As this is written, the public perception of AIB and Bank of Ireland is that they are solvent. They may not be. If they are not, the Government, or part of it, knows it. The Government, although it is silent on the point, is in that case, in effect. perpetuating the illusion of the banks’ solvency. This split between what is officially the case and what is really the case is common. We have seen recently that, although they were not directly protected by the State, we slowly, and by chance, learned that Liam Carroll’s property interests were financially unsustainable with Paddy Kelly’s likewise, followed by Bernard McNamara’s. These truths, easily comprehended when brought to view, are part of the more obscure greater truth, that the crash of these property interests was facilitated by massive Government failures and that the possible insolvency of the banks was caused by the Government.

The recent apology from the British Government to the victims of the Thalidomide scandal reminds us of what is required when important issues are denied or ignored; quality journalists.

In the UK they had the Sunday Times “Insight” team under Harold Evans. As editor of the Sunday Times, Evans refused to knuckle under in the face of Distillers’ court injunction preventing the newspaper from publishing the truth (to the extent then known) about the cause and history of the dreadful birth defects that had appeared as a result of the use of the Thalidomide drug by women. (Distillers was the distributor of Thalidomide).

(Ironically, given the title to this post, a newspaper of the name “Sunday Times” continued to exist after Harold Evans left it, but it was not what it had been; Rupert Murdoch owned it then).

At the crucial time and on the central issue, openness, the UK courts came down emphatically on the side of Distillers and attempted to impose secrecy.

Here in Ireland, if there were to be a reprise of that struggle we can not be sure that the courts’ response might not be equally inadequate.

The reasons for this are twofold; access to public records is still regularly denied as a consistent Government policy, and, within the court system, access to paper and electronic records is a matter of chance and whim. The Government has not only set the policy of “closed” administration, it has written the legislation to make it legal to refuse access to public records.

One can imagine Mr. Cowen’s feelings when he learned of the hanging of two pictures of him in public, in which pictures he was shown, by implication only, as naked; firstly, possibly in the loo and secondly, holding his underpants.

The pictures were to some degree, caricatures.

It is a defamation to lower someone in the eyes of right thinking members of society. If the defamation is a picture it is a libel. A libel is the making of statements in permanent form that disparage the plaintiff or tend to bring him into ridicule or contempt.

For a small review of Irish law on defamation see this earlier post HERE.

Mr. Cowen is not a normal person; he is the Taoiseach. As such, he must accept that he is open to comment and attack more than a private person. In short, attacks on him have the benefit of qualified privilege where such attacks, directed towards private persons, would not have that privilege.

What do the pictures say of him?

Possibly the following;

He is a human being;

He is a failure as a politician (he is without cover and “is in the toilet”)

He is not handsome;

He is unashamed of his failings/disadvantages:

These are mild statements to be made of a Taoiseach. They were made before, as appears to be the case, he procured the confiscation of the pictures by the police, including other pictures made by the same artist with a view to prosecuting the artist on public decency (or indecency) grounds.

Now to say that of the Taoiseach is a serious charge. But it is warranted, given the events. In the light of that, the implied comments of the pictures are mild.

It is highly speculative, but an attractive thought, that the Zeitgeist of the early twentieth century produced or induced two events; the development of the modern law of Negligence and the perversion of truth by the Piltdown Man hoax.

They are connected in one respect; a lawyer was at the centre of each event.

Lord Atkin, in the House of Lords, delivered the seminal judgement in Donoghue v Stevenson, and Charles Dawson, a solicitor, “found” the skull of Piltdown Man in an English gravel pit.

Mr. Dawson was a very respectable person, as witnessed by the fact that after his find of Piltdown Man, (officially named “Eoanthropus dawsoni”) critics of the claim that his find were the remains of an early human, were attacked in personal terms.

He allegedly found the remains in 1912. As late as 1938 a memorial was erected at the gravel pit in these terms;

Here in the old river gravel Mr Charles Dawson, FSA found the fossil skull of Piltdown Man, 1912-1913, The discovery was described by Mr Charles Dawson and Sir Arthur Smith Woodward in the Quarterly Journal of the Geological Society 1913-15.”

The memorial was, probably, a desperate last stand of the respectable people. The hoax was fully exposed in 1953 in, inter alia, the “Times”; but the truth had been available since 1923.

In 8 A.D. the Emperor Augustus condemned the poet Ovid to live in Tomis in Moesia.

Tomis was at the edge of the Roman Empire on the Black Sea, near the mouths of the Danube, a mere 450 miles or so from a bend in the Volga where Stalingrad would later be sited.

Ovid’s trial was held in camera before the Emperor. His ostensible offence was the writing of the Ars Amatoria. Eight years had passed since its publication: the Emperor’s real motivation lay in the discovery of the wanton life of his daughter Julia and he was in search of a scapegoat.

Ovid was that scapegoat.

This truth, or context, deprived Ovid of the chance to address the Emperor’s motivation in condemning him to exile, as he wrote from Tomis to his friends and public in Rome.

In the face of power, formally judicial or otherwise, it is necessary to be circumspect.

As Ovid discovered, and told his Roman readers, the Danube and even the Black Sea would freeze over in winter. He expressed his anguish in the recollection of his last moments in Rome;

Iamque quiescebant voces hominumque canumque,
Lunaque nocturnos alta regebat equos.

At last all noise of men and dogs was still,
The moon was driving high o’er heaven’s hill.”

His life in Tomis is recalled and examined in “An Imaginary Life” by David Malouf. Malouf’s book, a sustained work of imagination, is a reflection on what it is to be human. Ovid’s humanity, in the loneliness of his exile, is counterpointed by the strange example of a feral boy found by the inhabitants of Tomis and brought in from the barbarous wastes of the steppe.

Should judges express their opinion?

The answer is yes, but appropriately.

Adrian Hardiman, a member of the Supreme Court expressed his opinion of Irish legal reporters recently (script seen HERE), and was attacked by, inter alia, the NUJ, HERE. (No comments, please on my use of latin ["inter alia"]).

In fact a court reporter has a very difficult job. The newspaper owner and the editor are very anxious to report what happens in court; any fair and accurate report is privileged and they are relieved of the phenomenal effort and anxiety required to prove the fact or facts of the proceedings.

However, the method of exposition in a court is not conducive to making clear what is actually happening in a case. Often, the case is developed through a series of motions and there may be considerable time lapses between the hearing of the motions. Even in a trial the “opening” by counsel may not reflect the actual events which take place in the trial. Proper “fair and accurate” reporting ought not to be a “quick and dirty” operation but the reporter may have no alternative to adopting that as a solution.

It is an open secret that court reporters are assisted by the legal practitioners. They are frequently furnished with a copy of the pleadings. These will contain some essential facts, at least. However, the reporter needs to know that what is pleaded may not necessarily be supported by evidence at the trial.

This relationship is fraught; the reporter should know that legal practitioners are seldom without an agenda of their own. That agenda will be more or less benign depending on the circumstances.

Equally, for a reporter to produce the kind of report that will please a judge is not necessarily a good thing; many judgments are overturned on appeal, sometimes because the judge’s conclusions were not supported by the evidence. Some judges are better than others (to put it mildly).

Consequently, a reporter should not look for the “core” of his or her report in the pleadings or in the characterisation of the case by counsel or in some diatribe by the judge (unless he or she is working for a “red-top”; then, always go for the diatribe).

The Irish Times is not a quality newspaper. It fills its pages with opinion of dubious quality.

I am open to criticism on this issue. What, it might be asked, should replace those opinions?

Truly independent opinion would be a good start.

Magisterial reporting would be better.

The latter is seriously problematic. I have adverted to the difficulty of ascertaining, on any particular occasion, exactly what has happened. However, those difficulties are insuperable if what is admissible as “fact” or “what has happened” is too tightly constrained. There is also the question of talent. Commonly we “know” what we have to find out, before we find it out. Fortune favours the prepared mind.

How, with the newspaper editor, do we identify the people with “prepared minds”, the people to whom we should assign the task of “finding” what happened?

There is no one way. However, we can be sure that anyone appearing on the Government’s “business heavyweights” list will not be a good choice.

The better choice would be a person like Knut Wickell, who spent two months in jail in 1910 for querying the Immaculate Conception. Knut, in the context of controlling a bank, had the added merit of being an economist, one spurned for most of his life because he lacked a legal qualification.

More merit.

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.

Here in McGarr Solicitors (for inhabitants of the USA, a solicitor is a lawyer), we spell “intellectual” with three els. We think to spell it “intelectual”, as some colleagues have (and do), is wrong.

I was once part of the Robert Maxwell publishing empire; great care was taken then to ensure errors were weeded out before they reached the public. An author’s work was brought into the printing process by being fully re-typed. Then it was composed and galley proofs were printed. A proof-reader would then read it, checking for errors by the author and the printers. Spelling errors would be corrected, but printing errors might be more difficult to spot. We would aspire to notice a full stop of a different typeface in the text. (Not impossible, especially if the typeface was at 24 point.)

I am, consequently, indulgent of errors in an age where some social/management structures have become flat (or even, have been flattened!). Also some words are very difficult to spell, like “independent” (or is that “independant”?). However, when you choose to use certain big words like “intellectual”, you must get them right. Would anyone have paid much attention, say, if Jean-Paul Sartre had written;

We intelectuals must stand together on this issue!

Accordingly, do not write (or leave uncorrected) “…we…specialise in intelectual property law”.

Eoin O’Dell asks a valid question. What is a website for?

His context shows he feels the institutions he looks at failed to achieve what was there to be done; to demonstrate (I think he says) their raison d’etre in the particular instance that presented itself to them.

He (properly) chides them for “missing a trick�?.

We have immediate and available demonstrations of what a website is for as seen HERE.

On the internet, doing is demonstrating!

A website has the same purpose as a book or a magazine. Like them, a website is not an innocent production; we must read it with the possible presence of an unreliable narrator in mind.

Subject to that caveat we get, for instance, information about the planned Guantanamo trials HERE and HERE the like of which would never come out other than in a history book years after the event.

Quotes (about the forthcoming trials) like the following have an immediacy no other medium can produce:

According to Col. Morris Davis, who is a former chief prosecutor of the military commissions, it appears that the plan was made ahead of time to have no acquittals, no matter what the evidence was to reveal. General counsel William Haynes is quoted as saying (according to Col. Davis) “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? … We’ve got to have convictions.”

The back news story of the Dublin Port Tunnel is not its faults; it is the role of the whistleblower/s.

It is a social good that the faults in the Tunnel (and more importantly, any attempt to ignore or conceal those faults) should become public.

Prime Time did not identify the source of the information disclosed in its TV programme. There is no need; that information could only come from within Transroute (or, possibly, but unlikely, NRA). Transroute [ironically its website is "under construction"] has, since the airing of the Prime Time programme, recognized SIPTU as the representative of Transroute’s employees working on the Tunnel. In short, the Prime Time insider/source is a Transroute employee, a member of SIPTU and a whistleblower.

The Government is formally committed to protection of whistleblowers but is stalling on its implementation in the form of a legislative compulsive-obsessive pattern of behaviour, seen HERE and HERE.

A piecemeal solution seems now the objective as can be seen HERE and HERE

Connected with this subject is the Government assault, [by the Freedom of Information (Amendment) Act 2003] on Freedom of Information principles.

For a history of FOI in Ireland (as of 2003) see HERE.

The Tunnel’s faults will be the news story when there is an accident, possibly a very serious one; whistleblowing is a mechanism to forestall such an event and is valuable for that reason.

Of one thing we can be sure; a government led by Bertie Ahern will not introduce legislative protection for whistleblowers.

(Which is not to say he is alone in his attitude).