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Continuous Professional Development

Continuous Professional Development (“CPDâ€?) is jargon for an obvious fact; we need to know what is going on around us, professionally speaking.

Until recently, for the members of the Law Library, CPD consisted of drinking coffee in the barristers’ dining room in the Four Courts. Members of the public and/or solicitors were not, and are not permitted access to it.

There are now too many barristers for that “systemâ€? to work correctly and so the Bar, like solicitors, must take more formal steps to keep everybody, at least notionally, abreast of developments.

Barristers and solicitors must show, to their respective regulators, that they have attended a minimum number of hours at lectures and/or seminars during the year.

In the real world, the best form of CPD is to do. Do the work and you know more than any lecture can ever convey.

Formal CPD suffers another drawback; it is not politically correct to present a lecture entitled “What’s wrong with Irish Judicial Review?â€? and yet there is great need for such a presentation.

CPD suffers from the same dilemma that confronts the Minister for Law Reform. Before you can reform the law, you need to know what is wrong with it. Officially, there is never anything wrong with the law. Therefore, the Minister for Law Reform has no work to do; something so true, the non-existent work has been given to the Law Reform Commission.

CPD, in short, should be cutting edge. But it never is.

We could benefit from a seminar on the legal status of the EU Charter of Fundamental Rights. But we won’t get one, because Mr. Sarkozy would not agree, if he were asked, that there is any legal status to the Charter. We know this because Ireland was recently informed that the Charter would be conferred with legal significance if the Lisbon Treaty was adopted. It was not; therefore it does not.

QED.

The Garda Síochána Guide

The latest edition of the Garda Guide has been published. The Guide is a compendium of the Criminal law of Ireland.

It is an invaluable book. Alas, it is no longer a book; it consists of two heavy volumes of loose leaf pages, capable of being updated. It is also available on CD.

I was unable to answer the following question by referring to the Guide; what offence, if any, would be committed by the Dog Poop Girl if she were to visit Dublin’s Luas or Dart?

Is this a fair test of the Guide? I don’t think so.

I should be satisfied to discover that if she were to sing a profane, indecent or obscene song or ballad to the annoyance of the passengers, she would commit an offence under Section 14 (12) of the Dublin Police Act 1842 (5 and 6 Vic. C. 24).

According to the Guide, she could be arrested, without warrant, by any Garda, conditional on her committing the offence in view of the Garda.

It would be a feckless offender indeed who would persist in singing despite seeing the Garda (a Garda is in the view of an offender, if the offender is in the view of the Garda?).

The Guide is the kind of production that can be judged only with considerable use and time. It will get the benefit of both; all previous editions have been best-sellers and the time lag between editions has been always too long.

PIAB complete

In May 2008 the Supreme Court affirmed a decision of the High Court as to the applicability of the Personal Injuries Assessment Board Act 2003 (“the 2003 Actâ€?) to actions against the Motor Insurers’ Bureau of Ireland (“MIBIâ€?).

Under the 2003 Act an injured person is obliged to apply to the Personal Injuries Assessment Board (“PIABâ€?) for an assessment and, if necessary, a certificate, before issuing proceedings in court for the recovery of compensation.

Where the person has been injured by an uninsured driver or by a driver whose identity is unknown, the injured person may claim against the MIBI. The Bureau is, effectively, funded by all the insurers of motorists, in the Irish market.

The obligation to prove liability and loss remain, even though the MIBI is not “at faultâ€?.

The MIBI was not mentioned specifically in the 2003 Act, hence the doubt. The judgment makes sense; anything else would have been an anomaly. Indeed, in a very real sense the 2003 Act was intended to apply to the MIBI more than anyone or anything else; they are the insurance industry.

The 2003 Act is intended to benefit them.

Digital Rights case (continued)

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 (7/7/2008)

1. Three Motions are (or were) before the High Court. One, that of the Irish Human Rights Commission, was promptly decided by the judge in favour of the IHRC. The IHRC is now a “party” to the proceedings as “amicus curiae”.

2. The State challenged the locus standi of the Plaintiff to brings its proceedings. The IHRC has supported the right of the Plaintiff to bring its proceedings. The Defendants are denying that right but have made concessions in the hearings.

3. The State claims that the Plaintiff should furnish security for costs.

4. The Plaintiff’s current application is for a reference by the High Court to the European Court of Justice for a ruling from the ECJ on the validity of Directive 2006/24/EC.

5. The hearing of the Motions has continued before Judge McKechnie in the High Court and is now adjourned to 11th July 2008 at 10.30 am.

Gormley’s man (woman?)

What qualifications will Mr. Gormley’s independent inspector need?

Well, familiarity with Through the Looking-Glass would be helpful.

There, Humpty Dumpty explains himself to Alice:

I don’t know what you mean by ‘glory,'” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!'”
“But `glory’ doesn’t mean `a nice knock-down argument,'” Alice objected.
“When I use a word,” Humpty Dumpty said in a rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again.
“They’ve a temper, some of them — particularly verbs, they’re the proudest — adjectives you can do anything with, but not verbs — however, I can manage the whole lot! Impenetrability! That’s what I say!”

The first word to be examined by the Inspector is the word “independent”?, as in “independent inspector”?.

Independent of what or whom? Not Mr. Gormley; he is doing the choosing and appointing.

The next word for examination is “literate”?, as in “read the contract, Inspector”?.

The contract is, of course the contract under which the AB consortium installed Dublin’s sewage treatment plant in Ringsend. The first word the Inspector should look for in the contract is “confidential”?. Is Dublin City Council bound to keep the terms and issues of the contract secret?

The next word is “re-negotiate”? or cognate words.

In short, what provisions, if any, were there to prevent the consortium from seeking more money.

That’s the question.

Oops!

Never take your eye off the ball.

The State (the Government) decided to do something. It introduced an Act, the Non-Fatal Offences against the Person Act 1997, in and through the Oireachtas, which was enacted on 19th May 1997.

Section 28 (1) of the Act provided that;

The following common law offences are hereby abolished –
(a) assault and battery,
(b) assault occasioning actual bodily harm,
(c) kidnapping,
(d) false imprisonment.�

Something happened in Westport on 4th May 1997; consequently a Mr. Grealis was charged with assault contrary to common law.

Something happened in Mulranny on 11th May 1997; consequently Mr. Grealis was charged with assault contrary to common law.

Something happened in Cork on 3rd February 1997; consequently a Mr. Corbett was charged with assault contrary to common law and contrary to Section 42 of the Offences Against the Person Act, 1861 as amended by Section 10 Criminal Justice (Public Order) Act, 1994 (“assault occasioning actual bodily harmâ€?).

Section 28 (1) of Non-Fatal Offences against the Person Act 1997 came into force on the 19th August 1997. In both Grealis and Corbett, accordingly, it was not in force on the dates on which the alleged offences were committed. It was not in force at the date the summons was issued in Corbett, but was in force on the dates when the three summonses in Grealis were issued.

Mr. Grealis and Mr. Corbett were given leave by the High Court to apply by way of judicial review for an order of Prohibition of the prosecution of the offences alleged against them on the grounds that the Non-Fatal Offences against the Person Act 1997 had abolished the offences with which they were charged.

The High Court agreed and made an order of Prohibition and the Supreme Court affirmed on appeal.

During the proceedings the State cited in its support Section 1 of the Interpretation (Amendment) Act 1997, which reads:

1. – (1) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, such abolition, abrogation or repeal shall not –

(a) affect the previous operation of the law in relation to the offence so
abolished, abrogated or repealed or any other offence or anything
duly done or suffered thereunder,
(b) affect any penalty, forfeiture or punishment incurred in respect of any
such offence so abolished, abrogated or repealed or any other offence
which was committed before such abolition, abrogation or repeal, or
(c) prejudice or affect any proceedings pending at the time of such abolition, abrogation or repeal in respect of any such offence or any other offence.

(2) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, any proceedings in respect of any such offence or any other offence committed before such abolition, abrogation or repeal of any such offence at common law may be instituted, continued or enforced and any penalty, forfeiture or punishment in respect of any such offence at common law or any other offence may be imposed and carried out as if such offence at common law had not been abolished, abrogated or otherwise repealed.

(3) This section applies to an offence which is an offence at common law abolished, abrogated or otherwise repealed before or after the passing of this Act.

(4) If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.�

The Supreme Court held that this could only be read prospectively (into the future) and did not avail the State in its arguments. (The Supreme Court also found that the Act, as so read, was constitutional. It also found that the offence “assault occasioning actual bodily harm” was a common law offence.)

Family day at the Dail

There is no excuse for a grown adult to contemplate going to Dail Eireann during family day, or worse still, going there.

To do so is to play the fool.

The Dail is firmly under the thumb of the Government, whereas our Constitution envisages that it should be the reverse. The principal purpose of a Constitution is to rein in the Executive. Representative democracy exists for the same purpose.

To be offered a tour of the Dail building when the functions of the Dail have been fully drained away, in substance, is to be treated like a fool. To take it is to endorse the situation, to clothe a scandal with validity.

No effort is afoot to change this situation of loss of power and function by Dail Eireann.

Not only does the Dail have little real control over the Bills and Acts passing through and emerging from the legislative process, it has next to no control over secondary legislation (Statutory Instruments) implementing the Acts. As the Ombudsman noted;

A particular area of concern is the huge amount of secondary legislation arising directly at national level or as a result of European Union membership. Most of this legislation is not subject to any parliamentary scrutiny and can give rise to the so-called democratic deficit. The Ombudsman could perhaps be of service to the Oireachtas in drawing attention to the not infrequent instances where delegated legislation seems to go further than intended by the primary legislation. In this context, I have noted the recommendation of the Constitution Review Group that consideration should be given to an amendment to Article 15.2.1 of the Constitution so that the Oireachtas should have the power to authorise by law the delegation of power to either the Government or a Minister to legislate using the mechanism of a statutory instrument. I have suggested to the All Party Oireachtas Committee on the Constitution that the Ombudsman should be granted specific powers in cases where delegated legislation could have an adverse effect.”

What the Ombudsman was warning against is that law was being made in “not infrequent instancesâ€?, which had not emanated from the Dail at all.

No one should go to the Family days; to do so is to be complicit in their own humiliation.

Goodbye, Bill

McGarr Solicitors use Macintosh computers; that is, we use computers with the Apple operating system on them.

The beginning of this was the Macintosh SE which introduced me to computer use in or about 1987.

For me, then, the database program in Appleworks was the most valuable element of the machine and its software. Despite the passage of time I have not found a database program as useful as that, despite its limitations, which were obvious.

Those limitations brought me to think about relational databases; in short, to look into the world of mathematicians and nerds, a place for which I was and am constitutionally unsuited. (Ten plus fifteen is twenty-six, right?).

Bill Gates of Microsoft owned or controlled the alternative machine. For me, it was’nt at the races.

So, now Bill Gates has retired. I endorse his future plans; I decry his past. Without him the better system, the Mac, would be everywhere.

Everywhere would have the benefits of an aesthetic and economical approach to computing. Unlike Bill Gates’ system, one would not encounter a “counter-intuitiveâ€? element in an interface.

Which is not to say that native wit is everything in the learning of a Mac program; it is not.

But in Bill Gates’ system it would have been an impossibility to use Pagemeker to publish a book, as I have done, with the program written in Italian for the Italian market.

Ciao, Bill.

Digital Rights Ireland case

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 (27/6/2008)

Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.

DRI has brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The state has responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission has applied for leave to make submissions in the proceedings. These Motions will (it is believed) be heard in the High Court on 1st July 2008. See the letter to Dr. Hans-Gert Pöttering for the context for this.

Our Ref;EMcG Your Ref; 24th June 2008

Dr. Hans-Gert Pöttering
President,
European Parliament,
Paul Henri Spaak building
Brussels

Dear President,

1. I am the lawyer for Digital Rights Ireland Ltd. (“DRIâ€?). DRI is a corporate body established to protect and vindicate the civil and human rights of mobile phone users in Ireland. DRI has issued proceedings in the Irish High Court to challenge the validity of aspects of Ireland’s data retention legislation. (“The DRI proceedingsâ€?).

2. I write to you, as a matter of urgency, because an aspect of that legislation is the subject matter of proceedings between, inter alia, Ireland and the European Parliament in the European Court of Justice. (C-301/06: Ireland v Council and Parliament “The ECJ proceedingsâ€?) Those proceedings are now listed for hearing on 1st July 2008.

3. As you probably know, the Irish High Court is empowered to rule on the validity of European Union law, where the matter is acte clair. DRI is seeking, among other things, a ruling or rulings from the High Court on the validity of Directive 2006/24/EC.

4. Because, in the opinion of DRI, that matter is not acte clair, DRI has requested a reference by the High Court to the European Court of Justice on the validity of Directive 2006/24/EC.

5. DRI understands that the validity of Directive 2006/24/EC is the issue in the ECJ proceedings.

6. However, DRI perceives that DRI and Ireland do not agree as to why Directive 2006/24/EC is invalid. Ireland, it is understood, believes it is invalid because it was adopted at a meeting of the Council of Ministers following a vote against it by Ireland. Ireland is of the view (as is DRI) that Ireland’s vote was a veto vote. Ireland believes this because the subject matter for decision in the Council of Ministers was a “Third Pillarâ€? issue. Unanimity is required for such issues; there was none.

7. DRI believes that the grounds of invalidity of Directive 2006/24/EC are wider than that. Ireland does not agree, it appears, (given certain actions and expressions of view of Ireland).

8. DRI believes that the basis for a determination of the invalidity of Directive 2006/24/EC, by the European Court of Justice, is a very important matter. DRI wishes to ensure that the European Court of Justice has the benefit of a full examination of all the reasons why Directive 2006/24/EC is invalid.

9. DRI will shortly obtain a hearing by the High Court of its application for a reference to the ECJ. It is opposed by Ireland in its pleadings. Ireland has also objected to the High Court hearing submissions from the Irish Human Rights Commission on the issues that DRI has brought to the Court.

10. What is now clear is that, failing intervention, the hearing of the ECJ proceedings on 1st July 2008 will precede the DRI proceedings in the High Court in Dublin. That means that the ECJ will be deprived of the full examination of the reasons why Directive 2006/24/EC is invalid.

11. If DRI is successful in Dublin it will be anxious to ensure its proceedings, under the High Court reference, are heard before or at the same time as the ECJ proceedings. The European Parliament is a respondent in the ECJ proceedings. It is open to the EP to apply to the ECJ for an adjournment of those proceedings pending the outcome of the DRI proceedings in Dublin.

12. I write to you to ask you to procure the making of that application to the ECJ.

13. The benefits will be substantial, legally and politically. The perception of the European Union as a legal institution will be enhanced. The opportunity for the ECJ to rule on what is a human rights issue will be secured. The anxiety of the European Parliament to protect human rights will be demonstrated.

14. DRI’s objectives are supported by groups across Europe including: Privacy International, the European Foundation for a Free Information Infrastructure, the Czech civil rights group Iuridicum Remedium, Digital Rights (Denmark), the Belgian Liga voor de Mensenrechten (“League for Human Rightsâ€?), Electronic Frontier Finland, the UK Open Rights Group, the Italian group, ALCEI (“Electronic Frontiers Italyâ€?), the French IRIS, the Internet Society – Bulgaria, German groups netzwerk Neue Medien (“New Media networkâ€?) and FITUG (Förderverein Informationstechnik und Gesellschaft e.V.), and the Austrian groups VIBE!AT (“Austrian Association for Internet Usersâ€?) and Quintessenz.

15. I am ready to furnish any further details or information you may wish to have. The Chairman of DRI and I will readily travel to meet you if you require.

16. For obvious reasons the matter is urgent and I await hearing from you by return.

Yours Faithfully,

____________________
Edward McGarr
McGarr Solicitors

A protester is not just for Christmas

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.

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