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The, Private, Public Servant

Our Financial Regulator is confident, and has asserted so in public, that he is not at fault in failing to properly regulate the Irish Banks in circumstances where they ultimately needed rescuing by the taxpayers.

For his pains he has been told by (some) elected representatives he ought to resign.

In fact, it is difficult to criticise him. That is not to say he is not open to criticism, just that it is difficult to do so, as was seen in Ryanair Holdings plc v Irish Financial Services Regulatory Authority IEHC.

Ryanair is the largest shareholder in Aer Lingus. The Government is the second largest shareholder. Ryanair discovered Aer Lingus told the Government that it was intent on changing its Heathrow “slots” from Shannon to Belfast. It did not communicate this to Ryanair. In the view of Ryanair this was a case of “market abuse” and a breach of Market Abuse (Directive 2003/6/EC) Regulations 2005 and the Market Abuse Rules and it complained to the Financial Regulator requesting action by it.

The Regulator declined to inform Ryanair what, if anything, it was doing on foot of the complaint.

The court upheld this view of the Regulator.

The court also found the Regulator is not required to make its findings public or give any reasons for its decision.

There would appear to be two consequences to this; there will not be many complaints lodged with the financial Regulator, and, it is difficult to make judgments as to his competence.

Drink Driving: Obligations to certify medical evidence

In considering the requirements of a driver accused of drink driving offences the Supreme Court has decided that the words:

require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement”

mean that a person need only, on request by a Garda officer, provide two specimens of his/her breath and need not supply a third.

Furthermore, if he/she does provide three specimens, the third specimen is not available to ground a prosecution for “driving under the influence”.

Essentially, the Breathalyzer machine for measuring the breath of motorists is not the source of the obligation; the statute (s.13 of the Road Traffic Act, 1994) is.

Compliance with the statute discharges the obligation; meeting the needs of the machine (or its limitations) is not the obligation.

The Supreme court was mindful that the issue involved the interpretation of a penal statute. The Interpretation Act 2005 makes provision for the “purposive” interpretation of legislation, but excludes penal statutes. The law leans against the creation of penal provisions where the statute is not clear.

Section 25 of the Non-Fatal Offences Against the Person Act 1997 provides

25.—(1) In any proceedings for an offence alleging the causing of harm or serious harm to a person, the production of a certificate purporting to be signed by a registered medical practitioner and relating to an examination of that person, shall unless the contrary is proved, be evidence of any fact thereby certified without proof of any signature thereon or that any such signature is that of such practitioner.”

The need for precision in a statute is obvious. Sub-section (2) of Section 25 goes on to provide:

(2) In this section “registered medical practitioner” means a person registered in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act, 1978.”

The average medical practitioner rarely thinks of himself or herself as “a registered medical practitioner”. Nevertheless, it is submitted, that is exactly the description which the practitioner must append to any certificate produced for the purposes of Section 25.

The issue is not:

a) That the person certifying is a doctor (Dr. Ian Paisley and Dr. Martin Mansergh spring to mind as invalid examples);

b) That the person certifying is a medical practitioner (US surgeons from Texas spring to mind as invalid candidates);

The issue is:

a) Is the person certifying, a medical practitioner?

AND

b) Is that person registered “…in the General Register of Medical Practitioners…”

AND

c) Does the Certificate purport to express each of these elements?

If it does not, it is submitted, the certificate is inadmissible as “evidence of any fact thereby certified”.

No Apple for Teacher

It may seem perverse to say it currently, but the world is improving. The world financial system is teetering; the people of Iceland must pay in cash for their needs and we in Ireland must endure cynical lies from people who personally failed in their jobs and wish the consequences to fall elsewhere on victims without power.

Nevertheless, it is true.

We see it in the abolition of an outrageous assumption; that people of power may beat up other people.

Section 24 of the Non-Fatal Offences Against the Person Act 1997 provides;

24.—The rule of law under which teachers are immune from criminal liability in respect of physical chastisement of pupils is hereby abolished.”

My goodness, is it possible we may yet see a disciplinary code and complaints and regulation system for judges?

Opinionated

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.

The Pears

1. The Irish Bar is pear shaped. More business is needed and should be spread better. In Ireland, Defamation law is fairly stable and favours the Plaintiff.

2. This blog has previously (obliquely) adverted HERE to the possibility of “litigation tourism” (that’s the latest derogatory term for “international arbitration”.

3. Captain James T. Kirk has publicly claimed Mr. Sulu is psychotic (See it on Utube HERE)

These circumstances are at once a spur to action and a propitious occasion to use the Bar Council’s “arbitration” facilities for an interesting piece of business.

After all, both Captain Kirk and Mr. Sulu are known and have a reputation of sorts in this jurisdiction.

Should the Chairman of the Bar Council not propose the Bar Council’s premises for a trial of the issue as to whether Captain Kirk has defamed Mr. Sulu and/or whether Mr. Sulu defamed Captain Kirk?

Devaluation

Ireland and Slovakia sent their Justice ministers to the Council of Ministers. Each Minister cast a veto on a vote to introduce Directive 2006/24/EC.

Neither Minister noticed, as Advocate-General Bot now says, that he was attending a Community institution, as opposed to a Union institution.

Each had, of course, read the draft Directive (presumably) and there they saw it was replete with material proper to the Union (and not the Community). It was, in short all about “police and judicial cooperation in criminal matters”. It was expressly proposed by Charles Clarke in the light of the London bombings.
Terrorism, no less.
No common market in terrorism, then.
Right, definitely a matter for Title VI of the EU Treaty.
No, said the Commission Staff. It’s all about a level playing field in the world of commerce.

Ireland and Slovakia have a vote, but not a veto. Done and dusted, then.

What-ho, Advocate-General Bot says the same.

In fact, Directive 2006/24/EC is all about facilitating surveillance by Member governments through the telecoms system. It places a burden on the telecoms and that burden has a cost. But any police activity has a cost, and nobody has yet tried to argue that the cost of a social issue renders it an economic issue.

Bot and the Commission define things by their form, not their substance.

A small state in the EU has no veto if the Commission wishes to deny it a veto.

An institution that loses integrity is a lost cause. When the current Commission is gone from office matters like this will surface and destroy its successor.

A rose by any other name…

When the “Evening Herald” published a report in December 2004 about a certain criminal case it would have been hard to foresee the actual consequence of the publication.

The Director of Public Prosecutions took exception to the contents of the report and made application to the High Court to attach the property of the publisher and commit to prison the editor of the Evening Herald.

The High Court declined to grant the orders sought.

The DPP appealed the decision to the Supreme Court. The respondents made rejoinder citing, inter alia, Section 11 of the Criminal Procedure Act, 1993 which reads:

(1) The right of appeal to the Supreme Court, other than an appeal under s.34 of the Criminal Procedure Act, 1967, from a decision of the Central Criminal Court is hereby abolished.”

A preliminary issue was tried by the Supreme Court on the point as to whether an appeal lay from the High Court to the Supreme Court, given the terms of Section 11 of the 1993 Act.

The term “Central Criminal Court” had its meaning determined by the Courts (Supplemental Provisions) Act 1961. It meant the High Court exercising its criminal jurisdiction.

The High Court exercising the Criminal jurisdiction with which it is invested shall be known as An Phríomh-Chúirt Choiriúil (The Central Criminal Court) and is in this Act referred to as the Central Criminal Court.”

In the proceedings in the High Court, the Court accepted the proceedings were criminal. The Court proceeded to apply the standard of proof appropriate to a criminal charge (beyond a reasonable doubt) to the case against the Evening Herald.

The judgments of the Supreme Court accepted that the trial in the High Court had been a trial of a criminal matter.

However, only one judgment found that Section 11 of Criminal Procedure Act, 1993 had the effect of abolishing the right of appeal in the case to the Supreme Court.

Geoghegan J, part of the majority, addressing the central point, and on the interpretation of S. 11 of the Courts (Supplemental Provisions) Act 1961, stated;

These additional subsections, in my opinion, clearly indicate that what section 11 is dealing with is indictable crime tried by juries in the ordinary way. There is nothing in the section which indicates that there was any intention to change the long established summary procedures (which were intended to deal with urgent situations) in relation to criminal contempt.”

He went on to say;

Where I disagree that contempt proceedings are not sui generis is in relation to the historical procedures which have applied from time immemorial and up to the present in relation to contempt proceedings. In my opinion, that is a respect in which they are quite obviously sui generis. I think that if anything the quotation from Palles C.B. in AG v. Kissane 32 LR Ir 220 referred to in AG v. O’Kelly [1928] I.R. 308 and fully set out in the judgment of Hardiman J. bears out the separate aspects of the contempt jurisdiction even though in so far as it involves fining and imprisoning that jurisdiction as pointed out by the Chief Baron is “essentially criminal”. As Hardiman J. points out, that would mean, for instance, that the criminal standard of proof must apply.”

And;

The fact that accusations (to use a non-legal term) of criminal contempt however serious have been tried summarily by judges over the centuries makes them sui generis in a procedural sense. Indeed there is one aspect of their uniqueness which I have not up to now mentioned. Quite apart from cases of contempt in the face of the court, criminal contempts are offences against the administration of justice itself and are, therefore, offences not exclusively external to the court itself even if the party applying for the attachment or committal is himself offended.”

This extract is a reference to “the elephant in the room”. Because of the net point before the court, the inherent subversion of the jurisdiction of the High Court in contempt matters, by the stance of the Evening Herald, was veiled but real.

The most significant question in the whole matter and one left unanswered was whether the “contempt jurisdiction of the High Court” could or should continue to be exercised as it has in the past.

There is some difficulty in defining the difference between civil contempt and criminal contempt. Nevertheless, that distinction is clearly recognized in Irish law (The State (Commins) v McRann [1977] IR 78). Speaking generally, criminal contempt is an offence of a public nature, civil contempt is one of a private nature, depriving a party to an action of the benefit for which the order was made.

Contempt of court, in court, is a crime (Petty Sessions (Ir). Act 1851 Section 9). There exist two forms of procedure for dealing with contempt; the ordinary criminal procedure of summons or indictment and the summary jurisdiction of the High Court. Referring to the latter, contempt of court, in all its forms, is, according to O’Higgins CJ, simply outside the mainstream of the substantive criminal law (So characterized by the Law Reform Commission Consultation Paper on “Contempt of Court” at p. 208). This view of O’Higgins CJ was obiter (The State (DPP) v Walsh [1981] IR 412) and is to be contrasted with the view of the majority in that case. The summary jurisdiction referred to is one where, of its own motion or otherwise, the High Court may dispose summarily of an offence of contempt of court. In The State (DPP) v Walsh, the Supreme Court, not accepting, on the facts, the respondents’ claim of entitlement to a trial by jury, accepted that the respondents had, prima facie, a right to a trial by jury. If this view is correct Article 30.3 of the Irish Constitution, which provides that all major criminal prosecutions must be prosecuted in the name of the people and at the suit of the Attorney General or some other authorised person (the Director of Public Prosecutions), indicates the correct procedure to adopt in all cases, with the possible exception of contempt in the face of the court.

By contrast, if the view of O’Higgins CJ is correct, the High Court has a formidable power of investigation, adjudication and punishment based, apparently, on the Constitution, without reference to any other institution or element of the State. (This is a proposition impliedly accepted, it appears, by the judgment of Geoghegan J.)

Given the lack of definition on the issue that jurisdiction can be invoked with drastic effect, in civil proceedings.

In the UK the courts have responded to this situation.

In Dean v Dean, ([1987] 1 FLR 517) Dillon LJ stated;

I have no doubt… that the procedure in contempt is of a criminal nature and that the case against the alleged contemnor must be proved to the criminal standard of proof. That was not a matter for decision in Khawaja… the matter rests on long established practice, probably well before the Bramblevale case… and certainly repeated many times since in this court…”

O’Connor J said in P A Thomas & Co. v Mould (P A Thomas & Co. v Mould [1968] 2 QB 913, [1968] 1 AER 963)

where parties seek the power of the court to commit people to prison and deprive them of their liberty there has got to be quite clear certainty about it.”

In Guildford Borough Council v Smith (1993) Times 18th May, Sedley J commented

I am unable to accept that committal on the motion of an antagonist in civil proceedings is today in any admissible sense the private law right of which older dicta suggest it was. To all intents and purposes it is a form of private prosecution”.

Any irregularity in the proceedings on which an attachment is founded will entitle the prisoner to a discharge (In re Holt, 11 Ch. D. 168; Dan. Ch. Pr. 5 ed. 436). A “contemnor” is entitled to apply to court and be heard on applications to discharge the contempt order for irregularity (Contempt of Court etc.: Oswald 2nd Ed. [1895] p. 197.) A “contemnor” is entitled to apply to court and be heard (Hadkinson v Hadkinson [1952] ; X Ltd. v Morgan-Grampian Ltd. [1991] 1AC 1 at 21; [1990] AER 616 at 627) on applications where he is submitting that he is not or should not be treated as being in contempt. (See Gordon v Gordon [1904] P.163 CA)

No person will be held guilty of contempt for breaking an injunction unless the terms of the injunction are themselves clear and unambiguous (Iberian Trust Ltd. v Founders Trust and Investment Co. Ltd. [1932] 2 KB 87 at 95; P A Thomas & Co. v Mould [1968] 2 QB 913, [1968] 1 AER 963).

All contempts are…cleared after an order of the Court discharging the offender from punishment; e.g. if upon the application of the offender for release from custody that release is ordered, he cannot again be punished for the same contempt (Contempt of Court etc.: Oswald 2nd Ed. [1895] p.193).

Pursuant to the European Convention on Human Rights Act 2003 a person accused of contempt is entitled to have Irish law applied in a manner compatible with the State’s obligations under the provisions of the European Convention on Human Rights. In Harman v United Kingdom, (App. No. 10038/82; 38 D.R. 53) the European Commission on Human rights declared admissible a complaint that the applicant’s conviction for contempt was in breach of Article 7 of the European Convention on Human Rights. Under Article 6 (1) it is provided that

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”


Harman v United Kingdom, is authority for the proposition that contempt of court is a criminal offence within the meaning of Article 6 of the European Convention on Human Rights. The European Court of Human rights will inquire whether the tribunal offered guarantees sufficient to exclude such a doubt, (Piersack v Belgium (1982) 5 E.H.R.R. 169 [para, 30]: Incal v Turkey (1998) 29 E.H.R.R. 449 [para. 65]) or whether there are “ascertainable facts” that may raise doubts as to a tribunal’s impartiality.( Hauschildt v Denmark (1989) 12 E.H.R.R. 266 [para, 48]:) In making an assessment of a tribunal’s impartiality, “even appearances may be important”. (Piersack v Belgium (1982) 5 E.H.R.R. 169 [para, 30]: Sramek v Austria (1984) 7 E.H.R.R. 351 [para, 42])

Ex Parte

In Ireland, speaking generally, legal proceedings take the form of a contest. The contest is conducted according to rules, but a contest it is.

Contests do not guarantee proper, fair outcomes but they are superior to the alternative, no hearing to one (or more) party.

The phrase to describe such hearings without a party on notice is “ex parte”.

It refers to a court application brought by one person in the absence of and without representation by, or notification to, other parties.

In principle, such an application is a breach of fair procedures (as secured by the Irish Constitution) (and the European Convention on Human Rights).

Article 6.1 of the Convention reads:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Nevertheless, such applications take place and courts make orders pursuant to them. The saving feature is that they are, to be proper, of a strictly temporary nature. The order will (or aught to) be limited in its effect to a time for the hearing of an application (“interlocutory”) (the other party having been notified of the intended application) to continue or renew the order made ex parte.

The applicant party will have notified the respondent party of the making of the order ex parte (and the order will bind the respondent forthwith) as well as giving notification of the date and time for the making of the “interlocutory” application.

Ex parte applications will, generally, be based on evidence presented in, say, affidavit form. It can happen that, subsequently, the evidence so presented is shown to be false or mistaken or generally unreliable.

For this reason a court has to be very careful in making orders ex parte. The absolute necessity for the making of the order without notification to the respondent must be shown. Considerable damage may be inflicted on the respondent, unfairly, by an order restraining the respondent from acting in some matter or fashion.

In addition, the publication of a record of the ex parte proceedings in court may libel the respondent. Under Section 18 (1) of the Defamation Act 1961, newspaper (and radio) publication of transactions in court are privileged, subject to the report being fair and accurate.

Arguably, to report the contents of the grounding affidavit or other allegation and/or the terms of the order, and to fail to report that an application was made ex parte (with an explanation of the meaning of that phrase) is not fair.

If that argument is accepted the report will lose its privilege and the publisher will be liable for the libel.

The Dog Ate the Homework

In July 2008 the Supreme Court delivered judgment in two separate cases addressing the same point: the need for the Gardai/prosecution to preserve all evidence pertaining to an alleged offence.

That this should emerge twice in the one month, in the Supreme Court is a measure of two things; the frequency with which the Gardai prematurely dispose of evidence and the sclerosis of the criminal prosecution system that it should so stubbornly cling to the determination to prosecute in cases where the accused claims to be disadvantaged in making his/her defence.

In the first case the accused was denied an Order of Prohibition restraining his prosecution HERE whereas in the second the accused was successful HERE. Here the prosecution eventually decided that the case against the accused turned on the fact that the tyres on his vehicle were defective. (He was accused of dangerous driving causing death). Having ascertained that this was the case against him he sought to have the tyres examined by a motor engineer of his choice. He was refused on the ground that the Gardai did not have the tyres any more. It transpired that they had been returned to the owner of the truck being driven by the accused and the owner had destroyed the tyres.

The New Legal Year 2

1. Legal education is expensive. It is not desirable that a person educated for legal work should fail to gain employment. (That statement is too broad; like medical practitioners, some legal practitioners should not be working, but the statement is true generally). The Chairman of the Bar Council of Ireland admits the profession (he means the Bar) is “pear shaped”. By this he means a small proportion of barristers get most of the work (and most of the income). Any expressions of concern from him at this should be taken with a pinch of salt; the Bar Council of Ireland subscribes, and always has, to the Social Darwinist notions of Herbert Spencer. Whatever the legal professional equivalents of thrift, hard work and sound family life are, the Bar Council of Ireland attributes the road to professional success to them.

2. The public is not demanding the Bar Council give up its delusions. No journalist would file a report to the effect that it was, but journalists do report that the public is demanding regulation of the professions. This is not credible. Ordinary people do not express themselves like that; they demand justice and fairness. They do not think that “regulation” delivers justice and fairness and therefore do not make demands for regulation.

3. It is said, or implied, that there is insufficient work for all lawyers. This may be true, but it remains to be demonstrated. A growth in numbers in the legal profession may reveal that, previously there were insufficient numbers of lawyers, rather than show there are now too many. The subject of interest is “work” not “numbers”. It is an unsustainable proposition to say there is not enough work for Irish lawyers. It is true only by reference to a perverse and reactionary definition of “work”. It is predicated on the further dubious proposition that levels of injustice in Ireland are very low. Where there is injustice there is work for lawyers. (Getting paid for that work may be problematic, but that is another issue).

4. Consumers have no confidence in the legal system. The reason for this is that they have little or nothing, as consumers, to do with the legal system. (A “consumer” is a purchaser of a commercial product or service). Lawyers work for consumers, who become their clients, if the consumer has a claim arising from a defective product or service. Consumers are a vanishingly small cohort in lawyers’ clients. The main reason for this is not that Irish products and services are top-notch; it is that the value of the claim does not usually warrant the investment of money needed to vindicate the disappointed consumer.

5. It may be true (who knows?) that clients have low levels of confidence in the legal system. Perhaps they are sceptical of the likelihood of being treated justly in an Irish court, based on newspaper reports of judgments from time to time. They may even have little or no confidence in lawyers, having gone through a bruising family law case. It cannot be true, however, that they have little or no confidence in their own lawyer; they hired him or her and would not have done so if they positively had no confidence in him or her. In any event it is probably misleading to use the term “confidence” in this context, something many clients would probably recognize intuitively. The emotion felt is probably closer to hope than anything else, or, in the case of very inexperienced clients, expectation. “Confidence” is something based on past experience; most clients have little experience of the legal system. What of a client accused of the offence of dangerous driving? How can his/her emotional state be said to be one of “confidence”, when the most positive outcome may, to the knowledge of the client, be one where public humiliation is attenuated by the lawyer speaking for the client, rather than snatching an acquittal from the situation? Nobody, save the more immature readers of Erle Stanley Gardner, expects a lawyer to have only innocent persons for clients.

6. The tribunals, each and every one of them, came into existence because of profound failures of the political system. The level of payment to the lawyers in the tribunals was a direct result of the influence of politics on the legal world and not the reverse. The various Attorneys General (political appointees par excellence) were at the heart of the fixing of payment to those lawyers.

7. The legal profession, both branches, prides itself, (often without justification, but sometimes correctly) on adjusting its fees to the personal situation of the client. What is wrong with that process? If a poor person is not charged a commercial rate, who is to complain? If a rich person is charged a rate commensurate with his/her ability to pay, his/her complaints are without foundation. Citing as authority, on the subject of fees, what some barrister says of solicitors (or vice versa) is the journalistic equivalent of making a point by telling a “Paddy the Irishman, Paddy the Englishman…” joke.

8. The customers of the big city firms of solicitors are sophisticated users of legal services. They do not need external protection. The people who need protection are the employed (and junior partners, if such they be) solicitors of the big firms. Hand-wringing about fee padding is just that; hand-wringing. To say this, is not to condone fee padding, but the causes and the persons effectively responsible should be defined correctly. A workplace that measures the value of work, by reference only to income, is a bad workplace. The “owners” of the practice are answerable for that. Such persons do not have to institute fee padding themselves to get the benefit of it.

9. The “general public” has no opinion on the remuneration of lawyers. It is a political myth that it does. It is one of many political hobbyhorses generated to provide a subject for “public” debate to raise a political profile or deflect attention from real political failures or shortcomings.

10. Competition in the delivery of legal services is not necessarily a good thing. Indeed, “competition” in any field is not necessarily good. Who wants economic competition in the delivery of medical services? Some services should not be measured by the cost of the service. They should be measured by the quality. Unthinking economic notions like “competition” can imply a race to the bottom.

11. What economic commentator will experience the conduct and outcome of major litigation and suggest it should be judged on an “economic” perspective? Few. Litigation more closely resembles a military operation. In 1863, in the course of the US Civil War, General U. S. Grant telegraphed Colonel Murphy of the US Federal Army at Holly Springs telling him to post more guards. The Colonel went to bed, neglecting to do so. The Confederates, that night, burned Federal stores at Holly Springs to the then value of $4,000,000. A failure like that is not an economic issue; it is a personal failure. There are many current Murphys who ought to, but do not, face court martial as Colonel Murphy rightly did.

12. Even the “economists” like Mr. Charlie McCreevy and Ms. Neelie Kroes adjust themselves (quiet differently in the case of those individuals) to reality. Something can be theoretically anathema but practically acceptable to Ms. Kroes, it seems. So much for theory.

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