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These things are, officially, secret

I’ve written before about the Irish state’s love of all things secret. When I went rummaging in the legislation that governs how the state keeps things from becoming known I spotted one little moment in the chain when we could- at least obliquely- get a peep at what was being hidden from us.

Every year, the state’s agencies and ministries are meant to send their files that are 30 years old to the National Archives, where they are free for the public to examine.

Obviously, the state is frequently not really happy about this. So, every year, its agencies and ministries invoke the exceptions provided for in the National Archives Act so they can keep things they don’t want the public to see hidden from view.

But, to do this in line with the Act, they have to get a Certificate exempting each file from being released. And the Certificates have to, however briefly, describe those files.

So, just for starters, I FOI’d some of those certificates. Specifically, those issued between 2011 and the end of 2014. It took a few months of back and forth with the Department of the Taoiseach but I think, after a slight hiccup that delayed release for four months, the outcome was pretty good.

Here then, compiled into a single package, are all the Certificates exempting Irish state files from public scrutiny that were “signed by the Consenting Officer in the Department of the Taoiseach, in relation to the withholding of files by government departments/public bodies under section 8(34) of the National Archives Act 1986, between 1st January 2011 and 1st January 2015.”

Over the next week, I’ll be picking out some of my favourite gems from the pile of hundreds and hundreds listed across just those few years. And, though I might be busy with the arrival of a new baby at some point, do @ me on twitter @Tupp_ed if you see anything fun too.

You can also read the Irish Time’s reports on these files;

Shergar and phone tapping files withheld from public
Certificates reveal what files Government wants kept hidden

Full FOI on National Archive exemption Certificates

Direct download link: Full FOI on Certificates 2011-2015

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After Schrems hearing, Government scraps Cloud Computing plan

Two days after the EU Commission admits to Europe’s top court that they’re not assured of the security of EU citizens’ data when it’s transferred to the US, Ireland’s government scraps their cloud computing plan.

I predicted the problems EU data protection law posed for Cloud Computing in this article for the Irish Times from 2009.

Digital Rights Ireland files Amicus Brief in Microsoft v USA with Liberty and ORG

Microsoft -v- USA is an important ongoing case, currently listed for hearing in 2015 before the US Federal Court of Appeal of the 2nd Circuit.

You can read about why this case is significant for Microsoft on their official blog.

However, as the case centres around the means by which NY law enforcement are seeking to access data of an email account which resides in Dublin, it is also crucially significant to Ireland and the rest of the EU. For that reason, Digital Rights Ireland instructed us to file an Amicus Brief in the US case, in conjunction with the global law firm of White & Case, who have acted pro bono in their representation.

Given the significance of the case for the wider EU, both Liberty and the Open Rights Group in the UK have joined Digital Rights Ireland as amici on this brief. We hope it will be of aid to the US court in assessing the significance of the order being appealed by Microsoft for EU citizens and European states, in the light of the existing US and EU Mutual Legal Assistance Treaty.

You can read the Brief here:

Amicus Brief Digital Rights Ireland, Liberty and ORG in Microsoft -v- USA

Microsoft v USA DRI, Liberty, ORG Amici Brief

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Irish Water, PPSNs and the missing Minister’s agreement

When challenged on how it has the right to ask for people’s PPS numbers, Irish Water has said that it is a specified body under statute. This is a reference to Section 20 of the Social Welfare and Pensions Act 2014.

This section did add Irish Water to the list of specified bodies set out in Social Welfare Consolidation Act 2005.

S 262(4) and Sec 262(6) of the same Act are the ones which control what a specified body may do with a PPS number to verify a person’s identity with the Minister for Social Protection. Irish Water have said that this is the sole purpose for which PPS numbers are being collected.

This use is subject to prior agreement with Minister for Social Protection.

The Minister must be shown and must agree with the proposal for use and processing of the PPS number, on the basis (amongst other things) that it is necessary and proportionate under the general principles of data protection.

If the minister does agree that standard has been met then a specified body may then collect and process PPS Numbers-solely in line with that agreement.

No such agreement between the Minister for Social Protection and Irish Water is anywhere shown on the Irish Water website or on the Department of Social Protection website.

However, the Department of Social Protection has published a statement from Irish Water on its website saying that the agreement is still not in place, as of September 2014.

“This arrangement has not been finalized at this time but we are engaging with the DSP”

If there is no agreement in place with the Minister, on what statutory basis is the collection and processing of PPS numbers taking place?

Credit to Damien McCallig, who spotted this issue.

In support of superstition (pro tem.)

To say something is superstitious is to speak relatively. The concise Oxford dictionary provides an inadequate definition of superstition;

 “excessively credulous belief in and reverence for supernatural beings: a widely held but unjustified belief in supernatural causation leading to certain consequences of an action or event, of a practice based on such a belief.”

Some people think any belief in supernatural beings is credulous; likewise any belief in supernatural causation. Other people disagree and need not cite religious reasons for doing so.

Avoiding walking under ladders is widely perceived as superstitious, as is the avoidance of pork in meals yet they have a clear practical basis. Men or their pots of paint may fall on you as you pass, or an intestinal parasite may infest you as you chew your pork crackling.

As for causation; who claims to know the causes of anything, comprehensively? (What, for instance, is the effect on us of the black hole in the centre of the Milky Way?)

Arguably, we have lost the knowledge of the harms we try to deflect when avoiding black cats, the use of the colour green or the throwing of salt over our shoulder when we spill the salt cellar.

Wikipedia is much more authoritative on the subject. See it HERE

Being Irish, I am attracted to the Roman Catholic statement quoted in the entry;

“To attribute the efficacy of prayers or of sacramental signs to their mere external performance, apart from the interior dispositions that they demand is to fall into superstition. “

Being Irish, I recognise this in the secular world; many court cases are resolved in form only, not in substance. The recognition of this is seen in our hierarchy of courts.

We desperately need a functioning “court of appeal”, otherwise we will never get justice.

Reports of Compensation for PIP Breast Implant injuries

Today’s Irish Sun has, on its front page, a story suggesting that compensation will be given to women who were the victims of PIP Breast Implants injuries.

Today’s reports have been mostly focussed on an agent (not a solicitor’s firm) who are offering to act as a middleman between women and French lawyers who have had some interim success in suing a certification body under French law in the French courts for damages arising from the PIP scandal.

As an Irish firm, we don’t practice law in France, and can’t offer any women who are considering taking a case in France under French law any assessment of their case.

The case in France has been led by M. Aumaitre of Khan & Associés. We would recommend anyone who is considering whether or not they wish to take or join a case in the French jurisdiction, should speak directly to their French lawyer, whether that should turn out to be M. Aumaitre or any other lawyer they prefer.

“Dr. Livingstone, I infer?

Henry Stanley got things wrong when he met Dr. Livingstone. On meeting him, he records, he said; “Dr. Livingstone, I presume?

The Oxford Dictionary indicates that “presume”, as used by Stanley, conveys he is supposing that something is the case on the basis of probability. On his own account, he was being absurdly careful. As Stanley well knew, white men in that location at that time were unknown. So, of course, the man he was meeting was probably Livingstone. However, immediately before he met him, in the native village, he had been reliably and explicitly informed that Livingstone was there. So, a “presumption” was in order only to cater for the possibility that there was more than one white man living or staying in the village. So, why did he not say “Dr. Livingstone, I infer?”

An inference, according to the Oxford Dictionary, is;

“A conclusion reached on the basis of evidence and reasoning”

Stanley had just received the information that Livingstone was in the village and knew of the improbability of more than one white man being in the village.

We need to know this to understand what is contained in Sections 28, 29, 30 and 31 of the Criminal Justice Act 2007. These sections allow a court to draw adverse inferences from an accused person’s failure during questioning to give an explanation for, inter alia, objects or marks found on his/her person or clothing, or for his/her presence in a certain location at the time an offence was committed.

The sections seem innocent of the knowledge that “drawing adverse inferences” is what detectives do, and are expected to do, in the ordinary course of their work. A detective, we hope, looks for clues about what has happened and who is responsible for what has happened. That mental activity leads to the discovery and isolation of evidence. That evidence, subject to correct reasoning, allows the conclusion upon which the detective will act. If the detective is able to act, his/her action will be adverse to the interests of the suspect. A detective does not need provisions as found in the Criminal Justice Act 2007 to do his/her work.

So what is really going on in Sections 28, 29, 30 and 31 of the Criminal Justice Act 2007? Section 30 reveals it; it allows a court to…draw an adverse inference from an accused person’s failure to mention during questioning a fact that s/he later relies on in his/her defence. The focus is on the failure of the accused to exculpate himself.

The Sections have very little to do with “inferences”.

The Sections are all about shifting the burden of proof in a criminal trial. Every person accused of an offence is, it is claimed, presumed to be innocent. Except when they must prove their innocence. That’s what Sections 28, 29, 30 and 31 of the Criminal Justice Act 2007 require of an accused. Alternatively, they change the obligation of the prosecution to prove something beyond a reasonable doubt, to proving it on the balance of probabilities.

A further alternative is even worse; they permit the making of adverse assumptions by a court

An assumption, according to the Oxford Dictionary, is;

“A thing that is accepted as true or as certain to happen, without proof…”

Sections 28 contains the following:

“…which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper…”

This is very poor English.

To say “…being an account which in the circumstances at the time clearly called for an explanation from him or her…” is to misstate what is intended. It was the circumstances at the time, or the object or mark, not the account, which called for an explanation, but the Section fails to say this.

Likewise, it is poor English to say something is an inference, when it is an assumption.

We should subscribe to the intellectual respectability of detectives and abandon the intellectual nonsense of judges.

New Emergency UK Data Retention Law- What’s actually happening?

Panic Button by https://secure.flickr.com/photos/johnjoh/

In case you missed it with all the World Cup and such, last night UK Labour backbencher Tom Watson put out an urgent call for attention. The UK Gov were trying to bundle a replacement mass surveillance law through Parliament with nobody looking.

Unlike here, the UK never brought in a standalone law for Data Retention, just a Ministerial Order directly based on the annulled Directive.
As a result the UK were running on empty, legally speaking, ever since the April DRI ECJ decision wiped out the Data Retention law they relied on.

After that judgment, the UK Government fell back on simply asserting that Data Retention was lawful and should continue as before.

The Emergency part of this emergency legislation is that there are now two things looming in the courts that can’t be denied or ignored away.  A JR of their legal regime, which has been awaiting hearing since 2011 (See this briefing paper on that case from the Open Rights Group) and, the BBC reports, pending challenges to the telecoms companies who were left holding customer’s personal data without any legal justification.

If you’re in the UK, http://writetothem.org is an easy, free way to contact your MP to tell them what you think of the plan to pass this legislation with all party agreement.

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Coroner’s Act 1962

by William Murphy

We have written previously about the Coroner’s Court system.

If you find a dead body, you are legally obliged to report it. Once certain officials or persons in certain positions become aware of a report of remains lying in the district, they are under a duty to notify the local Coroner.

Section 18(1) of the Coroner’s Act 1962 says

18.—(1) Where a coroner is informed that the body of a deceased person is lying within his district and that a medical certificate of the cause of death is not procurable, he may inquire into the circumstances of the death of that person and, if he is unable to ascertain the cause of death, may, if he so thinks proper, hold an inquest in relation to the death

We know, from a statement by the Sacred Heart Sisters yesterday, that no medical or birth certificates were issued to religious orders in respect of deaths of babies in Mother and Baby homes.

 “There was no right to a death certificate bestowed on the congregation”.

Section 18(3) of the act states

(3) It shall be the duty of an inspector or officer of the Garda Síochána, if he becomes aware of the death within the district of a coroner of any person in whose case a medical certificate of the cause of death is not procurable, to inform the coroner of such death.

An Inquest is specifically not permitted to examine questions of liability or to assign blame. Its purpose is to establish the facts of a death. To achieve this, a public hearing, frequently with expert witnesses, is held. Because an inquest’s aims are limited, they are very rarely protracted. And as inquests are frequently held quite soon after a death, Coroners are used to dealing sensitively with people and situations where emotions are raw.

In the case of the remains of children in Tuam, given the gravity of the implications for both the individuals and their families (if any are remaining) and for the reputation of the country, I think it would be reasonable to look to the Attorney General to take action under Section 24 of the Act.

24.—(1) Where the Attorney General has reason to believe that a person has died in circumstances which in his opinion make the holding of an inquest advisable he may direct any coroner (whether or not he is the coroner who would ordinarily hold the inquest) to hold an inquest in relation to the death of that person, and that coroner shall proceed to hold an inquest in accordance with the provisions of this Act (and as if, not being the coroner who would ordinarily hold the inquest, he were such coroner) whether or not he or any other coroner has viewed the body, made any inquiry, held any inquest in relation to or done any other act in connection with the death.

Given the physical advantages of the new Coroner’s Court building in Dublin for an inquest of this size and scope, it might be best if the AG were to request the Dublin Coroner to hold an inquest without delay. Once the facts of the deceased’s life and deaths are established, we can consider what is the next appropriate step.

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Registration of Deaths, 1860-1996

It’s difficult to know how to react constructively to the story of the bodies of children in Tuam.

Philip Boucher-Hayes has quoted the response of Gardaí as to whether there was an inquiry ongoing into hundreds of of children’s remains being found.

…there is no suggestion of any impropriety and there is no Garda investigation.

A lawyer’s instinct is to look to law. I thought it might be helpful to look at the legislation around the registration of deaths. Perhaps ironically, the Irish Government has already paid for and published quite a good short essay on the historical laws regarding burial and registration of deaths.

You can find it in Chapter 16 of the McAleese Report, “Death Registration, Burial and Exhumation”.

During the period the Tuam institution was open the relevant acts were The Births and Deaths Registration (Ireland) Act 1863 and The Births and Deaths Registration Acts 1880-1996.

Section 36 of the 1863 Act says

Some person present at the death or in attendance during the last illness of any person dying in Ireland after the said 31 December 1863 or the occupier of the house or tenement in which such death took place, or if the occupier be the person who shall have died, then some one or more of the persons residing in the house in which such death took place shall, within 7 days next after the day of such death, give notice of such death to the registrar of the district in which such death occurred; and such persons as aforesaid, or if such death shall not have taken place within a house, then any person present at such death or having a knowledge of the circumstances attending the same shall, whether they have given such notice of not, upon being required personally or upon written requisition of the Registrar, within 14 days after the date of such death attend personally at some dispensary district, or vaccination station within the Registrar’s district , or otherwise at the place of residence of such person, and give information to the registrar of the district in which such death occurred, according to the best of his or her knowledge and belief of the several particulars required by the said form to be registered touching such death and shall sign the registry in the presence of the registrar”.

Section 3 of the Act specifically said that ‘occupier’ included;

“the Governor, Keeper, Master, Superintendent, or other chief Resident Officer of every Gaol, Prison, or House of Correction, and of every School, Reformatory, Workhouse, Hospital, Lunatic Asylum, or other Public or Charitable Institution”

Sections 10 and 11 of The Births and Deaths Registration (Ireland) Act 1880 set a limit of 5 days from the date of death for that duty to be complied with.

So, a requirement to register each death and a time limit. Is there a penalty for failing to comply?

Section 60 says:

Any person required by this act who shall, within the period specified by this act, fail to give notice of any birth or death to the registrar of the district within which such birth or death shall have occurred shall be liable to a penalty not exceeding 20 shillings

20 shillings per unregistered death.

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