summons

When the Food Safety Authority of Ireland tested a range of Irish frozen beef burgers, purchased from Irish and British supermarkets, it found evidence that they contained horse meat and/or pig meat.

It found that the source of the offending meat was the respective manufacturer of the beef burger. In the case of Silvercrest Foods Ltd. almost 30% of one burger constituted horse meat.

These facts were sufficient evidence to prosecute the various manufacturers (and the retailers).

Prosecutions are necessary because of the overriding objective of securing the safety of consumer food in the EU. If you are a manufacturer it is easy to ensure the safety of the food produced in your factory; you make sure that your sources are safe.If you fail to do this you should be prosecuted.

Under EU law Ireland is obliged to prosecute for breaches of EU law and the known facts were evidence of breaches of EU law and Irish law. The person responsible for ensuring there are prosecutions is the Minister for Agriculture and Food. That means there will be no prosecutions because he has shown he does not agree with the law.

He thinks that negligence is insufficient to get a conviction or even to bring a prosecution. He implies that proving knowing and deliberate adulteration of food is what is required to bring a prosecution and get a conviction but this is not and should not, be the case.

His is the latest in a long line of Irish failures. Ireland is an extreme example of a noted problem; regulatory capture. When a regulated industry (such as banking) exerts sufficient influence, its regulator becomes its champion and defender instead of its regulator.

Here we go again.

Suppose a plaintiff fails to comply with the pleading requirements of Section 10 of The Civil Liability and Courts Act 2004. What will happen to the plaintiff or his/her claim? The Section provides as follows;

“(3) Where a plaintiff fails to comply with this section—

a)              the court may—

(i)             direct that the action shall not proceed any further until the plaintiff complies with such conditions as the court may specify, or

(ii)           where it considers that the interests of justice so require, dismiss the plaintiff’s action,

and

b)             the court shall take such failure into account when deciding whether to make an order as to the payment of the costs of the personal injuries action concerned, or the amount of such costs.

(4) Where a plaintiff fails to comply with this section, the court hearing the personal injuries action concerned may draw such inferences from the failure as appear proper.”

These are very strange ideas. Remember that the plaintiff has pleaded the essentials of the claim; that the plaintiff was injured; that the injury is the fault of the defendant.

Prior to 2004, for not less than fifty years, plaintiffs were not required to give any further details on the issue of proceedings. The plaintiff was, however, obliged to give the details to the defendant before the trial. It was, (and still is), in the plaintiff’s interest to find out those details and to communicate them to the defendant. Only when the defendant knows these things can the defendant readily agree to settle the claim. Settlement is the best outcome of personal injury litigation; there are insufficient judges to adjudicate on all or most claims for personal injury.

Section 10 has changed the focus. It has done this by changing the tone. Take the subject of injury. How should an injury be pleaded? Is it sufficient to say that the plaintiff’s right leg was broken? Or that he suffered a burn on his right arm?

The answer might be yes, but in practice the pleading of these injuries will rely upon the description given in an available medical report. So, the exact site of a break in an arm will be pleaded (because doctors mention these things) and the form and degree of the break will be pleaded. So, too, for the burn; where it is and how deep and how long it took to heal will be pleaded.

But suppose some of these things are not yet known? Then there is a temporary insufficiency of pleading. Time will usually cure this and the plaintiff will become enabled to plead in full.

Section 10 will have none of this. How dare the plaintiff issue proceedings when full details are not pleaded?

Look at the sanctions for this attitude problem. The judge can prevent the case from proceeding until the plaintiff conforms to the new standard. Or, the court can dismiss the claim. Or the plaintiff’s entitlement to costs may be imperiled. Or the court can be portrayed as having a huffy attitude, at trial, to plaintiffs whose pleading does not meet the standard the court might be persuaded to adopt on these questions.

These disputes will emerge long before the trial. They will, usually, emerge before the close of pleadings.

What does that mean?

Currently, it means that the pleadings are closed when the defendant serves a defence.

So, the defendant will harass the plaintiff so that the defendant’s obligation to serve a defence can be evaded.

Section 10 of The Civil Liability and Courts Act 2004 has the appearance of being reasonable, but the references to the address and occupation of the defendant are telling. The obligation to plead these is conditional on the plaintiff knowing them. Thus, if they are not pleaded, the defendant knows that the plaintiff does not know them. Of course, given that the Personal Injury Summons is directed to the defendant, it is surely odd that a statute requires a plaintiff to demonstrate knowledge of the defendant. There are practical reasons why the plaintiff needs to know the address of the defendant, but to require that it is pleaded is not to assist the plaintiff or, even, the defendant; he/she knows already.

Then, the plaintiff must plead the injuries suffered. This is fine, if the plaintiff knows what those injuries are. Sometimes, the plaintiff does not know all the injuries, or is in search of a prognosis, implying that he/she cannot fully describe the injuries just yet. Section 10 implies that the plaintiff cannot issue proceedings until these things are fully known.

Then, the plaintiff must plead full particulars of “all items of special damage in respect of which the plaintiff is making a claim”. What does “all” mean? Well, it surely implies that claims not included in the pleading in the Summons are either being waived or cannot later be made.

Legal practitioners have a solution to that; plead every conceivable item of loss and, later, waive those that do not apply. Section 10 prevents this; it requires that “full” particulars be pleaded. This implies that the plaintiff cannot issue proceedings until all these losses are accrued and known, or, as mentioned, that items not pleaded cannot later be claimed.

Then, the plaintiff must plead full particulars of “the acts of the defendant constituting the said wrong and the circumstances relating to the commission of the said wrong”. Before 2004, plaintiffs had such an obligation and had to discharge it. But that obligation pertained to the trial of the action, not the issuing of proceedings. Section 10, in effect, is suggesting that, nowadays, a plaintiff cannot issue proceedings until he/she is ready to bring the case to trial. Often, a plaintiff will have need of the reports of experts before he/she can meet the obligation imposed by Section 10. The obligation implies that the plaintiff’s investigation of the event in which he/she was injured is now complete and full, before the issuing of proceedings. This is an ideal, but often impossible to achieve. Indeed, court procedures exist to allow the plaintiff to commence or continue investigations after the issue of proceedings, by the process of “discovery”, for instance. Section 10 undermines this approach to litigation. But Section 10 only applies to plaintiffs suffering personal injury; all other plaintiffs are not so burdened.

Finally, the Section, just to be sure, to be sure, demands that the plaintiff plead full particulars of “each instance of negligence by the defendant”. This is surely redundant; a plaintiff who has successfully pleaded “the acts of the defendant constituting the said wrong …” has already met this obligation.

Bear in mind that the plaintiff must overcome these obstacles within two years of the cause of action; i.e. the accident in which he/she was injured.

For some personal injury victims, the Personal Injuries Assessment Board (“PIAB”) is irrelevant. They are the victims of “medical negligence”, a term of wide meaning.

That aside, speaking broadly, it is necessary to submit an application to PIAB. For the person who caused the injury, it is not compulsory to submit to PIAB. If the defendant does not submit, an authorisation issues from PIAB. (This allows the victim to issue proceedings in court).

If the defendant does submit, PIAB will then, normally, make an assessment. Either the victim or the defendant may decline to accept the assessment. If either (or both) decline to accept, an authorisation issues from PIAB, allowing the victim to issue proceedings in court.

Now the victim and the victim’s solicitor will decide the court in which to issue proceedings. This is the jurisdiction issue. It relates to the amount of compensation expected, and the relevant geography. If a sum of approximately €6,300 or less will be satisfactory, proceedings may issue in the District Court area where the accident happened or the defendant resides.  If a sum of approximately €38,000 or less will be satisfactory, proceedings may issue in the Circuit Court area where the accident happened or the defendant resides. Otherwise, proceedings are issued in the High Court in Dublin.

Proceedings are issued by lodging a “Personal Injury Summons” in the court office. The court returns a sealed copy for use and service by the plaintiff.

To be useful, on issuing the proceedings, it is essential that the Statute of Limitations period not have expired. That period, for personal injury, is two years, measured from the date of the cause of action. Generally, there is no difficulty ascertaining the date of the accrual of the cause of action. For a road accident victim, say, it is the date of the accident. Even so, sometimes the time does not begin to run. It does not begin to run until the victim knows (or could reasonably know) that an injury has been sustained and/or knows (or could reasonably know) the identity of the defendant. This implies that a victim must make active inquiries about his or her health and/or the cause of that ill health (if there are symptoms of injury).

For PIAB  applicants, time stops running after PIAB issues a receipt for a valid PIAB application. (A valid PIAB application is one which is not a “medical negligence” claim). It starts running again when PIAB issues the authorisation (with an extra six months added to the two years). For all other victims, time does not get extended. (This includes victims whose claim is for “medical negligence”. For them, time keeps running even after the erroneous lodgment of a claim in PIAB).

The law relating to the arrest of suspects is complex.

Every arrest must be in accordance with law. Members of the Garda Síochána have extensive powers of arrest, but do not have a right to arrest on a whim, or for a wrongful purpose.

Members of the public have a power of arrest in some circumstances, but this post does not deal with that.

It is a criminal offence to resist a lawful arrest, but not an unlawful arrest. Some unlawful arrests are plainly that; more often than not they are seen to be unlawful with hindsight.

Therefore, as a practical matter, even if a person believes that his/her arrest is unlawful, it is wiser to submit and challenge the arrest and its consequences later. (See Section 18 (6) Non-Fatal Offences against the Person Act 1997).

The general purpose of an arrest is to charge the suspect with a crime and bring him/her before the courts.

In Ireland, there are exceptions to this. (Strictly, these exceptions should be thought of as “detention” rather than “arrest”).

Under Section 30 of the Offences against the State Act 1939 (as amended), a Garda may arrest a suspect (whom it is suspected has committed one or more of certain offences) and take him/her to a Garda Station for questioning.

Likewise, under Section 4 of the Criminal Justice Act 1984 and Section 2 of the Criminal Justice (Drug Trafficking) Act 1996 a Garda may arrest a suspect and take him/her to a Garda station.

These detentions are subject to rules and regulations. Commonly, suspects are released without charge after such detentions; but equally commonly the suspect is charged with an offence and brought before a court.

The charging document may be a charge sheet or it may be a summons. The charge sheet will be delivered to the suspect at the Garda station whereas the summons will be delivered later when it issues from the District court.

A person charged on a charge sheet needs bail; no bail is needed on a summons.

The Gardaí may give bail or the court may determine the bail when the accused appears there.

(This bail will be a personal bail; a promise to pay a sum of money if default in appearance in court occurs, or it may be that AND a similar promise from a third party). The Irish bail system is unlike the system in the USA.

Equally unlike the USA, in Ireland we do not have “the Perp Walk”.

Regrettably, power drives the Judicial system, as it does the Executive. How else to explain the case of Mr. Goldstein?

Mr. Goldstein was (is) an Orthodox jew in Manchester. He wrote a cheque in favour of his business colleague in London, to whom he owed money. He had owed the money for some time and was, on one valid view, making payment late.

He put the cheque in an envelope. He also put in some table salt. The salt was a coded joke and was a reference to the fact that the payment was late.

In the postal system the envelope leaked; the leaking salt was discovered by a worker who handled it. This frightened the worker whose managers closed the postal unit until the nature of the salt was discovered. (Inspection revealed its nature). (Emphasis was placed on the fact that a system of a daily double postal delivery was reduced to one delivery that day, discommoding the public).

Mr. Goldstein was charged on indictment and was convicted. Conviction was affirmed in the Court of Appeal.

Luckily for Mr. Goldstein he had two assets; the will and opportunity to keep fighting and a good lawyer.

He appealed to the House of Lords where he was vindicated and his conviction was quashed.

The judgment is of interest to lawyers; it clarifies the crime of public nuisance. But the court went further. It pointed out that, on the known facts, Mr. Goldstein had committed no crime.

A calm, fair-minded person ought to have been able to see this; Mr. Goldstein had no Mens Rea,
no malicious intent. Why enclose a piece of paper with your name on it, in the envelope with the salt, if the intention was to cause a scare? (Of course, it was not incumbent on Mr. Goldstein to prove he had no such intent; it was for the prosecution to prove he did).

To explain what happened to Mr. Goldstein it is necessary to see the legal system as, in single instances, (that is, the individual cases) an expression of a process. The process is driven by power. The people who start and operate the process want it to have an outcome. The process can bring about the equivalent of “type-casting�? in the film and theatrical worlds. An actor who plays the villain finds only villainous roles are offered to him/her. In a criminal trial the role of the villain is always allocated to the accused, it seems.

The system (the operators) wants a conviction more than it wants an acquittal.

Something new HERE and further evidence of deficiency in my legal education.

However, I look forward to the case where I inform a court that my client will so plead.

The House of Lords has just endorsed the decision in R v Morais (1988) 87 Cr App R 9. In that case the judge had given leave to prefer a voluntary bill against the accused, who was arraigned on six counts in the bill. The accused pleaded not guilty, was convicted on four counts and was sentenced. Relying on the Administration of Justice (Miscellaneous Provisions) Act 1933, he appealed on the ground that the bill had never been signed by the proper officer: without a signature, he argued, there could be no indictment, and without an indictment there could be no valid trial.

In Morais the Court of Appeal agreed with the submission. The court endorsed a statement of Peter Pain J in an earlier case:

It seems to us that it is impossible for a criminal trial to start without there being a valid indictment to which the defendant can plead, and that the bill of indictment does not become an indictment until it is signed”.

In Ireland the relevant legislation is the Criminal Justice (Administration) Act 1924. It mandates the form of the indictment in the Act and in the First Schedule to the Act. The choice of indictment is limited to the charges expressed or implied in the documents known as the “Book of Evidence�? served on the accused.

The 1924 Act permits amendment of an indictment before the conclusion of the trial but neither this power nor the restriction on the defence to take issue with the form of the indictment will avail if the situation in Morais is present, for the reason that, until it is signed, the indictment is not an indictment.

The date in the title is the date of the dissolution of the Red Headed League, as recorded by Dr. Watson in his almost eponymous account (“the Adventure of the Red Headed League�?).

What I had forgotten is that the landlord of 7 Pope’s Court Fleet St., the HQ of the League, recorded his tenant as being a solicitor, William Morris.

Morris was, probably, a counterfeit solicitor. Even so, as remarked by Dr. Watson’s companion, he had benefitted Mr. Wilson, the red-headed pensioner by £30, and a deep knowledge of every subject coming under the letter “A” in the Encyclopaedia Britannica, before abruptly dissolving the League and ending Mr. Wilson’s income.

On these facts, Holmes had difficulty discovering the meaning of the events.

As far as I have heard, it is impossible for me to say whether the present case is an instance of crime or not, but the course of events is certainly among the most singular that I have ever listened to.�?

Watson’s account is, thereafter, the account of the search for the meaning of the events, which, of course, was conditioned by the intentions of Morris, the solicitor, and his companions. That account should not be looked for here; it is better recorded by Watson.

It is currently unchallenged, in Ireland, that an accused person is entitled to access to the evidence, prior to trial, that the State intends to adduce against him/her at trial.

In Ireland, for many years, the procedure to secure that entitlement for the accused was set out in the Criminal Procedure Act 1967. That Act conferred a role on the District Court, in indictable cases, in deciding whether to send a person forward for trial to the Circuit Court or not; the District Justice had to be satisfied that there was a sufficient case to put the accused on trial before sending the accused forward.

The Book of Evidence, which the State was required to serve on the accused, was the main basis for the judgment to be made by the District Justice.

The Criminal Justice Act 1999 changed that position.

The obligation to serve the Book of Evidence persists, but the District Justice has lost his/her assessment role. That assessment now rests with the Circuit Court. The 1999 Act made provision in Section 9 for application to be made to the Circuit Court:

(1) At any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused.

(2) Notice of an application under subsection (1) shall be given to the prosecutor not less than fourteen days before the date on which the application is due to be heard.

(3) The trial court may, in the interests of justice, determine that less than 14 days notice of an application under subsection (1) may be given to the prosecutor.

(4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.

In Cruise v Judge O’Donnell the accused was charged with drugs offences. He was facing a minimum sentence of ten years on conviction. His lawyers believed the prosecution case was defective, in that the search warrant on foot of which the evidence against the accused was obtained was defective and invalid (and consequently the evidence located on foot of the warrant was unlawfully obtained and inadmissible). The accused applied to Court under Section 9 (1). The Notice to the prosecution did not refer to the basis for the application. The prosecution protested that they did not know on what basis the accused was making the application. The Court directed the accused to reveal to the prosecution the basis for the application in the Notice.

The accused applied to the High Court on Judicial Review to reverse this and lost.

The Director of Public Prosecutions opposed the propositions of the accused, arguing that the meaning of Section 9 did not allow the accused to make a case to strike out the charges against him before the Circuit Court judge, in the absence of the calling on for trial of the proceedings against the accused.

The accused appealed to the Supreme Court and won.

The Supreme Court confirmed that an accused person has no obligation to assist the prosecution. Furthermore there was nothing in the 1999 Act indicating the Oireachtas
intended such an obligation by requiring the accused to conform to “case management�? directions of the Circuit Court Judge. As the Supreme Court acknowledged, many defences will consequently be canvassed in this application procedure in the future, without the need for the empanelling of a jury and/or the scheduling of witnesses and at much greater speed than if the accused was compelled to await the listing of the trial.