The conference is in the Edmund Burke theatre in the Arts block of Trinity College, Dublin. It’s running late on schedule, probably due to the change of venue from Emmett to Burke theatre.
Irish criminal charge
In Ireland, until 1737, indictments were presented to the accused in latin. The repealing act was 11 Geo. II, c.6.
Currently the principal Act governing the framing of Irish indictments is the Criminal Justice (Administration) Act 1924, which contains in a Schedule and an Appendix, the general rules for framing indictments.
The concept lying behind the modern approach is the principle of legality. This means that a person aught not to be charged with an offence unless the charged offence springs from a pre-existing rule of law where the behaviour has been clearly and precisely prohibited.
The history of this idea probably starts with Beccaria and is found expressed in Article 15.5 of the Irish Constitution and Article 7 (1) of the European Convention on Human Rights and Fundamental Freedoms.
Given the length of time this issue has been to the forefront of judicial matters it would be a surprise to find a charge that does not conform to these principles.
Or perhaps not; see King v Attorney General [1981] IR 223, where the only section of the Vagrancy Act 1824 still extant was declared unconstitutional, There, Judge Kenny said â
I
t is a fundamental feature of our system of government by law (and not by decree or diktat) that citizens may be convicted only of offences which have been specified with precision by the judges who made the common law, or of offences which, created by statute, are expressed without ambiguity⦠In my opinion, both governing phrases (in s. 4 of the Vagrancy Act 1824) âsuspected personâ? and âreputed thiefâ? are so uncertain that they cannot form the foundation for a criminal offence.
For years prior to 1981 [the date of the judgment] young barristers were enjoined by their seniors to attack the use of Section 4. In short, the ground was laid and perceptions clarified long before the Section fell.
Which brings me to the question; when is a police officer acting in the due course of his/her duty?
Not everything s/he does is in the course of duty (not to speak of the due course of duty).
Therefore a charge adopting the wording of Section 19 (3) of the Criminal Justice (Public Order) Act 1994:
(3) Any person who resists or wilfully obstructs a peace officer acting in the execution of his duty or a person assisting a peace officer in the execution of his duty, knowing that he is or being reckless as to whether he is, a peace officer acting in the execution of his duty, shall be guilty of an offence.
-without specifying what was the alleged duty being obstructed or resisted is surely vague and uncertain and bad.
Ireland and the Aarhus Convention
Fianna Fail, in concluding its âprogramme for governmentâ?
with the Irish Green Party has, apparently, acceded to the âimplementationâ? of the Aarhus Convention.
Ireland is in fact a signatory to the Aarhus Convention, (but has not formally ratified it) . The European Union is also a signatory. Consequently, EU environmental law [e.g., Directive 2003/4/EC; Directive 2003/35/EC] is already driving the âimplementationâ? of the Convention. It was only a matter of time before Ireland had to âimplementâ? the Convention. Ireland has been a great procrastinator (HERE & HERE ) in the implementation of EU environmental law. (Twenty one years passed between the first EU waste Directive and the introduction of the Waste Management Act 1996).
On 11th June 2007, just three days prior to the conclusion of the âprogramme for governmentâ?, the European Court of Justice found Ireland still in breach of Directive 79/923/EEC, intended to protect shellfish in coastal waters.
The Convention is valuable; as the wikipedia article, linked to above, says,
The Aarhus Convention grants the public rights regarding access to information, public participation and access to justice, in governmental decision-making processes on matters concerning the local, national and transboundary environment. It focuses on interactions between the public and public authorities.
It will be interesting to see if the commitment to implement the Convention will follow or depart from the current resolute approach of division of functions between planning control (and enforcement) and environmental protection (best seen HERE)
It will also be interesting to see how âaccess to justiceâ? in environmental cases will be squared with the judicial rush to close down the opportunity to challenge administrative acts by judicial review by requiring applicants to move âpromptlyâ? for relief.
Current law in Ireland does not appear to conform to the aims of the Convention. At the very least Order 84 of the Rules of the Superior Courts will require amendment. Paragraph 21 (1) thereof reads:
21. (1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made.
The Green Party has a mountain to climb.
Liars
The world should be alerted to something styled The Global Deception Research Team; hence this post. After all, global deception is a serious matter. It would be nice to think that we could uncover it all in one place or by one action. For me, the alert came from reading the UK newspaper âThe Guardianâ? of 12th June 2007.
Readers can access the Research HERE, for a day, for US$35.00, or they can read on.
Lawyers, as a body, tend to be professionally interested, above the average, in the issue of truth telling and its opposite. The Global Deception Research Team, strictly, is not of great help to lawyers or other interested parties.
It reveals the universal existence, allegedly, of a common stereotype of liars.
This may be of interest in itself but, by implication, it cannot claim to tell us anything about liars.
The principal element of the stereotype is that liars cannot look you in the eye. That is inaccurate, as anyone who has ever encountered politicians can vouch.
The other elements of the stereotype are:
Liars shift their posture; they touch and scratch themselves; they are nervous; their speech is flawed.
If this is true then phrenology has a claim to be true. If phrenology is true, we inhabit a universe where we can only take comfort in the well known reflection: âshit happensâ?.
Personal Injury – Fishing Industry
For Employers’ duties see HERE
Fishermen are engaged in one of the most dangerous occupations of any group. On United Kingdom figures, their occupational mortality is exceeded only by mine workers at the coalface. Generally, they are twice as likely to die in the course of their work as a person working on land. Put another way, again on United Kingdom figures, fishermen have an annual risk of 1 in 500 of being killed in the course of their work. This latter figure ignores deaths arising from fatal illnesses arising in the occupation.
Their occupation exposes them to the elements in circumstance where they often have no option to take shelter and brew up a cup of tea while bad weather prevails, as they might if they were on land. The incidence of tuberculosis among fishermen is exceeded only by coal miners and people working in damp steamy conditions such as kitchen staff.
In their daily life they are swinging above large bodies of water, frequently without benefit of life-lines and harness or even life-jackets. There has been a tradition among fishermen not to wear life-jackets, or indeed to learn how to swim. They work in immediate proximity to powerful unguarded machinery such as winches and metal ropes under load, which can and do inflict horrific and permanently disabling injuries. Even a fibre rope is a serious danger if it suddenly becomes taut. They work in cramped, cold, wet and slippery conditions.
It is a regular occurrence for fishermen to be drowned at sea in Irish waters. Many of these deaths and correlated injuries are avoidable. The phrase “ship-shape” reflects the essential orderliness usually associated with life at sea. Many Irish fishermen work in conditions far from this standard. Many skippers have no qualifications and if the boat they are in charge of is less than 50 feet in length, they are not legally obliged to have any.
In keeping with the tradition of not wearing life-jackets, they do not equip their boat with a liferaft. The consequential loss of an entire boat crew is not an uncommon occurrence. Legally, apart from the general provisions of the Safety Health and Welfare at Work Act 2005, boats under 40 feet in length are not obliged to carry liferafts or life-jackets.
Calculated
Irish criminal law frequently criminalises behaviour without requiring the prosecutor to prove facts directly connected with an event. The word âcalculatedâ? frequently is used to address the issue of purpose or intention. If an act is generally known to have a particular outcome and in an instant case has that outcome it is clear that, at least subject to rebuttal evidence, the accused knew or ought to have known his/her act would have that outcome.
In that sense the accused can be said to have intended that outcome and this accords with the general understanding of the meaning of âcalculatedâ?. (more…)
Alphabets
Readers may note a link to this site, and some comments on posts, entered in cyrillic typeface.
I have, currently no control over that link and intend to sever the link when I can.
Edward McGarr
Legal Aid
State provision of health care probably precedes State legal aid, although arguably it should not. After all, it is the State that creates the circumstances where a person needs legal advice and help; nature creates the need for health care, but the State makes the law.
In Ireland most legal aid is of the private variety. Go to a solicitor or, sometimes, a barrister and pay for advice as required.
In Ireland there are two free legal aid systems; free legal aid, subject to means testing, for persons charged with a criminal offence and free legal aid, subject to different means testing, for persons requiring advice and help with a civil law problem.
The devil, as always, is in the detail. The civil legal aid system, essentially, is available for family law problems and little else.
This situation cannot stand and, in the usual manner in which these things happen in Ireland, change can and has come from individual case law decisions, the most recent being Magee -v- Farrell & Ors [2005] IEHC 388
Here the Plaintiff was the mother of a deceased man who died in Garda custody. She could not afford representation at the inquest and successfully applied to the court to vindicate her constitutional right to State-funded legal aid in relation to the inquest hearing.
The criminal legal aid system works quite well; members of the legal profession put themselves forward for entry on the Legal Aid Panel. When a person is charged with an offence s/he can apply (subject to means testing) to the court to have a lawyer assigned to the case from the panel. The accused person may name the lawyer of his/her choice or the court may choose the lawyer for the accused person.
The civil legal aid system consists, essentially, of a group of lawyers in the employment of the State, practising from âLegal Aid Centresâ? located in various places around the State. For some applicants the journey to the Centre is of considerable length.
There are delays before the âclientâ? first meets the lawyer in the Centre assigned to the case. In the recent past these delays are being reduced by the adoption of a system not unlike the criminal legal aid system. Private practitioners have been invited to enter a panel of practitioners willing to take cases from the Centre. When the delays in the Centre are excessive, the âsurplusâ? work is assigned to a private practitioner on the panel.
Only poor people will pass the means test for the civil legal aid scheme.
Many of the legal problems of poor persons involve making applications to various tribunals; (the Employment Appeals Tribunal [EAT] is one such). Despite the professed intention that the EAT should be informal and not require the presence of lawyers, employers invariably employ lawyers to represent them there. It is unrealistic not to recognise that there will be inequality of arms if the employee is not similarly represented.
There is no provision for extending the civil legal aid system to such tribunals.
So much for the State and its legal aid.
There is, finally, another “system”: many solicitors and barristers in Ireland refuse to see injustice perpetuated and commence working when the aggrieved person applies to them. This is a form of private charitable work which essentially bails out the State in its most egregious (I hate that word) defaults.
MRSA and Ireland’s Euro Health Consumer Index score
In 2006 the Euro Health Consumer Index put Ireland second from the bottom in a ranking of European states on the delivery of health care to its citizens.
Was this a Pass mark for Ireland?
Ireland subscribes to the concept of failure and applies it to its citizens in, for instance the Leaving Certificate examination now underway.
What of Ireland’s health care system? How do we know if it is failing? More correctly, how do we know that Ireland has failed in the delivery of a health care system?
Why not rank Ireland with its peers? After all that is what Ireland does to its citizens.
In that 2006 the Euro Health Consumer Index only Lithuania was below Ireland. Ireland scored 359 points from a total available of 750 points.
That’s less than 50%.
The Index pinpointed, among other things, the widespread MRSA infections in Irish hospitals as a defect in the Irish system.
With severe waiting list problems and less than fantastic outcomes
quality Ireland does not score very well. The Health Service Executive
reform can hopefully start changing this.
By implication, the level of infection in Irish hospitals is avoidable.
How can it be said that any particular case of infection was unavoidable?
Have we arrived at a point where the legal maxim “res ipsa loquitur��? (the thing speaks for itself) applies?
What the legal system is not good at is attributing motivation to action or inaction. Does anybody think that Irish authorities are less able or more cack-handed than health authorities in other European countries? Hardly. In the absence of a claimed motivation the legal system assumes actual outcomes were intended. Economists have broken through this notion. In Cameroon the road from Buea to Bamenda is so bad it is quicker to travel indirectly than directly. Drive east for two hours; then drive north for two hours; then drive west for two hours and you are there!
The clue to the explanation lies in the police roadblocks along the road. They are there to extort bribes. The police and other officials of Cameroon support the President; he in turn facilitates them to make a living.
The required inference is this: systems have objectives. When the objectives are not achieved it is because they have been displaced by other objectives.