More on "Wearing the Poppy"

Two of my best "Twitter-friends" have now got involved. The writer has, as I understand, personal experience of the horrors of war, as have living relatives of my own. I do not seek to insult their experience, their feelings or their opinions. I salute them as people. I do *not* decline to contribute to the funds for "veterans". (And I condemn the behaviour of people who insult soldiers - dead or alive - as "proxies" for the people who sent them to risk their lives). I therefore added the comment that follows (slightly amended for context).

You probably won't like my recent blog-post on the same subject, I suspect.

However, I will say that, if I lived in the U.K., I would find the decision on whether to wear the Poppy or not much more difficult.

It might end up the same, though.

Symbols are very powerful and it is beyond any individual's power to decree that the poppy or any other symbol has the meaning that they would wish to give it.

In Ireland, there is a lapel symbol available around Easter time known as the "Easter Lily". Some will tell you it is to remember the noble heroes (yes, they were noble, even if you think them misguided - just read the thoughts of the (real) General Blackadder who sentenced them to death) who died for Irish freedom in 1916 and their successors in that struggle.

Ah, yes: "their successors in that struggle". Therein lies the rub. That's where the trouble starts. I also refuse to wear the Easter Lily.

As in Ireland, so in England. The celebration of the fallen for "King/Queen and Country" inevitably becomes a patriotic "fest". I know it was an Irishman - GBS wasn't it ? - who characterised patriotism as the last refuge of the scoundrel, but you know that he was right.

It would be great if Remembrance Day was really only about remembering the dead and wounded, and not at all about glorifying the causes for which they suffered and died, and continue to do. For many, that is what it is, and I empathise with you, and join in recalling my own relatives among the number.

Wearing the Poppy (and even Remembrance Day), though - despite the efforts of OedipusLex and others - signals something else. Wishing it were otherwise will not make it so.

1918 and all that

It's November, and the lapel poppies are coming out again. I will not be wearing one.

A grand-uncle of mine died as a British soldier in Iraq a little more than 90 years ago. At least one other relative also served. As far as I know, no-one related to me died - or even fought - in the Easter Rising of 1916 which was the beginning of the end for British rule in most of Ireland. (Another grand-uncle was, however, assassinated in the Civil War of 1922-3; he was a non-combatant politician).

Despite that, I consider that the state of which I am a citizen rightly honours the rebels of 1916, while I am not too happy with the current fashion to simultaneously honour those thousands of Irishmen like my relative who died fighting in the First World War. Mind you, there was overlap: some heroes of the War of Independence (1919-21) were veterans of WW1, General Tom Barry being a celebrated example.

It is not that I am ashamed of my relative. Not at all. I have no idea why he joined the British Army, but no great feats of imagination are required to understand it. Irish men of all backgrounds did so, for all the reasons that young men still join armies. In the Ireland of 1914, there were also political reasons being added to the normal mixture of motives: the leaders of the Irish Party presented enlistment as a duty to the cause of Irish self-government.

Closer to the present day, two first cousins of mine have served in the British Army. They are not pariahs but very popular members at our family gatherings.

This sort of experience is not unique to my family; it is probably replicated, to some degree, in almost every Irish family.

The young men of 1914-18 are all dead now. Those who died "for Ireland" in 1916 or 1919-21 were not necessarily more heroic than those who died fighting for the British Empire's fatal miscalculation.

The point is that the deaths of the former were in a cause that I value: Ireland's entitlement to self-determination. This is also a cause that it makes sense for the State to honour; what sense does it make for the State to honour the sacrifices for the British Empire ?

To "honour" the Irish regiments in WW1 is to endorse by implication the cause for which they fought. In the service of what cause did my relative die ? Irish soldiers in The Great War were at least partially driven by a belief that it was their patriotic or religious duty (British propaganda portraying the German invaders of Belgium as anti-Catholic barbarians was very effective).

Nationalist opinion as the war progressed became sceptical and, helped by the Tory coup d'etat, the 1916 Rising and the threat of conscription in early 1918, became steadily more disaffected from the British state.

What was Britain's purpose in WW1? That is a question routinely evaded, but whatever it was, it did not include granting self-determination to Ireland. We had been duped. (Two decades later, it was entirely understandable that we should have been resistant to a reprise of the dupe rôle.)

Why should we "honour" as a body of men those who were duped ? Remember, yes, but let us recall them as individuals, some of them as fine as one could imagine and many who were better people than those proved right by events.

Update on Monday, November 8, 2010 at 06:34PM by Fergus O'Rourke

This post was noted in Slugger O'Toole's very busy website, where the reference generated a large number of comments. (Why none of the commenters came here to do so is a bit mysterious, but it kept me from getting too busy with moderation duties, so I am not complaining).

Today, I also participated in a radio discussion about wearing the poppy. Unfortunately, Bobby Ballagh stole all my best lines, and my contribution was rather forgettable, but it's at just after the 24 minutes point in part four here (Monday November 8 2010) if you're feeling masochistic.

Update on Monday, August 12, 2013 at 07:32AM by Fergus O'Rourke

As a result of my family history research, being documented elsewhere on the website, two corrections to the above are required. First, my assassinated grand-uncle was not quite as non-combatant as I had believed. He had a role in Government Intelligence. (It is not clear, however, as to the extent that he was actually involved in an active way.)Secondly, no relative appears to have actually died in WW1. What happened is that one grand-uncle simply never resumed contact with my grandmother or other family members, probably for reasons which pre-dated the war.

Update on Sunday, November 10, 2013 at 10:24AM by Fergus O'Rourke

Links for Easter Rising and Tom Barry repaired this morning

A Sad Family Announcement

A day that was threatening for a long time - for years, to be truthful - finally arrived yesterday at a little before 8 p.m.: my father, Fergus J. O'Rourke, died, peacefully in his sleep, in his own bed, in his 87th year.

I may not be able to do so, but I hope to post more information here over the next 48 hours. If I do not, those interested and able to do so, may wish to keep an eye on Monday's editions of "The Irish Times" and "Irish Examiner".

For those who know nothing of what was indisputably a most distinguished life, this set of Google results will give a flavour. (Diverse though his enthusiasms were, the two references to fire-fighting in Chicago in those Google results are to another FJO'R). He was a medically qualified biological scientist, originally a myrmecologist, and that is what his readily accessible published work reflects. What is not reflected is the breadth of his other scholarly interests, some of which also issued in published work. Early in his life, he was quite the archaeologist, for example; Christian theology, palaeontology, modern art featured, too.

He had virtually no interest in politics, the Law or banking & finance. What that says about me and about him, I will leave for another day !

On Being "Out of Touch" - Or Not

A common meme of discussion on politics and politicians in Ireland (and elsewhere) is that politicians are "out of touch" with the feelings, concerns and even the requirements of the voters to whom they are responsible and accountable.

Maybe they are - some of them certainly are - but it seems to me that it is unlikely that, as a class, politicians are more out of touch than anyone else. To the contrary, in fact.

Since so much of our discussion of these matters takes place in the mass media, almost always in contexts chosen and moderated by journalists, and in which journalists are often the only interlocutors, it is inevitable that the voters to whom reference is made in those discussions are not the generality of voters but those voters with whom the journalistic class identify.

I do not intend to suggest that journalists as a class identify solely with a narrow group rather than with the generality. They do tend to so identify, however, and I do intend to insinuate that journalists, and the "lay" people with whom they like to discuss current affairs, may well be more out of touch than politicians are.

As always, I may well be wrong.

But I ask you to consider this:

• Elected politicians owe their jobs to being in touch
• Out of touch politicians lose their jobs
• In Ireland at least, journalists have a dreadful record when it comes to predicting election results
• Journalists who are out of touch with the general electorate do not lose their jobs

It is not guaranteed to be so, but I suggest that people whose future depends on getting public opinion right are more likely to succeed in that than people whose futures are not so dependent.

The Perils of a Solicitor's Undertaking

A recent decision by the Irish High Court (Peart J.) exposes some of the sloppy banking and legal practices which characterised the Madness, and have contributed to the scale of the crash. The case is remarkable in a number of ways and I may return to the sloppy practices on another occasion.

I will here confine myself to noting this summary by Peart J. - a former solicitor, be it noted ! - of how the court will approach an application to enforce a solicitor's undertaking:

In summary, the following principles emerge from the judgment of Laffoy J. and Geoghegan J. in Coleman, and the authorities considered therein:

1. The Court has an inherent jurisdiction in matters concerning the conduct of solicitors, being officers of the court, including but not confined to compliance with their undertakings.
2. It is both a punitive and compensatory jurisdiction.
3. It is discretionary and unfettered in nature requiring each case to be considered on its own facts and circumstances.
4. In its exercise, the Court is concerned to uphold the integrity of the system, and the highest standards of honourable behaviour by its officers - a standard higher than that required by law generally.
5. The order made by the Court can take whatever form best serves the interests of justice between the parties.
6. In the matter of undertakings, the Court must consider the entire undertaking in order to reach a conclusion as to its real ultimate purpose.
7. The Court may order compliance with the undertaking, though late, where there remains a reasonable possibility of so doing.
8. Even where the undertaking may still be complied with, the Court may nevertheless order the solicitor to make good any loss actually occasioned by the breach of undertaking, which may or may not be the entire of the sum which was the subject of the undertaking.
9. Where compliance is not possible to achieve by the time the Court is deciding what order to make, if any, it may order the solicitor to make good any loss actually occasioned by the breach of undertaking.
10. Carelessness or other form of negligence on the part of the person affected by the undertaking, and in relation to the matter the subject thereof, may be a factor which the Court will have regard to when determining what order may be fair and just.
11. Any order the Court may make ought not be oppressive on the solicitor. Nevertheless, gross carelessness or other conduct considered sufficiently egregious by the Court, though falling short of criminal behaviour or even professional misconduct, will entitle the Court, should it consider it just to do so, to order payment of the entire sum which was the subject of the undertaking, and not simply a lesser sum in respect of loss actually occasioned by the breach of undertaking.

To these statements of principle which I perceive to emerge from Coleman and the other cases referred to therein, I would add one other which is linked in a way to that at 11 above.

It is this. It seems to me that the special supervisory jurisdiction being exercised by the Court in these matters is not unlike an equitable jurisdiction, given the wide discretionary nature thereof, and its objective of ensuring that justice is done between the parties in a broad sense.

In my view, therefore, it seems to me that it is not inappropriate or otherwise wrong for this Court to have regard to the overall behaviour of the solicitor, somewhat akin to seeing whether a person who is claiming an equitable relief has come to court with clean hands, even where the undertaking may be still reasonably capable of being completed, and even where the loss actually occasioned and sustained by the claimant may be less than the entire sum which was the subject of the undertaking.

The Court went on to order that the firm of solicitors should pay over to the bank the entire amount of the loan (€3m) plus interest and costs. This was approximately €1 million more than it would cost to belatedly comply with the undertaking.

Now, that's what I call "non-oppression".

Update on Saturday, March 6, 2010 at 09:01PM by Fergus O'Rourke

(This is my second attempt to publish this follow-up; I was unaware that the first attempt, made almost exactly 24 hours ago, was unsuccessful, for mysterious reasons, until a few minutes ago).

In relation to the "oppression" point, it should be pointed out that, under the option suggested by the solicitors but rejected by the court, the bank, instead of getting its €3 million back with interest, would have been provided with security worth about €0.6 million.

Update on Friday, June 29, 2012 at 07:09AM by Fergus O'Rourke

This decision by the High Court (McGovern J.) - though the circumstances are very different - is another example of how expensive failures to comply with undertakings can be. (A hat-tip to Mark Tottenham at Stare Decisis Hibernia for this, and much else).

Update on Friday, November 8, 2013 at 10:19AM by Fergus O'Rourke

The case citation links in this post have now been repaired.

What'd You Expect ? You Left the Keys in the Car

You leave your house to go to work. You get into the car, start the engine and then realise that your windscreen is covered in frost. You jump out, run into the house to get some water, knock down your small child and have to console her. When you emerge again, still only 5 minutes later, your vehicle has been stolen.

Your insurer says that it will not cover your loss, as you left the vehicle "unlocked and unattended" and with the keys "in or on" it. You therefore failed to take "reasonable care" of your property, and you cannot expect the insurance company to pay for that.

It's obvious, no ?

Well, no it isn't,as the UK's Financial Ombudsman Service make clear here.

Update on Tuesday, October 29, 2013 at 01:03PM by Fergus O'Rourke

Link to Financial Ombudsman now restored

Charlie Haughey Was Not A Hypocrite

Actually, I really do not know whether he was or not, although I would not have said that pretence to virtue was one of the things that distinguished his public persona as I remember it. However, my purpose in this note is not to holistically assess the man or his life, but to focus on two episodes which are often said to illustrate his alleged hypocrisy.

The first of these was what has come to be regarded as his "infamous" broadcast soon after taking office as Taoiseach for the first time. In that, he correctly (in my view) diagnosed a national economic emergency and delivered a stirring call to action, including the phrase "we must tighten our belts". It emerged a decade or so later that he did nothing of the kind himself, and I have lost count of the number of times that this has been wheeled out as an example of Haughey's alleged hypocrisy.

Well, of course, it wasn't an attractive way to behave, and arguably he had a duty to set a good example, but hypocritical it wasn't, I suggest. (And even if it was, I would argue that it was necessary: was Haughey supposed to neglect his undoubted duty to inform and admonish the citizenry just because he had a thrift problem himself ?)

The second putative example of Haughey hypocrisy is said, by Fintan O'Toole and others, to have been his resistance to reform to Irish marriage laws and specifically his opposition to the 1986 proposal to lift the constitutional ban on divorce. This, the argument goes, was blatantly at odds with his cavalier attitude to his own marriage vows.

No, it has never made sense to me. I do not see that opposition to divorce implies a pretence to virtue in sexual matters.

Besides that, Haughey was not totally free to indulge his personal views in arriving at political positions as leader of his party. Even if he was personally in favour of removing the divorce ban - I don't know if he was - he had not only a duty to represent his party but a vital need not to be seen to betray their values for merely personal reasons.

Yes, if his conscience dictated something, he could be said to be morally obliged (i.e. on pain of hypocrisy) to pursue it, even at the cost of his position, but there is no sign that it was issue of conscience for Haughey, any more than it was for most voters on both sides of the issue.

Is Everyone a Hypocrite, Then ?

I have been thinking about hypocrites and hypocrisy and whether they are useful terms any more. My conclusion is that they are; read on if you wish to learn why.

Hypocrisy has no friends. Hypocrites - i.e. the people as distinct from the thing - might be a little more popular but it's a "in spite of" rather than "because of" thing.

My own tolerance for hypocrisy is possibly higher than average, but that tolerance has limits (and maybe it's hypocritical of me to even claim to have any !): I suspect that we humans may be "hard-wired" to abhor the phenomenon.

The dictionary definition of hypocrisy is "the pretence of virtue" but in common discourse, this meaning has been abandoned and the word has, unfortunately I think, come to have two possible meanings, both very similar though subtly distinct from each other. The first refers to not practising what one preaches. The other is holding others to standards which we cannot uphold ourselves.

Using "hypocrisy" as having either of these meanings leads to a similar problem: the word loses its power, because as far as I am aware there is no human being who is not guilty to a greater or lesser extent. No-one is able to conform perfectly to what one preaches, or to always uphold the standards one wishes to be generally followed. I am certainly guilty myself, and I have no doubt that both the Pope and the Dali Lama would also acknowledge that they are not "without sin".

Does this mean that logic demands that all aspirations to do good and to avoid doing ill be eschewed ? Does it even mean that no-one should criticise or hold to account those who have failed to "keep to the rules" because to do so is necessarily hypocritical ?

I say "no". I also say that we should retain the dictionary definition and reserve the label of "hypocrite" for those who pretend to a virtue that they do not in fact possess.

Of course, I do accept that very often those who hold others to standards that they cannot, or will not, observe themselves are in effect pretending an unmerited virtue, and are therefore hypocrites. (Some especially nasty people do this, though, without any attempt to pretend consistency). Similarly, continuously and with great sanctimony preaching what one fails to practise will often be associated with a pretence to possession of unmerited virtue.

However, this is not as common among the usual targets for accusations of hypocrisy as many younger people (influenced by some whited sepulchres given vent in the mass media) believe.

I tend to believe that humility or the Socratic principle (the wise man is conscious of his vast ignorance) in ethical matters is the best course. For all its faults, Christianity's official line is still that "we are all sinners" and I respect it hugely for that, no matter how many of its adherents or prelates often forget it in practice.

Update on Thursday, January 14, 2010 at 03:57PM by Fergus O'Rourke

Having - yes, belatedly - checked on the accepted meaning of "whited sepulchre", I find that it is the worst kind of "hypocrite", a person full of evil but apparently perfect on the outside. I did not really have that meaning in mind. What I have in mind is the kind of shrill outrage of those who are not evil or especially hypocritical themselves - that would be too hard on them - but who, with imperfectly suppressed relish, sternly "shovel" enormous moral indignation on people who have fallen from grace e.g. dismissed bank executives, convicted bouncers, dead bishops, disgraced politicians.

This behaviour makes my flesh crawl, not just because of the lack of a proper humility but because it is usually a case of "kicking the man when he is down".

Karen Coleman Apologises...Or Does She ?

On the morning of Sunday, December 20, 2009, I turned on Irish radio station NewsTalk, expecting to hear the current affairs discussion programme presented by Karen Coleman. I was rather startled to hear instead a male voice reading a really rather grovelling apology from the station to Dr Patricia Casey.

The apology over, an advertisement follows and then Ms Coleman resumes as if nothing has happened.

Having missed the beginning of the apology, I had no idea as to what it was about. I therefore went to the NewsTalk website, hoping to find the full text. It was not there, and it did not appear on Ms Coleman's own website either.

Neither the station nor Ms Coleman responded to my requests for more information. However, I have my own sources, and here is the full text

On the Wide Angle programme transmitted on Sunday 29th November, Karen Coleman, the programme presenter, interviewed Professor Patricia Casey of UCD and the Mater Hospital, regarding the Murphy Report on Clerical sexual abuse in the Dublin Diocese.

In the course of that programme, in discussion about the conduct of the clerics, the programme presenter, Karen Coleman, put it to Professor Casey that she was somebody who represented an element of society in this country which has probably forgiven, forgotten or ignored the kind of abuse that these people had been capable of over the years.

Newstalk now accepts that the nature of the questioning was hostile and inappropriate and was of a nature that caused Professor Casey unnecessary distress.

Newstalk wishes to express its apologies to Professor Casey who they completely accept has never sought to forget about those who committed abuse or those who suffered abuse, neither has she ever sought to forgive those who committed the abuse and neither has she ever sought to or advocated in any way that the abuse issue should be ignored.

Newstalk acknowledges that Professor Casey is a vigorous and articulate defender of her Catholic faith and values and that she has been as critical as anyone in denouncing the abuse and the subsequent cover-up that took place.

Newstalk values Professor Casey's contributions to their programmes and we are very happy to express our unreserved apologies to her and her family at this time. We look forward to renewing our relationship with Professor Casey following this regrettable incident

It is rather striking that the apology is clearly made by the radio station rather than by Ms Coleman, that Ms Coleman has not associated herself with the apology at all, and that she did not read it out herself or even refer to it in any way whatsoever. Indeed, it was read during a commercial break and rather pointedly not as part of the programme proper.

"Shabby" is the word that springs to mind. I wonder if Ms Coleman would call it "self-censorship".

Lawyers Against Lisbon (Press Release)

We, the undersigned, have decided to vote "No" on Friday and recommend that our fellow voters do so as well.

We each have slightly different reasons for our position but are agreed on what now follows.

Contrary to a common argument from our opponents, the Treaty is about much more than improving decision-making, but even if it was

The North Korean parliament is a marvel of efficient decision-making, as is a torch-wielding lynch mob. Neither is an attractive model for the EU

(The quotation is from "The Economist")

The Referendum Commission's work, while valuable, at best clarifies what is in this treaty. Given its complexity, there is an understandable tendency to conclude that, having reached some understanding of its contents and having failed to confirm one's worst fears, it is safe to vote for it. This is, sadly, no way to decide on the rules for our government. The treaty must also be seen in a larger context, especially that of its genesis.

None of the other groups opposed to the Treaty represent us adequately, and in the case of some, do not represent us at all. Nor, as is absolutely clear from polls and from last June's elections, do they represent the majority of "No" voters.

In deciding how to vote, the bad reasons on either side are irrelevant.

Some say that Lisbon is a bad deal for Ireland: we don't agree with this formulation of the problem at all. Our negotiators did a reasonable job.

C'est Magnifique! Mais C'est Ne Pas la Democratie

The EU's Constitution (for that is what the Treaties culminating in Lisbon amount to) has been developed, and continues to develop, without adequate democratic participation. Most regrettably, Lisbon was deliberately written to further preclude this. "The Economist", whose Europhile credentials are impeccable, had the integrity to note this as drafting proceeded. The titles of the relevant articles - Hee-hee Voters Fooled Again and Journalists for a Cover-up - must make any genuine democrat's blood run cold.

Public opinion in the EU states has not been able to arrive at an informed view on the merits of the Treaty because of the way in which it was written. Even to us, as lawyers accustomed to dealing with abstruse documents, the Treaty as signed is well-nigh unreadable. We recognise that some of this arose from the inherent difficulty of arriving at an agreement, but it is clear beyond dispute that the form in which the Treaty was signed was a function of the perceived necessity to disguise, or at least to "cosmetise", some aspects which would cause difficulty, especially for the people of the UK.

Voting "No" is Not Rejecting Everything

We acknowledge some good things in the Treaty, but cannot support further extension of Union competences while the ethos of democratic exclusion continues to hold sway. The Union leadership has now developed the habit of discarding democratic methods reflexively, if they do not produce the right answer.

Indeed, we fear that the Union may already have gone further than is inherently possible while remaining politically legitimate. The choice now is either to go fully federal or to revert to a community of more or less equal states. Lisbon is an unsatisfactory mish-mash from this perspective.

The Commission's sole power to initiate legislation, including repealing measures, is increasingly anachronistic in democratic terms now that so many of the laws governing us are made in this way.

We don't accept that non-ratification will lead to "the sky falling in". The ECB, for example, is not helping us as a reward or a bribe. (But if it is , it will stop on Monday whether we vote "Yes" or "No").

Whether "Yes" or "No", Ireland will still be near the top of the table of countries supportive of the EU. Even "No" voters are 2-to-1 in favour of membership.

Some "Yes" people want an EU government instead of an Irish one, arguing that native rule has failed. That is a dangerous fantasy and one which the EU itself will not indulge.

The apparent requirement on EU Commission staff from top to bottom to be not merely functionaries but enthusiasts and proselytisers for "the project" is worrying for an ostensibly democratic entity.

Brendan Nix S.C., Joe Noonan, Solicitor, Fergus O'Rourke B.L., John McGuiggan B.L.

[ends]

An End to Imprisonment for Debt ?

In a note written in 2006 (you'll find it here) I confidently asserted

No-one in Ireland goes to prison because they cannot pay a debt

Though correct as to the position in law, arguably I was wrong because of the failure to observe due process by some judges.

Earlier this year, it was reported that the relevant legislation was to be challenged on constitutional grounds, with the Irish Human Rights Commission supporting the challenge.

A decision reported in "The Irish Times" this morning (See follow-up note dated 26 October 2013 below) suggests that this may not be necessary.

The report is, as is normal, written for the general audience and is not necessarily complete as to what lawyers would regard as the relevant details, or the detailed ratio decidendi. (I note that Eoin O'Dell has recently repeated his criticism of the delay in publishing the full judgments of the Irish superior courts.) That said, O'Neill J.'s decision as reported seems to me to admirably set out the standards which ought to apply when a creditor applies to a court to have someone imprisoned for failure to pay.

(As an aside: why are so many of the cases which get publicity initiated by credit unions ? Does it reflect sub-normal attention to public relations ?)

Note that a failure to pay by itself is not a ground for such an application: the failure must be to comply with a previous order by the court that the debtor pay a specific amount. Now, it may not be generally realised, but in Ireland, when such a failure occurs, the creditor may realistically have very little legal option but to apply for such an order, even if putting the debtor in prison is of no use, and indeed may be counter-productive. The creditor may not be unreasonable in believing that to apply is the only way to get the debtor's attention.

However, this is by no means always the explanation for the application, or if it is, something is going wrong on a regular basis, because yesterday's case, as well as the case referenced here (and here), all appear to be cases of "can't pay" rather than "won't pay". In all of the latter cases, and, I suspect, in virtually all cases of this kind, the debtor has failed to turn up in court, or, as it is often censoriously expressed, has ignored the summons to attend.

Judges are invariably wont to take umbrage at this, and my sympathy for debtors notwithstanding, I tend to agree with this, at least up to a point. I cannot agree, though, that, as has happened, it is appropriate to sentence someone - in absentia - to prison for up to three months because the judge is annoyed with failure to turn up.

It appears likely, as well, that creditors are either encouraging judges to do this, or failing to suggest more suitable alternatives such as adjournments.

Presumably encouraged by Conor Devally S.C., the debtor's counsel, O'Neill J. has now made such inappropriate happenings much more unlikely, if not completely impossible, by interpreting section 6 of The Enforcement of Court Orders Act,1940 in a new way.

The said Section 6 reads as follows

• ( a ) where a debtor is liable, by virtue of an instalment order, to pay a debt and costs either in one payment or by instalments and such debtor fails to make such payment or fails to pay any one or more of such instalments accruing due while such order is in force at the time or times appointed in that behalf by such order, the creditor may, at any time while such order is in force or within twelve months after it has ceased to be in force, apply to a Justice of the District Court for the arrest and imprisonment of such debtor;
• (b) on the hearing of an application under the next preceding paragraph of this section, the Justice may, if he so thinks proper but subject to the next following paragraph of this section, order the arrest and imprisonment of the debtor for any period not exceeding three months, and thereupon the debtor shall be arrested and imprisoned accordingly;
• ( c ) the Justice shall not order the arrest and imprisonment of the debtor under the next preceding paragraph of this section if the debtor (if he appears) shows, to the satisfaction of such Justice, that his failure to pay was due neither to his wilful refusal nor to his culpable neglect;
• ( d ) on the hearing of an application under paragraph (a) of this section, the Justice, if he so thinks proper, may, in lieu of ordering the arrest and imprisonment of the debtor, treat such application as an application under the next preceding section of this Act for the variation of the said instalment order and thereupon the said next preceding section shall apply as if such application were an application thereunder;

O'Neill J. appears to have decided that section 6(c) may not be interpreted so as to place the onus on the debtor to satisfy the court as to his or her inability, as has been the practice - in accordance, to be fair, with the most obvious meaning of the words - but that it must be shown beyond reasonable doubt that s/he is either wilfully refusing, or is culpably neglecting, to pay. This, the standard of proof in criminal cases, is appropriate because the criminal sanction of imprisonment is involved.

Update on Saturday, October 26, 2013 at 09:51AM by Fergus O'Rourke

Unfortunately, I can no longer find the original 2009 links, but for those seeking more detail this one and this will, I think, prove useful further reading

Just Because He's Paranoiac ...

Despite the fact that we agreed on how to vote on the Lisbon Treaty, there are not many things that I find attractive in Declan Ganley.

The feature that I probably find least attractive is his political amateurism and his unsophisticated tendency, very reminiscent of the British euro-sceptics, to see the "evil hand of Brussels" behind every question that he finds uncomfortable.

Some of his other unattractive debating faults can be seen at work here.

However, it is quite clear that "they" are indeed out to get him. Having, as they see it, single-handedly sabotaged "the project" by his intervention in the Lisbon referendum, and having managed, as they see it, to get the EU's most euro-philic electorate (see statistics quoted here) to deliver a perverse decision, the forces ranged on the other side of that argument are naturally keen to weaken Ganley before the re-run of the referendum which they plan to have next year.

On last Thursday night,"Prime Time",Ireland's leading television current affairs programme, broadcast what struck me as more or less a 40 minute hatchet-job.

It was not completely unfair to Ganley. It did

• demonstrate that, despite his English accent, he is as Irish as anyone else born and bred here
• allow him to answer many of the negative points made against him
• give him scope to make points of his own to some extent

However, the programme's most interesting sections concerned Mr Ganley's activities in Latvia,Russia, Bulgaria, Albania, and the U.S..

Latvia

The chief focus of this was what seems to have been an exaggeration by Ganley of his influence as a very young man on a junior minister in the first post-soviet government. It was careful,though, to allow an "expert" to explain to us that the area of Riga in which Ganley worked was largely controlled by gangsters and illicit traders.

What was the point of this ?

Russia

The only point of this section seems to have been to note that Ganley held his Russian forestry venture through a Cypriot company and to give time for another "expert" to dilate on the lack of transparency associated with use of Cyprus-registered companies and how the Russian gangster class were very fond of using Cyprus.

So, if you use a Cypriot company, you are ipso facto a gangster, right ? I don't think so, but I would be surprised if most viewers did not take that impression.

Bulgaria

For some reason, all we heard about this was that Ganley made a lot of money from the sale of his cable-television investment in Bulgaria. No detail whatsoever was given.

Albania

This was the most sensationalistic section of the programme.

We were shown the body of a man lying on a deserted roadway. The body is of someone who worked for Ganley's company at one time many years ago. We are told that shortly before being murdered just recently, this man had started to reveal secrets of criminal activity.

Ganley denies ever knowing him, but eventually concedes that he may have been connected. So what ? We are not told.

What we are told is that Ganley was involved in Albania's "privatisation voucher" scheme, and we hear a very old man tell us at some length, through an interpreter, how he lost all his life's savings through the collapse of the scheme. How Ganley was alleged to be culpable is not explained. One of Ganley's American associates says that the Albanian government aborted the scheme, which cannot be blamed on Ganley, but I suspect that the significance of this will have escaped the television audience, for the most part. Was this accidental ?

United States

We get a fairly detailed account of an alleged attempt by Ganley to acquire by stealth a mobile-phone operator's licence in Iraq. The response of Ganley and his associates suggests that this was a very murky episode one way or another. Which way is impossible to judge. Why the full story could not be summarised for us in comprehensible way may be a story in itself, but the way it is presented is not to Ganley's advantage.

SIPO

SIPO is the Irish government body which regulates the spending of money for political purposes.

It was suggested on the programme that Ganley had failed to "engage" with SIPO, which he denied, and quotation was made from a leaked letter, allegedly on its way to Ganley from SIPO, which gave him an ultimatum. We were not shown the letter; it does not appear that Ganley was, either. (And I gather from a not-particularly-reliable source that it has been reported that he still has not received it).

Summary

This was a shoddy piece of biassed reporting. I would like to think that we won't get any more of this, but I suspect that I will be disappointed.

However, I am not so certain that the cumulative effect of this kind of story will be as intended.