A Pro-Life demonstration outside the Irish Human Rights and Equality Commission
Gorugeen Fingleton writes:
I wondered would it be possible to ask Legal Coffee Drinker about legislation to combat the use of disturbing images.
The relevant law is The Criminal Justice (public order) Act 1994, section 7. In Criminal Law (Charleton, McDermott, Bolger 1999) they specifically mention the use of section 7 against anti abortion campaigners.
If this is quoted to a Garda they supposedly can act on it. However, when it was quoted recently the person was told that ‘higher ups’ have said the imagery is not illegal.
It’d be great to get some clarity on this…?
Legal Coffee Drinker responds:
“An interesting query! Section 7(1) of the Criminal Justice (Public Order) Act 1994 states as follows:-
“It shall be an offence for any person in a public place to distribute or display any writing, sign or visible representation which is threatening, abusive, insulting or obscene with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned.”
As a minimum, it would need to be shown that the material was ‘obscene’ for it to breach Section 7(1). I have not been able to find any reported Irish cases on the point, but there is a recent relevant Australian decision.
In Fraser v County Court of Victoria & Anor  VSC 83 (21 March 2017) the Supreme Court of Victoria (Emerton J) defined ‘obscene’ as “at the highest end of what is disgusting, repugnant, repulsive or offensive, having regard to contemporary community standards… images that are of the most seriously shocking type.”
Based on this definition, she held that the display of a poster featuring photographs of abandoned foetuses was the “display of an obscene figure in a public place” contrary to s 17(1) (b) of the Summary Offences Act 1966 (Vic).
This case represents a significant extension of the definition of ‘obscene’, previously defined by Australian courts [Crowe v Graham  HCA 6; (1968) 121 CLR 375] as something which, by reason of the manner in which it dealt with sexual matters, transgressed the generally accepted bounds of decency.
Were it to be followed in Ireland, Emerton J’s definition would potentially prohibit the public display of anything offensive ‘having regard to contemporary community standards‘.
The difficulty is of course that even a short historical review shows many activities, exercised as of right in Ireland today, which would only a few years ago have been quite likely to satisfy this test.
If the definition of ‘obscene’ in Fraser is to be adopted for the purposes of suppressing posters by the pro-life movement, this could potentially have knock-on effects for freedom of speech and social change generally, a generation or so down the line…
Set up under Judge Nial Fennelly as a result of disturbing discoveries about the Garda investigation into the death of Sophie Toscan du Plantier, the commission took three years, nine barristers and 800 pages to come to its conclusions.
We asked ‘Legal Coffee Drinker’, what’s it all about.
Broadsheet: “Legal Coffee Drinker, what’s it all about?”
Legal Coffee Drinker: “It’s about two things. Firstly, the degree to which superior officers in the Gardai were aware of the surreptitious recording of non-999 calls in divisional Garda stations from 1985 onwards.
Secondly, the extent to which surviving recordings of such calls made to and from Bandon Garda station discloses misconduct by police officers in the Sophie Toscan du Plantier investigation.”
Broadsheet: “And what did the report conclude on this first issue?”
LCD: “It confirmed that the recording of non-999 calls had systematically taken place over decades without the knowledge or consent of parties to these calls. It confirmed that among the calls so included were calls between accused and their solicitors.
It confirmed that the Telecommunications Division in Garda HQ was aware that non-999 calls were being systematically recorded, having received at least one expression of concern about this from a member of the Gardai.
However it took the view that this knowledge was not shared by Garda hierarchy, who were entirely unaware that such recording was taking place. It also found that there was no evidence of any general practice of making use of the recordings, although it couldn’t rule out the fact that they might have been so used in specific cases.”
Broadsheet: “But… this wasn’t a practice confined to one particular Garda station?
LCD: “No, the practice of recording non-999 calls was routinely applicable to all divisional Garda stations, for many years, decades in fact.”
Broadsheet: “And Garda top brass didn’t know?”
LCD: “Previous Garda Commissioners gave evidence that they had believed recording was confined to 999 calls only. The Fennelly Commission accepted this and described the situation as ‘an extraordinary picture of almost complete ignorance’.”
Broadsheet: “Was there any attempt to query the assertions of the Garda Commissioners in this regard?”
LCD: “Where there is no documentation, and no member of the force who comes forward to give evidence of knowledge on the part of the Garda hierarchy, it can be difficult to challenge even unlikely assertions. The Commission did struggle a little to find an explanation for the complete ignorance. The suggestion was made to them that perhaps because the Garda hierarchy was based in Dublin, they were out of touch with what went on in country areas.”
Broadsheet: “The old Nuremberg defence (sucks teeth).”
Broadsheet: “What does the report tell us about the Sophie Toscan du Plantier investigation?”
LCD: “To understand this portion of the report, it’s helpful to start with a brief account of the case brought by Ian Bailey against the Gardai in relation to their conduct of this investigation.
He alleged mistreatment of himself and his partner Jules Thomas by a number of Gardai, including the late Detective Sergeant Liam Hogan, whom he alleged told him he would “be found dead in a ditch with a bullet in the back of your head”.
Also giving evidence for Bailey was Martin Graham, who accused Detective Garda Jim Fitzgerald of having given him cannabis for information against Bailey. Another witness was Marie Farrell, who claimed that Fitzgerald and others had coerced or induced her into making a false statement identifying Bailey, knowing it to be false, and further coerced or induced her into making further complaints that she was being threatened by Bailey.”
Broadsheet: “Do all these people crop up in the Report?”
LCD: “They do. Hogan, Fitzgerald, Graham and Farrell are clearly identifiable in the Report as Sergeant Alpha, Garda Delta, Mrs A and Mr S respectively.
The calls transcribed in the report include a conversation between Garda Fitzgerald and another garda regarding an assault alleged to have been carried out by Marie Farrell’s husband, Chris, on another man, Mr C.
In this conversation, Garda Fitzgerald suggests the possibility of Chris Farrell making a counter-statement for assault against Mr C advance of Mr C making his complaint. The other Garda (described as Garda Epsilon in the Report) responds by saying:
“Sure we can always pre-date it if it comes to it”.
Detective Garda Fitzgerald says:
Towards the end of the same telephone conversation, in the course of discussing actions open to Mr and Mrs Farrell in the event that Mr C were to make a complaint, the following exchange takes place:
Garda Fitzgerald: “And you can always say that sure he drew a punch and missed as you drew back, you know what I mean. ”
Garda Epsilon: “Yeah.”
Garda Fitzgerald: “He’s a man of the world, he knows what to say and do. ”
Garda Epsilon: “Oh yeah.”
Garda Fitzgerald: “What?”
Garda Epsilon: “Oh, we’ll cover him alright.”
In evidence to the Commission, Garda Fitzgerald said that he was talking about an actual assault on Mr Farrell by Mr C which Mr Farrell had told him had happened. Garda Epsilon indicated that he was not aware of any such assault.
There’s another recording of a conversation between Fitzgerald and Marie Farrell discussing the possibility of a further complaint of assault against her husband Chris by a person who had previously acted as babysitter for their children.
In it, Garda Fitzgerald appears to suggest that Mr and Mrs Farrell could seek to dissuade the babysitter from making a complaint by threatening to make their own complaint that they previously assaulted one of the children of Mr and Mrs Farrell.”
The conversation goes as follows:
Garda Fitzgerald: “No, no, no, but fucking going to the guards, they will in their bollix, ha.”
Mrs Farrell: “Oh, I know she is all mouth.”
Garda Fitzgerald: “She’s only ha? Do you know, put it this way, Mrs Farrell, you could also say we will go to the guards. When you were babysitting that you assaulted [a named child]. Ha?”
Mrs Farrell: “Yeah.”
Garda Fitzgerald: :D’you know what I mean? Be easy for [the named child] to say — or, you know, that he got a belt. Ha?”
When asked about this discussion by the Commission, Garda Fitzgerald said that Mr and Mrs Farrell had previously alleged to him that the babysitter was slapping the children.
He said that he had made the remark about it being easy for [the named child] to say that he got a belt to overcome what he perceived as a general reluctance on the part of Mr and Mrs Farrell to make statements of complaint, by assuring them that it would be an easy matter for the child in question to make a statement if he or she wanted to do so.”
Broadsheet: “Hmm. Was that the only time Garda Fitzgerald came up in the Report?”
LCD: ” No. There’s another reference to a recorded conversation he had with Mr Martin Graham.”
Broadsheet; “The man who alleged he was given cannabis?”
LCD: “Yes. This conversation differs from the other recordings because it was recorded with the knowledge of Garda Fitzgerald. It took place in a car on a journey to Mr Graham’s home, and goes as follows:-
Garda Fitzgerald: “In case you go to pub tonight… I have a bit of money there you know, a little bit of stuff, you know, I’ve a bit – I’ve got a few smokes as well for you.”
Mr Graham: “Have you got some hash?”
Garda Fitzgerald: “I have cash, I’ve cash and I have something in a- and I have a few smokes here in the – you know, you said you were starved, were you.”
Garda Fitzgerald told the Commission that the reference to ‘stuff’ related to cigarettes and plug tobacco which he had purchased in a shop before they met Mr Graham at evening. He suggested that Mr Graham made the reference to ‘hash’ in order to entrap him.
The Commission also heard from the telecommunications technician who had recorded and transcribed the interview, voluntarily adding the words “Lighting a cigarette and laughing” into the transcript immediately after the reference to hash. The Commission felt that the technician had not been authorized to insert these words and they did not feel that Mr Graham was joking.
Broadsheet: “So what then did the Commission conclude about Garda Fitzgerald’s conduct?”
LCD: “It accepted there was a conflict of fact between Garda Fitzgerald and Garda Epsilon as to whether or not Mr C had previously assaulted Chris Farrell. However, it felt that the question of a fabrication of a complaint against Mr C did not ultimately arise because Garda Epsilon had been able to persuade Mr C not to pursue its assault complaint.
As regards the complaint made against the babysitter, it held that, although there were some ‘aspects of concern’, it was not possible to establish whether or not Ms Farrell had previously told Garda Fitzgerald about an alleged assault and therefore whether or not he had been suggesting the fabrication of evidence.
Finally, in relation to the hash issue, while rejecting the suggestion that Mr Graham was joking when he referred to hash, it found that Mr Graham’s request was not evidence that Garda Fitzgerald had expressly or impliedly offered to pay him for hash, in circumstances where the conversation with the reference to hash had been voluntarily recorded by Garda Fitzgerald.”
Broadsheet: “Anything about Sergeant Hogan?”
LCD: Yes. There was a transcript of a conversation between Sergeant Hogan and Garda Fitzgerald, regarding a statement made by one of their colleagues about Jules Thomas [partner of Ian Bailey’. In it, he had written:
“I knew she was making every effort to tell me the truth.”
Sergeant Hogan took issue with this portion of the statement, saying to Garda Fitzgerald:
“Fuck it, she wasn’t anyway…. Ah fuck it, it’s awful. When I see your friend then, like writing them stupid fucking statements, like I mean… what man…”
“Yes, that statement has to get fucking chopped up anyway.”
There was also another conversation between Sergeant Hogan and a further garda (described as Sergeant Beta in the Report) which discussed amending a written statement of a witness who had said that he remembered someone having told him that Mr Bailey was in the pub on a particular night.
In the phone call Sergeant Beta expressed annoyance at the hearsay element of this statement, saying:
“[it] undermines the whole thing… I will take that out so to fuck will I?”
Sergeant Hogan’s response was inaudible.
The Commission Report also contained details of conversations that Sergeant Hogan had had with civilians and journalists regarding the Bailey case, in which he referred to Mr Bailey in pejorative terms.”
Broadsheet: “What sort of terms?”
LCD: “A ‘cunning bastard“, “he’s fucking playing some game at the minute“, “he’s that cute“, “he has a temper threshold that, like he’d snap like that“, “beaten the one he’s living with, sure he’s beaten her to a pulp a few times“, “sex was the fucking motive“, “she did a runner if he got near her, you see, and that was it an the caught her.”
Broadsheet: “Gulp. And what conclusions did the tribunal reach on Sergeant Hogan?
LCD: “That he – and other members of the Gardai – were prepared to contemplate altering, modifying or suppressing evidence that did not assist them in furthering their belief that Mr Bailey was the murderer, but that there was no actual evidence of such alteration or modification having taken place as the statements objected to appeared unaltered on the investigation file.”
Broadsheet: “We don’t have any evidence to contradict their explanations and where no explanation is provided no harm was done?”
LCD: “A bit, yes. As with its conclusion on the systematic recording of tape recordings generally.”
Broadsheet: “So your overall conclusion?”
LCD: “The Garda Siochana is a mysterious place and keeps its secrets close. Also, the Hogan & Fitzgerald modus operandi is a little worrying, to say the least. This wasn’t Sergeant Hogan’s first case. His father commanded the Garda in West Cork for decades. Hogan himself was involved at a high level in the Catherine Nevin investigation and in investigating Martin Cahill. He’s a familiar figure in Irish true-crime books. Presumably there are recordings of his phone calls in other cases. It would be interesting to hear them.”
Broadsheet: “With consequences for appeals generally?”
LCD: “I think this report will have consequences for appeals generally in another respect. Unconstitutional recording of phone calls between an accused and their solicitors raise issues as to the lawfulness of the accused’s detention and any confession subsequently made by them. We done?”
Broadsheet: “Thank you very much Legal Coffee Drinker.”
LCD: “Give me a bit more notice next time.”
Broadsheet: “Of course, sorry. Thanks. Have a great weekend.”
Further to yesterday’s post on the award of 75% of costs to losing party Angela Kerins in her case against the Public Accounts Committee, Broadsheet commenter Harry Molloy asked me to come back to readers when the full written judgment had been published. It is now available here.
The justification for the award of costs is set out by the Court at paragraphs 26-33 and appears to be as follows:-
(i) The PAC has an important function. Questions concerning the proper discharge of its function and the conduct of its members and the legal safeguards (if any) available to witness who appear before it are matters of public importance, involving questions of freedom of speech in Parliament, the separation of powers and the extent to which the court may intervene in the affairs of the Legislature.
(ii) Ms Kerins attended before the PAC in a voluntary capacity and much of what was put to her and said about her was damaging to her reputation personally and professionally. By bringing her action, Ms Kerins cast a light on the position of persons who volunteer to appear before the PAC. The institution of proceedings on her part was a proportionate reaction on her part to what had occurred and as such and the fact that she had a personal interest in the outcome of the application should not preclude her obtaining her costs.
The implication from the ruling was that Ms Kerins had not been well treated by the PAC and therefore it was justifiable for her to seek to clarify the law in relation to the position of witnesses appearing before it.
There is also an implication that she performed a public service in alerting potential witnesses to the risks of appearing before the PAC.
Although within the (very wide) parameters of the discretion laid down by previous case law, the ruling does break new ground in that it sanctions an award of costs to an unsuccessful litigant with a personal interest in proceedings on a matter of public interest where that litigant acted proportionately in bringing the proceedings.
It will be interesting to see what implications this ruling will have for Denis O’Brien’s costs in his recent unsuccessful application for parliamentary privilege. Will the richest man in Ireland be entitled to his costs on a losing case on the basis that he acted ‘proportionately’?
And, more pressingly, what does proportionately even mean?
Angela Kerins before the Public Accounts Committee in 2014
The Public Accounts Committee will have to pay two thirds of former Rehab boss Angela Kerins’ legal costs after her failed High Court action.
Ms Kerins lost her personal injury claim against PAC [concerning two days of grilling about payments to the charity] after the court said it could not make any judgment on utterances made inside the oireachtas (see REDACTED for details).
So…why are ‘we’ lumbered with the bill?
Legal Coffee Drinker writes:
Order 99 Rule 1(1) of the Rules of the Superior Courts provides that the
“costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those courts respectively…”.
Order 99 Rule 1(4), further provides:
“…the costs of every issue of fact or law raised upon a claim or counterclaim, shall, unless otherwise ordered, follow the event…”.
This gives the courts a wide discretion in relation to costs which has been limited by rules laid down in case law.
The leading case is the decision of the Supreme Court in Dunne v Minister for the Environment  2 IR 775. The issue under appeal was whether or not an individual who had brought an unsuccessful legal challenge to the construction of a motorway near a site of archaeological interest should be entitled to their costs.
The Supreme Court held that that the normal rule was that the costs of every proceeding followed the event but that the courts always retained discretion in relation thereto.
There was no fixed rule or principle determining the ambit of that discretion and, in particular, no overriding principle which determined that it had to be exercised in favour of an unsuccessful plaintiff in specified circumstances or in a particular class of case.
The fact that a plaintiff was not seeking a private personal advantage and that the issues raised were of special and general public importance were factors which could be taken into account along with all other circumstances of the case in deciding whether there was sufficient reason to exercise a discretion to depart from the general rule that costs followed the event.
However, the two principles, in themselves, were not the determining factors in any category of cases which could be described as public interest litigation.
In that case the Supreme Court overturned an order awarding the unsuccessful applicant his costs, saying that:
“undoubtedly the fact that a plaintiff is not seeking a private personal advantage and that the issues raised are of special and general public importance are factors which may be taken into account, along with all other circumstances of the case, in deciding whether there is sufficient reason to exercise a discretion to depart from the general rule that costs follow the event.
However, insofar as the learned High Court Judge may have considered that the two principles to which she referred are in themselves the determining factors in a category of cases which may be described as public interest litigation, I do not find that the authorities cited support such an approach…”.
Recently United Left TD Joan Collins was awarded 75% of her legal costs in her unsuccessful challenge to the promissory notes issued by the Minister for Finance in favour of Anglo Irish Bank and the Educational Building Society.
The three-judge divisional High Court ruled that it was an exceptional case which merited a departure from the normal rule regarding costs. Given the exceptional nature of the litigation, it awarded her 75%.
In that case, Joan Collins had no ‘private personal advantage’ in the success of her legal claim. The Kerins case is different in this respect.
However the decision in Dunne, while acknowledging that lack of private personal advantage might be a factor to be taken into account in deciding on costs, did not absolutely rule out an award of costs in such a case.
The test which is applied in deciding on costs is ‘exceptionality’ – something which still leaves a lot of discretion to the trial judge.
In the Kerins case, the court appears to have regarded the issue involved as of sufficient public importance to override the fact that the case was of private personal advantage.