cearta.ie – Page 50 – the Irish for rights

Another quotable quote from Hogan J, this time about the right to personal liberty in Bunreacht na hÉireann.

Article 40.4 provides:

1° No citizen shall be deprived of his personal liberty save in accordance with law.

2° Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.

In FX v Clinical Director of the Central Mental Hospital [2012] IEHC 272 (03 July 2012) Hogan J held:

19. It may be that … the jurisdiction under Article 40.4.2 is a singular one, yet if this is so, let this be its own tribute to the Constitution’s unrelenting commitment to the protection of personal liberty.

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Horgan at Leveson – the Irish Press Ombudsman gives evidence to the UK press inquiry

24 July, 20127 November, 2012

| 1 Comment

| Press Council

On Friday 13 July, Prof John Horgan, the Irish Press Ombudsman, gave evidence to the Leveson Inquiry on the Culture Practice and Ethics of the Press sitting in London. His written statement is here (pdf, plus exhibit (pdf)) and a full transcript of his evidence is here (pdf). His evidence concerned the workings of the Press Council of Ireland and the Office of the Press Ombudsman, which were established in 2007 to safeguard and promote professional and ethical standards in the Irish print media. This system had already been discussed by Dr Daithí Mac Síthigh in his evidence to Leveson last December, but Horgan was able to go into more detail about it. A good summary of his evidence, in the context of other evidence in the same module, is provided by Natalie Peck on INFORRM’s blog yesterday morning. Here are some extracts (with links: some in original, some added):

… PCC chairman Lord Hunt … gave evidence to outline his proposal [pdf] for a reformed self-regulatory system … [including] a whistleblowing hotline for journalists to report on failing standards and internal governance, and an ombudsman for handling appeals of decisions made by the complaints arm of the body.

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The Quinns’ “outrageous” Contempt – punitive and coercive orders in the High Court

23 July, 20126 November, 2012

| 3 Comments

| contempt of court, Irish cases, Irish Law, Irish Society

I joined Jim Fitzpatrick (Economics Editor, BBC Northern Ireland) on George Lee‘s The Business on RTÉ Radio 1 on Saturday morning to discuss Friday’s contempt proceedings against Seán Quinn, Seán Quinn Jr, and Peter Darragh Quinn (podcast mp3 here).

On 29 June last, as part of a long-running action by the Irish Bank Resolution Corporation (IBRC) against various members of the family of the businessman Sean Quinn, Dunne J held that property schemes in Russia and Ukraine were designed by the Quinns to put €500m worth of assets beyond the reach of IBRC, and ordered the Quinns to unwind those transactions. On Friday, she held that they had not sufficiently complied with her orders, but she gave Seán Quinn three further months to do so. However, she held that Seán Quinn Jr and Peter Darragh Quinn had committed “outrageous” contempts of court, and sentenced each of them to three months in prison. Seán Quinn Jr was taken into custody after the hearing, to begin his sentence in Mountjoy Prison. As Carol Coulter points out in this morning’s Irish Times, Seán Quinn (Sr) remains at large as the judge felt that he is in the best position to work for the return of the assets.…

Political broadcasting

16 July, 20127 November, 2012

| No Comments

| advertising, Broadcasting Authority of Ireland

The Broadcasting Authority of Ireland (BAI) is the body responsible for the regulation of broadcasting in Ireland, and two of its recent decisions raise the same question of whether a power provided to it by the Broadcasting Act, 2009 (also here) is consistent with the right to freedom of expression protected by the Irish Constitution and the European Convention on Human Rights.

The first relates to the moratorium on coverage of the referendum on the Treaty on Stability, Co-operation and Governance in the Economic and Monetary Union which came into effect from 2pm on Wednesday 30 May, the day before the referendum vote, and lasted until 10pm on Thursday 31 May, when polling stations closed. Pursuant to section 42(2) of the 2009 Act (also here), the BAI prepared a Code of Referenda and Election Coverage, on foot of which Irish broadcasters were unable to carry any content that related directly to referendum issues, including material pertaining to the merits or otherwise of the referendum and the related constitutional amendment proposed.

The second relates to the decision by the BAI that a radio advertisement against prostitution and sex trafficking by the Turn Off The Red Light campaign was “directed towards a political end” contrary to section 41(3) of the 2009 Act (also here).…

Bank errors are not a licence to gamble

20 June, 201220 August, 2019

| 8 Comments

| Mistaken payments, Restitution

The above announcement currently appears on the Ulster Bank home page. It simply says that the bank is experiencing “some technical issues”, as a result of which some “account balances are not up to date” and some “services are unavailable”. When this happened to the Bank of Ireland the Christmas before last, it meant that some of its customers were able to make ATM withdrawals of amounts greater than their available funds or credit. I am not a customer of Ulster Bank. Nor do I know whether their “technical issues” are affecting their ATMs. However, if they are, then – as I said at the time of the Bank of Ireland error and earlier – making excess withdrawals in such circumstances is not a good idea. Those withdrawals will have to be repaid, either by virtue of the terms and conditions of the contract between the bank and the customer, or because of the legal duty to make restitution of mistaken payments received.

Worse, such withdrawals often amount to theft. A story in the Daily Edge stream of the TheJournal.ie today makes the point rather graphically:

Man gets $1.5m in ATM error … and then gambles it away

A DETROIT MAN faces 15 months in jail, and a court order to pay $1.5 million to his bank, after a glitch allowed him to withdraw unlimited cash from his bank account – which he then lost to his gambling habit.

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The Irish Constitution places a premium on honest and fearless debate and trusts in the power of argument and debate and reasoned discussion

6 June, 20126 July, 2022

| 4 Comments

| Freedom of Expression, Irish Law, Irish Society

The words in the rather long title to this post are taken from today’s decision of Hogan J in Doherty v The Referendum Commission [2012] IEHC 211 (06 June 2012). It is nothing less than a tour de force in which he considered hugely complex and daunting questions with courtesy and erudition, notwithstanding enormous time pressures. The case concerned an application by Pearse Doherty TD for judicial review of certain statements by the Referendum Commission in the course of the campaign for the referendum which was held on 31 May 2012 in respect of the Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) Bill, 2012. Hogan J quite rightly dismissed the application, in a cogent and compelling judgment which will no doubt be pored over by constitutional lawyers for a long time to come. He covered many important issues of constitutional and EU law in relatively brief but entirely compelling compass. I will leave to other commentators to parse the substantive decision. I want in this brief post simply to quote (with links and emphasis added) a very important section of his judgment. They are four paragraphs of clarity, style and power which to my mind will have a hugely significant impact on the development of political speech rights at Irish constitutional law:…

Limited extension of time for #CRC12 submissions

29 May, 20127 November, 2012

| 1 Comment

| Copyright, CRC12 / CRC13, Fair use

#CRC12logosmall The Copyright Review Committee has announced a limited extension of time for submissions. There has been a good response to the Committee’s wide-ranging Consultation Paper (you can download a pdf of the Paper here (via DJEI) or here (from this site); and summaries of each of the chapters are linked from this page).

However, although the date for submissions has already been extended from Friday 13 April 2012 to Thursday 31 May 2012, there have been many further requests for another extension. The Committee has therefore decided to extend the closing date to close of business on Friday 29 June 2012, in the following two limited circumstances only:

first, parties who intend to make a submission to the Committee, but who feel that they cannot do so before the existing deadline of close of business Thursday 31 May 2012, should apply to the Committee before that date for an extension until close of business on Friday 29 June 2012. The Committee will consider such requests on a case-by-case basis.
second, the Committee will soon publish on their website – probably here – every submission that will have been received by the current deadline of 31 May 2012, and the Committee will accept responses to those submissions until close of business on Friday 29 June 2012.

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Sunlight is the best disinfectant: open justice and company law proceedings

24 May, 20126 December, 2022

| 1 Comment

| Open Justice

Hot on the heels of McKillen v Misland (Cyprus) Investments Limited [2012] EWHC 1158 (Ch) (26 April 2012), about which I blogged in my previous post, the ever-wonderful Stare Decisis Hibernia blog brings news of another open justice case in the Irish High Court. In In re Skytours Travel Ltd, Doyle v Bergin [2010] IEHC 531 (9 July 2010) Laffoy J refused to hear a dispute between shareholders in camera. Section 205 of the Companies Act, 1963 (also here) allows a shareholder who complains that the affairs of the company are being conducted in an oppressive manner to apply to the court for a remedy, and subsection (7) allows the court to hear such an application in camera. In particular, section 205(7) provides:

If, in the opinion of the court, the hearing of proceedings under this section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company, the court may order that the hearing of the proceedings or any part thereof shall be in camera.

Article 34.1 of the Constitution provides that

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

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