Law Reform Commission of Ireland Consultation Paper on Third-Party Litigation Funding

The Law Reform Commission of Ireland has published a consultation paper on the issue of Third-Party Litigation Funding. The concept refers to investment by non-parties in dispute resolution.

From the executive summary:

"In Persona Digital Telephony Ltd v Minister for Public Enterprise, the Supreme Court confirmed that the torts and offences of maintenance and champerty remain part of Irish law. These ancient legal concepts prohibit, in most cases, the funding of litigation by third parties. One of the effects of these torts and offences is to make third-party funding (investment by non-parties in dispute resolution), subject to certain recognised exceptions, illegal in this jurisdiction. In SPV Osus Ltd v HSBC Institutional Trust Services (Ireland) Ltd, the Supreme Court held that maintenance and champerty also prohibit the assignment of a “bare” cause of action, that is, the transfer of the right to litigate a claim to a party who has no direct interest in that claim."

"As part of its Fourth Programme of Law Reform, in 2016 the Commission published an Issues Paper on Contempt of Court and Other Offences and Torts Involving the Administration of Justice. This sought submissions on whether the torts and offences of maintenance and champerty should be abolished, whether third-party funding should be permitted and how, if legalised, third party funding should be regulated. Only two submissions were received on these issues."

"Since publication of the Issues Paper, the legal and policy context for thirdparty funding has shifted considerably. The Commission therefore concluded that it was appropriate to publish a detailed Consultation Paper, setting out the up-to-date position in respect of the legalisation and regulation of thirdparty funding in Ireland and seeking further views. In addition, the issue of assignment of actions should be taken into account. The Commission has generally refrained from expressing even preliminary or provisional views on the issues discussed in this Consultation Paper. Its purpose is to inform debate and stimulate discussion which, it is hoped, will generate responses from all interests and perspectives that will enable the Commission to move to a final report setting out its recommendations."

 

Law Reform Commission of Ireland Consultation Paper on Liability of Clubs and Unincorporated Associations

The Law Reform Commission of Ireland has started a consultation process to look into the law on civil and criminal liability as it applies to clubs, societies and other unincorporated associations.

As part of the exercice, it has issued a Consultation Paper:

"Many voluntary nonprofit associations, clubs, societies and other groups that gather in pursuit of shared religious, sporting or other recreational interests are unincorporated associations. Such associations do not have a legal existence separate and distinct from their members: the association is simply the group of members (...)"

"However, this has a number of important legal consequences. It means that: 

(a) members can be exposed to personal liability for the wrongdoing of other members, in which they played no active part.

(b) members of unincorporated clubs, societies and associations who are injured cannot sue their own association, as doing so is treated by the law as suing oneself.

(c) suing unincorporated associations can be very difficult, as unincorporated associations cannot sue or be sued in their own name; rather individual members at the time of the relevant wrongdoing have to be identified.

(d) because unincorporated associations have no legal identity of their own, they require trusts to be established, through which property is held for the benefit of the association. This may mean that assets held by an unincorporated association are beyond the reach of litigants and regulators."

"In this Consultation Paper, the Law Reform Commission highlights an existing means of achieving legal protection from individual liability: the company limited by guarantee (CLG). It also proposes a number of possible reforms to try to make the law on the liability of unincorporated associations clearer, fairer and more enforceable."

The paper also has a section outlining the law in other jurisdictions, including Australia, Canada, New Zealand, the United States, parts of the UK, France and other countries.

 

Law Reform Commission of Ireland Consultation Paper on Compensating Victims of Crime

The Law Reform Commission of Ireland has started a consultation process to look into how victims of violent crime are compensated. 

As part of the exercice, it has issued a Consultation Paper.

It covers:

• the nature of awards of criminal injuries compensation;
• who should be eligible to receive compensation;
• how the criminal injuries compensation process operates;
• who should make decisions on compensation awards and how to fund any modified scheme;
• how to avoid secondary trauma to victims;
• what kinds of non-monetary supports should be offered to victims;
• what a reformed statutory scheme should look like

Among other things, the paper examines the  development over time of compensation programs in Ireland, as well as the origin of state-funded victim compensation schemes internationally. It also traces the development and recognition of victim’s rights, particularly the binding legal obligations that arise for EU Member States.

Law Reform Commission of Ireland Report on Accessibility of Legislation in the Digital Age

The Law Reform Commission of Ireland has published a report on the Accessibility of Legislation in the Digital Age that makes a wide range of recommendations as to how legislation can be made available online in a more consolidated and comprehensive way. 

Chapter 3 of the report, "Comparative Approaches to Making Legislation Accessible", considers, from an historical perspective, legislative developments that have taken place in other jurisdictions, encompassing both common and civil law traditions, including France, Germany, the United Kingdom, the United States of America, Canada, Australia and New Zealand. 

The Chapter looks at various measures that have been adopted in these jurisdictions to make their respective laws more accessible, for instance codification, statute revision, rolling reprint ("the periodic revision of legislation as it was amended on an ongoing basis and its publication in pamphlet form", p. 92), online consolidation of amendments, historical point-in-time information, and "officialization" (the  recognition by governments ofonline versions of legislation as the official or semi-official versions of the law).

From the press release:

"The Report points out that there are over 3,000 Acts in force (of which more than 1,000 are pre-1922 Acts from before the State was established) and the vast majority of these Acts have been amended many times, but they are not all available in their up-to-date, as-amended format."

"The Report points out that this is not satisfactory from a number of perspectives, including:

• the constitutional or rule of law perspective: it is vital that all citizens have access to the law as it currently stands; and 

• the economic and digital policy perspective: improving online access to legislation is consistent with the State’s policy on reducing the cost of doing business, and also 'digital by design' policy, including GovTech, which involves applying emerging technologies such as advanced data processing to improve the delivery of public services (...)"

"The Report being published today seeks to build on these significant improvements by proposing additional methods to make more legislation, whether as enacted or in its amended form, available online in this digital age. In doing so the Report discusses how other countries have addressed these problems, for example: 

• enactment of comprehensive codes of legislation, such as the legislative codes in the United States, where all federal law can be found online under 54 subjectheadings, called Titles, of the United States Code: one of its best-known is Title 11, the bankruptcy code; and 

• consolidation of priority areas of legislation, such as in New Zealand and Wales where planned programmes of consolidation must be presented to their parliaments."

Law Reform Commission Meeting on The Rule of Law and The Response To COVID-19

In early July, the 4 law commission of England and Wales, Scotland, Ireland and Jersey held a joint annual meeting to discuss government responses to the COVID-19 pandemic.

They recently published the proceedings from that gathering:

"Striking the balance between the urgency of the responses required by a public health crisis and the rule of law is a challenge for every legitimate government. Achieving the balance not only protects human rights and safeguards institutions but may also help to support the measures required by the emergency by sustaining public trust in the institutions and in the legitimacy and necessity of the measures introduced. It is an issue that has been considered in both international instruments and national legal frameworks ... Ten principles to reconcile the immediate exigencies of a crisis with the long-term legitimacy offered by the rule of law may be derived from these sources: legality, necessity, proportionality, non-discrimination, time ii limits, non-derogable rights, international obligations, parliamentary scrutiny, effective remedy and transparency." 

"Bodies engaged with law reform such as the Law Commissions attending this online Joint Annual Meeting of the four neighbouring Law Commissions have a role in supporting governments achieve the best outcomes. The meeting presented a timely opportunity to take stock of what measures had been introduced and to evaluate their compatibility with human rights and the rule of law (...)" 

"Presentations were made by each of the Law Commissions for England and Wales, Ireland, Scotland and Jersey. The Law Commission of England and Wales gave an oral presentation about potential post-COVID law reform priorities and did not present a formal paper to the meeting. The papers prepared by or digests of the presentations from each of the Law Commissions of Ireland, Scotland and Jersey follow."

Irish Law Reform Commission Report on Harmful Communications and Digital Safety

The Law Reform Commission of Ireland has published a Report on Harmful Communications and Digital Safety that recommends the enactment of 2 new criminal offences to deal with posting online of intimate images without consent:

"The first is to deal with the intentional victim-shaming behaviour of posting intimate images without consent, often done after a relationship has broken down (so-called 'revenge porn'). The second new offence also deals with posting intimate photos or videos and is to deal with a new type of voyeurism, often called 'upskirting' or 'down-blousing'. "

"The Report also recommends reforms of the existing offence of harassment, to ensure that it includes online activity such as posting fake social media profiles; and that there should be a separate offence of stalking, which is really an aggravated form of harassment."

"The Report also recommends reform of the existing offence of sending threatening and intimidating messages, again to ensure that it fully captures the most serious types of online intimidation." [from the press release]

The report also looks at how jurisdictions such as Scotland, England and Wales, and Northern Ireland deal with offences like cyber-stalking.

Updated Research Guides From GlobaLex

GlobaLex, the electronic collection created by the Hauser Global Law School Program at the New York University School of Law, recently updated some of its research guides:

• Nanotechnology and International Law Research Guide: "Nanotechnology is hailed as the next wonder after internet and is referred to as the third industrial revolution. The word ‘nano’ is derived from the Greek word ‘nanos’, meaning ‘dwarf’, ‘very small man’. However, in the study of nanoscience and technology, this word is used to mean a scale of measurement like mile, meter, inch etc. Because of number of reasons, it has turned to be the wave of the future and world community is in a race to take lead in this area. The regulatory discussion on nanotechnology mostly rotates around the study of chemical legislation, environmental law, occupational health and safety, product liability, and consumer protection law etc."
• Guide to Irish Law

Irish Law Reform Commission Issues Paper on Regulatory Enforcement and Corporate Offences

Earlier this week, the Irish Law Reform Commission released an Issues Paper on Regulatory Enforcement and Corporate Offences:

"It addresses a wide range of questions concerning two related matters. The first is whether the supervisory and enforcement powers of the State’s main financial and economic regulators are adequate or need to be supplemented by, for example, civil financial sanctions and more effective co-ordination between regulators. The second is whether there are gaps in the criminal law that do not deal sufficiently with serious wrongdoing by corporate bodies, in particular regarding current fraud legislation and the general rules for attributing criminal liability to corporate bodies."

"The broad context for this Issues Paper can be traced to the financial and economic collapse that emerged in 2008. A number of studies discussed below have identified failings in regulatory supervision and enforcement in the years preceding the collapse. The close relationship between regulatory law and criminal law also brings into focus the effectiveness of existing criminal offences and the ways in which they might affect how companies behave and are regulated. Significant reforms to both the regulatory framework and criminal law have been enacted since 2008 but important areas remain to be addressed. This Issues Paper identifies a number of these on which the Commission now seeks views. Many of these can be linked to the financial and economic collapse of 2008, but a number potentially have a wider application beyond financial regulation, including those concerning fraud offences and the attribution of criminal liability to corporate bodies. To that extent, this Issues Paper addresses future risks as well as risks already identified as arising from the financial collapse of recent year."

The report examines how other jurisdictions like the UK, Australia and the US handle issues such as the enforcement powers of financial and economic regulators, the use of negotiated compliance agreements to avoid prosecution, cooperation between regulators, corporate fraud, "reckless trading", etc.

Irish Law Reform Commission Report on Search Warrants and Bench Warrants

The Law Reform Commission of Ireland has released a Report on Search Warrants and Bench Warrants that proposes that the 300 current laws on search warrants should be replaced by a single generally applicable Search Warrants Act, which would contain standard rules on applying for, issuing and executing warrants.

At the moment in Ireland, 143 Acts and 159 ministerial Regulations allow the police and regulators (such as the Central Bank, commercial regulators and the Environmental Protection Agency) to apply to the District Court for warrants to search premises and seize material in connection with suspected theft, drugs offences or corporate offences.

Among the details of the recommendations:

• The proposed Search Warrants Act would apply to all indictable offences and to certain summary offences (notably those involving implementation of EU-derived law).
• The general validity period for search warrants should be 7 days, which may be extended if needed (three extensions only). Emergency search warrants issued by the High Court should last for 24 hours only. Exceptional 30 day time limits for search warrants in, for example, the Central Bank (Supervision and Enforcement) Act 2013 and the Companies Act 2014 should be retained because they are needed to investigate complex corporate offences.
• Search warrants should, in general, be executed at reasonable times (usually, daylight hours), but may be executed at other times (so called “dawn raids”) if a case is made to the court that this is required.
• Material reasonably believed to be evidence of or relating to an offence, not necessarily the offence to which the search warrant refers, may be seized if found during a search.
• The admissibility of material over which privilege is claimed (for example, legal professional privilege) should be adjudicated by the High Court.
• A Code of Practice on Search Warrants should be published by the Minister for Justice and Equality, which would contain practical guidance on the procedures to be followed in search warrants.
• Failure to comply with the Search Warrants Act or the Code of Practice should not, of itself, affect the admissibility of evidence. The rules on the admissibility or inadmissibility of illegally and unconstitutionally obtained evidence will continue to be developed by the courts.

 The report also provides a history of warrants in the common law tradition.

Irish Law Reform Commission Report on Prevention of Benefit from Homicide

The Law Reform Commission of Ireland has released a Report on Prevention of Benefit from Homicide that recommends comprehensive legislative reform to prevent a person from benefitting from his or her wrongdoing, especially an act of homicide.

The recommendations are intended to prevent an offender benefitting, whether under a joint tenancy or, for example, a life insurance policy or a pension. The Report contains a draft Bill to implement the recommendations in the Report.

A joint tenancy is a type of co-ownership of property, often arranged between spouses. Where one of the spouses dies, the entire interest in the property automatically passes to the surviving joint owner who becomes full owner. The property held in a joint tenancy does not become part of the deceased joint owner's estate because ownership automatically vests in the surviving co-owner.

This legal consequence, called the right of survivorship, applies even where, as in Cawley v Lillis, the surviving co-owner has killed his or her spouse; and the High Court (Laffoy J) decided that, under the current law, the interest of the deceased should be held by the surviving spouse - the killer - in trust for the deceased’s daughter. The Court also suggested that the law in this area should be reviewed, and the Report being published today has done this.

The report examined case law and legislation from other jurisdictions, including Canada, the USA, Australia, the United Kingdom and New Zealand.

Law Reform Commission of Ireland Issues Paper on Cyber-Crime and Cyber-Bullying

The Law Reform Commission of Ireland has released a discussion paper ("issues paper") on Cyber-crime affecting personal safety, privacy and reputation including cyber-bullying:

"The criminal law is important in this area, particularly as a deterrent, but civil remedies, including 'take-down' orders, are also significant because victims of cyber-harassment need fast remedies once material has been posted online. The Commission seeks the views of interested parties on the following 5 issues. "

"1. Whether the harassment offence in section 10 of the Non-Fatal Offences Against the Person Act 1997 should be amended to incorporate a specific reference to cyber-harassment, including indirect cyber-harassment (...);
2. Whether there should be an offence that involves a single serious interference, through cyber technology, with another person’s privacy (...) ;
3. Whether current law on hate crime adequately addresses activity that uses cyber technology and social media (...) ;
4. Whether current penalties for offences which can apply to cyber-harassment and related behaviour are adequate (...) ;
5. The adequacy of civil law remedies to protect against cyber-harassment and to safeguard the right to privacy (...)"

There was a related Library Boy post on October 13, 2014 entitled Updated Library of Parliament Legislative Summary of Cyberbullying Bill.

Irish Law Reform Commission Issues Paper on Disclosure and Discovery in Criminal Cases

The Law Reform Commission of Ireland last week released an Issues Paper on Disclosure and Discovery in Criminal Cases.

The Commission is seeking input on four related issues:

1. The scope of the prosecution duty of disclosure
2. The possibility of discovery in criminal cases
3. The possibility of a procedure to provide the accused access to materials in the possession of third parties - the issue may arise in sexual offence cases where the accused seeks access to therapeutic records held by a third party who has treated or advised a potential witness. This involves the competing rights of the accused to a fair trial and the confidentiality rights of third parties and their patients or client
4. The interests of various parties in criminal proceedings, including claims to privilege 

As the document explains:

"The purpose of an Issues Paper is to provide a summary or outline of a project on which the Commission is embarking or on which work is already underway, and to provide readers with an opportunity to express views and to make suggestions and comments on specific questions. The Issues Papers are circulated to members of the legal professions and to other professional groups who are likely to have a particular interest in, or specialist knowledge of, the relevant topic."

Law Reform Commission of Ireland Report on Domestic Violence Law

The Law Reform Commission of Ireland has released its Report on Aspects of Domestic Violence Law:

"The Report examines two specific issues concerning the current law of domestic violence."

1. Bail law and domestic violence cases

"The first issue dealt with in the Report is whether current bail law as it applies to domestic violence cases should be retained or reformed. In particular, the question raised is whether, when a person is charged under the Domestic Violence Act 1996 with breaching a barring order or safety order, should it be made possible to refuse bail on the basis that the person might commit another offence while on bail. This is called refusing bail for preventative reasons. The Constitution allows bail to be refused on this ground if a person is charged with a 'serious offence' and where it is reasonably considered necessary to prevent the commission of another serious offence by that person while on bail. The Bail Act 1997 defines a 'serious offence' as an offence that must carry at least 5 years imprisonment on conviction and which is also specifically listed in the Bail Act 1997 itself. The offence of breach of a domestic violence order currently carries a maximum sentence of 12 months imprisonment. The Report discusses whether the law should be reformed to make it a serious offence."

"The Report recommends that the current law should be retained and that the offence of breach of a domestic violence order should not be changed into an offence that could carry 5 years imprisonment on conviction. Among the reasons listed in the Report for this conclusion is that such a change would not be in keeping with the general purpose of the Domestic Violence Act 1996, which is to ensure that victims of domestic violence can get access to effective protection through barring orders and safety orders. This could be put at risk if breach of an order was made a very serious criminal offence. The Commission’s Report also notes that the current law on bail allows a court to impose conditions that prohibit a person from making contact with the person who has applied for a barring order or safety order and that if the accused breaks any such condition their bail can be revoked. The Commission also recommends that there should continue to be a clear policy of prosecuting not only breaches of barring orders and safety orders but also that if this is accompanied by an underlying serious offence, such as assault causing harm or harassment, this should be prosecuted also."

2. Harassment law and domestic violence

"The second issue discussed in the Report is whether the offence of harassment in the Non-Fatal Offences Against the Person Act 1997 addresses sufficiently the problem of stalking in domestic violence cases. The Report notes that most prosecutions for harassment involve domestic cases, and usually involves stalking by former spouses and partners. The current law requires that the harassment must involve “following, watching, pestering, besetting or communicating” and must be done “persistently.” The Commission’s Report points out that the requirement of “persistence” means that a person can be convicted of harassment where stalking involves a single long episode of continuous following or pestering. By contrast, under English law the harassment or stalking must involve at least two separate types of conduct. The Report concludes that the current requirements in the 1997 Act impose appropriate legal thresholds and standards that should be met in order to convict a person of stalking. The Report also notes that some emerging types of unacceptable behaviour, such as the use of social media to post fake or misleading information, may not come within the current law on harassment. The Commission concludes that this and other forms of cyber-bullying should be examined as part of the project on that topic in its new Fourth Programme of Law Reform, which was launched last week by the Attorney General."
[from the press release]

The report examines the situation in a number of other jurisdictions, including England and Wales, Canada and Australia,

Law Reform Commission of Ireland Report on Sexual Offences and Capacity to Consent

The Law Reform Commission of Ireland has released a Report on Sexual Offences and Capacity to Consent.

The Commission recommends that section 5 of the Irish Criminal Law (Sexual Offences) Act 1993 should be repealed and replaced because it fails to empower people whose capacity may be at issue (for example, because of an intellectual disability) to realize their right to sexual expression. This is so because the existing legislation does not clearly provide that no offence is committed where they engage in a sexual act and there is no exploitation or abuse of either person.

It also fails to protect persons whose capacity is in question from the most common types of exploitation or abuse because the 1993 Act deals with sexual intercourse only and ignores the reality that exploitation or abuse often arises from other unwanted sexual acts.

Among the Report's other recommendations:

• Legislation should be enacted to replace section 5 of the 1993 Act that would be based on a functional test of capacity, which is a rights-based approach that is in line with the UN’s 2006 Convention on the Rights of Persons With Disabilities and also with the Government’s recently published Assisted Decision-Making (Capacity) Bill 2013;
• The legislation to replace section 5 of the 1993 Act should provide that a person has capacity to consent to any sexual act where he or she is able to choose to agree to the specific sexual act involved (including where he or she has been given suitable decision-making assistance) because he or she: (a) understands the nature and reasonably foreseeable consequences of the act; (b) can use or weigh up relevant information in deciding whether to engage in the sexual act; and (c) is able to communicate his or her decision (whether by talking, using sign language or any other means);
• The new legislation should cover all forms of sexual assault (including sexual assault and rape) and also any other acts that involve exploitation or abuse (such as unwillingly having to watch others involved in sexual acts);
• The accused should, in general, have a defence of reasonable belief that the person has capacity to consent, but this defence should not be available to persons in a position of trust or authority (which should include close family members and professional carers) in relation to whom there should be a rebuttable presumption that he or she knew that the person did not have capacity to consent;
• Guidelines should be developed for those working in the criminal justice system to identify current obstacles and examine methods by which the participation in court proceedings of persons covered by the proposed legislation could be enhanced

The Report also looks at the legal situation in England, Wales, Northern Ireland, Scotland, Australia, and New Zealand.

Law Reform Commission of Ireland Issues Paper on Evidence Legislation

The Law Reform Commission of Ireland has released an issues paper on the Consolidation of evidence legislation:

"As part of its forthcoming Report on Evidence (the “Report”) the Commission is considering recommending the consolidation of existing legislation concerning the law of evidence , together with reform of three areas of the law of evidence : hearsay, documentary (including electronic) evidence and expert evidence . The Commission envisages the Report having two aspects . The Commission first intends to discuss and make recommendations concerning a general consolidation of the existing legislation on the law of evidence, both pre-1922 and post-1922, (the “general consolidation”). This will be the focus of Chapter 1 of the Report. In the remaining chapters of the Report, the Commission also intends to discuss the consolidation and reform of the law on hearsay, documentary (including electronic) evidence and expert evidence , on which the Commission has published three separate Consultation Papers (the “specific reforms”) . The law in these three areas comprises a combination of common law and legislation, and the Commission’s Report will involve recommendations proposing consolidating and reforming the existing law . In this context, the Commission is minded to take this opportunity to consolidate into a single Bill the existing legislation together with the reforms being proposed on hearsay, documentary and electronic evidence and expert evidence. While this would not produce, at this stage, a comprehensive statement in legislative form of all the law of evidence, the Commission considers that, taking into account the reforms being proposed in the three specific areas mentioned, it would constitute a worthwhile step in that direction (...) "

"The Commission is currently inclined towards appending to its forthcoming Report a single draft Evidence Bill containing both the general consolidation and the specific reforms discussed above, which would in general apply to both civil and criminal proceedings. This general approach would be subject to some exceptions such as in the area of hearsay in respect of which the Commission is currently inclined to the view that separate treatment for civil and criminal proceedings is required."

As the Commission explains:

"The purpose of an Issues Paper is to provide a summary or outline of a project on which the Commission is embarking or on which work is already underway, and to provide readers with an opportunity to express views and to make suggestions and comments on specific questions (...) These Issues Papers represent current thinking within the Commission on the various items mentioned. They should not be taken as representing settled positions that have been taken by the Commission."

Ireland Law Reform Commission Report on Mandatory Sentences

The Law Reform Commission of Ireland this week published a Report on Mandatory Sentences.

From the press release:

"The Commission’s Report discusses in detail: (1) the specific aims of criminal sanctions, which include deterrence, punishment, reform and rehabilitation, reparation, and incapacitation; and (2) the key principles in sentencing of consistency and proportionality. The Report contains a detailed analysis of sentencing guidance given by Irish courts in recent years, which have included: (a) the points of departure in the sentencing of certain serious offences, such as manslaughter, rape and robbery; (b) sentencing ranges for serious offences; and (c) factors that aggravate and mitigate the gravity of an offence and severity of a sentence. These key principles of sentencing law form the basis for the Commission’s responses to the Attorney General’s request."

"The Commission notes that the only completely mandatory sentence in Ireland is the life sentence for murder – judges have no discretion here and must impose a life sentence. They do not even have the power to suggest any specific minimum sentence, unlike the position in other jurisdictions..."

"The Commission also examined other 'presumptive' mandatory sentences, such as those introduced in 1999 for certain drugs offences and in 2006 for certain firearms offences. The drugs offence law states that 10 years should be imposed where the 'street value' is over €13,000, but also allows for a lesser sentence in exceptional and specific circumstances. The Commission also examined other mandatory sentences law which require judges to impose higher or consecutive sentences where the convicted person is, for example, a repeat offender."

Among the recommendations: 

• the Commission recommends that the presumptive sentencing regime that applies to certain drugs and firearms offences should be repealed and should not be extended to any other offences. The Report notes that the presumptive drugs offences regime has had the following results: the adaptation of the illegal drugs trade to the sentencing regime by using expendable couriers to hold and transport drugs; that these relatively low-level offenders, rather than those at the top of the illegal drugs trade, are being apprehended and dealt with under the presumptive regime; a high level of guilty pleas in order to avoid the presumptive minimum sentence; and a consequent increase in the prison system comprising low-level drugs offenders. The Commission also recommends that a more structured, guidance-based sentencing system (as envisaged in the first recommendation mentioned above) would provide an appropriate alternative to these provisions. In the context of drug-related crime, the Commission also considers that law enforcement efforts may be beneficially supplemented by other initiatives, such as those highlighted in the research conducted by the Health Research Board and the Misuse of Drugs work sector of the British-Irish Council. 
• the Commission recommends that the existing legislation concerning mandatory sentences (and, where relevant, presumptive sentences) that applies in the case of second and subsequent offences should also be repealed and should not be extended to any other offences. The Commission also recommends that the more structured, guidance-based sentencing system (as envisaged in the Report) would provide an appropriate alternative to these provisions.

The report examines the situation in other jurisdictions, including Canada, the United Kingdom, the United States, Scotland, Australia and New Zealand.

Law Reform Commission of Ireland Report on Jury Service

The Law Reform Commission of Ireland today published a Report on Jury Service. From the press release:

"The Report forms part of the Commission’s Third Programme of Law Reform and examines a number of topics concerning jury service including: whether qualification for jury service should be extended beyond Irish citizens; the categories of persons who are ineligible for jury service; persons who are excusable as of right from jury service; deferral of jury service; disqualification from jury service arising from criminal convictions; jury tampering; juror misconduct, including independent investigations such as internet searches; juror expenses; lengthy and complex jury trials; and empirical research on the jury process (...)"

"The Report takes account of concerns that the existing law and processes for jury selection do not involve selection of juries from panels that are representative of the community. For example, the current jury panels compiled under the Juries Act 1976 are limited to Irish citizens and exclude long term residents including EU citizens; by contrast, Irish citizens resident in England are qualified for jury service there. The 1976 Act also allows a wide group of persons, such as doctors, nurses, teachers and public servants, to be excused “as of right” from jury service in Ireland."

"Other concerns include the extent to which the availability of wireless technology might allow jurors in the jury room to search online for information about an accused rather than limit their decision to the evidence presented. There is also concern that the general right to inspect jury panel lists runs the risk that jury members are open to intimidation or jury tampering. The Report also examines reforms that might be required to deal with lengthy or complex criminal trials."

The Commission looked at the situation in many other jurisdictions, including England and Wales, Scotland, Northern Ireland, Australia, New Zealand, and the United States

Ireland Law Reform Commission Report on Missing Persons

The Law Reform Commission of Ireland has released its Report on Civil Law Aspects of Missing Persons.

From the press release:

"(...) the Law Reform Commission concludes that there is a need to have a statutory framework to deal with some immediate practical problems for family members (often referred to as those left behind). In particular, there is a need to allow access to a missing person’s bank account (especially where the bank account is in his or her sole name) so that bills can be paid. The Commission therefore recommends that legislation should be enacted to allow the family left behind to apply to the Circuit Court after a person has been missing for 90 days to allow interim management of the missing person’s property. This would allow the family to pay bills or, for example, to renew insurance on a car or motorbike. This process could be in place for up to 2 years (with a possible extension of 2 more years). "

"Presumption of Death Orders
The current law is primarily based on a long-established rule that there is a presumption that a missing person is alive for up to 7 years, and that a presumption of death applies after 7 years. These are rebuttable presumptions, which means that a person can be presumed dead where they have been missing for less than 7 years, and an absence of 7 years does not always lead to a declaration of presumed death. The current law is limited in that family members may apply to the High Court to have the estate of the missing persons administered, but this does not allow them to obtain a death certificate (...) The Commission’s Report recommends reform of the law on presumed death, in particular to ensure that families can deal as far as possible in the least expensive way with the emotional trauma of their loved one going missing. This would include clarifying the existing law on inquests to allow families of missing persons to apply for a coroner’s inquest and to have a declaration of presumed death; this would apply to cases where death is virtually certain. In cases where death is highly probable the Commission recommends that an application to the Circuit Court would be needed to provide not only for the administration of the missing person’s estate but also to make a presumption of death order, allowing the family of the missing person to obtain a death certificate. This would have the same legal effect as any other death certificate."

Law Reform Commission of Ireland Consultation Paper on Mandatory Sentences

The Law Reform Commission of Ireland has published a Consultation Paper on Mandatory Sentences.

The Consultation Paper contains a detailed analysis of the development of the law in Ireland on mandatory sentences, as well as analysis of similar laws enacted in other jurisdictions such England and Wales, Scotland, Australia, New Zealand, the United States and Canada.

The only completely mandatory sentence in Ireland is the life sentence for murder – judges have no discretion here and must impose a life sentence, and do not even have the power to suggest any specific minimum sentence.

The Commission also examined other presumptive mandatory sentences, such as those introduced in 1999 for certain drugs offences and in 2006 for certain firearms offences. The drugs offence law states that 10 years should be imposed where the street value is over €13,000, but also allows for a lesser sentence in exceptional circumstances. The Commission also examined other mandatory sentences law which require judges to impose higher or consecutive sentences where the convicted person is, for example, a repeat offender.

In its document, the Commission makes a number of recommendations, among which:

• while the use of the entirely mandatory sentence may be applied to the offence of murder, it should be amended to provide that, on the date of sentencing, the court should be empowered to indicate or recommend that a minimum specific term should be served by the defendant, having regard to the particular circumstances of the offence and of the offender
• the presumptive sentencing regime, as it applies in the case of certain drugs and firearms offences, should not be extended to any other offences but should be reviewed because, while it has succeeded in one objective, namely, an increased severity of sentences for certain drugs and firearms offences, it has not been established that it has achieved another general aim of the criminal justice system, namely reduced levels of criminality. The Commission notes that, in particular, the presumptive drugs offences regime has had the following results: a discriminatory system of sentencing where all cases are treated alike regardless of differences in the individual circumstances of the offenders; the adaptation of the illegal drugs industry to the sentencing regime by using expendable couriers to hold and transport drugs; that these relatively low-level offenders, rather than those at the top of the drugs industry, are being apprehended and dealt with under the presumptive regime; a high level of guilty pleas in order to avoid the presumptive minimum sentence; and a consequent bulge in the prison system comprising low-level drugs offenders

Ireland Law Reform Commission Consultation Paper on Missing Persons

The Law Reform Commission of Ireland has released a Consultation Paper on Civil Law of Missing Persons:

"The main feature of current law in this area is that there is a presumption that a missing person is alive for up to 7 years, and that a presumption of death applies after 7 years. These presumptions may be rebutted by contrary evidence, so that a person can be presumed dead where they have been missing for less than 7 years; and an absence of 7 years does not always lead to a declaration of presumed death."

"In the Consultation Paper the Commission examines how the existing law in this area deals with, for example, succession rights of family members, payment of any life insurance policy and the ongoing legal status of a marriage or civil partnership. The Consultation Paper also deals with the precise circumstances in which a declaration of presumed death (in some countries, also referred to as a declaration of death in absentia) may be issued before or after 7 years have elapsed. The Commission also examines the effect that long absence (or a declaration of presumed death) has for the civil status of a missing person. This is especially important if he or she returns after a long time; in turn, this raises civil status questions such as whether his or her marriage remains valid, whether parental responsibilities to any children remain in place and whether any dealings with his or her property during his or her absence should stand."

"In the Consultation Paper, the Commission also examines some immediate practical problems for family members – often referred to as those left behind – such as how to access a missing person‘s bank account (especially where the bank account is in his or her sole name) so that bills can be paid. As discussed in the Consultation Paper, the Commission notes that this area needs to be dealt with separately from the question of presumed death."

The Commission also looks at the approach to the question of missing persons in other jurisdictions such as Northern Ireland, Scotland, England and Wales, Australia and Canada.