Kent Academic Repository Full text document (pdf) Citation for published version Ring, Sinéad (2006) Collateral Challenges to a Declaration of Unconstitutionality: A v Governor of Arbour Hill Prison. Irish Student Law Review . pp. 245-255. DOI Link to record in KAR https://kar.kent.ac.uk/58828/ Document Version Publisher pdf Copyright & reuse Content in the Kent Academic Repository is made available for research purposes. Unless otherwise stated all content is protected by copyright and in the absence of an open licence (eg Creative Commons), permissions for further reuse of content should be sought from the publisher, author or other copyright holder. Versions of research The version in the Kent Academic Repository may differ from the final published version. Users are advised to check http://kar.kent.ac.uk for the status of the paper. Users should always cite the published version of record. Enquiries For any further enquiries regarding the licence status of this document, please contact: [email protected] If you believe this document infringes copyright then please contact the KAR admin team with the take-down information provided at http://kar.kent.ac.uk/contact.html IRISH STUDENT LAW REVIEW VOLUME 14 2006 The Editors and Editorial Board gratefully acknowledge the generous assistance of the Friends of the Irish Student Law Review The Irish Student Law Review Home Page is located at <http://www.islr.ie> This edition may be cited as (2006) 14 ISLR Subscriptions Subscription for volume 13 is €20 (add €6 for foreign mailing). A reduced rate subscription of €7 is available to law students and recent graduates. Subscriptions should be forwarded to: Irish Student Law Review, The Honorable Society of King’s Inns, Henrietta Street, Dublin 1. American Distributor North American readers should obtain subscriptions directly from the North American agent: Gaunt Inc., 3011 Gulf Drive, Holmes Beach, FL 34217-2199, USA. Phone: 800-942-8683 / Fax: 941-778-5252 / Email: [email protected] Contributors The review welcomes the submission of manuscripts from students or recent graduates. Submissions should be emailed to [email protected] © Irish Student Law Review and Authors, 2006 Printed in Ireland by Mahons Printing Works Limited Yarnhall Street, Dublin 1 IRISH STUDENT LAW REVIEW CO-EDITORS Claire Bruton, LLB (Dubl), LLM (Lond), BL Patricia Sheehy Skeffington, BA, MA Bruges, BL EDITORIAL BOARD Damian Byrne BA, MSSc, BL Conal Ellis BCL (NUI), LLM (Dub), BL, ACIArb Mairead Enright BCL (NUI), MA (Lond), BL Eugenie Houston BA, ACCA DipFM Caroline Gibney BA, MA (DCU) Patrick Mair BCL (NUI) BL Bronagh Murphy BA (Cantab), MA FRIENDS OF THE IRISH STUDENT LAW REVIEW Mr. Justice John L. Murray, Chief Justice Ms. Justice Catherine McGuinness Ms. Justice Susan Denham Mr. Justice Nial Fennelly Mr. Justice Joseph Finnegan Mr. Justice Sean Ryan Mr. Justice Diarmuid O’Donovan Mr. Justice Michael Moriarty Mr. Justice Michael Peart Ms. Justice Mary Laffoy Mr. Justice Daniel Herbert Mr. Justice Michael O’Shea Mr. Brian Murray SC Mr. Murray McGrath SC Mr. Paul Gallagher SC Mr. John R. Finlay SC Mr. Colm Smyth SC Mr. Dermot Gleeson SC Mr. Michael O’Higgins SC Mr. Simon Boyle SC Mr. John Gleeson SC Mr. James O’Driscoll SC Mr. Paul Sreenan SC Ms. Pauline Walley SC Mr. Mark de Blacam SC Mr. Eoin McGonigal SC Mr. Roddy Horan SC Oisín Quinn BL Paul J. Greene BL J.C. Collins & Co. Ltd Brady & Co. Law Searchers TABLE OF CONTENTS Editorial 1 Claire Bruton and Patricia Sheehy Skeffington Death’s Dwindling Domain: Taming America’s Death Penalty 3 Gerald H. Kelly The Equality Principle in EU Law: Taking a Human Rights Approach? 31 Claire McHugh From Siebe Gorman to Spectrum: An Analysis of Charges over 60 Book Debts under English and Irish Law Brian Tobin Credibility Assessments and Victims of Female Genital Mutilation: 84 A Re-evaluation of the Refugee Determination Process Aoife Drudy Protecting the Future or Compromising the Present?: 117 Sustainable Development and the Law John Danaher Reviewing the Riots: Analysing the Role of Paramilitary 140 Policing in the Police Riots of 1980s Britain Cian C. Murphy Civil Subsonic Jet Aeroplane Noise: Its Impact, Regulation 156 and Remedies Zeldine Niamh O’Brien Pre-Emptive Costs Orders: Evolution And Potential In Irish 189 Law James Mulcahy Lessons on Lesser Evils: Israel and the Prohibition Against Torture 207 Therese Lyne CASE NOTES Collateral Challenges to a Declaration of Unconstitutionality: 245 A v. Governor of Arbour Hill Prison Sinead Ring Curtin v. Dáil Eireann and others 255 Claire Bruton and Patricia Sheehy Skeffington BOOK REVIEW Charleton Lies in a Mirror: An Essay on Evil and Deceit 269 Patrick Mair Editorial We are delighted to present the fourteenth volume of the Irish Student Law Review. In the tradition of previous volumes, this Review maintains a high level of scholarly legal analysis of pertinent and diverse issues. Useful for the practitioner, academic and student, it delves into an array of topics, a number of which constitute developing areas of law in this jurisdiction. The Editorial Board this year benefited from huge interest from potential authors from many legal institutions, granting us a wealth of material from which to choose. The arduous task of selecting a small proportion of articles from some sixty submissions fell to a dedicated and enthusiastic Editorial Board. The first-rate choices they made are illustrated by the richness of the current volume. Covering a wide spectrum of legal discourse, from commercial law to human rights, environmental, criminology and public interest law, the reader has an invaluable key into contemporary Irish law. There have been many people involved in this year’s publication. We would like to thank the Friends of the Irish Student Law Review who provided not only the vital financial assistance for this year’s Review, but also welcome encouragement. The administrative back-up of the Honorable Society of the King’s Inns has considerably assisted us in the practicalities of publishing a scholarly journal. In particular, warm thanks are due to the Under Treasurer of the King’s Inns, Camilla McAleese, whose support has been unfailing. We would also like to extend our gratitude to the Honourable Mrs Catherine McGuinness for launching this volume and devoting her time to the particularly challenging task of judging the best article. Finally, the Review would not be the quality publication it is without the members of the Editorial Board. Their dedication, hard work and expertise willingly volunteered over the past nine months has ensured the publication of this Review. Claire Bruton and Patricia Sheehy Skeffington Co-Editors DEATH’S DWINDLING DOMAIN: TAMING AMERICA’S DEATH PENALTY GERARD H. KELL* Introduction The death penalty is one of the most divisive political and constitutional issues in the United States today. In a famous statement, unrelated to capital punishment, but appropriate in a very true sense, the 3rd President of the United States, Thomas Jefferson, remarked of the institution of slavery, that: We have the wolf by the ears; and we can neither hold him, nor safely let him go. Justice is on one scale and self-preservation is on the other.1 The Civil War demonstrated that Jefferson’s concerns of the difficulties of abolishing slavery were well justified. However, 21st century America is riven by the same contradictions in connection with the death penalty. As Karl Wedekind observes: We suffer it to exist because we are anxious about our own lives in tumultuous times, and we want something to be done about crime. We are told to be tough on crime, we must execute murderers.2 The death penalty remains, as Justice Arthur Goldberg once described it, “a kind of tribal rite, a symbolic palliative for the fear of crime”.3 Middle America continues to be somewhat sceptical of the death penalty, but to abolish it, would be a step into the unknown, a Russian roulette-style *LLB. (Dub), BCL Candidate, Lincoln College, University of Oxford. The author would like to thank Prof. Gerry Whyte for his advice in the preparation of an earlier draft of this paper and the Hon. Terry J. Hatter Jr., Senior United States District Judge, for his engaging reflections on the death penalty. 1 Partington ed., The Oxford Dictionary of Quotations (4th ed., Oxford University Press, 1996), at 364. 2 Wedekind, The Second Grave: A Case for the Abolition of the Death Penalty (The Kentucky Coalition for the Abolition of the Death Penalty, 2000), at 149. 3 Goldberg and Dershowitz, “Declaring the Death Penalty Unconstitutional” (1970) 83 HarvLR 1773. 4 Irish Student Law Review [Vol. 14 gamble with law and order.4 Nonetheless, recent years, in particular, have resulted in a significant reduction in the scope of death penalty statutes, which will later be discussed in depth. In 1972, following the landmark judgment in Furman v. Georgia, which held that the death penalty, as then administered, was unconstitutional, death penalty statutes were reformed.5 Many abolitionists believed the judgment represented the penultimate step on the journey towards abolition.6 The Supreme Court ruled that the prevailing pattern of arbitrary imposition of the death penalty violated the Constitution. “These death sentences”, Justice Potter Stewart elaborated, “are cruel and unusual in the same way that being struck by lightning is cruel and unusual”.7 Accordingly, the Supreme Court commuted the sentences of all 629 people on death row. However, such predictions that the death penalty was nearing its end did not come to pass and it soon became clear that Furman condemned only death penalty statutes as then drafted, but not the death penalty per se. This interpretation was confirmed in Gregg v. Georgia when the Supreme Court revisited the matter and accepted that the modifications which Georgia’s State Legislature crafted were sufficient to correct the Supreme Court’s concerns that the death penalty was being administered in an arbitrary and capricious manner.8 Georgia had introduced a guided discretion scheme, outlining mitigating and aggravating factors for the benefit of the jury.