Month: November 2009

Gangland law: crime fighting tool or gimmick?

Two recent Government initiatives were introduced largely for the benefit of Limerick City: Limerick Regeneration and the Criminal Justice (Amendment) Act 2009. It will take some time before the benefits of Limerick Regeneration can be known, but what about the Act?

There are two important and incontrovertible facts about the Criminal Justice (Amendment) Act 2009. First: it made significant changes to the nature of Irish criminal law. Second: it was railroaded through the Oireachtas with no meaningful debate. If the Government were to attempt any equally fundamental change to the health service or education sector, to take two examples, the howls of protest would emphasise the lack of consultation with those working at the coal face.

Of course, our Oireachtas and Government do not always proceed with such haste in implementing new policies. Take the example of the amalgamation of cultural institutions, for which it appears thorough preparatory work is necessary before implementing legislation is ready.

On the week in which the Criminal Justice (Amendment) Bill 2009 was subject to much media comment, Minister Martin Cullen stated in the Seanad that he had initiated various forms of consultation relating to reform of our cultural institutions and that we should not “rush down this road for the sake of doing so.” Quite reasonably, the Minister “want[ed] to take great care in ensuring that whatever outcome we have is the one that works best nationally and internationally for our institutions.”

Without wishing to trivialise our cultural institutions, Minister Cullen was trying to streamline the administration of a handful of galleries. Minister Ahern has introduced a law which a large number of our leading criminal lawyers have said is unnecessary, probably unconstitutional, will “jettison ancient rights and rules of evidence” and has been introduced “without any research to support its desirability and without canvassing expert opinion or inviting contribution from interested parties”.

These concerns were met with tirades against the legal profession, soundbites about the supposed primacy of the rights of “criminals” over those of “innocent people” and facile barbs about lawyers’ fees and judges’ pension contributions. The Irish Times ran an editorial including the remarkably dismissive conclusion that “[i]t would have been helpful, and more useful, if these practitioners had offered their alternative to deal with a serious problem”, content with the pretence that any such alternative would have survived the Government’s guillotine.

A number of sensationalist arguments were put forward to justify the necessity of the legislation, summarised by this year’s Phoenix Annual as follows:

[i] that jurors had been intimidated; [ii] that a tiny minority of solicitors had passed on inappropriate information to criminals; and [iii] that a solicitor had passed on names and addresses of jurors to criminals

These allegations, once subjected to analysis since the passing of the Act, have been “whittled down to just one allegation: that one solicitor had passed on inappropriate information.” The Gardaí investigated this allegation and, according to the Phoenix, the DPP decided that there were no grounds for a prosecution. The Law Society then carried out its own investigation.

A fortnight ago the Law Society concluded, following over three months of inquiries … that there was no evidence at all against [the solicitor accused of passing on inappropriate information] to justify any allegation of wrong doing.

So, it now appears that none of these allegations stand up.

Media reports prior to the passing of the Act contained strong suggestions from informed sources that the Gardaí were lying in wait for criminal gangs, prepared to pounce once the Act was commenced. Indeed, when the President signed the Act into law, Minister Ahern stated: “I know that the Gardaí are determined to use these provisions to the full.”

This does not appear to have happened and it has been reported that no arrests have been made under the new legislation. The Sunday Tribune reported last week:

no gangland figures have been arrested on suspicion of controlling a crime gang or membership of a gang. While it is expected that the DPP will take several months to consider any garda file that recommends criminals being charged under the new laws, the fact that no gangland bosses have been quizzed means that no garda files are near completion. Pat Rabbitte, Labour’s justice spokesman, said the fact the legislation has not been used proved justice minister Dermot Ahern’s plans to tackle gangland crime were “a gimmick” and “a stunt”.

This is what was feared all along: the legislation was another attempt to paper over a crack in society with legislation that was likely to achieve little in targeting serious crime but which raised valid civil liberties concerns.

In fairness to the Minister, it will take longer than a few months to evaluate the usefulness of the Act. But the speed at which it was introduced has been revealed as unnecessary and the arguments in support of the legislation have been largely debunked.

Defamation of a company

The official text of the controversial Defamation Act 2009 has finally been made available. Most of the controversy was whipped up by the blasphemy sideshow, while other reforms received less attention.

There was little focus, for example, on section 12 of the Act, which is far more likely to be of general interest than the blasphemy provisions:

The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.

The Irish Human Rights Commission argued that the ability of a company to sue for defamation should be more restricted than that of a private individual:

While it is clear that a body corporate has the right to sue for defamation, the same issues of the right to a good name and reputation do not apply as would be the case for an individual action. In this regard, the case may be made that restrictions on freedom of expression operating in favour of a body corporate should be more narrowly drawn than those protecting the reputation and privacy rights of individuals.

Those critical of the Seanad should note that this debate was aired in that house. Senator David Norris was more forceful (Seanad Debates, 20 February 2007):

If there is no financial hurt, one is left only with feelings. I contend, however, that corporate entities are not entitled to feelings. The ability to feel is a human attribute that does not attach to the collective in the same way.

I again plead the interest of the ordinary person in this. If I were to say that Guinness or Mars bars are bad for us, should the corporate entities that manufacture those products be allowed to land on me? … We should not be expected, however, to compensate a corporate identity for an injury to its supposed corporate feelings.

Indeed, then-Minister for Justice Michael McDowell appeared to take on board these concerns.

The good name of every citizen requires to be upheld by the Constitution but companies are not citizens. I will reconsider the matter between now and Report Stage. It may be better to recast the section to state that a body corporate can only bring a defamation action in respect of a statement made where it has incurred, or is likely to incur, financial loss or where the statement was made with malice.

Some senators came to the defence of the section. Various reasons were offered in support of it, including the need to protect jobs and to protect against industrial espionage (although the example given by Senator Walsh appears to be plain, old-fashioned defamation or injurious falsehood, rather than the more exciting category of industrial espionage). However, the provision survived in the Act.

While the ability of companies to sue for defamation was regarded as already established in the common law, the explicit provision that financial loss need not be established appears to heighten the risk of McLibel type actions in Ireland.

It is disappointing that an alternative form of action was not introduced for corporate bodies in Ireland, as suggested by the IHRC, not least as large companies have far greater resources than most individuals to launch defamation actions and introduce chilling effects to comment on their affairs. Consumer affairs correspondents, such as the Irish Times’ Pricewatch or even consumers groups could find themselves targeted.

Of course, perhaps they already are and perhaps fears of a chilling effect have already been realised. It is anecdotally known that restaurant proprietors are particularly sensitive to adverse comment and often resort to the threatening solicitor’s letter. The tactic is believed to successfully keep certain restaurants out of the papers (or, at least, out of the review sections).

To take a current example, Maclaren may come to feel aggrieved at coverage of pramgate. The necessity for a product recall in the EU, as has been carried out in the US, remains unclear at present but it is conceivable that a journalist could write something about the company that it finds actionable. That journalist may, in the event, have a valid defence. But will the case be fought, or will the newspaper decide it is not worth risking a test case under the new Act?

Of course, such an action could result in negative PR for the company issuing the threats and that PR risk may act as a deterrent. As ever, we will have to wait and see what the real world throws up against our paper laws.

PS. Unsurprisingly, the Defamation Act 2009 continues the practice of this Government to provide for commencement of the legislation by Ministerial order, rather than by setting a commencement date. According to the website of the Department of Justice, commencement is now expected in November/December 2009, once the Rules of Court are updated to accommodate the Act.

Garry McMahon weekend at the West Limerick Singing Club

The West Limerick Singing Club has been meeting on the first Thursday of every month since 2002, at the Ramble Inn in Abbeyfeale. My late father, Garry, was a regular attendee at the Club and, a long-time ballad singer and maker himself, loved this committed group of ballad enthusiasts.

The Club is paying Garry a tremendous tribute this weekend by hosting the Garry McMahon singing weekend, from Friday 6 to Sunday 8 November. Events include:

an official opening by Donncha Ó Dualaing, followed by singing sessions in the Ramble Inn and Leens Hotel on Friday evening;
ballad signing and storytelling workshops throughout Saturday;
singing sessions in local bars on Saturday evening;
a performance of Aifreann na Ríocht (composed by Garry) at 12 noon mass on Sunday; and
a concert featuring Garry’s songs and stories.

Many renowned local and national singers and storytellers are expected on the weekend, which will stand not only as a tribute to Garry but also to the strength of the West Limerick Singing Club.