It is likely I was unfair to the Parliamentary Draftsman HERE.

Who can now say what was intended by the legislation? In Ireland, the answer to that question is “the Courts�.

Unlike some other jurisdictions we do not seek the meaning of words used in legislation by, for instance, interviewing the people involved in the introduction of the legislation. In the case of Section 20 of the Proceeds of Crime (Amendment) Act 2005, if we were to follow that course we would have to interview the then Minister for Justice. But even that would not be sufficient. He did not “pass� the legislation; he introduced it to the Oireachtas. It was the Oireachtas that passed it.

It is not feasible to interview the members of the Oireachats to find out what they intended. Even if it were feasible to do so, it would be wrong. It would be an admission that nobody knew the meaning and purpose of the legislation until the views of those members was ascertained. Even the idea of something being “ascertained� is a problem.

Who will formulate the question to be put to the members?

Who will interpret the confused, inarticulate replies? (Some, at least, will be such).

No, indeed. We need the principles of Statutory Interpretation.

A golden age of Statutory Interpretation has just opened in Ireland.

The future is bright for its practitioners.

The people who draft legislation are unusual. The job is difficult and requires long training, experience and talent. Inevitably, mistakes are sometimes made.

Section 20 of the Proceeds of Crime (Amendment) Act 2005 looks like a mistake. The writing is not elegant; the reverse.

To understand Section 20 it is actually necessary to cut and paste the amendments set out in Section 20 into Section 38 of the Criminal Justice Act 1994.

Section 38 had, originally, a simple aim; to confiscate money entering or leaving the country and connected with drug trafficking.

Somebody, (probably the Minister for Justice etc.) decided to expand it to apply to cash connected with any criminal activity. In addition, it seems it was intended to allow confiscation regardless of the importation or exportation element.

So, Section 20 of the Proceeds of Crime (Amendment) Act 2005 inserted two new sub-sections into Section 38 of the Criminal Justice Act 1994.

However, no amendment was made to Section 38 (2) of the Criminal Justice Act 1994. Continued retention or confiscation of the cash was permissible only on the order of a District Court judge. Before making the order the judge had to be satisfied of certain matters (by evidence from the Gardai). That evidence included the requirement to show the cash was being imported or exported.

This renders the new provision Section 38 (1A) VERY difficult to rely on; most such cases would have no element of importation or exportation, and yet it is only when evidence showing such element is adduced that the sub-section becomes useful to the prosecution.

38.—(1) A member of the Garda Síochána or an officer of customs and excise may seize and, in accordance with this section, detain any cash which is being imported into or exported from the State if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any person’s proceeds of, or is intended by any person for use in, drug trafficking.

(2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond forty-eight hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfied—

( a ) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and

( b ) that detention of the cash beyond forty-eight hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

(3) Any order under subsection (2) of this section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that—

( a ) no period of detention specified in such an order, shall exceed three months beginning with the date of the order; and

( b ) the total period of detention shall not exceed two years from the date of the order under subsection (2) of this section.

(4) Any application for an order under subsection (2) or (3) of this section may be made by a member of the Garda Síochána or an officer of customs and excise.

(5) At any time while cash is detained by virtue of the foregoing provisions of this section a judge of the District Court may direct its release if satisfied—

( a ) on an application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer, any such grounds for its detention as are mentioned in subsection (2) of this section, or

( b ) on an application made by any other person, that detention of the cash is not for that or any other reason justified.

(6) If at a time when any cash is being detained by virtue of the foregoing provisions of this section—

( a ) an application for its forfeiture is made under section 39 of this Act; or

( b ) proceedings are instituted (whether in the State or elsewhere) against any person for an offence with which the cash is connected,

the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded.

20.—Section 38 of the Act of 1994 is hereby amended—

(a) by the substitution of the following subsections for subsection (1):

“(1) A member of the Garda Síochána or an officer of customs and excise may search a person if the member or officer has reasonable grounds for suspecting that—

(a) the person is importing or exporting, or intends or is about to import or export, an amount of cash which is not less than the prescribed sum, and

(b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.

(1A) A member of the Garda Síochána or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1)) if—

(a) its amount is not less than the prescribed sum, and

(b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.�,

and

(b) by the insertion of the following subsection after subsection (3):

“(3A) Where an application is made under section 39(1) for an order for the forfeiture of cash detained under this section, the cash shall, notwithstanding subsection (3), continue to be so detained until the application is finally determined.�.

The new Chairman of the Bar Council must surely remember the events surrounding the introduction of the rules of disclosure of reports in personal injury actions.

They should fortify him in his efforts to have canceled, or substantially amended, the new rule of the Superior Courts in Statutory Instrument No. 12 of 2008 as suggested HERE.

The practicality of changing the effect of Statutory Instrument 12 of 2008 is real and the example is found in the recent past.

The Superior Courts Rules Committee introduced an amendment to the rules in 1997, as set out HERE.

Very promptly, the amendment was revoked and replaced by a new rule as set out HERE. This was discussed in the Supreme Court in Payne v Shovlin [2005] IESC.

The Court accepted that the effect of the 1997 rule on disclosure was too broad and the new, replacement rule was of a narrower ambit.

In short, when the bad effects of a rule or rule change is manifest the Rules Committee is capable of responding positively.

Go to it, Mr. Chairman!

(PS: Issue a new Press Release; your website shows Turlough O’Donnell as the Chairman, according to the latest Press Release on the topic; cancel the old Press Release).

There was a time when the Law Society of Ireland discharged all its functions in the corner of a car park.

The car park is still there (in the Four Courts), but the Law Society of Ireland has moved, to the former Blue Coat school in Blackhall Place (and changed its name). Now, in addition to having its own car park, it has the cachet of looking as though the HQ building (from the 18th century) reflects its history, which it does not.

That’s harmless stuff.

But what about the title to this post? “Nullem crimen sine lege� means “no crime without a law�, which in turn means, in the words of Article 7 of the European Convention on Human Rights,

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed�

The words of Article 7 are superior, but many lawyers prefer the latin expression, for much the same reasons the Law Society felt the need of a stately home: it projects or suggests the endorsement of history.

As always, these endorsements are of questionable value, in two senses; the endorsement of history may not be an endorsement and the historical costume may look odd on the modern figure.

Why should we care if an expression is in latin? Do we actually want the endorsement of ancient Rome? Consider the first Punic war. The Romans trumpeted their fidelity to their word; they used it to extend their influence through Italy by means of treaties. The Carthaginians occupied most of Sicily. The rest was ruled by a dictator (Hiero) and a small group of crooks that might well have suggested the model of the later Mafia.

The Mafia ran into trouble with the dictator and, finding the Carthaginians lacking in support, invited the Romans to help them. The Romans did, for the purpose of challenging the Carthaginians. Twenty three years of war followed, consequent on the breach by the Romans of their “core value� of adherence to their word. Rome had agreed a treaty of friendship with Carthage, but that counted for nothing when the possibility of taking Sicily was in the offing.

THE HIGH COURT
Record No: 840P/2005

BETWEEN:

SHELL E & P IRELAND LIMITED

Plaintiff

And

PHILIP MCGRATH, JAMES PHILBIN, WILLIE CORDUFF,
MONICA MULLER, BRID MCGARRY, PETER SWEETMAN

Defendants

And

THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

Defendants to the counterclaim of second and fifth defendants

Update (25th July 2008)

1. The High Court, on the application of the Defendants to the Counterclaim, had ordered the trial of a preliminary issue.
2. The issue was intended to be tried on 29th July 2008.
3. Due to a scheduling clash in the Court calendar the Issue is provisionally fixed for hearing on 18th November 2008.
4. The issue is: “Are the 2nd and 5th Defendants out of time to raise public law issues?”

The Hollywood police have a perennial problem and must have long ago found the solution. Suppose Cary Grant had got drunk and stabbed his neighbour. Should the police arrest Cary Grant? But that was not his name. His name was Archibald Leach.

Who has committed the crime? Archibald or Cary?

In DPP v Thomas [2006] IEHC the High Court pointed out that, (like Cary Grant), the defendant had chosen to be known by a name other than his real name. Therefore, summonses issued against him in his false name were validly issued and were in time.

What of Kirk Douglas? He changed his name legally to Kirk Douglas, from Issur Danielovitch. (Presumably by deed poll). Has the ground become more certain in his case? Perhaps he does not have a double identity any longer?

In fact, for persons, unlike inanimate things or concepts, double identity is not the usual problem in law; it is the theft of identity. For inanimate things, in law, double identity is common; “public place�, for instance, may have a different meaning in one piece of legislation compared to another.

Identity is not a simple thing. John Locke is credited with the first formulation of identity, in An Essay Concerning Human Understanding (1689), by reference to consciousness rather than the substance of soul or body.

For him, consciousness was memory. This has practical limitations. What of a person suffering from memory loss? If memory defines consciousness, which defines identity, how can we speak of “a person� as suffering memory loss? (This memory loss is different to the memory loss encountered by the Flood/Mahon Tribunal).

More seriously, he denies that identity is related to the body. A body may change and we accept the person has not. A body may have a particular appearance and not reflect the identity of the person. (“Trading Places� is based on this idea).

Possibly, identity is not coincidental with the person. A person may have several “identities�. Some commentators deny that “identity theft� is possible. In their view, what happens is the deception of a person or persons other than the person whose “identity� was stolen.

The result of the Bar Council Elections is in (or out).

The new Chairman should immediately address two issues. I referred to one previously HERE (depose the Attorney General, for reasons of self-respect, from his “position” as “leader of the Irish Bar”).

The other is urgent. It is the need to campaign to reverse a new rule of the Superior Courts. The Superior Courts Rules committee has introduced the following paragraph into Order 99, Rule 1 of the Rules of the Superior Courts (S.I. 12 of 2008).

(4A) The High Court or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.”;

The effect of this change is to tie the hands of the High Court or the Supreme Court on the issue of the payment of costs on interlocutory applications. Very often their costs are made “costs in the cause”. This means that the responsibility for the payment of the costs will lie with the unsuccessful litigant. Or, the costs are “reserved”. This means that the issue of responsibility for the payment of such costs will, or may, be determined by the trial judge at the hearing of the action.

The effect of the new rule is to favour wealthy litigants by raising the stakes for litigants who are not wealthy.

It is not enough now to be strategically superior; it is essential to be tactically perfect.

I am reminded of the Komodo Dragon. It has toxic saliva so powerful it needs just to strike and bite sufficient to break the skin of its victim, which, fleeing the attack, is followed by the Dragon at a leisurely pace in the certainty that the victim will succumb to the poison (a biological poison) and be eaten by the Dragon, alive.

Should we not prefer people to monsters?

In Ireland, we have difficulty understanding broad concepts, or so it seems.

Currently, the Irish Times (one, at least, of its “opinion columnists�) and the Sunday Business Post (the editorial) are citing the principle of democracy to accord respect (and, possibly, equality with the Irish referendum verdict) to the “views� of other EU member states on the Lisbon Treaty.

The Government itself (the Taoiseach) defends Mr. Sarkozy’s “right� to express his reaction to the rejection of the Lisbon Treaty by Ireland.

By contrast when Richard Corrigan expressed a criticism about Irish food he was attacked for doing so.

The Lisbon referendum was an exercise in democracy; anything involving the people is that.

Silencing Richard Corrigan is not a denial of democracy, it is a denial of free speech. Accepting Mr. Sarkozy’s right to express his opinion of the referendum result is a failure to defend democracy, not a defence of free speech.

Richard Corrigan is an ordinary person, addressing an ordinary issue; Mr. Sarkozy is not an ordinary person and positively rejects the referendum result.

The Taoiseach, in defending him is defending what he is saying.

The particular criticisms that may be made about the other EU member states in relation to the Lisbon Treaty are not really relevant to the above points, but, it is particularly indefensible to speak of the views of other member states in the context of references to democracy. It is fully acknowledged that the EU member states did not wish to submit the Lisbon Treaty to popular plebiscite and avoided doing so with one single exception.

This would have been beyond criticism, if popular plebiscite had not already been adopted (and came up with the “wrong� result on the EU Constitution). It was, it did, and to reject it or avoid its use is not the fullest commitment to democracy imaginable.

Here in Ireland we are not exposed to “Free Speech� very much.

The most notable recent exception is to be found in the 2006 Annual Report of the Information Commissioner.

She recounts her experience of addressing the Oireachtas Joint Committee on Finance and the Public Service and how she believed that each member subscribed to her views on Section 32 of the Freedom of information Act 1997. When it came to a vote, however, the Committee split on party lines, favouring the Minister over the Information Commissioner. (And in favouring the Minister, disadvantaged the citizens).

To the credit of the Information Commissioner, she declines to give up the fight in the face of power and sets out her views and experiences in her Report.

We need more of this, not least because we will come to learn the difference between Richard Corrigan’s opinions and Mr. Sarkozy’s opinions.

Sometimes it is difficult to prove the things that need proof. It is a relief therefore when the judge will “take judicial notice� of a fact. It means that proof is not required of that fact.

Section 4 of the European Convention on Human Rights Act 2003 reads:

4.—Judicial notice shall be taken of the Convention provisions and of—

(a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction,

(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction,

(c) any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction,

and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.

Hmm. Is there a gap? How should one prove the “…declaration, decision,…� etc. of which the judge will take judicial notice? Where is the authoritative copy available? Are all copies authoritative?

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 (16/7/2008)

1. Judge McKechnie has reserved judgment on the remaining issues before the Court.

2.The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorses the State case but goes further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This is a very important difference between the State and the Plaintiff on the Directive point.

3. The State had asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points has also been reserved.

4. At time of writing, no reply has been received from Hans-Gert Pottering, the President of the EU Parliament to the letter McGarr Solicitors sent to him.