There is a perception in the public that our corruption index is high. Only full and open investigation and punishment of offenses will reduce this perception.

It is not helped by the fact that the law relating to corruption in Ireland is controversial. It is strewn over several pieces of legislation and has been criticized on a regular basis by the OECD expressly for that reason.

Two weapons in the State’s armoury were brought in by Britain (still in force in the UK), (The Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1916) and are old. They are also inadequate. (The 1916 Act does not apply to employers: who, but employers, will fund the bribery?).

Ireland ratified the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions but, like many others, has dragged its heels in actually acting on its obligations.

In 2008 the OECD reported:

“In particular, the Working Group is disappointed that Ireland did not seize the opportunity of the Prevention of Corruption (Amendment) Bill 2008 to act upon the Phase 2 recommendations to consolidate and harmonise the two separate foreign bribery offences in the Prevention of Corruption (Amendment) Act 2001 and the Criminal Justice (Theft and Fraud Offences) Act 2001. The Group therefore recommends, as it did in 2007, that Ireland act on this issue as a matter of priority. It urges Ireland to pursue its declared intent to make changes to the 2008 Bill in order to achieve greater consistency between the two statutes, and consolidate at the first possible opportunity the corruption offences into a single piece of legislation. In addition, the Group continues to recommend that Ireland adopt on a high priority basis appropriate legislation to achieve effective corporate liability for foreign bribery.”

The Minister for Justice etc. welcomed this report, congratulating some civil servants, in effect, for meeting regularly to keep under review Ireland’s continuing default.

This is not academic stuff. See HERE.

And what of the, inadequate and insufficient, Prevention of Corruption (Amendment) Bill 2008?

It’s not even in sight.

Council Regulation 41/2001, “the Brussels Regulation” decides the proper jurisdiction for the determination of disputes in the EU.

Its authors must have been chess fans, dreaming of the great games of the early twentieth century when Capablanca and Lasker dominated the game. That is, it is hoped the authors had dreams.

In a chess dream one does not want to know that Capablanca and his wife Gloria did not get on well and had affairs, even if one does want to know that he became a Cuban civil servant “…with no particular duties but to be famous and go about putting Cuba on the map”. (We have aspirants in Ireland for jobs like that, hence my inappropriate interest).

Likewise, we provide no market for books entitled “The Philosophy of the Unattainable” [Lasker].

No, indeed, chess players should be seen and not heard. They should play the game and recede into the darkness (better still, the languorous white light of the Cuban midday), when the game is finished.

That half-remembered, half-forgotten realm of austere thought seems to be the birthplace of the Regulation. The Regulation has the appearance of simplicity but it is deceptive. It has the capacity to throw up great surprises from apparently straightforward circumstances.

Who would have thought that it would favour the Irish legal profession?

What else can we conclude when we see the Regulation in action in Knight v Axa Assurances [2009] EWHC 1900 QB?

The Plaintiff was injured in a road traffic accident in France. The Defendant was the insurer of the French motorist who had injured him. Under French law the Plaintiff had a direct claim against the Defendant as insurer. That claim was for the payment of compensation, and therefore was a debt. The place of payment of debts is, generally, where the Creditor is domiciled. Furthermore, the Plaintiff was a beneficiary, under French law, of an insurance arrangement and Article 9 (1) (b) of the Brussels regulation applied.

In Ireland, we have not introduced provision for injured persons to claim against the insurers of the malfeasor who caused the loss. This provision is available in the UK and, it would appear from Knight v Axa, France.

Therefore, in Ireland, third parties (other than named beneficiaries) are not “beneficiaries” under policies and cannot invoke Article 9 (1) (b) of the Brussels regulation to issue proceedings in their home state. They have to sue here, being the place where the wrongful event happened and the defendant resides.

We have the Ryan report to consider; there is a lot to consider.

What are we to make of the judges of that era? (Strictly the era has not ended; the Ryan Commission had a time period to consider, that period only has ended).

A handy, if not good, place to begin on this, is with Jeremy Bentham.

Bentham said, of “the right to silence”;

If all the criminals of every class, had assembled and framed a system after their own wishes, is not this rule the very first which they would have established for their security? Innocence never takes advantage of it; innocence claims the right of speaking, as guilt invokes the privilege of silence.”

As a matter of fact he was wrong in saying that “innocence never takes advantage of it”, otherwise the practice and procedure of criminal trials in his day would have demonstrated case after case of defendants proving themselves to be innocent, something that did not happen.

He was wrong also to imply that invocation of the “privilege of silence” was a sign of guilt. Determination of guilt was and is the precise purpose of a trial. His opinion implied that the burden of proof should rest on the accused, something civilised nations currently do not admit as reasonable.

In reality, Bentham was on the comfortable side of a power relationship.

He was not the first and will not be the last such person.

Crimes are prosecuted because it suits the person in power to launch the prosecution. Whether that is a proper action depends on the circumstances of the prosecutor as much as the circumstances of the accused.

What, for instance, of Ireland’s political and administrative leaders during the years of the Bush administration in the USA?

(Actually, let us confine the inquiry to the period after the passing of the International Criminal Court Act 2006).

Under Section 8 of the Act of 2006:

Any person who does any act specified in paragraph 3 of Article 25 (crimes ancillary to genocide, crimes against humanity and war crimes) is guilty of an offence (in this Act referred to as an “ancillary offence”)”

Under Article 25 (3) (c) it is an offence for a person who;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

“War crimes” are defined in Article 8 and include;

Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;”

That is exactly what George W. Bush and Donald Rumsfeld did to the prisoners of Guantanamo, as was generally known.

Furthermore, they used Shannon airport to facilitate the transport of some of those prisoners to Guantanamo;

When will we have an investigation of the complicity (or ignorance, if such be the case) of our politicians, particularly our Ministers for Justice etc. during those years, in relation to those matters?

On 22nd June 1941 Germany attacked the Soviet Union. The attack was a surprise, and in breach of the Molotov-Ribbentrop Non-Aggression Pact of 1939 and, by that token, without a Declaration of War.

On 12th January 1943 the German 6th Army was trapped (approximately 190,000 men at that point) at Stalingrad. The Soviet Union had launched counter-offensives code named Uranus and Saturn (followed, later, by Mars).

Between 10th and 12th January 1943 the Germans at Stalingrad had lost 60,000 men: the Soviet Union had lost 26,000 there. Further north, on the Voronezh Front the Soviet Union, on 12th January 1943, committed 347,000 men to an attack on that Front against a total of Axis forces of 225,000 men. Further north, near Leningrad, the Soviet Union attacked with two armies totalling 244,000 men. The various Fronts reached from Leningrad to Stalingrad. At Stalingrad the temperature was 35 degrees below freezing.

What Bernie Madoff did has relevance to Ireland. Ireland is part of the globalised financial services industry through the Irish Financial Services Centre.

Some of the entities operating there have lost money by Bernie’s activities.

Significantly, Bernie had a British subsidiary in London to transact European business, presumably.

Assuming Bernie’s guilt; (he has, allegedly, confessed to running a pyramid, or “Ponzi” scheme), liability for these losses may fall not only on Bernie and/or his corporate creatures but on others also, under the following heads of claim;

A Breach of Contract;
B Negligence and Deceit;
C Breach of Fiduciary Duty;
D Conversion;
E Restitution;
F Statute:

BREACH OF CONTRACT

Bernie (“Bernie” includes any of his complicit corporate entities) received money under, in each individual instance, a contract. The place of the making of the contract will have varied from case to case. Each contract included express and, usually, implied terms. It was, undoubtedly, an express and, if not express, then implied term that he was to invest received money in asset backed securities. (For the purposes of this post, a definition of “securities” is not necessary; it is sufficient to know that Bernie’s appropriation of the money was not within contemplation).

Many contracts with Bernie were made by agents holding, apparently, discretionary investment powers. Agents are agents under a contract. Those contracts also would contain express and, usually, implied terms. The principal of those agents would have rights under the contract made by the agent with Bernie and also under the contract made with the agent by the principal. That principal might well be a “consumer” under Irish law (assuming that Irish law is the proper law of the relevant contract). Irish law could be the proper law of an agency agreement made by a foreign principal with an Irish resident agent.

There is an obligation on a person who undertakes duties under a contract, to deliver on those duties, irrespective of the level of skill and care actually exercised. If the contract contains an express or an implied term (as found by a court) that an agent, say, will invest, or cause to be invested, money in asset backed securities, there will be a breach of contract if he/she/it does not do this. Bernie, of course, is guilty of that breach. Any agent, from whom Bernie received the money of the agent’s principal, whose contract imposed such a duty will also be in breach.

NEGLIGENCE/DECEIT

Bernie was guilty of deceit. The evidence for this, currently, is his (alleged) confession. Presumably his financial records will corroborate this. Normally the heavy burden of proof to prove fraud militates against a finding of deceit in a civil action. Assuming access to the evidence against Bernie, that burden can be discharged and it would thereafter be otiose to consider allegations of negligence against him. More importantly, Bernie’s possession of the money delivered to him was never lawful; it was obtained fraudulently. Therefore he could not pass a good title to that money to any person to whom he, in turn, passed it. The money, in principle, may, therefore, be traced and, when traced, recovered from its subsequent holder/s.

There is, it seems, good evidence of negligence on the part of the agents from whom Bernie received much of the funds he allegedly misappropriated. Bernie divulged little of his investment strategy. He failed to reveal the exact securities in which he was, ostensibly, investing. To credit Bernie in those circumstances was a classic case of “buying a pig in a poke”. Furthermore, the return, offered by him, on the money was not, it appears, credible. The agents from whom he often received the funds were themselves professionals in the same field. They could not find investments in the markets returning the result that Bernie claimed for his “investments”. That is why they passed the money to him. That they believed him trustworthy is irrelevant. They knew, or ought to have known, that he was not, in fact, making his “returns” from investments in any known market. They were, in short, negligent.

BREACH OF FIDUCIARY DUTY

Bernie appears to have breached his fiduciary duties. The facts of each case require examination to determine the identities of the beneficiaries of the duty breached.

Currently, there are no publicly known facts showing breach of fiduciary duty by any agent whose principal has lost money, but that may change.

CONVERSION

Conversion is what a thief does when he steals. Essentially, that is what Bernie is reported as having confessed to. The remedy for conversion is the return of the stolen property, or, in default, damages.

RESTITUTION

A claim of restitution arises where, inter alia, a claim for money had and received can be made. Such a claim would lie against Bernie. The remedy for a claim of money had and received is the return of the property, or, in default, damages. Such a claim would also lie against an agent who believed that Bernie’s formula for generating his “returns” was, although effective, illegal. That they believed he was making the “returns” by trading on insider information, if true, is evidence of knowing receipt.

STATUTE

Financial management is, reputedly, a highly regulated field. Whether that is so in Ireland is already in doubt. The Madoff Mess may show the truth of the situation. That aside, Ireland’s financial regulatory laws make provision for claims in civil law for breaches of certain duties imposed by statute. The facts of each case will determine if these are available to investors to recover their losses.

Under Article 2 of the European Convention on Human Rights and Fundamental Freedoms everybody in Ireland has a right to life. It reads:

Everyone’s right to life shall be protected by law. No one shall be
deprived of his life intentionally save in the execution of a sentence of a
court following his conviction of a crime for which this penalty is provided
by law.

Deprivation of life shall not be regarded as inflicted in contravention of
this article when it results from the use of force which is no more than
absolutely necessary:”

This is the context in which to see any occasion when a person dies in police custody or as a result of State action.

Furthermore, however, it is incumbent on the State to properly investigate deaths. To fail to do so is itself a breach of the Convention.

The job of the police who carry out these investigations is not easy. Every police officer is trained in the giving of evidence. If they do not wish to disclose the true course of events it is easy for them to tailor their account to suit the needs of the situation.

It is a delusion promoted by crime writers to think that a witness can be “broken” in the witness box. Very rarely, a witness can be demolished, but that is not the same thing.

The obligation on the State (and the investigating detective) was summarised HERE by the House of Lords (in a case of suicide in police custody):

…it [the investigation] had to be initiated by the state itself, to be prompt and carried out with reasonable expedition, it had to be effective and conducted by a person who was independent of those implicated in the events under investigation.”

Step forward WALLANDER!

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.

Reading of Lord Goldsmith’s interventions in the BAE scandal brings to mind Blossom Dearie’s rendition of “My Attorney Bernie�?.

Here are the words, but it’s essential to hear Blossom singing it to appreciate it.

My Attorney Bernie
(Words and Music by Dave Frishberg)

I’m impressed, with my attorney Bernie
I’m impressed, with his influential friends
He’s got very big connections
and I follow his directions
Bernie knows his way around
and so I always do what Bernie recommends.

I am blessed, with my attorney Bernie
I’m impressed, with the way he runs the store
He’s got Dodger season boxes
and an office full of foxes
It’s amazing all the different things
your average guy might need a lawyer for.

[Chorus:]
Bernie tells me what to do
Bernie always lays it on the line
Bernie says we sue, we sue
Bernie says we sign… we sign.

I’m in touch, with my attorney Bernie
In a clutch, he can speed right to the scene
and if I’m locked up in the jail
with just one phone call for my bail
he said to call his club collect
or deal directly with his answering machine

When I dine, with my attorney Bernie
He buys wine, from the rare imported rack
That’s cause Bernie is a purist
not your polyester tourist
Bernie waves the glass around awhile
then takes a sip and always sends it back

[Chorus:]
Bernie tells me what to do
Bernie always lays it on the line
Bernie says we sue, we sue
Bernie says we sign… we sign.

I admire, my attorney Bernie
I admire, any guy who knows his stuff
Sure we blew a couple ventures
with a counterfeit debenture
But you win a few, you lose a few
and like Bernie says you keep on hanging tough

Thanks to you, my attorney Bernie
Thanks to you, I’m considered well-to-do
Sure I made out like a bandit
Just exactly like you planned it
But like Murray my accountant
told me yesterday, I owe it all to you.

[Chorus]
On the dotted line.

Oddly, Lord Goldsmith, former UK Attorney General, denies complicity (he didn’t eschew that word) in the concealment of facts from an OECD corruption investigation. He claims the head of the Serious Fraud Office did that bit.

Lord Goldsmith, the legal advisor to the UK government took one view of the payment of huge bribes to Prince Bandar of Saudi Arabia, The Corner House took another and the UK High Court agreed with The Corner House.

Lord Goldsmith’s successor is reportedly fighting the good fight, which the Independent coyly reports thus:

The plan caused disquiet in the Cabinet but Baroness Scotland of Asthal, the current Attorney General, fought off suggestions that her powers should be limited.�?

What she is resisting is the curtailment of a claimed “right�? to ensure that no effective investigation and consequently no prosecution of corrupt payments by BAE will take place in the future.

Being Attorney General seems to involve a person in surprising things.

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.”

Ireland’s report card does not read well in the Privacy International “2007 International Privacy Ranking�?:-

Systemic failure to uphold safeguards.

See HERE for the report.

It lists the following remarks on Ireland:

1. No explicit right to privacy in constitution, Supreme Court has seen an implicit right in Article 40.3.1

2. Comprehensive privacy law, with broad exemptions for security, tax, and combating crime; misuse of data is also criminalized

3. Improvements in the law went into effect in 2007

4. High Court imposed safeguards on the disclosure of identity of suspected file-sharers

5. One of the longest data retention regimes in Europe; currently pursuing legal action on this issue to ensure the government has the ability to uphold its retention regime

6. Planning Automatic Number Plate Recognition

7. Extensive data matching and use of unique identifiers

8. While the Garda are prohibited from collecting personal identification numbers from nationals, they may do so in relation to non-EU nationals

9. A public services card is being developed

10. No plans for fingerprints in biometric passports

Digital Rights Ireland report HERE on the ranking and make provision for emailing the Minister for Justice, Equality and Law Reform to query what he is doing on the issues raised.