Dolly Mapp was a formidable woman. When the cops of Cleveland Ohio arrived at her door, in the early 1960’s or thereabouts, seeking a person in her house, she declined to allow them entry. They called in reinforcements (what a woman!). They searched her house and found pornographic material. She was convicted, lost on appeal and won in the US Supreme court [Mapp v Ohio 367 US 643; S.Ct. 1684]. The cops had searched without a warrant. Dolly had been convicted under the law of Ohio. The US constitution [14^th Amendment] protected a citizen from unreasonable search and seizure and in 1914 the US Supreme court had ruled evidence obtained in breach of the constitution could not be relied on in a Federal prosecution. Mapp v Ohio decided that that position also applied to State prosecutions. (Most criminal prosecutions were under State law, so most defendants had been left without the protection of the constitution until Mapp).

In or about 1986, on a tip-off, police in California flew an aeroplane over the backyard of Mr. Ciraolo. They perceived a crop of marijuana in his yard, got a search warrant and found 73 plants. The California court of appeals applied Katz v United States 389 U.S. 347 and ruled the flight an unauthorised search and a breach of Mr. Ciraolo’s expectation of privacy. The US Supreme court found against Ciraolo on the grounds that he had lost his right of expectation of privacy because he had exposed the back yard to the occupants of the numerous aeroplanes flying over his house. The court disregarded the fact that those occupants were passengers in domestic flights (at great heights, presumably) whose chances of inspecting and recognising marijuana in the backyard were nil.

One wonders what the US court will say when the cops buy and deploy drone aircraft and thermal imaging technology.

Then there are those special places like Birr, County Offaly where, recently, the 41^st Irish Hot-Air Balloon competition took place.  Will the Garda Síochána buy a balloon or opt for a drone?

The Gardaí have had a history of their own difficulties with search warrants and the like. See HERE for the latest episode on that front and for a very good analysis of the case law relating to that history.

One of us, attending the High court recently, witnessed the following instance of judicial self restraint.

Counsel: “That’s your opinion, judge”.

Judge: “Yes, it is.”

It was a moment of witless insolence. The judge had rejected Counsel’s submissions; Counsel disparaged the rejection by denigrating it as “opinion”.

He was wrong on many fronts.

(1) When you have lost, you have lost.

(2) When you are in a hole, stop digging.

(3) “Opinion” is all we have.

Plato confronted this issue; he opposed objective knowledge and opinion. Presumably this is the basis for the terms of Section 39 of the Broadcasting Act 2009.

Section 39 (1) (a) provides;

“Every broadcaster shall ensure that- “… all news broadcast by the broadcaster is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s own views.”

This is nonsense.

All “news” is subjective; that is, a matter of, or expression of, opinion. It has been selected; it has been expressed in words or images, which have to be selected.

What is probably being addressed is “style” or, possibly, fairness. In short, a finding of breach should made by a literary critic or an artist, not by a judge.

That implies that the wrongful act of a broadcaster is not the promulgation of “his” opinion, but the suppression of alternative views. This is a difficult problem. There are views that ought not to be expressed, if not suppressed. We see that in the public burning of a Koran in the USA.

Domestically, what is in issue is this: on what possible moral basis does the Oireachtas claim the right to restrict the public expression of opinion?

We see another, less sub rosa instance of this in Section 16 (2) of the Legal Services Ombudsman Act 2009, which states;

“The Legal Services Ombudsman when giving evidence under this section shall not question or express an opinion on the merits of any policy of the Government or on the merits of the objectives of such policy.”

The Ombudsman’s evidence will be like a doughnut; it will have a lot missing.

PS. Judicial restraint is a requirement of the job. See HERE.

The President has signed the Credit Institutions (Stabilisation) Bill into law. She clearly recognised that it might be unconstitutional, in part at least. That is the explanation for her convening the Council of State to advise her on the issue of referring the Bill to the Supreme Court, to rule on its unconstitutionality [under Article 26 of the Constitution].

She has decided not to refer it to the Supreme Court. She signed it into law.

There are advantages and disadvantages to this course. Affected persons or institutions can challenge it in the courts. Under the reference procedure, an affected person will not be able to challenge a law on grounds of unconstitutionality. This arises from the fact that the reference procedure precedes the bringing of an Act into force and no cause of action can subsist until this happens. Following the reference procedure no claim will be entertained that an Act is unconstitutional because the Act has been “cleared” by the Supreme Court.

Arguably, an affected person can bring the better challenge to an Act than can be brought in the reference procedure.

However, if there is no independent-minded person to challenge an Act it will remain unchallenged and will have the full force of law.

Possibly, that is the fate of the Credit Institutions (Stabilisation) Act 2010.

Who imagines, for instance, Allied Irish Banks plc, a likely candidate for being an “affected person”, mounting a legal challenge to the operation of the Act? It is, effectively, controlled by the Government.

No, the real legitimus contradictor was the Oireachtas. It, too, is controlled by the Government and is incapable of mounting a challenge.

POSTSCRIPT:

Well, I was wrong. See this report from the Irish Times. l It may well be that the media will represent the public interest. Indeed, it will represent the interests of the judiciary; it is not in Ireland’s interests that the Judicial arm of the State be swallowed in the morass that Fianna Fail and the Progressive Democrats have created. We now know that barristers and solicitors are very poor judges of economic and financial matters. They (barristers) are the pool from which the judiciary are drawn. Why should they think they are superior?

Congratulations to Mr. Pearse Doherty.

In 2007 McGarr Solicitors represented Catherine Murphy and Finian McGrath in a High Court challenge (Murphy & Anor -v- Minister For Environment & Ors [2007] IEHC 185) to the failure of the Oireachtas to revise the constituency of Dublin West (among others) due to the increase of population since the previous election. On a revision, based on the latest Census of Population, Dublin West would have had an extra Dail seat.

The Defendants were the Minister for the Environment, Ireland and the Attorney General. Under the Constitution, the “real” culprit was the Oireachtas. The Court said;

“It is important to note, firstly, that the obligation is one on the Oireachtas rather than the Government.”

It is notorious that this view of the Oireachtas is seriously deficient, although Constitutionally correct. The Oireachtas is powerless without the active support of the Government. Failures of the Oireachtas are in fact failures of the Government.

Our plaintiffs, Catherine Murphy and Finian McGrath failed in their challenge to defend democratic principles; Pearse Doherty has not.

Leaving aside issues as to the differences in a failure to move a writ for a bye election and a failure to revise a constituency, were we asking for the wrong “order”?

A sometime television advertisement showed a customer in a crowded pub catching the attention of the barman by asking for a Du.. Du.. Dubonnet, and being heard.

No more pints of Guinness!

Ireland has strange Regulators, as we have learned. For example, what is the Irish Data Protection Commissioner doing about the Google “Street View” scandal?

The scandal involved the deliberate collection, by Google, of wi-fi data, through its Street View vehicles. Google Street View is part of Google Maps and Google Earth. It uses adapted vehicles (mostly cars) to travel through public locations in at least thirty countries in the world. The vehicles have cameras to record a 360 degree view of each location.

I saw one in Dublin in August.

While it was using the vehicles as a camera platform, Google also used them to secretly collect data passing over wireless networks. That data would be all, or part, of emails, passwords, videos, audio files, documents and network names.

Seemingly, German privacy authorities discovered this Google secret early in 2010 and launched an investigation. A proper investigation would require that the evidence be preserved, would it not? Here’s what Google put up on its website:

“On Friday May 14 the Irish Data Protection Authority asked us to delete the payload data we collected in error in Ireland. We can confirm that all data identified as being from Ireland was deleted over the weekend in the presence of an independent third party. We are reaching out to Data Protection Authorities in the other relevant countries about how to dispose of the remaining data as quickly as possible.”

This was more than the Data Protection Commissioner told us. In fact he told us nothing of the issue. HERE‘s his website.

Google’s reference to the data being “…collected in error…” was disingenuous. The data was collected calculatedly.

Bank robbery is irresistible if the only sanction is that you have to give the money back if you are caught.

Did we actually get our money back?

The High Court is seeking submissions from the parties to the Digital Rights Ireland case. See the Pleadings HERE.

See the most recent post on the issue HERE

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted.

Currently, DRI has furnished its expanded draft of the terms of the Reference to be sent to the ECJ. The State, through its Counsel, has agreed to revert to DRI by 17th August 2010 with its responses, if any.

The case will be re-listed before the Court in October.

The High Court is seeking submissions from the parties to the Digital Rights Ireland case. See the Pleadings HERE.

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted. Clearly, the High Court is not convinced that the form of question suggested by DRI is exactly right (or is seeking the assent of the State to DRI’s form of question). The hearing next Wednesday will show us which is the case.

DRI’s case is brought in its own name, but it is an action with implications for every citizen of Ireland, whether they know it or not.

For this reason McGarr Solicitors have published DRI’s pleadings on the Web since 2006. This is reasonable; the Respondents are, in effect and name, the State. The issues are public law issues and there can be no prevailing claim to privacy on those issues from these Respondents. It is worth noting that it is not common, to put it at its lowest, to see pleadings of current proceedings published but there is usually an exception to every rule and we have one here.

Between now and next Wednesday we will re-formulate the questions to go to the ECJ. These questions will form part of the Order of the Court making the reference to the ECJ. We currently estimate a two year wait to get a hearing in the ECJ. Delay is inevitable; every Member State of the EU has a right to intervene and be heard in the matter. That implies that every Member State must receive a copy of the Questions and the parties’ submissions.

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 (5/5/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government.

2. McGarr Solicitors act for Digital Rights Ireland Ltd.

3. DRI brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The State responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission applied for leave to make submissions in the proceedings. These Motions were heard in the High Court in July 2008.

4. On 5th May 2010 the High Court delivered its (unapproved) judgment. The Court confirmed its agreement to refer the EU law issue in the case to the European Court of Justice. The Court refused the State’s applications seeking denial of locus standi to the Plaintiff and/or seeking security for costs.

5. The matter will be listed before the Court again on 12th May 2010 for submissions on the form of question or questions to be referred to the ECJ.

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 (21/4/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.
2. McGarr Solicitors act for Digital Rights Ireland Ltd.
3. DRI brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The State responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission applied for leave to make submissions in the proceedings. These Motions were heard in the High Court in July 2008.
4. Judge McKechnie reserved judgment on those issues before the Court.
5. 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 endorsed the State case but went 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 was a very important difference between the State and the Plaintiff on the Directive point.
6. The State 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 had also been reserved.
7. The case was mentioned before Judge McKechnie on 25th March 2010 on which occasion he indicated he would deliver his reserved judgment on 21st April 2010.
8. On 21st April 2010 Judge McKechnie informed Counsel for the Applicant and the State that he intended to deliver his judgment on 30th April 2010.

Ireland has declared for itself a position of neutrality in selected international conflicts

More importantly, the Constitution of Ireland provides in Article 28(3):

“1° War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann.”

Bankrupting the nation aside, it is difficult to know of a more important matter, upon which the Government ought to be restrained, than engaging in a war without the consent of the Dail.

It is alarming therefore to consider what transpired in Dubsky Government of Ireland [2005] IEHC 442

The Applicant applied for Judicial Review of the facilities at Shannon Airport extended by Ireland to the USA for the supply of US armed forces in Afghanistan. He pleaded that these facilities were in breach of Article 28 (3).

The court declined to grant the order sought stating, inter alia,:

“Having regard to the absence of any clear line of authority as to the correct or appropriate legal definition of war, or as to what constitutes participation in any such war, or even as to what consequences flow from the failure to comply with invoked principles of international law on issues of neutrality, it is wholly appropriate that courts should adopt the same highly restrained approach to the question of whether and in what circumstances the executive arm of a government should take decisions relating to war or armed conflict or hostilities of whatever nature.”

Of course, Article 28 (3) is out of date; no State actor in international affairs follows the convention and legal obligation to “declare” war – they just wage it. Nevertheless, as a purely internal Irish affair, to take a hands-off approach to Executive action on such a question, where the Executive can seek the assent of the Dail, but does not, is not in the national interest.