(1) Relaxation of the rules on private hearings

The changes in the Bill on private hearings will commonly be described as relaxing the in camera rule. In fact, what the Bill does is add to the list of cases which must be heard otherwise than in public but to which bona fide members of the press may attend, so long as nothing which might identify the parties is published. (There is a slight technical difference between cases heard “in camera” and those heard “otherwise than in public”, but it’s not relevant here.) The change will essentially allow for court reporters to publish accounts of family law* proceedings, including applications for domestic violence orders although judges will retain the power to exclude the press in certain circumstances. Interestingly, a judge will have the power to exclude the press from hearing evidence which may contain commercially sensitive information. This provision is likely to be relied on in many family law cases, justifiably or otherwise. The aim is to increase public confidence in the judicial system by partially removing the veil which ordinarily hangs over such cases.

It is somewhat disappointing to see that while the Bill proposes to allow court reporters to attend hearings at which an application for a domestic violence order is made, the Bill does not close off the loophole whereby breach prosecutions can be fully reported. I wrote last October:

if a domestic violence order is breached, a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it. After years of this unacceptable position being tolerated, it appears that situation will change.

The Department informed me that it was intended to close off the loophole in a Criminal Law (Miscellaneous Provisions) Bill but I do not see why it could not be included in the Courts Bill. I assume that breach prosecutions will be made subject to the new rules in the Courts Bill, so that the press can attend hearings and publish reports so long as they do not identify the parties. Nevertheless, it is hoped that the restriction on reports of breach prosecutions will be introduced soon.

* Family includes, in this context, cases involving civil partners and cohabitants.

(2) Increase in civil jurisdiction of the lower courts

The Bill will increase the jurisdiction of the District Court from the current €6,348.69 to €15,000. Over that amount the Circuit Court will hear cases with a value up to €75,000 (up from €38,092.14), beyond which cases will be dealt with in the High Court. This should have the effect of reducing legal costs: as a rule of thumb, the higher the court the higher the cost and by bringing more cases into the lower courts the costs of those cases will be reduced while the burden of the High Court will also be lessened.

Two things are interesting in this part of the Bill:

1. The Circuit Court will have jurisdiction in personal injury cases only to a maximum of €60,000. The Minister’s justification is as follows: “As a further measure to deal with concerns relating to possible inflation of awards and a consequent effect on insurance costs, I am proposing to restrict the jurisdiction of the Circuit Court to €60,000 in respect of personal injury actions.” I don’t know what this means other than suggesting that the insurance industry lobbied for the lower limit.
2. In 2002 the Government changed the law to increase the District Court jurisdiction to €20,000 and the Circuit Court to €100,000 (with no lower personal injury limit specified) (I wrote about it here). The relevant sections of the Courts and Court Officers Act 2002 were never commenced (ie. activated) on the basis that the Government wanted to monitor the impact of the Injuries Board. They are now increasing jurisdiction by only 75% of what was decided on 11 years ago, for reasons unknown.

Nevertheless, the changes are good as the existing limits of the jurisdiction of both lower courts is too low. The greatest impact may be on the District Court which, due to the historic low limit, has tended not to have a significant civil law list. That will now change.

• Instagram will have a full licence to use your photographs, including to sub-licence or transfer use of them; and
• customers of Instagram (that’s advertisers, not you) can pay to have your name or photos (along with other information) displayed in advertising messages, without paying you or even notifying you.

Changes to intellectual property terms on free online services have long been a source of controversy, not least because when services like Instagram are involved many of the users are involved in creative industries. Even if a user is not a creative professional, the service involves the creation of intellectual property. Mess with those users’ rights at your peril.

Of course, blame for these changes is being laid firmly at the door of Facebook who famously paid through the nose to acquire Instagram. While the new terms are not surprising, given the involvement of Facebook, whoever owned Instagram was always likely to attempt such a change in order to monetise the business.

If the online reaction is anything to go by, the changes are a boon for Flickr. The death knell of that service had been sounding for some time but it, and its new app which has launched with serendipitous timing, could see a significant return of dormant users. I have noticed a surge in activity in the past few days as Instagram users have returned to Flickr and began uploading photos for the first time in months while also seeking out contacts from the Instagram universe.

But what do Flickr’s terms say?

With respect to … Content you elect to post to other publicly accessible areas of the Services, you grant Yahoo! the royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.

The difference between this and what Instagram’s terms will say is not clear to me, apart from the fact that Instagram are more explicit in what they plan to do with your photos. Neither is it clear if a Flickr account which is set to private constitutes a “publicly accessible area of the Services”.

Strangely, this does not appear to be the situation in the US, where their local version of the Yahoo!/Flickr terms are limited and provide a licence ”solely for the purpose for which such content was submitted or made available.” This limitation does not appear in the terms applicable in Ireland. So is there any difference between Instagram and Flickr?

Sometimes spotted outside Egypt

There’s an adage that, unfortunately, is almost always accurate: if something seems too good to be true, it is.

Pyramid schemes have a tendency of springing up during times of economic difficulty as they traditionally offer impressive rates of return. That is just the first hallmark of the pyramid scheme, however, some others being:

• affordable rates of initial investment;
• an opportunity to invest in an industry which is known to be profitable but which you know little or nothing about;
• a complicated investment structure;
• impressive sales materials, including presentations in reputable hotels;
• word-of-mouth recruitment of investors (this is the crucial element);
• difficulty in withdrawing money from the scheme.

A recent twist on the operation of these schemes is that, in addition to impressive sales materials, members can be provided with online accounts showing their balance and profits to date. Just like a real investment.

Before getting into the detail of what the law on pyramid schemes is, I should of course point out that they are criminal enterprises: it is a criminal offence to establish or promote such a scheme, or to induce others to join it.

Pyramid schemes are an international phenomenon. They are known as ponzi schemes in the US, the most famous example in recent years being that of Bernie Madoff. There have been laws on pyramid schemes in Ireland for decades but the most recent law is contained in the Consumer Protection Act 2007, which calls them “pyramid promotional schemes” and defines them as follows:

a scheme by which a person gives consideration in money or money’s worth, or gives a gift in money or money’s worth, for an opportunity to receive compensation derived primarily from the introduction of other persons into the scheme rather than from the supply or consumption of a product

In plainer language: a scheme which primarily pays you for introducing others to the scheme. They are called pyramid schemes because each time a new investor joins (s)he must recruit more, maybe 5 or 10 members, adding layers of investors beneath each existing layer. The more members that join, the greater pressure there is to recruit even more so that the earlier members get their return.

Eventually members begin to demand the return of their investment. The operators of the scheme will usually tell them that “now isn’t a good time”, or “the market isn’t good, wait a while longer and you’ll earn even more”. Finally, someone loses patience and visits a solicitor or the Gardaí. The pyramid usually collapses straight away and, unfortunately, it is unlikely that investors will get their money back.

Under section 65 of the 2007 Act, the relevant offences are of:

• establishing, operating or promoting a pyramid scheme,
• knowingly participating, or
• inducing or attempting to induce another person to participate.

It is interesting that one is guilty of an offence of participating in the scheme only if one knowingly does so. There appears to be no requirement of knowledge of the nature of the scheme in order to commit the other offences (ie. inducing others to join). In addition, section 78 provides that it is not a defence to say that one relied on information provided by third parties or carried out due diligence.

The penalties for pyramid scheme offences are significant: a fine of up to €150,000 or imprisonment up to 5 years (or both). In addition, any agreements with the scheme promoter are void and unenforceable.

Be alert to any investment opportunity which seems to have the characteristics I outlined above. If you have invested in a scheme and are concerned that it might be a pyramid promotional scheme, talk to your solicitor or local Gardaí. If you think one is operating in your area, do likewise or report it to the National Consumer Agency. The collapse of a pyramid scheme means people will lose money but collapsing it sooner rather than later could save some of your neighbours money.

And remember, more than anything else: if it seems too good to be true, it is.

Ignore them.

The Sunday Independent set the cat amongst the pigeons last weekend by reporting that the deadline for claiming a right of way established under the old rules (ie. the system in place before the Land Law Conveyancing and Reform Act 2009) was to expire at the end of the month. The article, which has since been removed from the Sindo website, also caused a lot of head scratching in the legal community and panicked phone calls from clients this week.

Of course, the Civil Law (Miscellaneous Provisions) Act 2011 extended the deadline to 30 November 2021, so the panic is over. The Property Registration Authority, which has apparently received hundreds of calls about the issue, has published a clarification and the IFA has also confirmed the position with them. (Just before I hit “Publish” the Law Society issued their own clarification.)

People who might be entitled to register a right of way should still consult their solicitor but the deadline of 30 November 2012 was incorrect.

I can find no policy justification for the existing law and it appears to be a loophole: no-one thought to say, by the way, if an order is breached the prosecution should take place in camera. Because of the risk of publicity, it is unsurprising that victims of domestic violence often do not wish to appear as a witness for the prosecution. In a worst case scenario, the very mention of potential media publicity can discourage a victim from even seeking an order in the first place.

It is entirely unsatisfactory for victims of domestic violence to be put in the position where they will not participate in a prosecution or report a breach due to fear of adverse publicity. Publicity does not only affect the victim but also children, who are often involved in episodes of domestic violence. Even if they are not involved  the victim is likely to be conscious that the children may be old enough to learn of case reports in the local paper. Victims, rightly or wrongly, may still wish to protect an abuser’s reputation for the good of the wider family and the publicity involved in prosecutions will discourage them from reporting a breach or appearing as a witness.

Despite the fact that newspapers can report breach prosecutions, reports rarely appear. I don’t have statistics on prosecutions, but they seem to result from only a small fraction of the number of domestic violence orders granted. It is hard to avoid concluding that the risk of publicity is a factor. I recently reviewed the available statistics on domestic violence orders since 2001 and was struck by the following:

• from 2001 to 2010 there was a decrease of approx 24% in numbers applying for orders under the 1996 Act;
• the greatest reduction in applications was for barring and interim barring orders, down approx 39% and 54% respectively.

The 2011 annual report of the Courts Service shows an increase in applications for domestic violence orders in that year as compared with 2010 but the overall trend over the past 10 years has been downward. There may be many reasons for the dramatic decline in applications under the 1996 Act but the reluctance to prosecute breaches must be having a knock-on effect on the willingness of victims to go to court for an order in the first place.

In August, I wrote to the Minister for Justice asking if this loophole would be closed. Today I received a reply: it will.

[The  2010-2014 National Strategy on Domestic, Sexual and Gender-based Violence National Strategy] addresses the improvement of legislative provisions to protect victims of domestic violence. Among the proposed improvements is an amendment to  s.17 of the Domestic Violence Act 1996 to provide for the anonymity of parties to proceedings for breaches of orders made under the Act.  The proposed amendment is expected to be included in a Criminal Justice (Miscellaneous Provisions) Bill which is presently with the Attorney General’s Office.

The National Strategy mentioned improvements to domestic violence legislation, as did the Fine Gael manifesto and the Programme for Government, but neither explicitly refer to closing the publicity loophole.

It is good news that the Government is now doing so.

Before changing the law, one should check to see what the law already is. [Existing consumer law contains] wide-ranging provisions which should be more than adequate to combat improper use of food labelling terms, without having to wait for a departmental report to be commissioned, translated into a Bill, debated, passed, signed and enforced.

Professor Dermot Walsh has an article in the same newspaper about criminal investigations and Garda powers of detention. The issue has far more serious implications for society and individuals, but is connected.

IT WAS ONLY a matter of time before the inordinate delay in bringing criminal charges in respect of the financial mismanagement in this country would spawn calls for expanded Garda powers of detention.

It is a familiar refrain in which the political and law-enforcement authorities seek cover under what can appear a superficially attractive option. The reality is that it represents at best a lazy, outdated and blunt approach to criminal investigation, and at worst an oppressive device that sacrifices fundamental values of personal liberty and due process to the voracious appetite of an autocratic State.

Before the last general election there was much discussion of what was wrong with our system of politics in Ireland. The idea of a Constitutional Convention was floated as a forum in which these problems could be discussed and solutions proposed, although it is highly unlikely that the Convention being established by the current Government will have any significant effect.

I would submit that one of the problems with our system of politics is the rush to change the law whenever an issue arises. This is perpetuated through lobbying, with organisations developing policy issues into campaigns for legislative change which, if achieved, are seen as a win. Hot topics lead to calls for someone to do something and a politician steps forward with a new law: someone has done something.

Recent Ministers for Justice went through a phase in the mid to latter part of the last decade of introducing significant criminal laws on an almost annual basis. These were announced as harsh measures to tackle gangland crime and any practical or civil liberties concerns were dismissed. The latest problem in Limerick city would fall from the national media headlines once each law was passed. Someone has done something. But did these laws have a significant effect or did they just enable the political class to surmount the latest PR hurdle? The remarkable passage of the Criminal Justice (Amendment) Act 2009 is a case in point and has all the hallmarks of a pig in a poke.

Professor Walsh concludes that  something more than just amending the law is required:

Instead of proceeding blindly down the familiar road of expanding police powers of detention, the Government might be better advised to step back and consider just how effective or ineffective these measures have been over the past 40 years.

Of course, that requires more work. Work that is usually labour-intensive and expensive. Work that does not necessarily culminate in launches and press conferences. Work that involves actually using and enforcing laws before adding to them. Work that might involve lengthy study, such as that carried out by the Criminal Law Codification Advisory Committee, which is now to be abolished by Minister Shatter.

A new law is a sticking plaster, but a cheap and quick one that gets positive coverage. Someone has done something. Until we require more of our legislators, this might be the best we will get.

Why should you care? First, the current position of the Irish courts is inconsistent with modern notions of transparency, access to information, and simple fairness.

It is also inconsistent with prevailing western good governance norms. Judges are government functionaries and filings in lawsuits are, when all is said and done, an effort to lobby them — most frequently by private parties.

The public has every right to know who or what entities are lobbying the judiciary, what factual and legal arguments they are making, and what relief they are seeking.

Second, these submissions often form the basis of hearings, oral arguments, and other trial court or appellate proceedings. But such proceedings are incomprehensible (or nearly so) without advance access to these documents.

A judge will frequently refer to these documents during such proceedings; likewise, attorneys frequently frame their answers by referencing the arguments and factual assertions made in their submissions or those of their opponent.

Although the public can attend all such hearings under the Irish Constitution’s “open courts” provision, the right to “hear” such proceedings is not meaningful without access to the parties’ briefs. This is particularly true in so-called complex litigation, involving multiple parties, multiple issues, and multiple jurisdictions.

Third, competition for legal services is stifled by the lack of public access to these documents. Attorneys who wish to practise in a specialty which is new to them lack access to a library of written filings to use as models.

Tillman is absolutely correct in arguing that the lack of public access to court documents effectively limits public access to the courts and therefore the citizen’s right to see justice being done. In addition, it must obviously make life unnecessarily difficult for journalists who must rely on what is said in court along with whatever information the parties are willing to share. In fact, it is often difficult or impossible to even obtain a copy of a written judgment resulting from court proceedings.

Anyone who has spent time in court will agree with Tillman’s statement that proceedings are incomprehensible without seeing at least some of the case documentation in advance. At a very practical level, it can even be hard to make out what is being said.

Tillman suggests that an amendment providing for greater transparency could be inserted into the Legal Services Regulation Bill. On the basis that no-one knows when that legislation will be passed, I would go one further and suggest that the Government could include it in a Civil Law (Miscellaneous Provisions) Bill before the year is out.

At the time I wrote those posts, the most recent legislation on the issue was the Finance Act 1993 (Section 60) Regulations 2005. Now that Toyota are undertaking another product recall, I discover the  Finance Act 1993 (Section 60) Regulations 2009, which took effect on 25 September 2009 but which, oddly, were not available on the Irish Statute Book when I wrote my posts in 2010 and 2011.

At any rate, the 2009 Regulations revoke and replace the 2005 Regulations and designate specified manufacturers and distributors as being entitled to obtain vehicle licensing records, rather than the generalised category stated in the 1996 Regulations.

So, it appears that I was mistaken, but had no way of knowing it at the time.

Renowned Irish expert on oaths.

When giving evidence in an Irish court or being sworn in as a juror, why is the default oath still religious? In fact, why is an oath required at all? Over 20 years ago, the Law Reform Commission recommended that oaths were not required and should be abolished but their report has largely been ignored.

Irish law generally requires that evidence be given viva voce (ie. live in court) and, according to Murdoch’s Legal Dictionary, the purpose of that requirement is “to ensure that such evidence is true by the provision of a moral or religious and legal sanction against deliberate untruth”. The oath used in Irish courts calls upon the Christian god to witness that evidence is true. As an alternative, a solemn affirmation can be used which doesn’t involve any religious element.

The Law Reform Commission, in its 1990 report on oaths and affirmations, describe the oath as “security for the truth”, the historical reasoning being that human self-interest creates a conflict in the mind of the witness, necessitating that evidence be supported “by the indispensable security of the fear of an avenging God.” But, as Mary Kotsonouris, in her memoirs of her time as a District Court judge, rightly notes:

[T]hose who tells lies without qualm are not going to be put off by the prospect of doing so with their hand on the Bible or the Koran. Ironically, it is the witnesses who ask to affirm rather than swear who show that they are the ones taking the idea of religion seriously.

The oath used in Ireland involves repeating the following while having a hand on a copy of the bible:

I swear by Almighty God that the evidence I shall give shall be the truth the whole truth and nothing but the truth.

A similar oath is used when juries are sworn in. The statutory law on oaths, which originates in the 1800s, provided for a procedure of inquiring into the faith of the witness and formulating an oath which would be appropriately binding on his or her conscience. The most common alternative to the oath is the affirmation:

I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.

But it is likely that the religious oath precedes the evidence given by the majority of witnesses in Ireland. Ireland is around 87% Roman Catholic and while no statistics on oaths are available, I would be surprised if 13% of witnesses opted for the affirmation.

There are many reasons why the oath is unsatisfactory and the Commission’s report concluded that many forms of oath are “at best embarrassing and at worst offensive”. The most significant objection is the risk that a juror might be prejudiced against a witness who affirms or who refuses to take the oath. This Commission report noted that this risk was identified by lawyers across many jurisdictions.

Aside from the people “who tell lies without qualm” referred to by Kotsonouris, what of the atheist who gives evidence on oath? Section 3 of the Oaths Act 1888 closes the loophole, at least in so far as terrestrial consequences are concerned: the fact that the witness does not have any religious belief or has beliefs contrary to the oath will not affect the validity of the oath.

The Commission report suggested that the oath is a formality to be “rattled off” and which has no special significance even for Christians; that “it has become a technical adjunct to the law of perjury, “more a genuflection performed out of habit than a ceremony sacred or significant to the law”.” A report of the New South Wales Law Reform Commission is quoted which suggests that the evolution of Christian beliefs in the modern era and the move away from belief in hell and damnation has meant that, even for devout Christians, the oath is deprived of much of its force. In addition, the swearing of an oath in judicial proceedings is contrary to the beliefs of some Christians on the basis of scripture.

The oath is, therefore, an empty formula. So what’s the point?

It would surely be more logical for the affirmation to be the default and, in the interests of efficiency if nothing else, only form of words used. After all, it should be sufficient that evidence given in a civil court be subject to civil law. One could go further and abolish oaths and affirmations entirely, something suggested by Kotsonouris.

The offence of perjury is lying to the court. While it may also be a sin, it is a crime. If, instead, a judge was obliged to tell all witnesses individually, including the police, of their obligation to tell the truth, to inform them of the penalties for perjury and to ask if they understood, it might take a little longer, but it might also put the fear of God – and of punishment – into some liars, while removing a cause of scandal to the pure heart.

The final recommendation by the Commission report was as follows:

Having reviewed all these factors, and in particular having regard to our conclusion that the oath offers little or no greater security for the truth than a statutory affirmation, the Commission considers that the potential prejudice to witnesses and jurors who choose to affirm, together with the great attraction of providing for a universal and simplified procedure which would place all persons on an equal footing, weighs in favour of the abolition of the oath generally.

This recommendation, that the oath be abolished and replaced by a modified affirmation, has never been implemented. For now, the oath is another aspect of public life in Ireland which remains theistic by default.

Thankfully, this can be changed by any reform-minded government. The oath required of a judge before taking office is, however, a different matter. Article 34 of the Constitution sets out the text of the declaration:

In the presence of Almighty God I, [judge's name] , do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute [my] office … without fear or favour, affection or ill will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me.

This oath does not involve swearing on the bible and merely states that it is made “in the presence” of God, calling upon him to “direct and sustain” the judge. Nevertheless, many categories of citizen might reasonably object to taking such an oath. Article 34, however, provides that any judge who declines or neglects to take this specific oath “shall be deemed to have vacated his office.”

In the Irish Times case, Hamilton CJ stated:

While the public nature of the administration of justice and the constitutional right of the wider public to be informed of what is taking place in courts established by the Constitution are matters of public importance these rights must in certain circumstances be subordinated to the interests of justice and the rights of an accused person which are guaranteed by the Constitution.

It is difficult to see what right could be asserted by someone defending section 14 of the 1929 Act against an Article 34 challenge, although Article 40 does say that the publication of indecent matter is an offence which shall be punishable in accordance with law. The offence of blasphemy, also mentioned in Article 40, is contained in section 36 of the Defamation Act 2009 which the then Minsiter for Justice was at pains to stress had to be preserved due to a “constitutional obligation”. Given that the 2009 Act does not deal with publication of indecent matter, one could speculate that the Minister was perhaps aware of section 14 of the 1929 Act and of the opinion that it partially satisfied the constitutional obligation to provide for an offence of indecent publication. Arguably, if the then Minister’s reasoning is accepted, sections 14 and 15 of the 1929 Act must  be retained unless and until Article 40 is amended.

O’Flaherty J, also in the Irish Times case, was of the opinion that freedom of the press is guaranteed under Article 40 “and that the protection in the constitutional provision is not confined to mere expressions of convictions and opinions.” The Supreme Court does not appear to have considered the 1929 Act (despite considering a variety of other laws), but it is hard to see how section 14 be reconciled with O’Flaherty J’s comments.

The purpose of reporting restrictions and in camera rules relied on today are of a different nature than the one contained in section 14 of the 1929 Act. O’Flaherty J noted:

While [various] enactments authorise the exclusion of members of the public, the entitlement of bona fide representatives of the press to attend such trials is preserved. Where a trial involves offences of a sexual nature, while the press may attend, legislation requires that when they report, they must do so in a way that safeguards the anonymity of the parties.

He refers to section 20(3) of the Criminal Justice Act 1951 which allows a judge to exclude the public from criminal trials for offences which are, in the opinion of the court, of an indecent or obscene nature. This sounds like a legislative enactment of the practice referred to by Dr Keating in the Free State era, when judges might invite members of the public to leave a courtroom in the interests of “respect”.

One would have assumed that in a case where section 20(3) of the 1951 Act is invoked and members of the press remain they are free to make accurate reports on the proceedings once parties are not identified. It is hard to see the point in excluding members of the public in those circumstances, if they can subsequently read the indecent or obscene details in a newspaper. However, if a reporter is present in a case in which section 20(3) is invoked and the trial judge is of the opinion that the details of the case are indecent or obscene, it would seem logical that there would be stronger grounds for a prosecution under section 15 of the 1929 Act, but I’m not aware of this ever happening.

Does anyone know more about the 1929 Act?