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Constituencies Constitutional Challenge – Judgement Delivered

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

 

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

Defendants

    7th June 2007

    1. The High Court (Clarke J.) delivered reserved judgment in the action this 7th June 2007. The judgement was read out by the judge; the written copy will become available shortly. The following is a concise synopsis of the essential points of the judgement. (Readers should note that the Defendants denied that the publication of “The Principal Demographic Results” triggered any obligation on them to act.)

    2. He declined to grant the Declarations sought by the Plaintiffs.

    3. He found that, for the purpose of the Constitution, the relevant Census 2006 figures were ascertained at least by 29th March 2007, the day “The Principal Demographic Results” were published by the Central Statistics Office. Although the Preliminary Results from the CSO in 2006 were of a high order of accuracy they did not trigger the obligation to revise the constituencies.

    4. However, the obligation on the Oireachtas to undertake the necessary revision is such that it could, and possibly should, indicate that the Oireachtas ought to commence the necessary work of revision based on the Preliminary Results and act urgently on the ascertainment of the “Principal Demographic Results”.

    5. Although the Electoral Act 1997 and the system for appointing the Constituency Commission is reasonable it does not excuse the Oireachtas from addressing the need to urgently revise constituencies and to act in the light of that urgency as circumstances dictate.

    6. The application of the Defendants for costs is adjourned to 22nd June 2007. The Court indicated that he did not view the merits in the case as being all on one side. The Plaintiffs stated they would be looking for their costs against the Defendants on 22nd June next.

Constituencies Constitutional Challenge – Reserved Judgement

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

 

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

Defendants

    6th June 2007

    1. The High Court (Clarke J.) will deliver reserved judgment in the action at 1.45 pm tomorrow, 7th June 2007.

MRSA Conference

The MRSA & Families Network have organised a conference entitled, “MRSA: What is it costing us?â€? to be held on 19TH JUNE 2007 at the Emmett Theatre, Trinity College Dublin, from 9.30 am to 4.40 pm.

Admission is free.

PIAB and Personal Injuries

1. In Ireland, to suffer an injury in a road traffic accident is to be at the beginning of a painful (in every sense), long, and tiresome process.

2. Since the establishment of the Personal Injuries Assessment Board (“PIABâ€?) in 2003, it is no longer lawful, with some exceptions, for an injured person (“applicantâ€?) to promptly and of course, seek compensation for such injuries in court.

3. Under the Personal Injuries Assessment Board Act 2003 such applicants are obliged, if they seek compensation, to undergo the difficult and often long-drawn out procedures of PIAB.

4. The immediately relevant difference between a PIAB assessment and a verdict from a court is that the verdict is binding, whereas a PIAB assessment is not. That means that if the applicant does not like the result of the PIAB assessment, the applicant is not obliged to settle for that sum. Likewise, if the person (“respondentâ€?) alleged to have injured the applicant does not like the result of the PIAB assessment, s/he is not obliged to pay that sum.

5. Indeed, unlike the applicant, if the respondent does not like the PIAB process at all, s/he is not obliged to submit to it at all. (more…)

Who?

The subject of this posting is the small and somewhat obscure collection of what appears to be self portraits immediately outside the Supreme Court in the Four Courts, Inns Quay, Dublin 7. (It is not intended, by this precision, to imply there is another, or other, Four Courts in another postal district). It is, hopefully, concise; (see Eoin O’Dell HERE for a description of what an extended posting can look like).

The portraits are of former Chief Justices of Ireland of what, in Ireland, would be modern times. The portraits of the Chief Justices of Ireland of pre-modern times are to be found in the Kings Inns, Henrietta St. Dublin 7.

Those portraits are very large oil paintings of the then conventional type and probably (I have not investigated the issue) include a portrait of Tom Lefroy, the man Jane Austen would probably have married if she had been asked.

He undoubtedly features in some of her novels and in turning away from social obscurity (in the person of Ms. Austen) found social eminence on the walls of the dining hall of the Kings Inns with, in the long run, concomitant obscurity.

The modern portraits are modest affairs by his standard. They are not of oils; it would be surprising to find a capacity to paint in oils, particularly a self portrait, in a Chief Justice.

They suffer from poor hanging; the location is not favourable to the viewings of the works, being dark and at a junction in the corridors carrying relatively heavy pedestrian traffic.

Even Chief Justices should remember the experience of The Little Red Hen; you have to do it yourself, and therefore you have to do it ALL yourself.

Police Informants: A little bird told me

Members of the Garda Siochana sometimes get confidential information from informants. Frequently neither the informant nor the Garda wish the source of the information to emerge publicly.

Its emergence can be prevented under the common law “informer privilegeâ€?.

Generally the information will lead to an application for a search warrant. The application is generally made to a District Court judge or, sometimes, a Peace Commissioner.

The Garda applicant will usually have to prove on oath that s/he has reasonable grounds for believing [a set of facts] indicating the need for a search of a premises. The judge or Commissioner might ask questions and would, in the event of receiving unsatisfactory replies, be in a position to decline to issue the warrant.

Generally, therefore, there is some safeguard against abuse by the Garda Siochana.

If the warrant is not validly issued the lawfulness of the search and the admissibliity of any evidence obtained will be compromised.

In DPP v Yamanoha [1994] 1 IR p. 565 the Garda Siochana applied to a Peace Commissioner for a search warrant for a search of an hotel room. The record of the facts sworn to, showed the officer said he was a Garda officer and held a belief. The grounds of the belief were recited as confidential information and surveillance by other officers. The validity of the warrant was challenged on the basis that the Peace Commissioner had no knowledge of the statutory grounds for the issue of the warrant. The prosecution led further evidence, of the giving of oral evidence, given by the Garda officer to the Peace Commissioner. Unfortunately, the Peace Commissioner remembered this as being tendered before the officer took the oath; the officer remembered it as being tendered afterwards. The trial judge accepted the evidence of the officer but the Court of Criminal Appeal quashed the conviction [for possession of drugs] deeming the warrant invalid, remarking that the trial judge should have preferred the evidence of the Peace Commissioner.

In Hanahoe & Ors. v Hussey & Ors. [1998] 3 IR p. 69 a district Court judge issued a search warrant on the averment of a Garda officer that he had reasonable ground for suspicion… The High Court found, inter alia, that the officer was, in applying for the warrant, obliged to justify the officer’s opinion by revealing the relevant facts to the judge being asked to issue the warrant.

In The People (DPP) v Mark Kenny [1990] 2 IR p. 110 the Court of Criminal Appeal held that a warrant issued by a Peace Commissioner on the basis of Garda evidence that the Garda had “a suspicionâ€? pursuant to information in his possession was invalid. The Peace Commissioner was the person to be satisfied and an inquiry into the basis for the Garda’s belief was obligatory. Nevertheless, the CCA declared the evidence obtained pursuant to the warrant admissible. The Supreme Court, on appeal, found that evidence obtained as a result of a deliberate and conscious violation of constitutional rights of a citizen must be excluded unless the court in its discretion was satisfied that there were extraordinary excusing circumstances which justified the admisison of the evidence or that the act constituting the breach of constitutional rights was committed unintentionally or accidentally. In the particular case there were no extraordinary excusing circumstances and the act was not committed unintentionally or accidentally and therefore the evidence was not admissible.

Whatever about the relative safeguard of the need to apply to a District Court judge or a Peace Commissioner for a warrant, there can be very little where the warrant is issued under the provisions of Section 29 of the Offences Against the State Act 1939 as inserted by Section 5 of the Criminal Law Act 1976. In that case the issuing authority is another Garda officer not below the rank of superintendent. There is no obligation that the superintendent be operationally divorced from the applicant officer.

In other words, the police issue the search warrant to the police.

Furthermore, “informants” may be Garda officers, sometimes the applicant officer himself.
The opportunity to challenge the “confidentiality” of the basis of the application will be reduced to nil.

Personal Injury – Construction Industry (2)

For Employers’ duties see HERE

Under Statutory Instrument No. 386/2006 certain general duties are imposed on employers. The SI also transposes the terms of Council Directive 92/57/EEC into Irish law.

Personal Injury – Construction Industry

For Employers’ duties see HERE

According to a report in 1990 from an advisory group of employers, trade unions, the National Industrial Safety Organisation and the Health and Safety Authority Inspectorate, the main causes of building accidents, were cost-cutting, lack of control over sub-contractors and time-saving measures.

The study showed, in the case of the sample of incidents reviewed, that 20% involved falls; 20% involved ladders or scaffolds; 11% involved contact with power lines; 9% involved collapse of trenches.

In 1985 the safety Officer of the Construction Industry Federation reported “….. it is evident that many of the site managers and workers have no idea of their responsibilities under the Acts”.

According to the then Minister for Labour, in 1988, building sites were among the most dangerous places in Europe. He said a sizeable number of building site were not being reported to his Department.

Over the previous10 years more than 70 people were killed and 5,000 seriously injured on Irish building sites.

Stupid ‘oul Pencils

Significantly, almost the first of Bertie Ahern’s issues, raised by him after the election, was the use of e-voting machines. The title of this posting is a quote from him, condemning the alternative traditional paper system.

Suffice to say that there are many people who disagree with him as can be seen HERE and HERE. They say that the purchase of the e-voting system was a waste of taxpayers’ money and, so far, a complete loss of that money and consequential expenditure.

The current estimate of the loss for which his Government is allegedly responsible is between €50 and €60 million and growing.

As far as can be judged, he seems to intend to try to spend his way out of the problem.

But is there another route?

Possibly.

For example, two companies are maintaining the London Underground. One, Metronet, is heading for a £1 billion overspend with insolvency looming; the other, Tube Lines, is, apparently, on budget.

Even if Metronet goes bust London Underground is adamant it will not change the contract with Metronet. Under the PPP contract there is an arbiter to decide conflict issues between Metronet and London Underground

Contracts of this kind are complex arrangements involving legal principles and take account of changing factual or economic circumstances.

So, what of Ireland’s e—voting machines? Do we know what was in the contract for the sale and supply of the machines (and the software)? No, we do not. Most if not all such contracts are not available under Freedom of Information (FOI) legislation due to “commercial sesitivityâ€?.

This category of exception under FOI can conceal failures to properly express the relationship between the parties. NEDAP supplied the machines to the Irish Government. In terms of knowledge and experience it is superior to the Government. Did the contract reflect that?

Did the Government have the services of an IT consultant as it negotiated the NEDAP contract?

In Stephenson Blake (Holdings) Ltd. v Streets Heaver Ltd. [2001]Lloyd’s Rep P.N. 44, QBD (OR) the UK court set out the obligations of a consultant on such a contract; the consultant must advise if the client’s perceived needs correspond to its actual needs; the consultant must advise if the client’s needs will be met by the IT system; the consultant must advise if the client’s staff and the consultant’s staff are capable of completing the project and finally, whether the client’s budget is and will be sufficient to meet the client’s objectives.

In St. Albans City and District Council v International Computers Ltd. [1995] F.S.R. 686, QBD; [1997] F.S.R. 251, CA the UK court decided an IT supplier must inform the customer exactly what the supplied system will do for the client; inform the customer exactly what the supplied system will not do for the client; and clarify the consequences for the client of the system not doing the things it will not do.

What Bertie Ahern ought to do is to have a review of the contract with NEDAP. That review should seek to identify what the express and implied terms of the contract with NEDAP are; it should check to see if, in the light of that review, NEDAP is in breach of the terms of supply or, if a consultancy was involved whether the consultant was in breach of its express and implied terms.

Given the substantial sums involved the taxpayer is entitled to nothing less.

Constituencies Constitutional Challenge – Election result

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

 

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

Defendants

    28th May 2007

    Although it was not, and is not, an issue in the litigation, it would not be inappropriate to report the outcome of the General Election for the two Plaintiff candidates, in their respective constituencies.

    a) Catherine Murphy just lost her seat in a close race;

    b) Finian McGrath retained his seat;

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