Month: March 2013

Indoors or out, no one relaxes
In March, that month of wind and taxes,
The wind will presently disappear,
The taxes last us all the year.

“Thar She Blows“, from Versus (1949) by Ogden Nash

In England, Lady Day – the Feast of the Annunciation of the Blessed Virgin Mary on 25 March – was the traditional New Year’s Day. Taxes for the year, due at the end of the year, were therefore due on 24 March. In 1752, when Chesterfield’s Act, 1750 (facsimile here) moved England from the Julian Calendar to the Gregorian Calendar (170 years after it had been promulgated), 1 January became New Year’s Day. At that stage, the two calendars differed by 11 days, so Wednesday 2 September 1752 was followed by Thursday 14 September 1752. However, although the calendar year moved, by virtue of section 6 of the Act, the tax year did not; and, as a consequence:

from 1753 until 1799, the tax year in Britain continued to operate on the Julian calendar and began on 5 April, which was the “old style” new tax year of 25 March. A 12th skipped Julian leap day in 1800 changed its start to 6 April. It was not changed when a 13th Julian leap day was skipped in 1900, so the tax year in the United Kingdom still begins on 6 April.

Hence, in the UK, where the tax year in the UK runs from 6 April in one year to 5 April the next, accountants and tax advisors are busy during March, that month of taxes, preparing the early April returns. In Ireland, we also used the year ending 5 April until 2001 when it was changed to match the calendar year, and the Budget moved from March to December (the 2001 tax year was nine months, from April to December). And, earlier this month, it was announced that the Budget would move back again, from December to October, so that it can be submitted to the European Commission for scrutiny to ensure that it complies with the EU law – though it does not look as though this will have any impact on the calendar fiscal year.

In the US, tax returns are due on 15 April, while 30 April is tax day in Canada (in Canada, it’s the anniversary of the controversial Meech Lake Accord of 1987; in many European countries, it’s Walpurgis Night). This makes April a more appropriate month of taxes than March, but to cavil with Ogden Nash runs the risk of being taken as seriously as Babbage often is for his correction of Tennyson; and in any event, Nash is right that, whatever month they’re due, the taxes last us all the year.

The US Tax Foundation calculates the day of the year the nation as a whole has earned enough money to pay off its total tax bill for the year, and designates that day as tax freedom day . In the US, it usually falls in April each year. In the UK, it usually falls in May. In Canada, it usually falls in June. I’d hate to think what the equivalent date in Ireland is this year (in 2008, it was 30 March; in 2010, it was 27 April; but it will be much much later this year). In any event, whatever tax freedom day falls, Nash is still right: the taxes last us all the year.

The Department of Justice yesterday published the Courts Bill, 2013, which has two main aims. The first is to increase the monetary limit of the jurisdiction of the District and Circuit Courts in civil matters. The second is to allow the press some limited access to family law proceedings.

At present, pursuant to the Courts Act, 1991 (also here), the limit for the District Court is €6,384 (formerly £5,000), and this Bill would raise it to €15,000; and the limit for the Circuit Court is €38,092 (formerly £30,000) and this Bill would raise it to €60,000 for personal injury actions and €75,000 for all other civil claims. This is long overdue, as it will mean that cases can now be heard in more appropriate courts; in particular, matters appropriate to the Circuit Court need no longer be commenced in the High Court. In such cases, there will be simplified procedures and reduced costs. I think this is an entirely sensible idea, but I have two comments. First, section 16 of the Courts Act, 1991 (also here) provides a power by which the government may by order vary these limits without recourse to primary legislation; and I hope that this power is used in future to ensure that the District and Circuit Court limits keep pace with inflation. Second, I am not convinced that bifurcating the Circuit Court jurisdiction is a good idea. Although the general jurisdiction is to be €75,000, in his statement on the Bill, the Minister justified the lower threshold for personal injuries cases as a measure “to deal with concerns relating to possible inflation of awards and a consequent effect on insurance costs”. I don’t think that it will have an effect on such awards, but I do think that it will mean that cases which should be dealt with in the Circuit Court will continue unnecessarily to be heard in the High Court.

The other main issue dealt with in this Bill relates to open justice and the in camera rule. As I have had occasion to point out in previous posts on this blog, Article 34.1 of the Constitution requires that, “save in such special and limited cases as may be prescribed by law”, justice shall be administered in public; and section 45 of the Courts (Supplemental Provisions) Act, 1961 (also here) permits justice to be administered otherwise than in public in family law matters (see especially s45(1)(b)-(c)), to protect the identity and privacy of parties and children in such proceedings where there is no good reason that such sensitive matters be published. However, to prevent the perception of undue secrecy in such cases, section 40 of the Civil Liability and Courts Act, 2004 (also here) and associated regulations (the Civil Liability and Courts Act 2004 (Section 40(3)) Regulations 2005 (SI No 337 of 2005)) allow certain people to attend family court sittings to draw up and publish reports, as as those produced by the pilot Family Law Reporting Service and the Child Care Law Reporting Project. The new Bill goes substantially further, in that it allows for “bona fide representatives of the Press” to attend such proceedings. This term is not defined in the Bill, so it will be a matter for a judge in any given case to determine whether a person is such a bona fide journalist. Of course, the Minister may make regulations similar to those under the 2004 Act to set out some criteria to aid in that determination, but he made no comment about this in his statement on the Bill.

However, this right of access is subject to a wide-ranging discretion on the part of the judge to make necessary orders to protect the identity of children or in the interests of the administration of justice. Such orders may include restricting the attendance of journalists during the hearing or particular parts of it, or restricting or prohibiting the publication or broadcasting of evidence given or referred to during the proceedings. Moreover, this overall relaxation of the in camera rule is balanced out by a specific offence of publication or broadcast of in camera matters (which, I take it, replaces the common law rules relating to contempt in such circumstances). This is all very welcome, but I am disappointed that the opportunity was not taken to go further and provide a power permitting the broadcast of (certain) proceedings, in due course.

Even if the Minister could have taken a few more steps, those that he is proposing to take are very welcome in helping to shine appropriate light in an area of the administration of justice which is not as open as it might be.

The Irish Society of Comparative Law, in conjunction with the School of Law, Trinity College, and the Institute for International Integration Studies in Trinity College Dublin, is hosting a public lecture entitled:

Data Protection and European Developments: a German View

by Professor Heinrich Wolff (pictured left), Professor for Public Law at the Europa-Universität Viadrina Frankfurt (Oder) and Visiting Fellow at the Institute for International Integration Studies in Trinity College Dublin.

The event will be chaired by Mr Paul Lambert, of Merrion Legal Solicitors and NUIG, author of Data Protection Law in Ireland (Clarus Press, 2013); and it will take place at 7pm, on Wednesday 20 March 2013, in the IIIS Seminar Room, 6th Floor Arts Building (map here), Trinity College Dublin.

The theme of this timely lecture is data protection and European developments from a German perspective; and it will be divided into parts:

– the basics of the data protection law,
– a description of European data protection and its reform, and
– an evaluation of the reform from the German perspective.

This event is free and all are very welcome to attend. Annual membership of the Irish Society for Comparative Law is available for €50. If you have any queries or to register your interest, please email Dr Niamh Connolly (TCD) ISCL Secretary.

In honour of European Consumer Day today, and World Day Against Cyber-censorship earlier this week, two privacy reports have caught my eye. Privacy is concerned as much with what we wish to keep private as it is with how we control what others do with our private data. Both reports cover both issues. First, the Article 29 Working Party (the co-ordinating group of EU data protection commissioners) have published an opinion addressing the key data protection risks of mobile apps (press release | opinion). Mobile devices increasingly store larger and larger amounts of personal data, and this poses many risks for individual privacy, both in terms of keeping the data private and secure, and in terms of what developers can do with the data collected by their apps. The Working Party recommend that all those in the app ecosystem should understand their own responsibilities, but they also acknowledge that, to achieve the highest standards of privacy and data protection, collaboration with other parties in the app ecosystem is necessary.

Mobile apps are simply one of a plethora of modern technological challenges to privacy. Many of the others are addressed in a new UNESCO publication (cover pictured above left): Global survey on Internet privacy and freedom of expression. These principles are as likely to reinforce as to oppose each other. For example, as the executive summary puts it:

The right to privacy underpins other rights and freedoms, including freedom of expression, association and belief. The ability to communicate anonymously without governments knowing our identity, for instance, has historically played an important role in safeguarding free expression and strengthening political accountability, with people more likely to speak out on issues of public interest if they can do so without fear of reprisal. At the same time, the right to privacy can also compete with the right to freedom of expression, and in practice a balance between these rights is called for. Striking this balance is a delicate task, and not one that can easily be anticipated in advance.

The Internet presents significant new challenges for protecting the right to privacy, and creates many contexts in which privacy has never been so necessary or so precarious. To aid in the process of striking the necessary balances, the book provides an up-to-date “overview of legal protection, self-regulatory guidelines, normative challenges, and case studies relating to the topic”. It therefore covers threats to privacy that have developed through the internet (chapter 2), international legal standards on privacy (chapter 3), and the complex intersections between the rights to privacy and freedom of expression (chapter 4). Drawing on these chapters, the report then makes a series of recommendations to states and corporations for better practice (chapter 5), including:

– Strong constitutional protection should be provided for both privacy and freedom of expression. This should encompass positive protections for these rights and, ideally, impose a positive obligation on the State to provide protection against private interferences with these rights.

– The constitution should allow only limited restrictions on both privacy and freedom of expression.

– The civil law should provide a private remedy against invasions of privacy, though this should allow for a public interest balancing when issues of freedom of expression are involved.

– States should put in place sector-based criminal rules on privacy, to protect certain highly sensitive information, such as privacy of telecommunications and banking.

– States should put in place strong data protection regimes which include the key features of: (i) broad applicability, (ii) the right of consent, (iii) the right to access and correct, (iv) obligations on data controllers, and (v) the right of redress.

– There should be exceptions to these rules for certain types of data collection, in particular where this is for purposes of freedom of expression.

– Corporations should develop strong privacy policies to protect users.

– States, corporations and the media should undertake awareness-raising efforts about privacy and new technologies.

My sense is that Irish law broadly comform with these standards, but that state and private pratice still have a long way to go to comply. Moreover, I would not want either report to obscure the role of personal responsibility: you may not notice you’ve lost your privacy till it’s gone, so you have a responsibility to inform and protect yourself as much as you can. If you don’t, then all the constitutional and legal structures and privacy policies and information campaigns are for naught.

Late to this, with apologies, I am told that the Irish Law Journal is still (just about) accepting submissions (email here) for its second edition. Submissions should be no more then 25,000 words in length, on any matter of law. According to its submissions page:

The Irish Law Journal strives to publish novel scholarship that will have an immediate and lasting impact on the legal community in Ireland and abroad. We invite articles from academics, professionals and students of law or related disciplines. Case comments and book reviews will also be accepted. While each issue might have articles focused on Irish law, the journal’s remit is international and we welcome submissions on all areas of the law irrespective of national boundaries.

I think that this is an excellent endeavour, adding to the range of journals available in Ireland. They largely fall into two parts: student run for student publication, and more professional or academic for professional or academic publication. The Irish Law Journal crosses this divide: it is student-run and student-edited, but seeking to publish professional and academic pieces. Not only will such a journal publish valuable new legal research, it will also help in the development of law students.

They would prefer submissions in the LegalCitation.ie OSCOLA format (though, that said, if a good piece is submitted in the benighted BlueBook format, I am sure they would consider it). I blogged about the journal when it was first launched, and I understand that volume 1 is now available on HeinOnline, and will soon be available both on Westlaw.IE and LexisNexis; and volume 2 will be as well in due course. So, go ahead, make a submission.

The image on the left is based on screen grabs taken by @jimboireland and @WayneDoyle___ (click through for a bigger size). It shows a ‘samsung 51″ series 4 3D plasma tv’ for sale on a retail website for “€6.49 plus VAT” (I’ve zoomed in on the price, just to make the point). This offer looked like it was too good to be true; and that’s exactly what it was – too good to be true. The €6.49 was a typo for €649. I have blogged about similar mistakes on the part of United Airlines, Aer Lingus, Dell, Best Buy, Arnotts, and Round Hall. This time, it was VikingDirect.ie – and, as the Irish Times and The Daily Edge are reporting, they have apologised to their customers, but are not going to honour the sale of the televisions at 1% of its retail price.

The customers will probably argue that they had contracts with the retailer, which the retailer must honour by selling the tvs at the knock-down prices. However, these contracts are subject to the website terms and conditions, section 5 of which details how the relevant contract is made: the customer’s order is an offer to purchase the goods on Viking’s conditions; and the offer is accepted, and the contract is made, when Viking send the customer an e-mail acknowledging the order. This means that the advertisement on the website is not part of the contract at all (in the jargon, it is simply an “invitation to treat”, an invitation by Viking to customers to make offers to purchase). Furthermore, section 15 of those terms and conditions provides for a “right to cancel or vary” on the part of Viking, as follows:

If … our web site and/or ordering web pages contained any error, including in relation to the description or price of any of the goods … we shall be entitled to cancel the contract as a whole or in respect of those goods, in which case we will offer you a full refund, …

As the Viking statement on the issue (and I’m relying here on the media reports, as I can’t find the statement on the VIking website) referred to this clause, and continued

We are in the process of contacting those customers who placed an order for the wrongly priced television to advise them of the misprice and their impending refund. We would like to apologise to our customers for any inconvenience this has caused.

Aggrieved customers might argue that section 15 is an unfair term, for the purposes of the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (SI No 27 of 1995), but I don’t think that’s a particularly strong point. In the end, therefore, the fact that Viking Direct can avoid having to sell samsung 51″ series 4 3D plasma tvs for the advertised price of €6.49 plus VAT is a pretty straightforward piece of contract law; and the moral is twofold:

• terms and conditions will apply (so vendors should ensure that the terms and conditions of their websites cover such eventualities; and consumers should be aware of such terms and conditions); and
• if the offer is too good to be true, it probably is.

Nevertheless, if I were one of the customers, I think I’d rather have the television than the apology.

Hawley Harvey Crippen (pictured far left) was the first criminal to be captured in Britain with the aid of wireless communication. He was an American homeopath who fetched up in London at the turn of the 20th century with his wife, Cora, a former music-hall singer. After she disappeared in 1910, Hawley and his lover, Ethel le Neve (pictured left, with Hawley), were questioned by Chief Inspector Walter Dew of Scotland Yard, and they fled in panic, first to Brussels, and then via the steamship Montrose to Canada. Meanwhile, during a search of Hawley’s house, the police found human remains buried in the basement. On the Montrose, he and Ethel (who had tried to disguise herself as a boy) aroused the suspicion of the captain; and, since the ship was one of the few fitted with the new Marconi wireless, he was able to radio the authorities. Dew boarded the Laurentic, a faster ship which arrived in Canada ahead of the Montrose; and, with the help of the Canadian police, he apprehended Hawley and Ethel. They were returned to London (the picture, left, was taken at their arraignment). Hawley was convicted of murder, and his appeal was dismissed (R v Crippen [1911] 1 KB 149). However, Ethel was acquitted of aiding and abetting him, whereupon she changed her name, and vanished into obscurity.

After Hawley was hanged for Cora’s murder, her family sought to ensure that he would not succeed to her estate; and, in In re Crippen (deceased) [1911] P 108 Evans P granted administration of Cora’s estate to her next of kin, and not to Ethel (who was executrix of Hawley’s estate). In Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 156, Fry LJ had held that “it is against public policy to allow a criminal to claim any benefit by virtue of his crime” (see generally Jones 1 Theoretical Inquiries in Law 59 (2000); Peart 31 Common Law World Review 1 (2002)); reflecting this, in Crippen, Evans P held

It is clear that the law is, that no person can obtain, or enforce, any rights resulting to him from his own crime; neither can his representative, claiming under him, obtain or enforce any such rights. The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence.

(more…)