Driving an evolution in criminal-law thinking
The impact of the Law Reform Commission (LRC) on criminal law was examined at its 50th anniversary conference 'Half a Century: The Journey of Law Reform' at The Studio, IPUT on George’s Quay in Dublin (19 September).
An independent institution, the LRC is responsible for researching and formulating proposals for reforming Irish law to bring it into line with international best practices.
To date, the LRC has published 128 reports, many of which have directly influenced Irish legislation.
The rate of implementation of recommendations in its reports stands at around 70%, which compares well internationally, according to outgoing commissioner Dr Andrea Mulligan.
In her presentation at the conference, Dr Liz Heffernan, associate professor and fellow at Trinity College Dublin, noted that over 40 of the LRC’s reports to date had been in criminal law.
“One of the striking things is the breadth of the commission's work in its engagement with criminal law. It spans four extensive areas: criminal liability; evidence and procedure; sentencing; and consolidation of legislation,” she said.
“On the more qualitative side of things, there are numerous examples of concrete reforms, which have been shaped to a greater or lesser extent by the commission's recommendations.”
Reflecting society’s values
Heffernan focused on the statutory offence of harassment to illustrate this point and highlight how instrumental the LRC’s work had been in ensuring that the law evolved with the times and reflected society’s values and needs.
“The was shaped to an appreciable degree by the commission's lengthy and substantial report on the subject published in 1994.
“The new statutory offence of harassment was one of the less prominent aspects of the reform in the 1990s and discussion on it at the time was low-key,” she said.
“The concept of harassment, even today, is broad and vague, and views can differ as to where the line of criminalisation should be drawn.
“That ambivalence, I think, explains the nature of the commission's recommendation in 1994, which focused on acts of harassment, such as following, watching, communicating, and the need for such acts to be persistent.
“But at the same time, the commission took the view that liability should not be limited to acts instilling a fear of violence but should extend more widely to conduct which seriously interferes with a person's right to a peaceful and private life.”
Two years ago, the Oireachtas adopted this recommendation in section 10 of the act with the . “This still very much remains the touchstone of the law,” said Heffernan.
Role of LRC
Heffernan said that the offence of harassment was a good example of an evolution in thinking in relation to law reform and the LRC’s role in that respect.
“The 1997 act has been supplemented by the , which was influenced in part by the commission's 2016 report on harmful communications and digital safety,” she said.
“Section 10 has also been amended to embrace indirect harassment. Originally, we were talking about communications with the victim. Now the language in section 10 also covers communications about the victim, which is more fitting in the present digital age.
“The third, and quite dramatic, change was the insertion within section 10 of a parallel offence of stalking [which came into effect in September 2024].”
Change of position on stalking
The LRC’s initial view – at first in 1994 and again in its report ‘Aspects of Domestic Violence’ in 2013 – was that there was no need for a separate stalking offence because the section 10 text was sufficiently flexible that it could be implied.
However, in its 2016 report, it had a change of heart on this, as well as the changes that pertain to online and digital offending, explained Heffernan, whose first full-time job was as a legal researcher at the LRC.
“I think what this captures is a sense that there's a real benefit in the text of section 10 expressly reflecting society's condemnation of these contemporary forms of offending,” she said.
“Also, the commission leaned on experience in other jurisdictions, which suggests that, for example, a stand-alone offense of stalking – and also separate, express wording that relates to digital and online offending – would increase reporting and increase prosecutions.”