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Let Them Eat Cake

Before 200 asylum seekers in direct provision accommodation in Limerick/Clare commenced a hunger strike (Irish Times 30/1/07) did the Department of Justice Equality and Law Reform receive any prior inkling of their complaints?

The complaints are, inter alia;
a) In meals the “customersâ€? find hair strands; pieces of broken plastic and particles of shells.

b) One toilet roll a week is allocated. Experience, shows this is inadequate.

c) Lack of cleanliness

This is a no-brainer. If it were a prison, the visiting committee would vouch the facts. The Department has been criticised previously for whimsical variation in the quality of direct provision.

The Department has, with regard to children, acknowledged its obligations to ensure that proper provision be made under its schemes or systems.

Does anyone ever answer for this kind of situation?

French Big Brother awards

This posting is a blatant act of plagiarism.

It is also a paean to the French Big Brother awards 2006 and French politicians, whose mission seems to include bringing laughter to the world, or the francophone section of it in any event, surely with the best of intentions.

The awards, as the title suggests, goes to the persons promoting acts or policies generally familiar to the readers of Orwell’s “1984â€?.

Nicholas Sarkozy was disqualified from admission to the awards this year, having won too often in the past and generally showing a superior talent to his fellow politicians in the running. His innate sense of contempt for the privacy of his fellow citizens and his dedication to spying on them were traits hard to beat, and so he was excluded.

1. In the “Stateâ€? category the winner had compiled police records on citizens on foot of suspicion. He then deprived them of jobs on the basis of the “police recordsâ€?

2. Sony-BMG installed spy software in their CDs, to spy on the customer purchasers of the CDs.

3. The Mayor of Ploërmel won an award for introducing a system for citizens to denounce other citizens and for installing 50 video cameras to watch a locality with no public order or crime problems.

4. Frédéric Péchenard won for his work in promoting the genetic filing of the entire population, arguing that innocent persons would consequently be free of suspicion.

5. Minister of Justice Pascal Clément, (what a surprise) won for, inter alia, his “determination to imprison and controlâ€? (is this a French idea?).

Would the French laugh at our politicians if they received our reports? Appropriate reports in the comment section please.

The Irish ePassport

We have commented previously on the ePassport and its lack of security.

See the attached opinion of the EU Article 29 Data Protection Working Party on RFID tags in passports and its recommendations for steps to precede the introduction of the chipped passports.

We cannot see that Ireland took any notice of the Working Party’s recommendations, not to speak of, inter alia, the concerns of Civil Liberties groups in the USA and Canada.

For example, what State agencies, besides the Department of Justice Equality and Law Reform, have access to the ePassport database? The Garda Siochana?

If we are not close to Boston or Berlin, with what place are we close?

Personal Injury Claims – Part 1

What do people mean when they refer to “Personal Injuryâ€? claims?

It is, firstly and obviously, a reference to the consequences of an event; somebody has been injured. In addition, following the injury there is an allegation that somebody else has caused the injury and is answerable in law for that. Its current major significance is the consideration of the claim as an administrative problem. It also expresses a particular view of the “problemâ€?; administratively, the problem could be the rising rate of injury in the population, caused perhaps by a change in the economy, evidenced by the increased use of motor cars, say. Or, it could be defined from the point of view of the person accused; that there should not be an obligation to answer such accusations and, moreover, pay compensation.

Is there an administrative problem?

According to the Courts Service, in 2003 of 16,400 summonses, 10,600 were seeking compensation for personal injury. The growth in litigation is undeniable but very arguably is accounted for by the development of the economy. That growth was not confined to claims for compensation for personal injury, it has extended to purely commercial disputes which themselves place demand on the court system for attention. The established system for dealing with disputes between persons is the court system. The Constitution of Ireland secures the right of access to the courts for resolution of such disputes.

What happens to all these cases?

The majority are settled. The court system could not cope with the task of providing a full judicial hearing for these disputes. Only a small proportion of disputes come to a full hearing. However, even a small proportion of a large, or growing figure, can place a strain on the system. Some see a solution in the appointment of more judges.

Is there a right to compensation for personal injury?

No. The right is to the adjudication of disputes between persons. If the injury is caused without the involvement of another person, the injured person will be left without compensation. Even where fault is found against another person, that finding itself will not ensure the payment of compensation. (That’s the reason third party insurance is compulsory for the use of motor vehicles; the policy will ensure the payment of the compensation).

How much personal injury is there in Ireland?

For most of the time since the foundation of the State there was no concerted effort to answer this question. Consider accidents at work. Even after the passing of the Safety Health and Welfare at Work Act 1989, the State had not sought to estimate or ascertain the number of people injured at work. At best a guess could be made by combining the figures of injury from the Department of Labour and the Department of Social Welfare, giving a figure of about 16,000 a year in the early ’90s. The Barrington Commission had estimated the annual number of accidents causing 1-to-3 day absences from work at between 4,000 and 36,000. The Department of Labour came up with a figure for the number of accidents at work at 45,000 per year. (This was over 4% of the workforce). A member of the Royal Academy of Medicine, in 1990, estimated the total number of accidents in Ireland, annually, at 68,000. The Health and Safety authority, in 1990 estimated the total number of injuries at work annually at 18,250. The Health and Safety Authority now furnish a figure, for 2003, of work related injuries and illness, causing an absence from of work in excess of 3 days, of 39,700 persons. These would vary in seriousness, but arguably an injury involving an absence from work of in excess of 3 days is serious.

What proportion of these injuries would be the responsibility of the person injured and nobody else?

This can be answered only by a guess. The guess is; very few. Most road traffic accidents involve more than one vehicle. Given the detailed rules applicable to driving vehicles, it is rarely the case that there has not been an error by one or more of the drivers of these vehicles, giving rise to a potential if not an actual dispute. In the case of workplace accidents, it is the obligation of an employer to take all reasonable steps to safeguard the health and safety of employees; if the employee is injured at work it will normally involve a breach of that general or some specific duty of the employer.

Why should these injured people be compensated?

This question could be posed as follows: Why should persons who injure other persons not compensate the injured persons? The general answer is multifold.
Firstly the Constitution of Ireland obliges the State to vindicate the person of the citizen as follows:
“3. 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.â€?
This is generally acknowledged to imply the obligation to impose liability to make compensation for personal injuries arising from fault.
Secondly, most societies, ancient and modern, made and make provision for payment of compensation for such injuries.

What is the proper level of compensation for such injured persons?

There is no fixed answer to this question. It must depend on the society involved. In a rich society, it would not be right to confine the obligation to make compensation to a mere gesture. Of course the injuries and illness differ in degree of seriousness. This should be reflected in the amount of the compensation.

Is there any alternative to the court compensation system?

Yes. In New Zealand the state has established an Accident Compensation scheme and it presents its service as follows:
“The Accident Compensation Corporation (ACC) administers New Zealand’s accident compensation scheme, which provides personal injury cover for all New Zealand citizens, residents and temporary visitors to New Zealand. In return people do not have the right to sue for personal injury, other than for exemplary damages.â€?
The scheme does not cover all accidents. Where this happens, there is a right to have recourse to the courts. Of course the compensation is paid by the state, that is, out of taxation of the population.

TO BE CONTINUED…

Refute this!

This is a very risky posting. It’s about words, and how we use them. The subject word is “refuteâ€?. This is a word which politicians and lawyers (or policemen; Sir Ronnie Flanagan being the latest) have use for, but it is its misuse that is the focus of attention. It is sometimes used as a substitute or synonym for “denyâ€? or “contradictâ€?.

I contend that this misuse is not accidental. It is chosen because at some level of consciousness the speaker/writer understands its real meaning, which is:

“to prove to be false or erroneous, as an opinion or chargeâ€?

However, if you say you refute what Mr. X has said, it carries the implication that he has been completely defeated on the issue and can have nothing more to say about it, a state of affairs much desired by politicians, say.

But it is not correct to say that you “…refute what Mr. X saysâ€?, you must say you “…have refuted himâ€?. Of course, before you say that, you must actually refute what he says or claims. You do that by adducing evidence. If that evidence conclusively disproves what Mr. X claims, then he is refuted. You can then say you have refuted him.

I contend the misuse of “refuteâ€? is evidence of bad faith. It is intended, at some level, to carry the claim of “…having refuted himâ€?, when in fact all that has happened is the issuing of a denial. Denials are respectable; they are weakened, however, by claiming they are refutations, and that weakness is a chicken that should be brought home to roost as soon as possible.

Sub Judice

The Irish Times reports on 20th January 2007 that the High Court is hearing an appeal from the Circuit Court where the Plaintiff was successful against a provincial newspaper for breach of privacy. Apparently the Plaintiff was photographed while playing gaelic football and his genitals were visible in the photograph, which the newspaper published.

The Plaintiff had also pleaded defamation but abandoned that claim in the Circuit court.

The appeal is current and final submissions from the newspaper are expected next Friday. In short, the matter is sub judice.

The Plaintiff does not think that the publication of the photograph lowered him in the judgment of right thinking members of society; otherwise he would have proceeded with the defamation claim.

That apart, what comment can we make on the case? More to the point, before any comment is made what issues has a commentator to consider before exercising the right of free speech, a right (contingently) guaranteed by the Constitution of Ireland and the European Convention on Human Rights. The purpose of this posting is to show how difficult it is to exercise this right. Readers may go directly to the end of the posting for the comment, if they are so minded. (more…)

Are Political Videos on YouTube Subject to Irish Regulation?

The question has been raised as to whether political videos available for view on sites such as YouTube are governed by the same regulations as pertain to the familiar broadcast media.

A good starting point to examine this question would be to investigate what are the sources of the regulation which currently apply to broadcasters in Ireland in relation to political messages.

Section 18 of the Broadcasting Authority Act 1960, as amended by section 3 of the broadcasting Authority (Amendment) Act 1976 reads

18.—(1) Subject to subsection (1A) of this section, it shall be the duty of the Authority to ensure that—

( a ) all news broadcast by it is reported and presented in an objective and impartial manner and without any expression of the Authority’s own views,

( b ) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority’s own views,

( c ) any matter, whether written, aural or visual, and which relates to news or current affairs, including matters which are either of public controversy or the subject of current public debate, which pursuant to section 16 of this Act is published, distributed or sold by the Authority is presented by it in an objective and impartial manner.

Paragraph (b) of this subsection, in so far as it requires the Authority not to express its own views, shall not apply to any broadcast in so far as the broadcast relates to any proposal, being a proposal concerning policy as regards broadcasting, which is of public controversy or the subject of current public debate and which is being considered by the Government or the Minister.

Should it prove impracticable in a single programme to apply paragraph (b) of this subsection, two or more related broadcasts may be considered as a whole; provided that the broadcasts are transmitted within a reasonable period.

(1A) The Authority is hereby prohibited from including in any of its broadcasts or in any matter referred to in paragraph (c) of subsection (1) of this section anything which may reasonably be regarded as being likely to promote, or incite to, crime or as tending to undermine the authority of the State.

(1B) The Authority shall not, in its programmes and in the means employed to make such programmes, unreasonably encroach on the privacy of an individual.

(2) Nothing in this section shall prevent the Authority from transmitting political party broadcasts.

This provision regulates RTE’s broadcasting of political messages on radio and television. A similar provision exists for the independent sector licensed by the Broadcasting Commission of Ireland (formerly the IRTC). See Section 9 of the Radio and Television Act 1988, for an example.

The judgement of the Chief Justice, Mr Justice Hamilton in Coughlan -v- The Broadcasting Complaints Committee and Radio Telefis Eireann elaborated on the meaning of these regulations.

“3. Political parties have no right, whether under the statute or under the Constitution, to be afforded the opportunity by RTE to make political party broadcasts. It is purely a matter for the discretion of RTE as to whether or not they will transmit such broadcasts.

4. In reaching the decision to transmit such broadcasts, RTE is obliged to, in the context of a referendum, to hold the scales equally between those who support and those who oppose the amendment. “

So, in brief, if you’re RTE or an independent broadcaster licensed by the BCI you have the discretion to run a party political broadcast, but if you do run them you have to be fair to all the interests involved.

However YouTube is neither regulated by the BCI, or by the Broadcasting Acts. So these regulations do not apply. Such regulation would be inappropriate, even if it were possible. YouTube clips are not broadcast, in the traditional sense- they are delivered on demand. The Supreme Court, in Roy Murphy -v- IRTC and the Attorney General implicitly acknowledged that a uniform set of regulations for different media was not required- and not necessarily desirable under European Human Rights caselaw.

After this tour we can see that the regulations which constrain and control political speech and debate on the Radio and Television regulated by Irish legislation do not apply to video clips from sites such as YouTube.

The information contained in this post is not intended as and does not constitute legal or other professional advice. Its posting is not intended to create a Solicitor – Client relationship. While care has been taken in the preparation of the information, no responsibility is accepted for its contents and readers are advised to seek legal advice from their solicitor. McGarr Solicitors make no warranty regarding the accuracy or completeness of the information contained in, or accessible from, this posting.

Cleanliness & Godliness

The Mater Hospital in Dublin is one of the city’s major hospitals. It is the designated site for the new “world classâ€? children’s hospital [and an adult hospital adjoining].

It has apologised to a former patient who stayed in the hospital last May.

It apologised for “any incidents of sub-standard hygieneâ€? she may have experienced. Her experience was:

a) The hospital was filthy;

b) There was urine on the floor of the toilets;

c) Excrement was stuck to the sides of the toilet for days at a time;

d) Water flooded the shower room and ran out into the hall;

e) The toilet remained flooded for eight hours after she reported the situation;

f) She was put into a ward with male patients;

The Hospital denied that the conditions were in accordance with the hospital’s required standards, which, it said, are monitored and audited on a regular basis, both internally and externally.

MRSA

This report immediately preceded the announcement of a four-year research project to discover where hospital patients pick up MRSA and find new methods of preventing its spread.

The project will cost €1.5 million. Beaumont hospital, another major hospital in the city will carry out the study. One of the foci of the study will be to discover which patients suffering from MRSA are bringing MRSA into the hospitals.

COMMENT: The study seems set to beg at least one question: that the hospital staff are the reservoir of MRSA. The control methods are known and already available in Holland. Beaumont hospital should save a lot of public money by checking the web or making a trip to Holland and simply write the report on return. Generally speaking, “MRSA is not stronger than hospital hygieneâ€? but if we can’t keep the toilets clean we can’t do what is necessary to defeat it. Professor David Coleman is quoted as saying that hand hygiene is not simply a matter for staff, but there seems to be no recognition that it is first a matter for staff.

Wringing and Washing of hands

The Minister for Health and Children is anxious that the Health Executive should achieve a reduction in nosocomial infections in Irish hospitals in the immediate future.

The principle infection in mind (although not the most difficult) is MRSA. What’s the solution?

Hand washing. (Hygiene actually).

The methods of ensuring compliance with hand washing protocols will probably vary from place to place but the job is not impossible.

In any event, employees of hospitals are entitled in law to safe places of work and safe systems of work. Why should a patient not have the same entitlements?

On available accounts the medical profession are a difficult lot.

So, it won’t be easy. But it won’t be impossible. Next time you go to a hospital perhaps you will see on its walls, poster size photographs of bacterial colonies, cultured from the hands of the staff.

A POLICEMAN’S LOT

It is going to get tougher to be a senior police officer. According to the Irish Times of 13th January 2007, the Minister for Justice Equality and Law Reform, and the Garda Commissioner, are pondering the feasibility of making “police chiefsâ€? (the Commissioner?) accountable for crime statistics “in their … area”.

Any ambiguity in the report, and all the questions possibly begged by the idea aside, there is help at hand for the officers concerned.

Firstly, do not put your trust (or prejudice your promotional prospects) by advocating (or, certainly, implementing) a knife amnesty.

Merseyside Police (just a few miles from the Phoenix Park) have some figures on crime and given names. It is sobering to see how a choice of name can have such implications for an individual or society. Who would have thought that an Adam would be so prone to arson (and drugs) (and violence). This must be a reasonable judgment, given the infrequency of the adoption of that name, in comparison with Anthony, who, although violent more often, has the excuse that there are more of him. Presumably the same plea in mitigation stands for the Michaels, who are very violent, while not much given to arson; big into drugs though.

Incidentally, do not criticise any suggested or previously implemented knife amnesty.

How to make use of this information? Well that’s a question for another day and/or comments from readers.

Meanwhile, to reduce some shoplifting, consider what steps you can take to ensure that pseudoephedrine is not available other than on prescription.

Finally, do not despair when this statistical standard is applied to you even when you find you are supervising the policing of Dublin postal district one (aka the constituency of Bertie Ahern TD), where the murder rate is amongst the highest in Ireland. After all, if he is not answerable for the murder rate in that area (and he is not) how can you be held accountable for it?

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