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A Statue in College Green

Trinity College has two statues facing into College Green; one of Edmund Burke, the other of Oliver Goldsmith.

Of their characters, Goldsmith was the more attractive, Burke the most nuanced. That Burke could and did work with Richard Brinsley Sheridan on the failed attempt to impeach Warren Hastings is the best guide to his claim to an enduring moral position, for two reasons; that Sheridan joined the team and that Warren Hastings was the target of their opposition. What is less comfortable is the unfavourable comparison to be made between Burke’s prose and that of his contemporary, Thomas Paine.

As we see with Bertie Ahern, if you talk rubbish it has its purpose, and even if the exact purpose cannot be seen, it can be sensed. That means your speech is concealing and not revealing.

With that caveat, here is Burke on the practicalities of Government:

The moment you abate anything from the full rights of men, each to govern himself, and suffer any artificial positive limitation upon those rights, from that moment the whole organization of government becomes a consideration of convenience. This it is which makes the constitution of a state, and the distribution of its powers, a matter of the most delicate and complicated skill. It requires a deep knowledge of human nature and human necessities, and of the things which facilitate or obstruct the various ends which are to be pursued by the mechanism of civil institutions. The state is to have recruits to its strength and remedies for its distempers. What is the use of discussing a man’s abstract right to food or to medicine? The question is upon the method of procuring and administering them. In that deliberation I shall always advise to call in the aid of the farmer and the physician, rather than the professor of metaphysics.”

Laconic speech

I have claimed an affinity for laconic speech. My favourite example is this:

Philip II of Macedon sent a message to Sparta;

You are advised to submit without further delay, for if I bring my army into your land, I will destroy your farms, slay your people, and raze your city.”

The Spartan ephors sent back a one word reply:

If”.

The sequel to the Book of Evidence

It is currently unchallenged, in Ireland, that an accused person is entitled to access to the evidence, prior to trial, that the State intends to adduce against him/her at trial.

In Ireland, for many years, the procedure to secure that entitlement for the accused was set out in the Criminal Procedure Act 1967. That Act conferred a role on the District Court, in indictable cases, in deciding whether to send a person forward for trial to the Circuit Court or not; the District Justice had to be satisfied that there was a sufficient case to put the accused on trial before sending the accused forward.

The Book of Evidence, which the State was required to serve on the accused, was the main basis for the judgment to be made by the District Justice.

The Criminal Justice Act 1999 changed that position.

The obligation to serve the Book of Evidence persists, but the District Justice has lost his/her assessment role. That assessment now rests with the Circuit Court. The 1999 Act made provision in Section 9 for application to be made to the Circuit Court:

(1) At any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused.

(2) Notice of an application under subsection (1) shall be given to the prosecutor not less than fourteen days before the date on which the application is due to be heard.

(3) The trial court may, in the interests of justice, determine that less than 14 days notice of an application under subsection (1) may be given to the prosecutor.

(4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.

In Cruise v Judge O’Donnell the accused was charged with drugs offences. He was facing a minimum sentence of ten years on conviction. His lawyers believed the prosecution case was defective, in that the search warrant on foot of which the evidence against the accused was obtained was defective and invalid (and consequently the evidence located on foot of the warrant was unlawfully obtained and inadmissible). The accused applied to Court under Section 9 (1). The Notice to the prosecution did not refer to the basis for the application. The prosecution protested that they did not know on what basis the accused was making the application. The Court directed the accused to reveal to the prosecution the basis for the application in the Notice.

The accused applied to the High Court on Judicial Review to reverse this and lost.

The Director of Public Prosecutions opposed the propositions of the accused, arguing that the meaning of Section 9 did not allow the accused to make a case to strike out the charges against him before the Circuit Court judge, in the absence of the calling on for trial of the proceedings against the accused.

The accused appealed to the Supreme Court and won.

The Supreme Court confirmed that an accused person has no obligation to assist the prosecution. Furthermore there was nothing in the 1999 Act indicating the Oireachtas
intended such an obligation by requiring the accused to conform to “case managementâ€? directions of the Circuit Court Judge. As the Supreme Court acknowledged, many defences will consequently be canvassed in this application procedure in the future, without the need for the empanelling of a jury and/or the scheduling of witnesses and at much greater speed than if the accused was compelled to await the listing of the trial.

Out To Lunch

In “Fillumsâ€? by Hugh Leonard the character of Doc Moone has gone to a bar and left advice for patients on a sign in his surgery;

Gone out – Feed colds, starve fevers”

Suggestions, please, for the text of an equivalent sign for a lawyer’s office.

Lawyers

In REDS, WHITES, GREENS, BLUES I referred to the Association of Trial Lawyers of America. I have grown fond of them, despite their name change to the American Association for Justice.

Brazenly breaching their copyright, the following is a quote from a former ATLA President Ted Koskoff, a trial lawyer from Connecticut.

If you are a lawyer, you stand between the abuse of governmental power and the individual. If you are a lawyer, you stand between the abusive corporate power and the individual. If you are a lawyer, you stand between the abusive judicial power and the individual. If you are a lawyer, you are a hair shirt to the smugness and complacency of society; if you are a lawyer, you help mold the rights of individuals for generations to come.

Personal Injury: Case History – O’Donovan v John Hornibrook Ltd.

The Plaintiff, aged 42, was a felt roofer working for the Defendant. He was burned near the elbow when some hot bitumen spilled on his arm. He was taken to hospital in severe pain. He was treated but eventually had to re-attend and was admitted for five weeks. The arm took a long time to heal.

 

The Source of Law?

ANTIGONE

Yes; for it was not Zeus that had published me that edict; not such are the laws set among men by the justice who dwells with the gods below; nor deemed I that thy decrees were of such force, that a mortal could override the unwritten and unfailing statutes of heaven. For their life is not of to-day or yesterday, but from all time, and no man knows when they were first put forth.

(Sophocles)

Refute this again!

There is a modern plot to destroy a good word, the word “refuteâ€?.

I have previously challenged the solecism which equates “refuteâ€? and “rejectâ€?. The latest culprit is Bertie Ahern, as reported HERE in the Irish Times.

He said:

I refute in the strongest terms the suggestion that a passport application being returned through the offices of a TD, in this case Bertie Ahern, signifies some special relationship is an absolute fallacy.”

Ignore the fact he was referring to himself in the third person.

Ignore the fact that the sentence does not make grammatical sense.

We know what he meant; he meant he “rejectedâ€? something: he certainly did not refute it.

Dictionary.com says of “refute”:

refute
1. to prove to be false or erroneous, as an opinion or charge.
2. to prove (a person) to be in error.

Cynics

This post is intended to set and keep the record straight.

I notice a tendency in Fianna Fail politicians to attack the electorate by claiming it is cynical.

My free copy (free with “The Independentâ€? of London) of “The Great Philosophersâ€? defines a Cynic as:

A member of a school of Ancient Greek philosophy, namely Cynicism, wherein virtue was seen as the only good and self-control as the only means of attaining virtue. Cynics not only showed a complete disregard for pleasure, but also expressed contempt for human affection, preferring to find fault with most individuals for their lack of virtue. Diogenes was perhaps the most renowned Cynic.�

It is a curious thing that, even in committing a solecism (using cynical when they mean sceptical) Fianna Fail politicians still manage to identify their opponents.

Reds, Whites, Blues, Greens

In a personal injury case, acting for the Plaintiff, we fought for three and a half days with about a day and a half still to go, when we settled. When the settlement was announced to the judge he asked for the figure at which we settled. On learning it, (he should not have asked and on asking should have been met with a demurrer) he remarked it was IR£30,000 too much.

It was a moment of pure (unfair) competition. The parties had struggled for three and a half days and now the judge had leaped into the forensic arena, cuffing the Defendant’s lawyers.

The apotheosis of competition was the chariot racing in ancient Rome.
There were four teams, identified by the colours red, white, blue, green. When the Emperor Domitian introduced Purples and Golds, they endured only for the residue of his reign.

Life expectancy for the drivers and the horses was short.

At least in the practice of civil law we do not run those risks, and although a law suit can be a contact and spectator sport it is possible to encounter a law suit that is just pure fun.

The “Association of Trial Lawyers of Americaâ€? changed their name to the “American Association for Justiceâ€?. (There is an essay waiting to be written on that alone).

Some non-AAJ lawyers then formed “The Association of Trial Lawyers of Americaâ€? whereupon the AAJ issued proceedings against TheATLA to prevent them from misleading the public (presumably among other things).

How can you lose in following that case?