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Institutions

We have the Ryan report to consider; there is a lot to consider.

What are we to make of the judges of that era? (Strictly the era has not ended; the Ryan Commission had a time period to consider, that period only has ended).

A handy, if not good, place to begin on this, is with Jeremy Bentham.

Bentham said, of “the right to silence”;

If all the criminals of every class, had assembled and framed a system after their own wishes, is not this rule the very first which they would have established for their security? Innocence never takes advantage of it; innocence claims the right of speaking, as guilt invokes the privilege of silence.”

As a matter of fact he was wrong in saying that “innocence never takes advantage of it”, otherwise the practice and procedure of criminal trials in his day would have demonstrated case after case of defendants proving themselves to be innocent, something that did not happen.

He was wrong also to imply that invocation of the “privilege of silence” was a sign of guilt. Determination of guilt was and is the precise purpose of a trial. His opinion implied that the burden of proof should rest on the accused, something civilised nations currently do not admit as reasonable.

In reality, Bentham was on the comfortable side of a power relationship.

He was not the first and will not be the last such person.

Crimes are prosecuted because it suits the person in power to launch the prosecution. Whether that is a proper action depends on the circumstances of the prosecutor as much as the circumstances of the accused.

What, for instance, of Ireland’s political and administrative leaders during the years of the Bush administration in the USA?

(Actually, let us confine the inquiry to the period after the passing of the International Criminal Court Act 2006).

Under Section 8 of the Act of 2006:

Any person who does any act specified in paragraph 3 of Article 25 (crimes ancillary to genocide, crimes against humanity and war crimes) is guilty of an offence (in this Act referred to as an “ancillary offence”)”

Under Article 25 (3) (c) it is an offence for a person who;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

“War crimes” are defined in Article 8 and include;

Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;”

That is exactly what George W. Bush and Donald Rumsfeld did to the prisoners of Guantanamo, as was generally known.

Furthermore, they used Shannon airport to facilitate the transport of some of those prisoners to Guantanamo;

When will we have an investigation of the complicity (or ignorance, if such be the case) of our politicians, particularly our Ministers for Justice etc. during those years, in relation to those matters?

Judges’ Wigs

This blog has previously referred to the wearing of wigs by barristers. Until fairly recently the wearing of a wig by a barrister was compulsory under the Rules of the Superior Courts. (The Rules are law [well, a kind of law] and are made by the Rules Committee. Its membership is chosen, it would appear, to be representative of some of the various “interests” in the legal system).

Currently, it is obligatory on judges of the superior courts to likewise wear wigs.

As an issue this is simply not open to debate. The wearing of wigs is required because that’s the way it is.

Situations like this can be explained, but not by seeking opinions to explain the reasons for the situation. Instead we have to look to psychology.

The real purpose is to assert wordlessly, the finality of rational adjudication from the judge. That is, it is intended to define rationality by reference to the wig; rationality emanates from the wig. Without it, there is doubt and possibly confusion.

In 1973 David Rosenhan and some colleagues demonstrated that “sane” and “insane” were social constructs.

Likewise, in the field of law, the “plaintiff”, the “defendant” and the “judge” are social constructs.

This very dangerous [from one point of view] for the judge.

Leo Tolstoy has remarked:

The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of doubt, what is laid before him.”

There must, in short, be mechanisms to cut short the revelation of alternative, including superior, expositions of reality.

The judicial wig is one of those mechanisms.

Holiday Time

Many people, unlike this writer, keep a pet of some kind.

Holidays are problematic; do you take the pet with you?

What about your prostitute? Do you take her?

In the U.S. it is a crime to transport prostitutes, in certain circumstances, across State lines.

This law has obvious opportunity to cause a lot of unhappiness; it interferes with the natural ease with which a prostitute might have HER holidays.

In MORTENSEN v. U. S., 322 U.S. 369 (1944) the US Sepreme Court reversed the convictions by a jury, (affirmed on appeal) of Mr. and Mrs. Mortensen exactly on this principle.

The Court recited:

Petitioners were charged in two counts with violating Section 2 of the Mann Act in that they transported and caused to be transported, and aided and assisted in obtaining transportation for and in transporting, two girls in interstate commerce from Salt Lake City to Grand Island for the purpose of prostitution and debauchery, and with intent to induce, entice and compel the girls to give themselves up to debauchery and to engage in immoral practices.”

(It is amusing to reflect that J. Edgar Hoover was the principal person charged with implementing this law.)

The Court further recited:

The petitioners, man and wife, operated a house of prostitution in Grand Island, Nebraska. In 1940 they planned an automobile trip to Salt Lake City, Utah, in order to visit Mrs. Mortensen’s parents. Two girls who were employed by petitioners as prostitutes asked to be taken along for a vacation and the Mortensens agreed to their request. They motored to Yellowstone National Park and then on to Salt Lake City, where they all stayed at a tourist camp for four or five days. They visited Mrs. Mortensen’s parents and, in addition, the girls ‘went to shows and around in the parks’ and saw various other parts of the city. The four then returned in petitioners’ automobile to Grand Island; on arrival they drove immediately to petitioners’ house of ill fame and retired to their respective rooms. The following day one of the girls resumed her activities as a prostitute in petitioners’ employ, while the other did not resume such activities for a week or ten days because of illness. Both girls continued to act as prostitutes for petitioners for a year or more after their return from Salt Lake City.”

The prosecutor did not contend that the trip to Yellowstone etc. had been a crime; it was the return trip that was in issue.

The Court found: – “The sole purpose of the journey from beginning to end was to provide innocent recreation and a holiday for petitioners and the two girls.”

The Court noted the absence of any evidence directed to the purpose of the return and cited a statement from another case:

‘People not of good moral character, like others, travel from place to place and change their residence. But to say that because they indulge in illegal or immoral acts, they travel for that purpose, is to emphasize that which is incidental and ignore what is of primary significance.’

Pack your sun cream girls!

The Allegories of the Nile

Occasionally this blog contains a misspelling. I have, for instance, misspelled “Brian Cowen” as “Brian Cowan”.

Nobody was misled; indeed, I was corrected by a reader.

There is, however, a human type that is radically intolerant of the mistakes of others. Alternatively, that type is inflexible in thought. Alternatively, these are human traits which some people have and others do not; and some people have both traits.

The result is that when a solicitor composes a letter for his/her client and writes;

Pursuant to Clause 7(13) of the Lease we as Tenant hereby give notice to you to determine the lease on 12 January 1995. . .”

the solicitor is fixed (not any more) with the serious consequences of failing to exercise a break clause for the Tenant.

If the solicitor had written:

Pursuant to Clause 7(13) of the Lease we as Tenant hereby give notice to you to determine the lease on the third anniversary thereof. . .”

there would have been no error. The third anniversary of the lease in question fell on 13th January 1995 and not 12th January 1995.

This was the issue in Mannai Investment Co Ltd v. Eagle Star Assurance [1997] UKHL

Lord Hoffman referred to Mrs. Malaprop’s line (in the play “The Rivals) “She is as obstinate as an allegory on the banks of the Nile”, to explain why the law should change on the interpretation of such notices. Most people understand what Mrs. Malaprop says; indeed they also understand that her mistake is a joke and is intended by the playwright (Richard Brinsley Sheridan). (For the sake of the joke, the playwright conflated crocodiles with alligators, there being no alligators on the banks of the Nile).

The judge went on to say;

Mrs. Malaprop’s problem was an imperfect understanding of the conventional meanings of English words. But the reason for the mistake does not really matter. We use the same process of adjustment when people have made mistakes about names or descriptions or days or times because they have forgotten or become mixed up. If one meets an acquaintance and he says “And how is Mary?” it may be obvious that he is referring to one’s wife, even if she is in fact called Jane. One may even, to avoid embarrassment, answer “Very well, thank you” without drawing attention to his mistake. The message has been unambiguously received and understood.”

Lord Hoffman, with the majority, allowed the Tenant’s appeal.

The mistake of the Tenant or its agent was to fail to calculate when the third anniversary fell. Indeed, as a practical matter the mistake was to calculate it at all, as can be seen from the suggested form of the notice shown above.

As Lord Hoffman pointed out, nobody was misled.

Mature Recollection

It is a surprising thing to encounter a witness who, in all honesty, believes that the evidence they are giving or proposing to give is the truth, when it is far from it.

After the battle of Salamanca in the Peninsular war the Prince Regent was so enthused with Wellington’s victory there that he came to believe that he had been present. To accommodate the fact that nobody could corroborate this remarkable claim he suggested that he had been disguised as Major-General von Bock, who not only was there, but had led the charge of the King’s German Legion.

Apropos Daniels, again

This blog is settled in the view that the current fashion of requiring minimal discovery of records/documentation in the course of litigation is mistaken.

That aside, there is a problem in the handling of documentation, in the conduct of litigation. After all, what does one do with the material discovered?

Well, litigation, like chess, is about the endgame.

If a piece of paper, or other record, has come to light and it conclusively supports, or rebuts, the contentions of a party, it is essential that it should be introduced to the judge as evidence.

So, too, should documentation that, while no element of it is decisive, shows a pattern of behaviour, or system, more consistent with the contentions of one party rather than the other.

How is paper introduced as evidence? By proving it.

Some unusual bits of paper prove themselves (Ordnance survey maps, for instance). All other bits must be proved particularly.

This requirement tends to make a bottlekneck for paper in the course of trial.

That’s the way it should be.

The alternative is bad. The alternative consists of the witness (or counsel) handing in a box or boxes of paper to the judge, with some claim that it is relevant, whereupon most, if not all, will not be referred to again during the course of the trial.

Assume then that the judge indicates his/her intention to give a reserved judgment. Assume also that the judge reads all the papers handed in. Assume also that the judge adopts a bad habit of doing his/her own research and finds some case or cases not mentioned by either party in the course of the trial.

The predictable outcome will be a judgment invoking law and principles of law not mentioned in the trial and referring to paper upon which the witnesses or most of them will have had no opportunity to make comment.

This, to put it at its lowest, is undesirable.

This is the problem inherent in the modern notion of “judicial case management”. There is a limit to the hands-on role a judge may adopt. Otherwise why not simply write to the court, submitting one’s case in writing and asking for a favourable judgment? Does the judge not know the law? Can the judge not read?

Well the judge does and the judge can, but that is not sufficient.

Litigants are not satisfied with a formal process; they want justice.

Daniels come to judgment

Like Ben Dunne, we may go to Florida to come home. Like Ben, we may encounter the chickens as they, too, come home.

Who knows what might be found in Florida?

We might find instances of strange judicial behaviour more extreme than the current Irish systemic effort to suppress paper and other records helpful in litigation, or the effort to front-load the costs of litigation.

Take Judge Peel as an example. He was the municipal judge in West Palm Beach in 1955 and had been so for four years. The Judge, however, had a problem; he was in the numbers racket, among other things, and being a judge was his edge over his rivals. He knew when the police were attempting to close the gambling operations because he signed the search warrants.

Besides being a judge, he was practicing law. One of his clients was unhappy; she was pregnant by her partner to whom she was married; unfortunately she was still married to her previous partner. Judge Peel had failed to complete her divorce.

For this Judge Peel was answerable to Judge Chillingworth. Judge Chillingworth was not in the numbers racket; he was in land speculation and had made a considerable sum of money doing that. He was going to retire shortly. However, he took a dim view of failing to complete clients’ divorces and had previously warned Judge Peel about that kind of easy going, laid-back approach to the practice of law. In short, Judge Chillingworth was likely to dis-bar Judge Peel from the practice of law (and from judicial office).

So Judge Peel arranged the murder of Judge Chillingworth (and Mrs. Chillingworth).

Read about it HERE.

Here in Ireland, suppression of documentation or other records and the front loading of costs in litigation hampers Plaintiffs and inhibits them in the conduct of the litigation.

There is a more or less clear line between the kinds of people who are Plaintiffs and the kinds of people who are Defendants. To disadvantage one class is to favour the other class.

Who knows what to think or say to this, to do the situation justice?

One is reminded of Ace and Roy, the (estate agent) employers of Jerry Kennedy’s wife, in the fictional works “Kennedy for the Defence” and “Penance for Jerry Kennedy” by George V. Higgins.

We learned little about them, but their single-minded pursuit of money suggested things were not as they should be; and Mrs. Kennedy was complicit in it.

A Money Furnace

The government seems to have a furnace somewhere to dispose of old banknotes, such is their fondness, to the point of habit, for burning public funds.

Why else does the taxpayer have to pay for a contaminated pork recall?

After all, we know with reasonable, if not perfect, certainty where the contaminated pork originated.

We appear to know that the output of that factory accounted for 10% of Irish pork in the retail market. That, in the judgment of the Government, justified the recall.

Why is the taxpayer the unwitting insurer of the farmers, the factory, the processors and the retailers?

Was the recall not, again, an incident of a market loss? Is there some large Irish Insurer whose policies cover this loss and whose business cannot be allowed to fail for unknown reasons?

Is there a peculiar and particular meaning to the phrase “a perfect market”, in Ireland?

Ooops!

The law in Ireland and the law in England and Wales appears to be re-converging on the point (if, in fact, there ever was a divergence) that the existence of a contractual relationship is not incompatible with a duty in tort to avoid inflicting economic loss on someone.

Almost as a matter of course when the phrase “economic loss” appears, it will be with reference to matters pertaining to a building contract.

That was the case in Tesco Stores Ltd, v. Costain Construction Ltd. & Ors. [2003] EWHC

The judge in Tesco stated his finding as follows:

… I find that Costain assumed a duty of care to Tesco to carry out the work which it itself, rather than any sub-contractor, in fact did pursuant to that agreement with the care and skill to be expected of a reasonably competent building contractor. That work potentially included both physical work of construction and the making of decisions as to design, in the sense explained by May LJ in the passage which I have cited from his judgment in the second Bellefield case. I find that that duty did extend to not causing economic loss, for the reasons which I have endeavoured to set out.”

The liability of a builder/designer is contingent on the contract not having excluded a liability for negligence and the remedy for that is to read the terms of any contract to ensure no such liability is excluded.

Of course there are other difficulties for aggrieved property owners as was seen in Irish Equine Foundation Ltd. v. Robinson [1999] IEHC.

Here, the court decided, as a preliminary issue, that the Plaintiff’s claim was statute barred under the Statute of Limitations 1957.

The lesson is this; when the builders leave, carefully examine the work, time is running!

Defeated already

The Government has sent out Mr. Batt O’Keefe TD, Minister for Education etc. to explain what the Government has decided to do about the criminal organisations named in the Ryan report.

Having heard him, one is reminded of what Antoine de Saint-Exupery said of his like;

Commonly, people believe that defeat is characterized by a general bustle and a feverish rush. Bustle and rush are the signs of victory, not of defeat. Victory is a thing of action. It is a house in the act of being built. Every participant in victory sweats and puffs, carrying the stones for the building of the house. But defeat is a thing of weariness, of incoherence, of boredom. And above all of futility.”

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