Category: Irish cases

Unconstitutional expenditures – II – the ambit of the McKenna prohibition

Screengrab of Children's Referendum website, formerly on, via Google cacheIn yesterday’s post, I looked at the background to the per curiam opinion issued by the Supreme Court in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here via RTÉ) that passages in a booklet and website published by the Department of Children and Youth Affairs fell foul of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). The reasons for that decision will be handed down on Tuesday, 11 December 2012. However, in advance of those judgments, at least three important questions arise on which the judgments of the Supreme Court in McKenna are not as helpful as they might be. First, which particular expenditure is prohibited by McKenna; second, what is the constitutional basis for this prohibition; and, third, what remedies can a court award when the McKenna prohibition is breached? I will look at the first of these questions in this post, and leave the others for subsequent posts (see also the posts here by Paul McMahon and here by Laura Cahalane).

On the question of what expenditure comes within the McKenna prohibition, Hamilton CJ held that government expenditure on “a publicity campaign designed to influence public opinion in relation to [a] proposed referendum” was undemocratic and unconstitutional. Blayney J held that “the Government is not entitled to expend State monies for the purpose of securing an affirmative result in the referendum”. Denham J held that “in expending public monies to campaign for a specific outcome to a referendum the government are not acting within their powers under the Constitution and the law” and that “the government is not entitled to expend public monies for the purpose of promoting a campaign for a particular outcome to a proposed referendum to amend the terms of the Constitution”. And O’Flaherty J held that “it is impermissible for the Government to use public money to advocate a particular result” in a referendum. Egan J dissented on the ground that he could “see no harm whatever in the Government expressing strong views in the matter even if the result may be to influence voters”.


Unconstitutional expenditures – I

Booklet cover, via BreakingNews.ieNext Saturday, 10 November 2012, the people of the Republic of Ireland will go to the polls on The Children Referendum, to decide whether to approve the Thirty First Amendment of the Constitution (Children) Bill, 2012, which would add a new Article 42A, on Children, to the Constitution.

The referendum has widespread political support, not least from the Department of Children and Youth Affairs. However, the Supreme Court decision in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995) places very strict limits on the extent to which the government can campaign on one side of a referendum issue, and in McCrystal v The Minister for Children and Youth Affairs, the applicant argued that a booklet (cover, above left), a website, and advertisements, all published by that Department, had crossed the line drawn in McKenna. His claim failed in the High Court ([2012] IEHC 419 (01 November 2012)), but was successful today on appeal to the Supreme Court [2012] IESC 53 (8 November 2012) (also here via RTÉ) (blogged here by Paul McMahon and here by Laura Cahalane).

In the High Court, Kearns P tabulated the Department’s expenditure of €1.1m; but he held that there was nothing in the Department’s publications which amounted to a clear constitutional abuse or a manifest solicitation to vote in a particular way, and he rejected the plaintiff’s claim. In particular, he took the view that the Department would have to go a very long way to cross the line drawn in McKenna:

The breach complained of must be something blatant and egregious. It must be something which is to be seen or found in the presentation of the proposal and not be a matter which to quote counsel for the defendants, “mires” the court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government. Such an approach would place the courts in a situation where, having entered into this particular domain, they could be called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government. I cannot believe the Supreme Court in McKenna (No 2) intended any such consequence. It must be remembered that in McKenna (No 2) the Dáil had voted £500,000 for the express purpose that the same be used in a publicity campaign to encourage a Yes vote.

On appeal, the Supreme Court disagreed. (more…)

Quinns and Gowns – Contempt and Respect

Pillars at front of Four Courts, Dublin. Photo by William Murphy, infomatique, via FlickrA little late (because of the rebuild and ongoing redesign of the blog, on which all comments are gratefully appreciated) I want to focus on a busy week for the Irish Supreme Court. The week before last, not only did the Court have its full roster of hearings and judgments, but the judges of the Court also made a small piece of history by stepping out in new gowns. At the beginning of the last judicial year, the wearing of wigs by judges became optional, and most have since abandoned the horsehair. At the time, I posed the question, with wigs gone, whether a revamp of judicial gowns would be far behind. It wasn’t. As Dearbhail McDonald reports, fashion designer Louise Kennedy has designed new, simplified, judicial gowns. They were commissioned in 2009, but put on hold in 2010 for financial reasons, and have now been introduced at least at the level of the Supreme Court (more coverage: Irish Times | Sunday Business Post | As Dearbhail wrote (with added links):

New gunas for judges — now for real reform

… The new European style robes are more than a costume change — they mark a major (long overdue) symbolic break with the English tradition. … The new gowns are welcome, but their introduction pales in comparison with the widespread reforms needed in our courts. … New Chief Justice Susan Denham has argued for the introduction of a Civil Court of Appeal and specialist courts that would alleviate the burden of cases on the Supreme Court. …

(For the benefit of non-Irish readers, the word “gunas” in the headline is, I think, an attempt by the sub-editor at multi-lingual wordplay. The word “gúna” (pronounced “goo-nah”) is the Irish word for “dress” or “gown”; the plural in Irish would be “gúnaí”, pronounced “goo-nee”. The sub was plainly going for an aural link between “gown” and “gúna”, and thus between “gowns” and “gúnas” (pronounced, presumably “goo-nahs”). I’m not sure that the attempt at multi-lingual wordplay was all that successful, but never mind).

The simplification of judicial court dress is to be welcomed, but I would pause at this point. Court proceedings are serious matters, and some dignity and ceremony – including some formality of regalia on the part of court actors – are entirely appropriate (see Rob McQueen “Of Wigs and Gowns: A Short History of Legal and Judicial Dress in Australia” (1999) 16(1) Law in Context 31; reprinted Federation Press Digital Edition 2008). In many ways, they are symbolic of the respect to which the Courts and their orders are entitled. One of the new gowns’ first outings was when the Supreme Court handed down their judgments in Irish Bank Resolution Corporation Ltd v Quinn Investments Sweden AB, and others [2012] IESC 51 (24 October 2012), a case concerning contempt of court and the failure of three businessmen to respect orders of the courts.


The Constitution has an unrelenting commitment to the protection of personal liberty

Gazebo at the Central Mental Hospital, via the CMH websiteAnother 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.

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

Cover of 'The Joy' by Paul Howard, via O'Brien Press WebsiteI 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.

Of the many interesting aspects of these orders, three stand out. First, Peter Daragh Quinn didn’t appear in court last Friday, and a warrant was issued for his arrest – if and when he is brought before the court again, he will be liable not only to the three-month sentence handed down on Friday but also to further severe penalties for this additional contempt. In the meantime, however, as Conor Lally and Niamh Sweeney write in the Irish Times, the authorities cannot force him to return if he has gone abroad:

“He had a sentence imposed on him for failing to comply with a civil order issued by the High Court, but that failure is not a criminal matter and extradition only applies to criminal matters,” said one legal source.

Another source pointed out that Mr Quinn … effectively has “double immunity”. He said the European Arrest Warrant could only be used to force a person’s extradition to serve a sentence in another country if the sentence was for longer than the three months imposed on Mr Quinn last Friday.

Second, if Seán Quinn (Sr) does not sufficiently comply with Dunne J’s orders within the three month period she set out on Friday, then he too faces prison for contempt on the same basis as his son (Seán Quinn Jr) and nephew (Peter Darragh Quinn). Third, the orders against the latter two contain two elements; (i) a three-month sentence as punishment for failure to comply with the June orders, and (ii) an additional open-ended committal, to remain in prison until they have purged their contempt. This means that, even after the three months are up, if the court determines that their contempt has not been purged, they would remain in prison until it has been.

As the orders against Seán Quinn Jr and Peter Darragh Quinn demonstrate, the aims of the contempt jurisdiction are twofold: to coerce or compel compliance with court orders, and to punish for non-compliance. The principles were set out by Finnegan P in Shell E & P Ireland Ltd v McGrath [2007] 1 IR 671, [2006] IEHC 108 (07 April 2006):

… committal for contempt is primarily coercive its object being to ensure that Court orders are complied with. However in cases of serious misconduct the Court has jurisdiction to punish the contemnor. If the punishment is to take the form of imprisonment then that imprisonment should be for a definite term. … in an appropriate case the Court must exercise its jurisdiction to commit for contempt not merely for the primary coercive purpose but in order to vindicate the authority of the Court and in which case the Court has jurisdiction to make a punitive order. …

When exercising its powers for coercive purposes the jurisdiction to imprison for an indefinite period for civil contempt is one to be exercised sparingly: … If there is any other means whereby compliance with the order of the Court can be achieved this should be adopted committal being in effect the last resort: … Committal by way of punishment likewise should be the last resort. It should only be engaged where there has been serious misconduct. In such circumstances it can be engaged in order to vindicate the authority of the Court. …

The three-month sentences against Seán Quinn Jr and Peter Darragh Quinn illustrate the power to make punitive orders of committal for a define period. The parallel indefinite orders against them illustrate the power to make coercive orders of committal until contempt has been purged. In the long run, this latter aspect of the contempt jurisdiction might prove even more significant for the Quinns.

Sleepwalking into an obscene damages award

Kenmare ResourcesObscene. Once I had caught my breath, and collected my composure, this was my immediate reaction to learning that a high court jury had awarded 10 million euro in libel damages, made up of €9m in compensatory damages and €1m in aggravated damages. According to RTÉ:

A Co Louth businessman who took a libel action against his former employers after an incident in which he sleep walked naked has been awarded €10m in damages.

The jury agreed that a press release sent out by mining company Kenmare Resources in July 2007 insinuated that Donal Kinsella had made inappropriate sexual advances to company secretary Deirdre Corcoran on a business trip in Mozambique in May that year.

The award is the highest award of damages for defamation in the history of the State. … Lawyers for Kenmare Resources were granted a stay on the award pending an appeal to the Supreme Court. … Kenmare Resources issued a statement saying it was ‘shocked’ at the verdict and it will ‘immediately and vigorously appeal the decision’.

The Irish Times added: “Outside court, Mr Kinsella (67) said he was ‘exhilarated and vindicated’ by the jury’s verdict”. I do not in any way begrudge him the vindication of his reputation, but does this really require 10 million euro? Indeed, the reported that the judge (Mr Justice Éamon de Valera) “appeared surprised at the scale of the damages being awarded”.

Appeals to the Supreme Court are pending in three other high profile cases of involving very high levels of damages. (more…)

Trouble in the Blog O’Sphere

Technorati logo, via TechnoratiIt all began innocently enough: just before Christmas, Sunday Times journalist John Burns wrote a piece lamenting the shortcomings of blogging in Ireland. Leading bloggers naturally begged to differ. A month later, the spat was picked up by Trevor Butterworth writing on, who noted that “it’s hard to think of a free country more suited to blogging than Ireland”. By the same token, it’s at least as hard to think of a country more given to litigation; and the point was illustrated by a story retailed almost en passant in Butterworth’s piece:

As one journalist told me, Ireland’s media is currently abuzz over a “confidential” legal settlement against a blogger, who allegedly had to pay almost $140,000 in damages for a libelous post, seen by few, swiftly purged from the site, and readily apologized for.

This was intriguing. By the end of the week, John Burns in the Sunday Times had the full story:

A blogger has agreed a €100,000 settlement after libelling Niall Ó Donnchú, a senior civil servant, and his girlfriend Laura Barnes. It is the first time in Ireland that defamatory material on a blog has resulted in a pay-out. … In December 1, 2006, a blogger who styles himself as Ardmayle posted a comment about the couple … Following a legal complaint, he took down the blog and in February 2007 he posted an apology which had been supplied by Ó Donnchú’s and Barnes’ lawyer … However, the pair subsequently issued separate proceedings. It is understood that the €100,000 settlement was agreed shortly before the case was due before the High Court.

Indeed, there had been quite a detailed report at the time in the Sunday Independent; and in the last week, many blogs have pored over the story.

There’s nothing new in online defamation; the same basic legal principles apply online as they do offline; the medium may change, but the legal consequences of the message remain the same. (more…)

Defamation, opinion, and the presumption of innocence

“Better that ten guilty persons escape than that one innocent suffer”

William Blackstone Commentaries on the Laws of England (vol 4) 358

Louis Blom-Cooper, via BBCWith very little coverage (Day 1: Irish Times here and here | RTÉ; Day 2: Irish Times), a case which had the capacity to make a fundamental change to Irish defamation law was decided in the Supreme Court at the end of last week. Two members of the Birmingham Six have taken defamation proceedings against leading English human rights barrister Sir Louis BlomCooper QC (pictured left). Blom-Cooper sought to have the case struck out on the basis that his expression of opinion was constitutionally protected. However, the Supreme Court allowed the case to proceed, and (if the press reports are accurate) ducked the constitutional question, at least for the time being.

The story begins with the presumption of innocence, embodied in the quote from Blackstone, above. In Woolmington v DPP [1935] AC 462, [1935] UKHL 1 (23 May 1935) Viscount Sankey held that “the presumption of innocence in a criminal case is strong”, and emphasised, that throughout the web of the criminal law,

… one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law … and no attempt to whittle it down can be entertained.

Furthermore, it is now clear that the presumption of innocence does not merely apply during the course of a trial. In R v Hickey [1997] EWCA Crim 2028 (30 July 1997) the Court of Appeal in England held that, where an appeal court quashes convictions, the presumption of innocence in respect the appellant is re-established. In J O’C v DPP [2000] IESC 58 (19 May 2000), Hardiman J referred to Hickey and other cases to conclude that

… the presumption of innocence applies to all unconvicted persons. This is so whether they are unconvicted because the trial has not yet taken place or because a conviction has been quashed.

The whole issue is brilliantly treated in Claire Hamilton‘s superb book The Presumption of Innocence in Irish Criminal Law. ‘Whittling the Golden Thread’ (Irish Academic Press, Dublin, 2007). However, at least in the context of convictions set aside on appeal, this was not an incontestable view of the law. In 1997, Blom-Cooper, argued that the Court of Appeal got it wrong in the Hickey case, and that the presumption of innocence persists until a conviction, but once it is gone, it is not revived by the quashing of the conviction on appeal.

0002a7e810drCommentators disagree with judges all the time. Indeed, I have done so regularly on this blog. And Blom-Cooper is an outspoken commentator who regularly argues for alternative views of the law. However, in this case, he may have gone too far. He made this argument in a pamphlet called The Birmingham Six and Other Cases. Victims of Circumstances (Duckworth, 1997). In it, he examined recent miscarriages of justice, such as the case of the Birmingham Six (pictured right), to raise once again his longstanding objections to the current system of trial by jury and to explore the consequences of the professional failure to explain the function of the Court of Appeal. Two of the Birmingham Six, Gerry Hunter and Hugh Callaghan, sued Blom-Cooper and his publisher, Duckworth, for defamation, alleging that various comments made by Blom-Cooper in the pamphlet constituted both an overt and a covert attack upon their innocence.

Once the Irish High Court had held that the case could be brought in Dublin, Blom-Cooper sought to have the case struck out on the basis that he had done no more than to express an opinion, which was a right absolutely protected by the Irish Constitution. It was an extraordinary claim – the right to freedom of expression protected by Article 40.6.1(i) of the Irish Constitution is still under-developed, and was considerably more anaemic ten years ago – but the argument held out the prospect of improving this state of affairs. (more…)