The Eagle: Trinity College Law Gazette

INSIDE THIS ISSUE:

Brexit, Britain and Breaking International Law: The UK’s Constitutional Relationship with International Law (p. 15) The Maples Group: Professional Internship Programme (p. 23) Erasmus Student in a Pandemic: Helsinki Edition (p. 35)

Table of Contents Letter from the Editor (p. 2) Samantha Tancredi Volume 7, Issue 3: Foreward by Trinity Professor Neville Cox (p. 3) Professor Neville Cox The Good, the Bad and the Ugly: Progressive Legislation, Period Poverty and Tampon Tax (p. 5) Trinity Geddis A Step in the Right Direction? Coercive Control in Ireland (p. 7) Olivia Moore The Future of the Irish Courts Amidst a Global Pandemic (p. 11) Cliodhna Buckley Brexit, Britain, and Breaking International Law: The UK’s Constitutional Relationship with International Law (p. 15)

Dominic Bielby Why Dumpster Diving for Groceries is not the Same as Theft: A Critical Analysis of the German Constitutional Court’s Decision on the Legality of Dumpster Diving (p. 18) Katharina Neumann Interview with Sinéad Mercier (p. 21) Scott Murphy The Maples Group: Professional Internship Programme (p. 23) Kevin Harnett Interview with Min Ji Jung, TCD Student, 2020 Maples Group Intern, and Future Trainee (p. 25) the Maples Group The Eagle Interviews Diplomat Declan Kelleher (p. 27) Lucy Mockler Choosing a Masters Degree: An Interview with Sarah Jones from the TCD Career Services (p. 33) Demilade Adeniran Erasmus Student in a Pandemic: Helsinki Edition (p. 35) Mackenzie Ellwood Society Highlight: FLAC (p. 39) Nadine Fitzpatrick and Chloe Dalton The Risk to Data Protection in the Developing World During the Pandemic (p. 40) Julia Best The Law Always Tells the Truth - Even When It Lies (p. 43) Ciara McLoughlin “Innocent Until Proven Guilty” - Representing the “Guilty” Client (p. 47) Eoin Jackson and Samantha Tancredi The Murder of Pat Finucane: An Inquiry Denied (p. 50) Jacob Hudson From the US to Ireland: First Year in a Pandemic (p. 52) Marcella McGuinness

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Letter from the Editor

I find that hindsight is a wonderfully difficult thing to reconcile. In hindsight, I would not have traded moments in the sun for an afternoon in the library, I would have booked the weekend flight to get away for a quick minute, or I would have taken the extra thirty minutes with my friends to enjoy a coffee before our next lecture instead of combing through a reading in the Arts Block.

However, the hindsight with which I reflect upon my first semester leading The Eagle is quite the opposite. I am beyond humbled by the efforts put in by the whole team, and I want to take this space to recognize the hard work put in by all and celebrate their successes. Deputy Editor Orla has been integral in keeping our morale strong and organizing lovely online events as well as being a key communicator between our team and our sponsor, the Maples Group. I am grateful for her support and help in every aspect of running The Eagle thus far! Our PRO Zoe has done an exceptional job designing new social media content and pushing our new brand out to readers online, and I am very excited by the newly created video content that has enhanced our online presence.

Olivia has served as Copy Editor and has been a transformative member in redesigning our Blog and ensuring its success—it is absolutely stunning, and the content is enriching. She never misses a comma!

The Editorial Board has met the challenges this year proposed with grace. As Editor, I do not always get things right – aside from design flaws that I do not catch before publishing, I also know it is impossible to perfectly lead a team all of the time. However, each member of the Board has been patient and worked exceptionally hard in editing each piece before publication, and they have met each deadline assigned to them without fault. I am simply grateful for such a diligent and committed group to carry The Eagle to the new heights it has reached this year.

My own contributions have hopefully been met with positivity as I have worked to secure a name sponsor who has been both gracious and supportive. Moreover, in the first term, I was commited to the continuing redesign of our website, the revamping of the publication itself, and the rebranding of The Eagle to be even more accessible to our readers. I am absolutely blown away by what we have accomplished thus far, and I am even more excited to continue upon this trend for the second semester.

My greatest hope is that you stay safe and healthy as our world remains a bit uncertain. I hope that our hindsight informs our future decisions to push ourselves and to continue to make time for things that matter. Within this issue, contributing writers took the time to expand upon themes that matter to them, and I am thrilled to share Volume 7, Issue 3 of The Eagle with you.

Best regards, Samantha Tancredi Editor in Chief The Eagle: Trinity College Law Gazette

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Foreward

Volume 7, Issue 3: Foreward by Trinity Professor Neville Cox

By Professor Neville Cox 2020 has been one of the best years of my life. Let me explain why.

The end of the 2019-20 and first semester of the 2020-21 academic years have, of course, been unprecedented and have thrown into chaos the normally relatively gentle and predictable rhythm of the academic year.

Much focus, understandably, has been on the move to online teaching, but it seems to me that this understates the impact of how Covid-19 has hit our law school. All universities, in my view, if they are to be worthy of the name, should be communities of students, staff and alumni, committed to the pursuit of truth and knowledge and in the name of the enhancement the local and global society. Ever since I have known it, our law school has represented the best of community values, and the worst thing about Covid, for me, is the way in which it has disrupted this community and has robbed students of the pleasure connected with being on campus and with each other. No doubt teaching and learning is made more difficult by the absence of face to face engagement, but I think that, in a big way, this is because in ‘normal times’ the pressures connected with legal education (for both staff and students) are mitigated by social interaction within the community. The fact that this has been largely impossible for the last nine months is far more challenging, certainly for me, than trying to work out how to get the technology for my classes to work.

This could be all gloom and doom but actually, from my perspective it is quite the opposite. I have been so utterly inspired over the last nine months by the resilience of our law school community and have been so proud (especially as one returning from the centre of college to the law school) to be part of it. I have been amazed by the generosity, enthusiasm, dedication and uncomplaining good-humour of our students as they move to these very different modalities of learning. Our incoming Junior Fresh students, who have missed the normal process of immersion into college, have been extraordinary both academically and in the innovative ways in which they have sought to build community structures. My colleagues, both academic and professional - have worked so incredibly hard to make sure that through this highly imperfect global context, their offerings to students – both inside and outside the classroom – would be the very best that they could be. Finally, our student societies linked to the law school have been absolutely magnificent as they provide such necessary social outlets for students, and have done so so effectively and in the face of such huge challenges. In the context of these words, I especially mention the Eagle – our newest student publication that so brilliantly fuses the two great ambitions of any scholarly writer – depth of analysis and accessibility.

This is why 2020 has been one of the best years of my life. Through all of the challenges, the exhaustion, the constant unpredicted problems and the anxiety, the resilience and generosity of the law school community - my tribe - hasn’t merely kept me going, it has inspired me. This community has always been a rock for me, but this year the sight of the values that I associate with it coming so abundantly to the fore has made me proud beyond belief and has completely re-energised me. And at the end of this academic term I am so hugely grateful for this.

My worry though, is for those especially at this dark time of the year, who have found the last semester especially tough; those who feel isolated, and anxious, and lonely. There are of course wonderful supports in Trinity for those who are in difficulty, but the simple reality is that the best support that a student can receive will almost certainly come from the friendship and care of other students. The awful thing about human pain is how often it

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is invisible to others. That is why kindness, both reactive and proactive, should be, I believe, the default mode for every human in every moment. It has always been at the heart of our trinity law community and it is needed now more than ever. Dr Johnson said that the measure of a human was what good they would do for someone who could do them no good in return. I agree.

Of course this pandemic is nowhere near over and of course there will be monumental challenges ahead.

But I hope we can all take courage from the way in which the challenges of last semester have been faced head on and have been surmounted. I hope also that every single one of our students accepts and buys into the reality that they are studying law in Trinity because they deserve to be studying law in Trinity, that they can of course cope with whatever challenges academic life throws at them, and that in their talent, generosity and dedication is my hope for the future.

Photo courtesy of Ted Halligan, JS Law and Political Science

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Gender

The Good, the Bad and the Ugly: Progressive Legislation, Period Poverty and Tampon Tax

By Trinity Geddis, JS Law “A proud day for Scotland” Monica Lennon On 24th November 2020, Scotland became the first country in the world to pass legislation that provides free and universal access to menstrual hygiene products. After a four-year grassroots campaign spearheaded by Labour’s Spokesperson for Health, Monica Lennon, the Period Products (Free Provision) (Scotland) Bill was unanimously passed by members of the Scottish Parliament. Period poverty is a term that refers to the struggle to afford or gain access to basic sanitary products. This pioneering bill, which will become law upon receiving royal assent, aims to tackle period poverty by placing a legal obligation on local authorities to provide free sanitary products to those who need them.

Scotland’s government has been a driving force in shifting public discourse on menstruation in recent years.

The Period Products Bill has been passed in the wake of progressive parliamentary action to make sanitary products freely accessible to Scottish students in 2018. Furthermore, this monumental legislation adds to local efforts, such as the work of North Ayrshire Council who have been supplying free sanitary towels and tampons in public spaces for the past two years.

Monica Lennon proudly commended Scotland’s united effort to resolve this issue: “We have shown that this parliament can be a force for progressive change when we collaborate. Our prize is the opportunity to consign period poverty to history.”

While period poverty is still a prevalent issue worldwide, one would hope that the trailblazing Period Products Bill will ignite similar legislative advances in other nations.

“Period poverty is a real issue among women today.”

Aileen Nathan, spokesperson for Always.

Globally, more than 800 million people menstruate daily, yet our reproductively-active population continues to face period stigmatisation and financial burdens for their bodies performing a basic biological task.

According to a survey completed by Plan International Ireland, 50 per cent of Irish teenagers aged between 12 and 19 face difficulties affording menstrual hygiene products. 10 per cent of participants admitted to using “less suitable” alternatives in lieu of overpriced sanitary items, whilst others may ration products throughout their cycle. Resorting to these unhygienic alternatives leaves menstruators vulnerable to both physical and mental harm. Poor menstrual hygiene contributes to a heightened risk of urogenital infections as well as preventing individuals from menstruating with dignity. Furthermore, research conducted by Always revealed this may also

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cause elevated levels of anxiety, depression and distress.

Speaking to the Dáil on the ‘Period Poverty’ motion in March 2019, Deputy Catherine Martin revealed statistics which estimated that on average women spend approximately €203 on sanitary products and pain killers for period-related pain annually. This financial burden amounts to a startling €8,100 being spent throughout an individual’s reproductive lifetime.

The outbreak of Covid-19 has only exacerbated this public health issue. Research for Menstrual Hygiene Day discovered that 47 per cent of menstruators throughout 160 countries have experienced greater difficulties when trying to obtain sanitary items during the pandemic. Simply put by the founder of Bloody Good Period (BGP), Gabby Eldin, “periods don’t stop in a pandemic.”

Nevertheless, period poverty has been exacerbated by the outbreak of the Covid-19. BGP is a British non-profit organisation who supply food banks, community support groups, homeless shelters, asylum seekers and refugees with menstrual products. On average BGP distributes 2,000 products per month; however, this total surpassed 10,000 in April. The imposition of strict lockdown regulations influenced a flurry of panic-buying, stockpiling and a significant tightening of many purse strings, which left many individuals without these essential items. These shortages have placed immense pressure on charities to provide menstrual supplies, between the outbreak of the virus in March and now, pads and tampons dispensed by BGP have totalled in excess of 53,000.

The ‘Tampon Tax’ The introduction of a tax on menstrual products results from their classification as “luxury items”, which consequently invites higher tax brackets than items deemed as “necessary” goods. Currently, half of the countries of the European Union (EU) assign an equivalent percentage of value added tax (VAT) on sanitary towels and tampons as on tobacco, wine and beer. Bridget Crawford and Emily Waldman, in their article ‘The Unconstitutional Tampon Tax’, have condemned this charges as a form of impermissible gender discrimination. Levying VAT on these items may be considered punitive as it places an economic burden on a specific portion of the population (all those who menstruate) based on their biological function.

While Scotland is the first nation to provide free provision of sanitary products, several countries have made incremental attempts to combat period poverty by abolishing the “tampon tax”. Within the EU, taxation of menstrual hygiene products range from a startling 27 per cent in Hungary to Ireland being the only country which chooses not to levy tax on these products. EU member states are governed by directives which forbid national governments from applying sales tax lower than the reduced specified minimum of 5 per cent for sanitary products. Ireland stands as an exception, as its tampon tax rate was in force prior to the implementation of Europe-wide legislation which prohibited the zero-rate VAT derogations.

The inability to further reduce tax on feminine hygiene products sparked uproar in the United Kingdom in the lead up to the Brexit referendum in 2016 and was consequently labelled as an example of the “EU paternalism system”. In response to this backlash, 28 country leaders of the European Commission unanimously voted in favour of alleviating restrictions on member state VAT freedom in March 2016. However, it must be noted that this amendment does not impose an obligation on member states to apply zero VAT on sanitary products. This can be seen as a major concession, as four years further on, many European countries have refused to lower their tax rates. Amongst the culprits for imposing the highest rates of the infamous tampon tax in Europe are Croatia, Denmark, Sweden (25 per cent), Finland (24 per cent) and Greece (23 per cent).

While Ireland does not charge VAT on tampons or pads, more environmentally-friendly alternatives, such

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Gender

as the menstrual cup, are subject to the highest rate of tax at 23 per cent. This means that the average user throws away between 125kg and 150kg of sanitary towels, tampons and applicators within their lifetime. Thus, these high tax rates do little to alleviate the environmental stigma which surrounds menstrual products.

Period poverty not only encompasses the lack of access to essential period products; it also refers to insufficient access to menstrual hygiene education, toilets, washing facilities and hygienic waste management. The “toxic trio” of costly period products, insufficient education, and the stigma which attaches to periods operate in concert to fuel this global health issue.

Paul O’Brien, CEO of Plan International Ireland commented, “If girls around the world – including here in Ireland – are to reach their full potential, then we must tackle the taboos and prejudices that surround periods.”

Irish politicians are gradually beginning to address this important topic. In a motion tabled by the Oireachtas Women’s Parliamentary Caucus requests for the provision of sanitary products and menstrual information in all public buildings were passed in the Dáil and the Seanad but these provisions have since been deferred to the National Strategy for Women and Girls Committee. Additionally, in 2019 the then Minister for Health, Simon Harris, established a Committee to address period poverty, whilst this year Dublin City Council’s budget approved €100,000 for free sanitary products to be provided in public spaces. Whilst these initial steps are welcomed, those of us who wish to combat period poverty must demand concrete legislation as has been achieved in Scotland. Only then will we truly overcome period poverty.

A Step in the Right Direction?

Coercive Control in Ireland

By Olivia Moore, JS Law and Political Science This article discusses the legal aspects of domestic violence, which some readers may find distressing.

It is unfortunately a well-known fact that the lockdown resulting from the Covid-19 pandemic has seen a massive upsurge in domestic violence, rising so steeply that commentators the world over have referred to it as the “shadow pandemic”. It was recently revealed that there has been an 87 per cent increase in the number of domestic violence cases in Ireland sent to the Director of Public Prosecutions compared to 2019, while Women’s Aid reported a 43 per cent increase in calls between March and June this year, compared to 2019 figures, with calls to Gardaí about domestic abuse and violence climbing 18 per cent.

It was a sign of development, then, when it was reported on 11th November 2020 that a 52-year-old Dublin man was convicted by jury of coercive control, intimidation, and multiple assaults of his former partner under the Domestic Violence Act 2018. Resulting in the first trial conviction for this concept of “coercive control” in Ireland, this has been described as a “landmark decision”. This legislation itself is one of international significance, too, as Ireland is - startlingly - only the third country in the world to introduce a law against coercive control, following England and Scotland. But what exactly does this concept of “coercive control” mean?

“Coercive control,” officially made a criminal offence in Section 39 of the new Domestic Violence Act 2018, is formally defined as psychological, emotional, physical, financial, sexual and threats of abuse in intimate relationships causing fear of violence, serious alarm, or distress, with a substantial adverse impact on a person’s

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day-to-day life. Manifesting primarily as a persistent pattern of intimidation or humiliation by a boyfriend or girlfriend, partner, spouse or ex-partner, this effectively “traps” people in a relationship through controlling every aspect of their lives, including access to their personal finances and physical freedom and making it dangerous, if not impossible, to leave. This damage to one’s physical and emotional well-being often results in someone giving up work, changing their routines, and losing contact with family and friends. Overall, coercive control boils down to a pattern of behaviour, incidents or details that, in isolation, may not count as a criminal offence. When viewed jointly, however, they display a web of abuse that insidiously and forcibly erodes a person’s quality of life by creating a “new normal” which can prevent those targeted from seeing the reality of their situation.

The recent breakthrough case serves as a valuable example of what exactly constitutes coercive control, set out as follows: the female survivor described a multitude of incidents undertaken by her partner throughout the course of their relationship, such as the man taking all of her social welfare money every week rendering her financial dependent, gradually isolating her from friends and family; expressing a desire to drown her in a river; calling her a “disgrace” and a “waste of space”; threatening to kill her family while she watched; and proclaiming that he should have killed her “when he had the chance” as he was “willing to do time for [her]”. He also claimed that he would circulate naked images and videos of her on the internet and send them to her family if she didn’t withdraw the allegations against him.

Illustrating just how difficult coercive control can potentially be to detect and recognise in a legal sense, this case also highlights how challenging it is to prove. According to NUI Galway lecturer Conor Hanly, the prosecution must first establish the fact of controlling or coercive behaviour, probably in some form of evidence or pattern. Next, the prosecution must prove the effect on the victim, measured alongside certain “thresholds” ranging from moderate to severe effect. Finally, the prosecution has to gauge how the ever-elusive “reasonable person” would view that behaviour.

Yet narrowing this vague three-step procedure down further only serves to highlight more pointed difficulties. To begin with, this abuse emerges very much within a pattern of different but also behaviours - in stark contrast to most common crimes, which, revolving around one single incident of assault, are far easier to pinpoint. Second, the 2018 Act recognises the seemingly smaller, but nonetheless damaging, forms of abuse, that can sometimes be written off as a spontaneous temper, momentary lapses in good humour or as expressions of a separate singular frustrations or tempers, rather than persistent and ongoing patterns of abuse.

“ ‘Coercive control,’ officially made a criminal offence in Section 39 of the new Domestic Violence Act 2018, is formally defined as psychological, emotional, physical, financial, sexual and threats of abuse in intimate relationships causing fear of violence, serious alarm, or distress, with a substantial adverse impact on a person’s day-to-day life.”

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However, it is clearly demonstrated that coercive control as a concept is impressively broad and wide-reaching, serving to cover a multitude of categories of abuse that were previously legislatively homeless. The legislation has exceeded citizens’ expectations in a number of ways. The 2018 Act is definitively more inclusive, extending to couples who are non-spouses or civil partners as well as spouses, stretching its protection to a wider cohort of people – including, to a large extent, younger people – in a wider range of circumstances. Furthermore, the legislation is gender-inclusive, recognising that victims of coercive control may also be male. It is noted that coercive control is typically the kind of abuse male victims of domestic abuse would report.

Many qualified organisations and people have offered similarly mixed reflections on the recent case and its starring legislation, expressing both optimism for the future and a note of caution.

Chief Executive of Women’s Aid Sarah Benson, for instance, acknowledged the magnitude of this “incredibly important piece of legislation because that is how domestic violence and abuse manifests itself, in a pattern of behaviour. To see that recognised and vindicated by a jury is really excellent progress.” Safe Ireland, also emphasising the public nature of the jury’s decision, identifies it as displaying a “cultural understanding of the crime of coercive control.” However, better awareness is still required in the legal system: “We need to raise awareness from solicitors and barristers right through to judges… this isn’t about a single criminal incident. It is about patterns.”

Katie Dawson, barrister and member of the Family Lawyers Association of Ireland, said the criminal standard which must be met to prove coercive control in the courts can often be a difficult threshold to reach, predicting difficulties arising because the signs that coercive control is taking place in a relationship are not as obvious as physical violence. “It is absolutely an issue of control, and if there’s anything we can gain from this case and awareness of this case, it’s to understand domestic violence in terms of control.” Crucially, finding that coercive control is about controlling and threatening somebody – not necessarily about physical violence, Ms. Dawson agreed that such a conviction will signal to perpetrators of domestic violence that real and serious consequences to their behaviour are waiting in the wings.

Meanwhile, human rights lawyer and CEO of Dublin Rape Crisis Centre Noeline Blackwell, posits that the law “has been totally tested now through the courts” and that the trial had shown coercive control to be an “important” criminal offence. Finding the case to have “rattled the cages of the legislation.” She further explained, “The fact that someone was in fear that they would be assaulted again and so did something because somebody else manipulated them – all of these things had to be taken as separate charges [prior to the 2018 Act] and they did not show the proper picture of intimate abuse.” Ms. Blackwell recognised that in the case at hand, there was not just one incident, but a pattern of behaviour that is regularly repeated in intimate violence, and that this legislation is a milestone in “recognising that in a person’s own home, in the intimate sphere, great damage can be done [that] wasn’t put together in this way until the Domestic Violence Act introduced coercive control.”

Overall, it is of course encouraging to see a jury find someone guilty on a charge of coercive control for the first time in Irish legal history. This legislation is even more poignant when one remembers that Ireland actually lacks a plain domestic violence offence in and of itself. What is decidedly less heartening is the work that remains. Coercive control itself is a subtle form of violence that is often dismissed or outright overlooked. The 2018 Act’s threshold is difficult to locate and even more difficult to prove. While the legal procedures of domestic violence cases in Ireland still leave a lot to be desired in support of victims, this legislation and its enactment is a worthy start. Despite the tangible hope this case offers to other victims of such abuse for possibly the first time in Ireland, we must also recognise the work left to be done in progressing this area of Irish law.

Photo courtesy of Matthew O’Shea, JS Law and Business

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Ireland

The Future of the Irish Courts Amidst a Global Pandemic

By Cliodhna Buckley, LL.M. The Covid-19 pandemic has severely impacted the legal profession, most notably in terms of the modus operandi of the courts. This crisis has resulted in the vast majority of cases being backlogged for the foreseeable future. There have also been negative implications for the Bar profession. In May 2020, the Bar Review magazine published a survey carried out by the Bar of Ireland which revealed almost 44 per cent of members surveyed experienced a loss of between 60-80 per cent of their usual income. According to the Irish Business Post, this significant loss of income may result in many barristers being forced to abandon the profession entirely. The Chief Executive of the Bar of Ireland, Ciara Murphy, has highlighted this particularly concerning issue in terms of the expensive membership subscriptions fees required to be a member of the Bar of Ireland: “We have definitely noticed the number of payments have slowed in recent months.” These staggering figures have also led many practitioners to question the financial viability of the profession.

Prior to the enforcement of social distancing measures in early March 2020, courtrooms were highly active and filled with the regular courtroom “hustle and bustle”: the whooshing of barristers’ gowns as they speedily make their way through the courthouse corridors, the syncopated typing of the court stenographer, the chatter amongst solicitors and their clients, and the sighs and murmurs of those anxiously awaiting the commencement of proceedings. However, this quintessential courtroom scene has undergone a drastic transformation in recent months.

Technology has been heavily relied upon by the Irish Courts to conduct remote hearings in a non-traditional courtroom setting. The courts are currently experiencing a hybrid of remote and “in-person” hearings throughout the country. On 20th April 2020, the Supreme Court sat for the first time in the midst of the pandemic using remote technology, which was soon followed suit by the Court of Appeal. In response to these technological developments, the Oireachtas enacted the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 to provide for court sessions to be held remotely. Section 11(1) states that “[a] court before which civil proceedings may be heard may direct that any category or type of such proceedings shall proceed by remote hearing”. This legislation also provides for the manner in which such proceedings should take place, with Section 11(5) of the Act referring to the attendance of witnesses at court proceedings. In civil courts, judgments will now be delivered electronically to the parties concerned in the dispute. These parties will also be permitted to make submissions virtually, unless an oral hearing is deemed necessary by the court.

In an ideal scenario, all judicial proceedings would take place within a courtroom. A courtroom setting avoids the current operational obstacles which may arise when conducting jury trials online, such as cross-examinations of witnesses and the presentation of expert testimony evidence during virtual court proceedings. However, one of the biggest issues facing the courts is the ability to provide adequate access in order for a jury trial to proceed. A jury trial requires a considerable amount of space to cater for all its members, plus the judge(s), counsel for the defence and prosecutions, the parties themselves, and court reporters - a feat which has become increasingly impossible to reach with the necessity of social distancing.

On 24 November, during an online event hosted by the Dean of UCC, Chief Justice of Ireland Mr. Frank Clarke considered that over the past nine months, the legal community in Ireland has gradually begun to adapt and embrace the idea of “remote hearings”. The Chief Justice also commended the “speedy” response of the Irish

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Courts to the judicial barriers posed by the ongoing global pandemic. The Chief Justice remarked that at the beginning of the pandemic, only twelve courthouses in the country were deemed to be of an appropriate size to conform with Covid-19 health and safety guidelines. The Chief Justice also suggested that Croke Park may be used in 2021 in lieu of a traditional courtroom-setting in order to overcome this issue. Another obstacle presented by the pandemic is the impact Covid-19 restrictions are having on new trainee solicitors and barristers. Many have been deprived of the opportunity to gain courtroom experience as part of “devilling” in their first year of practice. Although they may still be privy to online proceedings, this training period is usually a barrister’s first exposure to the inner workings of the courtroom.

Notably, the Chief Justice has wholly supported the use of technology and media in the courtroom. In October 2017, RTÉ News was granted the opportunity to broadcast several judgments live from the Supreme Court for the first time in Irish history. According to the Chief Justice, this test period was a “way of demystifying the court process” and allowing “people to see how their highest court operates”. However, due to social distancing measures, public access to courtrooms throughout Ireland has become severely limited. Therefore, one could argue that there is a strong possibility that live broadcasting of court judgments might become the “new normal” in the coming months.

In France, a similar sentiment was expressed by the newly appointed Minister for Justice, Mr Éric Dupond-Moretti. In an interview on 28 September 2020 with le Parisien, the minister underlined the importance of transparency and public accessibility within the courts system as this is a fundamental democratic right, “Une garantie démocratique.” However, these arguments have been subject to severe criticism and opposition. Legal scholars such as Nancy S. Marder have noted that, in the United States, many judges fear that cameras in the courtroom may “compromise the dignity of the courtroom”. However, the main controversy primarily concerns an individual’s right to privacy under Article 38.1 of the Irish Constitution and Article 8 of the European Convention on Human Rights (ECHR). Firstly, there is an issue of competing rights to ensure that justice is administered publicly, while simultaneously guaranteeing an individual’s right to privacy. This may also have serious implications for an individual’s right to a fair trial (Article 6 ECHR) by negatively impacting the presumption of innocence of the accused under Article 6§2 ECHR. In addition, the broadcasting of courtroom proceedings may result in the accused, the plaintiff, witnesses and members of the judiciary being subjected to online harassment.

Nonetheless, virtual courtroom sessions have proven to be quite effective for members of the legal profession. For example, from a practical point of view, barristers and solicitors no longer need to travel throughout the country to attend upcoming hearings. Remote hearings are also environmentally advantageous as large court files can be electronically uploaded within minutes. In addition, applications for bail and judicial review can be adjudicated efficiently and effectively online.

In spite of these new technological innovations, serious and pressing matters facing the courts are still taking place within the confines of a traditional courtroom. This begs the question of whether virtual courtroom hearings are an effective substitute or temporary solution for the Irish Courts during these unprecedented times. As the Chief Justice highlighted, there are many benefits of incorporating technology in the courtroom. However, the role of technology and the use of a hybrid-courtroom setting also pose several problems which may hinder the administration of justice. Therefore, it is still unclear whether these technological reforms will be retained in “post-Covid” Ireland.

“This begs the question of whether virtual courtroom hearings are an effective substitute or temporary solution for the Irish Courts during these unprecedented times.”

Photo courtesy of Matthew O’Shea, JS Law and Business

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Brexit

Brexit, Britain, and Breaking International Law: The UK’s Constitutional Relationship with International Law

By Dominic Bielby, Guest Writer, Law at the University of Cambridge On 4th September 2020, the Secretary of State for Northern Ireland, Brandon Lewis, addressed the House of Commons to answer questions regarding the Internal Market Bill, a piece of legislation concerned with preserving the domestic market between the UK mainland and Northern Ireland. Lewis stated that the provisions of the Bill would enable government ministers to break the UK’s international legal obligations with the EU in a “limited and specific way”. This unusual admission caused a significant backlash from those who believed that the UK was undermining its traditionally held commitment to the rule of law. Former Prime Minister Theresa May warned that the UK would tarnish its global reputation due to the Bill. Advocate General Lord Keen (the UK Government’s highest-ranking law officer in Scotland) resigned over the provisions. Even the Archbishop of Canterbury – head of the customarily apolitical Church of England - admonished Prime Minister Boris Johnson for the “disastrous precedent” that the Bill would set, specifically its potential to undermine the Good Friday Agreement. As the deadline for the UK’s post-transition relationship with the EU drew closer, however, the Government agreed on 9th December to withdraw the international law-breaking provisions of the Bill. Noteworthy is that this change was not obliged by British law, but rather it was a political decision of the presiding government. Accordingly, we may ask: how the UK can break its international legal obligations in accordance with its own constitutional arrangements? In order to answer this question, we must first consider the theoretical relationship between the domestic and international law.

Monism and Dualism Defined simply, international law is the law that takes effect between states. The rights, duties and obligations that exist within this system - created either by custom or through treaties - bind the state as a single, corporate unit. This means that when, for example, the Republic of Ireland concludes a treaty with the United States, the rights, duties, and obligations of the agreement take effect against the state of Ireland as a whole, rather than applying to any individual office or institution therein, such as the Taoiseach. By comparison, domestic law is the law which is created by and which takes effect within a state, usually taking the shape of rules proposed by an executive and enacted into law by a parliament. This law is capable of binding individual actors, such as governmental departments and private persons, and is enforceable through coercive means, adjudicated by a judicial system. This is a sharp contrast to the voluntary means through which international law is enforced, due to the absence of a supranational authority that exists above and beyond the sovereign state, which has the power to force states to act in accordance with the law.

The relationship between these two types of law is vital if we are to understand if - and when - states can breach their international legal obligations. One theory, known as monism, proposes that domestic law only exists due to international law delegating powers and competences (such as the ability to make and enforce laws) to states, and thus, international law takes effect unilaterally within every nation. Applying such a theory to the

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UK’s situation would therefore mean that the Internal Market Bill’s provisions were illegal due to their violation of superior international legal obligations. As appealing as monism is as a theoretical framework to ensure compliance with international law, it is not orthodoxy in the UK (and Ireland), where a “dualist” theory governs the relationship between domestic law and international legal obligations.

The dualist approach does not regard the relationship between international law and domestic law as a battle of supremacy between two legal systems fighting over the same territory. Instead, the problem is viewed through the following lens: international and domestic law are separate, distinct legal orders - one is concerned with the exercise of legislative power within a sovereign state’s jurisdiction, and the other with the creation of legal norms by custom or treaty which bind nation states as unitary entities - thus, there is no overlap between them. Accordingly, international law and domestic law only affect each other to the extent that each system allows, according to its own internal rules. For example, a treaty concluded between Ireland and the US does not affect the domestic law of either nation, unless that nation’s own law provides for this. Through this understanding of the general theoretical framework of the relationship between international law and domestic law, the question for the British example then becomes, how does international law affect British law, according to its domestic legal principles?

The Rayner Rule and Parliamentary Sovereignty It is a matter for individual states to determine the extent to which international law affects its internal legal order. Some states choose to facilitate a close, direct relationship between their domestic law and its international obligations. Focusing in on treaty law (the relevant source of international law vis-a-vis the Internal Market Bill), the German constitution, for instance, provides that when the Federal President has concluded a treaty in accordance with provisions of Article 59 of the Basic Law, that treaty takes effect in domestic law as if it were law passed by the Federal Parliament.

By contrast, the United Kingdom maintains a stricter division. Treaties to which the state binds itself have no direct applicability in domestic law unless they have been “incorporated” by an Act of Parliament. This rule is known by the case in which it was most forcefully affirmed - J.H. Rayner v Department for Trade. Accordingly, unless Parliament chooses to give effect to treaty obligations through the passage of an Act of Parliament, domestic law remains unaffected by those obligations. This stark divide between the UK’s international obligations and their lack of direct effect in domestic law has been tempered by the courts: for instance, a court will assume that Parliament intends to legislate in accordance with the UK’s treaty obligations where the provisions of an Act are ambiguous. Nevertheless, the fact remains that without Parliamentary enactment, treaty obligations cannot be directly applied in the UK, irrespective of their content. A classic example illustrates this: the UK joined the European Convention of Human Rights in 1950 but until the enactment of the Human Rights Act 1998, a British citizen could not bring a claim in a domestic court for the violation of their Convention rights.

Rayner does not exist without reason - rather it is a rule that recognises and protects the cornerstone principle of the British constitutional order, that of Parliamentary sovereignty. According to A.V. Dicey’s classic conception of this principle, Parliament is the supreme legislative authority in the UK, and therefore, no other institution can create law superior to that of Parliament or overturn Parliament’s laws – including the courts. How Rayner supports this constitutional keystone is clear: if international law had direct effect in the UK, this would usurp Parliament’s intended role as the sovereign law-making authority. Accordingly, Parliament must give its approval to allow for international law to have any effect domestically, turning the legal norms that exist between the UK and other states into rules domestically applicable. Furthermore, because of its unqualified sovereign legislative power, Parliament may repeal Acts which have already incorporated international legal norms. The fact that an international legal rule has been incorporated domestically does not mean that it takes precedence over future domestic legal rules, enacted by Parliament, with which it is incompatible.

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Brexit

Brexit and Breaking Promises Having examined the relationship between the international and British legal order, we can now consider in detail how this system functions in relation to the Internal Market Bill. On 24th January 2020, the UK and EU concluded a withdrawal agreement to govern the legal relationship between the country and the bloc after Britain’s exit from the Union on 31st January 2020. Applying dualist theory, the agreement created a plethora of legal obligations, duties, and rights at an international level but, for reasons mentioned above, had no direct effect on UK law. However, unequivocal incorporation in accordance with the Rayner rule did occur with the enactment of the European Union (Withdrawal Agreement) Act 2020 (passed on 23rd January, nine days prior to the Brexit deadline). Part 1 and Part 2 of the Act gives domestic effect to the obligations, rights, and duties arising out of the agreement without qualification or further legislative enactment.

A key aspect of the Withdrawal Agreement concerned the status of Northern Ireland, the “Gordian knot” of Brexit. Provision was made within the Northern Ireland Protocol annexed to the Withdrawal Agreement for regulatory harmonisation with the European Union Customs Union, to prevent the need for a hard border on the island of Ireland - an act that would subvert provisions of the Good Friday Agreement. However, for the Johnson government, which itself had negotiated the Protocol, the need for certain regulatory checks to occur between the UK mainland and Northern Ireland was perceived as undermining the Conservative and Unionist Parties’ commitments to the preservation of the UK’s political union. Hence, the Internal Market Bill was brought before Parliament to allow Ministers to make provisions that would breach the Withdrawal Agreement and its incorporating Act of Parliament, in order to preserve the integrity of the UK’s internal market. This fact was not merely implied by the Act’s content but was made explicit in Clause 45(2)(a), in which provisions made under Part 5 of the Act relating to the Protocol, “are not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law.”

As mentioned, the UK has since agreed to remove the relevant offending provisions of the Bill. If enacted as originally intended however, the Bill would have allowed for the breach of international law entirely in conformity with the UK’s domestic constitution. As established, Parliament, in possession of its unassailable legislative sovereignty, can determine that the law be whatsoever it wishes, even if such domestic legislation breaches the UK’s international obligations. Of course, such domestic power does not mean that the UK can break international law without consequence internationally. In the same way that domestic law determines the effect of international law within it, international law has its own rules regarding the impact of domestic law. The foundational principle in treaty law is that domestic law cannot be used as a justification for the breach of obligations, as recognised in Article 27 of the Vienna Convention on the Law of Treaties (VCLT).

Furthermore, we may note that although the UK may no longer be threatening a breach of Article 27 VCLT, it may still have already broken international law by its course of conduct, having acted in bad faith through its now recanted intention to break the Withdrawal Agreement. Such conduct may be viewed as violating Article 26 VCLT, which obliges the performance of treaty obligations in good faith. Thus, as the British Government embarks on its mission to transform the nation into a global trading powerhouse it should be wary of engaging in the same tactics with other nations and trading blocs as it has done with the EU. Not only does the lack of domestic culpability for its breach of international law fail to prevent international legal responsibility for such violations, but it also fails to protect the Government from the political and diplomatic backlash that inevitably follows from a state choosing, out of its own self-interest, to ignore the rules of the rules-based international legal order.

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Why Dumpster Diving for Groceries is not the Same as Theft: A Critical Analysis of the German Constitutional Court’s Decision on the Legality of Dumpster Diving

By Katharina Neumann, JS Law and Political Science

Browsing through large containers behind supermarkets, picking out groceries that are expired but still edible, and hunting for rejected delicacies not only describes the practice of some homeless people or financially disadvantaged individuals in need of something to eat. An increasing amount of young activists are “dumpster diving” - rather than being driven by financial necessity, instead their actions are a form of protest in the face of the increasing food waste problem, as we carelessly waste 33 per cent of food produced globally.

Dumpster diving as a means of combating food waste is legally - not to mention politically - controversial.

In some parts of the world, the practise of dumpster diving is not illegal per se, but a legal grey area. A landmark case in the United States Supreme Court, California v Greenwood (1988), held that there is no common law expectation of private ownership for discarded materials as a form of property, thus negating the idea that removing items out of the trash is theft. Nevertheless, as dumpster diving usually involves entering another property – whether private or commercial - dumpster divers might be prosecuted for trespassing, or in some cases even littering.

In Ireland, the disturbance, interference or removal of “anything deposited at a facility provided by or on behalf of a local authority or an authorized waste collector for the deposit or storage of waste” can be an offence. A person may be penalized under the Waste Management Act, 1996 as opposed to the Criminal Justice (Theft and Fraud Offences) Act, 2001 - indicating that the dumpster diving is not theft, and as a result, is rarely prosecuted.

Germany is one of the first jurisdictions to rule on the legality of containern, the German word for dumpster diving. The case - Constitutional Complaint 2 BvR 1985/19 - concerned two university students that were caught removing fruit, vegetables, and yoghurt from the dumpster of a supermarket near Munich in 2018 in protest against said store’s discarding of huge quantities of edible food. In January 2019, the District Court sentenced the students to eight hours of community service plus a fine of €225 on probation for theft. On appeal, the Bavarian Supreme Court confirmed this sentence in October 2019, but Caro and Franzi, the two Bavarian students, stuck to their guns. Supported by the Society for Civil Liberties (GFF), the students filed a constitutional complaint against their conviction for theft in the Supreme Court. In their complaint, the students advanced the argument that, in light of Article 20a of the German Basic Law, the Court should take the public interest in responsible and sustainable handling of food into account. They claimed that the practice of producing huge quantities of - often avoidable - food waste breaches this article as it is particularly socially harmful. The GFF canvassed the argument that due to the German ultima ratio principle of proportionality: the state should not punish activities that are

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EU

not criminal in and of themselves. As the food had expired, the supermarket had no worthy interest in protecting the discarded food. Therefore, labelling their removal as theft was not appropriate, necessary, or proportional.

The German Constitutional Court (Bundesverfassungsgericht) denied the constitutional complaint, clarifying that dumpster diving within the Bundesrepublik remains illegal. A waste container’s contents are regarded as the property of the container’s owner, even if they are worthless. Therefore, taking items from such a container constitutes theft. The Court held that the owner has a remaining interest in the disposal of the groceries. Otherwise, they could lead to damage in the store’s reputation in case people fall ill from the discarded food.

The decision of the Bundesverfssungsgericht is regrettable for many reasons. It criminalizes the attempt by two young activists to call attention to the huge quantity of edible food disposed of in Germany - a rather honorable action. It is questionable whether the use of criminal law, the sharpest sword of the state, is proportionate in this case. Although the two students breached German theft laws, it is not morally reprehensible to save groceries from ending up in a garbage landfill. Criminal law should punish socially-harmful behaviour, which - if we are being intellectually honest - the activity at hand is not. It is difficult to understand why, rather than being eaten, the weak justification of a store - that they may suffer reputational damage if people became ill from the food that they took out of its dumpster - means that perfectly edible groceries should rather land on the garbage landfill.

The average German wastes around 55kg of food every year. While food waste is an omnipresent market inefficiency, costing billions of euros every year, it is morally objectionable. Every starving person on this planet could be sufficiently fed on less than a quarter of the food that is wasted globally each year, which is also detrimental for the environment. When we waste food, we are also wasting all the resources that went into growing it.

Food waste depletes nearly a quarter of our water supply, and it takes a landmass larger than China to grow the food each year that is ultimately never eaten and food waste drives up our carbon footprint drastically as rotting food is a significant source of methane - a potent greenhouse gas with 21 times the global warming potential of carbon dioxide. Thus, because dumpster divers contribute to the reduction of water and energy usage, the rebate of our carbon footprint, and the decrease of agricultural space, it is arguable that they should not be branded “criminals” and punished.

Moreover, the German Constitutional Court hints in the judgment at hand that the disposal of groceries can and should be handled differently by legislators. Caro and Franzi state in an interview: “If we are not allowed to save groceries from the landfill, then politics has to.” And we know that there are plenty of conceivable solutions. The practice of dumpster diving could be handled in a similar way to the possession of cannabis. While the possession of cannabis in Germany is illegal and an offence, it is not prosecuted if an individual possesses under 10g of the drug. A similar solution is imaginable for dumpster diving, emphasising that removing items from a dumpster is technically still theft but acknowledging that saving groceries is not in itself reprehensible. Secondly, to further reduce food waste, more stores such as the “surplus stores” in Berlin which sell expired products, oddly shaped fruits and mislabelled food for cheap prices, must be established. Expired items that are fit for consumption can legally be sold in Germany, provided customers are informed they are out of date. Finally, an even better policy to combat food waste would be a prohibition on throwing away food. Such a policy is already implemented in France where larger supermarkets are not allowed to throw away edible foods but are legally obliged to give it to charitable organizations.

In light of the world’s current problem regarding food waste, the German Constitutional Court’s decision, although grounded in both property and criminal law, is disappointing. The global food system is responsible for up to one-third of all human-caused greenhouse gas emissions, making it one of the largest contributors to climate change. As long as there is no system in place which provides for the distribution of expired or mislabelled, but still edible groceries, dumpster diving should not be equated with the same criminal sanctions as stealing a theft. Dumpster divers save food, and should not be criminally prosecuted for what may be viewed as rather heroic actions.

Current

Photo by Samantha Tancredi, JS Law and Political Science

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Climate

Interview with Sinéad Mercier, Climate Policy Researcher

By Scott Murphy, SS Law and Political Science Why did you choose to study law and how did you find your time in Trinity?

I originally applied to NCAD as well as Trinity, and while I wasn’t sure what to expect from Trinity, I suppose I had a sense of justice so that’s why I chose law. I loved Trinity but it was difficult at first, coming from Connemara to the “Big Smoke”. In my final two years, I got to the subjects that fitted me better. I loved Ivana Bacik’s classes, I thought she was wonderful. I also really enjoyed Alan Brady’s classes, and Yvonne Scannell’s environmental law.

You’re kind of taught in first and second year that everything in law is holy writ, this is the way things are, it’s like a science. But it’s only in third and fourth year that you realise that law is socially, politically, and materially created, so that was really interesting.

Why did you choose to become a policy researcher rather than pursue a more traditional career in law?

I’m very independent so that was definitely one reason. Also, with the realisation in third and fourth year that law is socially created, I thought that maybe my efforts would be best placed trying to change the law, rather than trying to apply it in a positive way (which in itself is a noble thing to do). It just fit better to make the broader changes. I worked in private law for a bit with Philip Lee and KOD Lyons, working mainly with environmental impact assessments, and human rights law respectively. But I saw that legislation passed in the Dáil could make people’s lives much harder, so I just thought it would be best to go to the root.

You were the Green Party’s primary Dáil researcher between 2016-2019. What kind of work did you do and what was it like?

I would encourage anyone to go for a job in the Oireachtas. Generally, it’s a wonderful place to work. It’s lovely to contribute to making the world and Ireland a better place, but it was very fast-paced work. We would get a lot of emails from constituents and people who were environmentally conscious about various issues. I would meet with these activists and try to put together legislation, motions, or bills.

Sometimes TDs themselves would have ideas and I would go and do some research, and then try to find a core point we could call on for legislative change. For example, I worked on legislation to end period poverty with Catherine Martin TD, and we introduced legislation to ban oil and gas exploration in Irish waters. That was interesting because it came from the ground up, with activists calling for it to be banned.

It seems like the role of a Dáil researcher is a very active position then,

Photo courtesy of Sinéad Mercier

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involving not just office work, but meeting people and writing legislation with them in mind?

Yes, very much so, and while there are different approaches, that was my approach. There can be an insider culture in some political parties, but my own view is that you should listen to your constituents and bring what your constituents and social movements are working on into the Dáil. That was my role, particularly with a smaller party.

Now that you are an independent consultant on climate law and policy, what kind of organisations do you advise?

At the moment I am working with the National Economic and Social Council (NESC) – a State think-tank – who work to create social dialogue by bringing together business groups like Ibec, with trade unions, and social justice organisations.

We try to find certain priorities to agree on, so it’s a form of collaborative decision-making. I’ve also worked with organisations such as the Irish Human Rights and Equality Commission, so from my experience, you pick up projects once you specialise in an area.

Do you think there has been an increase in demand recently for researchers in your area of climate, human rights, and “just transition”, and if so, do you think that will continue into the future?

Yes, definitely. I think that “just transition” has given a whole new lens to climate issues and a burst of new energy.

That kind of energy was there already because of the school strikers, they put in a lot of the hard work. Also, scientists have been starting to speak out more, which has helped to shift public opinion and create the green wave. There’s definitely been a move towards taking the matter in hand rather than accepting that the market works well and will take care of things.

That was a very ’90s idealism, but we know that’s not true now.

We also now have the climate litigation court cases, and we are really seeing the impact of that on the world stage. Just transition is a big part of that. Indigenous, trade union, global south, and human rights groups also worked really hard to get just transition and human rights into the Paris Agreement. The alternative approach is what we’ve been doing for 30 years and it hasn’t worked.

Just transition is also a more welcoming debate. It allows space for conversations which couldn’t take place before. It used to be that the environment was the most important thing, but with that approach, people were not considered. In contrast, people are central to the just transition approach.

You seem to have a very intersectional approach. Did your postgraduate education, for example your LLM in LSE, and your Postgraduate Diploma from NUIG in Gender, Globalisation and Human Rights, help you to develop that approach?

Yes, definitely. The intersectional approach really suits me. It’s becoming more and more important - a systems-thinking approach - where you watch to see the broad implications of your actions. We’re coming to a really interesting point where we’re past the climate denial stage, and we can debate what climate policies work best. The intersectional approach is the future. It requires working with people and learning from others. You are only really as good as those you learn from and share your knowledge with.

Finally, what advice would you have for students looking to become a policy researcher and advisor?

A key tip I would give is find out what you love. What drives you? What is it that you have found most fascinating over the last four years? You will find work in that area if you are willing to work hard and cultivate your knowledge. Also, be as collaborative as possible. When I graduated, I would go along to law and human rights events, meet people, and work up the courage to ask questions. Even though it sounds evasive, building your network is really important. When I graduated, I went to loads of events with groups such as Friends of the Earth and the Irish Penal Reform Trust. It’s slow work, but you get to figure out what it is you are interested in.

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Intern

The Maples Group: Professional Internship Programme

By Kevin Harnett My name is Kevin Harnett. I am a TCD Graduate and Partner in the Maples Group’s Litigation department and I am proud to be a member of our Graduate Recruitment Committee over the last number of years. The aim of our Graduate Recruitment Committee is to engage with and recruit the most talented and ambitious individuals who are interested in working in a truly global law firm.

Each year we hire up to 30 interns to take part in our Professional Internship Programme. The internship programme is our primary recruitment method for future trainees, as it provides an excellent platform for people who are interested in securing a training contract with us. The internship programme gives you the opportunity to see if a traineeship with the Maples Group is right for you, and is the first step in your career with the Maples Group.

Our internship programme offers you an insight into life at the Maples Group, and helps you to learn and grow while discovering the endless opportunities available to you in Dublin, and at other global offices in our network. We really do make every effort to ensure that you are exposed to an interesting and diverse range of work.

The internship programme has two intakes of four weeks each, during June and July every year. And despite Covid-19, it was no different in 2020, as we adapted the Professional Internship Programme to take place on a fully virtual basis.

The internship programme includes a mix of hands-on experience, remote training, talks and presentations from across the Group globally; various workshops, Q&A sessions and a number of social activities.

All participants on our internship programme are paid and offered the opportunity to work alongside Partners, Associates and Trainees in one of our core practice areas (Corporate, Commercial Property, Data, Commercial & Technology, Employment, Finance, Funds & Investment Management, Litigation, Tax, Projects & Construction and) for the duration of your internship.

The Application Process The selection process involves completing an online application, followed by an interview with two of our Dublin based Graduate Recruitment Committee Partners. Interviews will take place on a video conferencing call or onsite in our Dublin office, depending on national Covid-19 guidelines at the time.

Shortlisting candidates for interview can be the hardest part of the process, as the standard and number of applications increases each year!

Important things to be aware of are: Attention to detail: this is a key skill for every lawyer, so please pay attention to spelling and grammar when

completing your online application form. Make sure to read over your application carefully (it may also be wise

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to ask a friend or family member to double check it).

Be concise and direct: answer the question that is being asked. Keep your responses clear, to the point, and

avoid repetition.

Be original: Use the extra-curricular section to convey your personality and make your application interesting

and individual to you.

How to Stand Out from the Crowd!

Each applicant will have their own life experiences, whether it’s work experience, active participation in clubs and societies or an interest in travel. If you have completed any work experience, legal or otherwise, you should outline this. We ask that you consider your experience and think about how you might apply the skills you’ve already learned to working in a law firm.

Extra-curricular activities, such as membership of university clubs and societies, can really add to your application. If you have an interest in a particular club or society, it can be advantageous to get involved and highlight this on your application form and in your interview.

At the Maples Group, we are interested in you as a person and not just your academic ability, so it is important to highlight your interests and personality throughout your application form, differentiating yourself from other candidates.

Who Can Apply?

We are an open-minded organisation, so there are no specific degrees or subjects required to apply for our Professional Internship Programme. We welcome applications from anyone who has completed at least two years of an undergraduate or graduate degree in any discipline by June 2021. Postgraduate students or those who have completed their studies are also encouraged to apply, including those who have work experience or who have already completed FE1 exams, or both.

Applications for our 2021 Professional Internship Programme in Dublin are now open and will close at midnight on Monday 8 February 2021. For more information. For more information, please visit: https://brand. maples.com/graduates/ If you have any queries, or if you are interested in pursuing a career with the Maples Group but are not in a position to complete an internship, please get in touch by emailing dublin.trainee@maples.com. We look forward to hearing from you!

About us

The Maples Group is a leading service provider offering clients a comprehensive range of legal services on the laws of Ireland, the British Virgin Islands, the Cayman Islands, Jersey and Luxembourg, and is an independent provider of fiduciary, fund services, regulatory and compliance, and entity formation and management services. The Maples Group distinguishes itself with a client-focused approach, providing solutions tailored to their specific needs. Its global network of lawyers and industry professionals are strategically located in Europe, the Americas, Asia and the Middle East to ensure that clients gain immediate access to expert advice and bespoke support, within convenient time zones. For more information, please visit: www.maples.com.

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Intern

Interview with Min Ji Jung, TCD Student, 2020 Maples Group Intern, and Future Trainee What made you decide to apply to the Maples Group?

I first came across the Maples Group at my college law fair and was immediately drawn by how friendly and welcoming they were. I was especially motivated to apply due to the diverse fields of law the Maples Group currently practices in as I always have had a great interest in learning more about the legal disciplines outside the modules I learn in college. The multi-jurisdictional aspect of the Maples Group also contributed to my motivation to apply as I hope to increase my exposure to legal practices outside of Ireland and I found that it would be a perfect fit for me.

How did you find the hiring process?

I found the entire process to be very easy going with the application process being one of my favourite parts as it focused on my personal qualities. The reception which was held before my actual interview played a large role in familiarising myself with the Partners at the firm and was definitely a huge step in boosting my confidence. I felt facilitated to present the best version of myself at the application and interview stage.

What did you enjoy the most about working with the Maples Group?

I enjoyed working in the Employment law department because it is the field I aspire to work in after college.

I was made to feel like I was part of the team and being able to witness real legal work in practice was a surreal experience to me. The people at the Maples Group were the highlight of my intern experience and it was such a lively atmosphere. In particular, I found great enjoyment in listening to each department’s presentation as I could immediately tell just how passionate everyone was about the field they were practicing - the passion and pride they have in their work was something I was inspired by as an intern.

Did the internship match your expectations?

The internship went above and beyond my initial expectations as I had expected limitations due to the switch to a virtual internship. However I gained a lot from the experience and most importantly was able to interact with fellow interns and the department I was assigned to. There was a variety of activities that we got to do like a debating competition and it was an enjoyable mix of professional and social aspects. Replicating the office environment virtually is undoubtedly difficult but I really felt like I was able to experience the honest company culture of the Maples Group despite the limitations imposed by this year. I really felt like I did not miss out on anything in the virtual delivery of the internship and I learned a lot during my time in the Maples Group.

Do you feel the experience was valuable in relation to your future career?

I was able to gain a more in-depth insight in the field I hope to practice in after college and it was truly beneficial in showing me aspects I never realised were associated with the legal profession. However I was also able to learn about other departments during my internship and talk to people at different stages in their legal career which was the most valuable aspect of the experience. I was given so much helpful advice and knowledge that has helped me to decide what path I want to take after college.

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Would you recommend this internship to others?

I would definitely recommend the internship especially for those who feel like corporate law firms may be too stoic or are intimidated by it. Experiencing the company culture first hand and getting a hands-on approach to law is so much more different than the modules we study and is far more exciting. There are so many people who are willing to help you along the way and you get the opportunity to interact with people from different fields and careers. It really is the best way to solidify your interests and ambitions. Also the social aspect of meeting other interns and being able to work together on group projects was something I really enjoyed and I hope people will get the same value and friendships out of future internships.

How would you describe the culture in the Maples Group?

The culture of the Maples Group is very true to the meaning of an open door company culture and there was not a moment during this internship where I felt too nervous or hesitant to ask a question. Everyone was always open and willing to help or make time to discuss any questions whether they be a trainee or a partner in the firm.

You get exposure to other departments and there are opportunities to participate in committees. It is a culture that facilitates your professional and personal development.

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Interview

The Eagle Interviews Diplomat Declan Kelleher

By Lucy Mockler, JS Law Declan Kelleher was Permanent Representative of Ireland to the European Union in Brussels from September 2013 to March 2020. Prior to that appointment, he was Ambassador of Ireland to the People’s Republic of China from 2004 to 2013.

From 2000 to 2004, he was Ambassador and Representative of Ireland to the EU Political and Security Committee in Brussels, and chaired that Committee during Ireland’s 2004 Presidency of the European Union.

His previous overseas postings were at the Embassy of Ireland in Washington DC (from 1987-1991) where he was First Secretary for Press and Political/Congressional Affairs. From 1980-1983, he was posted at the Permanent Mission of Ireland to the UN in New York and was a member of Ireland’s delegation to the UN Security Council in 1981-1982.

During his career, he has also served in a number of important and senior posts at the Headquarters of Ireland’s Department of Foreign Affairs and Trade in Dublin, including on Anglo/Irish and Northern Ireland matters, and on foreign policy and EU questions.

Why did you choose to study Philosophy, Politics and Economics at Oxford? Did you find it to be a useful and interesting degree?

I was actually admitted to Oxford to study law. The economics tutor at my college was looking through the entrance exam papers and asked whether I would be interested in studying philosophy, politics and economics (PPE) instead. I felt that law was important but that PPE would be a good stepping stone if I wanted to pursue law as a career afterwards. What I liked about PPE was that it was mathematical and I was mathematically inclined, but also it was quite rigorous. There was a fair amount of legal as well as regular philosophy in it. The principle of the college I attended was actually quite a famous legal philosopher – a man named HLA Hart. I enjoyed PPE but every so often since then I look back and think perhaps I should have studied law, because having a professional qualification is always a useful string to the bow.

What prompted you to enter the civil service having initially worked as an economic analyst in the private sector?

I started working as an economist specialising in the global oil and shipping market. I applied to join the civil service but these were the days shortly after Ireland joined the European Community. There had been massive recruitment one or two years after we joined and then it slowed down, so there was a long period after I applied where nothing much seemed to happen. I was then called for interviews and an exam and eventually joined in 1977.

I joined the Department of Foreign Affairs because at first sight it looked interesting, and it has been very interesting. Had I been more aware of the possibility of joining the Department of Finance I would probably have opted for finance over foreign affairs. However I am very glad I went into foreign affairs and the knowledge of economics and finance has been very useful to me in my career, particularly while working in Brussels.

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When taking up your role as Permanent Irish Representative to the European Union (EU), you stated that a primary focus was the advancement of specific objectives agreed at EU level, including those of particular interest to Ireland such as banking stability, economic governance, trade agreements and a people-centered approach. What do you consider to be the important objectives for Ireland’s engagement with the EU in the coming decade?

I was appointed by the Irish Government in 2013 which was shortly after our financial crash and when we were getting back to normality. At that time, those appeared to be the key objectives in terms of normalising our economy and ensuring that we fulfilled all of the requirements that the EU, the European Central bank and the IMF had set down to get us out. We were still in the “troika”, which was the aid arrangement, for about a year after I joined. When we emerged from that we applied very rigorously these disciplines which were put in to prevent another systemic crisis.

Those objectives are still valid to a point but if I was to be asked the question now, I would probably have a different set of objectives. One would be managing the post-Brexit situation. Brexit took up a very large amount of my time over the last few years, and in fact it was the reason the Taoiseach asked me to stay on three years after retirement. Economic recovery would also be crucial – Covid-19 having been a big hit. The national accounts are in good shape at the moment but we must be careful. We need to work with our EU partners on this. We must also optimise our role within the EU. Following Brexit we are the only fully common law jurisdiction left in the EU which is the preferred legal approach of international business, so we would want to bring that to bear and obtain the best benefits of that from our EU membership.

The geopolitical headwinds have become much choppier over the last few years. This is partly because of the guarantors of the post second world war rules-based international order within the United States. Under the Trump administration, they simply withdrew from all of those arrangements. Even when they had problems they preferred to go it alone. They were picking fights with China while denouncing the EU which is not a wise thing to do, and denouncing NATO too of which Ireland is not a member but which is a very important anchor for that transatlantic relationship. So I think we as Ireland would want to ensure not only that our position is protected within the EU, but also that the EU itself becomes a more effective player on the global scene as that is good for our hard-nosed interests. Since 2014 we have been a net budgetary contributor to the EU and so it is important that we be as fully engaged in all EU activities as possible. That means ensuring that we are always in the mainstream of the EU. It also means revisiting our position on things like European defence, where traditionally we have been a bit nervous and allergic. We are a small country and so we are not a military player, but I think it is more a question of solidarity and being part of the common project.

The defence challenges are changing and becoming more germane to the structure of our economy i.e. cyber threats. We have a knowledge-based economy based on substantial US foreign direct investment and an impressive emerging domestic industry of high tech. We have to protect that, and so that suggests we should work very closely with our EU partners in this area. We must also ensure that we are tactically nimble on things like corporation tax. Paschal Donohoe has been handling this very well and I myself worked very closely with him on this when I was Permanent Representative.

Photo courtesy of Declan Kelleher

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EU strategic autonomy and EU sovereignty is something else worth mentioning. I think it is important that the EU protects its own interests, however it is equally important that the EU, in becoming more savvy and hardnosed in the world, should not become more protectionist. We must ensure that there is a balance across the EU and that those objectives of being successful in a choppier global environment and ensuring that values of multilateralism and free trade continue to be respected, while being careful about the threats, do not shade into a more statist or protectionist approach.

Before the UK left the EU we had an idea that the British referendum could be lost and so we were looking at building up alliances within the EU. Traditionally because of common law and because of similar approaches on judicial and financial issues, Britain was the big player and had a blocking minority within the EU. Ireland, the Netherlands and the Nordic countries would tuck in there, but that is no longer possible. Today we have to be more assertive at an early stage in setting out our interests. We must also maintain our alliances with other member states, which are not hard alliances but rather issue specific. In the financial area for example we have become quite closely aligned with the Netherlands and the Nordic countries, which is known as the New Hanseatic League. We would also be seen along with the Dutch, the Nordics, the Czechs and one or two others as champions of free trade and openness.

I would say that those are the challenges and priorities we should be looking at over the next few years.

Present Joe Biden has said that safeguarding peace in Ireland will be a key consideration in any future US-UK trade deal and has underlined his commitment to the Good Friday Agreement. In your opinion, how would the UK-US relationship be affected if the UK were to renege on its legal obligations under the Withdrawal Agreement?

It is quite surprising that the current British administration doesn’t seem to understand how important the peace process in Northern Ireland and on the island of Ireland is to the US. Friends of Ireland was founded in 1981. The group was originally known as the four horsemen (Senator Ted Kennedy, Senator Pat Moynihan, House Speaker Tip O’Neill, and Governor of New York Hugh Carey). They were deeply committed to a peaceful solution to the problems in Northern Ireland and to building relationships between Ireland and the US. The group also extended the hand of friendship to the British. They wanted the British to understand the centrality of the Republic of Ireland in efforts to resolve the issues in Northern Ireland and hoped that the issue would be cooperative. The US Congress is very powerful and the Friends of Ireland remain very powerful. It is also bipartisan. Throughout the Brexit issue when briefing people like Michel Barnier and his close advisors, I was struck by how instinctively they understood the problems in Northern Ireland. If you look at the preparatory work leading up to the Good Friday Agreement in the 1990s, a great deal of that was done under conservative administration.

There is no reason why British conservatives should have amnesia on this although they appear to have amnesia.

They didn’t seem to understand how important what had been achieved in Ireland through the constant, benevolent involvement of the US was.

Joe Biden, himself of Irish heritage, has always felt strongly that the congressional caucus on Ireland and the US is bipartisan. The Americans have made it very clear that there is no way there will be a US-UK trade deal if Brexit and the behaviour of the British Government causes any damage to the Good Friday Agreement. The bipartisan commitment of the US to what has been achieved on the island of Ireland is immense. They were the people who brought not only the republican side but also the unionist and loyalist side into the White House parties starting in the 1990s. It is absolutely evident that anything that would be done to renege on legal obligations or complicate the Good Friday Agreement will be viewed very critically in the US. Having said that, the very act of Brexit is a complication of the Good Friday Agreement. The Agreement, without altering the constitutional status of Northern Ireland, essentially eroded what had been a very divisive

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border in a way that meant people could forget about politics and focus on improving lives. That was only possible because of the creation of the European Internal Market in 1992. If you look at the preamble and other areas of the Agreement, there is an assumption that the UK will remain a full member of the EU. In that way, Brexit itself is a complication which is why it was so important in the first phase of the negotiations to ensure that the border issue was properly protected in the Withdrawal Agreement and not left to a rather chaotic endgame. It was a cast-iron position that I put forward on behalf of the Irish Government and we got what we wanted. Given the bluster that is going on at the moment you can see how right we were, and also to ensure that our American friends understood this fully.

The EU, US and China are widely regarded as the world’s most prominent economies and geopolitical actors. What are your thoughts on the complicated relationships between these global powers?

The economic rise of China is extraordinary. When I went there 17 years ago it was only about the 5th largest economy in the world, now it is the largest on purchasing power parity and continues to grow. China’s attitude has changed partly because of the global financial crisis and partly because of their blossoming in the Beijing Olympics. Chinese decision-making is now less cautious and less risk-averse and indeed has been quite assertive in some respects.

The US-China relationship has become quite complicated. One of the reasons for this is that traditionally the biggest supporters of US-China good relations was American Big Business and the Republican party. Given the problems American Big Business has experienced in China in relation to intellectual property and issues of trade, there is now a jaggedness in the relationship which won’t disappear with the departure of Donald Trump.

The Democrats and Joe Biden, while not as extreme in some of the things they say, are pretty tough on what China has to do.

In addition to that complicated relationship, the EU last year adopted again a more assertive approach to China. A very important communication by the Commission was approved by the heads of government wherein we saw China as a partner, a competitor and a systemic rival in respective areas. Systemic rival is code for governance, a different approach to human rights and a different world view.

The important thing now is the multilateral system, the global rules-based order which Ireland and the EU subscribe to, and to which the US has before and will hopefully again subscribe to. A more cooperative approach is required in the transatlantic sphere and that is already happening. I think the upcoming heads of government meeting in the EU will consider a new EU-US agenda for global change.

China is a huge player and shares important interests with us on global goals such as climate change and the fight against illnesses and pandemics. One of the challenges moving forward will be how to ensure that cooperation will work in a way that does not create more jagged corners in the global set of relationships. The EU will continue to press China on things like trade rules. It will also want to see the World Trade Organisation (WTO) reinvigorated, which Trump was completely against but Biden is not. The EU will also want to see no dumping by the Chinese as well as proper safeguarding of intellectual property.

But again, from an EU perspective we have this three-fold approach to China: partner, competitor and systemic rival. So while China is in some areas a systemic rival we are not simply going to isolate China, which would in any case be impossible due its size and presence and the fact that until recently all EU countries had essentially good relations with China. Ireland’s relationship with China has always been good, although we are very much part of the EU approach on human rights and other issues.

It is essentially a matter of China being a good international citizen. China is a permanent member of the

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UN Security Council and is one of the largest suppliers of peace-keeper personnel. But China is also not playing by the rules on trade and human rights issues. So it is a question of how we can work forward on that; protecting our own interests whilst ensuring there is an effective relationship that exists. My own view is that this is what the Biden administration will want to do as well. They will be quite severely critical of China but will not want to isolate it.

China is constantly advancing its technology and becoming a bigger and bigger player in the world. This does not mean that China will suddenly become a Western democracy. I think one of the mistakes many people in Europe and the US made when admitting China to the WTO in 2001 was assuming that China would become more western as a result. China is very western in terms of having a consumer culture, but China’s basic approach is not western in terms of democracy.

Having served as Irish Ambassador to China for almost a decade, what are your thoughts on the importance of languages for maintaining positive international relations?

It is important that as many people as possible in the EU have workable French and also a reasonable standard of German. Having said that, in the western world English has become a lingua-franca, even with the UK leaving the EU. The importance of English in the EU is that it has become an international language and is the preferred language by Eastern European members who have joined.

I would say from my own experience that languages are very important and I would strongly encourage people to learn languages as they give you an edge, but equally languages are not necessary to have. By the time I left China my Chinese was very good. However to give China as an example, official meetings are almost always done through interpreters. I found the advantage of having Chinese to be primarily in building relationships.

There were a lot of western Ambassadors in China from some of the bigger countries who didn’t speak Chinese.

20 years ago that would have been inconceivable, but that has lessened as more and more Chinese people speak English. Still, there is a trap in that because it is better for English speaking residents in the EU to have a second or third language. I certainly think someone who goes on a posting to China should put in the effort to have a reasonable level of Chinese.

What advice would you have for those who are interested in pursuing a career in foreign affairs?

Interest in foreign affairs and an awareness of international spheres is important. This means maintaining an interest in how Ireland is placed in the world and how Ireland works in the world. For instance, we are about to join the UN Security Council which we are on every 20 years or so. I myself was a member of our delegation as a very junior diplomat 40 years ago. Then again if we consider the structure of foreign affairs, we are only on the Security Council for 2 years and then we are off and will not be given another membership for 20 odd years. So while the Security Council is interesting, it is not the only thing there is to look at.

Having a legal background in foreign affairs is absolutely crucial. Some of our European partners practically insist on individuals having legal backgrounds... So I think if you are a law student, you have an in-built advantage because you are going to understand the structure of international relations in a much more immediate way than those who haven’t studied law. Looking at these things from a legal perspective is important. International law is crucial but is rather different from domestic law as it is much more couched at the level of principle and international instruments which individual countries can wriggle out of. The sanctions are also not that well developed. I really do think that looking in that international legal dimension is fantastically good preparation for foreign affairs.

Photo by Samantha Tancredi, JS Law and Political Science Current

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Choosing a Masters Degree: An Interview with Sarah Jones from the TCD Career Services

By Demilade Adeniran, SF Law How should a student decide on which country/university to pick for their master’s? Does studying somewhere abroad matter?

Well, studying abroad matters if it is something you want to do, for yourself and your future career!

Researching options and making applications for postgrad study is a process and we would recommend everyone goes through that process when choosing a taught or research masters abroad.

To start with we would encourage everyone to use a few search engines like findamasters.com or mastersportal.eu to get a broad overview of what is out there and to create your WISHLIST. You can search by subject or country. These websites are heavily advertised but a good place to start. Also, talk to your academics and people in your network to see if people who are in the field have any personal recommendations. Also look at the Erasmus Mundus website to see if there are any masters that might interest you there. Keep an eye on MyCareer (https://mycareerconnect.tcd.ie/) too to see events where representatives will talk you through particular initiatives further afield, like the Fulbright Scholarships.

When you have a few masters courses on your wishlist, I would recommend you ask the following questions of each of them to lead you towards your favourites.

Does the content of the master’s really interest me, and if so, why?

You can find this out by looking at the individual modules as well as the title of the masters, drill down into what each part would be like. You have an undergrad experience under your belt now so you know the terminology; course handbooks, module descriptors, assignments, course delivery… picture how it will be delivered and understand the focus and demands of the course. Also, have a look at the academics who are teaching on the course. What are their areas of interest? What have they published on recently? Will the day to day research and the assignments and group work of this masters interest you and if so why? Can you get excited about doing a piece of research/a dissertation in this environment and with these academics? There is usually a Course Coordinator listed on the master’s webpage so email them to ask any questions you might have. Don’t worry about sounding unsure, you are doing research and need to ask questions!

Does the environment suit me as a person and a student?

You can find this out by looking at the general university webpages and by looking at some external chatrooms like thestudentroom.co.uk. Do you prefer small classes or big? Do you work better in a problem based learning group environment or do you like independent learning? Most universities will offer a blended approach but the balance can vary, so see what they say in their documentation. Also, what about the clubs and societies of the university? Does it have a reputation both in the social sphere and in the academic sphere? You will be investing a lot in this master’s so also check out where the university ranks to get a better insight into the perceived accomplishments and offerings you could work towards as a graduate.

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https://www.timeshighereducation.com/world-university-rankings/ Don’t forget to also check the individual department ranking, as often this can be different from the university’s overall ranking, so there could be a really highly ranked law department in a university with a lower overall ranking, and vice versa.

Would I like to spend a year in this city or town?

This is an important factor, as if you are happy you are more likely to succeed and have an engaging and fruitful experience. Do I know anyone who already lives here? Could I see how I would build a network of friends in this environment? Will choosing this location add to my language skills? Have a look online to see if there are organisations doing things that you would like to get involved in, voluntary work perhaps or hobbies and interests, clubs… what you do here to make yourself happy will need to be done there… get researching!

Can I see this master’s acting as a good next step in my career planning?

Sometimes, people are unsure of what to do next and so they decide to do a masters….of course, a master’s can offer you so much, but it is important to choose one that you will look back on and be able to join the dots.

There is no “perfect” or “best” master’s out there for the masses. It is totally up to you – it can be another layer of learning in a consistent field with your undergrad to give you a boost as a fresh graduate or it can be a change in tack from your undergraduate if you want to broaden your scope. We’re all individuals so If you’re not sure about your motivations or how best a masters can play a role in your career planning, consider logging on to MyCareer and booking in for a chat with your careers consultant.

Can I afford this?

It is important not to put yourself under financial pressure because you feel a master’s is necessary right away.

Lots of successful graduates work first and gain experience before embarking on choosing a masters and arguably they get even more from the experience because they understand more what is best for them. Be reflective and draw up a budget in advance. Consider living expenses as well as the tuition fees and make sure to look at all the information out there on funding and supports.

How much do grades and/or work experience matter?

For masters that are competitive or there is a limit on the amount they can take in, of course the admissions team will look at the applicant’s undergraduate grades, research and sometimes if applicable, their work experiences or extra curricular activities. As well as high academic ability they usually want students who can contribute to a rich conversation and dialogue within the classes, so they will often value evidence of students who get stuck in.

For example, being involved and passionate about particular things, engaged in group initiatives… this all shows you are not passive in your nature and that you would contribute to the overall learning of the class. I would encourage you to just focus on doing your best within your Trinity experience, focus on getting the best grades you can get and blending that with other experiences, be that working to pay your rent or volunteering within the community, so that you are learning and developing in many ways. Try and think about you and your needs, your appetite for growth and learning, rather than trying to jump through anyone else’s hoops. If you follow that philosophy you usually end up with an excellent and varied undergraduate experience and a good level of self-awareness – two things that will lead you to a good graduate opportunity.

How do you write an excellent personal statement?

If you have researched the master’s market well and understand why this particular masters is a good fit for you, you might find that the personal statement is not that hard! Be clear and methodical in your approach and show why this masters in particular is on your wishlist, point to academics that you would love to be taught by, give

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evidenced based examples of how you have developed your skills in the past and how you are excited to continue to develop them in this environment.

Too often people cringe at personal statements as they think they need to say they are the best at everything. But no, just be reflective and open, be honest and show integrity. Do your research!

Lots more details about how to write a great personal statement here https://www.tcd.ie/Careers/students/applying/statement.php Where do you advise students to look for funding and financial aid for master’s?

For taught master’s abroad, the individual university webpages are often the best place to start. Many universities will have scholarships or funding opportunities that are unique to them. Make sure to keep an eye on MyCareer each semester as there are often information sessions on funding and support in this regard. Also, check out our webpages which will signpost you to places like this one https://www.postgrad.com/fees_and_funding/ european-funding/student-funding-in-europe/ which are a great place to find out more.

Also, this Irish Times article gives a good overview of where to start within the Irish market, including governmental support: https://www.irishtimes.com/news/education/how-to-fund-your-postgraduate-education-1.3808692 .

With research master’s, again check the individual university website and with the local research bodies to see if you could avail of any funding opportunities.

Does the timing of your application matter?

It depends on the master’s: some will close once they have enough applicants that they are happy to offer to, others won’t even look at the applications until after the closing date. Check the course info on their webpage.

For the Wishlist phase, it’s never too early to start your research. But for the application phase, we would encourage you to look at your schedule and consider how you would feel if you started now or put it off a little.

Your academic work needs to take priority but if applications are on your mind, carve out some time, just as you would for an assignment on your course and be methodical. Arguably the earlier you apply the better so that you can tick the box and relax but if possible, come to the table with a clear, reflective mind not a busy one!

Best of luck from all of us at the Careers Service!

Erasmus Student in a Pandemic: Helsinki Edition

By Mackenzie Elwood, JS Law and Political Science To say that I have experienced survivor guilt is, I think, perhaps, an exaggeration. However, in the interest of dramatic effect for a snappy opening paragraph, this author is going to ride the wave of audacity.

My choice of Erasmus in Helsinki plucked me from a world in which the pillars of student life were rapidly collapsing and released me into a restriction-less reality where people ride the metro carefree, as though it is not a disease-ridden sardine tin built for the destruction of the human race. The process of getting on a plane

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in Dublin and landing in Helsinki was akin to following a white rabbit with a pocket watch and somersaulting down a hole in a blue pinafore.

My experience so far has been wonderful. Snow in November, cinnamon rolls, Christmas lights. Every form of Finnish accommodation boasts a sauna, and a full dinner in the canteen at University of Helsinki costs less than €4 with unlimited bread and salad. But although my tolerance of alcohol had decreased in lockdown over the summer, I was unprepared for how my tolerance of regularity had decreased with it. The swift reaction of Finland in the spring curbed the spread of the virus to a manageable rate such that the lockdown was lifted in the summer and life returned to normal. As of November 2020, Finland retains the lowest number of cases across the Nordic countries, and the wearing of masks in public places is merely a “recommended”, rather than a compulsory, measure.

I attended lectures in person for the first time since March, delirious with delight. I sat in public parks with the other students, drinking in disbelief. I ate in the canteen buffet in a haze of ecstasy. And every night or so, I would go home and talk to my family and friends about the steadily worsening situation in Ireland. Talking to those who had suffered cancelled Erasmus plans became an awkward cycle of wanting to tell them everything but also nothing. My mother sighed heavily and wistfully if I mentioned that I had popped to a café for a coffee.

My senses were heightened. Living in the norm was like living on the edge. The international students of Helsinki were clinging to everyday life as though we were perched on the rim of a sink, about to plunge into the familiar but murky dishwater of coronavirus regulations. The adrenaline highs of living in the “old-norm” peaked, and we were forced to slide (albeit on a pair of skis) back down the slope.

In the same way that my Erasmus highs were enhanced by the pandemic, my lows bloomed like algae. In sum, the Finnish word for November, “Marraskuu” means “month of death” or simply “death”. A day of low mood and unenjoyment would be laced with feelings of unproductivity and wastefulness. There was no reason for me to feel low, I thought. Stop being miserable. It’s pathetic. But we were warned upon arrival (with a graph nonetheless) of how our mood would fluctuate naturally as the days grew shorter and the weather darker and wetter. December waits at the end of a dark, damp tunnel, where snow reflects the plentiful Christmas lights and joy in general.

The lack of restrictions in my communal student residence unfortunately caught up with me in early October, and I contracted Covid-19. My positive result interrupted the pure technicolour of my Erasmus life up until that point. But beyond having basic flu symptoms, my fortnight was fortunately tolerable. My flatmate contracted it at the same time, and we drew up stencils from cardboard and built the Helsinki cathedral out of gingerbread.

Delicious and more intellectually, spiritually, and emotionally nutritious than 168 hours of Netflix.

The most surprising aspect of my Covid-19 experience was probably my complete loss of sense of smell. For love nor money, I could not smell the gingerbread mixture (cloves, ginger spice, butter, the works), the Jägermeister (found in the freezer of our flat upon arrival), or the hand sanitiser (I regretted this one. It burned).

My quarantine was contrasted with some of the best days of my life to date. I met people from all over the world, in the unique position to understand exactly the curious roller coaster of what it means to be an Erasmus student in Finland in Corona-times. I have sung loudly, non-stop, at a “sit-sit” dinner table, drinking liquorice liquor and eating reindeer and cranberry sauce, with people I had never met before and will not meet again. I have sat by a lake drinking coffee and eating fresh cinnamon rolls, a pastry I had never been drawn to before I arrived here but can now declare myself an addict to. I dashed between the sauna and a golf course covered in fresh snow with absolutely no thoughts of pneumonia, hypothermia, or common decency. I have hunted for the Northern lights at 4pm, jumped in and out of the Arctic Circle, and fallen spectacularly into a snow drift. I met Santa. I am still recovering from the shock.

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I have not lived my life yet so I cannot conclusively say how life-changing or relevant any of this will be in the long run. In between these glimpses of the Emerald City, I dealt with a few slings and arrows of minor misfortune (cut to hoovering up a friend’s buff while cleaning up a kilo of rice that slipped from my grasp when I realised that the rice had caught in the charging port of my phone after I dropped it into the toilet, while running late for the bus in Lapland). But the opportunity to experience brief normality in the company of other people was precious.

The restrictions in Finland are increasing now as cases are rising, and I doubt that my second semester will be as liberating as my first. But perhaps it is about time that Dorothy woke up and Alice climbed out of the rabbit hole. I have had my cake and eaten it too; it was smothered in cinnamon and pearl sugar - and it was delicious.

Photo courtesy of Orla Murnaghan, SS Law and Political Science

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“Porvoo” Photo courtesy of Orla Murnaghan, SS Law and Political Science

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Society Highlight: FLAC

By Nadine Fitzpatrick and Chloe Dalton Trinity FLAC is the Trinity College Dublin branch of the national Free Legal Advice Centre. FLAC is a voluntary human rights organisation which exists to promote equal access to justice for all. During term time, we run a weekly free legal clinic with a qualified solicitor. This year, our service changed to a phone clinic due to Covid-19. We were delighted to be in a position to continue offering the service over the phone and are delighted that so many members of the college community have availed of it.

On 10th March of this year, we were busy fundraising for our Period Poverty Event in the Arts building and the Hamilton when we received the news that Trinity would be closing. We had our Period Poverty Speaker Event planned for that evening, which unfortunately we were forced to postpone. It was such a disappointment, but our First Year Rep (now Fundraising Officer) Georgia is planning to hold the event in Hillary term next year.

Each year we recruit student volunteers to take part in pro bono legal research projects to send to NGOs with the aim of furthering social justice. During Summer 2020, with more time on our hands than ever, we ran a summer legal research project on Technology and Access to Justice. The Covid-19 crisis really pushed to the fore an issue that the Irish legal system needed to address. The legal system in Ireland and abroad has been slow to adopt the advancements of 21st century technology, however the pandemic has made virtual remote courts a practical reality. A team of 67 legal researchers prepared a report on the potential impact of IT on access to justice and will hopefully be of benefit to the Independent Law Centres Network.

In solidarity with the #BlackLivesMatter movement, our Michaelmas term research project is on Racism and Hate Crime in Ireland and is currently being edited by our Legal Research Officer Síofra. A key issue we seek to examine is the urgent need for updated racism and hate crime legislation in Ireland.

Sadly, we were unable to host our annual Sleepout in association with TCDSU in aid of the Peter McVerry Trust this October. This event is always a huge amount of fun for us committee members and also for our volunteers. Instead, Trinity FLAC took part in Movember along with Lawsoc, TCLR and a guest appearance by Professor Neville Cox! We were delighted to raise over €500 for a fantastic cause.

Although we were not able to run our well-established panel discussion events in person this semester, the pandemic has brought some silver linings for us at Trinity FLAC. Thanks to our online approach we were able to upload extra events and hear from speakers that may not have been able to talk to us in our traditional format.

Additionally, we were delighted to establish our YouTube channel which allows us to upload the events, enabling our members to watch these informative discussions in their own time. If you want to do a bit of productive procrastination, watching a social justice panel discussion is definitely the way to go!

To conclude our Michaelmas Term events, Trinity FLAC decided to run a mini-series of speaker events for the first time. The series – Referenda in Review – spanned three weeks with four distinct panel discussions which focused on a range of referendum-related social justice and political issues. The idea behind the series stemmed from a meeting where we discussed that although the run up to a referendum usually generates significant public interest and debate, after Ireland goes to the polls and the result is announced, the subject matter tends to be put to the back of our national consciousness. The purpose of the mini-series was to examine whether referenda we have had over the last number of years have led to tangible change in Irish society and whether these constitu-

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tional amendments were able to deliver on their stated aims. We were thrilled to be joined by a range of speakers from academics to activists from diverse backgrounds, to explore issues arising from the referenda on Marriage Equality, Citizenship and the Eighth Amendment, as well as the future considerations of constitutional change in Ireland such as the Right to Housing and extending voting rights to Irish citizens living abroad.

One of the best aspects of running our first mini-series was how it facilitated us in examining a broad topic from a range of angles which we have not had the ability to do previously, as generally our weekly speaker events are focused on distinct topics often related to the themed college weeks. The series allowed us to reflect on some of the defining constitutional changes in recent years as well as contemplate significant issues which may be on a ballot in the near future. The series truly was a passion project of the whole committee, with more than half of us being involved in its running. At Trinity FLAC, we’d like to thank our dedicated committee and all of our members for making the semester an unforgettable one to say the least!

FLAC & The Eagle: Trinity Law Gazette Social Justice Essay Competition Winner: The Risk to Data Protection in the Developing World During the Pandemic

By Julia Best, JS Law The debate on data protection in the western world during the pandemic

In the wake of the global pandemic and rapid increase of Covid-19 cases, technology became more vital than ever. As people were separated from their loved ones for extended periods, technology became a comforting ally to ensure that people could stay connected. However, simultaneously to this, technology was being developed to keep people apart and prevent the further spread of the virus. Many governments across the world began to initiate plans of mass surveillance to ensure that those residing in their state were complying with lockdown and quarantine regulations.

In Ireland, the Track and Trace app was launched on July 6th. Northern Ireland followed closely behind, releasing the app in late July. Prior to this, location data had already been implemented to track the spread of the virus in European countries such as Italy, Spain and Belgium. The Director of the UN Global Pulse and Co-

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Chair of the UN Privacy Policy Group, Robert Kirkpatrick, stated that during the pandemic the “UN reinforces its commitment to using data and new technologies in ways that respect the right to privacy and other human rights and promote sustainable economic and social development.” Despite such promises being made, there began heated debates on the potential infringement to the right to privacy and data protection that digital tracking and tracing could pose. Some experts expressed the view that there was and remains little evidence to support the rapid implementation of such technology.

In the western world, there have been continuous protests regarding the infringement of privacy rights. In August protests were organised in London, Liverpool, Bristol, Manchester and Newcastle as the private company Serco, were negotiating to renew their contract to continue involvement in the Test, Track and Trace programme.

Some raised the view that private contact details are not best left in the hands of private corporations due to data protection concerns. These concerns were confirmed when Serco accidentally shared 296 tracer’s contact details, breaching data protection regulations. It became evident that there was a real fear that the need to fight the virus through technological advances could unintentionally result in the demise of the data protections already established in our legal systems in the western world. However, the potential consequences for those countries in the developing world without already established legislation and regulation on data protection could be far greater.

A risk to developing countries

Regrettably, less than half of low-income countries have data protection and privacy legislation. Without legislation or regulation already in place, there is a legitimate risk that the governments of certain developing countries could use the emergency powers granted by the pandemic to implement technological advancements without proper consideration of social concerns and data protection for the individual. Developing countries are already at a higher risk of the health, social and economic impact arising from the pandemic. The United Nations Development Programme estimates that developing countries are expected to be hit with income losses in excess of $220 billion. Moreover, they estimate that around 75 per cent of individuals living in the least developed countries lack adequate access to soap and water, exacerbating the spread of the virus. In addition to these health and economic concerns, there is also a threat to data protection. The lack of legislation regulating data protection in these countries could lead to governments using the pandemic as a justification for implementing intrusive digital and technological measures putting those who are already left in a vulnerable position due to the pandemic at additional risk.

A “shocking excess of state powers”

Even at the early stages of the pandemic, countries such as India, Jamaica and Ghana were implementing invasive digital tracking measures to monitor those residing in their states.

According to a report by the Economist Times in March, Indian state governments and large municipalities had already begun to implement strict surveillance mechanisms to ensure people stayed at home during their time quarantining. The Indian state of Karnataka launched and has continued to use a smartphone app to monitor those who are quarantining. The app not only monitors the users’ movements through the Global Positioning System (GPS), it also requires users to take an hourly selfie to ensure they do not leave their home. The selfie is geotagged to check it is taken in real-time. A Karnataka health department official stated that if the user does not take the selfie, ‘“we will send someone to go and click a picture”. The Indian state of Telangana is also using a similar mechanism to ensure that individuals are completing their quarantine. The Executive Director of the Internet Freedom Foundation, Apar Gupta, highlighted the looming threat to data protection these apps pose, stating that the coercive action of having to take and send a selfie without a proper legal framework protecting data is a “shocking excess of state powers”.

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Jamaica is also attempting to implement highly controversial technological measures to prevent the spread of the virus. According to a report by the Jamaican Information Service, the government has used the global pandemic as justification to fast track the implementation of its National Identification System. The system aims to provide aid and social benefits to those in need due to the effects of the pandemic and to ensure curfew rules are obeyed. The Jamaican Prime Minister, Andrew Holness, has assured that the identification system is being implemented as quickly as possible whilst remaining within the boundaries of the law and the Constitution. However, it is difficult to reason how the government could implement such measures within the confines of the law when a national identification system was already held to be in violation of the Constitution by a unanimous decision of the Supreme Court in April 2019. The Court held that the entirety of the National Identification and Registration Act (NIRA) was void and that the mandatory requirement of biometric identification infringed the right to privacy. Although it could be argued that a national identification system could now be justified due to public health concerns during a pandemic, it is paramount that these measures are still subject to the rule of law.

A location tracking app has also been launched by the government in Ghana. The app informs the immigration service of individuals who have recently visited countries with a high number of Covid-19 cases to determine whether the individual should quarantine or not. Furthermore, the Taiwanese government is using SIM cards and mobile networks to geotag individual’s locations.

Beyond the pandemic

Achim Steiner, the Administrator of the United Nations Development Programme (UNDP) stated that the pandemic is “not just a health crisis. For vast swathes of the globe, the pandemic will leave deep, deep scars.” The impact of invasive surveillance measures implemented during the pandemic in developing countries could have long-lasting effects that stretch beyond the era of Covid-19. There is a legitimate concern that some governments will not withdraw these intrusive technological measures when the need to fight the virus diminishes. In the absence of institutional checks and balances in such countries’ legislative schemes, it is possible that the use of intrusive digital tracking and collection of data could be expanded and extended for purposes outside of health concerns in the future.

There is also the risk that the private sector could inadvertently benefit from the dangerous combination of intrusive surveillance measures and lack of data protection legislation. Already large corporations have been entrusted with a significant role in the digital contact tracing and fight against Covid-19. Thus far, their assistance in devising innovative digital solutions to track and prevent the spread of the virus has been vital. Despite this, there is a risk that without clear data protection legislation governments will be unable to, at a later stage, retract or reduce powers already passed to large companies. The data being collected by smartphone apps is extremely valuable to detect and prevent the spread of the virus, but it must be remembered that this same data could be subject to commercial exploitation at a later stage. In the absence of regulation on how the data should be collected, what data should be collected and how long data should be kept for, the data could likely be exploited for alternate purposes after the pandemic; for example, the data could be shared with health insurance companies.

At present, many developing countries implementing these intrusive technological measures have provided no guarantee that the data being collected for purposes of fighting the virus will not be used for an undesirable future purpose.

The pandemic has resulted in large technology companies becoming only more successful and influential as the use of technology increases. Although it could reasonably be argued that these companies have the knowledge and skill to develop the innovative technological solutions needed to prevent the further spread of the virus, it remains of the utmost importance that these companies are properly regulated in all countries to ensure that health data is used for the right reasons. The director of UN Global Pulse and Co-Chair of the UN Privacy Policy Group, Robert Kirkpatrick notes that “we can only defeat Covid-19 with trust, science and solidarity”. However,

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the law must also not be forgotten in the fight against the virus.

A catalyst for reform

Although there is a risk that the pandemic could be exploited to justify intrusive surveillance measures without adequate regulation, this could also be an opportunity for developing countries to establish proper legislative schemes to protect the collection and storing of data. Thus far, some countries have used the pandemic to address other legislative gaps that lawmakers have long overlooked. In South Africa, the Independent Communications Authority released an additional broadband spectrum to address the spike in broadband services during the pandemic. The hope is that the new licenses will stimulate economic recovery and provide support for virtual teaching, paving the way for a shift to remote or online education. Furthermore, the National Bank of Ethiopia announced the Central Bank Directive in April, which aims to encourage the use of non-cash payments as it allows non-financial institutions to offer mobile money services. These are just some examples of how developing countries have used the pandemic as a chance to develop the regulation on technology.

The Covid-19 pandemic truly has the potential to act as a catalyst for reform in the area of data protection as it has exposed existing gaps in the legislative schemes of developing countries. The pandemic has provided governments in the developing world with a golden opportunity to develop data protection regulation that will remain in place after the era of Covid-19. Undoubtedly, the governments of these countries are facing extreme pressure to address the important issues facing health and the economy; however, there is no better time than now to act to safeguard data protection of the individual.

The Law Always Tells the TruthEven When It Lies

By Ciara McLoughlin, SS Law Feinman and Gabel argue in Contract Law as Ideology that equality of bargaining power is a myth in modern contract law. Fish contends in There’s no Such Thing as Free Speech... and It’s a Good Thing, Too, that the right to free speech is artificial and misconstrued. In An Essay on Rights, Tushnet also maintains that rights are not static, nor do they pre-exist mankind, but rather they are contingent on contemporary society. A common thread weaving through the works of these scholars is that the courts are perpetuating legal falsehoods. In assuming that the core theses of their articles are true, we should challenge ourselves to understand that there may, upon closer examination, be some merit to accepting the law’s false propositions.

This should not perpetuate legal falsehoods, nor does it comment on whether the courts are consciously furthering their existence. The modest task here, is to show that legal falsehoods can a) serve to uphold faith in the justice system and b) simplify the law in certain instances.

Faith in the Legal System

We are all familiar with the image of Lady Justice wearing a blindfold, which symbolises the impartiality of the law. Most legal systems have traditionally claimed to be indifferent towards the wealth, status, or personal attributes of its subjects. This purported indifference is vital because without it, faith in the legal system would be eroded. For example, if a judge could take a litigant’s financial circumstances into account, they may decide a case in favour of a poorer applicant out of sympathy, despite the fact that the wealthier defendant may have ad-

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hered to the law. Such bias on the part of the supposedly-impartial judge is clearly undesirable as it compromises the objectivity of the legal system. An enthralling strength of legal untruths is that they can be used to present the law as having equal application (even when this is simply not the case), as acknowledging the inherent inequality of the application of the law would undermine the law’s central mission of neutrality.

Feinman and Gabel’s work highlights that the notion that parties of a contract possess equal bargaining strength is a legal falsehood. It is true that there is a power imbalance in most contractual agreements. Consider the relationship of a landlord and a tenant. The landlord has much to gain and little to lose as there are plenty of other tenants in the market – a primarily economic motivation. On the other hand, the tenant has a lot to lose as the contract will impact his livelihood (i.e. by loss of home) which serves to weaken his bargaining power.

Arguably, the law, in feigning an equality of bargaining power, solidifies the idea that the legal system treats all those who come before it as equal. I am not suggesting that this is the reason that the courts have not dispensed with this outdated notion of contract law. However, I am positing that the benefit of upholding faith in the justice system occurs when keeping this legal untruth in place. If a judge was tasked with providing an assessment of the power dynamic in every contract between commercial and non-commercial actors, they would need to consider concepts such as the parties’ wealth and status, to which the law is supposedly blind. The law of contract would therefore be perceived as having unequal application which would significantly undermine confidence in the legal system.

In the interests of a complete and comprehensive argument, it should be pointed out that a separate issue is whether the legal falsehood of equality of bargaining power in fact perpetuates injustice. My argument focuses on procedural justice and purely addresses the second limb of the borrowed aphorism, “justice must not only be done, it must also be seen to be done”. Even if the equality of bargaining power façade furthered substantive injustice, the point would still stand that the rhetoric of equality has the benefit of keeping faith in the justice system alive as the law appears to be fair.

According to Tushnet, the courts voice the idea that rights are static legal concepts. He contends, however, that rights are not fixed to a point in time and law. For example, the right to marry has evolved to include samesex marriage. It also incorporates the corollary right to divorce. In essence, rights embody the values of communities and are therefore subject to change. If the courts presented rights as context-dependent, then perhaps they would appear to endorse the differential treatment of litigants, once again stripping Lady Justice of her blindfold.

By stating that rights are contingent, the courts would be telling the public that they are making a value judgement based on what they perceive to be the pervading attitudes or morals of society. As Fish reasons in The Law Wishes to Have a Formal Existence, the law’s perceived formality is a rhetorical achievement which is a value in and of itself. If this is true, then to admit the unequal application of law would gravely endanger this value thereby threatening faith in the institution.

That is not to say that individuals are better off being lied to by the courts. Static rights rhetoric can lead to the subversion of rights, for example, where the right to freedom of expression is used to protect hate speech.

However, the point must be made that the legal falsehood of static rights can be beneficial to the concept of law as it reinforces the idea that the law is impartial, thereby ensuring that it continues to enjoy the trust and faith of the general public.

Simplification

To the layman, the law is thought of in definitive terms: black or white, right or wrong, yes or no. This is grounded in Lon Fuller’s theory of The Morality of Law that if the law is clear it will be easy for citizens to understand and follow. For this reason, clarity is a central tenet of the rule of law. Of course, it is trite to point out that in reality the law is all shades of grey. The benefit of legal falsehoods, however, is that they can simplify a body of

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law that is highly complex and at times even ambiguous. Therefore making the law easier for citizens to comply with in certain instances, which aligns with Raz’s assertion in The Authority of Law that rules must be sufficiently clear in order to be capable of guiding individual conduct.

The legal myth Fish debunks is the right to free speech. He asserts that the normative position is one of constraint, rather than liberty. Arguably, by accepting the partly false premise of a right to free speech, the law maintains superficial clarity which brings about an overall net benefit of certainty to citizens’ lives. Free speech appears as a hard and fast rule which is easy for citizens to follow. In the Irish context, Article 40.6.2 of the Constitution adds the caveat that the right to freedom of expression can be restricted in the interests of public order or morality. Therefore, the right to free speech encourages a de facto position that human beings are allowed to speak in most instances. Misrepresenting the normative position has the advantage of creating concise law which is easy for citizens to understand. The same cannot be said for restraint. If human beings understood the normative position as one of curtailment there would be great uncertainty in the law - and in the minds of citizens - regarding what speech is permissible. This is problematic as people would constantly have to consider whether it is appropriate for them to speak, which could plausibly result in a mass inhibition of social interaction. In addition, citizens would not have a clear understanding of what speech is appropriate. Realistically, it is impossible for the government to legislate for every instance in which free speech is permissible. Citizens will be able to follow the law with greater ease where the default position is understood as liberty rather than constraint. Essentially, judicial adherence to a legal falsehood allows a right and its subsequent limitation to co-exist in a manner which does not compromise our ability to understand their practical application.

Final Remarks

In a courtroom, the law seeks truth. It attempts to decipher whether a plaintiff was truly wronged, and if so, whether the defendant is truly to blame. However, the law is not the moral boy-scout it pretends to be. It lies to the consumer when it assures him that he has equal bargaining power in a contract with a multinational corporation. It lies to the journalist when it tells him that he has the right to print whatever he likes in his newspaper.

In spite of this, these lies or legal falsehoods have merit. Real-life examples and concise reasoning demonstrate that lies within the law are not are not wholly unpalatable or undesirable, and we can argue that they can benefit the legal system by upholding public faith in it as an institution, as well as adding certainty to citizens’ lives through the perceived simplification of law. Therefore, it can be concluded that the law always tells the truth even when it lies.

“In a courtroom, the law seeks truth. It attempts to decipher whether a plaintiff was truly wronged, and if so, whether the defendant is truly to blame.

However, the law is not the moral boy-scout it pretends to be. It lies to the consumer when it assures him that he has equal bargaining power in a contract with a multinational corporation.”

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Photo by Samantha Tancredi, JS Law and Political Science

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“Innocent Until Proven Guilty” Representing the “Guilty” Client

By Eoin Jackson (Legality), JS Law and Samantha Tancredi (Moral and Ethic Entanglements), JS Law and Political Science Innocent until proven guilty - these are words that echo through court chambers and reside in many guiding legal documents, which provide an interesting context in exploring the representation of guilty clients. There is more to this legal maxim than is met at face value, including the difficulties a lawyer faces when representing a client who enjoys the presumption of innocence, but whom the given attorney knows to be guilty. In unpacking this principle, ethical, moral and legal arguments emerge and provide room for discussion.

Ethics

Moral and Ethical Entanglements

Lawyers have a presumed ethical duty to act in the expressed interests of their clients in all circumstances.

Many view the role of a lawyer to be an integral actor in the administration of justice, and justice does not cherry-pick its customers. This very principle is reflected in the ethical legal codes which stipulate that lawyers not dismiss a client based on race, sex, sexual orientation, language, politics, religion, or nationality. While legality is discussed below, it would be remiss not to mention the intrinsic link between legality and legal ethics, the latter having a great impact on a lawyers’ choice in client representation. Lawyers play an important role in society.

This is seen not only through the directly relevant humanitarian fields of law one may enter such as human rights law or environmental law, but also through the acceptance of cases of all kinds, including ones where a client may be guilty. A basic tenet of law is that every accused citizen deserves his or her day in court; in maintaining this pursuit, a lawyer’s legal ethics play a contributory role in allowing all to avail of this opportunity.

Analogously, society views doctors as professionals who pursue any methods possible in order to provide healing and treatment. They are problem solvers. However, what happens when a doctor encounters a patient with whom they do not morally agree with? Do they turn these patients away, letting the patient’s condition deteriorate? Outside of some very rare exceptions, absolutely not; instead, they separate their personal ethics from their professional duties and treat the patient, abiding by the Hippocratic oath. A similar principle applies to lawyers. They separate their professional and personal ethics and morals and do what they were trained to do, abiding by their own legal oath or code. Thus, the concept of legal ethics alluded to above makes perfect sense.

Following from the above, there remains a notable separation of ethics of the lawyer and of the client. While this point is trite, it is necessary to mention as there is often a perception that representation of a guilty person immediately requires the lawyer to approve of his or her client’s actions. Rather, what is required is defending one’s client. Thus, the legal ethics intrinsic to providing representation to one’s client may outweigh one’s views on a specific case i.e. to represent a client because that is the role of an attorney, regardless of the status of guilt.

As such, lawyers often refrain from asking their clients if there is a possibility of truth to criminal accusations in order to avoid perjury. However, this also supports the idea that lawyers aim to maintain this distinction—one party is representing while the other is being represented.

Morals

Morally, there are also a few aspects worthy of examination. For one, some lawyers choose to represent guilty clients as this circumstance presents a unique challenge for a powerful and persuasive attorney to turn a case around. Pursuing the best possible outcome for one’s client always presents challenges, and the presence of

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guilt only adds to this difficulty. Engagement with the pressures associated with a case of this nature are a driving force for many, which reflects the morals of the lawyer. Choosing to represent a knowingly guilty client is about who the attorney is and his or her abilities far more than the client’s guilty status. While fully recognizing the fact that trials are for the client, not the lawyer per se, maintaining a guilty-client case is a reflection of the attorney and his or her commitment to providing representation.

Moreover, the moral guilt a lawyer may face is potentially remedied by the various legal defences. For example, proving self-defense or provocation where applicable may exculpate a guilty client, but also have the unintended effect of providing moral reassurance to the lawyer who faces mental and emotional turmoil in representing someone who did, in fact, commit a crime. Admission of guilt tied to a purpose such as self-defense has the potential to help balance the truth of a case (allowing the client to admit to his or her crime) with the ethical requirement of representing a client to the best of a lawyer’s ability. This moral aspect highlights a lawyer’s ability to recognize when a client is guilty and also not perjure his or herself to simply protect one’s client from facing charges.

The morals associated with representing a guilty client extend beyond the courtroom itself. If counsel feels that their client presents a danger to his or her family, then a lawyer’s morality typically prevails, and he or she will pursue an option to protect society at large. This may be achieved through an injunction or restraining order, or any effort to protect the family and greater community. Representation is not blind, and this is the most important aspect to recall – lawyers still have a conscience, and while they have a societal duty to work in pursuit of justice, they also have a duty to protect society.

However, it is important for the lawyer to represent his or her client without completely compromising his or her morals. While lawyers tend to follow the ethical code of providing representation even to guilty clients, this does not apply blindly. In this way, all wrongs are not necessarily ignored; attorneys are not required to bear the burden of representing a guilty client, though many do. When moral implications may apply, there are options lawyers may implement instead. For example, attorneys may withdraw from cases, though this may have a consequential effect on the effectiveness of competent counsel, and it could result in the lawyer facing a grievance proceeding. With regard to a case nearing trial, if an attorney recuses him or herself without leaving a client with sufficient time to find a new lawyer, the client risks losing representation who fully understands the case. Yet ultimately, lawyers who are compromised by the truth of their client’s guilt will recuse themselves.

Legality In addition to the ethical and moral justifications for representing a client the lawyer believes to be guilty, there are a number of legal requirements that require a setting aside of the lawyer’s personal beliefs. These are necessary not only for the functioning of the legal system, but also to ensure that lawyers adhere to uniform standards of professional conduct.

Common Law Protections: The Adversarial System

Firstly, there is the adversarial nature of the common law system. This means that the prosecution must prove its case before an impartial judge and empanelled jury, while the defence attempts to best refute the arguments the prosecution make. The question for lawyers is not whether the client is guilty or innocent; rather, it is whether the prosecution can prove its case beyond a reasonable doubt in criminal proceedings, and on the balance of probabilities in civil proceedings. The defence does not have to prove their client’s innocence, so much as poke enough holes in the prosecution’s case such that they cannot meet the requisite burden of proof. There is a difference between “factual” innocence and “legal” innocence. A lawyer can fulfill their obligation by trying to prove the latter. It is not their responsibility to argue the prosecution’s case, even if they suspect the facts may suit their own case

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Constitutional Protections

Secondly, there is a constitutional right to a fair trial enshrined across a broad range of jurisdictions. In Ireland, this right has been identified in Article 38.1 of the Constitution, which states that “[n]o person shall be tried on any criminal charge save in due course of law.” Similar provisions are interwoven into the constitutional fabric of nations from the USA to South Africa. In vindicating this right, the Irish Court has found that there is a right to legal aid when the defendant cannot afford a lawyer as enunciated in (State (Healy) v O’Donoghue [1976]), a right against self-incrimination (Heaney v Ireland [1994]), and an obligation on the State to provide equal “force of arms” when it comes to the provision of legal advice (Carmody v Minister for Justice [2009]). This means that, should the prosecution in a criminal case require the services of a barrister, the defendant is equally entitled to the services of a barrister. Were lawyers to refuse to act for clients they find to be reprehensible, it could arguably interfere with the ability of an accused to gain access to adequate legal representation. This would in turn impact on the ability of the Court to conduct a fair trial. Lawyers as individuals may regard themselves as having morals superior to that of their clients. However, lawyers as professionals must set this aside in order to ascribe themselves to the higher value of fairness enshrined within the Constitution.

Practical Protections: Codes of Conduct

Finally, there is a code of conduct all legal professionals must ascribe to when representing clients. The socalled “taxi rank” rule has been explained in a submission by the Bar of Ireland to the Legal Service Regulatory Authority which stipulates that barristers “are obliged to accept instructions from any client, and are available to every solicitor in the State at the present time.” This prevents discrimination against prospective clients. Furthermore, Rule 3.1 of the Code of Conduct of the Bar of Ireland stipulates that “Barristers have a duty to uphold the interests of their client without regard to their own interests or any consequences to themselves or any other person.” Similar provisions are in place for solicitors, and these rules are reflected across the common law.

What does this mean? First, barristers cannot decline a client based on their personal beliefs, unless they can demonstrate a genuine lack of availability/conflict of interest. Second, the standards laid out by their profession oblige them to set aside their personal beliefs in the pursuit of the best interests of their client. It would be a severe infraction of these rules were a lawyer to deliberately set out to advocate in a manner contradictory to their clients best interests – an infraction that could lead to disbarment, or even legal charges for professional misconduct. Finally, the standards that are set out ensure that a lawyer is never acting in a personal capacity. A lawyer’s professional loyalty is to a legal system grounded in the notion that the only people capable of deciding on a person’s guilt are the individual with the gavel and the 12 people sitting in the jury box. As such, lawyers must abide by this principle if they wish to regard themselves as true legal professionals.

Conclusion

While the presumption of innocence acts as a layer of protection for clients, lawyers still face ethical and moral entanglements when representing a guilty individual. However, there are both codes and mechanisms in place to further protect attorneys and also provide rationalizations for their actions in continuing to represent a guilty client. It is clear that the legal system is set up to buttress any philosophical justifications that can justify representing a client a lawyer may personally believe is guilty. One does not have to agree with every individual client so long as they acknowledge the collective interest in ensuring lawyers represent them in the best manner possible.

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The Murder of Pat Finucane: An Inquiry Denied

By Jacob Hudson, JF Law and Political Science “We want to know who pulled the trigger. We want to know who pulled the strings.” Those are the words of John Finucane, Sinn Féin MP for Belfast North, speaking at the Oireachtas Good Friday Implementation Committee, on November 26. He is, of course referring to the murder of his own father, Pat Finucane, perhaps the most prolific human rights and criminal defence lawyer in Irish history.

Finucane, a graduate of Trinity’s Law School, attracted fame for representing many Irish Republican Army (IRA) members and republicans in court throughout the 1980s including hunger striker Bobby Sands. Tragically, on February 12, 1989, he was shot dead at the dinner table of his family home in north Belfast, witnessed by his wife, Geraldine Finucane, and three children. The Ulster Defence Association (UDA), an infamous loyalist paramilitary, claimed responsibility for the attack, declaring that Finucane was a high-ranking member of the IRA. These allegations of membership of the republican paramilitary were fiercely denied by his family and were later refuted by the UK Government’s Stevens Report. Despite Finucane’s reputation for representing republican clients, he had also represented those on the loyalist side of the divide.

Since that fateful day in February 1989, there has been widespread and since confirmed allegations of collusion between British security forces in Northern Ireland and the UDA over the killing of Finucane. This was confirmed by British Prime Minister, David Cameron in 2012, following the conclusion of the De Silva report. This was a review of all existing documentation regarding the murder

by Sir Desmond De Silva, who had previously worked as the United Nations Chief War Crimes Prosecutor in Sierra Leone. Cameron issued an apology on behalf of the British Government for the “shocking levels of collusion” between themselves and loyalist paramilitaries. However, even still, the De Silva report itself asserted there was no “over-arching state conspiracy”. In a press conference following the release of the report, Geraldine Finucane condemned the review as a “sham”. She too emphatically declared its failure to identify those responsible for the collusion as “hurtful and insulting”.

What the Finucane family want is a public inquiry into the death of the Belfast solicitor, and for the Royal Ulster Constabulary (RUC), British security services and loyalist paramilitaries to be prosecuted. Although UDA volunteer, Ken Barrett, pleaded guilty to the murder in 2004 (after tapes resurfaced of his admission to the RUC from 1991), the Finucanes are sceptical of the justice delivered by this trial. To them, Cameron’s admission of collusion hints at many more people with “blood on their hands” - perhaps much higher up in the chain of command.

Photo courtesy of Rebecca Black, News Letter

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In the past, it looked more likely that a public inquiry would be held. In fact, in 2001, after intense demands from Amnesty International, the British and Irish Governments agreed to appoint a retired Canadian Supreme Court judge, Peter Cory, to investigate the allegations of state involvement. Cory in 2004 concluded that a public inquiry was necessary, but this request was not followed up on by the British Government until 2007. This inquiry, however, was to be set up under Inquiries Act 2005, meaning it would be run and administered totally by the state, severely limiting its scope of investigation. Amnesty and the Finucanes were critical of this lack of independence set out in this proposal and stated they would not cooperate, instead calling for a “truly independent inquiry” and for “all members of the British judiciary not to serve on the inquiry”. For the next 13 years, “the can was kicked down the road” on the establishment of an independent inquiry despite Cory’s advice.

More recently in February 2019, the UK Supreme Court ruled that the British Government’s decision to hold a review instead of an independent public inquiry was in breach of Article 2 of the European Convention on Human Rights. Under this clause, contracting states have a duty (amongst other things) to effectively investigate the deaths of those residing within their jurisdiction. In the judgement, Lord Kerr criticised the De Silva report and other antecedent investigations for not identifying those involved in the collusion that led to the murder of Pat Finucane. Because of this, the report was not “Article 2 compliant”. Still, Lord Kerr could not order a public inquiry, and declared that, ultimately, it was up to the government to decide whether to conduct said inquiry.

Since then, there have been increased calls for an independent public inquiry by Finucane’s family, human rights campaigners, and political figures alike. Indeed, the Labour Party in Britain has called on the government to “act without delay” on the establishment of the inquiry. Adding to this, in late November of this year, several leaders of Northern Irish political parties including Michelle O’Neill (Sinn Féin), Colum Eastwood (Social Democratic & Labour Party), Stephen Farry (Alliance) and Clare Bailey (Green Party) drafted a letter to Secretary of State for Northern Ireland, Brandon Lewis, asking him to finally host a public inquiry. Similarly, in a phone call with Boris Johnson on Friday, 27th November, Taoiseach Micheál Martin urged the Prime Minister to finally hold an independent public inquiry that is compliant with Article 2 of the ECHR. Furthermore, on 25th November, 26 members of the United States Congress issued a letter to Prime Minister Johnson on the same subject.

They act as a strong voice for the ever so influential Irish-American lobby in Washington.

But as of November 30th, Brandon Lewis has effectively shut the door on the Finucane issue, stating in the House of Commons that the government will not meet the calls for an independent inquiry. Despite the mounting pressure in recent weeks, the Finucane family have yet again been left disappointed by the British Government. Lewis instead has suggested instructing the “local police” (Police Service of Northern Ireland) to re-investigate the issue - undermining the advice of the UK Supreme Court, which held this would not be Article 2 compliant. Having announced his intention to give a verdict on whether to host the inquiry back on 16th October, the future seemed optimistic for the Finucanes. However, it now looks unlikely that this issue will be revisited seriously by the Secretary of State for Northern Ireland or indeed any part of the British Government in the near future. It seems that the best the Finucane family can hope for is to wait for a change of power. The Conservative Party have traditionally taken a hard-line approach to republicanism in Northern Ireland, epitomised by Margaret Thatcher’s resistance to the demands of the 1981 hunger strikers. It therefore seems unlikely that they would wish to damage the reputation of her government, as a result the possible findings that an inquiry may incur.

In a statement released shortly after the Secretary’s announcement, Geraldine Finucane published a statement accusing Lewis’ of making a “mockery” of the UK Supreme Court’s legitimacy, and shamed the British Government for being “in breach of their international legal obligations”. More personally, it was “yet another insult to a deep and lasting injury”. Yet Finucane states that she and her family are not “going away” - and neither is their “campaign for truth and justice”.

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From the US to Ireland: First Year in a Pandemic

By Marcella McGuinness, JF Law and French My first term at Trinity has been a blur. It almost seems like I didn’t truly move from America to Ireland, and I can’t be the only first year struggling to wrap their head around the fact that Trinity is their new reality.

Even when the pandemic began, it never occurred to me that my entire first term would take place within arm’s reach of my bed. After studying philosophy at Tulane University in New Orleans for two years, I chose to restart my university degree because of my desire to attend Trinity. The thought of moving to Dublin exhilarated me. My Irish heritage is a large part of my identity, and it was all I would talk about to anybody who would listen.

Because of my previous experience at third-level, I understand how crucial the first term is: my favorite memories and friendships were formed in the initial months at Tulane. I assumed that moving to Dublin would be similar in that regard, but as I write this, I’m packing to leave Ireland for an indefinite amount of time and have yet to feel grounded in this new environment.

First years have an unusable social framework for making connections. Just as I cannot draw upon my experiences at Tulane, upperclassmen advice is rarely helpful. They structured their lives in Dublin with the offerings of a normal social scene. Comradery, whether amongst peers or professors, is distinctly faint this year. Although I am dependent on technology for daily activities, social media is hardly a preferred or meaningful method for making friends. While I have visited campus on occasion, there is an unavoidable layer of anxiety added to approaching strangers during this pandemic. As someone with a pre-existing health condition, I have rigidly been abiding by social distancing guidelines. This decision has come at the expense of my mental health, as it is difficult to watch students socialize with little fear. We are all given a choice: risk our health, and the health of others, or stay indoors. Whether living at home or alone, this term was isolating.

Despite my long-time desire to study law, I have struggled to fully engage in classes this term and optimize my potential. Although true, “we are all doing our best right now” are words from professors that ring hollow when they are accompanied by a system demanding our highest efforts during a mentally-taxing pandemic. Adjusting to online classes has uniquely impacted everyone; some face challenging family dynamics, while others like myself feel alone and like their world lacks structure. One specific obstacle I have faced while crafting my routine is that many classes are not offered live and are often uploaded behind schedule. Despite these inconsistencies, professors continue to expect a high caliber of work from us. Professors are not entirely blameworthy, as I cannot speak to how difficult teaching must be at the moment, but students have not been given the opportunity to communicate with them about their needs. Consequently, it has been easy to feel left behind by this academic environment.

The reality is that, on top of adjusting to university, first years are experiencing the struggles of Covid-19 at the same time as everyone else. However, their issues are unique, as they must simultaneously adjust to third-level itself - and this pandemic. This makes finding guidance difficult, if not impossible. It is necessary for everyone, from faculty to students, to recognize the full scope of Covid-19’s impact on mental health. Because there is no telling when “normalcy” will return, we must all do what we can to make our current situations livable.

Editor in Chief Samantha Tancredi

Deputy Editor Orla Murnaghan

Copy Editor Olivia Moore

Public Relations Officer Zoe Timmons Editorial Board Blake Stephens, Doireann Minford, Dylan Krug, Ellen Hyland, Emma Bowie, Eoin Gormley, Jacob Hudson, Katharina Neumann, Lucy Mockler, Muireann McHugh, Matthew O’Shea, Michael Archer, Rory Hearn, Scott Murphy

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Design and Cover

by Samantha Tancredi

Photo courtesy of Matthew O’Shea, JS Law and Business