The constitutional duty of the Irish state ‘to defend and vindicate the personal rights of the citizen’ is the basis of a strict rule excluding unconstitutionally obtained evidence. Although English courts recognise a similar duty to ‘vindicate human rights and the rule of law’, their powers to exclude evidence or stay proceedings for abuse of process are extremely flexible and discretionary. In both jurisdictions, there has been particular controversy over the application of these powers to covert recordings that breach legal professional privilege. This paper argues that the duty to vindicate rights and the rule of law underpins both the exclusion of unlawfully obtained evidence and the punishment of offenders. It requires a balancing exercise, not between defendants' rights and an incommensurable public interest but, rather, between two aspects of the same constitutional duty of the courts.

This commentary updates the paper ‘Excluding evidence (or staying proceedings) to vindicate rights in Irish and English law’ by analysing the recent decision of the Supreme Court of Ireland in DPP v JC. It argues that although the court has relaxed the exclusionary rule in one major respect, it has strengthened it in others, and that Ireland's approach to unconstitutionally or illegally obtained evidence remains very different from that of England and Wales.

This paper compares and contrasts state emergency responses to national security crises with responses deployed in a period of economic crisis. Specifically, this paper challenges the appropriateness and legitimacy of the standard emergency response of legislative (as distinct from judicial) deference to the executive when confronting such economic crises. This will be done by questioning the significance in periods of economic crisis of the two principal factors that justify deferring to the executive during a state of emergency pertaining to national security: (i) the necessity of the action taken; and (ii) that the executive has an expertise in decision making in the specific area in question. Ultimately, this paper questions the application of the emergency paradigm to economic crises, arguing that such responses are rarely temporary and instead usher in a ‘new normalcy’.

In most of the common-law world, legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what will be called a system of ‘discretionary apportionment’. This paper draws attention to the fact that, although most common-law jurisdictions are, by virtue of their apportionment legislation, in the thrall of the paradigm of discretionary apportionment, there are many, varied departures from this paradigm. This paper classifies these departures (which will be called ‘fixed apportionment rules’), emphasises that they conflict with the apportionment legislation and considers how the conflicts ought to be resolved. An important conclusion reached is that it can plausibly be argued that the landmark decision in Froom v Butcher, at least as it has been understood in subsequent cases, was decided per incuriam. Froom sits uncomfortably with the apportionment legislation. Attention is then turned to the arguments for and against a discretionary system of apportionment as opposed to a system that incorporates more fixed apportionment rules. It is contended that much stands to be gained from introducing more fixed apportionment rules.

Local environmental quality is best understood as a measure of the aesthetic complexion of public space in the urban environment. Anti‐social acts causing damage to the physical environment of local communities have, traditionally, attracted little moral opprobrium; and the role of local authorities in safeguarding local environmental quality has been undervalued. However, this is an issue that has been proven to have a significant impact on the quality of life of local communities, particularly those in deprived neighbourhoods. This paper argues, therefore, that we need to develop a comprehensive legal framework to safeguard local environmental quality in the future. This problem has so far been tackled as nuisance, local environmental crime or anti‐social behaviour. The paper concludes that an approach based on measures to tackle incivility in society is to be preferred; thus, the Anti‐social Behaviour, Crime and Policing Act 2014 will be particularly significant in this regard. However, some amendments to this legislation will be required to ensure its effective application to the problems of local environmental quality. Further measures should also be taken to support citizen participation and education as part of a comprehensive legal framework for safeguarding the local environment.

The paper argues that the margin of appreciation (MoA) doctrine of the European Court of Human Rights (ECtHR, or Court), should be understood as, inter alia, an underenforcement doctrine, according to which Convention rights should not be applied to their full conceptual limits. Underenforcement is justified by institutional considerations relating to the Court's role and competence. Although institutional considerations have been theorised normatively, the paper claims that ‘low‐level’ empirical inquiry into the comparative institutional competence of different decision makers across the Council of Europe is critical in explaining MoA. Such comparative empirical analysis ties shared institutional responsibility and subsidiarity with certain traits of decision makers when determining Convention rights. In this context, the paper briefly compares the decision making abilities of different institutions. It concludes by stressing that under certain circumstances the Court can be worse placed than national authorities to decide on violations of Convention rights. This is corroborated by the Court's case‐law concerning Convention rights impinging on the economic and social policies of States Parties.

This paper explores the distinction between being autonomous and having capacity for the purposes of the Mental Capacity Act. These include where a person misuses affective attitudes in making the decision; where a person's decision is not authentic to their values; and where the Mental Capacity Act prevents use of the context or outcome of the decision in assessing capacity. These gaps mean that a person can be found to have capacity, even though they are not properly autonomous. This, we argue, justifies the courts’ use of the inherent jurisdiction to protect vulnerable adults who, while having capacity are not able to act autonomously.