One of Ireland’s newspapers reputedly aspires to be the Paper of Record. To be serious on the point it ought to have this vainglorious claim beneath its masthead; it does’nt, correctly.

It cannot be such, because of its necessarily accepted constraints. A true Paper of Record would explain. No Irish newspaper explains. They cannot, because to explain is to judge. To judge is, often, to defame. No average newspaper (in Britain or Ireland) can defame persistently and survive.

What the Paper of Record needs is a lexicon of terms which are inaccurately defined, like “cute hoor”. (Click HERE to read its inadequate definition).

Let us insist that it is flattering to say of the Pope, say, that he is a cute hoor. (He is not). We would be free then, with such a lexicon, to say what we think of our public servants; especially those who are Secretaries General of Government Departments, or those who, against reason, are trumpeted (often by themselves) as “independent” in filling some regulatory role or other.

This policy would have drawbacks; immigrants to Ireland would have to learn the conventional meaning of terms and then the real meaning. (It would be important to ensure they cannot sit on juries until they are fully inducted into Irish life. We have no problems with burkas; just meanings). (What would be the run of conversation between an Examiner and an immigrant qualifying for jury duty?).

The policy may have other drawbacks; what if the immigrants don’t know when to stop?

They might start referring to Mr. So-and-so as “a popular barrister in the Law Library”; or Judge So-and-so as “respected”. These terms have, in fact, meanings which are the reverse of their ostensible meaning.

Hmm.

The Paper of Record is written like this.

What is it really saying?

Well, there will be, allegedly, a Judicial Council. What complaints will it receive? Possibly not all it should.

It will not accept complaints which amount to an attack on the outcome of a case, nor should it. It will not accept complaints which are calculated to sap the spirit or determination of the judge. This latter class is of interest. After all, any complaint accepted by the Council would sap the determination of a normal person at the receiveing end of the complaint. In reality, only objective evidence of poor standards of judicial conduct will make it to the Council.

What would that be? It is hard to be dogmatic, but there are some events which, when reported, point almost invariably towards bad judicial behaviour as an explanation. (Oddly, and significantly, these events are often not reported by the media; most people try to get along without conflict).
In principle, a judge who issues a warrant for the arrest of the local Superintendent of the Garda Siochana is wrong. This is not to say that the Superintendent is beyond the law, just that the part played by the Garda Siochana in the normal functioning of the court’s business is supportive and could hardly be otherwise. It is more likely that a judge has become a lunatic than that the police function has become a maverick. (If the police function has become maverick, which can and has happened, the judiciary are, inevitably, complicit in that.)
What of other figures of power? Surely the Chief Executives of State bodies should not be permitted to cock a snook at the courts? Should they not be arrested?

Well, no.

What about legal practitioners? Should disruption of the court by defence counsel not be curbed by a timely arrest?

Well, no.

The actual problem, for the future, is to elicit complaints to the Council from the victims of such judicial behaviour. What Superintendent would not prefer to limit the unpleasantness already experienced and avoid a full blown investigation of an embarrassing clash with a judge? Would he/she receive support from the Commissioner in pursuing a complaint to the Council?

Probably not.

Finally, if there exists a Judicial Review list in the High Court consisting of cases from the work of one judge, is it not time to look at the judge, as well as his errors?

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.

Under the Prosecution of Offences Act 1974 most criminal prosecutions are in the charge of the Director of Public Prosecutions (“DPP”). Some offences are assigned to other legal persons (e.g. Government Ministers) for processing in prosecution by the statute under which they are created.

In fact most criminal prosecutions are brought by members of the Garda Siochana in the name of the DPP.

Before the 1974 act the prosecutor was the Attorney General. Consequently, it was, before 1974, a social fiction imposed on the nation that the decision to prosecute or not to prosecute was taken by the Attorney General without regard for the fact that he was a highly politicised figure, held his post at the behest of the Taoiseach and was the confidante and counsellor of the Governement and its members.

The DPP has no role in the investigation of crime. He (or she) receives a file from the Garda Siochana. The file contains the available evidence. The DPP decides, on the evidence in the file, to prosecute or not to prosecute and whether to prosecute on indictment (in the Circuit Court or Central Criminal Court) or summarily (in the District Court).

Prosecutions on indictment are “contracted out” to barristers in private practice. It is a valuable connection to be on the panel for work coming from the DPP.

Ideally, such a person would have considerable experience in criminal cases. That experience can be gained only when working in defence of prosecutions (otherwise the prosecution of offences would be placed in the hands of inexperienced practitioners and that, it is submitted, ought not to happen).

Experience, it is hoped, should dampen zealotry. It is not the job of a prosecutor to “win”, but to facilitate in doing justice. The steady presentation of the available evidence is the job of the prosecutor. That evidence must be such that there is left no reasonable doubt as to the guilt of the defendant.

In fact, the DPP has issued “Guidelines for Prosecutors”. stressing the need for the prosecutor to act honestly, fairly, impartially and objectively. The Guidelines enjoin the prosecutors to;

“(k) carry out their functions honestly, fairly,
consistently impartially and objectively
and without fear, favour, bias or prejudice;”

This is fine in theory, but the decision to prosecute is often made in circumstances where the complainant, sometimes inevitably, has a private grudge against the accused. It is, in such circumstances more important than ever that the circumstances in which the prosecutor got his or her experience qualifying him or her to get work from the State, should have no bearing on whether the private grudge can be advanced at the expense of the public purse and at no risk to the complainant and great risk to the accused.

The power of mythical thinking has to be experienced to be believed. Currently, in Ireland, nobody is more subject to its power than the judges of the Superior courts. (With the possible exception of the Irish catholic bishops).

Of course the legal profession is subject to the same myths as the judiciary, but that would not long outlast (I hope) the escape of the judiciary from their myths.

The myth of immediate interest is the fairytale that the Dail (Ireland’s lower parliamentary chamber) has any influence in the making or passing of legislation. It does not; legislation is originated by the Cabinet and driven through onto the statute books.

We know who is responsible, therefore, for the requirement that personal injury litigants must swear an Affidavit of Verification asserting the truth of the factual assertions set out in pleadings commenced on their behalf.

Willie O’Dea is in the Cabinet. He says, of his factually incorrect Affidavit, that when he realized his error in his Affidavit, he “put his hands up” and admitted the error. The Cabinet has endorsed this as the correct response. Consequently, no judge can, or should, ask for more of personal injury litigants.

Willie O’Dea’s understanding is not new or peculiar. His Affidavit will have contained the averment:

“I make this affidavit from facts within my own knowledge save where otherwise appears, and where so otherwise appearing I believe the same to be true.”

This statement is about appearances and beliefs. Willie was right to emphasise that his beliefs are the important thing and, of course, we know that appearances can be deceptive, especially to deponents in Affidavits.

That, clearly is what the Cabinet meant and means by the legislation imposing the obligation on personal injury litigants.

Judges take note.

Oddly, nobody has adverted to the role of the Attorney General in the Willie O’Dea kerfuffle. The Attorney General is the lawyer to the Cabinet. He clearly endorsed the view of the Cabinet, did he not? Maybe not. Whether he did or did not is not important. We are not entitled to know and nobody is asking.

But we should see him as he is, warts and all. We should not have to endure the consequence of more mythical thinking by the judiciary (and the Law Library). The Attorney General is down in the arena with everybody else. He fights for his clients. He represents their interests. He should not be accorded the deference he gets from the judiciary and the Law Library. (According to the Bar of Ireland, the Attorney General is the Leader of the Bar).

It is an obligation of an advocate, in cross-examination, to convey to the witness the evidence the advocate intends to adduce to rebut the evidence of the witness. This is called “putting” the case to the witness. The witness will have the presumed opportunity to comment on the “case” of the advocate’s witnesses.

The potential penalty for failure by the advocate to do this is a prohibition by the court on the advocate adducing evidence contradictory of the witness’ evidence. In fact, the advocate will, in such circumstances, concede the failure and ask for leave to, belatedly, “put” the case to the witness or witnesses. This may not be convenient (it usually is not) and may be impossible. It will certainly cost money. The cost will be met by the advocate’s client. The court ensures this by permitting the witness to return, conditional on the advocate consenting to an order against his/her client on the costs.

There are often matters on which the advocate has no evidence to present in rebuttal. That does not preclude the advocate from seeking to challenge the witness on the point or points. However, the advocate is not permitted to leave the witness under the mistaken impression that the challenge is the “putting” of the advocate’s case. To avoid this, the advocate “suggests” to the witness that “…………….”. This formulation is a signal to the witness that the advocate is asking the witness to agree or disagree with the advocate and that the advocate is not going to call rebuttal evidence.

The Courts belong to the public world. The speech (and writing) of the courts is public speech and public writing.

Consequently, we in our office occasionally nominate the late Conor Cruise O’Brien as our preferred witness (on any topic, in any case).

He excelled at public speech and writing. He was wonderfully combative and would not suffer fools gladly. In short, he would have made mincemeat of most counsellors. (That’s a good US word to describe a “trial lawyer”).

His gifts were self confidence and familiarity with the public world. Most witnesses lack both to some degree, especially the latter. They are vulnerable, consequently, to mendacious forms of cross-examination.

Conor Cruise O’Brien himself demonstrates this to some degree. He remarked that he recognised his enemies by their approbation of the ideas of Rousseau. This was a harsh standard. Few people know the source or sources of the ideas they use to prop up their speech, not to speak of their lives. To take everything they might say as defining them perfectly is just wrong. To challenge them to defend the propositions inherent in their speech is also, generally, unfair. After all, Rousseau, among other things, undermined the “Ancien Regime”; he pointed to the fact that social conditions were the product of bad government, not the fault of the populace in misery. These opinions would not generally be considered contentious now (among Social Democrats, anyway). Likewise, they are not rebutted by being paraded for inspection with some other doctrine of Rousseau’s, now, perhaps, considered indefensible.

What is the defining characteristic of real troublemakers is their failure to allude to any form of idea in their speech or writing. They seek instead to give the impression that they are simply representative of a general current view, undefined.

They speak in terms of the title to this post.

England and Wales have taken strange roads in the administration of justice, so it pays to keep an eye on the legal profession there.

What a pleasure then to discover from the new Chairman of the Bar Council [there], in his inaugural address [see it HERE] that, of former Chairmen;

Some were extraordinarily efficient at chairing meetings; some made a point of sending e-mails at 4.30a.m; some were international class gourmands; others had a wonderful oratorical facility.

Are the barristers bonkers? Did they know of the predilection to 4.30 a.m. emails and still vote for that guy? Did they think the gourmand was even going to give them tips on how to get a piece of that lifestyle?

Of course, he may well have done just that, in which case, bring him back!

It is surprising how often the willfulness of lawyers or litigants drives litigation, rather than evidence. We see an instance of this in the “theory” that William Shakespeare did not write the “Shakespearean canon” and that the plays and poems were written by, among others, Francis Bacon. This theory was first advanced by Delia Bacon in a book published in 1857.

The essential element of the book, in explaining its success, was prolixity. A work is prolix if it is too long. It is a general human failing to think that there must be substance to something if it can be written about at length.

At any length, Ms. Bacon’s book was too long.

In this vein, some solicitors and some barristers stand out for an inability to produce short affidavits. They talk all around the problem, avoiding the terms in which the opponent has defined the issues. This may be very good in principle, but it is tiresome in practice and oppressive when the prolix affidavit is sworn in the cause of big institutions, for, in truth, this is a feature of struggles with big institutions; they try to talk the problem away.

The King’s Inns is the only Inn of Court in Ireland. The UK has four; Middle Temple, Inner Temple, Lincoln’s Inn, and Gray’s Inn.

In the King’s Inns the students and Benchers of the Inns eat dinner in the Great Hall of the Inns during term time. Each student diner is supplied with beer and half a bottle of wine (or port). Each Bencher diner is also supplied with those drinks, and brandy or whiskey. In Ireland, every judge of the superior courts is a Bencher of the King’s Inns. In the King’s Inns the last Thursday of each term is “Grand Night”.

The drinks allocation is doubled on “Grand Night”.

The ostensible purpose of the dinners is to follow the tradition by which education was imparted to new barristers; they learned what was what by eating, and conversing, with the practising barristers.

Nowadays, they probably confine themselves to conversation about how bad the Government is, or how fortunate Ireland is to avoid the US experience with the use of the death penalty, as reported HERE by the Guardian.

Of course, by the end of a Grand Night, they may be discussing how good the Cabinet is, (especially the Minister for Finance who is qualified as a barrister) and how the Guardian is not a quality newspaper.