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A protester is not just for Christmas

In 1984 President Ronald Reagan visited Ireland. There were public protests and demonstrations at his visit. He stayed for a time in the residence of the US ambassador in the Phoenix Park. A number of women took up position in a grassy area across the road from the entrance to the ambassador’s residence with the apparent intention of signaling their protest to President Reagan as he entered and left. He never saw them. They were arrested by the Garda Siochana and held for two days without bail. When they were released President Reagan had left Ireland. The women were charged with stated offences; when they came before the court one week after their arrest the charges were dropped.

This incident was never publicly resolved. The dropping of charges could only mean, to the mind of everybody in Ireland, that there was no substance to the charges in the first place.

If that was an accurate perception, great damage was done to the citizens of Ireland. In 1984, as now, an arrested and detained person was entitled to be brought before a court at the earliest opportunity. In 1984 an arrested person was entitled to bail unless a court had grounds for believing the person either would not turn up for his/her trial or would interfere with witnesses.

In 1984 the Taoiseach was Garrett Fitzgerald. His government took no steps to inquire into or explain this incident. Indeed, if the incident were to happen today the only additional feature might be the involvement of the Garda Ombudsman Commission.

In 1984 as now, a person had a constitutional right to protest and to exercise free speech. The latter right has been recently affirmed, although in less than convincing terms, by the High Court.

Now, as then, the effective guarantee of vindication of the rights of a person wrongly arrested is a civil action by the arrested person. It is not usual for the individual agent of the State to be a defendant in those proceedings. There is therefore, no effective sanction against, say, a member of the Garda Siochana who abuses the rights of a citizen.

Ireland was one of the original signatories to the European Convention on Human Rights.
Under the Convention a person may only be detained in specified circumstances; to serve a sentence upon conviction; to be brought before a court for trial; to be denied unlawful entry to the country and to be lawfully deported.

Because Ireland is a dualist state, that is, a state wherein international obligations become part of the domestic law only when specifically adopted and incorporated into domestic law, the Convention is not part of Irish law.

Ireland “incorporated” the Convention into Irish law in an oblique manner by virtue of the European Convention on Human Rights Act 2003. Rights under the Convention may now be pleaded in Irish courts. The courts are obliged to interpret legislation, insofar as possible, compatible with the Convention. The High Court and the Supreme Court are empowered to declare law not to be compatible with the Convention and the Plaintiff may apply to the Attorney General for compensation, ex gratia, for loss or damage suffered due to the operation of the offending law. Thus, the European Convention on Human Rights, which represents the “gold standard” for civilized treatment of citizens and persons across the European Union members, is not accorded validity in Ireland to the degree to which the Constitution is. What is at issue is the identity of the interpreters of these documents; only the High Court and the Supreme Court may interpret the Constitution; the interpretation of the European Convention on Human Rights takes place in the European Court of Human Rights in Strasbourg.

Website homework

I unintentionally caused a post to be private. I have now made it public. It retains its date order in the website but can be seen HERE.

The Committee for Public Safety hasn’t gone away, you know

John Breslin has received a letter. Read the letter HERE. His post is interesting, and, as Paul observes, raises unanswered questions. What springs to mind is the challenge in trying explain the issue to the Irish Supreme Court (or any court) if the need arose.

PS. Having seen what happened to Raj Persaud, I expressly confirm I got my tip on this topic from a member of my office team. (I have no desire to find myself investigated like Raj or pursued for what momma saw, or thought she saw).

Read Me

We have to stop working every now and then. I read the Sherlock Holmes body of work a long time ago, but the classics never die and so I have made reference to Sherlock Holmes HERE and perhaps have given the impression that a life in the law is a life in crime or close to it (by and large, it is not; think of Kenneth Starr whose natural habitat was in corporate law and Government administration).

What might a lawyer read for leisure? Anything, but he/she could do worse than read the novels of Stephen Saylor, featuring Gordianus the Finder.

I am currently on page 136 of “This Night’s Foul Workâ€? by French author “Fred Vargasâ€?, whose website is HERE, for Francophones, and whose Wikipedia article is HERE, for the rest of us.

Currently I think I will be reading all of Fred’s oeuvre.

No!

Ireland has vetoed the Lisbon Treaty.

Or has it? What is a veto? More particularly, what is a veto in the European Union?

Ireland has previously cast a veto (in the EU Council of Ministers) and it was denied that it had that effect. That is, it was treated as a dissent, not as a block.
See HERE for details.

The defeat of the Referendum on the Lisbon Treaty in Ireland is not a rejection of the European Union. However, the response of the European Union may indeed lead to a rejection of the EU. Only a Union based on law can attract and hold the allegiance of the people of Europe. The legal basis of the European Union lies in the treaties. Under the treaties Ireland’s assent to the Lisbon Treaty is a requirement to bring it into force.

To say that implementing the Lisbon Treaty was “going to be difficult” as Christine Lagarde the French Finance Minister did in Korea is to imply that the European Union is not an entity built on law.

To press ahead as President Sarkozy and Gordon Brown propose is to subscribe to the same implication. To propose a “two-speed” Europe (see HERE) is a proposal to abandon the European Union, a legally questionable idea.

Walk this way

Certainty is good for business. Ireland has now produced a series of standard contracts for use in public construction and engineering projects. They are available online from the Department of Finance HERE. The contracts are designed to transfer certain additional risks to the contractors. Provision has been made for the Employer to stipulate the hiring of certain specialists and to assign design responsibility to the contractor.

There will be, presumably no need to trawl the world for good precedents for such projects, as suggested HERE.

À la recherche du temps perdu

It’s easier to forget than to remember. If a witness has forgotten things it is permissible, sometimes, for the witness to check a written record of what has been forgotten. The most common occasion of this is when a police officer refreshes his/her memory from his/her notebook. This is permissible only if the written record is a record made contemporaneous with the events in respect of which the evidence is being given.

As Marcel Proust observed, memory is elusive. Sometimes the reading of the contemporaneous note is used simply to flesh out the recollection of the events recollected and recorded. This is termed “present recollection revivedâ€?. Sometimes nothing is recollected but the record remains; it is in the handwriting of the witness, say. This can be referred to by the witness. The witness affirms his/her belief in the accuracy of the record and the court receives the record. This is called “past recollection recordedâ€?.

In D.P.P. v. Cliffford [2002] IEHC 81 (22 July 2002) the High Court addressed the issue of a witness referring to a notebook while giving evidence. The District Court judge had dismissed the charge against the accused because the Garda witness had been consulting his notebook while giving evidence. The judge took the view that the Garda should have requested permission of him, the judge, before doing this. In effect the judge excluded the evidence of the Garda because of this. The High Court found that this was wrong in law and effectively remitted the prosecution back to the District Court for hearing.

Clean up your act!

In Wicklow County Council v. Fenton & Ors [2002] IEHC 102 (31 July 2002) the High Court likened the owner of an illegal dump to a receiver of stolen property. Without a receiver there can be no profit in theft; without an illegal dump there can be no illegal dumping. The court accepted the principle advanced by the applicant Council that it did not have to prove negligence; that the state of mind of the Respondents was not required to be proved. The court endorsed the principle of “the polluter paysâ€?, a principle found in Council Recommendation 75/436Euratom and specifically incorporated in Section 5 of the Waste Management Act 1996.

“the polluter pays principle” means the principle set out in Council Recommendation 75/436/Euratom, ECSC, EEC of 3 March, 1975 1 regarding cost allocation and action by public authorities on environmental matters;

Under Section 26 of the Waste Management Act 1996 the Environmental Protection Agency is obliged to incorporate the “polluter paysâ€? principle into its national hazardous waste management plan.

The court found that the Respondents had been negligent on the facts and made orders for the remediation of the lands on which the illegal dump was found.

Consequently, liability under the Waste Management Act 1996 can be established simply by showing that there has been dumping on lands and that there is no authority for such dumping. The liability attaches to the occupier of the land; there is no need to show that the dumping took place during the period of occupation by that occupier.

Money Laundering

Section 31 of the Criminal Justice Act 1994 is of a type of provision to give the State more problems than the draftsman intended.

Section 31(3) neatly encapsulates the problem. It reads:

(3) A person shall be guilty of an offence if he handles any property knowing or believing that such property is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking or other criminal activity.”

Despite the terms of Section 31 (7) this presents considerable problems to the prosecution.

Section 31 (7) reads;

(7) Where a person does, in relation to any property which is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking or of any other criminal activity, any of the acts specified in subsection (2) or (3) of this section in such circumstances that it is reasonable to conclude that he knew or believed that the property was, or in whole or in part directly or indirectly represented, another person’s proceeds of drug trafficking or other criminal activity, he shall be taken to have so known or believed unless the court or jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether he so knew or believed.”

Section 31 (8) reads;

(8) In this section believing property to be, or in whole or in part directly or indirectly to represent, another person’s proceeds of drug trafficking or other criminal activity includes thinking that the property was probably, or probably represented, such proceeds.”

The problem is this; what of the case where the property is not the proceeds of criminal activity? Is it a criminal offence to handle property that is not the proceeds of criminal activity? The answer, clearly, must be no. Otherwise everybody, ultimately, would commit the offence. In addition, to handle property which is the proceeds of criminal activity is not, of itself, an offence.

Is it proper, therefore, to convict a person of a criminal offence having simply established that that person believed the property was the proceeds of a criminal offence? Or, even more so, having simply established that the circumstances of the arrest of the person is the basis of an inference of the belief or thoughts of the person; that is, it is not established either that the property is the proceeds of criminal activity or that the person thought so.

The Court of Criminal Appeal thought it was not, in People (DPP) v McHugh [2002] CCA.

(Note that the Circuit Court judge allowed the case to go to a jury which convicted. In addition, the office of the Director of Public Prosecutions also thought the evidence warranted convicting the accused.)

Evidence-based medicine

I endorse and support, I believe, the principle of evidence-based medicine (“EBM”).
I do so having no medical qualifications whatsoever because the validity of the principle, I believe, transcends the practice of medicine.

Apparently it is claimed that EBM is relatively new. Initially, that’s a surprise. It dates from, it appears, about 1996. While still supporting its practitioners I doubt this claim. It claims too much. It seeks to appropriate the word evidence to apply only to some evidence and not to other evidence. Did the medical profession not act on evidence before 1996?

I think it did.

The practice of bloodletting lasted for at least 2,000 years with no proven benefit to the modern mind. This did not mean it could not be justified. The justification lay in the acceptance of the theory of the four humours.

According to the theory, a human person was, in effect, constituted of a mixture of the four humours. Bloodletting was calculated to affect the balance of these humours. The effect of these humours, black bile, yellow bile, phlegm and blood extended to the explanation of character.

Those with too much blood were sanguine. Those with too much phlegm were phlegmatic. Those with too much yellow bile were choleric, and those with too much black bile were melancholic. To be sanguine is to be courageous, hopeful and amorous. To be phlegmatic is to be calm and unemotional. To be melancholic is to be depressed, sleepless and irritable. To be choleric is to be easily angered and bad tempered.

It is relatively easy to find living examples of these types and, having done so, to think that that discovery is supportive evidence of the theory of the four humours.

The alternative theory, that of EBM, is to follow the scientific method.

Based on observations of a phenomenon, a scientist may generate a model. This is an attempt to describe or depict the phenomenon in terms of a logical physical or mathematical representation. As empirical evidence is gathered, a scientist can suggest a hypothesis to explain the phenomenon. This description can be used to make predictions that are testable by experiment or observation using the scientific method. When a hypothesis proves unsatisfactory, it is either modified or discarded.”

The significant word is “hypothesis”. The quote suggests that the hypothesis follows the gathering of evidence. This is not likely. The hypothesis, or its predecessor (another hypothesis) must precede the gathering of evidence. This is true even when the evidence presents itself to us almost complete, say, when a body is discovered with a knife sticking out of its back. We have already formed the view that such circumstances are more consistent with murder or manslaughter than with suicide or accident.

The “scientific method” is not new. Eratosthenes applied it to the measurement of the circumference of the Earth in 240 BC. He learned of a well at Syene in southern Egypt, where the sun, on the summer solstice, shone directly down into the well. At Alexandria in northern Egypt, on the solstice, the sun was not overhead; it was at an angle of seven degrees 12 minutes. He estimated the distance from Alexandria to Syene and concluded that that distance represented one fiftieth of the circumference of the Earth, because the angle of the sun in Alexandria on the solstice was one fiftieth of a circle. Of course, he also concluded that the Earth was circular in shape.

The quality of the hypothesis is critical. So, too, is the ability to collect evidence.

Generally the Minister for Health and Children expounds a hypothesis to explain health care infections. These are infections contracted almost exclusively in places such as hospitals and nursing homes. The Minister’s theory focuses on the supposed natural history of the pathogens involved. It resolutely assumes that the first and principal defence of humanity from pathogens is antibiotic use and that that defence has been breached. We know this because, in the context of addressing health care infections, she castigates the medical profession for over-prescribing antibiotics in the past. Sometimes this idea is elided into the idea that it is consumption of antibiotics that is the problem and by implication that the patients are responsible.

She does endorse other ideas but, in doing so, implies that the general public, like the medical profession, are implicated in the chain of causation through visiting patients in hospitals.

What is revealing is her own admission that you can only manage what you measure.
It was only in March 2008 that she made Clostridium difficile a notifiable disease.

This was the only method of determining the incidence of this dangerous, often fatal, disease.

This proposition was the subject of a post HERE in 2007.

EBM is of little use as an idea if it is not preceded by the appropriate hypothesis, uncontaminated by an agenda to dissipate and diffuse responsibility and also preceded by the effective search for evidence.

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