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“Dr. Livingstone, I infer?

Henry Stanley got things wrong when he met Dr. Livingstone. On meeting him, he records, he said; “Dr. Livingstone, I presume?

The Oxford Dictionary indicates that “presume”, as used by Stanley, conveys he is supposing that something is the case on the basis of probability. On his own account, he was being absurdly careful. As Stanley well knew, white men in that location at that time were unknown. So, of course, the man he was meeting was probably Livingstone. However, immediately before he met him, in the native village, he had been reliably and explicitly informed that Livingstone was there. So, a “presumption” was in order only to cater for the possibility that there was more than one white man living or staying in the village. So, why did he not say “Dr. Livingstone, I infer?”

An inference, according to the Oxford Dictionary, is;

“A conclusion reached on the basis of evidence and reasoning”

Stanley had just received the information that Livingstone was in the village and knew of the improbability of more than one white man being in the village.

We need to know this to understand what is contained in Sections 28, 29, 30 and 31 of the Criminal Justice Act 2007. These sections allow a court to draw adverse inferences from an accused person’s failure during questioning to give an explanation for, inter alia, objects or marks found on his/her person or clothing, or for his/her presence in a certain location at the time an offence was committed.

The sections seem innocent of the knowledge that “drawing adverse inferences” is what detectives do, and are expected to do, in the ordinary course of their work. A detective, we hope, looks for clues about what has happened and who is responsible for what has happened. That mental activity leads to the discovery and isolation of evidence. That evidence, subject to correct reasoning, allows the conclusion upon which the detective will act. If the detective is able to act, his/her action will be adverse to the interests of the suspect. A detective does not need provisions as found in the Criminal Justice Act 2007 to do his/her work.

So what is really going on in Sections 28, 29, 30 and 31 of the Criminal Justice Act 2007? Section 30 reveals it; it allows a court to…draw an adverse inference from an accused person’s failure to mention during questioning a fact that s/he later relies on in his/her defence. The focus is on the failure of the accused to exculpate himself.

The Sections have very little to do with “inferences”.

The Sections are all about shifting the burden of proof in a criminal trial. Every person accused of an offence is, it is claimed, presumed to be innocent. Except when they must prove their innocence. That’s what Sections 28, 29, 30 and 31 of the Criminal Justice Act 2007 require of an accused. Alternatively, they change the obligation of the prosecution to prove something beyond a reasonable doubt, to proving it on the balance of probabilities.

A further alternative is even worse; they permit the making of adverse assumptions by a court

An assumption, according to the Oxford Dictionary, is;

“A thing that is accepted as true or as certain to happen, without proof…”

Sections 28 contains the following:

“…which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper…”

This is very poor English.

To say “…being an account which in the circumstances at the time clearly called for an explanation from him or her…” is to misstate what is intended. It was the circumstances at the time, or the object or mark, not the account, which called for an explanation, but the Section fails to say this.

Likewise, it is poor English to say something is an inference, when it is an assumption.

We should subscribe to the intellectual respectability of detectives and abandon the intellectual nonsense of judges.

New Emergency UK Data Retention Law- What’s actually happening?

Panic Button by https://secure.flickr.com/photos/johnjoh/

In case you missed it with all the World Cup and such, last night UK Labour backbencher Tom Watson put out an urgent call for attention. The UK Gov were trying to bundle a replacement mass surveillance law through Parliament with nobody looking.

Unlike here, the UK never brought in a standalone law for Data Retention, just a Ministerial Order directly based on the annulled Directive.
As a result the UK were running on empty, legally speaking, ever since the April DRI ECJ decision wiped out the Data Retention law they relied on.

After that judgment, the UK Government fell back on simply asserting that Data Retention was lawful and should continue as before.

The Emergency part of this emergency legislation is that there are now two things looming in the courts that can’t be denied or ignored away.  A JR of their legal regime, which has been awaiting hearing since 2011 (See this briefing paper on that case from the Open Rights Group) and, the BBC reports, pending challenges to the telecoms companies who were left holding customer’s personal data without any legal justification.

If you’re in the UK, http://writetothem.org is an easy, free way to contact your MP to tell them what you think of the plan to pass this legislation with all party agreement.

Coroner’s Act 1962

by William Murphy

We have written previously about the Coroner’s Court system.

If you find a dead body, you are legally obliged to report it. Once certain officials or persons in certain positions become aware of a report of remains lying in the district, they are under a duty to notify the local Coroner.

Section 18(1) of the Coroner’s Act 1962 says

18.(1) Where a coroner is informed that the body of a deceased person is lying within his district and that a medical certificate of the cause of death is not procurable, he may inquire into the circumstances of the death of that person and, if he is unable to ascertain the cause of death, may, if he so thinks proper, hold an inquest in relation to the death

We know, from a statement by the Sacred Heart Sisters yesterday, that no medical or birth certificates were issued to religious orders in respect of deaths of babies in Mother and Baby homes.

 “There was no right to a death certificate bestowed on the congregation”.

Section 18(3) of the act states

(3) It shall be the duty of an inspector or officer of the Garda Síochána, if he becomes aware of the death within the district of a coroner of any person in whose case a medical certificate of the cause of death is not procurable, to inform the coroner of such death.

An Inquest is specifically not permitted to examine questions of liability or to assign blame. Its purpose is to establish the facts of a death. To achieve this, a public hearing, frequently with expert witnesses, is held. Because an inquest’s aims are limited, they are very rarely protracted. And as inquests are frequently held quite soon after a death, Coroners are used to dealing sensitively with people and situations where emotions are raw.

In the case of the remains of children in Tuam, given the gravity of the implications for both the individuals and their families (if any are remaining) and for the reputation of the country, I think it would be reasonable to look to the Attorney General to take action under Section 24 of the Act.

24.(1) Where the Attorney General has reason to believe that a person has died in circumstances which in his opinion make the holding of an inquest advisable he may direct any coroner (whether or not he is the coroner who would ordinarily hold the inquest) to hold an inquest in relation to the death of that person, and that coroner shall proceed to hold an inquest in accordance with the provisions of this Act (and as if, not being the coroner who would ordinarily hold the inquest, he were such coroner) whether or not he or any other coroner has viewed the body, made any inquiry, held any inquest in relation to or done any other act in connection with the death.

Given the physical advantages of the new Coroner’s Court building in Dublin for an inquest of this size and scope, it might be best if the AG were to request the Dublin Coroner to hold an inquest without delay. Once the facts of the deceased’s life and deaths are established, we can consider what is the next appropriate step.

Registration of Deaths, 1860-1996

It’s difficult to know how to react constructively to the story of the bodies of children in Tuam.

Philip Boucher-Hayes has quoted the response of Gardaí as to whether there was an inquiry ongoing into hundreds of of children’s remains being found.

there is no suggestion of any impropriety and there is no Garda investigation.

A lawyer’s instinct is to look to law. I thought it might be helpful to look at the legislation around the registration of deaths. Perhaps ironically, the Irish Government has already paid for and published quite a good short essay on the historical laws regarding burial and registration of deaths.

You can find it in Chapter 16 of the McAleese Report, “Death Registration, Burial and Exhumation”.

During the period the Tuam institution was open the relevant acts were The Births and Deaths Registration (Ireland) Act 1863 and The Births and Deaths Registration Acts 1880-1996.

Section 36 of the 1863 Act says

Some person present at the death or in attendance during the last illness of any person dying in Ireland after the said 31 December 1863 or the occupier of the house or tenement in which such death took place, or if the occupier be the person who shall have died, then some one or more of the persons residing in the house in which such death took place shall, within 7 days next after the day of such death, give notice of such death to the registrar of the district in which such death occurred; and such persons as aforesaid, or if such death shall not have taken place within a house, then any person present at such death or having a knowledge of the circumstances attending the same shall, whether they have given such notice of not, upon being required personally or upon written requisition of the Registrar, within 14 days after the date of such death attend personally at some dispensary district, or vaccination station within the Registrar’s district , or otherwise at the place of residence of such person, and give information to the registrar of the district in which such death occurred, according to the best of his or her knowledge and belief of the several particulars required by the said form to be registered touching such death and shall sign the registry in the presence of the registrar”.

Section 3 of the Act specifically said that ‘occupier’ included;

“the Governor, Keeper, Master, Superintendent, or other chief Resident Officer of every Gaol, Prison, or House of Correction, and of every School, Reformatory, Workhouse, Hospital, Lunatic Asylum, or other Public or Charitable Institution”

Sections 10 and 11 of The Births and Deaths Registration (Ireland) Act 1880 set a limit of 5 days from the date of death for that duty to be complied with.

So, a requirement to register each death and a time limit. Is there a penalty for failing to comply?

Section 60 says:

Any person required by this act who shall, within the period specified by this act, fail to give notice of any birth or death to the registrar of the district within which such birth or death shall have occurred shall be liable to a penalty not exceeding 20 shillings

20 shillings per unregistered death.

EU Commission Recommendations and Legal Costs

The EU Commission published its assessment and recommendations for Ireland yesterday. Here’s the recommendation regarding legal services.

Reduce the cost of legal proceedings and services and foster competition, including by enacting the Legal Services Regulation Bill by the end of 2014, including its provision allowing the establishment of multi-disciplinary practices, and by seeking to remove the solicitor’s lien. Monitor its impact, including on the costs of legal services. Take executive steps to ensure that the Legal Services Regulatory Authority is operational without delay and that it meets its obligations under the legislation, including in terms of publishing regulations or guidelines for multi-disciplinary practices and the resolution of complaints. Improve data collection systems to enable quality and efficiency of judicial proceedings.

And here’s the assessment of Ireland’s legal situation that those recommendations are based on;

The cost of enforcing contracts is high. Lawyer fees represent the majority of these costs, at 18.8 pp and high legal services costs affect the cost structure of all businesses, including SMEs. In addition, unlike for other professional services, legal services costs have failed to adjust downwards since the onset of the crisis, in part due to insufficient competition. The authorities have committed themselves to introducing reforms to the legal services sector as part of the macroeconomic adjustment programme. They published a Legal Services Regulation Bill in 2011 that remains to be enacted. Judicial and court administrative resources to implement active pre-trial case management are very limited, which may be contributing to delays in the delivery of justice and raise costs. In addition, there are significant gaps in Ireland’s ability to collect data on the quality and efficiency of the justice system.

The 18.8% figure (the only statistic cited) comes from the World Bank’s Doing Business survey and is based solely on a single form of legal service- commercial High Court Litigation in pursuit of a breach of contract claim. Strangely, though it seeks to represent the cost of enforcing a contract, the survey methodology doesn’t take account of the fact that our legal system has, as a general principle, that the loser in litigation should pay the costs of the winner.

How are attorney fees calculated?

Average attorney fees are the fees that a plaintiff must advance to a local attorney to be represented in the standardized case. Even though it is assumed that judgment will be 100% in favor of the plaintiff and the plaintiff is likely to be entitled to an award of legal cost along with the judgment, the methodology takes into account all the attorney fees that the plaintiff needs to advance to his attorney, which includes: (i) the fees to handle the case up to judgment, including pre-trial attachment of the defendant’s movable assets, (ii) the fees for enforcement if a lawyer is commonly retained for this purpose, and (iii) if applicable, the value added tax or other taxes.

The World Bank says it hopes to address this, rather significant, lacunae in future surveys.

One other curious thing about this figure for costs. I was surprised by the EU Commission’s assertion that “unlike for other professional services, legal services costs have failed to adjust downwards since the onset of the crisis”. Here’s the historical data. Apparently, despite recording changes in both the number of days estimated for completion of the litigation and the number of procedural steps required, the costs have been exactly 26.9% of the value of the claim every single year since 2004.

This is surprising. The Irish Competition Authority found that

“The level of solicitors’ fees in the High Court increased by 4.2% above general inflation annually over the period 1984 to 2003 while the level of senior counsel fees in the High Court increased by 3.3% above general inflation annually over the same period.”

And yet, the World Bank’s figures (and the EU Commission has based its recommendations on those figures) tell us that come 2004, everything suddenly stopped.

I’ve said before I’m barely numerate.

Fortunately, having discussed this on Twitter, Fred Logue had the solution and submitted a EU FOI-style access to information request for the documents the EU Commission used to ground its assertions about the Irish Legal Services market.

We should have an answer by the 23rd June 2014.

Historical Data Legal Costs Ireland from World Bank

 

The National Risk Assessment for 2014

The Taoiseach has published the Draft National Risk Assessment for 2014. The good news is that, by implication, there will be another in 2015 and that it is open for public comments until the 30th June. The bad news is that, in briefly harking back to the past, it fails to correctly describe what really happened.

Then there’s the tone; the authors never question the possibility that they are not competent to write the Assessment. Presumably, they followed the nostrum they urged on the Civil Service – avoid groupthink. It may be the case that, of the available possible authors, they are the best, but if so they are not good enough. Like military experts, they are confident of winning the last war when it reappears in the future. One suspects that they view the opportunity to write the Draft National Risk Assessment for 2014 as one of the few upsides to the national disaster that has befallen us.

If so, why not follow the logic of criticising “groupthink”, with the reflection that a problem like that is a social problem?

What, then, might be said to be wrong with Irish society?

Local government is a good place to start. Before the founding of the state, Irish local government was corrupt. It is easy to imagine the impossible task faced by UK central government in trying to suppress something like that in Irish domestic politics. That corruption is still with us. It may have historically take the form of theft of public property or the sale of public administration, but more usually it takes the form of resolutely eliminating any regard or consideration for “out-groups”. The most prominent “in-group” is the staff of the local authority itself. It is necessary to mention that local government has its equivalent of a central government circus of “experts” and “professionals” whose principle source of income is the local authority and who, often, are less removable than the County Manager himself.

More generally described, Ireland has a human rights problem.

Administration, even the administration of justice, is seen as the application of a process, by officials, to persons. In this process, the means is more important than the ends. The process is, apparently, the important thing, not the outcome. Even this, however, is subject to review; if the process is not, in the events that have happened, acceptable to the officials, then it can be adapted to produce the desired outcome. Somehow, there is an interest which trumps all other interests; the interests of the organisation.

This view of things is diametrically opposite to the view ostensibly adopted by the Draft National Risk Assessment for 2014. That’s a good thing; if the National Risk Assessment endorsed the pursuit of organisational interests over national or individual rights we would be in quite a pickle.

The National Risk Assessment seeks to drive up performance and improve civil servants’ skills, but it is weak on the point. Saying “be good” is not sufficient. There has to be a focused assessment of processes and procedures to assure the correct outcome for them. The absence of the right skills must be identified. (Judges, for instance, due to their professional backgrounds, generally have no record of talent in administration). Even when problems are identified they are ignored, when, in fact, they should be systematically highlighted before they cause too much damage.

Here’s an example: when a planning authority official arrives at your property to search it, don’t bother demanding his/her search warrant. They don’t need one, according to Section 253 of the Planning and Development Act 2000.

Irish voters have just selected hundreds of new councillors to sit on local authorities across the country. It would be no small thing if some of those fresh new faces began to ask questions about whether their own officials’ perfectly legal actions may one day warrant a mention in a future Risk Assessment document.

CJEU Judgement: Google -v- AEPD and the rise of EU privacy law

The Court of Justice of the European Union is the highest court in the EU. This year has seen a landmark set of judgments from the court around issues of Privacy and, more broadly, the assertion of the Charter of Fundamental Rights as a significant Human Rights document.

The most significant of these is, of course, the Digital Rights Ireland case in which we act for the Plaintiff. But today saw another assertion of the privacy rights of the individual, with the Court affirming that individuals may seek the removal of links which damage their reputation- including links to archived lawful reports- from Google searches.

Though the full scope of the consequences of Google -v- AEPD will take some time to be worked out, it is clearly another statement in the rapidly developing EU caselaw on privacy rights. It will also have commercial consequences, by making newspaper and other media archive paywalls more economically attractive. When a researcher can’t be sure that a Google index will return all the relevant returns on an individual, the value of reliable private archives is bound to increase.

Find below a link to the full text of today’s judgment.

CJEU Judgment Google v AEPD

Below the fold point: Some outlets are reporting that this judgment means that Google must amend their results on request. In fact, what is being removed and who is asking for it to be taken out will have to be weighed up for each request. We can expect considerable sparring across the EU before we have a clear idea of where the lines are to be drawn for each of those factors. And, given that the European HQ of the biggest data driven companies (including Google) are located in Ireland, it is likely that this jurisdiction will see a disproportionally high number of those tussles.

Austerity

There are many varieties of austerity. There is the modest hope of Padraic Colum’s “Old woman of the roads” , thinking of the possible house she would be content to own:

“I could be quiet there at night

Beside the fire and by myself,

Sure of a bed and loth to leave

The ticking clock and the shining delph!”

And then, there is the austerity and integrity of Fran Halsall in her book, “From Shore to Summit”.

You get two things in this book; possibly, visions from an exo-planet and a dedication to tracing and understanding the deep past of Britain and Ireland. Of course, our current landscape is not like the landscape of the Jurassic or the Cretaceous, but Fran Halsall shows every indication that she would go back there if possible or necessary.

Few people have the professional discipline to take them to “Deep midwinter, High Cup Gill”

Or even to “Vale of Edale, fields and moorland”

Buy this book.

PIP scandal: Terms of Government care package

The HSE has circulated a letter to GPs around the country informing them of the State’s scheme to pay for women who require surgery to remove PIP implants to have them removed.

HSE Letter to GPs

Please see below for a copy of this letter. We’ve indications that not all GPs may have received it yet so, if you intend discussing it with your doctor, we suggest you print the HSE’s letter out and take it with you.

 

PIP Breast Implant HSE Letter to GPs

Freedom of Information: The World of Hurt

Gavin Sheridan has an excellent essay in today’s Sunday Independent, debunking all the arguments advanced for our State’s insistence on charging an upfront fee for making a Freedom of Information request. You should hurry away and read it.

Consider this post a footnote to Gavin’s piece. I wanted to write a little bit about the arguments that aren’t advanced to justify our fees regime. I wanted to give an explanation for how the state apparatus came to be wedded to restricting citizens’ (including journalists’) access to information. As Gavin shows, the ones we’re told in public don’t hold any water. So, here is my brief explanation of explanations that dare not speak their name.

Here’s what you have to understand first. Politicians in power will always hate Freedom of Information. Just take that as a given. It takes away one of their few advantages when faced with opposition (those advantages growing fewer each year as ungovernable social media gradually overtakes controllable mass media). It makes dissembling difficult and turns misinformation into a pistol pointed at their own heads. For politicians in power, there is no real upside for Freedom of Information, except a nebulous sort of recognition if they do the right thing by it.

So, that’s the political class’ instinct. What is special about Ireland’s situation is that Freedom of Information is a running sore in the administrative class- the Civil Service. I can only assert this, and you can choose to believe me or not when I say it, but the Civil Service hates FOI. Hates it, and resents it but most of all- above everything else- is upset by it.

Upset. I really can’t stress enough that the absolutism, the determination to plough ahead regardless of public opinion or political consequences when it comes to FOI fees is driven largely by a mass, emotional response within the Civil Service. At every level, for different reasons, Civil Servants are stressed and angry when an FOI request appears. Let me take you on a gentle wander through some of the reasons why.

I draw for these speculations on my experiences working as a Civil Servant, sitting at the desk beside my Office’s FOI officer. All characters are fiction, though their motivations may be true.

You’re in a frontline office. You’re a junior manager. You have a medium-sized staff of disgruntled employees to manage a job designed for a large staff. You and the staff are, quite literally, abused as a matter of routine by people who you feel that you struggle to do right by. It’s an effort just to make it through the day and you get stressed at night if you think of the morning.

Now, a message has arrived to your inbox. Someone has asked an FOI question. To answer it, you and every other social welfare office manager in the country will have to send statistics back to the FOI officer on a tight timeframe. Your face flushes. You can hardly keep up with the work you have, you’re getting abuse all the time and then some joker wants you to pull staff off counters to collect up info you didn’t think you’d need to compile at all for months, until the Annual Report rolled around.

In your mind’s eye, you see the snaking queues building as half the counters are closed. You already can hear the added frustration and conflict this will generate.

No, you don’t want to see more FOI requests. If you had your way, you’d add two zeros to the fee and hope everyone stopped using the damned act altogether. It’s wasting Civil Servants time and taking them away from doing real work.

You ring the FOI officer to give him a piece of your mind.

***

Now, you’re at the top of the tree. A senior Civil Servant deeply embedded in matters of policy and national importance. You have a well qualified staff of bright graduates in the office outside your room. Not many, granted, but probably three or four. Enough to filter most of the problems that struggle upstream to you, leaping like salmon over middle managers.

But now there’s an email for you from the department’s FOI officer (printed out and left on your desk to read, as you don’t use those computer things). She’s been building an excel table of expenses in response to an FOI query from a journalist. There are standing orders that nothing should be released on FOI without it being given prior approval at the highest level.

That’s you. And you realise you are going to have to work out what these thousands of spreadsheet numbers mean and also, whether releasing them into the wild would mean your department or minister will find themselves in the headlines for all the wrong reasons next week.

You look at your diary. It’s filled with meetings, longstanding inter-departmental engagements and ministerial briefings. You look at the time limit for response in the email- a few days at best. The FOI officer’s excuse was that the line offices just wouldn’t respond to her emails as she was trying to compile the chart. You look again at the thousands of little boxes filled with tiny numbers.

Your face flushes. What sort of Act lets some joker of a journalist derail an entire department with his fishing expeditions?

You pick up the phone to have the FOI Officer summoned to your office to explain herself.

***

You’re an FOI Officer trying to do their job. I think you know by now why you might be feeling upset.

***

I’m not saying any of these responses are correct. But I do think that we have to understand them- to put ourselves in other people’s shoes- to know why they are cleaving to apparently irrational positions. The Civil Service experiences FOI as an upsetting, stressful and wasteful interruption from the job they’re assigned to do.

If we’re going to be able to persuade them from the current policy of building the walls around FOI even higher instead of pulling them down, we have to find better ways, for both citizen and administrator, of getting what we want.

In the short term, there are a couple of policies that could be adopted to take some of the sting from FOI.

1) Publish every FOI request and their responses.

Avoid duplication of work by just putting everything asked for and given into the public domain. Some Departments do this already. In theory, this eliminates the chance of a scoop for journalists from an FOI answer. In practice, as we learned during recent convulsions, the media rarely wander off the beaten path of Press Releases and off the record briefings anyway.

2) Identify certain valuable classes of information and publish them all on a regular calendar, Service-wide. Don’t wait to be asked.

The obvious choice here is to publish every line of expenditure from the departmental databases on a monthly or bi-monthly basis. The precedent for that disclosure has already been set. Maybe you can come up with your own interesting class of data?

3) Stop pandering to the paper-fetish. Just disclose data as data, not photocopies of printed out computer files.

This is really a no-brainer, but that it still needs to be said is evidence of the howling rage at the heart of FOI as things stand.

Long-term, the solution to the Civil Service’s Freedom of Information problem is to change how they handle and view all information. Records are siloed so local managers have to scramble to compile them. They should be open and identifiable from across the organisations. Files aren’t managed according to any document management criteria, even if any has been notionally set. As a result, finding where a given set of records may be can involve a physical search across multiple offices. And so on. It’s only when the administration of the state has a handle on its own information will it be able to effortlessly release whatever it ought to the rest of us.

And if that ever happened, we wouldn’t just have gained a revolution in transparency. We’d have a state fit for the 21st Century.