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A JUDGES’ REFEREE

There is no need for the Chief Justice to look to the State of New York for a disciplinary code for our judges.

He has one already; it’s just not activated. The indefinite intention is that it will be deployed on the creation of a Judicial Council. (What, if not that, is the top table in the Kings Inns?)

In its editorial of 8th December 2007 the Irish Times is confident that legislation will be necessary to underpin the code.

Why the certainty? After all, the full edifice of Judicial Review in Ireland is resting on the provisions of Order 84 of the Rules of the Superior Courts, which Rules are in the form of a Statutory Instrument and are devised by the rules committee of the Superior Courts, an obscure bunch of unelected people. (They wouldn’t think they are obscure, but most people would.) The implications of Order 84 far outweigh the effect of a disciplinary code for judges.

The constitutionality of Order 84 has been questioned in academic writing for the reason, that is, that the civil, property and constitutional rights of citizens cannot be lawfully adjudicated on within the narrow parameters and inadequate legal basis of Order 84 and that, at the very least, primary legislation is required to underpin the legality of Irish Judicial Review. If this is correct, there being no such legislation, Irish Judicial Review is built on foundations of sand. This legitimation crisis is all the more acute in that the Irish Commercial Court (unlike the London Commercial Court) will admit Judicial Review into its list. The Rules of the Commercial Court are of no better provenance than Order 84.

All power is but an unabated nuisance, a barbarous assumption, an aggravated injustice, that is not directed to the common good: all grandour that has not something corresponding to it in personal merit and heroic acts, is a deliberate burlesque, and an insult on common sense and human nature. That which is true, the understanding ratifies: that which is good, the heart owns: all other claims are spurious, vitiated, mischievious, false – fit only for those who are sunk below contempt, or raised above opinion.

William Hazlitt; the Liberal, 1823

Lock the Door

Judge Robert Restaino is all too human. What is notable is the unspoken assumption that he is unusual. He is not. I acted once for a young female plaintiff in a minor civil action. She attended court in what would have been her Sunday best were it not for the shortness of her skirt. She was a striking figure.

On giving evidence to the effect that the defendant and his scrapyard employees had spoken roughly to her when she attended him to complain about the damage to her car, caused by his rubbish collecting truck, the judge directed the clerk to bring in the attending Garda and to lock the door of the court.

The case proceeded with the plaintiff, the defendant, the witnesses and the practitioners wrongfully imprisoned (in the sense they could not leave, not that they tried to).

Because the focus of presentation of the plaintiff’s case sensibly remained on the occasion of the damage, the case proceeded without reference to the unwarranted action of the judge and the plaintiff won her damages.

Now we are informed of the “state commission on judicial conductâ€? we should get a copy of the constitution or other founding documents of same and send it to our Chief Justice.

UK Medical Records database: Very public patients

The British NHS proposes to establish a central database of patients’ medical records. Tens of thousands of staff will have access to the information, including non-medical social welfare staff. The total number of patients will be in the millions. Luckily the British medical profession (general practitioners, in fact) are sceptical. They are so sceptical that only 11% say they will deliver the information to the NHS. Presumably those somewhat dense practitioners will deliver the information by means of the aptly named courier, TNT

JERRY SPRINGER – THE OPERA

I knew little of this show. Now, I learn, it portrays Jesus as a coprophiliac sexual deviant. At least, a group called Christian Voice says so. In that belief, it applied to a London magistrate for leave to prosecute the BBC for blasphemous libel. (The BBC had televised the show). The magistrate declined leave (I am curious as to why), and the group has now applied to the High Court in London for the same relief. If the group is successful the BBC could face a maximum penalty of life imprisonment. Considering that ITV is not even facing prosecution for what seems was a major fraud on the viewing public, there is little chance of the BBC going to jail. Blasphemous libel is a common law offence. The common law is part of the law of Ireland.

DRI and IHRC

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

The Plaintiff has received notice from the Irish Human Rights Commission of the intention of the Commission to apply to the High Court by Motion on 10th December 2007 for liberty to appear as amicus curiae in the proceedings.

Shannon et les vols secrets

Le chef inspecteur de l’inspection de la police Irlandaise Garda Siochana a indiqué ( Irish Times , le 8 Novembre ) qu’elle examinera les résultats du prochain rapport de la Commission irlandaise des droits de l’homme sur les vols secrets Americains ( utilisant l’airport Irlandais Shannon et concernant le transfert clandestine des terroristes presume’s ) .
Elle a alors remarqué que

 vous pouvez compter sur moi étant dans le mouvement des droits de l’homme .

Elle semble dire que si elle obtient des evidences sur lesdites vols
A travers l’airport Shannon, la Police Irlandais (Garda Siochana ) dans ce cas Agira .

Naturellement elle peut réellement ne pas dire cela; sa citation
si nous pensons approprié à l’avenir de regarder sur cela nous le faisons.

Les droits de l’homme est essentiel dans le maintien de l’ordre et dans le travail de police son expression n’est pas la plus pleine forme d’engagement possible sur une telle question.

En outre elle est peu susceptible face à n’importe quel dilemme à l’avenir sur cette question.

Le 7 octobre 2004, Dermot Ahern le minister Irlandais des affaires étrangères a dit au Dail ( Chambre basse du parlement Irlandais )

Le gouvernement n’a aucune information pour indiquer que des prisonniers sont transportés a travers les aéroports irlandais à et de Guantanamo ou ailleurs.
La raison- selon lui- est que les autorités Americains
ont confirmé à l’ambassade d’Irlande aux Etats-Unis que Washington n’a pas utilise’s les airports Irlandais a cette fin et qu’elles ne chercheraient pas à le faire sans obtenir l’autorisation des autorités Irlandaises.

En fait,le record de la police Irlandaise (garda) sur cette question n’est pas sans mérite.
Cependant, le record Americain dans ce domaine n’est pas propre.

Comme dans l’affaire ‘Etats-Unis –v- Alvarez-Machain’( 1992,504 US 655 )
ou est apparu que les agents des USA ont transfere’ un accusé du
Mexique et l’ont transfere’ clandestinement aux Etats Unis ou il s’est trouve’ face aux accusations criminels.

En outre le gouvernement Americain ,a travers Theodore B. Olson, a argumente’ que

malgré leur rareté, les actions extraterritoriales d’application de loi sans coopération avec des gouvernements étrangers sont parfois crucial à l’administration de la justice et de la sécurité nationale Americaine .

Bien, il ne l’a pas réclamé réellement étre légal, mais l’idée que, le Governement Irlandais doit accepter –en bonne fois- ce que son homologue Americain lui indique, est une ide’e morte dans l’eau.

Irish Planning and Development

It is not clear that the true history of Irish land development has been written. Consider the contents of the 2006 Annual Report of An Bord Pleanala.

The report highlights the failures of local planning authorities to take into consideration very important planning aspects in granting permissions for development. The results include improper zoning; consequential flooding; unplanned town development; and water pollution.

If that is what we see now in 2007, what major failures lie in the past?

One failure is pointed to in the setting of penalties of up to €500,000 for local authorities (the very people granting the questionable planning permissions) that pollute water resources.

It now appears that everybody has known for years that the local authorities were (and are) the major polluters of Irish waters before, (or is that after?) farmers.

And what of personal living spaces? Well, they need revision.

What’s to be said? In the words of Alexander Chase:

The peak of tolerance is most readily achieved by those who are not burdened with convictions.

Rendition at Shannon?

The chief inspector of the Garda Siochana Inspectorate indicated (“Irish Timesâ€?, 8th November) she will examine the findings of forthcoming Irish Human Rights Commission report on US “renditionâ€? through Shannon airport. She then remarked that

… you can count on me being on the human rights bandwagon.

She appears to be saying that if she gets evidence of US rendition through Shannon the Garda Siochana will take action. Of course she may not be actually saying that; her phrase

… if we think it appropriate at any time in the future to look at that we will… policing is all about human rights.

is not the fullest form of commitment possible on such an issue.

Furthermore she is unlikely to have to face any dilemma in the future on the issue.

On 7th October 2004, Dermot Ahern the Minister for Foreign Affairs told the Dail,

The Government has no information to indicate that prisoners are being transported through Irish airports to and from Guantanamo or elsewhere.

The reason for this is that, as he went on to say,

Furthermore, the US authorities have confirmed to our Embassy in Washington that they have not been using Irish ariports for this purpose and that they would not seek to use Irish airports for this purpose in the future without seeking the authorisation of the Irish authorities.

In fact the record of the Garda Siochana on the issue is not without merit.

However, the US record on the avoidance of reprehensible behaviour on the point is not good.

In United States v Alvarez-Machain ([1992] 504 U.S. 655), it transpired that US agents had kidnapped the accused in Mexico and flew him to the US to face criminal charges there. The US Supreme Court disregarded the relevance of international law generally and decided the issue in favour of the US state on an interpretation of the Extradition Treaty between the US and Mexico. (The Mexican view was well known; they had lodged several diplomatic protests with the US).

In addition the US Government, through Theodore B. Olson has argued that

…notwithstanding their rarity, extraterritorial law enforcement actions without public cooperation by foreign governments are sometimes critical to the administration of justice and national security.

Well, he didn’t actually claim it was lawful, but the idea that what the US government tells the Irish government must be accepted in good faith is dead in the water.

Irish Building Sub-Contractors

There is a slowdown in the housing sector of the Irish building industry. Some main contractors are engaged in both the housing and the commercial sectors. The financial consequences of the slowdown will, therefore, spill over into the commercial sector for that reason alone.

The financial pressures have now resulted in main contractors attempting to temporise in making due payments to sub-contractors. This has resulted in driving those financial consequences downwards in the sector. For nominated sub-contractors who have been assiduous, astute or fortunate enough to have adopted the Construction Industry Federation nominated sub-contractors’ contract form, the worst features of these consequences can be avoided.

The contract has the following clause in it:

Payments made to the Contractor in respect of work done and materials used by the Sub-Contractor shall until received by the Sub-Contractor be deemed to be money or moneys worth held in trust but without obligation to invest by the Contractor for the Sub-Contractor to be applied in or towards payment of the Sub-Contractor’s account, subject always to the right of adjustment by the Architect/Engineer in the event of his certifying that adjustment is necessary.

This has the consequence that, when the Employer (the person engaging the services of the main contractor) pays funding to the main contractor for work and services rendered by the nominated sub-contractor, that money belongs to the sub-contractor. The main contractor holds it in trust and is contractually obliged (under the main Royal Institute of Architects of Ireland contract form) to pay it to the sub-contractor within 5 working days of having received it.

Being trust money, it is not available for distribution to other creditors in the event of the insolvency of the main contractor.

Under no circumstances should the nominated sub-contractor accept any variation to the Construction Industry Federation nominated sub-contractors’ contract form.

Affaire de rétention des données de ‘Digital Rights Ireland ’

Les avocats du McGarr Solicitors respresentent le Digital Rights Ireland Ltd. dans leur action contre le Ministre de Justice et de la reforme de la loi, le Ministre des Communications , les resources Naturels et Marines et contre les actions et les politiques de Commissaire de Garda ( Police Irlandais ) pour retention de data .

Les plaidoiries sont- après consultation avec notre client- disponible ci desous jusqu’ici dans cette action en PDF format (Adobe Reader).

Digital Rights Ireland Limited Plenary Summons

Appearance entered by the Defendants

Statement of Claim of the Plaintiff

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