- ItemMapping austerity-based 'Crisis Law' before the European Court of Human Rights: an exploration of the impact of the court's interpretive ethic upon its derived legitimacy(University College Cork, 2020-12-23) Morgan-Williams, Samantha; Donson, Fiona; University College CorkThis thesis maps the approach of the European Court of Human Rights to ‘Crisis Law’ or austerity-based case-law. In tracking the development of this Crisis Law, a full analysis of how the Court has responded to such claims of austerity-based rights infringements will be explored. This mapping of Crisis Law reveals a number of significant strands which are addressed through the three parts of this thesis. Firstly, the thesis explores the extent to which the European Convention on Human Rights affords protection to rightsholders experiencing rights infringements by states in efforts to implement austerity policies. Secondly, a critical analysis of the Court’s approach to Crisis Law engages ongoing debates regarding the interpretive role of the Court. The Court’s unique interpretive approach to Crisis Law, affords a novel means of engaging with analysis of the contextual influence of the Court’s role, perceived legitimacy and general discourse on the reform and development of the Court. Finally considering whether the approach of the Court to Crisis Law affects or undermines the nature of the Court’s legitimacy.
- ItemWishful thinking or common sense? The case for a right to remain for irregular migrants in the European Union(University College Cork, 2020-06-01) Desmond, Alan; Mullally, Siobhan; O'Mahony, Conor; Irish Research CouncilThe growth in international migration in recent decades has been accompanied by a corresponding increase in states’ migration control activities. This has included a proliferation of laws aimed at regulating movement across international borders and has resulted in a sizeable population of irregular migrants. This increase in irregular migration is itself partially a product of states’ efforts to control movement for which they themselves might be said to bear some responsibility. It means that there are now millions of individuals whose unlawful presence in countries across the Western world puts them at heightened risk of exploitation and renders them unable, in practice, to access the protections of the international human rights regime. Fear of expulsion means that irregular migrants are reluctant to report abuses to the authorities, and that they are often unwilling to access essential services to which they are entitled. In this dissertation I draw on the work of theorists across a variety of disciplines, and in particular on Carens’s theory of social membership, to identify convergence around the normative contention that time spent in a host state grounds a claim to remain on the part of unlawfully present migrants. In other words, the more time a migrant spends in a host state, the stronger her claim to a right to remain becomes, with a corresponding diminution in the weight attaching to the nature of her entry or stay and the state’s right to deport her. I apply this theoretical framework to the rapidly evolving EU migration law regime. I argue that, despite the focus in the EU response to irregular migration on prevention and expulsion, there is a strong seam of support in EU policy and legislation for regularisation. This is a process involving the conferral of a legal status on irregular migrants. Regularisation removes such migrants from the sphere of illegality, and the vulnerabilities to which it is so conducive. All 27 EU member states are also member states of the Council of Europe and the EU itself is obliged to accede to the European Convention on Human Rights (ECHR). I therefore examine the case law of the European Court of Human Rights on migrants’ right to respect for family and private life so as to identify the human rights standards with which the EU and its member states are required to comply. Finally, I examine the law, policy and practice of Ireland on irregular migrants and regularisation, which I locate in the broader context of EU law and ECHR developments and harness to illustrate the wider arguments advanced throughout the dissertation. Ultimately, I argue for an EU-wide regularisation mechanism which would allow for the conferral of a legal status on irregular migrants, subject to minimal eligibility criteria, once they have spent a specified minimum period of time in a host state. This would vest de facto membership with de jure recognition. I argue that this solution is a necessary element of an effective migration law system. It is not, however, the sole element and neither is it incompatible with the operation of a strict migration control policy.
- ItemConnected corrections and corrected connections: post-release supervision of long sentence male prisoners(University College Cork, 2019-12-20) Mulcahy, Jane; Donson, Fiona; O'Sullivan, Catherine; Connolly, Sheila; Irish Research Council; Probation Service, IrelandIn this thesis I establish the desirability of adopting a connected, healing-centred approach in which multiagency collaboration is prioritised in order to improve outcomes for long sentence male prisoners. I explore how childhood trauma is often at the root of addiction and offending behaviour, based on qualitative interview data with twelve men approaching release. Their narratives revealed histories of neglect, abuse, family dysfunction, poverty, deprivation and community adversity. My core interviewees’ accounts of engagement with services, personal development opportunities, pre-release preparation and reentry are supplemented with interview and focus group data from criminal justice policy-makers, practitioners and community-based organisations, to provide wider context. My thesis argues that penal policy and practice must become trauma-responsive as a matter of urgency. Physiological safety is a prerequisite for human beings, without which we cannot develop new, healthier relational patterns or adopt pro-social behaviours. To increase the desistance-supportive potential of prison and post-release supervision in Ireland, people working on the frontlines of criminal justice must play a personal role in helping offenders to begin to renegotiate and re-story their undigested trauma, by fostering relational health, promoting strengths and displaying cultural sensitivity. Greater effort is required to ensure that the transition back to the community is safe and responsibly managed. A whole of government response is necessary to ensure that basic human needs are met upon release.
- ItemScience, law and the administration of justice in Irish criminal process: expectations, role and disconnect(University College Cork, 2018) Moroney, Eimear Marie; Fennell, Caroline; Irish Research Council; University College CorkRecourse to forensic capabilities is on an upward trajectory; yet, concurrently, international scandals have brought the fallibility of forensic science into sharp focus. As such, this thesis explores forensic science’s role in Irish criminal process in the light of expectations thereof. Against a backdrop of academic literature and research from other jurisdictions, Irish legislation, caselaw and policy documentation are examined with a view to delineating perceptions and applications of forensic science at key junctures, from crime scene to court. Thereafter, having regard to qualitative data specifically generated for this inquiry, this thesis endeavours to afford the reader hitherto unseen insights into how forensic science and its role is perceived by those working at the coalface of Irish criminal process, providing a valuable window into aspects of the criminal justice continuum, such as investigative decision-making, inter-agency communications, prosecutorial and defence stratagems. Ultimately, it is hoped that these “insider” perspectives, in conjunction with “official” commentary, will enable the identification of potential disconnect between expectations and the actuality of forensic science in Ireland.