Contempt

Picture it: A man in his 80s - I will refer to him for a bit hereinafter as "CC" - is in the witness box at an inquiry. His conduct is an issue. He is asked a question and from the content of the question, he correctly deduces that information which he had thought was confidential has been shared, or is about to be, with those hostile to him without his prior consent. The material disclosed, he says, includes personally sensitive information imparted to him, and recorded by him, on the basis that it was to be strictly "between them only", as well as legal advice on his own position.

He consults his lawyers who tell him that what has been done is legally suspect at least, and they are possibly more emphatic than that. On their advice, he institutes proceedings in the High Court to vindicate his own rights and, he says, those of people who confided in him.

A deluge of public criticism and abuse then descends on him:

"Mr O'Gorman said CC should waive his legal privilege in relation to the documents and put the rights of victims above his own"(RTE 01.02.08)

"... [major public figure says he] is concerned that the hard work put in by many people, in the interest of the truth about the abuse ... could be overshadowed by [CC's] action." (Irish Independent 5.02.08)

"Whatever the eventual outcome, [CC] has thrown a spanner into ... policy towards child abuse. The public is wondering what [CC] has to cover-up. He has further damaged his own reputation. He has done a disservice to church and nation". (The Western People 6.02.08)

Television producer and columnist Mary Raftery said ... that "justice transcends loyalty to any institution" and that what [CC] was attempting was "an outrageous thing to have done".

In CC's case, the pressure seems to have worked. In physical pain, following an injury, he withdraws his action.

Now read this (from Halsbury's Laws of England - in this instance, no different from Ireland's - very slightly paraphrased):

"Criminal contempt of court includes conduct calculated to inhibit citizens from availing of their right to have legal rights determined by courts e.g. by holding them up to public obloquy or by exposing them to prejudicial discussion in public of the merits of their action".

It seems to me almost beyond argument that Cardinal Connell - for it was he - was intimidated into abandoning his legal action by behaviour amounting to criminal contempt of court.

And a similar process is taking place in relation to Taoiseach Bertie Ahern's separate proceedings in regard to the alleged infringement of his entitlements by another inquiry.

I happen to think that both Ahern and Connell - neither of whom can count me among their admirers - do have something to hide and are open to legitimate criticism about the behaviour of theirs under scrutiny by the respective inquiries. But that does not disentitle them to appropriate privacy or to fair play.

Update on Sunday, February 17, 2008 at 12:45PM by Fergus O'Rourke

Bother !

I forgot that my title for this piece was to be "Are you Paying Attention, Sepp Blatter ?"

and that I was going to include a reference to FIFA's intimidation of Middlesborough F.C. a few years back into abandoning a legal challenge to a draconian sanction visited upon the club. I have been waiting for years for an opportunity to make the point that Herr Blatter was a contemnor.

"No Bail for Criminals", and so on

The latest volume of the Judicial Studies Journal has been published recently. I commend it heartily.

Judge David Riordan's article on the approach to, and experience of, immigrants in the criminal courts is fascinating, and I may return to it here.

However, the highlight for me is a splendid opinion piece entitled Weasel Words and Doubtful Meanings:A Study in the Language of Law “Reform” by Mr Justice Adrian Hardiman of the Supreme Court. There is so much that I believe deserves to be emphasised that one stage I was in danger of attempting to reproduce the entire article, but the following extracts will have to suffice.(Emphasis - the phrases in bold - has been added by me):

Accordingly, a state of mind grows up in which only convictions are a meaningful result of the criminal process; acquittals have therefore to be regarded as a malfunction or, at best, as meaningless.

[...]

The first is a tendency to presume that those charged with an offence are guilty of that offence. This was perfectly exemplified in a campaign slogan used in the course of the recent general election which promised “tougher bail for criminals”.

Readers may remember that this slogan featured here before . He continues:

The fact is, of course, that in our system those seeking bail are typically not criminals: they are persons resisting being imprisoned, perhaps for years, pending the resolution of the question of whether they are criminals or not. But the slogan clearly suggests, intentionally or otherwise, that the question of their guilt can be taken for granted.

[...]

Every defendant, no matter how technical the offence or how good his previous record, is treated as though he were, at least potentially, a gangland crime boss and his rights duly attenuated.

Last year, the Minister for Justice set up a committee to advise on the “rebalancing of the criminal law”. It was a remarkable feature of this committee that not a single member was a practicing criminal lawyer: none had significant experience of either the prosecution or the defence of criminal cases to conviction or acquittal. It is not necessary that such a committee be composed entirely of criminal lawyers, but it is necessary that there should be some input into a committee on the “rebalancing” of the criminal law from those who know how that law works in practise, and from both sides. Would any Minister dare to set up a committee on defamation law without media representation ? Or a committee on agriculture with no farming representation ? Or on cancer care with no oncologist ?

[...]

I suspect that he wrote this before the John Crown Affair !

Due to a combination of political and media abuse, the work of criminal lawyers, especially defenders, is caricatured and the term “criminal lawyer” has acquired a connotation close to that of “shyster”. When it is desired to praise a criminal lawyer, as in the case of the late Patrick Finnucane and Rosemary Nelson, both of whom were practising criminal lawyers, they are transmuted into “civil (or human) rights lawyers”...

Four years ago Messrs. Bush and Blair stood together outside the White House and invited acceptance based on trust of their shared view that “The people in there [Guantánamo Bay] are bad guys.” In other (Irish) words, “I know what I know”. This is another carefully crafted phrase, but it means only “I sincerely believe what I’ve been told and you should too”. “I know what I know” may be a perfectly valid justification for an executive or political action, and is often the only one which can be offered. But it has no place in the due course of law, which proceeds upon evidence and not otherwise.

I am prepared to accept that all these people are quite sincere in their views, but a law-based society requires evidence, and not merely sincerity, before someone loses his liberty, perhaps for many years. Or do we still believe that ?

Sadly, it is my observation that many do not want to think about it. As Hardiman J. reminds us, Benjamin Franklin had the words for them:

Those who give up essential liberty to purchase a little temporary security deserve neither liberty nor security.

Disclosing a Document by Mistake

In two recent decisions, the courts in Ireland and England have further clarified the law in relation to documents over which privilege could validly have been claimed but which were instead disclosed by mistake.

The Irish case was Byrne & Anor -v- Shannon Foynes Port Company & Anor [2007] IEHC 315.Clarke J. had to decide whether the use by the Plaintiffs of a set of papers disclosed to them could be suppressed. He decided that it could not because the papers had not been recognised as disclosed by mistake and it was not reasonable to suppose that the mistake ought to have been appreciated by the receiving party.

The decision went the same way in the English case of MMI Research Ltd v Cellxion Ltd and others (of which I learned here. Subscription required, but is free.) After a quick search yesterday, I could not find the judgment on-line but it is almost certainly there somewhere.

Both courts were pretty much ad idem on the relevant principles, and the resultant tests, which I would summarise thus:

1. If the mistake is realised to have been such by the receiving party, the documents must be returned
2. Likewise, if it ought to have been realised by the receiving party
3. The test is not whether, having done a detailed assessment of the documents and made further enquiries, the mistake was apparent, but rather whether the mistake was obvious.

On the evidence, in both cases the court held that it could not be established that the receiving solicitors had realised that a mistake had been made. The material received would not have made it obvious to a reasonable solicitor that a mistake had been made.

In the Shannon Foynes case, there was an interesting twist. The receiving party sought to have further disclosure made on the basis that the documents mistakenly disclosed had now been "deployed" in the litigation. Clarke J. refused that application, holding that deployment had not in fact taken place.

Our "Islamic" Legal System

As someone who spent my earlier adult years working for a bank, the attitude of lawyers to the question of interest has always bemused me.They have an almost Islamic repugnance for it.(I may offer you my sociological, vocational and other explanations for this on another occasion).

Where a contract e.g. a loan agreement provides for interest to be charged, the law generally regards it as fair enough, and this logic carries into allowing claims for interest charges incurred as special (=consequential) damages for breaches of other types of contract and for torts. Thus, a claimant who incurs extra interest charges can expect to be awarded them.

However, the courts remain reluctant to recognise in a general sense the time value of money, even for those without borrowings.Those interfering rabble-rousing busy-bodies up in Kildare Street The democratically elected representatives of the sovereign People i.e. the Legislature have had to intervene serially to decree that ordinary debts, then judgment debts and arbitration awards, may carry interest both after judgment is given and for the period before judgment. Even then, claims for interest have to be framed carefully to avoid the many traps for the unwary, and one often (maybe that should read "usually") finds that compound interest - "interest on interest" ? Quel horreur! - will be dis-allowed. For example, interest on judgment debts, i.e. any sum of money ordered by a court to be paid, can be charged at 8% p.a. (a rate set when inflation and market interest levels were much higher,and which now has to be seen as extortionate), but because the language in the statute is not specific, creditors cannot compound the interest.

This is, I submit, an anomalous situation which must eventually be entirely dissipated. Signs of another crack in the anomaly have just (on the 18th July last) emerged in an English House of Lords decision, Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners and another [2007] UKHL 34.

The case concerned a claim in restitution and I quote from the speech of Lord Nicholls:

...there could only be one answer. Nobody had suggested a good reason why, in a case like the present, an award of compound interest should be denied to a claimant. An award of compound interest was necessary to achieve full restitution and, hence, a just result.

Well, some of his colleagues clearly thought that other answers were available, because the decision was not unanimous, and be in no doubt at all that lawyers will argue in other cases that this decision is of limited application.

Still, it is welcome progress as far as I am concerned.

Pink Underwear Can Have Legal Significance

My colleague Micheál P. O’Higgins knows the power of an arresting headline. An article by him in the fairly recent past was headed "The King of Swaziland's Tenth Wife, Habeas Corpus and the Irish Experience".

His article in the current edition of the "Bar Review" is entitled "Pink Underwear, the European Arrest Warrant and the Law of Extradition". It deals inter alia with an Irish High Court decision (The Attorney General v P.O.C [2005] IEHC 289) in which the sadistic sheriff of Maricopa County, Arizona featured prominently.

In that case, O'Sullivan J. refused to order an extradition partly at least

"for the reason that [since his] incarceration is likely to breach his constitutional rights because of the inhuman conditions in Maricopa County jail, an order extraditing [him] would constitute a breach of those rights"

An Irishman's Home is his Castle too, but ...

Keith Spencer, a Dublin colleague, has a useful discussion of the effect of the judgment in People (DPP) v Barnes to which I referred here some weeks ago. He puts it in the context of the Law Reform Commission recommendations and of the decisions in the controversial Nally case, and sounds a rather pessimistic note in conclusion.

The article is in the current issue of the Law Society Gazette which is available here(starting at page 26 of the pdf).

Izzit 'cos I iz from Limerick ?

Can it really be true that the Department of Justice (Minister: Michael McDowell S.C.) regards Chief Justice John Murray S.C. - distinguished jurist (ex ECJ), former Attorney-General and native of Limerick - as a security risk ?

From Michael Clifford's column in yesterday's Sunday Tribune:

On 12 December last, the criminal Martin Hyland and the innocent young plumber Anthony Campbell were murdered. One of Hyland's gang is suspected of the killings.

Two days later, a headline blazed the news that 23 out of 24 of Hyland's gang facing charges were out on bail. The story and all the accompanying comment implied that this was despite strenuous garda objections. It looked like the courts had completely disregarded the warnings of gardai­ that these dangerous criminals would reoffend while back on the streets..

There was outcry in the media and from the public...

McDowell jumped on the bandwagon.

On 15 December, he hit out at judges' interpretation of the bail laws. "The simple fact is, if 23 out of 24 people are admitted to bail despite garda opposition in very serious cases, something is going wrong." As it turned out, this statement was either wildly inaccurate or deliberately misleading, and designed to deflect attention from his own responsibilities..

On Christmas Eve, it emerged that in at least two of the 24 cases the gardai­ had no objection to bail..

Legal sources believe the figure to be much higher, possibly in the majority. (The actual figure is known only to the gardai­, which has leaked selective details to its best buddies in the media. ) A number of the individuals are charged with minor offences, such as breaches of the public order act.

Only some of the 24 are up on serious charges. Only some of them are potentially dangerous. Patently, the gardai­ don't believe that a number of those suspects are likely to commit serious crime while on bail....

Meanwhile, chief justice John Murray was perturbed by the headlines. He requested details of the cases, presumably to determine whether his courts were actually malfunctioning, or whether they were just portrayed as such by those in pursuit of other agendas.

Murray hasn't been given the details. McDowell's department says there are security concerns around that information. The chief justice is regarded as a security risk?.

Or would he merely be a risk to the security of McDowell's spin if he were in full possession of the facts?.

This is what passes for a coherent approach to policy on crime from the minister..

Follow the headline, and if the headline is bogus, what the hell, it's only crime. Trash the courts, and if the basis for that trashing is bogus, what the hell, separation of powers is only a fundamental safeguard in a democracy. All these things are mere vehicles for a great man en route to fulfilling his destiny.