Monitoring of smartphones and by CCTV in the workplace

I recently participated in an interdisciplinary seminar at UCC on 'Electronic Monitoring in Ireland: Shaping what we do and who we are'.

The title of my talk was 'Monitoring of smartphones and by CCTV in the workplace'. 

I discussed the legal implications of (a) use of smartphones and (b) monitoring by CCTV in the workplace.

Smartphones allow receipt of emails on a 24/7 basis, even when the employee is in theory off duty.  Employees’ locations may also be monitored.  The implications for employees’ mental health and compliance with the Working Time Directive were considered.  CCTV monitoring also raises significant issues, for example regarding the purposes of monitoring and the relationship between data protection law and employment law.

My presentation:
http://bit.ly/monitoring-law

A podcast interview:
"Listen to Dr Darius Whelan (@dariuswirl) speak with Jane Mulcahy (@janehmul) about the monitoring of smartphones in the workplace and the use of CCTV by employers"
https://itunes.apple.com/ie/podcast/dr-darius-whelan-shares-his-thoughts-on-electronic/id1288572014?i=1000408249932

[UCC School of Law Podcast]     If you don't have iTunes, the file is here.

The organisers of the seminar were Dr. Eleanor Bantry-White, Applied Social Studies; Dr. Katharina Swirak, Criminology; Dr. Debora Jeske, Applied Psychology; Dr. Fiona Donson, Law.

Speakers included
Professor Mike Nellis, Emeritus Professor of Criminal and Community Justice in the Law School, University of Strathclyde
Dr. Ciaran McCullagh, Associate Professor, University of Limerick
Gerry McNally, President of the Confederation of European Probation (CEP) and Assistant Director, Irish Probation Service
Professor Frederic Adam, Business Information Systems, UCC
Dr. Eleanor Bantry White, UCC School of Applied Social Studies
Dr. Orla O’Donovan, UCC School of Applied Social Studies

Some tweets may be found at #EMIreland

Case-law referred to in my presentation includes:

UPC Ireland v UNITE and SIPTU (2015)  LCR20938
https://www.workplacerelations.ie/en/Cases/2015/March/LCR20938.html

O'Connor v Galen Ltd (UD 1514/2009)

Köpke v. Germany (2010)
http://hudoc.echr.coe.int/eng?i=001-101536 

López Ribalda v Spain (2018)
http://www.bailii.org/eu/cases/ECHR/2018/14.html

Ali v First Quench (2001)
www.bailii.org/ew/cases/EWCA/Civ/2001/446.html

McGowan v Scottish Water (2004)
www.bailii.org/uk/cases/UKEAT/2004/0007_04_2309.html

Gresham Hotel (Case Study 6 of 2007)
https://www.dataprotection.ie/docs/Case-Studies-2008/c/732.htm#6

Westwood Swimming (2011)
https://www.dataprotection.ie/docs/Case-Studies-2011/1212.htm#9

Employee v Employer (Supermarket Restaurant) UD893/2010 (2012)
https://www.workplacerelations.ie/en/Cases/2012/September/UD893_2010_MN848_2010.html

Events in November 2015 and after

I've updated the listings of events as follows:

Thu. 26 Nov. 2015:
European Data Privacy Rights and Democratic Politics: A Tangled Web - Professor Deirdre Curtin,
Irish Society for European Law, Dublin
Details at https://www.isel.ie/event/view/108/n-a

27-29 Nov. 2015:
The Law Lecturer: Enhancing Academic Life - Annual Conference of the Irish Association of Law Teachers 2015 – Salthill Hotel, Galway
Details at http://www.ialt.ie/event/annual-conference-of-the-ialt-2015

Fri. 27 Nov. 2015:
Securing Accountability: Building effective prison monitoring, inspection, and complaints systems - Irish Penal Reform Trust, Dublin
http://www.iprt.ie/contents/2792

Fri. 27 November 2015:
Emmanuel Mellisaris (London School of Economics) - ʻSolidarity and Punishmentʼ - Legal and Political Theory Workshop Series, NUI Galway
http://www.nuigalway.ie/business-public-policy-law/school-of-law/research/lptheory/

Sat. 28 Nov. 2015:
Graça Machel, one of the world’s leading women’s rights activists is to deliver the Second Annual International Human Rights Lecture - Mary Robinson Centre, Ballina, Co. Mayo
Details at http://www.maryrobinsoncentre.ie/events.html

Sat. 28 Nov. 2015:
Current Legal Challenges Facing Primary School Management - Law School, Trinity College Dublin
http://www.tcd.ie/Law/events/2015/primary-schools-legal-challenges.php

Mon. 30 Nov. 2015:
Direct Democracy Considered – Irish, Scottish, Swiss, and Transnational European Perspectives on the Use of Referendums, Quinn School of Business, UCD
Details at http://www.ucd.ie/law/eventsseminars/title,260230,en.html

Tue. 1 Dec. 2015:
The Future of the European Court of Human Rights
Irish Society of International Law, Dublin
Details at http://seanlester9.eventbrite.ie

Tue. 1 Dec. 2015:
Deflecting the Law from its Course: Capital Punishment and Clemency in Ireland, 1923-1990 - Professor Ian O'Donnell, Hugh M. Fitzpatrick Lecture in Legal Bibliography, Dublin
Details at http://www.lawsociety.ie/Courses--Events/Other-Events/Events/Hugh-M-Fitzpatrick-Lecture-in-Legal-Bibliography2/

Wed. 2 Dec. 2015:
Constitutionalising Labour Rights - Professor Judy Fudge, UCD Sutherland School of Law
Details at http://www.ucd.ie/law/eventsseminars/title,258804,en.html

Thu. 3 Dec. 2015:
Using the Law to Secure Social Justice - Lecture by Michael Farrell, FLAC, Dublin
http://www.flac.ie/news/events/2015/12/03/ninth-annual-dave-ellis-memorial-lecture/

Thu. 3 Dec. 2015:
Barristers at War, Courts Centenary Commemoration Committee, Dublin
Details at http://www.lawsociety.ie/Courses--Events/Other-Events/Events/Barristers-at-War-Lecture/

Sat. 5 Dec. 2015:
Precedent in the EU: The Linguistic Aspect Irish Centre for European Law and University of Exeter Workshop, Dublin
Details at http://www.icel.ie/Precedent

Wed. 9 Dec. 2015:
Constitutional Law: An Update - UCD Sutherland School of Law, Dublin
http://www.ucd.ie/law/eventsseminars/title,259667,en.html

Wed. 9 Dec.2015 12:30 PM:
Two Cheers for the Anti-Impunity Norm - Ulster University, Transitional Justice Seminar Series, Jordanstown campus
https://www.ulster.ac.uk/ulster-life/events/transitional-justice-institute/anti-impunity-norm

Thu. 10 Dec. 2015:
The EU Digital Single Market: Professor Robert Clark, Arthur Cox Solicitors, IP Law Café at University of Limerick
Details at http://www.ul.ie/law/news/00%5Bnid%5D-ip-law-café-201516

Fri. 11 Dec. 2015:
Employment Law - Irish Centre for European Law conference, Dublin
Details at http://www.icel.ie/Employment2015 

Fri. 11 December 2015
Bebhinn Donnelly-Lazarov (Swansea University) - ʻWhat does it mean to be responsible for action: lessons from criminal lawʼ - Legal and Political Theory Workshop Series, NUI Galway
http://www.nuigalway.ie/business-public-policy-law/school-of-law/research/lptheory/

Mon. 14 Dec. 2015:
Where Next For a Bill of Rights for Northern Ireland - Transitional Justice Institute, University of Ulster, Belfast
http://www.ulster.ac.uk/ulster-life/events/transitional-justice-institute/a-bill-of-rights-for-northern-ireland-where-next

2016:

Thu. 21 Jan. 2016:
Valuing IP rights: Professor Bill Murphy, School of Law, UNH, IP Law Café at University of Limerick
Details at http://www.ul.ie/law/news/00%5Bnid%5D-ip-law-café-201516

Tue. 29 January 2016
Zoi Aliozi (NUI Galway Irish Centre for Human Rights) - ʻDeconstructing Human Rights in Times of Economic Crisis: A Philosopho-Legal Approachʼ - Legal and Political Theory Workshop Series, NUI Galway
http://www.nuigalway.ie/business-public-policy-law/school-of-law/research/lptheory/

Thu. 18 Feb. 2016:
IP and Disruptive Technologies : 3D Printing explored: Kate Harnett, William Fry Solicitors, IP Law Café at University of Limerick
Details at http://www.ul.ie/law/news/00%5Bnid%5D-ip-law-café-201516 

Fri. 19 February 2016:
Michael Sevel (University of Sydney) - ʻJoseph Razʼs Philosophy of Human Rightsʼ - Legal and Political Theory Workshop Series, NUI Galway
http://www.nuigalway.ie/business-public-policy-law/school-of-law/research/lptheory/

Fri. 4 March 2016:
Elizabeth Shaw (University of Aberdeen) - ʻFree will scepticism and criminal behaviourʼ - Legal and Political Theory Workshop Series, NUI Galway
http://www.nuigalway.ie/business-public-policy-law/school-of-law/research/lptheory/

Thu. 10 Mar. 2016:
National and international taxation of IP rights: Professor Jeffrey Maine, University of Maine Law School, IP Law Café at University of Limerick
Details at http://www.ul.ie/law/news/00%5Bnid%5D-ip-law-café-201516

Fri. 18 March 2016:
Mairead Enright and Emilie Cloatre (University of Kent) - ʻTransformative Illegality: Condom Mail Order in the West of Irelandʼ - Legal and Political Theory Workshop Series, NUI Galway
http://www.nuigalway.ie/business-public-policy-law/school-of-law/research/lptheory/

Fri. 8 April 2016:
Michael Frazer (University of East Anglia) - ʻThe Ethics of Social Explanation: Causal and Interpretive Approaches as Expressions of (Dis)Respect for Subjectsʼ - Legal and Political Theory Workshop Series, NUI Galway
http://www.nuigalway.ie/business-public-policy-law/school-of-law/research/lptheory/

Mon. 18 Apr 2016 2:00 p.m.:  
Access to Justice; identifying the problems, finding the solutions - WIT Waterford, School of Humanities, and the Association of Family and Conciliation Courts, Seminar, Dublin
Contact   Sinead Conneely - sconneely@wit.ie

Thu. 21 April 2016:
Law and the Environment 2016 - School of Law, University College Cork
Details to follow at http://www.ucc.ie/law/ 

Thu. 21 April 2016:
Protecting Patents: Michael Lucy, Patent Attorney, IP Law Café at University of Limerick
Details at http://www.ul.ie/law/news/00%5Bnid%5D-ip-law-café-201516 

Fri. 29 April 2016:
Yaniv Roznai (The Minerva Centre for the Rule of Law Under Extreme Conditions, University of Haifa) - ʻUnconstitutional Constitutional Amendmentsʻ - Legal and Political Theory Workshop Series, NUI Galway
http://www.nuigalway.ie/business-public-policy-law/school-of-law/research/lptheory/

Fri. 13 May 2016:
Uladzislau Belvusau (Vrije Universiteit Amsterdam), Alexsandra Gliszczynska-Grabias (Poznan Human Rights Centre) and Ioanna Tourkochoriti (NUI Galway) - ʻRemembering Holocaust and other Atrocities Through Lawʼ  - Legal and Political Theory Workshop Series, NUI Galway
http://www.nuigalway.ie/business-public-policy-law/school-of-law/research/lptheory/

23-24 May 2016:
(Dis)locating Comparative Law: Annual conference of the Irish Society of Comparative Law, NUI Galway
http://bit.ly/ISCL-2016

27 June to 1 July 2016:
Summer School on Transitional Justice 2016 - Transitional Justice Institute, University of Ulster, Belfast
http://www.ulster.ac.uk/ulster-life/events/transitional-justice-institute/summer-school-on-transitional-justice-2016

Law Society Diploma and Certificate courses:  

Details at http://www.lawsociety.ie/Courses--Events/Public-Diplomas-CMS/

Diploma in Arbitration; Diploma in Finance Law; Diploma in Corporate Law and Governance
Diploma in Mediation; Diploma in Technology Law; Diploma in In-House Practice
Diploma in Litigation Management Skills (new); Certificate in Aviation Leasing and Finance
Certificate in Advanced Negotiation; Certificate in Charity Law, Trusteeship and Governance
Certificate in Employment Law Advocacy Skills; Certificate in Commercial Contracts
Certificate in Company Secretarial Law and Practice; Certificate in Trade Mark Law
Diploma in Aviation Leasing and Finance; Diploma in Commercial Property;
Diploma in Employment Law; Certificate in Data Protection Practice;
Certificate in Environmental and Planning Law; Certificate in Human Rights Law

Follow Irish Law Events on Twitter - @irishlawevents

To receive an e-mail each time a new event is added to Irish Law Events, use this link to submit your e-mail address:  http://url.ie/5zj

School Admissions and the Equal Status Act

I have written a short piece for the Irish Times concerning school admissions and the Equal Status Act.  The article has been published here.  I may in due course develop this into a longer article for a journal in which I can provide evidence for each aspect, and tease out the issues in more depth. 

Some extra points:

The Supreme Court case is Stokes v Christian Brothers High School [2015] IESC 13.

My article only discusses the main judgment in the case, agreed by three judges. It does not discuss the other judgment in the case, in which two judges found that the Supreme Court did not have jurisdiction to hear an appeal in a case such as this.

The Equality Authority appeared as amicus curiae in this case.  See the press release of the Irish Human Rights and Equality Commission (which replaces the Equality Authority). 

Aisling Twomey writes in the Irish Examiner about how travellers would thrive if they were given the opportunity. 

The earlier stages  are as follows:

• Equality Tribunal - DEC-S2010-056
• Teehan J., Circuit Court - [2011] IECC 1
• McCarthy J., High Court, 3 February 2012 - http://tinyurl.com/stokes-HC 

Commentary on the High Court stage:

• Olivia Smith, ‘Perpetuating Traveller children’s educational disadvantage in Ireland: Legacy rules and the limits of indirect discrimination’ (2014) 14 International Journal of Discrimination and the Law 145 (Sage Journals)
• Mel Cousins, "Travellers, equality and school admission in the High Court: Stokes v Christian Brothers High School Clonmel" - http://works.bepress.com/mel_cousins/22
• Page at Northern/Irish Feminist Judgments Project 

 I previously posted on travellers in County Clare and the Equal Status Act.

Time to remove mental health disqualification for TDs

Dáil Éireann - CC BY by apanoply

The Guardian reported yesterday that the British government will support a private member's bill by the MP Gavin Barwell which would remove laws which discriminate against people who have mental health problems, including a ban on "mentally disordered persons" from doing jury service, a bar on people who have been sectioned under the Mental Health Act for more than six months from becoming MPs, and another that can have people removed as director of a company "by reason of their mental health".

It is high time that similar restrictions were removed in Ireland.  For example, section 41 of the Electoral Act 1992 states that a "person of unsound mind" may not be a member of the Dáil.
This section has not been repealed.

(By the way, this is also the section which bans undischarged bankrupts or those undergoing a sentence of 6 months or more).

In January 2010, John Moloney TD, then Minister of State for Mental Health and Disability, said that he had written to the Minister for the Environment asking that the relevant restriction on membership of the Dáil be repealed (see article by Mark Tighe in Sunday Times, 31 January 2010).  He also said at the time that he had stress and depression two years previously, forcing him to take four weeks off work.  At the time he referred to s.51 of the Electoral Act 1923, but that had been repealed and replaced in 1992.

In a similar vein, the European Court of Human Rights has overturned an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties in Kiss v Hungary (2010).

In 2011, the Venice Commission reversed an anomaly which allowed countries to exclude people with "genuine mental disabilities" from the ballot box. See more at http://www.savethevote.info, a site set up by the Mental Disability Advocacy Centre in Budapest.

See also June Shannon, 'Fears that Dáil rule fuels mental health stigma', Medical Independent, 2 Jun 2011.

[ Dáil Éireann photo - CC BY from Flickr by apanoply ]

Forthcoming Events

The list of forthcoming Irish Law events has been updated. The full list appears here. To subscribe to the Irish Law site e-mail updates list, fill in the form here. Sample events on the list:

Thu.19 Nov.'09:
Mental Health in Prison - Dublin
http://www.iprt.ie/contents/1462

Sat. 21 Nov.'09:
Economic, Social and Cultural Rights – Making States Accountable - Annual Human Rights Conference of the IHRC and the Law Society of Ireland, Dublin
http://www.ihrc.ie/home/wnarticle.asp?NID=241&T=N&Print=

Wed.25 Nov.'09:
Constitutional Courts and the Lisbon Treaty - ISEL 7th Annual Brian Walsh Memorial Lecture, Dublin
http://www.isel.ie/index.php?option=com_gigcal&Itemid=60

Thu.26 Nov.'09:
ECHR Update: The Recent Use of the ECHR in the Courts, Procedure, Remedies and Analysis - Dublin
http://www.icel.ie/events_currentprogramme.php

Thu.26 Nov.2009:
A Comparatist’s Analysis of the Convergence of Legal Systems - Dublin
http://tinyurl.com/iscl-1

Thu.26 Nov. 2009:
National Asset Management Agency - UCD Commercial Law Centre, Dublin
http://www.ucd.ie/iccls/programs.htm

Fri. 27 Nov.2009:
Assessing Liability in Asset Management - Placing the Legal Principles in their Financial Context - UCD Commercial Law Centre, Dublin
http://www.ucd.ie/iccls/programs.htm

Sat. 28 Nov.'09:
Aspects of Asylum and Immigration Law - The Bar Council of Ireland, Dublin
http://tinyurl.com/lawlib111

Sat.28 Nov.'09
Recent Developments in Irish Defamation Law, Including the Defamation Act 2009 - School of Law, Trinity College Dublin, CPD Conference
www.tcd.ie/Law/Events

Mon.30 Nov.'09:
The Intel Decision - ISEL Competition Law Forum, Dublin
http://www.isel.ie

Mon.30 Nov.'09:
Launch of IPRT report on Detention of Children - Dublin
http://www.iprt.ie/contents/1457

Tue.1 Dec.'09:
FLAC Third Annual Dave Ellis Memorial Lecture
http://tinyurl.com/flac3rd

Wed.2 Dec.2009:
Land and Conveyancing Law Reform Act 2009 - UCD Commercial Law Centre, Dublin
http://www.ucd.ie/iccls/programs.htm

Thu.-Fri.3-4 Dec.2009:
Police Governance and Accountability, Limerick
http://www2.ul.ie/pdf/375079620.doc

Thu.-Fri.3-4 Dec.'09:
Intensive Course on Planning Law (Including Developments on Strategic Infrastructure, Habitats and the New Planning Bill 2009) - Centre for Environmental Law, School of Law, Trinity College Dublin, CPD Course
http://www.tcd.ie/Law/Events

Sat.5 Dec.'09:
Meeting the Challenges - New Ways of Doing Business. Speakers: K Erwin, Mediators'Institute of Ireland; J Maguire Collaborative Law; P Marrinan Quinn SC Conflict & Dispute Resolution Diploma TCD: T O'Riordan Manager Public Interest Law Project FLAC. Irish Women Lawyers' Association, Dublin.
http://www.iwla.ie

Sat.5 Dec.'09:
Tort Litigation: Recent Developments - School of Law, Trinity College Dublin, CPD Conference
http://www.tcd.ie/Law/Events

Fri.11 Dec.'09:
Intensive Course on Waste Law including the New Waste Directive - Centre for Environmental Law and Policy, School of Law, Trinity College Dublin, CPD Course
http://www.tcd.ie/Law/Events

5-6 March 2010:
Irish Society of Comparative Law Annual Conference, Belfast
http://tinyurl.com/iscl-1

Mental Health Act 2001: Unresolved Issues

I've been waiting for the full decision in a mental health case from 31 October 2008 to appear on the courts.ie website, but there's no sign of it yet. I wrote an article for the Irish Times about this case on 4 November (full text here.)



Here are some extracts from the Irish Times article, with links:



The hasty enactment of the Mental Health Act 2008 ... has probably resolved the legal issues caused by the recent High Court case, but there are other related issues that remain unresolved. Mr Justice Bryan McMahon issued a significant ruling in the case of a woman who has been detained in St Patrick's Hospital since August 2007. Various legal issues arose regarding her detention. ...


[McMahon J. decided that a renewal order for a period not exceeding 12 months was void for uncertainty. However, he put a four-week stay on his order directing the patient's discharge.]


This whole affair raises questions as to the wording of the Mental Health Act 2001, and the forms specified by the Mental Health Commission. As Mr Justice McMahon pointed out, "the error in this case was prompted by the wording of the form used by the Commission". ....



As regards the wording of the Mental Health Act, a number of issues have arisen regarding the time limits, and these have led to the Commission issuing a 1,200-word guidance page on "Duration of Involuntary Admission and Renewal Orders". This guidance will need to be amended in the light of the recent court case. It may now be better to reword the Act so that the time limits operate in a more logical and streamlined manner....

...
It is noteworthy that a number of other significant issues remain unresolved and require urgent attention. For example, a patient who has their detention renewed for six months (for example), cannot apply to a Mental Health Tribunal for a review of their case during the six-month period, and must wait until the automatic review which will occur at the end of the six months, if the psychiatrist makes a renewal order. This is in spite of a clear ruling from the European Court of Human Rights in Rakevich v Russia in 2003, where it was stated that "the detainee's access to the judge should not depend on the good will of the detaining authority".


The 2001 Act provides that a person may be removed to an approved psychiatric centre by members of staff of the approved centre in certain circumstances (s.13). These "assisted admissions" are often carried out by an independent contractor, rather than members of staff. In the R.L. case in 2008, it was held by the Supreme Court that the use of an independent contractor was a breach of the Act, although the patient's detention was upheld. It appears that such breaches of the Act have continued, in spite of the legal difficulties which they raise.
There are serious doubts about the burden of proof in Circuit Court appeals, where the patient is required to prove that he or she does not have a mental disorder (s.19), even though such a burden would appear to be contrary to the European Convention.


In addition, the powers of Mental Health Tribunals are unduly restricted by the 2001 Act. They may not consider questions of compliance with the sections on removal to the approved centre (s.13), referral of the admission order to the tribunal (s.17), transfer of a patient to hospital (s.22) or compliance with the Mental Treatment Act 1945.


The time has come for a fundamental review of the Mental Health Act 2001 in light of the Irish case law to date, experience in the operation of the Act and recent decisions of the European Court of Human Rights. Reference may also be made to the Mental Health Commission's Report on the Operation of Part 2 of the Mental Health Act 2001 (2008) and the Department of Health and Children's Review of the Operation of the Mental Health Act 2001: Findings and Conclusions (2007).

Report of Commissioner for Human Rights on Ireland

The Report of the Commissioner for Human Rights on his visit to Ireland was just published on 30 April. It includes responses from the Irish Government.

Commissioner for Human Rights, Report by the Commissioner on his Visit to Ireland 26 - 30 November 2007 (CommDH(2008)9, Council of Europe, 2008)

Go to
www.commissioner.coe.int and choose 'Latest Documents'

For a link to the actual report, try this:
https://wcd.coe.int/ViewDoc.jsp?id=1283555

[Click the PDF icon if you want a PDF version]

Media report (extract):

Commissioner doesn't pull his punches
Irish Times, 1 May 2008
www.ireland.com/newspaper/ireland/2008/0501/1209592340146.html

Ireland's record in looking after vulnerable people is graphically spelt out by the Council of Europe, writes Jamie Smyth, European Correspondent

COMMISSIONER FOR human rights Thomas Hammarberg didn't pull any punches when he presented his report on Ireland's human rights record to the Council of Europe's committee of ministers in Strasbourg yesterday.

His 58-page analysis of Government policy lays bare his office's assessment that the standard of care currently provided to vulnerable groups in society such as children, asylum seekers, Travellers and psychiatric patients is unacceptable.

Equality and the Sikh Turban Ban

Lord Lester facilitated a fascinating workshop this morning here at UCC on Equality Law, assisted by Colm O'Cinneide.

Among the many interesting points that arose concerning the recent ban on a Sikh turban in the Garda reserve were the following:

• Could it be argued that a member of the Garda reserve is engaged in an "occupation" (under the Framework Directive 2000/78/EC)

• Even though the particular person involved has withdrawn from the Garda reserve, could a Judicial Review be brought against the Garda Commissioner's decision?

• Could a JR application be made by the Equality Authority and/or the Human Rights Commission?

• If a JR were brought, an argument could be made that the Garda Commissioner's decision applies both to members of the reserve and ordinary Gardai, if need be, in response to any defence relating to the status of members of the reserve.

Transgender Law - Lydia Foy in High Court

As many people will know, the High Court has decided in the Lydia Foy case that it will issue the first declaration of incompatibilty of an Irish law with the European Convention on Human Rights. [update April 2008 - The full judgment is available on the Courts Service website at http://tinyurl.com/5v764b. ]

Sample news stories and blog posts:

"State in breach of ECHR in transgender case
www.ireland.com/newspaper/breaking/2007/1019/breaking49.html

The High Court has ruled that the State is in breach of the European Convention on Human Rights (ECHR) over its failure to recognise a sex change that a transgendered person underwent more than a decade ago. "

Sex change law incompatible with ECHR:
www.rte.ie/news/2007/1019/foyl.html

The Foy Case (CCJHR Blog - Fiona De Londras):
www.ucc.ie/law/blogs/ccjhr/2007/10/foy-case.html

Tanya Ní Mhuirthile, Time to respect the rights of all gender identities, Irish Times:
www.ireland.com/newspaper/opinion/2007/1101/1193444281616.html

Previous Lydia Foy case:
www.bailii.org/ie/cases/IEHC/2002/116.html

Media and Tribunals

A Divisional Court of the High Court has ruled that Geraldine Kennedy and Colm Keena of the Irish Times must answer questions regarding the source of an article abou the Mahon Tribuanl.

The full judgment is not yet on the Courts Service website but is available here.
Title: Judge Mahon and Others v Keena and Kennedy, [2007] IEHC 348, High Court, 23 October 2007.
[Update 19 Nov. 2007:
The judgment is now available on the Courts Service website here.]

Cases cited in the judgment include

Oblique Financial Services Limited v. The Promise Production Company [1994]
Kiberd v. Hamilton [1992] 2 I.R. 257
Haughey v. Moriarty [1999] 3 I.R. 1
O’Callaghan v. Mahon [2006] 2 I.R. 32
O’Callaghan v. Mahon (No. 2), Supreme Court, 30th March, 2007
Mahon v. Post Publications Limited, High Court, 4th October, 2005
Mahon v. Post Publications Limited, Supreme Court, 29th March, 2007
Commonwealth of Australia v. Fairfax [1980] 147 C.L.R. 39
Sunday Times v. The United Kingdom (1979) 2 EHRR 245
Lingens v. Austria (1986) 87 EHRR 329
Castells v. Spain (1992) 14 EHRR 445
Goodwin v. The United Kingdom (1996) 22 EHRR 123
Dehaes and Gijsels v. Belgium (1997) 25 EHRR 1
Fressoz and Roire v. France (1999) 31 EHRR 28
Tromsov v. Norway (1999) 29 EHRR 12
Radio Twist AS v. Slovakia, European Court of Human Rights, 19th December, 2006
Tonsbergs & Blad A/S v. Norway, European Court of Human Rights, 1st March, 2007
Kwiecien v. Poland, European Court of Human Rights, 9th April, 2007
Ustun v. Turkey, European Court of Human Rights, 10th May, 2007
Ashworth Hospital Authority v. MGN Limited [2001] WLR 2003

Extract from the judgment:

In our view, nothing could be more damaging to the capacity of the Tribunal to carry out its functions than the perception that the Tribunal itself leaked information given to it in confidence. Thus, where a leak occurs as in this case, the Tribunal must inquire to establish the source of that leak as it has sought to do. Establishing that the Tribunal itself was not the source of the leak is in itself a legitimate aim and a pressing social need. At this stage, having regard to the destruction of the documents, the only means remaining to pursue that aim is by way of the proposed questioning of the defendants. If a Tribunal is not enabled to pursue the aim of establishing that it was not the source of the leak, even if it is not able to ultimately identify the source of the leak, the process of public inquiry in private investigative phase will be damaged to such an extent that there would be an inevitable loss of confidence in the integrity of the process and in all probability a significant reduction
in the voluntary co-operation of the public in its inquiry.
In the circumstances of this case we conclude that the defendants’ privilege against disclosure of sources, is overwhelmingly outweighed by the pressing social need to preserve public confidence in the Tribunal and as there is no other means, by which this can be done other than the enquiry undertaken by the Tribunal, we are of opinion that the test “necessary in a democratic society” is satisfied.
Accordingly, we will grant the relief sought.

Sample News Story: http://www.rte.ie/news/2007/1023/mahon.html

Blog Posting by Daithi Mac Sithigh:
http://www.lexferenda.com/26102007/anarchy-in-the-uk/

Mandatory Life Sentences, the Constitution and the ECHR

RTE is reporting that a challenge to the mandatory life sentence has been rejected:

Challenges to life sentences rejected Friday, 5 October 2007 16:20

"Two convicted murderers have lost their High Court challenge to the constitutionality of the mandatory life sentence for murder.

They are 25-year-old Peter Whelan, who was jailed for life in 2002 for the murder of Cork student Nicola Sweeney, and 30-year-old Paul Lynch, who pleaded guilty in 1997 to the murder of Donegal pensioner, William Campbell.

Each claimed the sentence breached their rights under the Constitution and under the European Convention of Human Rights.

The two men claimed the mandatory life sentence interfered with the role of the judiciary and offended the independence of the judiciary enshrined in the Consitution.

They also claimed their rights under the Convention were breached because they have no way of knowing how or when they are likely to be released.

The case could have had implications for more than 250 people serving life sentences for murder in Ireland.

But Ms Justice Mary Irvine rejected the men's claims on all grounds."

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