Note from 2010 (22 April)
Where All The Evidence Was Available to the Irish Authorities
The European Arrest Warrant is a mechanism which enables a member state of the European Union to request extradition of a person named in such a warrant from any other member state. It is currently in the news because of a development in the investigation in France of the death, 13 years ago, in Ireland of a French film-producer, Sophie Toscan du Plantier.
There are some circumstances in which extradition can be refused. One example is, according to page 14 of a guide still being offered on the website of the Irish Department of Justice :
6. Where a prosecution is still being considered in Ireland against the person for an offence or a decision has been taken to bring proceedings or not to bring proceedings in Ireland for an offence forming part of the offence specified in the European Arrest Warrant (S. 42).
The wording of section 42 of the 2003 Act is as follows
42.—A person shall not be surrendered under this Act if—
(a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings against the person for an offence,
(b) proceedings have been brought in the State against the person for an offence consisting of an act or omission that constitutes in whole or in part the offence specified in the European arrest warrant issued in respect of him or her, or
(c) the Director of Public Prosecutions or the Attorney General, as the case may be, has decided not to bring, or to enter a nolle prosequi under section 12 of the Criminal Justice (Administration) Act 1924 in proceedings against the person for an offence consisting of an act or omission that constitutes in whole or in part the offence specified in the European arrest warrant issued in respect of him or her, for reasons other than that a European arrest warrant has been issued in respect of that person.
Alas, the passages in bold are, in fact, no longer law.
Even though the document on the DOJ website notes at page 2 that the law was amended in 2005, it fails to fully reflect the changes to section 42.
In the words of then Minister for Justice, Brian Lenihan (for it was he), as he proposed the alteration to that section in the Senate
The essence of this amendment is to provide for the deletion of section 42(c) of the European Arrest Warrant Act
In fact, the new section - adopted to murmurs of approval by the Opposition - simply re-enacts s.42(a) and (b). Why does the 2005 Act not simply repeal s.42(c), instead of laboriously re-enacting (by its section 83) s.42 (a) and (b) of the 2003 Act ?
Moreover, if one consults the "Arrangement of Sections" of the 2005 Act, one will see several sections entitled "Amendment of Section ... of the 2003 Act" but s.83's title is "Proceedings in the State".
Indeed, a total of fifteen sections of the 2003 Act are amended by Part 8 of the 2005 one, and the changes are really significant. The Arrangement of Sections for Part 8, however, only refers to five amendments of the 2003 Act.
If I were very cynical, I might say that there was an organised attempt to confuse observers. I am not that cynical, not least because similar "messing" is evident throughout legislation in recent years, and even lawyers are being confused (though the more venal glorify in the work it creates for them).
It seems to me that enactment of a European Arrest Warrant (Amendment) Act would have been more straighforward.
And so, finally, to the point I started this post to make: the end result is a ridiculous one, in which an Irish resident is to be forced to fight an extradition request to face charges in France relating to a death which occurred in Ireland. The case has already been exhaustively, if inconclusively, investigated in Ireland, the Director of Public Prosecutions has declined to proceed, and the subject has been successful in related defamation proceedings. (See here for a short summary of the long saga.)
Mr Lenihan justified the removal of s42(c) by saying
The existing provision would be workable in a case where all the evidence had been known and available to the Irish authorities when the decision was taken not to bring proceedings or to enter a nolle prosequi. However, a number of circumstances can arise where this is not the case. As a result, an accused person would be able to evade justice in circumstances where there is no good reason, in principle, that he or she should not be surrendered. The most obvious case where this can arise is where there is no evidence available in this jurisdiction or insufficient evidence to warrant the case proceeding. In these circumstances, a decision may be made not to prosecute the person concerned. As currently worded, the paragraph could operate as a bar to a person’s extradition for the same offence to a jurisdiction which has the evidence to deal with that person.
We shall see in due course, but one would have to doubt that the French investigation of the du Plantier murder will have been able to come up with new evidence. Even if it did, it should be provided to the DPP who can re-consider his decision not to prosecute.
OLD VERSIONS OF ELECTION PLATFORM
Original version
ELECTION PLATFORM
Opening Statement
I am standing for election to the Dáil in the constituency of Cork North-Central. I am affiliated to no party, but, if elected, will make common cause with others elected on a political reform agenda. I hope to issue shortly the first of what may be a series of agreed statements with other non-party candidates.
My own reform agenda prioritises removing the elements of the present system which ensure that TDs neglect their national duties in favour of the more trivial aspects of their role. For example, I propose the removal of all, or nearly all, taxpayer support for "constituency work" by Ministers, TDs and Senators.
The last is especially urgent, because there is absolutely no justification for Senators doing any work of that kind. I would not favour abolition of the Senate, but would cut its costs by at least 50%. Senators are grossly over-paid.
TDs are probably also over-paid. They are certainly over-paid for the value they deliver, or are permitted by the system to deliver, to us citizens. I do not share the common view that all, or even most, TDs are corrupt or otherwise useless, but we are not getting a "good deal".
The support for TDs' constituency work is much less outrageous than for Senators (who should get NONE) or for Ministers who are collectively permitted hundreds of civil servants dedicated to such work.
The other candidates in Cork North Central are good people as far as I can see so far, but, with one exception, are not seeking a mandate that will change the current situation much. There are four seats, and I can only fill one, so, if voters choose well, the constituency is going to be represented by at least three other good people, whose priorities will receive attention as well as mine.
As well as re-focussing our national politicians on truly national issues, my main priority will be to push "burden-sharing" at both national and EU-level. Briefly, this means that lenders must take more pain than they have so far. The share of pain placed on borrowers and taxpayers is disproportionate, unjust and ultimately unsustainable.
Urgent reform of bankruptcy law will form part of that agenda.
I also favour "opening-up" our electoral system through measures such as a Citizens Initiative, permitting voters to "write-in" options to the ballot-paper, and recall procedures for TDs.
Against the background of the failure of our justice system to adequately respond to recent wrong-doing, I will be promoting a revision of prosecution arrangements, including a revived private prosecution option.
O L D N O T E S
16 October 2008
Neary Confronts Some Critics
The top quartet of the Financial Regulator met the Oireachtas Joint Committee on Economic Regulatory Affairs on Tuesday morning, 14 October 2008.
Whether by design or otherwise, this was a timing which guaranteed minimal media coverage, as the greatest parliamentary set-piece of the year was only a few hours later.
You can judge for yourselves here (I warn you that there is quite a lot to peruse), but I (again) felt that Mr Neary did quite well, even though the politicians were not in much mood to listen.
As we hear from all over the world - not just from politicians - we again were told that the Regulator permitted the banks to lend too freely, which was a Bad Thing, and that a Brave New World was needed, in which customers could borrow more freely would be facilitated in a less restrictive way.
On a more serious note, I again failed to see any explanation of how it could be sound prudential regulation to permit the Irish banks to become nearly two-thirds invested in property (including residential mortgages).
However, as noted above, there is quite a lot to peruse, and I will be studying it further.
10 October 2008
What Brian Lenihan Will NOT Say on Tuesday
The following excerpt from the Minister for Finance's Budget speech has inexplicably been torn from the draft and "leaked" to Of Laws and Men.
At the outset of my speech, I referred to the fact that our overheads - the costs not directly related to output - have gotten out of proportion with the realities of our income position, both for the economy as a whole and for the public sector in particular. I have already outlined measures for dealing with this in the various departments of government and for encouraging adjustments in the private sector.
Sadly, I must say to you, my colleagues here in the Dail, that the extent of the mess that an-Iar-Thaoiseach agus a Thanaiste have left us, means that the cost of running this House must also be subject to scrutiny on the same basis.
In our system of government, the People are sovereign and they have enacted a Constitution to regulate our structures. Among the limitations they put on our power was an upper limit to the number of deputies, as well as a lower one. Governments of every stripe have succumbed to the temptation to stick as close as possible to the upper limit, with the result that there are now 166 of us when the Constitution only requires that there be 111. Moreover, we now have less power than when these limits were set, because of our enthusiasm for sharing sovereignty with our EU friends.
Not only that, but we are now prohibited from double-jobbing as local authority representatives.
It gets worse, I am afraid. As a practising lawyer, I know that while we have been increasing the quantity of our legislative output, this has not reflected additional effort because the quality of the output has been appalling. I regret to say that a number of episodes have confirmed that, despite our numbers, none of us managed to spot a number of gross errors in legislation as it passed through the House, with embarrassing consequences.
If the job of legislators is to legislate, the first requirement is that we be able to read what is presented for our approval and that we actually scrutinise it for errors and for other undesirable features, before we vote for it and not afterwards. (An Taoiseach has made a firm purpose of amendment in this regard).
The Government has come to the view that in order to raise standards of legislative review, a special increase in the real pay of TDS is appropriate, and an increase in their specialist support.
Fortunately, the greatest deflation in 80 years makes that task easier, so much so that the nominal reduction of 10% in your pay rates will seem more like a 10 % increase.
The resources available have shrunk by more, however, and in order to make a contribution to the cost-savings demanded elsewhere, with immediate effect, the Government propose to make 55 of us redundant. Additionally, the number of junior ministries is to be reduced to 10. The civil service teams allocated to handling ministers' political work will be re-organised into one central team serving all TDs with executive functions, with a saving in personnel expected to be in three figures.
In line with the greater discipline being expected elsewhere, the rules for use of Ministers' cars will be clarified and tightened. In brief, speed limits will be enforced strictly by tachometer, and use of state cars will not be permitted for personal or political travel.
23 June 2008
CURZON
My name is George Nathaniel Curzon,
I am a most superior person,
My cheek is pink, my hair is sleek,
I dine at Blenheim once a week
I have just finished re-reading Leonard Mosley's biography of Lord Curzon of Kedleston 1859-1925.Curzon was Britain's Foreign Secretary in the early 1920s, having previously been Viceroy of India c.1898-1905.The book was published in 1960, and I first read it about 10 years later. I found that I remembered almost nothing of it.
It is a very readable biography, but would probably be regarded as inadequate by modern practitioners of the genre. For one thing, it is rather short: less than 300 pages.Nonethless, a reasonably clear picture of what was a rather peculiar man emerges.
Some things that I found interesting were:
He lost his Indian position through lobbying by army sources, whose hostility to him had its origin in his insistence on harshly disciplining some soldiers involved in mistreatment of the native population. Perhaps this example continues to influence UK office-holders faced with outrages committed by the military
The accounts of Curzon's deviousness and back-stabbing in Cabinet intrigues would suggest that the Brits have little to learn from the rest of us in that area of activity. Quelle surprise !
Curzon's inability to delegate was amazing. Even as Foreign Secretary, he closely scrutinised every item of expenditure in his household accounts on a daily basis
He feuded with nearly every major politician of his generation
He believed that he should have been Prime Minister, and he very nearly was; the fact that he probably was border-line insane and an Earl were major handicaps, though
Curzon as Foreign Secretary resisted Greek attempts c.1922 to take advantage of Turkish weakness in the Levant, but was undermined by his own Prime Minister (Lloyd George) behind his back. It ended in disaster for the Greeks.
.
23/12/2007
Should Marriage be Privatised ?
.
(The inspiration for this post was a Dilbert article of which I learned from the ever-excellent Megan McArdle ).
"Marriage is a great institution, but I'm not ready for an institution yet" said Mae West.
That seems to be the attitude of many people of marriageable age these days - even those who are willing to commit to a long-term monogamous relationship producing children.On the other hand, there are those who are so anxious to live in the said institution that they are demanding that the law recognise a "right" to do so. One such same-sex pair await their appeal in the Irish Supreme Court, having lost their High Court bid to have the State grant them the same fiscal privileges as married people.
What is going on ?
The answer is too complicated for a short article like this. (Mind you, even if I filled a greater amount of space, I am not confident that it would add to the world's store of wisdom).
However, I can say that whatever is going on has been doing so for a long time, and gay couples are not the only ones who feel that marriage is an entitlement. Nor is it simply the lure of fiscal privileges.
As someone who reluctantly entered the institution at a time when (in Ireland) it was a life sentence, and who supported the introduction of divorce by vote, word and action, I have considerable difficulty in understanding this.
My reluctance to be married was based - or so I articulated to myself and others at the time - on a contempt for the corrupt institution that it had then become in Ireland. I do not know what adjective best describes it now. "Hollowed-out", possibly.
In the meantime, I notice that others are nibbling away at the issue. Steve Horwitz , one of the "Austrian" economists and Alex Tabarrok (he of the consistently useful Marginal Revolution website) both comment in provocative ways on an article in the New York Times by Stephanie Coontz, who has apparently written extensively on the history of marriage.
In Ireland, David Quinn of the Iona Institute seems to be main person writing for the Internet on this area.
His views are traditional, but I believe that he has stimulating ideas for everyone.
.
April 24, 2007
How Australian Authorities Respond to Potential Terrorists
From the ever-excellent Bruce Schneier:
Watch the video of how the Australian authorities react when someone -- dressed either as an American or Arab tourist -- films the Sydney Harbor Bridge and a nuclear reactor.
The synopsis: The Arab is intercepted within three minutes both times, while the U.S. tourist is given instructions on how to get inside the nuclear facility.
Moral for terrorists: dress like an American.
This is fairly typical of the contributions that regularly issue from this very articulate expert on an area of concern that makes so much difference to our lives today. I recommend that you keep in touch with his website regularly.
>The E-voting Fiasco: some of the forgotten culpritsPosted on Sunday, January 28, 2007 at 12:14PM by Fergus O'Rourke in Cork, Politics, e-voting
Like most fair-minded people, I am in favour of automating the voting process, provided that it can be done without compromising secrecy or security. So far, the Irish attempt has been a monumental fiasco.The buck stops with the Taoiseach, who has been amazingly silly about it, with Martin Cullen rightly getting most of the blame.
It is often forgotten, though, that the disaster really began on 18 December 2003 when an Oireachtas committee which had been doing some good work in evaluating the system, concluded its deliberations prematurely. This was almost certainly done at the behest of Messrs Ahern and Cullen, but there was some enthusiasm demonstrated by John Cregan T.D. in particular.
Prison for Debt ?
December 22 2006
Earlier this week, my ears were assailed by the sound of an excited media person declaring that Ireland is the only country in Europe which still imprisons people for debt.There followed an extract from an interview with one such prisoner, a single mother who was unable to repay her credit union debt. "I spent 16 days in prison and still owed the money" she told us.
Great story; pity about the facts.
No-one in Ireland goes to prison because they cannot pay a debt. The lady in question went to prison almost certainly because she failed to turn up in court. Had she done so, and satisfied the judge as to her poverty, she would not have ended up where she did. (Mind you, one wonders why, if this was the scenario, someone did not consider arresting her and bringing her to the court instead of to prison).
When she did not turn up, an order was made which addressed her implicit contempt of court. Or perhaps she did turn up and her behaviour was such that no implication was necessary. A third possibility is that, for some reason, her story of poverty was not believed - judges tend to be less credulous than reporters looking for a "good story".
Whatever the actual facts, the legal and practical position is that if she was only capable of paying 1 cent per week, and was willing to do that, she was on the right side of the law.
Sixteen days suggests something very fishy.
Strengthen the media laws, I say; let's be the first country in Europe to imprison a media person for the horrendous crime of polluting public discourse with misinformation.
(29 November 2006)
Today,"The Irish Times" joins the media consensus that the judiciary are failing to implement the legislature's wishes in regard to so-called mandatory sentences.
(Last week, on the other hand, a High Court refusal to extradite someone to the U.S. because conviction there would result in a mandatory sentence, and such sentences were in some way contrary to natural justice, met with tacit media approval.)
Maybe the judiciary do have something to answer for in regard to their response to some of the more vicious aspects of the criminal culure that have accompanied the rise of the "Celtic Tiger".
However, what is being suggested almost daily in the media is that the judiciary are defying the law, which would be outrageous if true. Of course, it is not true: even today's article records that the so-called "mandatory" sentences are not properly so-called at all.
What is really being criticised is the judges' exercise of the discretion given to them by the Oireachtas to allow a discount for e.g. an early guilty plea.
We need stronger media laws.
(15 Nov 2006)New Business Model for Advisors
The latest Doonesbury cartoon (in today's "Irish Times") looks very promising if one is able to charge by the hour.The cartoon to which I am referring is now here.It will be there tomorrow, too, and the next day
(03.11.2006)Why is that B-word so ugly ?
As the other regular reader (are you still there ?) of this Journal knows, the word "blog" does not appeal to me. "Blawg" manages to repel me more.
I have been asking myself why it is so unattractive. The provisional answer is that all words starting with "bl" tend to ugliness.
When I first started to learn French at my mother's knee, our conversation included reference to a character called Monsieur Blois. I never liked him, and it was all "down" (as the youngsters say) to his name. Blois -yuccgh ! (ATYS).
Other ugly "bl" words:
- blood
- blast
- blost (South Dublin version of "blast"
- blended (whiskey)
- blasphemy
- blame
- Blur (Oasis much better)
- blot
- bling (ATYS)
- blather ( there's a lot of that in blogs)
- blert (look it up)
- bled (except in Slovenia, apparently)
- blid (NZ version of blood)
- blare
- Blair
- blithering
- blitz
In the UK, it should have been realised for linguistic reasons that British Leyland was blighted (sorry) from the beginning. BL by itself is now a bad word.
In Ireland, junior counsel only have themselves to blame for their unpopularity: what else can we expect when we call ourselves BL (barrister-at-law) ?
There are exceptions, of course. "Blue" is the favourite colour of human beings, I was told by Prof. Dempsey in Applied Psychology last year (wasn't it ? Limerick won an All Ireland not long after).
Best exception of all is "blonde".
It seems that the blogosphere (ugh !) is not for changing its name, so maybe my best strategy is to try to fool my aesthetic sense into associating "blog" with "blonde". I am not optimistic: a Google search for "blogs and blondes" sent me (eventually) to the Fianna Fail website.
Bleeuch ! (ATYS)
Hubris to the power of "n": The U.S. seeks Lebensraum
The United States has asserted that its law governs outer space. I draw your attention to a remarkable story in The Transnational Law Blog.
(25.10.2006)Worst Value of the Week ?
The cost of a 24 year sentence:$70 million !
From LawyerCoach :
That's about what Former Enron CEO Jeff Skilling is paying his lawyer, David
Petrocelli, for legal fees over the last 5 years. According to BusinessWeek,
Skilling put $23 million in a trust for legal fees. Petrocelli then got an
additional $17 million from insurers for liability coverage. And Petrocelli's
law firm, O'Melveny & Myers, is billing an additional $30 million for the rest
of the team of 12 lawyers, 5 paralegals, and at least a dozen temporary
staffers.
A colleague has recently resumed the practice of criminal law after a lapse of
more than a decade. He was obviously paying more attention than I was !