Judge McMahon travelled to Lissadell to see the subject of the dispute between the owners and Sligo County Council about “public rights of way” on the estate.

From an evidential point of view this is equivalent to looking at the murder weapon in a criminal trial, or looking at a large machine which cannot be brought to court with convenience.

It is normal for the parties to the dispute to be given the opportunity to accompany the judge (or the jury, as the case may be) with legal advisors in the “viewing” by the finder of fact.

The reason for this is to ensure the adoption of fair procedures and to preclude the possibility of some novel (and irrelevant) element, unseen and unknown by, and to, the parties colouring the judge’s perception and opinion.

There is an argument to be made that the broad statement in the blog post “Slip and Fall” acknowledging impunity for public authorities for non-feasance is wrong.

Under the European Convention on Human Rights, persons have the following rights;

Article 8: The right to respect for home (private and family life)
Article 2: the Right to life;
The First Protocol, Article 1: the right to protection of property.

Under the European Convention on Human Rights Act 2003, the Courts are obliged to interpret Irish law to conform with the Convention.

In Guerra v Italy (1998) 26 EHRR 357, toxic emissions from a factory injured many nearby residents and killed some. The ECtHR found that the absence of information on the effects of living near the factory breached the Applicants’ right to respect for home under Article 8 of the Convention.

Consequently, where a failure by public authority would result in a breach of an Article of the Convention, it would be incumbent on the authority to act and the authority would be liable in those circumstances for any failure to so act.

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.

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.

Some law cases are definitely more interesting than others. In 1604 Mr. Belott married Ms. Mountjoy. Her dad promised Mr. Belott a payment in return for the marriage.

That payment, it appears, was not made.

In 1612 the case of Belott v Mountjoy came before the court. Mr. Belott felt that Mr. Mountjoy had shortchanged him.

Interestingly, a witness in the case had acted as matchmaker and, presumably, knew the details of the terms of the settlement.

That witness was William Shakespeare, (“Wilm. Shaksp.”) (Shakspear?). Unfortunately, he could not remember the details of the settlement or dowry. Crucially, he did confirm there had been agreement on a settlement.

Shakespeare had been a lodger in the Mountjoy household in 1604. Belott was the Mountjoy apprentice. How he found time to act as matchmaker is a mystery; perhaps his role extended to a conversation over an evening meal after his return from the theatre. Shakespeare’s life involved acting (the ghost of Hamlet’s father, in Hamlet, for instance), playwriting and, it is believed, directing. The theatres of the time presented five or six plays a week; so Shakespeare was working, probably, six days a week as an actor, writing plays and learning his lines for the forthcoming productions.

When the Belott v Mountjoy case came on for hearing, Shakespeare was in retirement in Stratford on Avon. The court was in London. One wonders about the difficulties confronting Belott in the serving of the subpoena on Shakespeare and what playwriting these events might have produced, but for the retirement of the witness!

This blog is settled in the view that the current fashion of requiring minimal discovery of records/documentation in the course of litigation is mistaken.

That aside, there is a problem in the handling of documentation, in the conduct of litigation. After all, what does one do with the material discovered?

Well, litigation, like chess, is about the endgame.

If a piece of paper, or other record, has come to light and it conclusively supports, or rebuts, the contentions of a party, it is essential that it should be introduced to the judge as evidence.

So, too, should documentation that, while no element of it is decisive, shows a pattern of behaviour, or system, more consistent with the contentions of one party rather than the other.

How is paper introduced as evidence? By proving it.

Some unusual bits of paper prove themselves (Ordnance survey maps, for instance). All other bits must be proved particularly.

This requirement tends to make a bottlekneck for paper in the course of trial.

That’s the way it should be.

The alternative is bad. The alternative consists of the witness (or counsel) handing in a box or boxes of paper to the judge, with some claim that it is relevant, whereupon most, if not all, will not be referred to again during the course of the trial.

Assume then that the judge indicates his/her intention to give a reserved judgment. Assume also that the judge reads all the papers handed in. Assume also that the judge adopts a bad habit of doing his/her own research and finds some case or cases not mentioned by either party in the course of the trial.

The predictable outcome will be a judgment invoking law and principles of law not mentioned in the trial and referring to paper upon which the witnesses or most of them will have had no opportunity to make comment.

This, to put it at its lowest, is undesirable.

This is the problem inherent in the modern notion of “judicial case management”. There is a limit to the hands-on role a judge may adopt. Otherwise why not simply write to the court, submitting one’s case in writing and asking for a favourable judgment? Does the judge not know the law? Can the judge not read?

Well the judge does and the judge can, but that is not sufficient.

Litigants are not satisfied with a formal process; they want justice.

I mentioned HERE the likelihood of CPD courses on the Criminal Justice (Surveillance) Bill 2009.

The Bill has been heavily marketed as a method of securing convictions for “organised crime”. This idea of organised crime (as an offence) is to be found in the Criminal Justice Act 2006. There have been no convictions under Section 72 of that Act, to date. It reads:

72.— (1) A person who, for the purpose of enhancing the ability of a criminal organisation to commit or facilitate—

(a) a serious offence in the State, or

(b) in a place outside the State, a serious offence under the law of that place where the act constituting the offence would, if done in the State, constitute a serious offence,

knowingly, by act—

(i) in a case to which paragraph (a) applies, whether done in or outside the State, and

(ii) in a case to which paragraph (b) applies, done in the State, on board an Irish ship or on an aircraft registered in the State,

participates in or contributes to any activity of the organisation is guilty of an offence.”

If nothing further were to be done it would be impossible to get a conviction under Section 72. The burden of proof under the Section would be formidable. The prosecutor, in terms of the Section, would have to prove;

A) The accused committed an act;

B) The accused “knowingly” so acted “for the purpose of enhancing the ability…”;

C) The act of the accused “participates in or contributes to…”

D) “any activity…” directed towards committing or facilitating…;

E) a “serious offence…”

In addition, the prosecutor would have to prove that all of this was connected with the activities of a “criminal organisation”. That’s defined as:

“ criminal organisation ” means a structured group, however organised, that—

(a) is composed of 3 or more persons acting in concert,

(b) is established over a period of time,

(c) has as its main purpose or main activity the commission or facilitation of one or more serious offences in order to obtain, directly or indirectly, a financial or other material benefit;”

The mind boggles at the difficulties this throws up, not to speak of the ironies to be unfolded from it. However, to make life easier for prosecutors Section 72 goes on in sub-section (2);

“(2) In proceedings for an offence under subsection (1) , it shall not be necessary for the prosecution to prove that—

(a) the criminal organisation concerned actually committed a serious offence in the State or a serious offence under the law of a place outside the State where the act constituting the offence would, if done in the State, constitute a serious offence, as the case may be,

(b) the participation or contribution of the person concerned actually enhanced the ability of the criminal organisation concerned to commit or facilitate the offence concerned, or

(c) the person concerned knew the specific nature of any offence that may have been committed or facilitated by the criminal organisation concerned.”

It is doubtful that this really helps the prosecutor, particularly where paragraph (c) of sub-section (2) implies the necessity of there having been the actual commission of an offence.

All of this is the context for the introduction of the Criminal Justice (Surveillance) Bill of which there will be more here in due course.

However, what springs to mind, as a contrast to all this, is RICO, one response to “organized crime”.

RICO has the merit of escaping (or not) from its authors’ intentions and is a flexible response to crime at every level of society.

Somehow, one doubts that Part 7 of the Criminal Justice Act 2006 or the Criminal Justice (Surveillance) Bill are directed to suppressing Irish criminal conspiracies per se.

In Ireland, (and the UK) the listener is required to know what is meant in addition to what is said. It is the intention that matters, not the statement.

What has been happening in Ireland, after all in the case of the McCracken, Moriarty, Mahon, and Morris Tribunals, but the investigation of criminal conspiracies?

Will we ever see Part 7 of the Criminal Justice Act 2006 or the Criminal Justice (Surveillance) Bill deployed against conspiracies like those?

Doubtful.

My post on audio recordings in Garda custody is about establishing the grounds for the making of adverse inferences at trial, not about the procedure for interrogation in Garda custody.

Under Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007), it is open to a court to make an adverse inference (of guilt; what else?) arising from …the failure of an accused to mention… [“…any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be…]

Consider what this implies; it implies that, after the interrogation is over, the Gardai encounter the articulated defence of the accused and feel (presumably) that it is not credible, given the failure of the accused to refer to that defence during the interrogation. They can only ask the court to effectively, take the same view, if the conditions set out in Section 19A of the Criminal Justice Act 1984 (as inserted) are met. One of those conditions is that the interrogation is recorded electronically, or, with the permission in writing of the accused, recorded other than electronically.

Hence, to lay the ground for asking the court to make the adverse inference the Gardai must get the consent in writing of the suspect/accused to non-electronic recording where that form of recording is not available, or is not being used.

Under Section 154 of the Planning and Development Act 2000 a planning authority may issue an enforcement notice on an owner or occupier of land in relation to any development.

The matters to be specified in the notice are set out in Section 154. Suffice to say that, pursuant to Section 154 (8), failure to comply with the notice is a criminal offence.

This is very strange.

Firstly, the Planning and Development Act 2000 places no express obligation on the prosecution to prove that the “development” is unauthorised. Development, whether of use or of works, is not unauthorised unless it post-dates 1st October 1964.

Secondly, the Planning and Development Act 2000 makes no express provision for some obvious defences to any requirement that might be made in a notice, such as;

that the “development” is authorised;

that the “development” is not unauthorised;

that the “development” is exempted development:

In short, the offence seems not to be related to planning (sustainable or otherwise), just a failure to follow what may be a caprice of a planning authority official.

If that is true, it raises constitutional issues in any prosecution under Section 154 (8).

“Seems”, in this context is important. It is not inevitable that the offence actually constitute a failure to comply with a notice simpliciter.

The District Court (the offence is triable summarily) is at liberty to interpret the the Section and the evidential burden on the prosecution to avoid working a breach of the constitution. Under the European Convention on Human Rights Act 2003, there is an obligation on Irish courts to interpret legislation to avoid breaches of the European Convention on Human Rights (in this particular instance Article 6 thereof). It is regularly asserted that the Irish constitution already embodies standards equal to if not greater than the European Convention on Human Rights. A prosecution under Section 154 (8) is the ideal occasion to show that this is true.