All Souls/Criminology Anniversary Series: Testing Punishment

Abstract:

Legal theorists often define punishment as a precursor to their principal task of justification. This paper instead focuses on the legal definitions of punishment as gateways to human rights. Safeguards contained in numerous fundamental rights – including the right to a fair trial, to liberty, and the prohibition on retrospective punishment –  are often contingent on a measure being classified as punitive. This creates a high stakes distinction: if  a measure is classified as punitive, the relevant safeguards apply; and if it is not, they do not. Despite these stakes, or perhaps because of them, neither the European Court of Human Rights nor domestic courts have developed a satisfactory approach to defining punishment. This paper seeks, first, to propose an alternative means of determining whether a measure is punitive; and, second, to examine whether defining punishment alone would limit the capacity of the State to circumvent the protections associated with these rights in practice. It is argued that a clear test would be an insufficient safeguard against a tactically astute State due to courts’ reluctance to engage with the form of criminal offences and the length of sentences.

Bio:

Dr Rory Kelly is an assistant professor in the School of Law in Trinity College Dublin specialising in sentencing and criminal law.

He is co-author of Sentencing and Criminal Justice with Professor Andrew Ashworth, and his research has been published in leading journals including the Modern Law Review, Oxford Journal of Legal Studies, Law Quarterly Review, and Criminal Law Review. His work spans a wide range of topics within criminal law, including retrospective punishment, terrorism, prison labour, stalking, strangulation, behaviour orders, judicial dissent, maximum sentences, and sentencing for multiple offences.

Dr Kelly contributes actively to law and policy reform, including through work with the Sentencing Academy. His research has been cited by courts and public bodies internationally, including by the Chief Justice of Ireland; the Northern Ireland Court of Appeal; the New South Wales Court of Criminal Appeal; and the District Court of Western Australia. It has also informed work by the Justice Select Committee (UK); the Department of Justice (USA); the Independent Reviewer of Terrorism Legislation (UK); the Independent Criminal Courts Review (UK); the Independent Terrorism Commission (UK); the Parliamentary Office of Science and Technology (UK); the Sentencing Council (UK); the New South Wales Sentencing Council (Australia); the Judicial Policy Research Institute (South Korea); and the United Nations Office on Drugs and Crime.

Prior to his current position, Dr Kelly worked at the University of Galway, University College London, the University of Oxford, and the Law Commission of England and Wales.