Journal of Criminal Law, The

Latest documents

  • Prisoner Transfer Within the Irish-UK Common Travel Area (CTA) After Brexit: Human Rights Between Politics and Penal Reform

    The UK Government proposed in February 2020 that sentenced prisoner transfers with EU member states should continue after Brexit, but using a more ‘effective’ process than the existing CoE convention. The article analyses, with a particular focus on the Irish-UK CTA, the significance of continued UK human rights compliance for the achievement of this objective and the interrelationship of this issue with extradition/surrender (including the surrender of fugitive prisoners). It is concluded that Brexit has most probably raised the level of formal and institutional human rights compliance (including legal aid/assistance and the direct enforcement of prisoners’ rights in domestic courts) required from the UK for criminal justice cooperation with EU member states. Entering into such undertakings would not assist criminal impunity or the evasion of lawfully imposed penalties. Such undertakings, however, cannot help to resolve many problems inherent in prisoner transfer within the EU. The creation of a truly effective and rehabilitative transfer system would require (a) constructive UK Government participation in inter-governmental (including the UK devolved governments)/EU arrangements capable of incrementally resolving or effectively mitigating criminal justice cooperation problems and (b) acceptance at Westminster that this aspect of post-Brexit readjustment is likely to be intermittent and of long-duration.

  • Irish Criminal Trials and European Legal Culture: A Backdrop to Brexit

    This paper explores select themes relating to legal culture in European criminal justice post-Brexit by focusing on aspects of the common law trial process in the Irish courts. The incorporation of EU law and the ECHR within the domestic legal order has necessitated the nurturing of a constructive co-existence with the country’s longer standing constitutional and common law traditions. Ireland and the United Kingdom have collaborated closely as common law Member States and the departure of the UK from the EU will affect Ireland’s position in EU criminal justice in many and varied ways. Using the examples of victim participation in criminal trials and pre-trial access of suspects to legal assistance, the paper seeks to illuminate trends of consonance and dissonance in Ireland’s relationship with European law. Drawing on the shared commitment to the protection of fundamental rights in the EU and the ECHR, the discussion reflects on some of the longer term implications of Brexit for the common law presence in European criminal legal culture.

  • Uniforms and Proscribed Organisations: Does a Proscribed Organisation Need to be Named in a s 13 Charge?: Barr v Public Prosecution Service [2020] NICA 46
  • Criminal Justice Cooperation Between the UK and Ireland After Brexit: Special Edition
  • Facilitating Cross-Border Criminal Justice Cooperation Between the UK and Ireland After Brexit: ‘Keeping the Lights On’ to Ensure the Safety of the Common Travel Area

    Much of the cooperation on criminal justice matters between the United Kingdom and the Republic of Ireland is based on EU level instruments. While there has been consideration of the broader impact of Brexit on the Good Friday Agreement and consensus on the need to avoid a return to a hard border between Ireland and Northern Ireland, more detailed consideration has not been given to the effect that Brexit may have on continued criminal justice cooperation across the border. This article highlights the combined risks that Brexit presents for Northern Ireland in the form of increased criminality at a time when the loss of EU police cooperation mechanisms may result in a reduction of operational capacity and the removal of the legal architecture underpinning informal cooperation. Part 1 seeks to highlight the historical context of UK-Irish cooperation in policing matters. Part 2 explores the risk that post Brexit the Irish border may become a focus for criminal activity. The risks relating to increased immigration crime, smuggling of commodities and potential rise in terrorist activities are explored. Part 3 considers how the risks of increased criminal threats are exacerbated by the loss of EU criminal justice cooperation mechanisms and how this will affect UK-Irish cooperation specifically. Consideration is particularly given to the loss of information sharing systems. Part 4 considers how loss of EU level cooperation mechanisms could be mitigated. The viability of bilateral agreements between the UK and Ireland is considered alongside ways which police cooperation can be formalised to compensate for the potential loss of EU criminal justice information sharing systems. Nordic police cooperation is considered as a potential blueprint for the UK and Ireland.

  • Extradition Between the UK and Ireland After Brexit—Understanding the Past and Present to Prepare for the Future

    The Republic of Ireland and the United Kingdom have a long, close and difficult history. The most recent phase of which dates from 1998 and the conclusion of the Good Friday Agreement. Since 1921, however, there has been unique practice between Ireland and the UK as regards the transfer of accused and convicted persons from one to the other. Indeed, there has been a special and close relationship between the two in that regard; albeit one not without difficulties. In recent times EU Justice and Home Affairs measures and the Good Friday Agreement have supplemented and strengthened the relationship. These include, since January 2004, the European Arrest Warrant (EAW). The EAW has been particularly important in streamlining the extradition process between the Ireland and the UK. This phase of history and co-operation is coming to an end. The UK’s membership of the EU has now ceased, and a transition period during which the UK remains part of the EAW will end on 31st December 2020. The extradition relationship between the two is therefore facing a considerable challenge. There are several options open to Ireland, the UK and the EU as a replacement. Time, political will and the interests of third states, however, may well stand in the way of the conclusion of an agreement that optimally serves the interests of all parties and criminal justice. This paper considers the origins of extradition between the UK and Ireland and the alternative methods of extradition open to the UK and Ireland after Brexit. Consideration is given to the likely operation of a Norway-Iceland style agreement and whether such an agreement will be in place by the end of the transition and, if it was, whether its terms are likely to be sufficient for the needs of Ireland and the UK. The possibility of a bilateral arrangement on extradition between Ireland and the UK is also explored. Underlying the discussion is the critical point that the future extradition relationship must retain its ‘special’ characteristics, and therefore maintain the trust and good will that has developed over the years and given rise to an effective extradition relationship between the two countries. In other words, the lessons of history must be remembered.

  • Loss of Self-Control: A Reminder of the Particularly High Threshold: R v Dawson [2021] EWCA Crim 40
  • Section 41 of the Youth Justice and Criminal Evidence Act 1999 and the Admissibility of Evidence Concerning Child Sexual Assault Complaints: R v Philo-Steele (Alexander) [2020] EWCA Crim 1016
  • Confiscation Orders: Avoid a ‘Determination’ by ‘Taking a View’: R v Hilton (Northern Ireland) [2020] UKSC 29
  • Causing Death by Failing to Seek Medical Help: R v Broughton [2020] EWCA Crim 1093

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