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Accused “X”, may I introduce you to your solicitor?

I have adverted HERE to the provisions of Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007).

Section 19A is one of the Sections in Part 4 of the Criminal Justice Act 2007. Part 4 has had a predecessor (so to speak) in the United Kingdom in Section 34 of the Criminal Justice and Public Order Act 1994.

That section has caused a lot of difficulty in the UK courts.

The UK Court of Appeal in R. v Bresa [2005], stated:

As we made clear in our discussion of the authorities at the commencement of this judgment, Section 34 is a very difficult area. In our view however the criticisms that can be made of this direction are soundly based. The question that remains is whether, having regard to the misdirection, we could conclude that the conviction was safe. There was a very powerful case against the appellant and without an explanation from the solicitor as to the basis on which the appellant was being advised not to comment, there is a powerful case for saying that the jury could be sure that the appellant did not mention self-defence in his interview because he had not at that stage thought of that as his defence. But we cannot be sure what part the direction on Section 34 played in the jury’s decision making. It was a significant aspect of the summing up and for that reason it seems to us that we could not conclude that this conviction was safe.”

What the Court of Appeal were considering was the direction the judge had given to the jury in the “Bresa” case.

They summarised the terms of the direction that the judge was required to give to the jury:

The latest JSB guideline direction, which appears at Archbold 2004 Ed at para 15-427, has taken account of the above authorities and that supports the view that among the key features of a direction under Section 34 are the following. First there needs to be the striking of a fair balance between telling the jury of a defendant’s rights [to remain silent or not to disclose advice], and telling the jury that the defendant has a choice not to rely on those rights. Second there needs to be an accurate identification of the facts which it is alleged a defendant might reasonably have mentioned. Third there needs to be a warning that there must be a case to answer and the jury cannot convict on inference alone. Fourth there must be a direction to the effect that the key question is whether the jury can be sure that the accused remains silent not because of any advice but because he had no satisfactory explanation to give.”

In the UK, the accused is entitled to have his solicitor present with him during his interview with the police. This is not the case in Ireland.

In Ireland, under Seb-section 3 (b) of Section 19A, the Section only applies if the accused was given a reasonable opportunity to consult his solicitor.

Consider what a solicitor might say to an accused; the solicitor is very likely not acquainted with the accused [hence the title to this post}. The solicitor will need time to take full instructions and analyse the facts; in these circumstances the best advice is to advise him to say nothing.

If that is the advice given to the accused, what possible adverse inferences can be drawn if the accused fails to mention a fact he later relies on for his defence?

It should be remembered that the Gardaí will have cautioned the suspect that;

you are not obliged to say anything, but anything you do say will be taken down and may be used in evidence against you”.

It should be further remembered that the advice a solicitor gives to his/her client is privileged; the client is not obliged to divulge what advice he got from his solicitor.

So, the accused is in a position where i) he is not obliged to say anything; ii) his solicitor’s advice is secret (privileged); and iii) he is menaced with an adverse inference if he remains silent.

May I Not Record You?

The question in the title to this post is very likely a common question to be put to suspects by Gardai.

The reason is found, firstly, in the terms of Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007) and secondly, in the fact that, here in Ireland, not many Garda stations are equipped for electronic monitoring of questioning of suspects.

Under Section 19A an adverse inference may be drawn from the failure of an accused to mention a fact, later relied upon by him in his defence, while he is being questioned etc., by the Gardai.

Section 19A contains the following sub-section:

(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.”

Section 19A only applies if the person is charged with “an arrestable offence”.

“an arrestable offence” was defined in the Criminal Law Act 1997 as:

“arrestable offence” means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence;”

To put that in context, Section 4 (6) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 provides:

(6) A person guilty of theft is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.”

Few people charged with theft are sentenced to ten years in prison, but they might be, and that is sufficient to make theft “an arrestable offence”.

Consequently, while being questioned about the theft of groceries in a supermarket, say, the Garda Síochána, in preparation for any subsequent trial, knowing that the questioning will not be recorded electronically, are very likely to say,

…sign here, to say you don’t mind us not recording you”.

UK Discovery

Here in Ireland we have invented a peculiar process (in Statutory Instrument 233 of 1999) to assist parties to litigation to have justice in their case.

Firstly, on principle, we conditionally deny them access to the relevant documentary evidence in the possession of the other party.

They can have that access on this condition; they must justify the request for access.

Clearly, “relevance” is not an admissible justification, otherwise the request would be;

Please discover relevant documents to the Plaintiff”.

In England and Wales, by contrast, that, in effect, is the request (under Civil Procedure Rule 31.5). Furthermore, although the concept of limiting discovery is admitted, it is the person of whom discovery is required who must justify any claimed limitation.

CPR defines “Standard Disclosure”:

Standard disclosure requires a party to disclose only –

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.”

In Ireland, it is the person making the request who must justify it. In principle, that would be fine, if the process was not emptied of intellectual content by requiring that person to justify the request, not by relevance (that, bizarrely, is assumed) but by necessity.

Necessity implies that the case will be lost if the documents are not discovered. That is an extreme case or position. It could happen, but if it did only the party holding the document (undiscovered) would ever know it.

To know of a document to the extent of needing it, is to know it intimately. Only the party holding the document can be intimate with the document.

In short, to show necessity is an unattainable standard.

It is high time we went back to 1998.

Picturegate Redux

“Those who cannot remember the past are condemned to repeat it.”

In the early ‘70s approximately, there was a public house not far from the Four Courts in Dublin.

To liven up the place a cabaret was commissioned for the patrons.

It was, reputedly, a great success. Its reputation spread even to the respectable people.

They sent their agents to investigate its popularity.

What they found was shocking; sufficient for them to launch an assault on the stage, grab the performers and stop them in their tracks.

The performance at that moment, as the evidence in the subsequent prosecution (a prosecution alleging public indecency or some such idea) showed, involved an almost naked man (and a woman whose state of dress or undress I cannot recall).

The detective told the court that the performer had covered his nakedness by means of a bowler hat.

However, when he managed to remove his hands from the bowler hat AND IT REMAINED IN PLACE WITHOUT VISIBLE MEANS OF SUPPORT, the forces of the law pounced.

The defending barrister (he is still practicing) undertook the cross-examination of a lifetime, demonstrating that the “indecency” was a private experience particular to the detective.

Being from Offaly, Brian Cowen may not know of this case, but he should, because it is a warning from history, and a harbinger of what is to come.

At least one of his Fianna Fail colleagues believes that his pictures show him in his toilet. But is this true? Perhaps the toilet is a public toilet? Perhaps the proofs, in the potential prosecution of the artist of the pictures, will include an obligation on the prosecution to lead evidence of their knowledge of his use of public toilets, (and his own), and distinguish those two uses.

Who is the appropriate police officer to give this evidence?

Surely someone from his home town? It would be important that that person could correctly disavow any earlier knowledge of these matters, beyond what is generally known in Offaly of his habits.

Who in Offaly can corroborate this and speak, not to the particular, but to the general knowledge of Offalians of Brian Cowen’s doings in the county.

Start the search now, assuming Brian Cowen is not available himself.

The Picture of Brian Cowen

One can imagine Mr. Cowen’s feelings when he learned of the hanging of two pictures of him in public, in which pictures he was shown, by implication only, as naked; firstly, possibly in the loo and secondly, holding his underpants.

The pictures were to some degree, caricatures.

It is a defamation to lower someone in the eyes of right thinking members of society. If the defamation is a picture it is a libel. A libel is the making of statements in permanent form that disparage the plaintiff or tend to bring him into ridicule or contempt.

For a small review of Irish law on defamation see this earlier post HERE.

Mr. Cowen is not a normal person; he is the Taoiseach. As such, he must accept that he is open to comment and attack more than a private person. In short, attacks on him have the benefit of qualified privilege where such attacks, directed towards private persons, would not have that privilege.

What do the pictures say of him?

Possibly the following;

He is a human being;

He is a failure as a politician (he is without cover and “is in the toilet”)

He is not handsome;

He is unashamed of his failings/disadvantages:

These are mild statements to be made of a Taoiseach. They were made before, as appears to be the case, he procured the confiscation of the pictures by the police, including other pictures made by the same artist with a view to prosecuting the artist on public decency (or indecency) grounds.

Now to say that of the Taoiseach is a serious charge. But it is warranted, given the events. In the light of that, the implied comments of the pictures are mild.

Papers, please

Litigation is a contest and the contest is conducted according to rules. The express purpose of the contest is to do justice between the parties; therefore a rule which hinders that purpose must be dispensed with. It is the job of the judiciary to ensure that the rules achieve the purpose and not simply to ensure compliance with rules.

Unfortunately, in Ireland, one, at least, of the Rules of the Superior Courts hinders the doing of justice. That rule currently governs the making of “discovery” in proceedings. The rule is set out in Statutory Instrument 233 of 1999, and is the subject of a previous post in this blog HERE.

Discovery involves the obligation of a party to set out in affidavit what documents that party has, or had, in its power, possession or procurement, relevant to the issues in the action. Relevant documents are documents which help the case of the opponent or, alternatively, the party making the discovery. So, a document may be relevant in one or two ways; it may prove what is asserted by one party or disprove what is asserted by one party (or do both).

When the affidavit of discovery is sworn and delivered, the recipient may request inspection of the documents and seek copies.

Normally, discovery is not ordered (if it is ordered), until the pleadings have been exchanged. The pleadings will have formally defined the issues in the action. This is important; the lawyers for the parties have no difficulty, usually, in perceiving the issues in the case after the pleadings are closed. Before the pleadings are exchanged, only speculation might show what the issues are and speculation is not a good basis for making judgments as to the relevance of documents, say.

Each party is very familiar, usually, with the documents it has, or had, in its power, possession or procurement. Conversely, the parties are far from familiar with the documents the opponent has or had in its power, possession or procurement.

Before 1999, when a court ordered the making of discovery, it was relatively easy for the party, ordered to make discovery, to decide what documents should be discovered. By that stage the pleadings had been exchanged; the issues were defined and the documents were familiar to the party.

Since 1999, the burden of deciding what documents should be discovered has now shifted to the opponent, to the person seeking the discovery. The problem is, that party is unfamiliar with the documents its opponent has, or had, in its power, possession or procurement. The makers of the rule in Statutory Instrument 233 of 1999 elided this difficulty, by equating an assumed knowledge of classes of documents with knowledge of the documents themselves. The party seeking discovery must specify the documents it wants discovered by reference to classes of documents, and justify this request by relating the class to the issues in the action.

The consequence of this is a mess. “Classes of documents” is an abstraction. It is next to impossible, in most cases, to justify a request for discovery by reference to some general description of documents. More importantly, it conceals another departure from the previous practice and procedure on discovery; relevance as a standard has been abandoned.

The new standard is knowledge or lucky guesswork.

Knowledge of the opponent’s documents is rare and nothing is then left but guesswork. Consequently, requests for discovery are easily dismissed and denigrated for what they are – guesswork.

Prove It

Courts act on evidence. If a party lacks evidence to support his/her propositions or allegations, his/her case will fail.

Evidence can take many forms. The commonest form, indeed, arguably, the only form, is oral evidence.

The general sense in lay people (non-lawyers) that something more than an oral account is needed to prove a fact, expresses anxiety about the frailty of the oral account.

That general sense is, often, a hankering for corroboration, as in “…yes, I took the bus home that day, here is the ticket showing the date, the time and the route number”. Here the proof is not the ticket, it is the statement, “I took the bus home…”.

Bus tickets are usually without problems, but photographs and video or other digital media are not. Even before the arrival of digital cameras, photographic images were capable of being manipulated in the darkroom. With digital media the problem is acute.

The visual record must be proved and evidence must be, generally, available to eliminate the possibility that the record has been tampered with.

That aside, visual records are treated as “real evidence”. A typical item of real evidence would be a defective consumer good, a television, say, or a motor car. The item is, in theory, available for inspection by the court. Oddly, the court is likely to prefer a report on a motor car and/or a television, whereas the court is likely to prefer its own inspection of a visual record over a gloss or explanation from an expert as to what the visual record shows.

Because of the requirement that the integrity of the visual record be proved, it may be possible to exclude a visual record where that integrity is not secured.

This may be the wisest course; visual records are not always as easily understood as people, including judges, think. Take the common case of X-ray films. It takes a great deal of experience and talent to “read” an X-ray. That is evident to most people, but the interpretative faculty for reading an X-ray is simply one instance of that faculty for “reading” visual records. If the integrity of the visual record cannot be proved, who exactly is to hand who can prove what is recorded in the image?

Time Wasters

In Cosgrave v Ryan & Anor. IESC [2008] Goeghegan J. remarked on the fact that the plaintiff’s action, in the High Court, had lasted four days. This happened despite the fact that the ultimate defendant, the Electricity Supply Board, offered no witness evidence from its employees.

The High Court judge, (whose judgment was reversed in the Supreme Court) had acceded to the defendant’s proposition that the plaintiff had failed to prove negligence by the defendant.

The plaintiff, an agricultural contractor, had been injured when an agricultural machine he was driving, in a field, came in contact with power lines owned by the defendant.

The machine was 13 feet high at its maximum. The fact that the accident happened implied therefore that the power lines were at that height at least.

Despite this, the defendant (as recounted by the Supreme Court) spent a considerable time in its cross-examination of the plaintiff and his witnesses in advancing various theories to explain the accident.

The one which appealed to the High Court judge was one which the defendant had not actually “put” to the plaintiff; the defendant advanced it late in the hearing.

As the Supreme Court remarked:

There is, of course, no law which requires a defendant to give any evidence at all, to say nothing of any particular evidence. But if a plaintiff puts forward a prima facie case which has not been answered he is usually entitled to succeed.”

This writer has advanced his own opinion above that “the fact that the accident happened implied the power lines were at a height of [13 feet] at most”.

And why not? According to the Supreme Court, it appeared counsel for the defendant had done as much himself (but with a different explanation)

As the Court remarked:

The most interesting feature of these six criticisms is one to which I have already briefly adverted. They do not include the suggestion which afterwards featured heavily in the cross-examination of the appellant’s engineer that even assuming the machine was thirteen feet high and the wires were not lower than fifteen feet the machine at the time of the accident might have been driven on a hilly bit of ground with the effect that the chute reached a height of fifteen feet. I draw the inference and I think I can legitimately draw the inference from that, that whatever investigation was done by the ESB (if any) prior to the trial of the action did not include this explanation and that this was a suggestion thought up by counsel either on his own or more likely after consultation with the outside engineer called on behalf of the ESB. I will, of course, be returning to this subject when covering the cross-examination of the engineer called on behalf of the appellant and the examination and cross-examination of the engineer called on behalf of the ESB. In the meantime, I intend to comment in turn on each of the six above listed theories or suggestions put to the appellant in cross-examination.”

In summation the Supreme Court made this remark:

Most of the suggestions put in cross-examination to the plaintiff as to what he should have done were farfetched and wholly unreal as I have already indicated.”

Bait and Switch

Irish consumers have had a right, since 1st May 2007 (the date of the coming into force of the Consumer Protection Act 2007) to sue (for example), a tour operator, or an airline which “overbooks”, not only for breach of contract, but, under Section 74 of the Consumer Protection Act 2007, in tort;

74.- …(2) A consumer who is aggrieved by a prohibited act or practice shall have a right of action for relief by way of damages, including exemplary damages, against the following:

(a) any trader who commits or engages in the prohibited act or practice;

(b) if such trader is a body corporate, any director, manager, secretary or other officer of the trader, or a person who purported to act in any such capacity, who authorised or consented to the doing of the act or the engaging in of the practice.”

“Overbooking” involves the sale of more “product” than a trader can supply (usually on the principle that some consumers will cancel). The Consumer Protection Act 2007 describes the practice in Section 55 (1) (l):

making an invitation to purchase a product without disclosing the existence of any reasonable grounds the trader may have for believing that the trader will not be able to supply, or procure another trader to supply, the product or an equivalent product at the price specified in the invitation, or to do so for a reasonable period of time or in reasonable quantities, having regard to the scale of any marketing or advertising of the product and the price specified (bait advertising);”

Of course, the dispute may eventually turn on whether “an equivalent product” was offered and, if accepted, supplied, but that factual dispute should be readily settled by the experience of the consumer; the consumer need only prove by comparison the discrepancy between the description of what was offered and the description of what was delivered.

A not insignificant element of the right to sue under Section 74 is that the right is not constrained by any arbitration clause in the contract with the consumer. In short, the right to issue proceedings is not precluded by the terms of Section 5 of the Arbitration Act 1980.

O’Leary’s Benefaction

There seems to be no end to the debt of gratitude the Irish (and now, the English) legal profession owe to the managing director of Ryanair.

He has clarified the words of a suitable jurisdiction clause on websites to confer jurisdiction within the EU. See HERE for how he did it. (This writer has adapted those words below to accommodate his purposes and intentions. Feel free to appropriate the clause without attribution, but on terms of repudiation of liability by this writer for such use).

He, (we are now back talking about the managing director; (see what happens when you eschew words like “aforesaid”)) has promoted (indirectly) the use of interrogatories in Irish practice and procedure.

He has generated legal work for members of the profession (with more to come in England).

These are not insignificant benefits. Why is the Chairman of the Bar Council silent in the presence of such merit?

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