The Supreme Court has held that two Irish Times journalists can assert a privilege to refuse to answer questions about their sources, reversing the High Court decision in Mahon v Keena [2007] IEHC 348 (23 October 2007). From the Irish Times breaking news website:

Court upholds Mahon appeal

The Supreme Court has upheld an appeal by Irish Times editor Geraldine Kennedy and public affairs correspondent Colm Keena against a court order requiring them to answer questions from the Mahon tribunal about the source of an article about former taoiseach Bertie Ahern. …

Revised: The decision is also noted by Cian on Blurred Keys and is now avaialble as Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009); it is also here (pdf) on the Irish Times website.

See also the Belfast decision in the case of Suzanne Breen and a decision of the Supreme Court of Western Australia earlier this week, both reaching similar conclusions.

In The Godfather, Part III, Michael Corleone (played by Al Pacino) laments

Just when I thought I was out… they pull me back in.

I know how he feels (though without the mafia connections, obviously). I had intended yesterday’s post to be my last on blasphemy for some time, but then Eoin Daly, a PhD student in UCC, went and spoiled it all by writing an excellent guest post on CCJHR blog about the new offence; update and Michael Walsh, a law student at NUI Galway, has written a compelling post critiquing some of my earlier analysis on the issue. To being, some extracts from Eoin’s post:

The Pluralisation of Blasphemy law: Possible Constitutional Implications

… the most interesting aspect of the new offence [is] the fact that is has been “pluralised”, encompassing material that is “grossly abusive or insulting in relation to matters held sacred by any religion.” … blasphemy law has shifted from a religious to a secular legitimation, from the protection of a particular religious truth, to the protection of the sentiments of religious persons, of all recognised affiliations.

However, it is this very fact of a secular legitimation, of “outrage among a substantial number of [any religion’s] adherents”, which renders the contours of the offence unfeasibly vague. Read the rest of this entry »

It’s a pity that Part 5 of the Defamation Act, 2009, relating to blasphemy, has dominated the coverage of the Act at home and abroad (eg, US, Denmark (pdf)), since the legislation does considerably more than that. It is radical modernisation of Ireland’s defamation laws, and is a vast improvement on what had gone before. In particular, it provides several means to ensure much speedier resolution of defamation cases; it provides for a new defence of reasonable publication; it significantly improves the law relating to damages in defamation cases; and it gives a stable statutory footing to the Press Council. These will be matters to which I will return on this blog; but, before that, I want to make another comment about Part 5 of the Act.

Part 5 of the Act consists of three sections. Section 35 abolishes the common law offences of defamatory libel, seditious libel and obscene libel are abolished. Section 36, subsections (1)-(2) create the new crime of blapshemy, by making it an offence to cause outrage among a substantial number of the adherents of a religion by intentionally publishing material that grossly abuses or insults matters held sacred by their religion. This is narrowed in two ways: subsection (3) provides a saver for publications of genuine literary, artistic, political, scientific, or academic value; and subsection (4) excludes from the definition of “religion” an organisation which principally aims to make a profit or which employs oppressive psychological manipulation. Finally, where there has been a conviction, section 37 (probably impotently) allows for the seizure of blasphemous matter.

This Part of the Act was introduced very late in the day, and was the subject of limited debate in the Oireachtas, but it is not a unique provision. Moreover, as I have already said, it is neither a trap for the unwary, nor a charter for religious cranks, nor even a check upon valuable public discourse; but there are still many problems with it. Read the rest of this entry »

What my students really think of Contract law, via Courtoons:

On the monkeys-and-typewriters principle, I suppose it was inevitable that Kevin Myers would eventually write something with which I would agree. He did, today, in the Irish Independent:

I have the right not merely to offend people, but to intend to

… The Ahern law on blasphemy must be the first law ever whose instigator is desperately hoping that it will never be invoked. Its potency depends not upon any legal definition on what blasphemy actually consists of, but solely on the “outrage” that the remark in question might intentionally cause.

… Well, frankly, I think I have the right not merely to offend people, but the right to intend to do so. It is up to them, and their personal capacity to control their emotions, as to whether or not they are outraged. …

Polemical as always, and trenchant, he is making much the same point as I essayed here and here.

On the same principle, it was probably just as inevitable that I would at some stage feel a little sorry for Gerry Ryan. I did, today, when I learned that he had been the subject of a complaint to the Broadcasting Complaints Commission for wondering whether it would be considered blasphemous if someone said on air that “God is a bollocks”. The BCC rejected the complaint (see decision here – warning .doc), and quite right too. Even though he was obviously courting controversy for the remark, I felt sorry for him that he had to spend some time defending himself to the BCC against such a silly complaint.

Finally, via Gerard Cunningham’s 200 words, I learn that the Bishop of Cork, Cloyne and Ross, the Right Reverend Paul Colton, via his Twitter account, recently asked:

Can we start a campaign now to have a referendum on the removal of the reference to blasphemy from the Irish Constitution?

Hear, hear


Bonus links: also in the Irish Independent Opponents to continue fight after blasphemy made illegal. See also Irish Examiner here and here | Irish Times here and here | Paddy McKenna here and here.

I love this website: Typography for Lawyers. Typography is the visual component of the written word, and even though the legal profession depends heavily on writing, legal typography is often poor. So, Matthew Butterick has started that site as a guide to typography for lawyers – in his view, good typography makes written documents more professional and more persuasive. He gives a wonderful example of where bad typography led to serious problems (I won’t spoil the effect, click through to find out for yourself); and he gives very sage advice about using the Times font (advice which I only occasionally take, but then, do as he says, not as I do!). This is a wonderful website. Go, read, learn, enjoy.

EU law has thrown up some very abstruse issues, none more so that the compatibility of national VAT regimes with European VAT Directives. Where there has been a charge to tax pursuant to national rules which infringe EU law, then that overpayment of tax can be recovered.

Sometimes the issue concerns a relatively straightforward overpayment. For example, the Irish Times reported a little while ago that GE Capital Woodchester Ltd has brought legal proceedings against the Revenue claiming it has overpaid some €19 million due to the State’s alleged failure properly to implement an EU directive related to the VAT treatment of hire purchase transactions. The principle of restitution of overpaid taxes is well established at Irish law (see O’Rourke v The Revenue Commissioners [1996] 2 IR 1 (HC, Keane J) and Harris v Quigley [2006] 1 IR 165, [2006] 1 ILRM 401, [2005] IESC 79 (01 December 2005) following Woolwich Building Society v Inland Revenue Commissioners [1993] AC 70 (HL); see also In re Article 26 and the Health (Amendment) (No 2) Bill, 2004 [2005] IESC 7 (16 February 2005)) so the main question in the Woodchester proceedings (at least as they appear from the newspaper report) will be whether the overpayment is in fact made out.

In other situations, the issue is not quite so straightforward. For example, in Deutsche Morgan Grenfell Group Plc v Inland Revenue [2007] 1 AC 558, [2006] UKHL 49 (25 October 2006), the ECJ had held that the UK’s VAT rules, which had treated groups of companies whose parents were resident in the UK more favourably than groups with parents resident abroad (including in other EU member states), were contrary to EU law. The consequences were that UK subsidiaries of foreign parent companies were entitled to refunds of overpaid taxes, and the House of Lords in Deutsche Morgan Grenfell (noted here) affirmed that the subsidiaries were entitled to maintain their claims not only on the basis of the Woolwich principle, but also on the basis of other common law restitution claims (such as that for mistake, as exemplified by Kleinwort Benson v Lincoln City Council [1999] 2 AC 349, [1998] UKHL 38 (29th October, 1998)). These principles are now being applied to other claimants in complicated set of test cases currently working their way through the English courts.

Again, in Fleming (t/a Bodycraft) v Revenue and Customs [2008] UKHL 2 (23 January 2008), the incompatibility between national law and EU law arose because EU required that, where the national implementation of an EU-compliant tax was amended, transitional provisions were required as a matter of EU law to allow taxpayers to submit claims which had accrued under the original provisions but which would not be available under the amended provisions. And the Deutsche Morgan Grenfell principles were applied to Fleming-related cases in FJ Chalke Ltd v Revenue & Customs [2009] EWHC 952 (Ch) (08 May 2009).

In the aftermath of the Fleming decision, the Financial Times reported that the Treasury calculated that at least £1bn was at stake, and that the refunds would prove a further drain on the stricken public finances, although – proving that every cloud has a silver lining – they would also prove a lifeline to some businesses in the credit crunch. It now emerges that the clouds and linings might have been undercalculated, and that the value of these claims could be as high as £5bn. According to the Financial Times earlier in the week:

Revenue puts aside £5bn for VAT claims

HM Revenue & Customs has set aside nearly £5bn to deal with potential claims resulting from a legal decision last year over VAT. The department said on Monday night it had received an “unprecedented” wave of claims from about 13,000 businesses that believed they had overpaid tax to the authorities. An official said: “I don’t think we have had a similar case before. It is a rather unusual situation.”

Full details of the claims – vastly bigger than initial estimates – emerged Monday after a report by the National Audit Office revealed HMRC was setting aside £7.2bn as “provision for liabilities arising from legal claims by taxpayers”. HMRC confirmed that the bulk – £4.8bn – related to claims based on the January 2008 legal victory by Michael Fleming, an Aston Martin dealer. An unrelated £1.5bn has already been paid because of the Fleming precedent. …

The Irish cases may not reach these figures, but the Woodchester proceeding suggest that, whatever about the silver linings to businesses, the UK’s overpaid VAT clouds may yet bring storms to the Irish Revenue Commissioners as well.

From the Irish Times breaking news site:

President McAleese signs controversial Bills into law

President Mary McAleese has this morning signed the Defamation Bill 2006 and the Criminal Justice (Amendment) Bill 2009 into law. …

Updates: from RTÉ news: President signs controversial bills into law; and from the Irish Times: Ahern welcomes Bills’ enactment; see also Belfast Telegraph | BreakingNews.ie | CCJHR blog | IrelandOnline | Irish Election | New Humanist | New York Times | Press Association | Slugger O’Toole | Tribune.ie. Further update: it’s now listed on the official list of Acts signed by President McAleese, as the Defamation Act, 2009 (No 31 of 2009) / An tAcht Um Chlúmhilleadh, 2009 (Uimhir 31 de 2009).

In a press release, the Minister for Justice welcomed both enactments, and he had this to say about the new Defamation Act, 2009:

Modernisation of our Defamation law is now complete on the enactment of the Bill. I believe the legislation in what is a complex area strikes the right balance in the public interest.

For Michael Nugent, the campaign to repeal the new blasphemy law begins now.