued that the censuring function of the criminal law exacerbates both wrongs. This sets the stage for an analysis of delaying prisoners' release. It is suggested that retrospective reform in this context threatens the same values as those threatened by retrospective criminalisation. Yet the safeguards against retrospective reform of release provisions are weak due to two important strands of case law, one concerning which penalty was ‘applicable at the time’ of the offence and the other which draws a distinction between penalties and their execution. Both strands of case law are in need of fundamental reconsideration if article 7 of the European Convention on Human Rights is to realise its purposes of upholding rule of law values and providing practicable safeguards.
Policing atmospheres: Crowds, protest and ‘Atmotechnics’
(SAGE Publications, 2019-03-06) Wall, Illan rua
In 1983, the British police adopted their first public order policing manual, laying the foundations of a secretive archive. The manuals and training materials produced in the intervening years provide an untapped repository of affective thought. This article reads the 1983 and 2016 training materials for their atmospheric insights. It develops the term police ‘atmotechnics’ to describe interventions that are specifically designed to affect the crowded atmosphere of protest or other disorder. The manuals reveal a gradual shift from interventions designed to evince fear and awe, to ones that seek to calm crowds. But more importantly, they underline a shift from a linear understanding of atmotechnics (as a prelude to ‘the use of force’), to an affective feedback loop where specialised officers are deployed to ‘sense’ mood changes among crowds, allowing senior strategic and tactical decisions to take account of atmospheric conditions.
The right to protest
(Taylor and Francis Group, 2023-10-02) Wall, Illan rua
The slogan ‘defend the right to protest’ has proved popular in recent years, connecting a wide variety of organisations, activists and institutional actors. But beneath this apparent agreement of left and centre-left groups, we find quite a significant difference of views over the meaning of the ‘right to protest’, and what activities it might protect. This article sets out to critically engage with the way that an institutional human rights discourse frames protest. It insists that a primacy is accorded to communication, to the exclusion of material forms of power. At the same time, the article shows that ‘violence’ becomes a meta-signifier for the jurisprudence on the right to protest, often rubber stamping the way that state violence is externalised onto protestors. The article uses these issues to understand how we might traverse rights, moving from a point where they hold an immense grip on the political imagination, to a point where that grip begins to loosen. In short, the article uses the right to protest to begin to think about what Santner calls ‘the far side of rights’.
Sovereignty and the persistence of the aesthetic
(Wiley, 2024-03-20) Wall, Illan rua; Matthews, Daniel
British constitutional thought tends to understand sovereignty in legalistic terms, with the concept often equated with the doctrine of parliamentary sovereignty. As Loughlin and Tierney have recently argued, this approach obscures the political considerations which undergird the legal precept. In this article we argue that this approach misses a third, and essentially important, dimension to sovereignty. Law, politics and aesthetics all play equally important parts in constituting the essential structure of the concept. We elaborate this claim through a reading of some prominent accounts of sovereignty within the history of political modernity. At bottom, aesthetics is concerned with the ways in which the body's senses are stimulated and ordered; it therefore includes pictorial representation, ideation and imagination, as well as affect, instinct and habituated feeling. We argue that these different elements are usefully understood as all pertaining to a distinctive, and persistent, aesthetic dimension which is essential to the sovereignty concept.
When the past meets the present: The role of memory sites in time of crisis in Chile
(SAGE Publications, 2024-10-06) Ferrara, Anita
In October 2019, massive social unrest broke out in Chile, triggering unprecedented violence and destruction unseen since the Pinochet dictatorship. The State responded with harsh repression, curfews, a state of emergency, and torture reminiscent of past violence. The Social Outbreak reopened old wounds in Chilean society that had never fully healed. Since the return of democracy in the 1990s, numerous sites of memory have been erected, created, or rescued from civil society organisations with the scope of preserving the memory of those brutally killed, tortured, or made disappear during the Pinochet dictatorship. During the 2019 social protests, several sites of memory played an active role, either by providing first aid to protesters or by documenting the crimes committed by the military and police in the streets. Other sites of memory actively engaged with the Constitutional Convention process that followed the social protests. The paper examines and compares the roles played by two renowned memory sites, Londres 38 and the Museum of Memory and Human Rights, during and after the Social Outbreak. It delves into the potential of memory sites as a tool for present-day activism. It analyses how Chile’s 2019 social uprising was a critical instance where memory sites played a significant role in supporting and promoting social change. The utilisation of memory sites as a tool for activism has successfully broken down the temporal barrier between the past and the present and raised awareness regarding the relevance of memory in comprehending contemporary social issues in Chile.
Archives and transitional justice in Chile: A crucial relationship
(Springer, 2021-07-23) Ferrara, Anita
The article, through the case study of Chile, explores the interconnections between archives, human rights and transitional justice. Chile represents a unique case globally for the early creation of thousands of records documenting the human rights violations committed under Pinochet’s 17-year dictatorship. In post-Pinochet Chile, the human rights archives have provided extremely important sources of evidence that have proven crucial in the development of transitional justice mechanisms. Truth commissions have, in turn, created their own archives, which have strongly contributed to later processes of reparation, justice and memory. The article aims to develop a better understanding of the multiple roles that archives have played as tools for achieving truth, justice and reparation over the long transitional period in Chile. The article argues that a combination of several factors and the intervention of different actors led to the archives having a significant impact in the development of subsequent transitional justice mechanisms.
The reporting of child abuse and neglect in Ireland in an international context
(Oxford University Press, 2020-09-20) Hanly, Conor
Starting in the early 1990s, reports published over a quarter of a century detailed shocking levels of child abuse and child neglect in Ireland, along with failures by Church and State officials to take effective action. These revelations, supported by international research, made a compelling case for the introduction of some form of mandatory reporting. Yet until 2015, Ireland’s child protection system relied upon the discretion of those who suspected incidents of child abuse. The Children First Act 2015 introduced a new system of mandatory reporting that applies to professionals working in the health, education, childcare and law enforcement fields, a system that became active at the end of 2017. This article reviews the development of the reporting system in Ireland, and analyses the new obligations created by the 2015 Act. The article also analyses some initial figures for 2018, which show a substantial increase in the number of reports of child abuse and neglect made in that year. Additionally, the article argues for the insertion into the new system of some nuance in order that victim autonomy might be better respected.
Jury selection in Victorian England
(Oxford University Press, 2021-06-30) Hanly, Conor
The process of empanelling a jury in nineteenth-century England was controlled in most of the country by the County Juries Act 1825. At a formal level, the process was orderly and followed three stages: the preparation of a jury panel from the county jurors’ books, the summoning of the men on the jury panel, and the selection of the trial jury from the panel. In practice, the county sheriffs and undersheriffs were able to exert some influence on the process, an influence that at times ran directly contrary to legislative requirements, and sometimes was even corrupt. Contemporaries complained continually about these informal practices, and their impact upon the perceived quality of the trial juries. This article examines each of the three stages in the jury selection process, including both the legislative requirements and the implementation of those requirements, and it charts the complaints made by contemporaries. The article also attempts to assess some of these complaints by reference to archival materials from the counties of Gloucestershire and Wiltshire. Some of these complaints were well-founded, but others – especially the alleged removal from the jurors’ books of men who qualified as special jurors – appear to have been overstated. Nevertheless, the influence of the sheriffs and undersheriffs is clear, and justified or not, the dissatisfaction with the quality of jurors may have contributed to the decline in the use of jury trial over the course of the nineteenth century.
Summary jurisdiction and the decline of the criminal jury in Victorian England
(Taylor and Francis Group Routledge, 2021-11-11) Hanly, Conor
Trial by jury was the standard dispositive mechanism for felony trials in England at the start of the nineteenth century. By the end of the century, the summary courts were dealing with a large number of formerly felony cases. This change came about as a result of the inefficiencies of the jury process, which resulted in a push to expand the jurisdiction of the summary courts. Three statutes – the Juvenile Offenders Act 1847, the Larceny Act 1850, and the Criminal Justice Act 1855 – enacted in the middle of the century transferred jurisdiction to deal with the great majority of larcenies from the courts of Quarter Sessions to the Petty Sessional courts. To enact these statutes, reformers had to overcome considerable opposition. The consequence of the new legislation was to initiate a decline in the use of the criminal jury that continues to this day.
Reform of the Family Courts: Lessons from Baltimore
(Wiley, 2021-06-21) Healy, Connie
Ireland is reforming its family court practices. This article presents research, funded by the Irish Research Council, which examines the Family Division of the Circuit Court in Maryland, USA (Baltimore City/ County). It explores the theoretical framework (therapeutic jurisprudence) underpinning the Family Division, the holistic processes and conflict resolution techniques adopted and the lessons that may be learned from the success achieved in assisting the Court Service in Ireland. Triangulating the results, it highlights areas for reform and argues that rather than use inadequate resources as a scapegoat for inaction, a more creative, holistic, stakeholder engaged approach with strong judicial leadership would ensure better outcomes.
Still my parents’ child: Breaking through the barriers of determining best interests and voice of the child post-separation and divorce
(LexisNexis, 2021) Healy, Connie
Many studies have been undertaken into the impact of separation and divorce on children and the extent to which they want to be heard to ensure that decisions made by parents and the courts are in their best interests. Arrangements are, generally, made by parents and their lawyers working from an assumption that parents know what is in the best interests of their children, often without consulting them. Drawing from empirical research undertaken as part of a wider research project examining the effectiveness of the collaborative process as a dispute resolution mechanism in Ireland, this article will present the views of a sample of ten separating parties and fifteen young adults whose parents separated when they were children. It will document the extent to which separating parents were aware of the impact of the family transition on their children and whether they were, therefore, best placed to determine what was in the best interests of their children post-separation. From the young adults’ perspective, did they believe that their parents understood the impact of the separation or divorce on them? Did they have, or would they have liked to have had, an opportunity to ‘participate’? The article will outline the advice these young adults wished to give to separating parents as to how to ensure that the best interests of the child are elicited and protected.
Accident and design: Recognising victims of aggression in international law
(Cambridge University Press, 2021-01-08) Darcy, Shane
International law has not traditionally recognised individuals as victims of the crime of aggression. Recent developments may precipitate a departure from this approach. The activation of the jurisdiction of the International Criminal Court over the crime of aggression opens the way for the future application of the Court's regime of victim participation and reparation in the context of prosecutions for this crime. The determination by the United Nations Human Rights Committee in General Comment No. 36 that any deprivation of life resulting from an act of aggression violates Article 6 of the International Covenant on Civil and Political Rights serves to recognise a previously overlooked class of victims. This article explores these recent developments, by discussing their background, meaning and implications for international law and the rights of victims.
Coming to terms with wartime collaboration: Post-conflict processes and legal challenges
(Brooklyn Law School, 2019-12-27) Darcy, Shane
The phenomenon of collaboration during wartime is as old as war itself. During situations of armed conflict, civilians or combatants belonging to one party to the conflict frequently provide assistance to the opposing side in various ways, such as by disclosing valuable information, defecting and fighting for the enemy, engaging in propaganda, or providing administrative support to an occupying power. Such acts of collaboration have been punished harshly, with violent retribution often directed at alleged collaborators during armed conflict, while states and at times non-state actors have prosecuted and punished collaboration as treason or related offenses in times of war. The consequences of wartime collaboration endure beyond the end of hostilities, however, and often present particular challenges in divided post-conflict societies seeking to maintain peace and come to terms with the past. This article examines how the phenomenon of wartime collaboration has been addressed in the aftermath of armed conflict. It primarily considers the formal processes which have been employed for such purposes, including criminal trials, denaturalization proceedings, amnesties and truth commissions. It examines particular legal questions arising in this context, such as the scope of the principle of legality and the meaning of the defense of duress in light of the frequent use of coercion to secure collaboration. The article seeks to contribute to the literature on transitional justice, which has at times neglected the issue of collaborators, by examining how post-conflict processes have variously addressed their activities, liabilities and experiences.
Harassment and stalking
(Thomson Reuters (Professional) Ireland Limited for the Irish Jurist Designated Activity Company (DAC), UCD Sutherland School of Law, 2024) Kelly, Rory
The Criminal Justice (Miscellaneous Provisions) Act 2023 introduced a new offence of stalking and reformed the existing offence of harassment. This article examines both offences asking whether they cover all the conduct that they target, whether they should cover all such conduct and whether the offences will require refinement in the appellate courts. The article draws out numerous features of both offences that may require the attention of the courts to include whether harassment may be committed by omission, whether there is a de minimis standard for harassment and whether a single incident may constitute stalking. There are good reasons for both offences. Yet it is one thing to make a successful case for criminalisation and quite another to draft a criminal offence effectively.
Reforming the sentencing and release of terrorist offenders.
(Sweet and Maxwell, 2023) Kelly, Rory
The sentencing and release of terrorist offenders were the subject of statutory reform in 2019, 2020 and 2021. The changes have included: the introduction of a new type of sentence, extending the applicability of existing sentences, toughening existing sentences, increasing maximum sentences, obligating the consideration of a terrorist connection as an aggravating factor, delaying release, and removing mandatory release. The effects of these repeated reforms have been to leave the law on sentencing terrorists unduly complicated, often without compelling rationale, and ever more severe. The discretion of sentencing judges and the Parole Board has also been problematically narrowed. It is argued that the time has come for an independent and principled review, which focuses on rationalising the current law.
Non-fatal strangulation and belief in consent
(Sweet and Maxwell, 2021) Kelly, Rory; Ormerod, David
No abstract available
Prison labour as punishment
(SAGE Publications, 2024-09-09) Kelly, Rory
Mandatory prison labour is not classed as part of the offender's punishment. The sentence is the years to be served in prison and on licence in the community. I argue that there is reason for reclassifying or reforming the current regime of prison labour in England and Wales. The argument for reclassification draws analogy to the place of labour in community orders and suspended sentences. If there is reason to reclassify prison labour, consideration of proportionality would require significantly reduced time in prison. However, there are important difficulties with establishing what reduction should be offered and operationalising any such reduction in a fair way. If prison labour is instead to be reformed so as to be non-punitive, this may require an overhaul, giving the offender a choice of whether to work and wider labour protections. Prison labour is lost when classed as neither punishment nor as employment.
Law, language and personhood: disrupting definitions of legal capacity
(Taylor & Francis, 2022-02-07) Flynn, Eilionóir
The negotiation of the United Nations Convention on the Rights of Persons with Disabilities and in particular Article 12 on Equal Recognition Before the Law, has given rise to new understandings, descriptions and definitions of legal personhood. Emerging international jurisprudence has focused on the point at which restrictions on the exercise of legal capacity amount to a violation of an individual’s legal personhood. With this new thinking comes a need for new terminology, but also the risk that new terms may be applied to old concepts without a full understanding of the paradigm shift required. This article will explore the symbolic power of the language governing individuals’ exercise of legal capacity, its relationship to notions of personhood and legal agency and its codification in law. In particular, it will examine the cognitive dissonance often present in domestic laws which purport to implement Article 12, which state their desire to ‘empower’ disabled people and to recognise their personhood, while simultaneously describing how individuals’ legal agency can be restricted or denied. Drawing on ideas of epistemic disruption (Yamin, 2009; Fricker, 2007), this article considers how we might reframe legislative language to better reflect the radical ideology of Article 12.
The (D)evolving nature of guardianship rights for unmarried fathers under Irish law?
(LexisNexis, 2020) Tobin, Brian
This article analyses the initial judicial unease with guardianship applications by unmarried fathers following the commencement in 1988 of legislation allowing such fathers to apply to the court to be appointed a guardian of their child, and it examines the courts’ more recent, child-focussed attitude towards these applications. The article demonstrates that subsequent statutory innovations in the area of guardianship have given rise to a legislative approach that favours the acquisition of post-birth guardianship rights without the necessity for court intervention only for those unmarried fathers who have an amicable relationship with, or are cohabiting with, the child’s mother. The article argues that this reticent legislative approach is largely aligned with the early, conservative judicial attitude to guardianship applications that endorsed differentiating between unmarried fathers depending on the strength of their relationship with, and commitment to, the child’s mother. The article concludes that the prevailing legislative approach to guardianship rights for unmarried fathers is insufficiently child-focussed because it fails to have due regard to the Children’s Amendment, Article 42A of the Irish Constitution, and the contemporary, child-focussed approach to guardianship applications in the courts, as well as the more flexible legislative approach to acquiring parental responsibility in England and Wales.
The influence of the convention on the rights of persons with disabilities on the European court of human rights in the area of mental health law: Divergence and unexplored potential
(Elsevier, 2024-03-03) Fiala-Butora, Janos; Hungarian Academy of Sciences
This article explores how the European Court of Human Rights has applied the norms of the UN Convention on the Rights of Persons with Disabilities (CRPD) in the area of mental health law. The European Court was initially receptive to the CRPD, including the UN Committee on the Rights of Persons with Disabilities' call for a repeal of legislation permitting involuntary psychiatric hospitalisation, but later distanced itself from it. The CRPD has nevertheless influenced how the European Court approached (a) involuntary hospitalisation, (b) separating detention from treatment, (c) restraints and other forms of ill-treatment in institutions, and (d) disability-neutral detention based on disability. Despite the two treaty bodies' different jurisprudential methodology and their different assumptions about the role of medical and legal professionals, the CRPD can continue to influence the European Court in areas such as less restrictive alternatives to coercive treatment, the relevance of capacity, and the importance of personal integrity for mental health treatment.

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