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I Swear…

Legal practitioners easily forget how arcane it is to do what they do. When the time comes they recognise one thing; giving evidence is intimidating.

It is intimidating even if the advocate asking them questions is inept and persists in making mistakes of various kinds (it happens).

Those mistakes may arise out of ignorance of the law of evidence and/or the necessary procedures to conform to that law.

Normally, the evidence for the Plaintiff is presented to the court first. The reason for this is that the burden of proof lies on the Plaintiff; he/she it is who is making allegations about the Defendant. The case is about those allegations, nothing else; (except where there is a counterclaim).

When all the evidence (from witnesses or otherwise) of the Plaintiff has been presented to the court, the Defendant will call his/her witnesses to rebut that evidence of the Plaintiff. That is, this will happen assuming the Plaintiff has made out a prima facie case. A prima facie case is one which, in the absence of rebuttal evidence from the Defendant, will entitle the Plaintiff to a verdict.

When a party calls a witness to give evidence, the advocate for that party is not permitted to “lead” the witness. That means that the questions put to the witness should not suggest the answer. Such questions are called “leading questions”. As a rough (but mistaken) rule of thumb, if the answer to the question is “yes” or “no”, the question is a leading question.

In practice, some leading questions are permitted. They are very useful to introduce non-controversial facts about the witness, for instance.

The examination of a witness by the advocate calling that witness is called “examination in chief”. It is more difficult to do this than it is to “cross-examine”. What the advocate must avoid doing, is to give the evidence himself/herself. A leading question has this effect; it suggests to the witness the evidence he/she should give.

Consequently, some witnesses struggle to answer questions in examination in chief, because they are surprised by the circumspect character of the questions. They come to life during the “cross-examination”.

“Cross-examination” is the process whereby the advocate for a party asks questions of the witness called by the other party. That advocate is not restrained in the form of the questions asked; leading questions are permitted. (Cross-examination is not bullying; bullying is not permitted).

To say that an advocate may ask leading questions is not to suggest that that, or any advocate, is completely free in the questions asked. Only relevant evidence is admissible in a trial; irrelevant evidence is inadmissible, therefore questions about irrelevancies are not permitted.

It is the job of the opposing advocate to ask the judge to disallow such questions. (Unless it is thought better to leave the opponent to drown in those irrelevancies).

Furthermore, it is the job of the Defendant’s advocate to, in due course, in cross-examination, give the Plaintiff’s witnesses an opportunity to comment on the case which the Defendant’s witness or witnesses will say in relation to the matters testified to by the Plaintiff’s witnesses. (The penalty for the Defendant if this does not happen can be severe).

When cross examination is finished the advocate who called the witness has a chance to ask further questions of the witness, but only to address new matters arising from cross-examination and requiring clarification.

The trial will proceed in this fashion with each witness being called and asked questions, first in examination in chief, then in cross-examination and then, maybe, in re-examination. Then the next witness is called.

The reason why cross-examination is so prominent in the mind of a witness is that the major purpose of those questions is to undermine the evidence given by the witness. This is not to say that that process will be successful; often it is not. In fact, cross-examination may “free” the witness to address the evidence again and deliver it more cogently and persuasively than first time around.

Come into my parlour…

If a person suffers a personal injury while in the premises of another person, it is necessary to analyse the circumstances of the accident from the point of view of the law of negligence and also the Irish law on occupiers’ liability.

(If the injured person is an employee, it will be necessary also to consider what employer duties might have been broken, resulting in the injury).

The law on occupiers’ liability applies when the injury is caused by a defect or some condition of the premises. If the injury occurs without involving the premises, occupiers’ liability does not arise.

The greater part of the law on occupiers’ liability is now to be found in the Occupiers’ Liability Act 1995.

It is a highly technical piece of legislation.

Consider the definition of “premises”:

“premises” includes land, water and any fixed or moveable structures thereon and also includes vessels, vehicles, trains, aircraft and other means of transport;”

So, a motor car or a bicycle is a “premises”.

Or, consider what is a “recreational user”:

“recreational user” means an entrant who, with or without the occupier’s permission or at the occupier’s implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity…”

What for instance is the cost of providing car parking in a particular location? If a “recreational user” is alleged to be such, having paid a car parking charge, should the occupier prove that the charge was “reasonable” (relative to the “cost” of providing parking)?

(Why the reference to the “greater part of the law on occupiers’ liability” above?

Because of Section 8 of the Occupiers’ Liability Act 1995;

“8.—Nothing in this Act shall be construed as affecting any enactment or any rule of law relating to—

( a ) self-defence, the defence of others or the defence of property,

( b ) any liability imposed on an occupier as a member of a particular class of persons including the following classes of persons:

(i) persons by virtue of a contract for the hire of, or for the carriage for reward of persons or property in, any vessel, vehicle, train, aircraft or other means of transport;

(ii) persons by virtue of a contract of bailment; and

(iii) employers in respect of their duties towards their employees, or

( c ) any liability imposed on an occupier for a tort committed by another person in circumstances where the duty imposed on the occupier is of such a nature that its performance may not be delegated to another person.”

An Arresting Experience

The law relating to the arrest of suspects is complex.

Every arrest must be in accordance with law. Members of the Garda Síochána have extensive powers of arrest, but do not have a right to arrest on a whim, or for a wrongful purpose.

Members of the public have a power of arrest in some circumstances, but this post does not deal with that.

It is a criminal offence to resist a lawful arrest, but not an unlawful arrest. Some unlawful arrests are plainly that; more often than not they are seen to be unlawful with hindsight.

Therefore, as a practical matter, even if a person believes that his/her arrest is unlawful, it is wiser to submit and challenge the arrest and its consequences later. (See Section 18 (6) Non-Fatal Offences against the Person Act 1997).

The general purpose of an arrest is to charge the suspect with a crime and bring him/her before the courts.

In Ireland, there are exceptions to this. (Strictly, these exceptions should be thought of as “detention” rather than “arrest”).

Under Section 30 of the Offences against the State Act 1939 (as amended), a Garda may arrest a suspect (whom it is suspected has committed one or more of certain offences) and take him/her to a Garda Station for questioning.

Likewise, under Section 4 of the Criminal Justice Act 1984 and Section 2 of the Criminal Justice (Drug Trafficking) Act 1996 a Garda may arrest a suspect and take him/her to a Garda station.

These detentions are subject to rules and regulations. Commonly, suspects are released without charge after such detentions; but equally commonly the suspect is charged with an offence and brought before a court.

The charging document may be a charge sheet or it may be a summons. The charge sheet will be delivered to the suspect at the Garda station whereas the summons will be delivered later when it issues from the District court.

A person charged on a charge sheet needs bail; no bail is needed on a summons.

The Gardaí may give bail or the court may determine the bail when the accused appears there.

(This bail will be a personal bail; a promise to pay a sum of money if default in appearance in court occurs, or it may be that AND a similar promise from a third party). The Irish bail system is unlike the system in the USA.

Equally unlike the USA, in Ireland we do not have “the Perp Walk”.

Park Bye-laws?

The Courts Service has issued information on what it means to go to court as a witness.

Good luck to them.

It’s a pity they don’t seem to have done the same for parties to litigation.

Given that they are close to the persons who make up the Rules Committee of the Superior Courts, they will be unlikely, currently or in the future, to direct any criticism or complaint at the work of the Committee.

The Rules determine what the experience of going to court will be like.

The Committee, in effect, makes the Rules of the Superior Courts; the Minister for Justice, Equality and Law Reform has a nominal role but he, I venture, is busy elsewhere when the Rules get changed. (I could be wrong; perhaps it is a State secret, and the Committee does the bidding of the Minister).

In any event, the Courts Service will not be looking askance at any practice or procedure under the Rules.

The Committee is one example of bodies that, in effect, make and promulgate law. The Rules are published in the form of Statutory Instruments. Statutory Instruments are generally seen as “secondary legislation”. “Primary legislation” is to be found in the Acts of the Oireachtas. The Acts often make provision for detailed regulations to be made, “fleshing out” the bones of the particular Act. To be lawful the “regulations” must not go beyond the terms of the Act; they must express the “policies and purposes” of the Act.

The reason for this lies in the Constitution. Only the Oireachtas has the power to make law. Nevertheless, there are on occasion instances where “secondary legislation” is in fact “primary legislation”. Regulations made under the European Communities Act 1972 (as amended) have this status.

Most “secondary legislation” takes the form of a statutory instrument.

The European Communities Act 1972 aside, “ordinary” statutory instruments become law after, notionally, having been laid before the Houses of the Oireachtas.

This is an antiquated procedure to give the validity or endorsement of the Oireachtas to the instrument. Given the fact that the Executive dominates the Oireachtas with regard to primary legislation, the idea that the Oireachtas might even notice the statutory instrument being “laid” is a delusion.

Consequently, a vast body of law is promulgated every year and is open to challenge, in effect, only by Judicial Review proceedings in court.

FLAC has just issued a condemnation of the fact that, in Ireland, access to justice is denied many due to lack of resources. Free legal aid is available only to a limited number of people and for a limited number of issues.

Challenging the State in Judicial Review (particularly the Rules Committee of the Superior Courts) is definitely, practically, off that list of issues.

Shake, Rattle & Roll

Vibration would not be readily seen, by workers, as a danger to health in the workplace. It is, and the injury can be serious.

Many industrial machines transmit vibration to the body. Some, like vehicles, can transmit the vibration to the full body. Others affect a limb or part of a limb.

Sustained exposure to vibration can produce permanent damage. Nerves and blood vessels may degrade and the limb will lose sensation. “Whitefinger” is a term for this kind of damage.

If alleviated promptly the sensation may return to the limb. Without attention, the onset of gangrene is a possible end result, requiring amputation of the affected limb or part.

A typical location for vibration injury is the carpal tunnel in the hand. The median nerve and nine flexor tendons pass through the carpal bones. With damage, the nerve can be pinched and produce numbness, tingling, burning, clumsiness and pain in the hand.

If machinery has not been properly designed the expense of “retrofitting” to eliminate the vibration may dissuade the employer from its obligations to keep the worker safe.

is a common and infrequently recognised cause of injury. It is an avoidable result of using many industrial tools such as chain saws, grinding, sanding, hammering or polishing tools.

Retrofitting is not easy when the whole machine is the cause of the vibration.

In a study in 1960 of 371 tractor drivers, long periods of tractor driving over rough terrain was shown to cause stomach complaints and spinal disorders. There was a direct relationship between the severity of the complaints and the length of service of the drivers. Kidney damage was also indicated by the presence of blood in urine.

For specific statutory duties on vibration see Part 5 Chapter 2 of the Safety, Health and Welfare at Work (General Application) Regulations 2007

Gangs

I mentioned HERE the likelihood of CPD courses on the Criminal Justice (Surveillance) Bill 2009.

The Bill has been heavily marketed as a method of securing convictions for “organised crime”. This idea of organised crime (as an offence) is to be found in the Criminal Justice Act 2006. There have been no convictions under Section 72 of that Act, to date. It reads:

72.— (1) A person who, for the purpose of enhancing the ability of a criminal organisation to commit or facilitate—

(a) a serious offence in the State, or

(b) in a place outside the State, a serious offence under the law of that place where the act constituting the offence would, if done in the State, constitute a serious offence,

knowingly, by act—

(i) in a case to which paragraph (a) applies, whether done in or outside the State, and

(ii) in a case to which paragraph (b) applies, done in the State, on board an Irish ship or on an aircraft registered in the State,

participates in or contributes to any activity of the organisation is guilty of an offence.”

If nothing further were to be done it would be impossible to get a conviction under Section 72. The burden of proof under the Section would be formidable. The prosecutor, in terms of the Section, would have to prove;

A) The accused committed an act;

B) The accused “knowingly” so acted “for the purpose of enhancing the ability…”;

C) The act of the accused “participates in or contributes to…”

D) “any activity…” directed towards committing or facilitating…;

E) a “serious offence…”

In addition, the prosecutor would have to prove that all of this was connected with the activities of a “criminal organisation”. That’s defined as:

“ criminal organisation ” means a structured group, however organised, that—

(a) is composed of 3 or more persons acting in concert,

(b) is established over a period of time,

(c) has as its main purpose or main activity the commission or facilitation of one or more serious offences in order to obtain, directly or indirectly, a financial or other material benefit;”

The mind boggles at the difficulties this throws up, not to speak of the ironies to be unfolded from it. However, to make life easier for prosecutors Section 72 goes on in sub-section (2);

“(2) In proceedings for an offence under subsection (1) , it shall not be necessary for the prosecution to prove that—

(a) the criminal organisation concerned actually committed a serious offence in the State or a serious offence under the law of a place outside the State where the act constituting the offence would, if done in the State, constitute a serious offence, as the case may be,

(b) the participation or contribution of the person concerned actually enhanced the ability of the criminal organisation concerned to commit or facilitate the offence concerned, or

(c) the person concerned knew the specific nature of any offence that may have been committed or facilitated by the criminal organisation concerned.”

It is doubtful that this really helps the prosecutor, particularly where paragraph (c) of sub-section (2) implies the necessity of there having been the actual commission of an offence.

All of this is the context for the introduction of the Criminal Justice (Surveillance) Bill of which there will be more here in due course.

However, what springs to mind, as a contrast to all this, is RICO, one response to “organized crime”.

RICO has the merit of escaping (or not) from its authors’ intentions and is a flexible response to crime at every level of society.

Somehow, one doubts that Part 7 of the Criminal Justice Act 2006 or the Criminal Justice (Surveillance) Bill are directed to suppressing Irish criminal conspiracies per se.

In Ireland, (and the UK) the listener is required to know what is meant in addition to what is said. It is the intention that matters, not the statement.

What has been happening in Ireland, after all in the case of the McCracken, Moriarty, Mahon, and Morris Tribunals, but the investigation of criminal conspiracies?

Will we ever see Part 7 of the Criminal Justice Act 2006 or the Criminal Justice (Surveillance) Bill deployed against conspiracies like those?

Doubtful.

Firstly, place telescope to eye…

Why do some people respond to social problems by supporting provisions that deny, in effect, the existence of the problem (“right wing”) while others insist on the recognition and resolution, by society, of all problems (“left-wing”).

It is a mystery, but it is rare to find anybody at either end of the spectrum who is a purist. The person of right-wing views tends to be very concerned that the problems of property owners be never denied by society, while sheer fatigue will reduce the enthusiasm of the most radical of left-wingers.

The UK Civil Procedure Rules (“CPR”) contain the averment that their aim, above all, is to deliver justice.

That claim alone is, or should be, sufficient to put one on one’s guard.

Sure enough, see HERE for a complaint at length about the deficiencies of the CPR. It is impressive in its argument from statistics, coupled with direct condemnation of “front-loading” of costs. The latter is of particular interest for Ireland. Only very recently our Rules Committee of the Superior Courts introuduced exactly such a provision. See HERE for my complaint about that change.

Where do these fashions come from? I cannot say myself; what is depressing is the absence of any method of having them reversed easily.

More to the point, there is never established, a feed-back mechanism, to confirm that the change is beneficial.

In Ireland, we lean to the Right (“radical or redundant”) rather than the Left.

In short, we sweep problems under the carpet.

The Recording Business

My post on audio recordings in Garda custody is about establishing the grounds for the making of adverse inferences at trial, not about the procedure for interrogation in Garda custody.

Under Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007), it is open to a court to make an adverse inference (of guilt; what else?) arising from …the failure of an accused to mention… [“…any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be…]

Consider what this implies; it implies that, after the interrogation is over, the Gardai encounter the articulated defence of the accused and feel (presumably) that it is not credible, given the failure of the accused to refer to that defence during the interrogation. They can only ask the court to effectively, take the same view, if the conditions set out in Section 19A of the Criminal Justice Act 1984 (as inserted) are met. One of those conditions is that the interrogation is recorded electronically, or, with the permission in writing of the accused, recorded other than electronically.

Hence, to lay the ground for asking the court to make the adverse inference the Gardai must get the consent in writing of the suspect/accused to non-electronic recording where that form of recording is not available, or is not being used.

We are all Marxists (Groucho) now

“Continuous Professional Development” (CPD) is an idea with a banal element. It behooves everybody to stay on top of their job, and to express that in jargon is to suggest that the work of some people is beyond accountability; otherwise, why the need to nudge them to competence?

Of course we know the work of some people is beyond accountability, but that is for another day and another subject.

The Government’s new Bill on “Surveillance” is certainly a necessary topic for a CPD seminar, not least in that the Minister for Justice Equality and Law Reform, in announcing it to the media, laconically, but defiantly, remarked that it would cause upset in “human rights quarters” (or words to the same effect).

Now, to whom was he referring? We can only say with confidence that he was not referring to the Government: (the Bill is a collective product of Government, not the work of the Minister).

Implicitly he was referring to the judiciary. Each judge in Ireland is sworn (and has sworn) to defend, protect and vindicate human rights. The Minister has given clear warning that the Government’s Bill is calculated to injure, in some way, human rights in Ireland.

Keeping that in mind, it would be naïve to think that breaches of human rights under this Bill will be confined to some areas of County Limerick. No, we may expect the breaches, of which the Minister warns, to occur across the country.

So, the CPD seminar or seminars will have to cater to professionals in every county in the country. Bring it on.

Hopefully, the Government’s vandalism will run up against systemic opposition; senior Gardai are currently attending countrywide seminars on the application of human rights in policing. Perhaps the things they learn (but there will always be dunces) will permit them to do their jobs correctly and not as the latest political lifebelt dictates.

Filthy Capitalists!

If the risks of litigation were equivalent to the risks of betting on this year’s Aintree Grand National, with Mon Mome winning at 100/1 nobody would dream of going to court. Luckily, the risks are lower, or can be made to be lower.

Nevertheless, the risks are high, given the unavoidable costs. Those costs are particularly high in Ireland. We have a Criminal legal aid scheme which works reasonably well; we have a Legal Aid Board which directs funding, essentially, to Family Law litigants.

And that’s it.

Neither the Government nor the Rules Committee of the Superior Courts have ever shown the slightest interest in facilitating litigation. In fact, the Government has positively legislated to obstruct and undermine personal litigants (as opposed to corporate litigants) from vindicating attacks on their rights or entitlements.

In the UK, if lawyers agree to work for a litigant, conditional on winning to get paid, they are, in law, entitled to get paid a premium on their fees for taking the chance of not getting paid. These agreements are known as Conditional Fee Agreements. In Ireland, such an agreement would be probably illegal and would possibly result in a failure to recover any fees for the lawyer party to the agreement.

Again, in Ireland, the torts of maintenance and champerty are still alive and kicking. Consequently, we are falling further and further behind the UK in many issues relating to legal profession and the practice of law.

See HERE for news from the UK of the timely development of investment opportunities in litigation.

Litigation, whether personal or corporate, is so expensive it behooves a litigant to take whatever steps are available to offset the risks. In the UK, that is now possible.

We, with our Government, will wait a long time for progressive social-minded policies in this area.

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