McGarr Solicitors use Macintosh computers; that is, we use computers with the Apple operating system on them.

The beginning of this was the Macintosh SE which introduced me to computer use in or about 1987.

For me, then, the database program in Appleworks was the most valuable element of the machine and its software. Despite the passage of time I have not found a database program as useful as that, despite its limitations, which were obvious.

Those limitations brought me to think about relational databases; in short, to look into the world of mathematicians and nerds, a place for which I was and am constitutionally unsuited. (Ten plus fifteen is twenty-six, right?).

Bill Gates of Microsoft owned or controlled the alternative machine. For me, it was’nt at the races.

So, now Bill Gates has retired. I endorse his future plans; I decry his past. Without him the better system, the Mac, would be everywhere.

Everywhere would have the benefits of an aesthetic and economical approach to computing. Unlike Bill Gates’ system, one would not encounter a “counter-intuitive� element in an interface.

Which is not to say that native wit is everything in the learning of a Mac program; it is not.

But in Bill Gates’ system it would have been an impossibility to use Pagemeker to publish a book, as I have done, with the program written in Italian for the Italian market.

Ciao, Bill.

THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (27/6/2008)

Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.

DRI has brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The state has responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission has applied for leave to make submissions in the proceedings. These Motions will (it is believed) be heard in the High Court on 1st July 2008. See the letter to Dr. Hans-Gert Pöttering for the context for this.

Our Ref;EMcG Your Ref; 24th June 2008

Dr. Hans-Gert Pöttering
President,
European Parliament,
Paul Henri Spaak building
Brussels

Dear President,

1. I am the lawyer for Digital Rights Ireland Ltd. (“DRI�). DRI is a corporate body established to protect and vindicate the civil and human rights of mobile phone users in Ireland. DRI has issued proceedings in the Irish High Court to challenge the validity of aspects of Ireland’s data retention legislation. (“The DRI proceedings�).

2. I write to you, as a matter of urgency, because an aspect of that legislation is the subject matter of proceedings between, inter alia, Ireland and the European Parliament in the European Court of Justice. (C-301/06: Ireland v Council and Parliament “The ECJ proceedings�) Those proceedings are now listed for hearing on 1st July 2008.

3. As you probably know, the Irish High Court is empowered to rule on the validity of European Union law, where the matter is acte clair. DRI is seeking, among other things, a ruling or rulings from the High Court on the validity of Directive 2006/24/EC.

4. Because, in the opinion of DRI, that matter is not acte clair, DRI has requested a reference by the High Court to the European Court of Justice on the validity of Directive 2006/24/EC.

5. DRI understands that the validity of Directive 2006/24/EC is the issue in the ECJ proceedings.

6. However, DRI perceives that DRI and Ireland do not agree as to why Directive 2006/24/EC is invalid. Ireland, it is understood, believes it is invalid because it was adopted at a meeting of the Council of Ministers following a vote against it by Ireland. Ireland is of the view (as is DRI) that Ireland’s vote was a veto vote. Ireland believes this because the subject matter for decision in the Council of Ministers was a “Third Pillar� issue. Unanimity is required for such issues; there was none.

7. DRI believes that the grounds of invalidity of Directive 2006/24/EC are wider than that. Ireland does not agree, it appears, (given certain actions and expressions of view of Ireland).

8. DRI believes that the basis for a determination of the invalidity of Directive 2006/24/EC, by the European Court of Justice, is a very important matter. DRI wishes to ensure that the European Court of Justice has the benefit of a full examination of all the reasons why Directive 2006/24/EC is invalid.

9. DRI will shortly obtain a hearing by the High Court of its application for a reference to the ECJ. It is opposed by Ireland in its pleadings. Ireland has also objected to the High Court hearing submissions from the Irish Human Rights Commission on the issues that DRI has brought to the Court.

10. What is now clear is that, failing intervention, the hearing of the ECJ proceedings on 1st July 2008 will precede the DRI proceedings in the High Court in Dublin. That means that the ECJ will be deprived of the full examination of the reasons why Directive 2006/24/EC is invalid.

11. If DRI is successful in Dublin it will be anxious to ensure its proceedings, under the High Court reference, are heard before or at the same time as the ECJ proceedings. The European Parliament is a respondent in the ECJ proceedings. It is open to the EP to apply to the ECJ for an adjournment of those proceedings pending the outcome of the DRI proceedings in Dublin.

12. I write to you to ask you to procure the making of that application to the ECJ.

13. The benefits will be substantial, legally and politically. The perception of the European Union as a legal institution will be enhanced. The opportunity for the ECJ to rule on what is a human rights issue will be secured. The anxiety of the European Parliament to protect human rights will be demonstrated.

14. DRI’s objectives are supported by groups across Europe including: Privacy International, the European Foundation for a Free Information Infrastructure, the Czech civil rights group Iuridicum Remedium, Digital Rights (Denmark), the Belgian Liga voor de Mensenrechten (“League for Human Rightsâ€?), Electronic Frontier Finland, the UK Open Rights Group, the Italian group, ALCEI (“Electronic Frontiers Italyâ€?), the French IRIS, the Internet Society – Bulgaria, German groups netzwerk Neue Medien (“New Media networkâ€?) and FITUG (Förderverein Informationstechnik und Gesellschaft e.V.), and the Austrian groups VIBE!AT (“Austrian Association for Internet Usersâ€?) and Quintessenz.

15. I am ready to furnish any further details or information you may wish to have. The Chairman of DRI and I will readily travel to meet you if you require.

16. For obvious reasons the matter is urgent and I await hearing from you by return.

Yours Faithfully,

____________________
Edward McGarr
McGarr Solicitors

In 1984 President Ronald Reagan visited Ireland. There were public protests and demonstrations at his visit. He stayed for a time in the residence of the US ambassador in the Phoenix Park. A number of women took up position in a grassy area across the road from the entrance to the ambassador’s residence with the apparent intention of signaling their protest to President Reagan as he entered and left. He never saw them. They were arrested by the Garda Siochana and held for two days without bail. When they were released President Reagan had left Ireland. The women were charged with stated offences; when they came before the court one week after their arrest the charges were dropped.

This incident was never publicly resolved. The dropping of charges could only mean, to the mind of everybody in Ireland, that there was no substance to the charges in the first place.

If that was an accurate perception, great damage was done to the citizens of Ireland. In 1984, as now, an arrested and detained person was entitled to be brought before a court at the earliest opportunity. In 1984 an arrested person was entitled to bail unless a court had grounds for believing the person either would not turn up for his/her trial or would interfere with witnesses.

In 1984 the Taoiseach was Garrett Fitzgerald. His government took no steps to inquire into or explain this incident. Indeed, if the incident were to happen today the only additional feature might be the involvement of the Garda Ombudsman Commission.

In 1984 as now, a person had a constitutional right to protest and to exercise free speech. The latter right has been recently affirmed, although in less than convincing terms, by the High Court.

Now, as then, the effective guarantee of vindication of the rights of a person wrongly arrested is a civil action by the arrested person. It is not usual for the individual agent of the State to be a defendant in those proceedings. There is therefore, no effective sanction against, say, a member of the Garda Siochana who abuses the rights of a citizen.

Ireland was one of the original signatories to the European Convention on Human Rights.
Under the Convention a person may only be detained in specified circumstances; to serve a sentence upon conviction; to be brought before a court for trial; to be denied unlawful entry to the country and to be lawfully deported.

Because Ireland is a dualist state, that is, a state wherein international obligations become part of the domestic law only when specifically adopted and incorporated into domestic law, the Convention is not part of Irish law.

Ireland “incorporated� the Convention into Irish law in an oblique manner by virtue of the European Convention on Human Rights Act 2003. Rights under the Convention may now be pleaded in Irish courts. The courts are obliged to interpret legislation, insofar as possible, compatible with the Convention. The High Court and the Supreme Court are empowered to declare law not to be compatible with the Convention and the Plaintiff may apply to the Attorney General for compensation, ex gratia, for loss or damage suffered due to the operation of the offending law. Thus, the European Convention on Human Rights, which represents the “gold standard� for civilized treatment of citizens and persons across the European Union members, is not accorded validity in Ireland to the degree to which the Constitution is. What is at issue is the identity of the interpreters of these documents; only the High Court and the Supreme Court may interpret the Constitution; the interpretation of the European Convention on Human Rights takes place in the European Court of Human Rights in Strasbourg.

I unintentionally caused a post to be private. I have now made it public. It retains its date order in the website but can be seen HERE.

John Breslin has received a letter. Read the letter HERE. His post is interesting, and, as Paul observes, raises unanswered questions. What springs to mind is the challenge in trying explain the issue to the Irish Supreme Court (or any court) if the need arose.

PS. Having seen what happened to Raj Persaud, I expressly confirm I got my tip on this topic from a member of my office team. (I have no desire to find myself investigated like Raj or pursued for what momma saw, or thought she saw).

We have to stop working every now and then. I read the Sherlock Holmes body of work a long time ago, but the classics never die and so I have made reference to Sherlock Holmes HERE and perhaps have given the impression that a life in the law is a life in crime or close to it (by and large, it is not; think of Kenneth Starr whose natural habitat was in corporate law and Government administration).

What might a lawyer read for leisure? Anything, but he/she could do worse than read the novels of Stephen Saylor, featuring Gordianus the Finder.

I am currently on page 136 of “This Night’s Foul Work� by French author “Fred Vargas�, whose website is HERE, for Francophones, and whose Wikipedia article is HERE, for the rest of us.

Currently I think I will be reading all of Fred’s oeuvre.

Ireland has vetoed the Lisbon Treaty.

Or has it? What is a veto? More particularly, what is a veto in the European Union?

Ireland has previously cast a veto (in the EU Council of Ministers) and it was denied that it had that effect. That is, it was treated as a dissent, not as a block.
See HERE for details.

The defeat of the Referendum on the Lisbon Treaty in Ireland is not a rejection of the European Union. However, the response of the European Union may indeed lead to a rejection of the EU. Only a Union based on law can attract and hold the allegiance of the people of Europe. The legal basis of the European Union lies in the treaties. Under the treaties Ireland’s assent to the Lisbon Treaty is a requirement to bring it into force.

To say that implementing the Lisbon Treaty was “going to be difficult” as Christine Lagarde the French Finance Minister did in Korea is to imply that the European Union is not an entity built on law.

To press ahead as President Sarkozy and Gordon Brown propose is to subscribe to the same implication. To propose a “two-speed” Europe (see HERE) is a proposal to abandon the European Union, a legally questionable idea.

Certainty is good for business. Ireland has now produced a series of standard contracts for use in public construction and engineering projects. They are available online from the Department of Finance HERE. The contracts are designed to transfer certain additional risks to the contractors. Provision has been made for the Employer to stipulate the hiring of certain specialists and to assign design responsibility to the contractor.

There will be, presumably no need to trawl the world for good precedents for such projects, as suggested HERE.

It’s easier to forget than to remember. If a witness has forgotten things it is permissible, sometimes, for the witness to check a written record of what has been forgotten. The most common occasion of this is when a police officer refreshes his/her memory from his/her notebook. This is permissible only if the written record is a record made contemporaneous with the events in respect of which the evidence is being given.

As Marcel Proust observed, memory is elusive. Sometimes the reading of the contemporaneous note is used simply to flesh out the recollection of the events recollected and recorded. This is termed “present recollection revived�. Sometimes nothing is recollected but the record remains; it is in the handwriting of the witness, say. This can be referred to by the witness. The witness affirms his/her belief in the accuracy of the record and the court receives the record. This is called “past recollection recorded�.

In D.P.P. v. Cliffford [2002] IEHC 81 (22 July 2002) the High Court addressed the issue of a witness referring to a notebook while giving evidence. The District Court judge had dismissed the charge against the accused because the Garda witness had been consulting his notebook while giving evidence. The judge took the view that the Garda should have requested permission of him, the judge, before doing this. In effect the judge excluded the evidence of the Garda because of this. The High Court found that this was wrong in law and effectively remitted the prosecution back to the District Court for hearing.

In Wicklow County Council v. Fenton & Ors [2002] IEHC 102 (31 July 2002) the High Court likened the owner of an illegal dump to a receiver of stolen property. Without a receiver there can be no profit in theft; without an illegal dump there can be no illegal dumping. The court accepted the principle advanced by the applicant Council that it did not have to prove negligence; that the state of mind of the Respondents was not required to be proved. The court endorsed the principle of “the polluter pays�, a principle found in Council Recommendation 75/436Euratom and specifically incorporated in Section 5 of the Waste Management Act 1996.

“the polluter pays principle” means the principle set out in Council Recommendation 75/436/Euratom, ECSC, EEC of 3 March, 1975 1 regarding cost allocation and action by public authorities on environmental matters;

Under Section 26 of the Waste Management Act 1996 the Environmental Protection Agency is obliged to incorporate the “polluter pays� principle into its national hazardous waste management plan.

The court found that the Respondents had been negligent on the facts and made orders for the remediation of the lands on which the illegal dump was found.

Consequently, liability under the Waste Management Act 1996 can be established simply by showing that there has been dumping on lands and that there is no authority for such dumping. The liability attaches to the occupier of the land; there is no need to show that the dumping took place during the period of occupation by that occupier.