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…
From top: St Vincent’s Healthcare Group, owned by the Sisters of Charity order; Minister for Health Simon Harris and Master of Holles Street, Rhona Mahony with a model of the intended National Maternity Hospital.
Last night A 25-page report on the terms of agreement between the National Maternity Hospital, Holles Street and St Vincent’s Hospital Group – as written by mediator Kieran Mulvey – was published by Health Minister Simon Harris.
We asked Legal Coffee Drinkers, what’s it all about?
Broadsheet: “Legal Coffee Drinker, what’s it all about?”
Legal Coffeee Drinker: “It’s a report on the agreement (“the Agreement”) reached between the National Maternity Hospital Holles St and St Vincent’s Hospital Group regarding the new maternity hospital at Elm Park.”
Broadsheet: “According to the report, who will run the new hospital?”
LCD: “Clause 1.1 of the Agreement says that the hospital will be operated by a designated activity company called the National Maternity Hospital at Elm Park DAC (“the Hospital Company”).
Clause 4 says that the Hospital Company will in turn be run by a Board of Directors consisting of nine directors (“the Directors”) one of whom must be the Master.
Four of the Directors will be nominated by the St Vincent’s Hospital Group and another four Directors will be nominated by the National Maternity Hospital Chartered Trust.
The remaining Director will be an independent international expert in Obstetrics and Gynaecology appointed by a Selection Committee.
The composition of the Selection Committee, however, is not clearly stated, something which is particularly unfortunate given that the expert appointed by it could effectively have the casting vote on Board decisions.”
Broadsheet: “So that’s the first point of concern? What’s the next?”
LCD: “Clause 1.2 of the Agreement which says that the Hospital Company will be a 100% subsidiary of St Vincent’s Hospital Group.
This means that St Vincent’s Hospital Group – and not the National Maternity Hospital Chartered Trust – will own the Hospital Company.
Under company law, shareholders of a company have the ultimate control of that company, having the ability to alter the composition of the Board of Directors or the objects and scope of operation of the company by amending its incorporating documents.
The concern is that St Vincent’s Hospital Group could, down the line, use its shareholder status to change the structure of the Hospital Company from that originally set up under the Agreement, undermining its entire effect.
Clause 3 of the Agreement seeks to safeguard against this by providing that the Directors shall be entitled to exercise in an undiluted manner and in a manner designed to preserve the autonomy and clinical and operational independence of the new hospital the power to provide maternity, gynaecological, obstetrics and neo-natal services and control, utilise and protect all financial and budgetary matters as they relate to the hospital and shall also be entitled to retain the existing Mastership model, appoint the Master and other officials and agree the annual SLA with the HSE (all of which are collectively described as ‘the Reserved Powers’).
It further states that a provision shall be inserted in the incorporating documents for the Hospital Company saying that the Reserved Powers cannot be removed save with the prior written and unanimous approval of all Directors of the Board and with the consent of the Minister for Health.”
Broadsheet: “So the Directors retain independence in the performance of maternity, gynaecological, obstetrics and neo-natal services unless they all vote to relinquish this and the Minister for Health also agrees?”
Broadsheet: “So that’s all right then?”
LCD: “Not necessarily. Firstly, although the reserved powers cannot be easily removed, they are powers, not obligations, given to a Board of Directors less than half of whom will be appointees by the National Maternity Hospital Chartered Trust.
The remaining members (who could potentially outvote the Trust appointees in all and any decisions relating to the hospital) consist of appointees of the St Vincent’s Hospital Trust and an international expert appointed by an as yet undefined selection committee. They are the people who will determine the extent to which the reserved powers are exercised in practice.
Secondly, the scope of the reserved powers are necessarily limited by the objects of the Hospital Company as defined in Clause 2 of the Agreement, which talks about providing
‘a range of health services in the community as heretofore’.
The words ‘as heretofore’ could potentially be relied on in the future to argue that new health services – possibly abortion, if legal, or new methods of assisted reproduction – fall outside the purposes of the hospital.
As such there are two ways in which St Vincent’s could potentially, under the Agreement, obstruct procedures in the Hospital of which they did not approve.
Firstly, they could argue, as regards procedures which were not previously carried out in Holles Street, that they fell outside the scope of the authority to carry out work ‘as heretofore’.
Secondly – and separately – they could, if supported by the international expert director, use their influence on the Board of Directors to outvote the Master and nominees of the National Maternity Hospital Chartered Trust and in this way prevent the procedures being carried out.”
Broadsheet: “What about the ‘triple lock’ referred to by Master of Holles Street Rhona Mahony?”
LCD: “The triple lock referred to by Dr Mahony locks one door by which St Vincent’s could seek to obstruct such procedures. It does not ‘lock’ the other two doors mentioned above, which are left open by the use of the words ‘as heretofore’ in Clause 2 and the failure of the Agreement to clearly define the composition of the Selection Committee which will appoint the Independent Expert.
The report on the deal states:
‘The independent international expert in Obstetrics and Gynaecology will be chosen from a list of candidates drawn up by SVHG and the NMH Trust.
They will be assessed by a Selection Committee, chaired by the SVHG Clinical Director,and the other members will include the SVHG CEO and a representative from the NMH Trust.
Any proposed nominee will be appointed by the Selection Committee after consultation with the SVHG Nominations Committee.’
Broadsheet: “So St Vincent’s could potentially use these two doors in the Agreement to control the hospital’s future activities?”
LCD: “Potentially, yes.”
Broadsheet: “One final question. Who will own the hospital if and when built?
LCD: “The owners of the ground on which the hospital is built will own the hospital. The Agreement references a ‘lien’ being put in place to protect the HSE investment. A lien is normally a security interest put in place to protect a creditor.
Presumably what is meant is that the HSE will take a charge over the hospital land for the amount of the money expended. However if, as is likely, the building will increase the value of the land to significantly more than this sum, it will be the owners of the land, rather than the HSE, who will get the profit under such an arrangement.”
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.”
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.
Last year, Clare Daly’s bill on fatal fetal abnormalities was vetoed by Fine Gael and Labour TDs, many of them pro choice, acting on unpublished advice from the Attorney General Maire Whelan,
On Thursday, another, blll sponsored by Mick Wallace, in similar terms will go before the Dáil.
Once again, the Government has stated that it should not be voted for, in view of the AG’s previous advices.
We asked Legal Coffee Drinker, what gives.
Broadsheet: “Legal Coffeee Drinker, what gives?”
Legal Coffee Drinker: “I’m not sure what you mean but what matters is whether or not these advices are correct. The courts’ view of the scope of the right to life of the unborn does not appear to be the same as the Attorney General’s.
P (P) v Health Service Executive , in which it was held that the withdrawal of life support from a woman, who was brain dead, and whose foetus had no viable prospect of survival outside the womb, was not in breach of the State’s obligation to vindicate the right to life of the foetus where there was no reasonable prospect that it would be born alive.
A legislative provision like the proposed Bill, which only provides for termination in circumstances where there is no possibility of the unborn being born alive, would not therefore be unconstitutional.”
Broadsheet: “So you feel that it is wrong to oppose the bill on the basis of the AG’s advice?”
Legal Coffee Drinker: “On the basis of this advice as communicated to the public, yes. All we have is a bald assertion by the AG that the Bill is unconstitutional, based on the wording of the Constitution. No copy of the AG’s advices have been published and it’s not clear whether or not these advices took into account the P case, which would appear to make it quite possible – if not highly likely – that the Bill is constitutional.
There’s also the separate question of whether or not over-reliance on the A-G’s opinion in this matters could potentially breach the separation of powers provisions in our Constitution.
The Constitution provides for a clear division of power between the Goverment, the Oireachtas and the Courts, and also provides that the Courts – and not the Government, of which the AG is part – are the arbiters of unconstitutionality. In view of this, the Constitution even provides, in Article 26, for a special mechanism whereby a Bill may be referred to the Supreme Court, prior to being signed, to have its constitutionality ascertained.”
Broadsheet: “So over-reliance on the A-G’s opinion as to unconstitutionality may itself be unconstitutional?”
Legal Coffee Drinker: “Precisely. If bills don’t go ahead because there is too much deference to the AG’s opinion, then the constitutionality of the bill never gets to be decided on by the Supreme Court. Treating the AG’s opinion as final and conclusive – in circumstances where there is High Court authority to the contrary – is itself a breach of the separation of powers.
At the very least – given that there is authority which appears to be in direct conflict with her advices – more detail about the AG’s advices should be published to TDs before they can reasonably be expected to rely on those advices.
And attempts to discipline party or government members, who vote for a Bill opposed by the Government solely on the basis of the AG’s advice as to its constitutionality – could also be challenged on the grounds that a TD. should never be punished for seeking to uphold the principle that the courts be the sole arbiters of the Constitution…”
Broadsheet: “Thanks Legal Coffee Drinker. It’s been a while. May readers have been asking for you. Welcome back.
You may recall how last year Independents 4 Change TD Clare Daly proposed a bill which would have allowed abortions in cases of fatal foetal abnormalities.
It was voted down 104 to 20 with Government TDs at the time claiming it was unconstitutional, following advice from Attorney General Máire Whelan.
You may also recall Legal Coffee Drinker’s take on the matter.
At the time, LCD said:
“…it is not possible to say with certainty, or even as a matter of probability, that the Bill is unconstitutional. Many Bills, including those put forward by governments, have constitutional question marks hanging over them. That this will happen is expressly recognised by the Constitution itself, Article 26 of which provides that the President, before signing a Bill, may refer it to the Supreme Court to have a decision taken as to its constitutionality.”
“To regard possible unconstitutionality, falling short of certainty, or even probability, as a ground for not voting for legislation would have ruled out much of the most important legislation passed in this jurisdiction. Constitutional rights – even the right to life of the unborn – are not absolute; nor, in this case, is the question of unconstitutionality. Indeed, it could be argued that, if anything, it is in the public interest that we get the opportunity to hear more, from the Supreme Court, on the meaning and scope of Article 40.3.3.”
Further to this, fellow Independents 4 Change TD Mick Wallace is planning to propose an identical bill in the Dáil next Thursday, June 30.
There have been reports that three Independent Alliance ministers – Shane Ross, Finian McGrath and John Halligan – have been planning to support Mr Wallace.
But today, on RTÉ’s News At One, Health Minister Simon Harris told presenter Richard Crowley that Mr Wallace’s bill is… unconstitutional.
Richard Crowley: “The 8th amendment. What’s happening with the Mick Wallace bill which was to come into the Dáil next Thursday?”
Simon Harris: “Well I fully understand what Deputy Wallace is trying to do and I’ve said very clearly, on the record, that I find the current situation facing parents experiencing fatal foetal abnormalities in this country to be utterly unacceptable. But I am duty-bound, as Minister for Health, to make sure that any actions we take are constitutional, that they’re legal and that they’ll actually have an impact.”
“I’ve been consulting the Attorney General, in relation to Deputy Wallace’s bill. This bill is pretty identical to a previous bill tabled in the Oireachtas last year and the advice available to me, and the advice available I will be making available to Government colleagues is that the bill is not constitutional and that arises from the fact that there is a very explicit protection of the right to life of the unborn in our constitution.”
“So, really, these issues need to be addressed through a Citizens’ Assembly whereby they can be discussed, a proper debate can take place, expert views can be heard and ultimately that is the right forum. So as I very much respect what Deputy Wallace is trying to do, I won’t be in a position to accept the bill because, quite frankly, it won’t make the meaningful impact that he thinks it will because it’s not constitutional.”
From top: Former Minister for Justices Alan Shatter and Michael McDowell; Noleen’s grave in Glasnevin
Some 320 complaints of alleged Garda misconduct were investigated by an Independent Review Panel, set up by Justice Minister Frances Fitzgerald.
It’s understood that the panel has found that no further investigation should be carried out into 90% of these complaints.
The Justice4all Committee has now sent 13 sample cases to the United Nations Human Rights Commission to summon the next Justice Minister to “answer for the State’s failings”.
They include the case of Cynthia Owen.
In 2007, an inquest jury found Cynthia Owen, formerly Cindy Murphy of White’s Villas, Dalkey, to be the mother of an newborn girl, Noeleen Murphy, stabbed with a knitting needle over 40 times times in 1973 before being left in a lane way in Dun Laoghaire.
Cynthia was aged 11 at the time of Noeleen’s birth and death. She told the inquest that her daughter, conceived following rape by a number of men, had been murdered by Cynthia’s mother Josie Murphy shortly after birth.
At the inquest, evidence was given that a significant part of Dun Laoghaire Garda Station’s file on the case was missing, and that a statement by at least one member of the gardai had been forged.
Noleen was buried in the Holy Angels Plot, Glasnevin, in an identifiable grave (above) with a number of other babies.
Legal Coffee Drinker writes:
In 2006 then Minister for Justice Minister Michael McDowell refused the request of the Dublin City Coroner Keiran Geraghty that Noleen’s body be exhumed for DNA testing, saying he could not approve a course of conduct which “would cause such extensive distress and face such an uncertain outcome.”
Objections to the exhumation had been received from the trust which runs Glasnevin Cemetery. However there is no report of any objection having been received by Minister McDowell from the parent of any other baby in the Holy Angels Plot.
In the run up to the 2007 election, Alan Shatter, then a Dáil candidate in Dublin South, criticised the refusal to exhume, stating that DNA technology was so sophisticated that it might be appropriate.
Mr Shatter, a solicitor, had previously acted for Cynthia Owen. He was re-elected and appointed Minister for Justice in March 2011.
However no exhumation of Noleen’s body took place.
In 2014, Richard Boyd Barrett challenged Minister Shatter in the Dail on lack of action in relation to the death of Noeleen Murphy.
In his response, Minister Shatter described the case as “troubling and tragic but… there is not sufficient evidence to warrant the taking of a prosecution in the matter…should something now emerge as a result of the further inquiries that are being conducted, I will treat it with great care and seriousness.”
Minister Shatter resigned as Minister for Justice later that year.
With the legal age of consent in 1972 being well over 11, Noleen’s conception must necessarily have been as a result of a statutory rape.
The identity of the perpetrator can be proved by exhumation of her body, which would provide sufficient evidence for taking a prosecution.
A number of Cynthia Owen’s alleged rapists – alleged to include at least two former gardai – are still alive. It is claimed that this contributed to the botching of the investigation conducted by Dun Laoghaire Garda Station into Noleen’s death.
As of today, it has been reported that Cynthia’s case is to be referred to the UN Human Rights Committee. Minister Shatter will be running for Fine Gael in Dublin-Rathdown in the forthcoming election.
Perhaps Broadsheet readers who come across him during his election campaign would like to ask him, in light of his 2007 comments, what steps he intends to take, if re-elected, to progress the exhumation of Noleen Murphy?
Further to issues at the Longboat Quay complex in Dublin, where apartment owners may be forced to evacuate because the complex has failed to meet fire safety standards, a commenter asked:
“Could the directors of the development company (Gendsong Limited) not be guilty of fraud in respect of the construction and/or certification of Longboat Quay apartments, now exposed as being in breach of the Fire Safety Regulations?”
We asked Legal Coffee Drinker what’s it’s all about?
Too busy for a ‘chat’, LCD penned the following:
Under company law, a company is regarded as separate from its directors and shareholders. That means that, normally, its directors are not liable for wrongs committed by the company or its agents. The company itself can be sued, but if it’s broke, that means that it has no money to pay in compensation. The fact that Gendsong Limited is now in receivership makes it unlikely that it has substantial assets.
There are however exceptional cases in which a director can be held liable for the debts of a company, or sued for damages as a result of actions committed by it.
The first of these is under Section 610 of the Companies Act 2014 (previously contained in the Companies Act 1990). This provides that a receiver, or liquidator, or creditor, may bring proceedings in the High Court against a director or former director of a company which is in the course of being wound up, where it appears that that person was, while a director of the company, knowingly a party to the carrying on of any business of the company in a reckless manner, or with intent to defraud creditors, or for any fraudulent purpose. If they succeed, the director will be held personally liable for the debts of the company.
In addition, Section 818 of the Companies Act 2014 (also previously contained in the Companies Act 1990) provides that the Director of Corporate Enforcement, a liquidator or a receiver of an insolvent company may apply to the High Court to have its directors restricted from acting as company director unless the company in respect of which they are director has a substantial amount of financing. If granted, the restriction normally lasts for a period of 5 years.
Also, there is authority [Invertec Ltd v De Mol Holding BV and Another  EWHC 2471 (Ch)] that a director may be held liable at common law for fraudulent misrepresentations made by them on behalf of the company. This is English authority but there appears no reason why it would not be followed in Ireland, although it applies in exceptional cases only.
Gendsong is now in receivership and it would be interesting to know whether or not the receiver, or the Director of Corporate Enforcement, have applied or are contemplating applying for a restriction order against its directors.
It would be also interesting to know whether there are any plans to put Gendsong into liquidation, so as to raise the possibility of an application for a restriction order. A resident, who has obtained a judgment against the company, would be deemed its creditor for the purposes of company law, and as such would be entitled both to have the company, if insolvent, liquidated and subsequently bring a claim to have the directors held personally liable for its debts in circumstances of reckless or fraudulent trading as defined above.
It’s possible that directors of Gendsong may seek to claim they relied on the architect who designed and certified the development. The question of course is whether it was reasonable for them to so rely or if they knew, or should have known, that the Fire Safety Certificate provided was wrong.
The residents may also have an action against the architect in negligence. Whether or not it is worth taking such a case depends on his assets and whether or not he is covered by insurance. Complaints may also be made to the professional bodies in the countries in which he carries on business, with a view to have him excluded from practice in those countries.
The Government’s concern is with how any further rise in property repossessions may add to the problem of homelessness. In this regard, tenants in the buy-to-let sector, who are less well protected, are likely to be worst affected. The Department of the Environment and the Department of Finance are considering “duty of care” legislation, which would prohibit banks and lenders evicting a tenant who had no alternative accommodation.
Quite whether this can be achieved remains to be seen, given the potential difficulties such legislation presents – not least on constitutional grounds. At present sitting tenants in buy-to-let properties may well be the last to hear about legal moves taken by banks and lenders to secure repossession orders, as the issue is contested between lenders and landlords, and sitting tenants are mere bystanders.
We asked Legal Coffee Drinker what’s it all about.
Broadsheet: “Legal Coffee Drinker, what’s it all about?
Legal Coffee Drinker: “Sitting tenants in buy to let properties secured by a mortgage are at risk of eviction if the lender has not consented to their tenancy. Most mortgages contain a clause prohibiting the borrower from entering into leases or tenancies without the consent of the lender. Leases and tenancies so entered into are valid against the borrower landlord but void against the lender. This usually only presents a problem if the borrower gets into arrears and the lender applies to the court for a possession order, to get rid of the tenant. Such order will generally be granted, unless it can be shown that the lender has consented to the tenancy.”
Broadsheet: “And what if the lender has consented to the tenancy?”
LCD [unwraps Nespresso ‘Arpegio’ capsule]: “If the lender has consented to the tenancy, or if the mortgage permits letting without the consent of the lender, then the lender is bound by the tenancy and cannot be granted possession of the property until the tenancy ends.”
Broadsheet: “So any prospective tenant of buy to let property should ask if there is a mortgage on the property and if so whether the lender is consenting to the letting?”
LCD: “They can ask, but in a high rental market the landlord may not want to rent to tenants who are asking difficult questions.”
Broadsheet: “If a tenant is dispossessed in this way, can they even get back their deposit?”
LCD: [pause] “The tenant has a right to get back their deposit from the landlord, but not from the landlord’s lender. If the landlord does not have funds, then the tenant will not recover their deposit.”
Broadsheet: “So basically a huge category of tenants is in a very insecure position.”
LCD: “Absolutely. There is a stark division between tenants whose landlords have a mortgage, and those who have not.”
Broadsheet: “Can this be changed by legislation, to give the tenant more protection?”
LCD: “Easily. One very simple step would be to legally require landlords, when offering a tenancy for letting, to provide evidence of lender consent to lettings of the type offered. Alternatively, the law could be changed to make all lenders of buy to let property bound by lettings granted by the borrowers whether they had consented to them or not.”
Broadsheet: “Would this be a breach of the property rights of the lender?”
LCD [Drains coffee]: “Not if the lender was granted the rights of a landlord under the Residential Tenancies Act. Such rights, which include not only the right to have the rent increased to market rent in the case of below-market rent lettings (Part II of the Residential Tenancies Act) but also the right to determine the tenancy on notice in the event that the property is being advertised for sale (Section 34 of the Act), provide perfectly adequate protection for buy to let lenders while at the same time ensuring that the tenants retain the same level of protection as they would have if the property was not buy-to-let.”
Broadsheet: “So there’s no constitutional property rights bar to a change in the law in this area as the Irish Times suggests?”
LCD: “No. In fact, far it could be argued that there’s a constitutional requirement to implement such change to protect the property rights of tenants.”
From top: WWN logo, Dustin the Turkey, Denis O’Brien, Solicitor Sarah Kieran
Further to [REDACTED]’s legal threat against satirical website, Waterford Whispers News…
Solicitor Sarah Kieran, of Media Lawyer Solicitors – who previously worked as a media lawyer at RTÉ for six years – spoke with Rachael English on RTÉ One’s Morning Ireland earlier about why she believes humour is little defence in a libel action.
Legal Coffee Drinker, meanwhile, offers a competing view (below).
Rachael English: “Talk to us, if you would, about the process of publishing or broadcasting satirical material in this country because it is a highly legalled process or, certainly, it can be.”
Sarah Kieran: “Yeah, absolutely. I think the first thing to say is that there’s no absolute right to freedom of speech in this country because you also have a right to your good name, under our constitution. And so this is where the difficulty arises. There is no such thing as an ‘only kidding’ defence or that ‘I was messing’. And the intention of the publisher, which is the person who publishes the piece, in this case, Waterford Whispers, it doesn’t matter what their intention was, the law will automatically deem that they have to prove what they said was correct.
So it is a very fraught process. And I think a lot of cases, it comes down to personal appetite. Some individuals are very protective of their reputations, as you can see in this instance and others take the view that any publicity is good publicity so I think for writers of satire they have to try and… it’s a very fine line so they have to try to get over it. And it depends on the personal appetite, as I said already, so. In this country, it’s a small country. We know high-profile people and what their views are so you will find that the writers of comedy sketches will know these individuals and you just have to make sure that you make it so good and so obvious that it’s satire, I think, to get it over the bar.”
English: “In general terms, what sort of advice would you give to a website, a radio programme, a newspaper columnist or whatever, who’s involved in satire.”
Kieran: “Well, just be conscious that there is no such thing as an ‘only kidding’ defence. Take high-profile subjects who are used to being, I don’t want to use the word ‘slagged off’ but the butt of satire, if you like. Make sure that it’s so surreal that it couldn’t be true, be very incisive of what you say and I think probably one of the most important things is the WAG factor, what we refer to as the WAG factor – leave the wives and girlfriends alone. And then there’s other issues like, for example, if you look at what Dustin the Turkey used to say about Pat Kenny and Anne Doyle and you have to consider, well how would they look if they had sued a turkey. So you have all of those considerations to take and consider…”
English: “I noticed actually, Dustin the Turkey was tweeting about this particular case but I better not say anything for fear I get into trouble myself. I suppose the other thing is that this case is also a reminder that defamation law, the defamation laws they don’t just apply to the papers or the radio. Writing something online can get you a solicitor’s letter.”
Kieran: “Absolutely and I think it’s something we all forget about because of the immediacy of what we do on social media these days. You know we post something on Facebook, we retweet a tweet, that’s a publication, that’s considered a publication under the law. So, in that instance, you can be liable for what’s been said and a lot of the time on social media like that cases are not necessarily brought because considerations are taken into account of, the influence of the person that maybe retweeted, or tweeting but there are cases, and there have been cases in this jurisdiction, there have been cases in the UK as well and it’s just the immediacy, I think we forget. It’s so easy just to post something so quickly on social media. And websites – the same liability applies as somebody who’s writing an article in the newspaper or taking part in a radio interview as I am now.”
Does defamation law really not recognise a sense of humour?
We asked Legal Coffee Drinker, what’s it all about.
Broadsheet: “Legal Coffee Drinker, what’s it all about?”
Legal Coffee Drinker: “Speaking technically, a ‘defence’ in legal terms arises where someone has committed a wrong, but has a lawful excuse for doing so. It’s true that in that sense, there’s no ‘only kidding’ defence for satirists; if they’ve committed defamation, they can’t say they were ‘only kidding’.
However, anyone suing for defamation must show that the ingredients of the wrong of defamation have been satisfied in the first place. Under the Defamation Act 2009, these requirements are quite clear. In particular, the person suing must show that the statement is defamatory – defined by Section 1 of the Act as a statement that tends to injure that person’s reputation in the eyes of reasonable members of society,
In deciding whether or not a statement is defamatory, context is key. The court will look not only at the literal words of the statement, but also its location. A factual statement made on a website which is clearly satirical in nature, will not necessarily be defamatory. The question is whether reasonable members of society would take the statement seriously, given its location.”
Broadsheet: “Any cases on this?”
LCD: Yes. This very issue came up in the U.K. in Sir Elton John v Guardian News & Media,  in which Sir Elton John sued the Guardian in respect of the following satirical piece on his charity endeavours.
A PEEK AT THE DIARY OF…Sir Elton John
What a few days it’s been. First I sang Happy Birthday to my dear, dear friend Nelson Mandela – I like to think I’m one of the few people privileged enough to call him Madiba – at a party specially organised to provide white celebrities with a chance to be photographed cuddling him, wearing that patronisingly awestruck smile they all have. It says: “I love you, you adorable, apartheid-fighting teddy bear.”
The next night I welcomed the exact same crowd to my place for my annual White Tie & Tiaras ball. Lulu, Kelly Osbourne, Agyness Deyn, Richard Desmond, Liz Hurley, Bill Clinton – I met most of them 10 minutes ago, but we have something very special and magical in common: we’re all members of the entertainment industry. You can’t manufacture a connection like that.
Naturally, everyone could afford just to hand over the money if they gave that much of a toss about Aids research – as could the sponsors. But we like to give guests a preposterously lavish evening, because they’re the kind of people who wouldn’t turn up for anything less. They fork out small fortunes for new dresses and so on, the sponsors blow hundreds of thousands on creating what convention demands we call a “magical world”, and everyone wears immensely smug “My diamonds are by Chopard” grins in the newspapers and OK. Once we’ve subtracted all these costs, the leftovers go to my foundation. I call this care-o-nomics. As seen by Marina Hyde ”
The judge in the case (Tugendblat J) held that the above words, in their context, were not capable of bearing a defamatory meaning, stating that “it is common ground that the meaning of words, in law as in life, depends upon their context.”
In this case, the words were contained in the Weekend section rather than the news section, and were headed ‘a Peek at the Diary of Sir Elton John’ in circumstances where no reasonable reader could understand them as being written by the Claimant, and where any reasonable reader would regard them as an “attempt at humour”.
Broadsheet: “So the fact that Waterford Whispers is a well known satirical website, known for ironic, non-factual stories, is relevant here?”
LCD: “Highly relevant. Any reasonable jury would have to take into account the story appeared on a website which contains stories like “David Cameron Urges Politicians to Refrain from Raping Children for the Time Being‘, ‘Rome Actually Built in a Day, New Evidence Reveals’ and ‘Child Refused Entry into Restaurant Due to Having D4 Parents‘.”
Broadsheet: “Like calling you a secret tea sipper.”
LCD: [drains ice cold Frappuccino]: “No.”
Broadsheet:“They also featured a story entitled ‘Denis O’Brien To Sue Everybody‘.
LCD: “The fact that satire may sometimes turn out to be true does not mean that reasonable people take what is said on a satirical website seriously. It would however allow the publisher of that website to raise the defence of truth along with the argument above. And it would be interesting to see what extent satire would be deemed to be in the public interest. However I think because of the nature of Waterford Whispers’ stories generally, the case falls within the Elton John principle and no defence is necessary.”
Broadsheet: “It’s a serious business this satire.”
LCD: “I’ve just explained that it’s not.”
Broadsheet: “Sorry Legal Coffee Drinker. I was being [suppressed giggle] ironic.”