Rarely a week goes by without more insurance industry spin on personal injury claims, particularly whiplash claims. The industry now takes any opportunity to blame personal injury claims for their woes, even in the face of facts which indicate other causes.
Inevitably, the Irish insurance industry is seeking reforms similar to those announced late last year in the UK, including a ban on claims for “minor” whiplash injuries.
Ireland should follow the UK’s lead in considering a ban on whiplash, to flush out fraudulent claims. The UK is considering a position whereby whiplash victims would have their medical expenses and loss of earnings compensated by insurers in a move that it believes could save the sector £1 billion a year and reduce premium costs.
Mr O’Rourke does not go into detail about why a whole category of claim should be banned to weed out the supposed problem of fraudulent claims, but the insurance industry often suggests that all whiplash claims are effectively fraudulent. This is in spite of long-standing medical evidence and opinion. A call for a ban on whiplash claim won’t go far in Ireland, where it would likely be unconstitutional, but other reforms will be demanded. Indeed, it appears AIG has a wishlist of things it would like an Irish government to do, quite a turn-around for a company that had to go cap in hand to the Federal Reserve in 2008 to avoid oblivion. More recently, its Irish operations benefitted from assistance from the Irish taxpayer. One might be inclined to wonder whether any losses or difficulties at AIG could have causes beyond the cost of claims.
Yesterday, Fiona Muldoon of FBD was a guest on Morning Ireland, taking another opportunity to bemoan the cost of claims and the legal system despite FBD’s results telling a different story. FBD has quite reasonably been described as “beleaguered” and has suffered from a range of difficulties which have nothing to do with personal injury claims.
The Times (Ireland edition) covered FBD’s latest results with the headline “Insurance sector too competitive, FBD says” [paywalled]. While the real problem for the industry is in the headline, the article nevertheless begins:
Over-inflated whiplash claims and too much competition between insurers were among the many factors to blame for FBD’s loss-making performance this year, its chief executive said.
The cost of allegedly “over-inflated” whiplash claims is a crutch that the industry repeatedly leans on when in difficulty, while the truth for FBD is that:
Most of last year’s losses stemmed from measures to bolster its capital reserves and €11 million in restructuring costs.
The article also points out that FBD experienced a 9% fall in premium volumes last year – ie. they lost customers. Ms Muldoon continues:
A number of factors had made the Irish insurance sector unprofitable between 2012 and 2014, including too much competition driving down premiums, Ms Muldoon said. “The market in Ireland is very fractured, which meant that companies were competing aggressively against each other and in hindsight they were not charging enough.”
So. Insurance companies have had financial difficulties because they have had to bolster reserves, lost customers and have not charged enough for years. But ask any spokesperson for the insurers about their problems and it’s not long before the cost of claims is front and centre.
This is a remarkable feature of articles on the insurance industry in Ireland over the past year: reports on financial results cover these internal difficulties and challenges faced by the industry which are obviously having a negative impact on premiums. Figures are available to explain the impact on insurers but not, it seems, to explain their complaints about the cost of claims and the legal system.
The reality is that the industry does not have any statistics or figures about personal injury claims that it is willing to make public. Even the Injuries Board, effectively a creature of the industry, has criticised the failure to support allegations about claims, as well as their failure to explain where there premium income is going. The number of personal injury court claims fell in 2014 and the Injuries Board has highlighted that there is a €1 billion difference between the premium income of Irish insurers and published awards.
It’s time for insurers to accept that, this time around, their losses are down to themselves and not due to paying out on claims (which is, of course, what they exist to do).
[Court reporters] should not have to fear a “simple oversight, omission or error” in reporting court proceedings exposes them to risks of litigation, or claims in damages, with consequent risks to their livelihood. There should be at least a debate, and consideration, of enshrining into Irish law a provision that no report of court proceedings should be actionable in defamation unless there is proof of “malice”, Ms Whelan said.
A recent defamation claim against the Irish Examiner relating to reports published on that newspaper’s website raised precisely this issue (Philpott v. Irish Examiner Limited  IEHC 62). The judgment by Mr Justice Max Barrett delivered last week adds some interesting commentary to the topic.
Section 33 of the Defamation Act 2009 allows for an application to be made to a court prohibiting the publication or further publication of a statement if it is defamatory and there would be no defence available justifying its publication. The relevant defence here is of court reporting which, if done properly, is absolutely privileged.
In this case the plaintiff had been CEO of a healthcare organisation in Cork and, apparently due to his view of shortcomings in the operation of the organisation, his employment ceased. He instituted employment law proceedings which were eventually settled. However, he objected to two reports carried in the Irish Examiner (article 1; article 2) relating to his employment law proceedings and sought an order under section 33 prohibiting the further publication of two relevant articles on the Irish Examiner website. This required him to satisfy the court of both requirements of section 33, mentioned above.
Barrett J noted that the barristers in the case could not identify any previous Irish case-law that examined the nature of the test to be applied under section 33 but concluded:
[I]t seems to the court that the tapestry of law woven by the Oireachtas does not invariably or even generally require additional embroidery by the courts. The Act of 2009 posits simply that there are three criteria which must be satisfied before an order can issue under s.33, [namely]:
(1) is the statement complained of defamatory?
(2) does the defendant have a defence to the claim of defamation?
(3) is that defence reasonably likely to succeed?
Barrett J quoted both articles objected to in full. In relation to the first one, the key “error” complained of was that something asserted by one party in the proceedings was reported as fact (ie. an allegation was represented in the article as fact). However, Barrett J held that erroneous statement did not injure the plaintiff’s reputation. He referred to other elements of the report complained of and “struggle[d] to see that there is much divergence of real substance” between the article and the relevant elements of the Circuit Court judgment that it was reporting on.
In fact, Barrett J felt that the manner in which the complaints regarding the first article was put forward amounted to a “dissection” which “represents a highly unnatural manner of reading.” He posed the issue as follows:
What are the key learnings that someone viewing the … article would likely glean? First, that there was an employment-related dispute between Mr Philpott and his onetime employers. Second, that Mr Philpott had been dismissed, ostensibly because of some sort of difficulties between him and other staff. Third, that Mr Philpott had made various allegations about how Marymount was run – and, perhaps implicitly, that this might have been the real reason for his dismissal. Fourth, that a Circuit Court judge had gone through Mr Philpott’s allegations in some detail and did not find them credible, though he did not doubt that they were sincerely made. In short, the reader would have garnered the truth of matters, as this Court did on its first reading of the article. Anyone who elected to run a fine tooth-comb over every element of the article would have ended up with the same understanding.
In relation to the second article, Barrett J was “mystified” by the plaintiff’s concerns.
The whole thrust of the article is that peace has broken out between the parties, that all has been resolved, that Marymount wishes Mr Philpott well, that a line has been drawn under past events and that everybody is now moving on.
He went on to make some important points about court reporting.
Court reports are not just of interest to the public; they meet a great public interest. In a liberal democracy that prizes individual freedoms, all branches of government are rightly subject to the scrutiny of an ever-watchful public. Reporters perform an essential role in ensuring that members of the public learn of what is being done in their courts and why … This is so important a task that – except insofar as is necessary to ensure that the right of every citizen to her or his good name is protected and capable of vindication – the media must go relatively unconstrained in their efforts. Our individual freedoms are more fully assured in the collective freedom of journalists to discharge the role so eloquently identified for them by the late President Kennedy, in a speech to the American Newspaper Publishers Association back in 1961, being “not primarily to amuse and entertain, not to emphasise the trivial and the sentimental, not to simply ‘give the public what it wants’ – but to inform, to arouse, to reflect, to state our dangers and our opportunities, to indicate our crises and our choices, to lead, mould, educate and sometimes even anger public opinion”, and, it might be added, not just to report, but to comment.
There had also been some objection by the plaintiff that certain aspects of the his Circuit Court case were not reported at all. Barrett J said:
To the extent that it is suggested that a court reporter needs to be present for any, let alone every, aspect of court proceedings on which s/he reports, this proposition is entirely rejected by this Court.
Reporters do not have a free hand to report on cases they have not attended: principles have already been developed by the courts outlining that a report must be fair and accurate to benefit from a defence to a defamation claim. A fair and accurate report on a written judgment from a court could not give rise to a claim for damages, for example, even though the reporter might not have attended any of the hearings.
Ultimately, Barrett J held that neither of the articles were defamatory, that the Irish Examiner would have a full defence to any claim of defamation on the basis of absolute privilege and that such a defence would be likely to succeed at trial. Therefore, all of the plaintiff’s claims were dismissed.
The case is an interesting, up-to-date statement of the law on court reporting in Ireland and obviously some of the comments made in the judgment chime with the Attorney General’s views. It may be that the judgment would hold back the tide of defamation claims against publishers somewhat and might alleviate the need for further legislation on the topic (subject to any appeal, of course).
Online abuse (and now, more frequently, mobile phone based abuse) is a terrible thing. It ranges from the poison pen on steroids to far more serious, malicious, pernicious behaviour. Public figures are subject to wholesale abuse, ridicule, discrimination, misogyny and threats on social media. Private individuals are subjected to emotional abuse and severe pressures. Something should be done.
Well, a number of people have proposed something that could be done. Two members of the Labour parliamentary party have proposed separate private members bills (draft laws introduced for debate by individual parliamentarians and not by the Government itself). Pat Rabbitte’s bill targets offensive and menacing messages. Lorraine Higgins’ bill would target a wider range of abuse, including incitement to commit suicide and “revenge porn“.
Senator Higgins has, in particular, been subjected to persistent abuse which no-one should have to endure. Some of it is likely criminal within the current legal framework but requires prosecution. Some of the abuse would also violate the terms of service of the social media providers involved. A lot of it is indecent, unpleasant and unacceptable, but it would be quite a jump to criminalise it. Senator Higgins has tonight said in the Seanad that her proposed law is intended to restore online decency. Unfortunately one has to wonder if such a thing ever existed, but there is a much bigger debate to be had about whether unpleasant commentary should be criminalised.
The core provisions of Senator Higgins’ bill are a mixed bag. As Fergal Crehan points out it is quite specific in its aims and includes some good ideas.
To her credit, Senator Higgins’ bill is far more focused than anything I’ve seen proposed before, dealing in a specific way with areas which are not already covered by existing law. Though there are elements of it which I consider absolutely unacceptable, in other areas it raises issues that do need to be addressed by the legislature.
There is little doubt, though, that such a law would represent a serious chilling risk and in particular section 4 (harmful electronic communications) would appear to be a potent weapon in the hands of a public or wealthy figure who wishes to shut down certain types of comment.
It is remarkable, however, that section 5 has made it into the Bill at all. It creates another criminal offence, of not complying with a court direction. That is not controversial. What is quite amazing, however, is the type of court direction concerned. Section 5 says:
If on the evidence the court is not satisfied that the person should be convicted of an offence under section 3 or 4, the court may nevertheless make any of the following upon application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interest of justice so to order:
(a) that the person remove or delete specific electronic communication(s);
(b) that the person shares an apology or correction as the court deems appropriate in the circumstances;
(c) that the person shall not, for such period as the court may specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.
In other words: a person who is accused of an offence and is found not guilty could nevertheless find themselves being ordered to publicly apologise for the thing that they were found not guilty of and to take other steps.
Courts order people to do things all the time: after they are found guilty of a crime or where an injunction is sought. The above provision is effectively a form of injunction. It would be applied in the District Court, which doesn’t have the jurisdiction to grant civil injunctions. It would be applied by a court that has found the person in front of them not guilty.
Section 5 would make a lot of sense if it applied following conviction. Given the structural nature of the internet there is usually little point in ordering the internet service provider or social media operator to do anything, as the order will usually be unenforceable, so it is quite a good idea to order the person responsible to delete the post rather than the service provider (although there would be issues with archives and caches).
the current wording empowers the court to make orders where the accused is found not guilty of a relevant offence but says nothing about the orders that can be made where an accused is found guilty; and
a law which orders an innocent person to apologise for something or to do anything related to the crime of which they were accused would not survive a challenge.
Cameras are everywhere these days, but CCTV systems have been popular since well before the advent of camera phones. For the most part CCTV cameras are positioned in fixed, known locations such as public offices, shops or streets. A variety of covert cameras are available which have been used for many years to detect theft and fraud in particular. Any such use of covert recording should only be undertaken with caution, in specific circumstances and on the basis of advice.
This week’s Limerick Leader carries a story of covert recording in the offices of a school. It appears from the report that the reason for covert recording was that sensitive files had gone missing from the school. The full circumstances of the case are not yet known. The use of covert CCTV systems raises one set of issues, the missing files another. Missing files indicates a security breach and while a loss of personal data (likely sensitive personal data) is not specifically governed in the Data Protection Acts 1988 and 2003 a duty of care arises and the Data Protection Commissioner has published a code of practice on dealing with such breaches.
In general terms, the main considerations in using CCTV systems are the individual’s constitutional right to privacy, the Data Protection Acts and employment law. The right to privacy is somewhat undefined as no specific privacy law has been enacted (a previous bill was abandoned). Data protection legislation does not specifically refer to recording equipment or CCTV but since cameras record images of individuals, the images themselves are personal data within the meaning of the Acts and the general rules therefore apply to them. It is crucial that the collection of personal data by recording images is justified. Security would be an obvious justification but the Data Protection Commissioner is very clear that security does not justify indiscriminate recording of employees, for example.
[U]sing a CCTV system to constantly monitor employees is highly intrusive and would need to be justified by reference to special circumstances. If the monitoring is for health and safety reasons, a data controller would need to demonstrate that the installation of CCTV was proportionate in addressing health and safety issues that had arisen prior to the installation of the system.
Cameras should not ordinarily be put in locations where occupants and visitors would have a reasonable expectation of privacy. Particular sensitivity might be required in a school, for example, which is obviously frequented by minors. In addition, the Acts require that people are provided with information about the data collected about them and who has collected it. In the context of CCTV, therefore, notices should be displayed indicating that recording is taking place, who is responsible for the recording and why it is being carried out.
Use for monitoring staff performance or conduct is not an obvious purpose and staff must be informed before any data are recorded for this purpose.
Of course, there are situations in which these rules will neither work nor be appropriate and the Acts do allow for this. Indeed, the collective EU grouping of data protection regulators accepts that employers may have to resort to covert recording in order to address fraudulent or criminal behaviour and that national laws may permit this. Employment law has long recognised that covert recording might sometimes be justified. But it is clear that specific consideration must be given on a case-by-case basis to the use of covert CCTV recording. Case studies of the Commissioner demonstrate the factors which must be borne in mind.
For data protection purposes, covert recording can be justified generally only with the involvement of the Gardaí. Covert recording may be justified in the case of criminal offences, but not for performance-related monitoring.
The use of recording mechanisms to obtain data without an individual’s knowledge is generally unlawful. Covert surveillance is normally only permitted on a case by case basis where the data are kept for the purposes of preventing, detecting or investigating offences, or apprehending or prosecuting offenders. This provision automatically implies that a written specific policy be put in place detailing the purpose, justification, procedure, measures and safeguards that will be implemented with the final objective being, an actual involvement of An Garda Síochána or other prosecution authorities for potential criminal investigation or civil legal proceedings being issued, arising as a consequence of an alleged committal of a criminal offence(s).
Where CCTV footage is recorded, whether covertly or not, obligations continue to govern its retention and access to it. It is common for operators of CCTV systems to refuse to provide copies of their recordings to anyone other than Gardaí. It should be noted that, because camera footage is the personal data of the people recorded on it, those people have a right of access to it under the Acts. Again the Commissioner is quite clear:
Where a data controller chooses to use technology to process personal data, such as a CCTV system to capture and record images of living individuals, they are obliged to shoulder the data protection obligations which the law places on them for such data processing. In the matter of access requests for CCTV footage, data controllers are obliged to comply fully with such requests. Claims by a data controller that they are unable to produce copies of footage or that stills cannot be produced from the footage are unacceptable excuses in the context of dealing with an access request. In short, where a data controller uses a CCTV system to process personal data, its takes on and is obliged to comply with all associated data protection obligations.
Each time an Irish government proposes to introduce new rights for gay citizens opponents call for the right of service providers to discriminate against those citizens. They call this a “conscience clause”, which is surely a misnomer but sounds better than a “permissible discrimination” exemption.
Strangely, this is an argument which it appears must be had repeatedly. I wrote about it at the time of the Civil Partnership Bill and that post applies equally to the marriage referendum. In short: the Equal Status Act prohibits discrimination against people on the basis of sexual orientation. It was introduced fifteen years ago and it does not include a “conscience clause” (there is a limited “ethos” exemption for schools run by religious organisations). A “conscience clause” was not permitted in the Equal Status Act or the Civil Partnership Act. Why should marriage be any different?
The religious beliefs of citizens also benefit from protections and the State should not offend against those rights. But the State is entitled to insist that businesses providing services to the public respect its equality laws. The difficulty with providing an exemption from equality legislation on the basis of religious beliefs is that it would allow the law of the State, applicable to all, to be subverted by the private beliefs and opinions of self-defining groups. Indeed, if a “conscience clause” were introduced, there is no reason why it shouldn’t protect political beliefs as well as religious beliefs.
Today William Binchy is concerned that gay couples might sue a church for refusing to perform a same sex religious marriage ceremony. This is a strange concern to have. I have yet to hear of divorced people suing churches for refusing to perform a marriage, for example, but the same principles apply. Even if Mr Binchy’s fear was realised, it would mean that civil marriages would have to be registered separately from religious ceremonies. This would not require churches to perform same sex marriages.
It is striking that calls for a “conscience clause” only seem to arise in the case of gay rights. One does not hear the Iona Institute and other groups opposing the marriage referendum advocating on behalf of bakers and stationers forced to provide services to single mothers, divorcees or atheists. If one were to introduce a “conscience clause” it would have to apply to all categories of persons who benefit from protection under the Equal Status Acts and would open the gates to a wide and unpredictable range of subjectively permissible discrimination that would entirely undermine the purpose of equality legislation. Any conscience clause limited to gay rights would, in itself, constitute discrimination.
[Correction at end] Alan Shatter is concerned that RTÉ is not giving sufficient coverage to the upcoming referendum on the establishment of a civil court of appeal.
“I find it extraordinary that RTÉ on their six o’clock TV bulletin failed to make any mention whatsoever of the referendum being held to establish a court of appeal,” the Minister said.
He may be right, but it is not a constitutional amendment that was ever likely to generate much interest. If the Government genuinely wanted to ensure a high profile debate on the proposal it should not have scheduled the vote to take place on the same date as the referendum to abolish the Seanad . That proposal concerns politicians and inevitably most air time is consumed by them.
What is far more extraordinary is that the Government has tucked away in the court of appeal referendum an entirely separate amendment to the Constitution. This separate amendment would remove one of the “one judgment” rules from the Constitution (see section 5 of the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013). It has nothing to do with the court of appeal, but we will vote on both amendments together.
On October 4 next, as well as voting on abolishing the Seanad, we will consider a composite proposal, first to approve the establishment of a new Court of Appeal and, second, to remove a rule that when the Supreme Court makes a decision on a constitutional issue, only one judgment appears.
But, amazingly, the Government has limited our choice. We must vote for or against the package. We may not approve one part but not the other.
The one judgment rule (article 34.4.5°) arises when someone challenges the constitutionality of a law before the Supreme Court. Usually, the Supreme Court issues a majority judgment and other judges who sit on the particular case can supplement that judgment with comments of their own or, if they disagreed, can issue a dissenting judgment outlining why they took a different position. This is not the case with a constitutional challenge, when only one judgment may be issued and no others can be published which indicates the majority view.
It is of historical and political interest that the one judgment rule was not in the original 1937 Constitution but was introduced in 1941 during the transitional period when the Oireachtas could amend it without holding a referendum. The history of the 1941 amendment is set out in the report of the Constitutional Review Group (1996):
[The provision] seems to have been inserted as a direct result of the decision of the Supreme Court in In re Article 26 and the Offences Against the State (Amendment) Bill 1940  IR 470. In this very sensitive case, the Supreme Court upheld the constitutionality of the Offences Against the State (Amendment) Act 1940 (which provided for internment) a few months after the High Court had pronounced that similar legislation was unconstitutional. Chief Justice Sullivan commenced the judgment of the court by announcing that it was the ‘decision of the majority of the judges’ and as Chief Justice Finlay was later to state in Attorney General v Hamilton (No 1)  2 IR 250:
This was apparently seen to indicate a dissenting opinion which, it was felt, could greatly reduce the authority of the decision of the court and, we are informed, and it is commonly believed, led directly to the additional clauses by the Act of 1941 in both Article 26 and Article 34.
From an educational point of view, the proposal [for separate judgments] would, no doubt, be valuable, but, after all, what do we want? We want to get a decision … The more definite the position is the better, and, from the point of view of definitiveness, it is desirable that only one judgment be pronounced … [and] that it should not be bandied about from mouth to mouth that, in fact, the decision was only come to by a majority of the Supreme Court. Then you have added on, perhaps, the number of judges who dealt with the matter in the High Court before it came to the Supreme Court, as might happen in some cases. You would then have an adding up of judges, and people saying: ‘They were five on this side and three on the other, and therefore the law is the other way.’
What is important is legal certainty as to the judgment, which may affect fundamental issues. It was also suggested that the one-judgment rule allows the Supreme Court to provide the legislature with certainty without any of its members becoming the subject of political criticism and, possibly, pressure. Moreover, certainty would not be provided by a three-to-two judgment where at any time in the future a judge might change his mind on a fundamental issue.
It can be seen that there is a debate to be had about the one judgement rule. The 1996 Review Group considered it and their report outlines four pages of argument either way. Most arguments were in support of abolishing the rule and the argument for keeping the one judgment rule was as follows:
1 it is the decision of the majority of the Supreme Court which really counts and only uncertainty is created by allowing the publication of dissenting opinions
2 the publication of dissenting opinions serves only to weaken the authority of the court’s pronouncement and impair its persuasiveness.
Ultimately, the Review Group was in favour of what the Government now proposes: to remove the one judgment rule in constitutional challenges before the Supreme Court. (The referendum will not remove the one judgment rule in the case of article 26 references by the President, and indeed the 1996 Review Group failed to reach consensus on that point.)
There are clearly reasonable arguments in favour of removing the one judgment rule as is now proposed and the Government could credibly argue that this is a “tidying up” referendum which is merely implementing a recommendation made in 1996 (by a Review Group, it could be noted, established by Fine Gael and Labour when they were last in office).
But the one judgment rule can hardly be thought of as a pressing issue. Why has the Government not taken the opportunity to consider the operation of the article 26 reference power of the President, to which the one judgment also applies, and consider wider reform of the law on constitutional challenges? After all, one of the reasons for establishing a civil court of appeal is to free up the Supreme Court so that it can devote its time to constitutional issues.
There is certainly a good case for deleting 26.2.2 and 34.4.5, but this is pretty arcane stuff to be putting to the people in a referendum. Any such proposal would surely have to be part of a reform package if it was to generate much interest from the electorate, especially given the ‘referendum fatigue’ noted by Theresa Reidy in her post here on 2 July.
Furthermore, there are existing forums to consider such wider reform. The 1996 Review Group considered almost all aspects of the Constitution, including constitutional challenges in the Supreme Court, and made recommendations for reform. The current Government established a Constitutional Convention albeit one which, despite the grand title, has a limited remit and is ordered to consider a specific list of limited issues, few of which are particularly pressing.
It is peculiar that the current Government has embarked on a series of referendums on constitutional reform which are separate from the Convention. Why are some issues to be considered by the Convention and others not? Why are some amendments proposed, presumably on the basis of recommendations almost 20 years ago, whereas others are put through a fresh round of consideration?
The most important current question is, however: why is the abolition of the one judgment rule not proposed in a separate bill and subject to a separate vote?
One might reasonably be in favour of abolishing the one judgment rule, but the manner in which the amendment is being proposed raise is significant and worrying:
it is included in legislation to establish a court of appeal and although the issues are entirely separate and unconnected they will be voted on as a package;
the government parties do not appear to be making any reference to the proposal in their referendum campaign;
there is little or no debate on the issue.
One might wonder if this is the future of constitutional amendments in Ireland: small “tidying up” measures being tucked into larger reforms, with no government or political attention being drawn to them, no real debate and no option to vote separately on each issue.
PS: Given that polling day on 4 October 2013 includes a referendum on Seanad abolition it is ironic that the only Oireachtas debate on the abolition of the one judgment rule that I could find was in the Seanad (Senator Ivana Bacik; Senator Averil Power).
[Correction]The speech of the Minister for Justice, Alan Shatter, when introducing the Bill did of course note the proposal in the following terms, but did not address why it is included in the court of appeal Bill rather than in stand-alone legislation:
It is my strong view that justice is best served by giving the Judiciary the freedom, where they so desire, to give judgments, including minority judgments, on important matters concerning the constitutionality of our laws. For the time being, this reform, in line with the review group’s recommendation, is limited to the Article 34. Therefore, if the referendum is carried, both the court of appeal and the Supreme Court will be able to issue multiple judgments in cases involving challenges to the constitutionality of laws, in the same way as in all other cases that come before them.
Seth Barrett Tillman had an excellent oped in yesterday’s Irish Independent on the question of open justice and, in particular, access to documents filed in court by litigants. It is taken for granted in many jurisdictions that journalists and members of the public can see written arguments, allegations and facts submitted by parties in advance of court hearings but, in Ireland, an iron curtain of secrecy protects documents filed.
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.
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.
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 response to my post about sections 14 and 15 of the Censorship of Publications Act 1929, TJ McIntyrepoints out that it would be interesting to test the restriction on court reporting against the decision of the Supreme Court in Irish Times v. Ireland  1 IR 359. That case concerned balancing the constitutional right of the public to know what happens in courts against the right of an accused to a fair trial but the judgment is highly significant to court reporting generally.
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.
The Radio 1 History Show recently had an interesting segment on the prosecution of a Waterford newspaper editor.
In the new Irish Free State, low levels of sexual immorality and sexual crime were viewed as two indicators of this nation’s health. The reporting of sexual crime was to remain largely off limits to Irish journalists up to the 1940s and beyond.
A prosecution brought against a newspaper editor in 1929 did much to establish this status quo. The editor in question was D.C. Boyd of the Waterford Standard. He had reported explicit details of a case in which a local business man was accused of raping a 13 year old girl.
Dungan says that “reporting of sexual crime was to remain largely off limits to Irish journalists up to the 1940s and beyond.” I was curious to learn how far that “beyond” stretched and what became of the offence Boyd was prosecuted with.
Section 14(1) of the Censorship of Publications Act 1929 provides:
It shall not be lawful to print or publish or cause or procure to be printed or published in relation to any judicial proceedings:
(a) any indecent matter the publication of which would be calculated to injure public morals, or
(b) any indecent medical, surgical or physiological details the publication of which would be calculated to injure public morals.
Section 15 says that an offence is punishable by a fine of up to £500 and/or up to six months imprisonment (which could include hard labour). In light of current debates about ISP and website operator liability for online content, it is interesting to note that section 15 specifically provided that the liability for the offence extended to proprietors, editors, publishers and “master printers”.
So, when was it repealed? It wasn’t. Sections 14(1) and 15 remain on the books.
According to Keating, Boyd’s case was the first prosecution of this type and was described by the trial judge as being exactly the type of case the law was introduced to deal with. One can only hope that it remains in force due to oversight rather than principle.
Dr Keating says that the maximum fine of £500 in section 15 would, in today’s money, be £22,000 (I am assuming he was referring to sterling). The Fines Act 2010 means that the offence is now subject to a Class A fine, currently up to €5,000.
I’m not aware of any more recent prosecutions but in 1953 Joseph Blowick TD was asking the then Minister for Justice Gerald Boland whether he had submitted a newspaper report on the murder of a judge‘s daughter in Northern Ireland to the Attorney General with a view to having it prosecuted under section 15.
Surely the Minister will agree that the publication of the sordid details referred to in the particular paragraph should not go at least without protest from the Minister provided that he is not statutorily debarred from making a protest to the Censorship Board? In the interests of the clean journalism practised in this country, very laudably practised I must say, surely the Minister should not allow the publication of sordid details like these to pass.
The Minister informed Mr Blowick that his officials had considered the publication but did not believe it could have been calculated to injure public morals.
It is difficult to see how the prohibition on publication is compatible with the Constitution or the European Convention on Human Rights. Even if freedom of expression were not an issue, the prohibition itself refers to both “indecent matter” which would be defined quite differently today than in 1929. Another difficulty, as was the case with Mr Blowick’s complaint in 1953, would be in proving that the publication was “calculated to injure public morals”. It is a mystery how Mr Boyd was found to have done so in 1929.