The History Of Irish Criminal Law

Officialising it’s independence in 1922, Ireland is a young state in comparison to its European counterparts. The history of Irish criminal law is inextricably connected to that of it’s older, English equivalent. Brehon law, introduced in 1169 by Anglo-Norman nobleman Richard de Clare, more commonly known as ‘Strongbow’, established itself as Ireland’s primary system of legislation. In introducing the “quite extensive, well developed, sophisticated body of law” (O’Mahony, 2002) Strongbow played an instrumental part in the formation of Irish criminal legislation, despite eventually being superseded by English law. ‘Strongbow’ never succeeded in completely solidifying dominance over all of Ireland, instead becoming subsumed into Irish culture.

Poynings’ Law was an act of the Irish parliament in 1494-5, focussed on the “changing nature of the relations between the English government and the Anglo-Irish administration and the development of the organisation of the Irish parliament.” (Quinn, 2017). Poynings’ Law operated in several steps, beginning with the Irish council and the lieutenant governor deciding if a parliament is necessary, subsequently, this request would be approved or declined by the English king and his council. The English dominated the inner workings of Poynings’ Law, resulting in a limitation of Irish political freedom as they could not alter an initial licence request after it had been approved. (Quinn, 2017) As this act encouraged Irish reliance on Britain, it was soon considered a reminder of the inferiority of the Irish parliament at the time. (Edwards and Moody, 1941.|

Sentencing is an inherent part of the judiciary’s role and the functioning of criminal law. Details and statistics are essential to the courts, not only if they are to work efficiently, but also paramount in understanding how criminal law operates and what it aims to achieve. The judiciary influence criminal law through sentencing as it is their duty to ensure “consistency, appropriateness, rationality and impartiality.” (O’Mahony, 2002). It is the role of the judiciary to inform the public about a current issue and how it is efficiently being solved and to hold the actors of the justice system accountable for their actions.

The Irish Constitution values the role of the courts greatly, referring to them as “the organs of the State.” (Bunreacht na hEireann, 1937.), emphasising their importance and influence on Irish criminal law. The so-called constitutional organs can be divided into three governmental powers, who must all act in accordance with the Irish Constitution. When this fails, the judicial power seizes superiority (Kavanagh v. Government of Ireland, 1996).

The courts carry “imperative obligations to ensure the protection by the State of the constitutionally guaranteed rights of citizens.” (Carolan, 2018). This responsibility, held by the judiciary is hugely influential in terms of criminal law as they oversee the treatment of persons involved in the criminal legislation processes. For example, the judiciary must safeguard the accused’s right to legal assistance, among many other things (State [Healy] v Donoghue, [1976]). The judiciary’s biggest influential power is perhaps it’s need to act in accordance with Irish society and to uphold moral proceedings.

The areas of morality and law experience significant overlap. Most notably, when legislation is used to favour a specific religious moral code. While Ireland has begun the separation of church and state, with the example of the Thirty-sixth Amendment of the Constitution Act 2018, various Islamic countries still employ a theocratic arrangement in which an Islamic moral code is heavily enforced.

Lex Naturalis or natural law “claims to be able to identify conditions and principles of practical right-mindedness, of good and proper order among persons, and in individual conduct.” (Finnis, 1980). This theory identifies law and morality as deeply connected, believing simply that laws are defined by human morality. Believers of the natural law theory see morality as objective, meaning the definitions and guidelines of what is right and wrong apply to everyone, everywhere. Natural law can be seen in the practice in the case of (Gilardi v United States Department of Health and Human Services, [2013]). Under this theory morality acts completely as a source of criminal law.

Ius positum or positive law diverges from the theory of natural law, as it believes that our laws are sourced from government authorities rather than our morals and values. Positive law “exists

by virtue of being posited (gesetzt), laid down and set firmly, by a will empowered so to will.” (Nonet, 1990). Positive law, in contrast to natural law, suggests that legislation may be subject to change and interpretation. The rules of positive law are “relative, contingent and changeable.” (McKinnon, 1948). According to positive law, morality does not act as a source of law at all.

Irish criminal law is primarily sourced from the Oireachtas as “Article 15.2 of the Constitution provides that the sole and exclusive power for making laws for the state is vested” in it. (O’Mahony, 2002). The Oireachtas is active in updating and monitoring criminal law, for example, the codification of the non-fatal offences in recent times (Quinn, 1988).

However, the Oireachtas is subject to limitations, meaning Ireland does not have complete sovereignty over criminal law making. The EU law takes precedence over both Irish national law and the Constitution, ranking EU actions above the acts of the Oireachtas. However, the Oireachtas is not the only source of Irish criminal law.

Following Ireland’s joining of the European Union in 1973, the EU became another contributor to the regulating of legislation. The European Communities Act 1972 integrated the law of the European Communities and allowed government ministers to apply EU law. This implementation allowed for a large number of criminal offences to be created under secondary legislation. (O’Mahony, 2002).

Evidentially, Ireland does not have absolute power over its own criminal law-making.

Additionally, the European Convention on Human Rights (ECHR) may also act as a source of criminal law in Ireland, further proving that Ireland lacks complete sovereignty of its own criminal lawmaking. The ECHR is an “acknowledgement that the protection of human rights is viewed as an indispensable element of European democracy.” (Rainey, Wicks and Ovey, 2017). The theories proposed by the ECHR would not only affect existing criminal law, but would also exert an influence on trial and investigation procedures, evidence, sentencing and the general prison system.