Open Justice – cearta.ie

Last June, Tánaiste and Minister for Defence Micheál Martin announced the appointment of Peter Ward SC (pictured right) to examine the administration of cases involving Defence Forces personnel charged or convicted of criminal offences. The Report (pdf) was published this week. One of the headlines about it caught my eye:

Soldier jailed for sexual assault was able to remain in Army due to ‘data protection’ concerns

A soldier was able remain in the Defence Forces while in prison for sexual assault after the court authorities refused to hand over details of his offences to the military due to “data protection” concerns.
… The report, by senior counsel Peter Ward, found various instances of information on criminal convictions held by civilian authorities not being shared with the Defence Forces. In some cases, this significantly delayed the discharge process. …

In a post on Twitter (I still can’t call it X), Mark Hennessy (Ireland and Britain Editor of the Irish Times) commented that this was a

… scandalous misuse of the GDPR legislation, displaying a complete lack of common sense, amongst other failings. Court documents are public documents, unless there are legitimate grounds for them not being so, and this is clearly not the case her

On the basis simply of the above press report, I was inclined to agree.…

The Irish Supreme Court begins to enter the television age

24 October, 201724 October, 2017

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| Irish Supreme Court, Open Justice

When the UK Supreme Court was established in 2009, with the capacity to broadcast its proceedings, I wondered when the Irish Supreme Court would follow suit, and televise its proceedings too. Today, I have the beginnings of an answer. This morning, the Supreme Court televised its proceedings for the first time, when it broadcast the delivery of two judgments. That broadcast should be available, for the next few days at least, via the RTE Player.

Chief Justice Clarke said that the move was aimed at “demystifying” the courts process, and allowing people to “see how their highest court operates”. He also described the move as a “baby step” which could lead to wider filming of the courts in the future. I hope that it will not be long before the Supreme Court routinely broadcasts its proceedings as its UK counterpart does, and there is certainly potential for the broadcast of proceedings of other courts too. The Irish Times said:

The live broadcasting of court proceedings has been discussed for years but the impetus for it has been attributed to a meeting five years ago between Ms Denham and then RTÉ deputy director general Kevin Bakhurst. Since his appointment as Chief Justice last July, Mr Justice Clarke has been keen to advance the project, and his involvement and support was a crucial factor.

…

Social media, open justice, and contempt of court

4 July, 201726 October, 2017

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| contempt of court, Contempt of Court, Freedom of Expression, Open Justice

I have a short op-ed in today’s Irish Independent, on the topic of contempt of court by social media, pointing out that there’s a fine line between commenting on and prejudicing a trial (registration required).

Here’s a rather longer version, with a few relevant links:

The law on contempt applies equally to all media, offline and online

Social media coverage of criminal trials raises profound constitutional issues, and may hasten legislation on contempt of court

Justice shall be administered in public, according to Article 34.1 of the Constitution. The full glare of a public hearing enables everyone to know that justice is being administered fairly, and impartially, and according to the evidence. It allows the press and the public to report on, to scrutinise, and to comment upon, the workings of the law.

Every person facing a criminal charge is entitled to a fair trial, according to Article 38 of the Constitution. So commentary that gives rise to a substantial risk either of serious prejudice to, or of prejudgment of, an active trial, can amount to contempt of court. This can be dealt with either by the judge during the trial itself (by charging the jury to ignore the comments, or penalising the commentator, or – in rare and extreme cases – stopping the trial, or some combination of these), or by a case taken by the Director of Public Prosecutions against the commentator after the trial.…

Court reports and defamation

2 February, 201630 March, 2016

| 3 Comments

| 2016-17 Reform, Defamation, Open Justice

Before Christmas, the Attorney-General called for a debate on the question of whether reports of court proceedings should be actionable in defamation only if there is proof of malice.

Putting her money where her mouth is, she has now referred the matter to the Law Reform Commission (Irish Legal News | Irish Times).

A spokesperson for the Law Reform Commission told Irish Legal News:

I can confirm that a referral by the Attorney General has recently been made to the Commission pursuant to section 4(2)(c) of the Law Reform Commission Act, 1975 [also here] to examine and research matters relating to defamation law and court reporting.

The Irish Times adds that Prof Donncha O’Connell, Head of the School of Law at NUI Galway and a Commissioner at the Law Reform Commission, will head up the examination.

It is a fairly narrow issue; and if, after consultations, the Commission concludes that there is indeed a case for reform of the law of defamation as it relates to court reporters, then it will require only a small number of amendments to the Defamation Act 2009 (also here) to achieve it.…

Reform of defamation – 1 – court reports

19 December, 201514 September, 2020

| 3 Comments

| 2016-17 Reform, Defamation, Open Justice

The Attorney General, Máire Whelan, yesterday called for a debate on the question of whether reports of court proceedings should be actionable in defamation only if there is proof of malice (Irish Independent | Irish Times | RTE). She made her call as part of her comments marking the retirement of the outgoing President of the High Court, Mr Justice Nicholas Kearns. Rather predictably, an Irish Independent editorial praised her “timely and insightful address” and her “welcome and refreshing” observations, bemoaned “telephone number” legal fees and “massively punitive” damages awards, and argued that a “review of defamation laws is long overdue”.

A long-running review of defamation was concluded by the Defamation Act, 2009 (also here), which came into force on 1 January 2010. Section 5 (also here) of the Act provides

(1) The Minister shall, not later than 5 years after the passing of this Act, commence a review of its operation.

(2) A review under subsection (1) shall be completed not later than one year after its commencement.

According to the definitions in section 2 (also here), the Minister in question is the Minister for Justice and Equality. Although the deadline in section 5 has passed, a review does not yet seem to have been commenced.…

Access to justice when legal costs are high

25 November, 201511 August, 2016

| 4 Comments

| Irish Law, Legal Services Regulation, Open Justice

I have had occasion on this blog to repeat the old adage that justice is open to all – like the Ritz Hotel. I was reminded of it by two headlines I saw this morning.

The first is from today’s Irish Times:

Judge says courts ‘fearfully expensive’ and ‘accessible to few’

The court system is “fearfully expensive”, “alien” and “truly accessible to increasingly few”, a High Court Judge has said. The courts were a forum that should be engaged only as “a last resort”, Mr Justice Max Barrett added. … “Almost a hundred years after the opening salvos that led to the creation of our present Republic, we have now an expensive court system that remains alien to many and truly accessible to increasingly few.”

Update: Barrett J made these remarks in Traynor v Guinness UDV Ireland [2015] IEHC 732 (24 November 2015) [1], permitting the case to proceed, but recommending that the parties resolve the matter “collaboratively if possible, by mediation if not, by expert decision if necessary and, only as a very last resort, in this fearfully expensive forum” (id).

The second is from the Brief (a daily email newsletter from the Times, which will be made available later in the week here):

We can’t afford lawyers, says public

Lawyers and legal advice are well beyond the budgets of ordinary people, a survey published this week has found.

…

McKillen’s claims against the Barclay Brothers near their end

28 April, 201512 July, 2016

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| Open Justice, Privacy

The long-running saga in McKillen v Misland (Cyprus) Investments Ltd seems to be nearing its end. I have already discussed the stage of the case which concerned open justice, and the first instance judgment of Richards J on the substantive issue (see [2012] EWHC 2343 (Ch)). The aim of this post is to note both the final outcome of the substantive action and the ultimate resolution of the dispute in London (though an Irish offshoot may still be ongoing).

The plaintiff, the formerly reclusive but now well known Irish property developer, Mr Paddy McKillen, owned 36.2% of the shares in Coroin, which owned and managed three leading hotels in London – Claridge’s, the Connaught (pictured) and the Berkeley. Derek Quinlan owned 35.4% of the shares. In January 2011, a company associated with Sir David and Sir Frederick Barclay bought Misland (Cyprus) Investments Limited, (Misland), which then owned 24.7% and ultimately owned 28.36% of the shares. During the remainder of 2011, the Barclays and associated companies sought to take control of Coroin. McKillen alleged that the steps they took amounted to a breach of pre-emption in provisions in a shareholders’ agreement which required shares to be offered to other shareholders before being sold elsewhere, and that the pre-emption provisions were also triggered by charges over Mr Quinlan’s shares to secure Mr Quinlan’s bank borrowings becoming enforceable.…

Open justice and access to court documents – a (lightly updated) footnote

6 June, 201316 November, 2022

| 2 Comments

| Open Justice, The Rule of Law

Article 34.1 of the Constitution provides that “Justice … shall be administered in public“. By way of footnote to my earlier post on Open justice and access to court documents comes the decision of Hogan J in Allied Irish Bank plc v Treacy (No 2) [2013] IEHC 242 (21 March 2013). The applicant had been mentioned in affidavits filed by the defendant in the main action, and took this motion to have access to those affidavits. Hogan J held in his favour, and emphasised that he was entitled to the affidavits as of right and not necessarily on foot of an application to court:

[21] In any event, I do not consider that the Court’s permission was required for this purpose. These allegations were ventilated in civil proceedings in open court and, as I have already found, the affidavits were effectively openly read into the record of the court. Given that these proceedings were in open court pursuant to the requirements of Article 34.1 of the Constitution, it follows that any cloak of confidentiality or protection from non-disclosure vanished at point. …

[22] The open administration of justice is, of course, a vital safeguard in any free and democratic society.

…

cearta.ie

Category: Open Justice

Open Justice and the GDPR: GDPRubbish, the Courts Service, and the Defence Forces

The Irish Supreme Court begins to enter the television age

Social media, open justice, and contempt of court

The law on contempt applies equally to all media, offline and online

Court reports and defamation

Reform of defamation – 1 – court reports

Access to justice when legal costs are high

Judge says courts ‘fearfully expensive’ and ‘accessible to few’

We can’t afford lawyers, says public

McKillen’s claims against the Barclay Brothers near their end

Open justice and access to court documents – a (lightly updated) footnote