Cork Online Law Review 2007

Cork Online Law Review 2007
http://colr.ucc.ie

ARTICLES:

Foreword by Dr Carol Coulter, Family Law Reporter, Courts Service
1 Anthony Finegan - Asbestos-Related Injury Litigation
2 Eilionoir Flynn - Access to Services for People With Disabilities
3 Eleanor Leane - Principles of Juvenile Justice
4 Tom Flynn - Copyright Law in a Digital Age
5 Paul Daly - The House of Lords and the Government
6 Olufemi Amao - Reflexive Law and the C.S.R Debate
7 Ger Sadlier - The Success of the ECHR
8 Michelle Buddecke - Evolution of the Commercial Agent
9 Shannon Haynes - Statutory Rape Crisis
10 Pablo Cortés - Adapting Irish Small Claims Procedure
11 Stephanie Switzer - US Efforts to Impose TRIPS-Plus Standards
12 Brendan Ryan - Jus ad Bellum in the Israel-Hezbollah Conflict
13 Ronan O Brien - Analysis of the Postal Rule

http://colr.ucc.ie

Defamation Bill 2006

For detailed discussion of the Defamation Bill 2006, see

Video: Eoin O'Dell, "Careful What you Wish For? The Defamation Bill, 2006", University College Cork Law Society Conference 2006, at
www.ucc.ie/en/lawsite/lawonline/video/

Eoin O'Dell's various Blog Entries on the Bill:

• www.cearta.ie/2007/03/defamation-bill-slopes-towards-enactment/
• www.cearta.ie/2007/03/defamation-bill-in-the-seanad-or-where-are-the-isps/
• www.cearta.ie/2007/03/senator-norris-and-the-defamation-bill/

Proposed Referendum Regarding Children

The wording of the proposed constitutional amendment regarding children is available at
http://www.dohc.ie/press/releases/2007/20070219.html

The proposed Article 42(A) would say:

1. The State acknowledges and affirms the natural and imprescriptible rights of all children.
2. 1. In exceptional cases, where the parents of any child for physical or moral reasons fail in their duty towards such child, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
   2. Provision may be made by law for the adoption of a child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child, and where the best interests of the child so require.
3. Provision may be made by law for the voluntary placement for adoption and the adoption of any child.
4. Provision may be made by law that in proceedings before any court concerning the adoption, guardianship or custody of, or access to, any child, the court shall endeavour to secure the best interests of the child.
5. 1. Provision may be made by law for the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse, or risk thereof, of children, or other persons of such a class or classes as may be prescribed by law.
   2. No provision in this Constitution invalidates any law providing for offences of absolute or strict liability committed against or in connection with a child under 18 years of age.
   3. The provisions of this section of this Article do not, in any way, limit the powers of the Oireachtas to provide by law for other offences of absolute or strict liability.

For some discussion of the proposed amendment see the archives of the Irish Law Discussion group at
https://listserv.heanet.ie/cgi-bin/wa?A1=ind0702&L=irishlaw

See also the usual media sites such as www.rte.ie/news/

Launch of Centre for Criminal Justice and Human Rights, UCC, Cork

Announcing the launch of the Centre for Criminal Justice and Human Rights,

Faculty of Law, University College Cork

The Centre for Criminal Justice and Human Rights was established by the Faculty of Law, U.C.C. in 2006, building on the Faculty's expanding research and teaching programs in these fields. The Centre will be formally launched on Tuesday February 27th, 2007 with the first in a series of Annual Distinguished Lectures in Criminal Justice and Human Rights. Addressing one of the key questions for criminal justice and human rights today, Professor Conor Gearty, Rausing Director of the Centre for the Study of Human Rights, L.S.E, will speak on the topic:

'Criminal Justice and Human Rights: Rising to the Challenge of Counter-Terrorism'.

Venue: Aula Maxima, U.C.C.
Time: 6pm (registration from 5.30pm)
Date: Feb. 27th
RSVP: Feb. 20th ccjhr@ucc.ie

Professor Conor Gearty

Conor Gearty was born in Ireland and graduated in law from University College Dublin before moving to Wolfson College, Cambridge in 1980 to study for a Master's Degree and then for a PhD. He became a fellow of Emmanuel College Cambridge in 1983 and in 1990 he moved to the school of law at King's College London where he was first a senior lecturer, then a reader and finally (from 1995) a professor. On 1 October 2002, he took up a new appointment as Rausing Director of the Centre for the Study of Human Rights and professor of human rights law at LSE.
Conor Gearty has published widely on terrorism, civil liberties and human rights. His books include Terror (Faber, 1990) and two books with K D Ewing, Freedom under Thatcher (1989) and The Struggle for Civil Liberties (2000). One of his more recent books, Principles of Human Rights Adjudication, is a study of the place of the Human Rights Act in Britain's constitutional order. It locates the measure in its political and historical context and analyses the case law from the perspective not only of principle but also of practical experience. In his latest book, Can Human Rights Survive? <http://www.cambridge.org/catalogue/catalogue.asp?isbn=0521685524> , Conor analyses the problems facing human rights today and the challenges that need to be overcome if the subject is to continue to thrive. The book is based on the Hamlyn lectures that Conor gave in 2005.

Conor Gearty is also a barrister and was a founder member of Matrix chambers from where he continues to practice. He has been a frequent adviser to judges, practitioners and public authorities on the implications of the UK Human Rights Act, and has frequently lectured at home and abroad on the topic of human rights. He has appeared in human rights cases in the House of Lords, the Court of Appeal and the High Court.

About the Centre for Criminal Justice and Human Rights

The Centre for Criminal Justice and Human Rights was established by the Faculty of Law, U.C.C. in 2006. The study of crime, justice and human rights raises complex and often challenging questions for lawyers and policy makers. The Centre seeks to contribute to national and international debates on these questions, through the promotion of critical legal research, innovative programmes of legal education and training, and key partnerships with Government, statutory bodies and civil society organisations. The Centre builds on the success of the LLM Criminal Justice (Clinical) programme and the Faculty's growing international reputation for excellence in the fields of crime, justice and human rights.

For further information contact:
Dr Siobhan Mullally, Co-Director, Centre for Criminal Justice and Human Rights, s.mullally@ucc.ie <mailto:s.mullally@ucc.ie>

http://www.ucc.ie/en/lawsite/centres/CJHR/

Forthcoming Events 29 January 2007

A new Irish Law Updates e-mail has just been circulated, with details of all forthcoming events.

The full e-mail is available online at
www.irishlaw.org/updates/no31_29jan2007.shtml

Sample events include:

Tue.30 Jan.'07: Parental Rights to Custody - Annual Moot Court at Courthouse, Washington Street, Cork - UCC Faculty of Law
http://www.ucc.ie/en/lawsite/Text,29331,en.html

Tue.30 Jan.'07: The English Privacy Emperor is Not Wearing Strasbourg’s Clothes - Trinity College, Dublin http://www.lexferenda.com/?p=196

Wed.31 Jan.'07: Launch of Results of ISSA/ UCD Irish Cybercrime Survey - Dublin http://www.issaireland.org/cybercrime

February

Wed.7 Feb.'07: Practical IT Workshop - Faculty of Law, UCC, Cork http://www.ucc.ie/en/lawsite/eventsandnews/events/

Wed.7 Feb.'07: Acting for the Vulnerable Client - Law Society Seminar, Dublin http://www.irishlaw.org/events/lawsoc06-07.shtml

Tue.13 Feb.'07: Practical IT Workshop - Faculty of Law, UCC, Cork http://www.ucc.ie/en/lawsite/eventsandnews/events/

Mon.19 Feb.'07: Drunk Driving Offences: A Review of Recent Developments - Law Society seminar, Dublin http://www.irishlaw.org/events/lawsoc06-07.shtml

Wed.21 Feb.'07: Children's Rights and the Constitution - Trinity College Dublin Law School http://www.tcd.ie/law/events.html [postponed from earlier January date announced]

Sat.24 Feb.'07: New Developments in Probate and Succession: Implications for Legal Practitioners - Trinity College Dublin Law School http://www.tcd.ie/law/events.html

Tue.27 Feb.'07: Criminal Justice and Human Rights: Facing up to the Challenge of Counter-Terrorism - Launch of Centre for Criminal Justice and Human Rights, Faculty of Law, UCC, Cork http://www.ucc.ie/en/lawsite/centres/CJHR/

Tue.27 Feb.'07: Divorce: Ten Years On - Law Society seminar, Dublin http://www.irishlaw.org/events/lawsoc06-07.shtml

Wed.28 Feb.'07: Occupiers' Liability: A 2007 Update - Trinity College Dublin Law School http://www.tcd.ie/law/events.html

March

Thu.8 Mar.'07: Employment Law Rights of Immigrants and Other Issues - Law Society seminar, Dublin http://www.irishlaw.org/events/lawsoc06-07.shtml

Mon.12 Mar.'07: Corporate Governance in Ireland - Dublin Quote VIP No. KM1869IRLWEM2 when booking to receive a 10% discount
http://www.iir-events.com/IIR-conf/AuditRisk/EventView.aspx?EventID=887
Tue.13 Mar.'07: Anti Money Laundering Ireland - Dublin Quote VIP No. KM1869IRLWEM2 when booking to receive a 10% discount
http://www.iir-events.com/IIR-conf/AuditRisk/EventView.aspx?EventID=887

Tue.13 Mar.'07: Personal Injury Claims: A Review of Recent Developments - Law Society CPD Seminar, Stillorgan, Dublin http://www.irishlaw.org/events/lawsoc06-07.shtml

Wed.14 Mar.'07: Data Protection in Ireland - Dublin Quote VIP No. KM1869IRLWEM2 when booking to receive a 10% discount
http://www.iir-events.com/IIR-conf/LawCompliance/EventView.aspx?EventID=886

Thu.15 Mar.'07: Freedom of Information Ireland - Dublin Quote VIP No. KM1869IRLWEM2 when booking to receive a 10% discount
http://www.iir-events.com/IIR-conf/LawCompliance/EventView.aspx?EventID=886

April

Thu.26 Apr.'07: Law and the Environment 2007 - Fifth Annual Conference for Environmental Professionals, Faculty of Law, University College Cork http://www.ucc.ie/en/lawsite/eventsandnews/events/

May

Thu.3 May '07: Postgraduate Conference on Criminal Justice and Human Rights - Centre for Criminal Justice and Human Rights, Faculty of Law, University College Cork http://www.ucc.ie/law/postgradconference2007

June

Fri.29 Jun'07: Annual Criminal Conference, Faculty of Law, UCC, Cork http://www.ucc.ie/en/lawsite/eventsandnews/events/

July

9 July- 3 August '07: E Law Summer Institute - University College Cork Law Faculty http://www.ucc.ie/en/lawsite/students/elsi/

CURRENT PUBLIC CONSULTATION DEADLINES
Consultation on Law Reform Commission's Third Programme of Law Reform - 15 June 2007 http://www.lawreform.ie/submissions/submission.htm

Moriarty Tribunal Report

The Moriarty Tribunal report on payments to Charles Haughey is available at
www.moriarty-tribunal.ie/images/sitecontent_26.pdf

Sample News Story:
www.rte.ie/news/2006/1219/moriarty.html :

Haughey severely criticised by Moriarty

19 December 2006 22:45
The first report of the Moriarty Tribunal has said payments received by the former Taoiseach, Charles Haughey, during his political career devalued the quality of a modern democracy.
It said the late Mr Haughey lived a life vastly beyond the scale of what he earned as a public representative.
The tribunal also said the present Taoiseach, Bertie Ahern, did not have any knowledge that funds were being used inappropriately by Mr Haughey.
In relation to the co-signing of cheques of the Fianna Fáil party leader's allowance account, the tribunal has said it is satisfied that Mr Ahern, who co-signed cheques of the account, had no reason to believe that the account was operated otherwise than for a proper purpose.
But it concludes that the practice of pre-signing cheques by Mr Ahern undoubtedly facilitated the misuse of the account by Mr Haughey.
The tribunal says this was a practice which has to be viewed as both inappropriate and imprudent, having regard to the nature of the account, the skills and the experience then possessed by Mr Ahern, and the absence of any internal or external audit of the account.

Brian Lenihan fund
In relation to fundraising for the late Brian Lenihan, the tribunal says that it gets 'no satisfaction' to find that Mr Haughey deliberately sought to raise funds in addition to what he knew or must have known was required to meet the cost of Mr Lenihan's treatment, and that he ultimately applied part of those funds for his own use.
The report goes on to say that no other conclusion can be reached on this matter by the tribunal in light of the evidence heard.

The tribunal found that Mr Haughey personally misappropriated one particular donation of £20,000 for Mr Lenihan's benefit and took a series of steps to conceal his actions.
In relation to the Lenihan donations the tribunal established that up to £265,000 may have been collected for that purpose and of those funds no more than £70,000 was applied in meeting the costs and expenses of Mr Lenihan's medical treatment in the US.
The tribunal says it is satisfied that a sizeable portion of the excess funds collected was misappropriated by Mr Haughey for his own personal use.

The tribunal report found that throughout the period 1979-1996 Mr Haughey lived a life and incurred expenses vastly beyond a scale of public service entitlements.
During that period his sole apparent income was used for the purpose of bill paying. After 1979 his borrowings receded and sums were derived primarily from clandestine donations, including funds intended for the medical expenses of Mr Lenihan.

Testimony rejected
Several portions of Mr Haughey's testimony are viewed as unacceptable and are rejected.
No information whatsoever relating to funds received was at any stage volunteered by or on behalf of Mr Haughey.
The tribunal has said it cannot accept his testimony that he knew nothing of his financial arrangements. Evidence that he never heard of the Cayman Islands before the tribunal is unbelievable given his meetings with Mr Des Traynor who was a regular visitor to the islands.
Evidence given by Mr Haughey to justify the acceptance of personal donations is rejected.
Aggregate funds available to Mr Haughey in the period 1979 to 1996 totalled over £9.1m - that figure excluded income or pensions or income from Abbeville.
The tribunal concludes payments were secretive, opaque, and frequently involved off-shore vehicles.

Ben Dunne
The tribunal says it identified five further payments made by businessman Ben Dunne to Mr Haughey over and above the payments identified by the McCracken Tribunal.
The Moriarty report says that, apart from the final payment of £20,000 which was lodged directly to an account in Mr Haughey's name, all of the payments were routed in the most elaborate and complex manner.
It also concludes that Mr Dunne was a courteous witness. However, the tribunal cannot accept submissions and medical reports furnished on his behalf.
Mr Justice Moriarty has said that he hopes to publish his second and final report - into payments to Independent TD and former Government Minister Michael Lowry - early next year.

LRC Consultation Paper on Multi-Unit Developments

Launch of Consultation Paper on Multi-Unit Developments

From LRC website:

"The Law Reform Commission’s Consultation Paper on Multi-Unit Developments has been launched by the Tanaiste and Minister for Justice, Equality & Law Reform, Michael McDowell TD. This Consultation Paper on Multi-Unit Developments deals with the law relating to apartments and other residential multi-unit developments. The Consultation Paper forms part of the Commission’s research work under its Second Programme of Law Reform 2000-2007. It also comes against a wider background of the general debate on the need for the regulation of the multi-unit development sector, which includes the publication of reports by the National Consumer Agency and the Auctioneer/Estate Agency Review Group in recent times.

"One of the striking features of housing in Ireland in the past decade is the huge rise in the number of residential multi-unit developments. The ownership structures of these developments are markedly different from more ‘traditional housing’; in multi-unit developments, the unit owners collectively comprise the membership of a management company which owns the structure of the development as a whole. An estimated 500,000 people now live in apartment blocks and similar developments, the design of which necessarily requires a high degree of interdependence between residents. The growth of the multi-unit development sector has not, however, been accompanied by corresponding progress in the law surrounding such developments. The Commission has proposed a number of provisional recommendations in relation to the sector.

Press Release: http://tinyurl.com/y5kbt2

Full report: http://tinyurl.com/yysbl6

LRC Report on Vulnerable Adults and the Law

LAW REFORM COMMISSION PUBLISHES REPORT ON VULNERABLE ADULTS AND THE LAW

Monday, 18 December 2006: The Law Reform Commission’s Report on Vulnerable Adults and the Law will be formally launched by the Minister for Health and Children, Mary Harney TD, this evening.

Background to Report
This Report forms part of the Commission’s Second Programme of Law Reform 2000-2007, which deals with ‘Vulnerable Adults and the Law’ under two related headings: the law and older people; and the law concerning adults whose ability to make decisions may be limited, for example, through intellectual disability, dementia or an acquired brain injury (such as in a car crash). The Report brings together these two areas and builds on two Consultation Papers published by the Commission, a Consultation Paper on Law and the Elderly (2003) and a Consultation Paper on Vulnerable Adults and the Law: Capacity (2005). The Report contains the Commission’s final recommendations on these areas and includes a draft Scheme of a Bill to implement them.

Main elements of the Report
The Report is divided into two parts. The first part recommends the enactment of a new mental capacity law to create clear rules on when a person has the legal competence (capacity) to make a wide range of decisions, including making contracts such as buying groceries at a shop, transferring ownership in land or making healthcare decisions. The second part recommends that the current Wards of Court system should be replaced by a new Guardianship system.

Empowerment and protection
In the Report, the Commission aims to promote the empowerment of vulnerable adults, while also recognising that some protections are still needed. In terms of empowerment, the Commission recommends that the proposed law should include a clear presumption that all people over 18 should be presumed to have mental capacity. The Commission also recommends that a modern “functional” approach to legal capacity should be put in place. The functional approach means assessing a person’s decision-making ability in relation to a particular decision at the time the decision is made.

Protection: equity release schemes
But the Commission also recognises that vulnerable adults may still need protection against abuse. For example, the Commission has recommended that all types of equity release schemes – many of which are aimed at older people – should come under IFSRA, the Financial Regulator. Some equity release schemes have been designed so that they are not financial products, so that IFSRA cannot currently regulate these types of schemes.

Healthcare decisions and informal authority to act
The Commission also makes specific recommendations in the healthcare context. At present, many routine health care treatments – such as dental treatment – are carried out for adults who have limited or no capacity on the basis of "consent forms" signed by a relative. These consent forms have no legal standing, and technically they could be regarded as assaults. The Commission recommends that this should be dealt with by stating in the proposed law that such routine treatments are lawful if they are clearly in the person’s best interests: this is called an informal authority to act. The Commission also recommends that the Minister for Health and Children could appoint a Working Group on Capacity to Make Healthcare Decisions to formulate a code of practice for healthcare professionals. The code of practice would provide guidelines on assessing a person’s capacity to make a healthcare decision and on the situations where treatment can be carried out under the proposed informal authority to act.

Enduring powers of attorney
The Enduring Powers of Attorney Act 1996 allows a person who currently has mental capacity to appoint someone (such as a spouse or partner) to make decisions on their behalf: the power of attorney only comes into force when the person loses capacity, for example, through dementia. The 1996 Act is currently limited to financial matters only. The Commission recommends that the 1996 Act should be extended to include minor health care and treatment decisions.
Guardianship system to replace Wards of Court The current institutional framework for protecting people with limited (or no) mental capacity – the High Court Wards of Court system - is also in need of reform. The Wards of Court system is governed mainly by the
Lunacy Regulation (Ireland) Act 1871, which states that a person can only be made a Ward of Court if they are a deemed to be a 'lunatic, idiot or person of unsound mind.' As well as using objectionable and outdated language, the Wards of Court system uses an "all-or-nothing"
approach to capacity: if the person is made a Ward of Court, they lose control over all aspects of their financial and personal life. The Commission recommends that this system should be replaced by a new decision-making structure, called Guardianship. This would involve the creation of Guardianship Board, which would make decisions about whether a person does or does not have continuing capacity to make key decisions about themselves. This could include deciding that a Personal Guardian should manage a limited aspect of the person’s financial affairs, but not necessarily everything. The Commission also recommends establishing a new independent Public Guardian.

The new Guardianship system
The Guardianship Board would be a three person full-time multi-disciplinary Board (along the lines of the Garda Síochána Ombudsman Commission), chaired by a High Court judge. The Board could make Guardianship Orders and Intervention Orders. Where a Guardianship Order is made, a Personal Guardian could be appointed over the property, financial affairs and welfare of a person who lacks capacity, whether in a limited way or more generally. An Intervention Order would be made for a specific purpose (such as ordering a once-off service), where a Guardianship Order would not be required. The Commission also recommends the establishment of the Office of Public Guardian, which would have a supervisory role over personal guardians and those acting under enduring powers of attorney. The Public Guardian would also have the power to develop and publish suitable codes of practice and have an educational role in this area, acting in cooperation with other bodies, including the National Disability Authority and the Health Service Executive.

Full text of report:
www.lawreform.ie/publications/reports.htm

Statute Law Database - UK

The UK's Statute Law Database is now available to the public at
www.statutelaw.gov.uk

This includes Northern Ireland Statutes
E.g. Disability Discrimination (Northern Ireland) Order 2006

An important feature of the database is that it includes many amendments to older legsialtion within the text.
For example, if you look at article 5 of the
Treatment of Offenders (Northern Ireland) Order 1976,
the version you'll see is the version as amended by subsequent legislation passed in 1978 and 1989.
The amendments are clearly noted in the footnotes and highlighted in the body of the text.

The electronic Irish Statute Book (www.irishstatutebook.ie) doesn't currently include this facility but it may come in a future version.

At least the electronic Chronological Tables, which include references to amendments up to 2004, are available:
www.irishstatutebook.ie/isbc_toc.html

Extract from a Help File:

"Types of Legislation on the UK's Statute Law Database (SLD):

"SLD is the official revised edition of the statute book for the UK in electronic form. When we use the term "statute book" in the context of SLD, we mean, broadly speaking, primary legislation of a public general nature.

"Most types of primary legislation made in the UK are held on SLD in revised form. Other primary legislation and secondary legislation from 1991 onwards is held on SLD only in unrevised ('as enacted') form.

"For pre-1991 legislation held and revised on SLD, the earliest version is the revised text as it stood at 1 February 1991 (the basedate). Legislation wholly repealed before the basedate is not carried.

"SLD has now incorporated the revised primary legislation of Northern Ireland previously published in The Northern Ireland Statutes Revised and its supplements. As the historical versioning of the Northern Ireland statutes will date only from 1 January 2006 (the Northern Ireland basedate), the unrevised ("as enacted") versions of these statutes enacted from 1991 to the end of 2005 will continue to be retained on SLD.

"We are still in the process of loading the unrevised legislation mentioned above onto the new SLD system. For information about the progress of this exercise, see New Legislation.

"Details of the legislation held on SLD are as follows:

Primary Legislation (Revised)
Primary Legislation (Unrevised)
Secondary Legislation "

Same-Sex Marriage High Court Case

The full text of yesterday's decision on same-sex marriage is available at two sites:

Zappone and Gilligan v Revenue Commssioners
High Court, Dunne J., 14 December 2006

PDF version on Irish Times site: www.ireland.com/newspaper/special/2006/lesbianmarriageruling/index.pdf

Word Version on KALCase site:
www.kalcase.org

In summary, on the constitutional ground, Dunne J. said that marriage meant marriage between a man and a woman, citing cases such as Murray v Ireland [1985] I.R. 532 (see Zappone case, pp. 120 on).
On the European Convention on Human Rights ground, Dunne J. relied heavily on
Wilkinson v Kitzinger [2006] EWHC 2022 (Fam)
http://www.bailii.org/ew/cases/EWHC/Fam/2006/2022.html
(see Zappone case pp.130 on)

Sample News Story from RTE News Website:
www.rte.ie/news/2006/1214/gay.html :

Lesbian couple lose marriage recognition case
14 December 2006 22:00

A lesbian couple have lost their attempt in the High Court to have their Canadian marriage recognised in Ireland. Dr Katherine Zappone, a public policy consultant, and Dr Ann Louise Gilligan, an academic, were married in Canada in 2003. They argued that the failure to recognise their marriage breached their rights under the Irish Constitution, the European Convention on Human Rights, and the European Charter of fundamental freedom.

But today in the High Court Ms Justice Elizabeth Dunne rejected their argument. She said she could not agree with their argument that marriage under the Irish Constitution includes same-sex marriage. She also said that the position in the Constitution on marriage was not incompatible with the European Convention on Human Rights.

Dr Gilligan said she and her partner were grateful for the way their case had been handled.

Labour proposes civil union recognition

Meanwhile, the Labour Party has tabled a bill that would allow for the recognition of civil unions. The bill seeks to create a legal relationship equivalent to marriage for same-sex couples. According to Labour spokesman Brendan Howlin, the proposal does not contravene the Constitutional provision protecting the institution of marriage.

Audio and Video

News At One: Donncha O'Connell,
Dean of the Faculty of Law at NUI Galway, says that it was a comprehensive
judgement against the women
News At One: Dr Katherine Zappone,
who married Dr Ann Louise Gilligan in Canada in 2003, comments on the ruling not
to allow the Irish State recognise their marriage
One News: Bethan Kilfoil reports
from the High Court on the rejection of a lesbian couple's landmark legal
attempt to have their Canadian marriage recognised in Ireland
Nine News: Bethan Kilfoil reports
on the decision by the High Court not to allow the state recognise the marriage
of Dr Katherine Zappone and Dr Ann Louise Gilligan
Six One News: Bethan Kilfoil
reports on the decision by the High Court not to allow the state recognise the
marriage of Dr Katherine Zappone and Dr Ann Louise Gilligan

Competition Authority Report on Legal Professions 2006

Kieron Wood has written a useful summary of this week's Competition Authority report on the legal professions at
http://irishbarrister.com/competition.html

The full report is available at
www.tca.ie/controls/getimage.ashx?image_id=1627

Sample News Story:
www.rte.ie/news/2006/1211/legal.html

Law Society's Preliminary Response (transcript of Morning Ireland interview with Ken Murphy):
http://tinyurl.com/ynyca9

Bar Council Response:
www.lawlibrary.ie/viewdoc.asp?DocID=796

Adoption Case in Supreme Court

The Supreme Court ruling in the "Baby Ann" Adoption Case is now available at
http://tinyurl.com/y2jubh
(This links to the judgment of Murray C.J. There are links at the the top of the page to the other judgments.)

[Update 20 November 2006:
The case is now also available on BAILII at
http://www.bailii.org/ie/cases/IESC/2006/S60.html ]

Sample News Story from RTE website:

Birth parents get custody of 'Baby Ann
http://www.rte.ie/news/2006/1113/babyann.html

13 November 2006 20:03
The Supreme Court has ruled that a two-year-old girl must be returned to the custody of her birth parents.
'Baby Ann' was offered up for adoption by her parents who were at the time unmarried. They later married and during the adoption process withdrew their consent to adoption.
The High Court had earlier ruled that the baby must remain in the custody of her would-be adoptive parents.
However, she will now be returned to her birth parents after the Supreme Court decides on a transfer process.
The interests of the child dictate that the matter must be dealt with as soon as possible, according to Chief Justice Murray's judgment.
The Supreme Court is likely to consider the custodial transfer next week at the latest.
The co-ordinator of the Irish Foster Care Association, Pat Whelan, said the child at the centre of this case will have formed bonds with the foster carers and breaking those bonds could do untold damage. Speaking on RTÉ Radio's News At One, she said she feels the child is the loser in the case today.

http://www.rte.ie/news/2006/1113/babyann.html

Balance in the Criminal Law Review Group

From http://www.justice.ie :

Request for Submissions

Following a speech made in Limerick on 20 October 2006 on rebalancing criminal justice, the Tánaiste and Minister for Justice, Equality and Law Reform, Michael McDowell, T.D. has set up a review group entitled the Balance in the Criminal Law Review Group to consider the following issues
- the right to silence
- allowing character evidence of an accused
- the exclusionary rule of evidence
- requiring the accused to outline the nature of his defence before or at the commencement of a trial
- re-opening new evidence
- nullifying an acquittal where there is evidence of jury or witness tampering
- "with prejudice" appeals in the case of wrongful acquittal
- extending alibi evidence rules to other analogous situations
- allowing submissions by the prosecution before sentencing
- modifying the rule in relation to hearsay evidence

The Review Group will be chaired by Dr. Gerard Hogan, S.C., Law School, Trinity College, Dublin. The Tánaiste has asked the Review Group to report back by 1 March 2007. A copy of the Tánaiste's speech and details of the membership of the Review Group and its full terms of reference are available on the website of the Department of Justice, Equality and Law Reform at http://www.justice.ie.

In order to assist the group in its deliberations,written submissions on the main issues set out in the terms of reference are invited from interested parties and bodies and from members of the general public. Submissions should be made in writing only to

Balance in the Criminal Law Review Group,
Department of Justice, Equality and Law Reform,
Floor 3 Montague Court,
Montague Street,
Dublin 2.

Written submissions may be also made electronically to lawreview@justice.ie.
The closing date for receipt of submissions is 5.30 p.m. Friday 5 January 2007.
Because of the tight deadline for submission of the Report of the Review Group, viz. 1 March 2007, it should be noted that the deadline for written submissions must be strictly observed and the Review Group will not be in a position to extend the closing date for submissions.

Appointment of Family Law Reporter

Press Release
Courts Service Website - www.courts.ie
Date: 5 October 2006

Appointment of Family Law Reporter

Four Courts Dublin Thursday October 5th 2006: The Courts Service appoints a family law reporter to record and produce reports on family law proceedings for distribution to the media and the public.

The Courts Service has appointed a family law recorder on a one year pilot basis. The project will record and create reports of family law proceedings for the first time; will gather, assess and present meaningful statistics on family law matters before the courts; and will assemble and distribute information regarding the family law process and courts. Following public advertisements, proposals for provision of the service went through an evaluation process.

The Family Law Reporter

The evaluation committee recommended that Dr. Carol Coulter be awarded thec ontract. Dr. Coulter has now accepted the contract and will commence the pilot project in mid-October. Dr Coulter - BA (Mod) TCD, PhD, TCD and Dip Legal Studies, DIT - has worked for the past 20 years for The Irish Times and has worked as its Legal Affairs Correspondent for the last seven years, writing extensively on family law matters. In 2001 she was awarded the Law Society's Justice Media Award in print journalism for writing on family law, and in 1990 she won National Media Award for campaigning journalism for her coverage of the Birmingham Six and Guildford Four miscarriages of justice. She has also written a number of books and essays on cultural and social issues, and edited the Undercurrents Series of pamphlets on current issues for Cork University Press. She is married and has one son.D r. Coulter will work exclusively with the Courts Service and will be on leave of absence from her duties as Legal Affairs Correspondent with The Irish Times.

Background to Project

In 2000 the Courts Service decided to implement a pilot project to provide information for judges, legal practitioners, researchers, the media and the public on family law proceedings. Legal advice at the time strongly suggested that without enabling legislation the service should not proceed with the project. Enabling legislation has been enacted by way of the Civil Liability and Courts Act 2004. This Act allows for the reporting and the dissemination of information on family law proceedings subject to very strict conditions to protect the identity of individuals involved in family law litigation. The Courts Service, following a recommendation from the Family Law Court Development Committee, decided to recommence the pilot project -reportings ervice on a pilot basis for a 12 month initial period.

The Work of the Family Law Reporter

The pilot project will concentrate on identifying how information on thework of the Family Law Courts can be best disseminated to the Judiciary, the wider legal community, the media and the general public. This will involve:

• reporting significant judgments and decisions of the High, Circuit and District Family Law Courts.
• the compilation of statistical information relating to the work of theFamily Law Courts.
• the drafting and distribution of family law information for publication for use to inform the general public.

Quotes

Welcoming the appointment of the Family Law Reporter the Chief Executive Officer of the Courts Service Mr. P.J. Fitzpatrick said, "this appointment is very welcome not only because it will aid the Courts Service inf ulfilling our mandate of providing information on the courts system to the public, but it will also open up a much debated area of the work of the courts through balanced reporting - whilst maintaining the privacy of those involved in Family Law Proceedings".
"I welcome Carol Coulter to the position, as she is an experienced legal affairs reporter and a person who has shown the balance and work ethic needed for such a position to develop and deliver the information on the area of family law, so much sought by the media and the public".

Adoption Case full text now available

The full text of the adoption case mentioned before is now available at
http://tinyurl.com/gfvgh

The full title is as follows:
In Re "Ann", an Infant: N. v. H.S.E., G. and An Bord Uchtala
[2006] IEHC 278
High Court, MacMenamin J., 15 September 2006

A reminder of news coverage:

Landmark ruling gives custody to adopters
http://www.ireland.com/newspaper/front/2006/0916/1158271610287.html

High Court turns down adoption application
http://www.rte.ie/news/2006/0915/adoption.html

Couple lose daughter in tug-of-love ruling
http://www.unison.ie/irish_independent/stories.php3?ca=9&si=1689505&issue_id=14654

New Irish Law Update available

Irish Law Update No. 28 is now available at
www.ucc.ie/law/irishlaw/updates/no28_25sep2006.shtml

There are two subsections in this issue:
1) IRLII Cases now Classifed by Subject
See this post.

2) Forthcoming Events
See the listings at www.irishlaw.org/events/

IRLII Cases now Classified by Subject

After pioneering the online availability of Irish legal materials, through its involvement with BAILII and IRLII, the Faculty of Law in University College Cork has developed a further service for those who wish to keep abreast of legal developments in Ireland.
All judgments added to the IRLII index of cases since July 2005 are now allocated to subject areas and assigned with keywords. This enables users to quickly scan through recent cases for issues that interest them and researchers can instantly view cases which relate to any given subject area. The project director, Professor John Mee, hopes that this initiative will result in easier accessibility of decided cases in Ireland and a greater understanding of legal issues generally.
The IRLII index of cases is accessible at http://www.index.irlii.org.
A RSS feed of recent cases is also available at http://www.ucc.ie/law/irlii/rss/irliiindex.xml.

Recent Adoption Case

The first five pages of the judgment in the recent adoption case are available on a free section of the Irish Times site:

In Re "Ann", an Infant: N. v. H.S.E., G. and An Bord Uchtala,
High Court, MacMenamin J., 15 September 2006:
http://www.ireland.com/newspaper/special/2006/adoption_judgment/index.pdf

Sample news coverage:

Landmark ruling gives custody to adopters
http://www.ireland.com/newspaper/front/2006/0916/1158271610287.html

High Court turns down adoption application
http://www.rte.ie/news/2006/0915/adoption.html

Couple lose daughter in tug-of-love ruling
http://www.unison.ie/irish_independent/stories.php3?ca=9&si=1689505&issue_id=14654

There's nothing yet on the official courts service website:
http://www.courts.ie/judgments.nsf/HomePage?OpenForm

Maybe a proper version will appear there in the next few days.

[Update added 10 October 2006: The full judgment is now available at
www.tinyurl.com/gfvgh/ ]

Dean Lyons report

The full text of the Dean Lyons report is available at http://www.tinyurl.com/klg9p

Here's the Press Release:
1 September 2006

Minister McDowell publishes Dean Lyons Case Report

The Minister for Justice, Equality and Law Reform, Mr Michael McDowell, T.D., today published the Report of the Commission of Investigation into the Dean Lyons case. The Commission was established by Government Order on 7 February 2006 and its sole member was Mr George Birmingham SC.

For the first time the Report offers a thorough independent analysis of the facts surrounding the false confession made by Dean Lyons based on the evidence of all relevant witnesses. It concludes that there was no deliberate attempt made to undermine the rights of Dean Lyons. Instead, inappropriate leading questions were inadvertently asked of him by interviewing Gardai - a failure which in turn equipped him with the information to maintain a credible (albeit false) confession. He maintained this position for over a month - not alone to Gardai but also to a wide variety of other persons including his legal advisers.

With the benefit of independent experts, the Report concludes that Dean Lyon's confessions were attributable to prior existing vulnerabilities within his personality which were compounded by his heroin addiction. The Report states that some of those same Gardai who interviewed him openly expressed scepticism as to his credibility at case conferences but these doubts were never conveyed to the DPP as they should have been prior to the latter's initial decision to direct charges.

In the Commission's view, the Garda written records of some of the interviews with Dean Lyons were incomplete, potentially misleading and could have led to a miscarriage of justice.
Finally, the decision of the original investigation team, three months after their original recommendation, to recommend to the DPP that the existing charge of murder against Dean Lyons should proceed and that an additional charge should be laid in respect of the second fatality is described by the Commission as "difficult to understand and even harder to justify". This comment was made in the light of the fact that at the time Assistant Commissioner McHugh was in the process of conducting an analysis of the various admissions on behalf of the Commissioner - an analysis which ultimately contributed to the DPP's decision to drop the charges.

Publishing the Report Minister McDowell said, "I hope this Report will be of some comfort to those whose lives have been so deeply afflicted by this tragedy - in particular the family of Dean Lyons and the families of the murder victims.
I am sending a copy of the Report to the Garda Commissioner for his consideration. I am also sending a copy to the Expert Group which I established in the light of concerns arising from the Dean Lyons case. The Group will be reporting to me, I expect before the end of the year, on the adequacy of Garda training, protocols, regulations and procedures, in assessing the fitness of persons to be interviewed and on the recording of any bona fide reservations of an individual member of a Garda investigation team as to the truthfulness or accuracy of self - incriminating statements. I have already stated publicly that I will publish their report."

The Report is the first of its kind to be published following the establishment of a new style Commission of Investigation - a system which was intended to enhance in a significant way the State's ability to conduct formal independent inquiries in a cost effective and timely manner. The Commission's work was completed in less than six months at a cost of less than €1 million.

"I am pleased to note that the provisions of the Commissions of Investigation Act 2004 which I availed of in this case have ensured a timely and cost effective investigation without in any way compromising or encroaching on its proper conduct. I am indebted to Mr Birmingham and his legal and administrative personnel for the thorough manner in which they performed this most difficult and sensitive of tasks", the Minister said.

The Report is available on the Department's website, www.justice.ie.

1 September 2006

Note for Editors

The Expert Group comprises ex Asst Commissioner Tony Hickey, Mr Charles Smith ex Director of the Central Mental Hospital, Mr David Gormally of the DPP's Office and Ms Vera Kelly, Principal Officer, Dept of Arts, Culture and the Gaeltacht.

Report of Inspector of Prisons 2005

The report of the Inspector of Prisons, Dermot Kinlen, for 2005 is available at http://www.justice.ie/en/JELR/4thAnnRpt.pdf/Files/4thAnnRpt.pdf

Extract from pages 28-32:

"10. Establishment of an independent Inspector of Prisons.

"The Government has told the CPT in Strasbourg three times and in its Programme for Government it repeated, that it would make statutory provision for an independent prisons Inspector. I was told that I would be made statutory and that I would contribute to the draft Bill. I have asked in all my three annual reports published that the Government do as it promised. Now it emerges that the Minister has ‘other priorities’. This is outrageous and practically unbelievable.

In my reports I have submitted several drafts of Bills. Some Bills need only be about two to three sections, which could be added to one of the Minister’s many Bills. The Opposition in western Australia pushed through a strong Act giving their Inspector great independence. In fact it makes it a criminal offence to obstruct the independent Inspector. West Australia, England, Scotland and Northern Ireland all have statutory Inspectors. In Spain there are full-time judges independently and continuously visiting prisons as well as a strong inspectorate. A famous Minister for Justice, with much the same background as the current Minister, said, “prisoners have no rights.” That ethos seems to be omni present. The Minister has purported to alter unilaterally my contract by prison rules. I have made it clear that it is totally inappropriate to deal with the Inspector’s office by prison rules. The Inspector had reasonable expectation, (as had Strasbourg (CPT) and the people of Ireland had from the Programme for Government) that the Inspector would be independent and statutory. At the moment the Inspector is neither. He has made it clear that he does not accept the so called rules. They are not binding on the Inspector. He is not a party to them. He will not comply with them. He is determined to be totally independent. (Since writing this paragraph I have been informed by a senior Civil Servant that the section dealing with prisons inspectorate has been removed from the proposed new Prison Rules.) However the purported rules are still on the department's internet.

"In the Irish Times 14th January, 2006 there is a long article by Conor Lally about the new Garda Ombudsman Commission which should begin operating next year. Three persons were appointed and the three people will be formalised to their positions by the Oireachtas before formal approval by the President. "The commission's independent status meant it would decide on all aspects of its own work. It would decide on staffing levels, how it was to investigate complaints and it would be responsible for the hiring of staff and selecting of permanent office. Mr. Joe Costello, TD, Labour spokesman on Justice said, 'It was incredible that nearly a full year had been set aside preparing the ombudsman commission.' Fine Gael's justice spokesman Mr. Jim O’Keeffee, TD, said, 'he was surprised and disappointed by the delay. It requires a full explanation from the Minister for Justice.' The ombudsman commission will have the power to conduct its own investigations. On the 24th April 2006 the 4th anniversary of his appointment the Minister had the gal to write confirming it was part of his legislative plans to make the Inspectorate statutory but even now no date is given.

"The promised Inspector of prisons has been there since it was first mooted by Dr. Whitaker over twenty years ago. It is quite clear that the Minister, the Government and the Department had no intention of establishing a statutory inspectorate. If public opinion forced them so to do, then they would do their best to ensure that the Inspector does not have the powers to fulfil the requirements of the office. Not merely are they denying human rights to prisoners and prison staff, they are also breaking their own law. Human Rights Commission has expressed concern as has the Commissioner of Freedom for Information about the way their respective briefs are being handled. In Northern Ireland there is an ombudsman dealing with prisoners complaints. There is none in the Republic. There is also an Inspector who has a huge remit with ten inspectors, which includes the three prisons in Northern Ireland and gets assistance from the English Inspector and her team when they do a prison inspection. There are supposed to be similar sanctions in Northern Ireland and in the Republic. The North of Ireland has an ombudsman for prisoners and has totally independent inspectors covering a great deal of territory, not just prisons. However, in the Republic neither of these offices do exist nor is there a will for them to exist. It seems at first look that there may well be a case of denying human rights and also there may be a breach of the Belfast Agreement.

"Why are things so good in Northern Ireland and why is everything so retrograde in the Republic? Surely, we should have inspectors who are more independent investigating everything like my counterpart in Belfast. Surely, the Belfast Agreement should be honoured by the Irish Government. It is with great sadness I am writing this report. I think it is fair to ask, what are the Minister and his Department hiding? Of what are they afraid? Actually, I believe they have nothing to fear if they were only transparent, efficient and open. I urge the Minister,

1. to implement the promises made and establish the inspectorate as totally independent or else abolish it since it is only a facade;
2. the Government must decide whether to follow the English and American tradition of building more and more prisons, or follow the Nordic countries who have alternatives to prison run in competition with prisons.
3. The probation service should be totally independent of the prison service and in competition with it;
4. get a business consultant to report on the continuous growth of the Prison Service structures and the Justice’s Department staff. Is the taxpayer getting value for money? What about the Government’s policy of controlling bureaucracy. It was law since 2002 that Civil Service staffing levels be capped but it is now a rather sick and expensive joke?
5. provide rehabilitation for prisoners and close down St. Patrick’s immediately as recommended over twenty years ago in the Whitaker Report. Set up an ombudsman for prisoners and an independent prisons inspectorate using statutes applicable to Northern Ireland at least.

"The present attitude is frightening and fascist."

[Edit April 2008 - For those researching reports of the Inspector of Prisons note that the reports are available as follows:

Fifth Annual Report of the Inspector of Prisons for the Year 2006-2007
www.justice.ie/en/JELR/Pages/5th_Inspector_of%20_Prisons_Rpt

Fourth Annual Report of the Inspector of Prisons 2005-2006
www.justice.ie/en/JELR/4thAnnRpt.pdf/Files/4thAnnRpt.pdf

Third Annual Report by the Inspector of Prisons for the Year 2004-2005
www.justice.ie/en/JELR/ThirdAnnualRpt.pdf/Files/ThirdAnnualRpt.pdf

Second Annual Report by the Inspector of Prisons for the Year 2003-2004
www.justice.ie/en/JELR/AnnualRpt2.pdf/Files/AnnualRpt2.pdf

First Annual Report by the Inspector of Prisons for the Year 2002-2003
www.justice.ie/en/JELR/1stannreport.pdf/Files/1stannreport.pdf

See also the listings at
www.irlgov.ie/crimecouncil/research_pri.html ]