High Court Case on Unmarried Fathers

There've been a large number of media reports on a recent High Court case concerning an unmarried father, Mr. G. The judge appears to have emphasised family rights under Article 8 of the European Convention on Human Rights.
The full judgment doesn't appear to be on the Courts Service website yet.
[Update 23 November 2007:
The judgment is now available. The case is
T. v O. [2007] IEHC 326, Mc Kechnie J., 10 September 2007]

Here are some of the news reports:

Landmark Ruling on Father's Rights (RTE)

Unmarried Father Wins Right to Seek Return of Twin Boys (Irish Times)

Judge Calls for Review of Fathers' Rights (Irish Examiner)

Unmarried Father Makes History in Custody Case (Irish Examiner)

International Herald Tribune Story

Forthcoming Irish Law Events

The latest Irish Law Update is available here.

It includes forthcoming events such as the following:

Fri. Sep 7, 2007
Preventing Ill-Treatment - Ireland and the OPCAT - Irish Council for Civil Liberties, Dublin Seminar on Optional Protocol to the United Nations Convention Against Torture (OPCAT)
www.iccl.ie/

Mon. Sep 17, 2007
Recent Developments in Medical Negligence - Law Society Seminar, Dublin www.irishlaw.org/events/lawsoc07-08.shtml

Sat. Sep 29, 2007
50 Years of the Treaty of Rome: Reflecting on Past Achievements and Future Challenges - Faculty of Law, NUI Galway
www.nuigalway.ie/law/eu_conference.html

Sun. Sep 30 – Tue. Oct 2, 2007
Ireland, Gateway between the United States and the European Union - ABA Conference, Dublin www.abanet.org/intlaw/fall07/agenda_dublin.html

Wed. Oct 3, 2007
Obstacles to Harmonisation of International Maritime Law - Irish Maritime Law Association, Dublin
www.irishmaritimelaw.com/noticeboard.htm

Sat. Oct 6, 2007
Equality, Legislation and the Constitution - Faculty of Law, NUI Galway
www.nuigalway.ie/law/events.html

Tue. Oct 9, 2007
Consumer Protection Act 2007 - An Overview - Law Society Seminar, Dublin www.irishlaw.org/events/lawsoc07-08.shtml

Mon. Oct 15, 2007
Anti-Money Laundering Conference - IIR Conferences, Dublin
Quote VIP Code KM1976IRLWW for 10% discount when booking.
www.iir-events.com/IIR-Conf/page.aspx?id=8193

Tue. Oct 16, 2007
Restorative Justice - Association for Criminal Justice Research and Development Conference, Dublin
www.acjrd.ie/activities_current.htm

Tue. Oct 16, 2007
Data Protection Conference - IIR Conferences, Dublin
Quote VIP Code KM1976IRLWW for 10% discount when booking.
www.iir-events.com/IIR-Conf/page.aspx?id=8192

Wed. Oct 17, 2007
Corporate Governance Conference - IIR Conferences, Dublin
Quote VIP Code KM1976IRLWW for 10% discount when booking.
www.iir-events.com/IIR-Conf/page.aspx?id=8186

Fri.-Sun. Oct 19-21, 2007
Politics and the Law - Political Studies Association of Ireland, Dublin www.psai.ie/conference.asp

Wed. Oct 24, 2007
Residential Tenancies and Commercial Leases - Law Society Seminar, Dublin www.irishlaw.org/events/lawsoc07-08.shtml

Fri. Nov 2, 2007
The Impact of the Fight against Terrorism on EU Law - Academy of European Law (ERA) Seminar, Dublin www.era.int/web/en/html/nodes_main/4_2127_474/conferences_0000_Date/5_1796_3984.htm

Thu. Nov 8, 2007
Environmental and Planning Law - Law Society Seminar, Cork www.irishlaw.org/events/lawsoc07-08.shtml

Sat. Nov 17, 2007
Law and Mental Health - Faculty of Law, NUI Galway
www.nuigalway.ie/law/events.html

Wed. Nov 21, 2007
Criminal Justice Act 2007: A Bridge Too Far? - Law Society Seminar, Dublin www.irishlaw.org/events/lawsoc07-08.shtml

Fri. Nov 23, 2007
The Enforcement of National and EC Competition Laws in Member States: Consistency, Coherence and Diversity, Dublin
Joint Conference of the Irish Society for European Law and the UK Association for European Law
www.isel.ie/coming.htm

Fri. Nov 30, 2007
Troubleshooting Areas in Family Law Practice - Law Society Conference, Dublin www.irishlaw.org/events/lawsoc07-08.shtml

For the full list of forthcoming events, go to
www.irishlaw.org/events/

To join the Irish Law Updates e-mail list (received by 2,130 people), go to
www.irishlaw.org/joinleaveupdates/

Statutory Instruments 2007

Through Helen Mulcahy, our law librarian, I've learnt that Statutory Instruments of 2007 are now available in PDF at

www.attorneygeneral.ie/esi/2007/esi_num.html

Strangely, there's now a gap in public Statutory Instrument coverage:

• From 1922 to Number 350 of 2005, go to www.irishstatutebook.ie or www.bailii.org/ie/legis/num_reg/
• There's then a gap for 2005, numbers 351 to 926, and all of 2006.
• For 2007, go to www.attorneygeneral.ie/esi/2007/esi_num.html

The gap is partially filled by the IRLII index of Statutory Instruments, hosted here at UCC by Professor John Mee - see http://www.ucc.ie/law/irlii/si/si.php

However, as is well known, the IRLII Index can only link to SIs which have been published on Government websites, and so is incomplete.

A quick glance at the 2006 list on IRLII suggests that full text PDF links are provided for 36 of the 911 SIs in that year.

Commercial coverage of the SIs is provided by www.firstlaw.ie.

Extradition / Assisted Suicide

An interesting news story:

"Judge considers verdict in suicide case

A US judge has adjourned the case of a man accused of assisting an Irish woman with suicide to consider whether the alleged crime warrants his extradition.
The Reverend George Exoo, a former Unitarian minister, has been accused of assisting a 48-year-old Irish woman with her suicide in Dublin in 2002.
Since then gardaí have been seeking to have Mr Exoo brought to Ireland to stand trial."

Read / view more on the following pages:
http://www.rte.ie/news/2007/0817/exoog.html

http://www.register-herald.com/local/local_story_229231911.html

Assisted Suicide Blog

Irish Law RSS Feeds

For those who are fans of RSS feeds I've added two new feeds to the Irish Law Site cases page:

• The IRLII Lastest Irish Cases RSS News Feed
  This feed has been on the IRLII site for quite a while now (about a year?) and is maintained by my colleague John Mee with the assistance of Micheal O'Dowd.


• The www.courts.ie Judgments RSS News Feed
  This is an experimental feed I created using feedyes.com (update 5 October: the feed now uses ponyfish.com.) Unfortunately the headlines consist of the dates of judgments rather than titles, but at least when new judgments are posted on the site they'll show up in your feed reader.

A reminder of two other RSS feeds which we already have:

• Irish Law Updates Blog Feed
• Irish Law Discussion Feed

If you haven't heard of RSS feeds, a brief outline of how they work is available here.

LRC Report on Spent Convictions

There've been quite a number of interesting reports over the past few weeks which I've been meaning to include in posts but am only getting around to now. The first one is the Law Reform Commission’s Report on Spent Convictions.

Here's an extract from the press release:

"The Report sets out in detail the elements of the proposed spent convictions law and it also includes a draft Spent Convictions Bill to implement the Commission’s recommendations. The key elements include:

• the types of offences which should be excluded completely from the proposed law: (a) any offence triable by the Central Criminal Court, such as murder; (b) any sexual offence as defined in the Sex Offenders Act 2001; and (c) any other offence where a sentence of more than 6 months (including a suspended sentence) has been imposed in court;
• the length of time a person must be conviction-free to qualify for the conviction to be regarded as “spent”: 7 years from the date of conviction where a custodial sentence of up to 6 months is imposed; 5 years from the date of conviction where a non-custodial order is made, such as a fine or disqualification;
• all convictions, including spent convictions, would still be disclosed at a sentencing hearing and in some non-criminal cases such as involving access to children.
• The system would be automatic, rather than requiring the person to apply to court to have their conviction declared to be spent, as an application-based system would not be transparent and consistent."

Full Report:
http://www.lawreform.ie/publications/reports.htm

Press Release:
http://www.lawreform.ie/REPORT%20SPENT%20CONVICTIONS%20PRESS%20RELEASE%20JULY%2007.pdf

Sample News Story:
http://www.rte.ie/news/2007/0731/justice.html

See also:
Extending the Scope of Employment Equality Legislation (2004)
http://www.ucc.ie/en/lawsite/research/research-projects/employment-equality/

(The above report included a section on the criminal conviction / ex-offender / ex-prisoner ground.)
Updates 2008-9 - See also:
Spent Convictions Group, Proposals on a Rehabilitation of Offenders Bill (2009)
Spent Convictions Bill 2007
Irish Human Rights Commission, Observations on Spent Convitions Bill (2009)
Irish Penal Reform Trust Position Paper on Spent Convictions

Update May 2012:
A new Criminal Justice (Spent Convictions) Bill 2012 has been published.
See
http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2012/3412/b34112s.pdf
and
http://www.irishtimes.com/newspaper/ireland/2012/0505/1224315651340.html 

Update July 2013:
See the recent Irish Times article by Remy Farrell S.C. here.

Review of Mental Health Act 2001 published

The Department of Health and Children has published a review of the Mental Health Act 2001 which is available at
www.dohc.ie/publications/mental_health_act_review07.html.

The review suggests very few changes to the Act, but some interesting points include the following:

• The Minister accepts in principle that the references to "unwilling" in sections 59 and 60 should be removed, but this will need to be done in the context of any new capacity legislation
• The Minister accepts that there appears to be a drafting error in section 61
• As consultant numbers increase consideration should be given to reducing the 14 day time period allowed for in section 17(1)(c)(iii) to receive the second consultant’s report. This would also facilitate the earlier scheduling of Mental Health Tribunals and provide earlier access by patients and their legal advisors to the second opinion reports prior to hearings.
• When a voluntary patient has a mental disorder and requires involuntary admission for treatment, the use of the normal involuntary admission procedures is preferred. The status of patients should not lightly be changed from voluntary to involuntary, and the rights of patients in this regard must be fully safeguarded. The legal scope for using the normal admission procedures under sections 9 and 10 will be examined.
• The Act should be amended when a suitable opportunity arises to provide for the closure of approved centres.
• A monitoring group, consisting of representatives of the Department of Health and Children, the Department of Justice, Equality and Law Reform, the HSE, the Mental Health Commission, service providers and service users should be established to address any difficulties with the Mental Health Act 2001, to oversee the linkages between the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006 and to contribute to the development of any proposed capacity legislation.

Family Law Matters

The Courts Service has launched its second report on Family Law proceedings, 'Family Law Matters'. This is part a series of reports which are a Courts Service initiative to shine a light on family law courts. The report provides information under four headings; Reports, Statistics, Opinion and Judgments. It includes an excerpt from a paper by Judge Conal Gibbons dealing with the reasons children are taken into care and by the Pensions Ombudsman Paul Kenny dealing with the issue of pension adjustment orders.

The paper by Judge Gibbons shows that of the children in care in Ireland 43% are as a result of a court care order are 57% voluntary placements. It goes on to show that the major reasons children are in care are:

• neglect 1,386
• physical abuse, 290
• sexual abuse, 159
• emotional abuse, 147
• emotional and behavioural problems, 134
• mental health problems / intellectual disability, 19
• abusing drugs / alcohol, 9
• physical illness/ disability, 8
• pregnancy, 7
• involved in crime, 4
• other, 146

The figures also show that of the 5,060 children in care in Ireland only 442 are in residential care with the vast majority being in some form of foster care and with 32 being cared for at home under supervision.

The Family Law Reporter is Dr Carol Coulter.

Full Press Release:
http://tinyurl.com/2hrmwk

Full text of reports:
http://tinyurl.com/2slzba

Titles of reports:
Maintenance procedures in the district court.pdf
Family Law Matters - Vol. 1 No. 2 2007 - Summer 2007.pdf
Family Law Matters - Vol.1 No.1 - Spring 2007.pdf

Sample Media Coverage:
http://www.rte.ie/news/2007/0710/morningireland.html

Advertising Law in the Information Age event

We've been busy running the third E Law Summer Institute. The Press release is here.

As part of the Institute, we have a guest lecture, open to all, as follows:

Advertising Law in the Information Age

Douglas Wood, Attorney, Reed Smith, New York

Wednesday 1 August 2007, 9.00 a.m.

Full details are here.

Mahon Tribunal Case 4 July 2007

Yesterday's Mahon Tribunal case in the Supreme Court is available on the Courts Service website at www.courts.ie/Judgments.nsf/Webpages/HomePage

The title is
Fitzwilton Limited and Others -v- Judge Alan Mahon and Others [2007] IESC 27

A brief extract from paragraph 14 of Denham J's judgment:

'I also note the words of the next paragraph. These are:- "The Tribunal may decide to continue its inquiries and/or proceed to public hearing in respect of one or more issues which are currently part of a matter designated and listed herein." The words "The Tribunal may decide" is not a record that a decision has been made. The words are not "The Tribunal has decided". Rather, the words, "The Tribunal may decide", indicate that a decision may be taken in the future by the Tribunal. It is clear that the Tribunal has considered the listed matters. This is the first step required by the Houses of the Oireachtas.
The second step the Tribunal was required to take was to make a decision as to the additional matters which should proceed to public hearing. The words in the document "… may decide to continue its inquiries and/or proceed to public hearing in respect of one or more issues … listed herein" indicate that the Tribunal reserved its decision to a future date, which may be a reference to the discretion conferred by paragraph J(6). The words "may decide", indicate an action in the future.
This is confirmed by the words stating that the Tribunal may do either of two things. The specific words: "and/or proceed to public hearing", describe a situation where the matters are under consideration not decision.
The third step is to record the decision. On its face the document of the 28th April, 2005, does not record a decision that specified additional matters go to a public hearing.'

Sample media coverage:
http://www.rte.ie/news/2007/0704/mahon.html

LRC Public Consultation - Dublin, 18 July 2007

Law Reform Commission
Public Consultations on Law Reform

The Commission is coming to the end of its Second Programme of Law Reform 2000- 2007 and has started identifying new areas of law to be included in a Third Programme of Law Reform, which will run from 2008.
The Commission is committed to ensuring that the Third Programme will reflect the needs of a modern society, and is seeking the views of interested persons and groups on the laws in need of reform. A number of Public Consultations have already been held. The first Consultative Seminar took place at NUI Galway in March and the second was held in UCC in April. The final Consultative Seminar is planned for Dublin Castle on Wednesday 18 July, from 9 - 1 pm. This Seminar in will also be the Commission's Annual Conference for 2007 and is free to attend, but booking is essential.
The closing date for the Dublin Castle Seminar is Monday 16th of July.

Members of the public can make suggestions for law reform verbally or in writing. The Commission is interested in receiving submissions on laws that affect the daily lives of people. There is no standard format for a submission and there is no requirement to use technical legal language. Please send your submissions to:
Secretary / Head of Administration
The Law Reform Commission
35 - 39 Shelbourne Road
Ballsbridge
Dublin 4
Email: thirdprog@lawreform.ie
Website: www.lawreform.ie

Mental Health (Criminal Law) Review Board - new website

The Mental Health (Criminal Law) Review Board, established under the Criminal Law (Insanity) Act 2006, now has a website at
www.mhclrb.ie [link fixed 22 June'07 12.15 p.m.]

A brief summary of the provisions of the Criminal Law (Insanity) Act 2006 is available on the Citizens' Information website.

Another James Joyce Copyright Case

Many people will be aware of cases concerning copyright in James Joyce's works such as
Sweeney v. NUI Cork T/A Cork University Press [2000] IEHC 70 and Sweeney v. MacMillan Publishers [2001] EWHC Ch 460.
In 2004, a brief amendment to the Copyright legislation was passed due to concerns about possible litigation concerning Joyce's works. See the Copyright and Related Rights (Amendment) Act 2004 and Matthew Rimmer, "Bloomsday: Copyright Estates and Cultural Festivals", (2005) 2:3 SCRIPT-ed 345.

Lawrence Lessig now reports that a case filed in the Californian courts concerning James Joyce's works has been settled, with the academic author, Professor Carol Shloss, being enabled to publish a supplement to her book on Lucia Joyce. The supplement may be published in print form within the United States and in electronic form "accessible only within the United States to computers with a U.S. Internet Protocol (I.P.) address." So we Europeans will have to hop on an Aer Lingus flight if we want to look at the site. For those of you currently in the U.S.A., go to
www.lucia-the-authors-cut.info/index.html

See also:
'An Important Victory For Carol Shloss, Scholarship And Fair Use'

Settlement Agreement

Press Release from Stanford University

Court Action re Constituency Boundaries

TDs take court case over boundary figures disparity

Two Independent TDs have initiated a legal challenge to the constitutionality of holding the general election on the basis of the current constituencies, given the huge disparities in population revealed by the census figures.

Further Details:

http://home.eircom.net/content/irelandcom/topstories/10182610?view=Eircomnet

http://www.breakingnews.ie/ireland/?jp=MHAUOJGBAUCW

New IrishLaw Update Published

A new IrishLaw Update has been published and is available at
www.ucc.ie/law/irishlaw/updates/no32_16apr2007.shtml

This includes a list of forthocoming events such as the following:

Tue.24 Apr.'07: Competition and the Legal Profession - Irish Centre for European Law Conference, Dublin
http://www.icel.ie/events_forthcoming.htm

Wed. 25 Apr.'07 - Personal Injury Claims: A Review of Recent Developments - Law Society seminar, Dublin
http://www.irishlaw.org/events/lawsoc06-07.shtml

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/

Thu.26 Apr.'07: Evidence in Early Irish Law: What do the Documents Tell Us? - Lecture by Professor Fergus Kelly - Sixteenth Hugh M. Fitzpatrick Lecture in Legal Bibliography - Dublin
http://www.irishlaw.org/events/legalbib-apr07.shtml

Mon.30 Apr.'07: Bi-lingualism in the Courts and in Legislation - Bar Council CPD Seminar, Dublin. This CPD event is of interest to legal practitioners with an interest in the Irish language.Attendance is open and free of charge. Taking place in the Morrison hotel, Ormond Quay, Dublin 1 at 4.30 pm

Wed.2 May'07: "What's wrong with the European Convention on Human Rights?" - Professor Steven Greer - Belfast
http://www.law.qub.ac.uk/schools/SchoolofLaw/NewsandEvents/Events/

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

Fri.-Sun.4-6 May'07: Law and Politics A Contemporary and Brehon Perspective - Burren Law School 2007, Clare
http://www.burrenlawschool.org

Thu.10 May'07: The Protection of Human Rights in the War on Terror - Human Rights Lecture by Baroness Helena Kennedy QC - Law Society Third Annual Human Rights Lecture, Law Society, Blackhall Place, Dublin http://www.lawsociety.ie - see Forthcoming Events
Attendance is free, but prior booking is recommended. Please contact a.moore@lawsociety.ie to register.

Tue.15 May'07: Public Lecture by Professor Richard Fallon, Harvard Law School entitled 'Reflections on the Morality and Legality of Coercive Interrogation by the US' - Harvard Law School Association of Ireland in association with School of Law Trinity College Dublin. Trinity College Dublin, Room 21.
Lecture begins at 6.30pm. Professor Fallon is a leading scholar on US constitutional law.
http://www.irishlaw.org/events/harvard-tcd-may07.pdf

Tue.15 May'07 - Competition Law : Key Issues for the General Practitioner - Law Society seminar, Dublin
http://www.irishlaw.org/events/lawsoc06-07.shtml

Thu.17 May'07 - Mergers, Acquisitions and Disposals of Irish Legal Practices in a Changing Market - Law Society seminar, Dublin
http://www.irishlaw.org/events/lawsoc06-07.shtml

Fri.18 May '07: Society of Trust and Estate Practitioners Annual Conference 2007
http://www.step.ie/newsevents.php

Wed.23 May '07: Annual Family Law Conference - Law Society event, Clontarf, Dublin
http://www.irishlaw.org/events/lawsoc06-07.shtml

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

Wed.18 Jul.'07: Public Consultation on Law Reform Commission's Third Programme of Law Reform - Dublin Castle
http://www.lawreform.ie

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

Vacancies: Lecturers in Law (2), University College Cork

http://www.ucc.ie/en/hr/EmploymentOpportunities/ :

University College Cork

LECTURERS IN LAW (2 POSTS)

College of Business and Law

The Department of Law has established itself as one of the leading law schools in Ireland. It has a distinguished history over many decades in attracting high quality students and recruiting high quality staff nationally and internationally. Over its modern history, the Law Department has consistently pursued a policy of innovation and development. The Department operates with a complement of twenty-five full-time academics taff providing BCL, LLB, LLM and PhD programmes in addition to an Evening BCL programme.

Applications are invited for two full-time permanent Lecturer posts in the Department of Law. The holders of these posts, working under the direction of the Head of Department and Dean of the Faculty of Law, will be expected to contribute to all day and evening law programmes offered at undergraduate and postgraduate levels. Applicants must hold a post-graduate qualification in law. The post holders will be expected to teach under the direction of the Head of Department, hold administrative roles, and be actively engaged in research.

Faculty of Law Website: http://www.ucc.ie/law

Informal enquiries to: Professor Caroline Fennell, Head of Department of Law
c.fennell@ucc.ie

Salary scale [new entrants]: 34,912 - 56,713 euro.
There is provision for subsequent progression to a higher salary scale maximum 81,867 euro.

Closing date: Friday, 20 April 2007

Completed application forms should be returned to:
Department of Human Resources, University College Cork, College Road, Cork,
Ireland. Tel: + 353 21 4903073/ Email: recruitment@per.ucc.ie
Fax + 353 21 4276995

Full details and application material:
http://www.ucc.ie/en/hr/EmploymentOpportunities/

Final Report of the Balance in the Criminal Law Review Group

Press Release from www.justice.ie :

Final Report of the Balance in the Criminal Law Review Group

The Tanaiste and Minister for Justice, Equality and Law Reform, Michael McDowell, T.D, has published the final report of the Review Group he established last November, chaired by Dr. Gerard Hogan, S.C., to examine and review aspects of the criminal law. The Tanaiste established the Group following a speech he made in Limerick last October about whether there was a need for a rebalancing of some fundamental aspects of our criminal law and, in particular, whether the system could reflect better the interests of victims while at the same time preserving the integrity and fairness of our criminal justice system.

Announcing the publication of the report which he received earlier this week on his return from the United States, the Tanaiste said "I warmly welcome this report and I am very grateful to Dr. Hogan and the other members of the Balance in the Criminal Law Group for their sterling and dedicated work on these important issues. It is a fair and balanced report and will I believe form a sound basis for taking forward proposals for reform in the areas with which it deals."

The Report deals in particular with the right to silence, allowing character evidence of an accused, the exclusionary rule of evidence, requiring an accused to outline the nature of his defence before or at the commencement of 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 and modifying the rule in relation to hearsay evidence.
The Tanaiste said "The Criminal Justice Bill before the Oireachtas at present already addresses the Group's thinking on the right to silence issue as set out in their earlier interim Report. Where other action is practical in the short term to take forward recommendations I will take it.
For example, I will introduce amendments to the present Bill dealing with the taking of statements in Garda questioning by electronic means and to deal with the problem highlighted in the Report where persons are entitled to video recordings of their questioning in Garda custody.

Of their nature, other proposals in the Report will take more time to advance and, indeed, the Group felt that some issues are in need of more detailed research and my Department will progress this. Nevertheless the Group's proposals form a sound basis for an agenda for sensible reform which I strongly believe should be built on and taken forward as quickly as possible.
On some aspects, I would go further than the Group's recommendations. For example, the issue of requiring a defence statement is one which, in my view, could be of huge assistance to a jury in their consideration of a case. Criminal trials are getting longer and more complicated and it would be of assistance to a jury to have a summary of the contested elements of the case before they hear the evidence."

During the course of its work, the Review Group sought written submissions from interested groups and members of the public. The Review Group also met with a number of interested parties including victims' groups, members of the judiciary, senior members of An Garda Síochána, the Director of Public Prosecutions and Chief Prosecution Solicitor, journalists, representatives of the Human Rights Commission and legal practitioners.

A summary of the recommendations contained in the report are attached at Appendix A and the full text of the Report is published on the Department's website at www.justice.ie and the Tánaiste's speech in Limerick last October is at http://www.justice.ie/80256E01003A02CF/vWeb/pcJUSQ6UTMDB-en
23 March 2007

Appendix I
The main recommendations of the Report are as follows:
1. The right to silence
* Inferences as to the credibility of a defence to be drawn from a failure to mention the fact relied on in the defence when in custody
* Inferences to be drawn from a failure to explain suspicious circumstances in custody
* Judges' Rules would cease to have effect and would be replaced by regulations, to be made by the Minister, regarding the conduct of interviews.
* A recorded interview should not be required to be the subject of a written note, subject to suitable safeguards
* Where the detained person requests that recording would not apply, the requirement for a note to apply to any admission made in an interview.
* Routine audio and video taping of common areas in Garda stations such as corridors etc to minimise the potential for issues arising concerning utterances or incidents in such common areas.
* The present practice regarding the supply of the videotapes of Garda interviews to suspects be changed so that the videotapes are only required to be made available by way of prosecution disclosure following the charging of the suspect or by order of a court
* Creation of a new offence of disclosing or showing an interview
videotape without lawful excuse.
A majority of the Group considers that neither the trial judge nor the prosecution should be permitted to comment on the failure of the accused to give evidence at his or her trial.
A separate dissent on this topic from two members of the Review Group is attached to the Report.
At the request of the Tanaiste, the Group had already issued an Interim Report on the right to silence in February 2007 and some of the Group's recommendations are contained in Part 4 of the Criminal Justice Bill 2007.
2. Allowing character evidence of an accused
* Where the defence attacks the character of the injured party in a case where the injured party has died or has become incapacitated and is unable to give evidence, the shield would be dropped and the accused would be liable to cross-examination as to his or her character without leave of the court.
* 10 days notice to be given of an intention to make an imputation against a deceased or incapacitated victim. (In the absence of such notice, the leave of the court would be required by the defence to make the imputation).
* Where the accused has engaged in an attack on the character of the prosecution witnesses or, the injured party who is deceased or unavailable to give evidence, or has adduced positive evidence of his own good character, or asked a question designed to elicit such evidence from any witness, the prosecution would be entitled to adduce evidence regarding the defendant's character.
* Allow an express power to call further prosecution evidence regarding the character of the deceased or an incapacitated victim where the victim's character has been put in issue.
3. The exclusionary rule of evidence
Majority recommendation
* Court to have a discretion to admit unconstitutionally obtained evidence or not, having regard to the totality of the circumstances and in particular the rights of the victim.
* Allow time for a possible change in jurisprudence to emerge following use of the appeal provisions of the Criminal Justice Act 2006. If not, other options, including various legislative models or possibly constitutional change, to be examined and considered.
A separate dissent on this topic from the Chairman is attached to the Report.
4. Require the accused to outline the nature of his defence before or at the commencement of a trial and 5. Extending alibi evidence rules to other analogous situations
* Limit the obligation of additional disclosure to the expert or technical reports or witness statement of experts on which the defendant intends to rely.
* Provide that, following such disclosure, the prosecution would not be entitled to call any witness making such a report without the consent of the defendant.
* Allow the prosecution to require the defence to tender a witness where a report or witness statement has been furnished, but the defence does not, in the event, wish to call the witness at the trial.
* When the obtaining of expert evidence takes a longer period of time the defence should be permitted to give details of the efforts being made to obtain a statement if the statement itself is not to hand at the time for disclosure. In any event, such reports should be disclosed well in advance of the trial.
Disposal of Admissibility Issues pre-trial
* Provide that admissibility issues be determined prior to the swearing in of a jury on the first day or days of a trial.
* The principle that consideration be given in sentencing to the stage at which a plea is tendered should be stated expressly in statute.
6. "With prejudice" appeals in the case of wrongful acquittal
* "With prejudice" appeals in respect of trials on indictment in the case of wrongful dismissals - A "with prejudice" right of redress against erroneous decisions by a trial judge, whether that is an interlocutory or evidential ruling (including a ruling which weakens the prosecution case, followed by a jury acquittal) or a directed acquittal.
* "With prejudice" appeals in respect of decisions of the District Court - No change.
7. Re-opening new evidence
* A right to the prosecution to complain in respect of miscarriages of justice on the basis of new or newly discovered evidence with recommended safeguards against a possible abuse of procedure which, of its nature, should only be used in exceptional cases.
* Such right to be exercised if the Supreme Court so decides, notwithstanding a foreign acquittal subject to consideration of the legal issues arsing under the Schengen implementation agreement.
8. Nullifying an acquittal where there is evidence of jury or witness tampering
* Review of acquittals in the event of interference with the trial process, whether in respect of the jury or otherwise.
* Supreme Court to be satisfied that there is sufficient evidence warranting a quashing of the acquittal.
9. Allowing submissions by the prosecution before sentencing
* Amendment to the Guidelines for Prosecutors to allow the prosecutor to volunteer information regarding sentencing precedents whether requested by the judge or not.
* Develop guideline judgments by the Court of Criminal Appeal or Supreme Court, where a number of appeals concerning the same offence would be heard together and a general guideline judgment given, indicating the approximate mid point on the scale of severity and the factors that might result in a significant adjustment up or down.
* Consider possible statutory mechanism for the requesting of a guideline judgment by the Director or the giving of such a judgment on the court's own motion.
10. Modifying the rule in relation to hearsay evidence
* Identify any particular areas that warrant specific exceptions being permitted rather than a radical break from existing norms.
* Consider legislative provisions which would allow proof of purely formal or technical matters to be proved by certificate
* Department of Justice, Equality and Law Reform to keep under review section 6 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, (evidence of scene preservation to be proven by certificate) and section 188 of the Criminal Justice Act, 2006 (handling of forensic samples), to see whether any extension of these provisions is warranted.
Other proposals
11. Identity parades
Allow an injured party to identify a suspect through a one-way screen in as far as practicable.
12. The judge's charge
Development of "Bench Books" as recently recommended by the Law Reform Commission which should bring greater standardisation to the formulae used for certain aspects of judges charges.
13. Victim impact reports
* The statutory provision should be recast to permit the person or
persons who have been most directly affected by an offence, to give evidence at the sentencing stage - for example next of kin of a deceased victim of crime, subject to the Court's discretion in any case.
* Include a power vested in the court to direct that the statement as
delivered or any part of it would not be published or broadcast, without prejudice to any other power of the court.
* Welcome the Tánaiste's recent decision to ensure that the Parole Board would have access to the book of evidence in any case in which parole was applied for.
* Victim impact statement should also be given to the Parole Board and
considered prior to any decision on parole.
* In addition - particularly for the category of relatives or victims
who did not get the opportunity to make a victim impact statement - the Department of Justice, Equality and Law Reform to examine further whether there might be merit in allowing such victims to be heard by the Parole Board in the presence of the offender, perhaps as a condition for eligibility for consideration of the request for parole.
14. Implications for the Defence Acts
Amendments to the Defence Acts to reflect (in the military justice context) the changes to the criminal justice system proposed.

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/ ]