Sir Robert Megarry, by Anthony Morris, via the Royal Society of Portrait Painters website

At the beginning of the current legal year, Irish judges broke with three centuries of tradition, and ceased wearing wigs in court. On 13 October last, the Minister for Justice issued a press release stating that he had signed into law two new Statutory Instruments to make the wearing of ceremonial wigs optional in the courts. The Statutory Instruments came into force the following day, 14 October, just in time for the new legal term (Irish Times, here, here, and here). The making of the SIs was duly gazetted in Iris Oifigúil on 18 October (see (2011) 83 Iris Oifigúil 1417; pdf). Hence, the Circuit Court Rules (Judges Robes) 2011 (SI No 523 of 2011) and the Rules of the Superior Courts (Robes of Bench) 2011 (SI No 524 of 2011) dispensed with the requirement that judges wear ceremonial wigs in court. However, it is only this week, a full three weeks since the Minister’s press release, that the full text of the SIs became available online. (As I have asked many times before on this blog, why does it take so long for such important legal information as cases, SIs, and Acts, to be made generally available online?). Both SIs provide that:

A Judge shall not be required to wear a wig of a ceremonial type during [Court] sittings.

This is not quite a full abolition of the wig, as it does not prevent a judge who wishes to do so from wearing one. The development has been explained as part of a move to modernise the courts, though it has also been explained as an austerity move. Either way, the question arises: with wigs gone, will a revamp of judicial gowns be far behind?

So much for the bench. As for the bar, section 49 of the Courts and Court Officers Act, 1995 removed the requirement that advocates wear a wig in court, and section 117 of the Legal Services Regulation Bill, 2011 proposes to amend section 49 to include gowns as well, as follows:

A legal practitioner when appearing in any court shall not be required to wear a wig or a robe of the kind heretofore worn or any other wig or robe of a ceremonial type.

As with judicial wigs, this would make the wearing or not of wigs and gowns an issue for individual practitioners. In any event, formal attire isn’t always necessary in court. For example, in St Edmundsbury and Ipswich Diocesan Board of Finance v Clark [1973] Ch 323, Megarry J (pictured above) arranged a mock funeral in Iken in Suffolk to test how easy it would be to carry a coffin along an alleged right of way, and directed that neither he, nor the Registrar, nor counsel would be robed for the occasion:

Robes are convenient in normal circumstances as an indication of the functions of those engaged in the proceedings, and as enhancing the formality and dignity of a grave occasion. … But robes are not essential, … Jurisdiction is neither conferred not excluded by mere matters of attire or locality … ([1973] Ch 323, 333).

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At common law, the rule in Duke of Brunswick v Harmer (1849) 14 QB 185 established that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period; hence, if the same publication is read many years later, that is a new publication giving rise to a new cause of action. It has been abolished in Ireland by section 11 of the Defamation Act, 2009 (also here), which provides:

(1) Subject to subsection (2), a person has one cause of action only in respect of a multiple publication.

(2) A court may grant leave to a person to bring more than one defamation action in respect of a multiple publication where it considers that the interests of justice so require.

(3) In this section “multiple publication” means publication by a person of the same defamatory statement to 2 or more persons (other than the person in respect of whom the statement is made) whether contemporaneously or not.

Moreover section 3 of the Rules of the Superior Courts (Defamation) 2009 (SI No 511 of 2009) provides for procedures relating to applications under section 11, though I am not aware of any caselaw yet on that section. Recent UK libel reform processes have recommended a similar provision (Ministry of Justice: 2009 | 2011). Now, I learn from Judith Townend’s excellent Meeja Law blog that the First Report of the UK’s Parliamentary Joint Committee on the Draft Defamation Bill:

accepts the Draft Bill’s proposal for a Single Publication Rule, which would limit defamation claims to one year following initial digital publication, as long as the contents are substantially the same as the original (the court still has discretion to extend the one-year time-period “whenever it is just to do so”). Additionally, the Committee called for a widening of the clause’s remit, to protect not just the original publisher but anyone who republishes the same material:

The single publication rule should protect anyone who republishes the same material in a similar manner after it has been in the public domain for more than one year. It should be clarified that the simple act of making a paper-based publication available on the internet, or vice versa, does not in itself amount to republishing in a “materially different” manner.

This is a fascinating suggestion, going much further than the existing UK proposals position, but it risks making an already over-elaborate clause even more complex. I much prefer the crisp section 11, which on its face already reaches the issue considered by the UK’s Joint Committee. Their discussions do demonstrate that the issue is not straightforward, and may yet need to be revisited; but, for the time being, I think tha section 11’s lack of embellishment gets the balance about right.

Earlier this evening, I did an interview on The Last Word with Matt Cooper on Today fm concerning next Thursday’s referendum to amend the Constitution to add a mechanism to allow judges’ salaries to be reduced. The arguments in favour of the principle are very strong: as a matter of fairness and balance, when other public servants are suffering pay reductions, there is no good reason why judges should not do so too. But that is not the only principle at stake here: the independence of the judiciary is an important aspect of the rule of law. Any implementation of the principle of reduction in judicial salaries in line with other public servants ought to be done without doing violence to the principle of the independence of the judiciary. As I said on The Last Word with Matt Cooper this evening, I do not believe that the proposed amendment manages to maintain this balance.

The amendment proposes that “provision may … made by law to make proportionate reductions to the remuneration of judges” in certain circumstances. Leaving aside those circumstances, this simply allows the reduction of judicial salaries to be effected by legislation, which in the ordinary way is proposed by Government. This gives the executive significant power vis-à-vis the judiciary, and represents a significant inroad into the delicate balance of powers between the executive and the legislature on the one hand, and the judiciary on the other. Read the rest of this entry »

In Isn’t it funny, how a bear likes honey?, I considered the conviction of a Macedonian bear for theft of honey and criminal damage to a beekeeper’s hives; and in Are some goats more equal than others? I noted that a goat was being held on suspicion of committing an armed robbery in Nigeria. Now I find another story in the same vein:

Bugs and Beasts Before the Law

Murderous pigs sent to the gallows, sparrows prosecuted for chattering in Church, a gang of thieving rats let off on a wholly technical acquittal – theoretical psychologist and author Nicholas Humphrey explores the strange world of medieval animal trials.

… A few years ago I lighted on a book, first published in 1906, with the surprising title The Criminal Prosecution and Capital Punishment of Animals [pdf] by E.P.Evans, author of Animal Symbolism in Ecclesiastical Architecture, Bugs and Beasts before the Law, etc., etc. The frontispiece showed an engraving of a pig, dressed up in a jacket and breeches, being strung up on a gallows in the market square of a town in Normandy in 1386; the pig had been formally tried and convicted of murder by the local court. … All over Europe, throughout the middle-ages and right on into the 19th century, animals were, as it turns out, tried for human crimes. Dogs, pigs, cows, rats and even flies and caterpillars were arraigned in court on charges ranging from murder to obscenity. The trials were conducted with full ceremony: evidence was heard on both sides, witnesses were called, and in many cases the accused animal was granted a form of legal aid — a lawyer being appointed at the tax-payer’s expense to conduct the animal’s defence. …

Like the old joke about buses, you wait for ages, then three come along at once. So it is with consumer protection initiatives. There have been three in the past week. First, the EU Commission last week proposed a new Directive on Consumer Rights, which would merge various existing Directives and update and modernise EU consumer protection rules (hot on the heels of a slightly broader proposed Common European Sales Law). Second, the Minister for Jobs, Enterprise and Innovation yesterday announced the enactment of a comprehensive Consumer Rights Act, implementing the Report (pdf) of the Sales Law Review Group. As with the new Directive, the new Act will also merge various existing Irish pieces of legislation, and then update and strengthen Irish consumer protection law. Third, the Central Bank of Ireland today published a revised Consumer Protection Code (pdf), to ensure that consumers are adequately protected in their dealings with financial institutions. This is all very welcome, and I look forward to when these three initiatives come into force.

Last Tuesday, in the My Education Week column in the Irish Times, Paddy Prendergast, the Provost of Trinity College Dublin (and thus my boss) wrote a diary of his working week. This is how his entry for Wednesday, October 5th, began (with added links):

I meet with the Senior Dean and Dean of Students to discuss the student debating society, the Philosophical Society’s invitation to the BNP leader, Nick Griffin, to participate in a debate later this month. The issue has received considerable media coverage, but more importantly there are objections from our own college community. Freedom of speech is an important principle as is that of self-governance of student societies. We agree to meet with the Philosophical Society and consider this serious matter further. …

This seemed positive enough. Both freedom of speech and student society self-governance would pull in favour of allowing Nick Griffin to speak. Don’t get me wrong: Griffin’s views are loathsome, and the BNP is a hateful organisation, but I defend their right to spew their foul and horrid bile simply so that it can be exposed for the obnoxious and indefensible nonsense that it is. But this debate is not to be. According to a statement on the TCD website:

The University Philosophical Society and Trinity College Dublin have decided to withdraw the invitation to Mr Nick Griffin, leader of the British National Party. Mr Griffin was invited by the Philosophical Society to participate in a debate on October 20th next. After careful consideration of the matter, involving a series of discussions between the Philosophical Society’s officers and the College and taking all safety considerations into account, the decision was taken today (October 14th).

The College encourages balanced debate and freedom of speech at all times. It is a very important part of academic life, particularly among students and their societies. As part of the education of our students, the College also promotes the autonomy and self governance of student societies. These are important principles observed by the College.

Following careful review of operational and safety issues, the Philosophical Society and the College are now not satisfied that the general safety and well being of staff and students can be guaranteed. Access to the College will not be given to Mr Griffin or members of the BNP.

The University Philosophical Society feels it is unfortunate that circumstances have arisen under which the planned debate cannot go ahead without compromising safety.

The original invitation was predictably controversial. The decision to rescind it has garnered quite a bit of media coverage (BBC | DailyUpdate.ie | Irish Examiner | Irish Independent | Irish Times here and here | PA | RTÉ | StudentNews.ie | TheJournal.ie | University Times | UTV); and this has been welcomed by some of the visit’s critics (including the youth wing of the Irish Labour Party, and the Socialist Workers Party).

I am dismayed by this turn of events. Having several times wrapped themselves in the mantle of freedom of expression, TCD and the Phil have now let the mantle slip. Those who claim to respect freedom of speech must actively do so when it is difficult; else they do not really respect it at all. Freedom of speech is not always self-executing – when push comes to shove, it is necessary to be active in its defence and support. If a society such as the Phil invites controversial speakers, making a grab for the headlines, then that society must take all necessary steps to ensure that the controversial speakers actually have the opportunity to speak. Otherwise, the hecklers in a hostile audience will have a veto on the speakers. And the heckler’s veto is antithetical to freedom of speech. Hence, the US Supreme Court has rejected it as inconsistent with the freedom of expression guarantees in the First Amendment.

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The modified quote in the title is from Catullus (translation here). The image is from today’s Telegraph (update: but is now becoming controversial).

The MultiText Project in History is an innovative educational project, undertaken by the History Department, University College Cork, to provide resources for students of Modern Irish History at all levels. The following arresting image is available on their website:

MultiText’s source for the image is the Weekly Freeman for 25 February 1882, and they comment that “the unequal nature of the landlord/tenant relationship was a major cause of the land war” (a period of civil unrest in rural Ireland in the latter half of the nineteenth century, ultimately defused by a series of Land Acts between 1870 and 1903).

The image shows an unhappy tenant seated at a table, unwillingly signing a lease. Under the table can be seen a notice to increase rent and a notice to quit. At the top are two inset images, one of John Bull, the other of a destitute family heading for the workhouse. The tenant is surrounded by three grim-looking men. One has a bill for outstanding rent in his pocket, and he is brandishing an eviction decree. Another brandishes a cudgel of some sort. The third is stabbing his finger at the lease.

The caption along the bottom reads: Freedom of Contract – In Ireland.