Category: Irish Law

The Irish Times should appeal the costs order to the ECHR – Part II

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| ECHR, Irish Law, Journalists' sources, prior restraint

Cover of fact sheet about the ECHR, via the ECHR websiteIn Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times successfully resisted an attempt by the Mahon Tribunal to compel the Editor and Public Affairs Correspondent of the Irish Times to disclose the source of a leaked Tribunal document. However, in Mahon Tribunal v Keena [2009] IESC 78 (26 November 2009) (to which I will refer as Mahon Tribunal v Keena (No 2)), the Court held that the journalists should pay the Tribunal’s costs of more than €600,000.

In yesterday’s post, I argued that this was illogical: if the journalists had a privilege to with-hold the document and decline to answer the questions, then they had the privilege, and it doesn’t matter what they did with the document, and taking objection to its destruction by the journalists is neither here nor there. However, even if this might provide some justification for some punishment of the journalists, nevertheless, the European Court of Human Rights is very likely hold that this punishment is inconsistent with Article 10 of the European Convention on Human Rights. A crucial case in this respect is Cumpana and Mazare v Romania 33348/96, (2005) 41 EHRR 14, [2004] ECHR 692 (17 December 2004), where the Court held that although some penalty would have been appropriate, disproportionately severe sanctions infringed the applicant journalists’ Article 10 rights.…

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The Irish Times should appeal the costs order to the ECHR – Part I

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| ECHR, Irish Law, Journalists' sources

Classic front page of the Irish Times, via the Irish Times websiteIn a classic example of giving with one hand and taking away with the other, the Supreme Court first held that the Irish Times could assert a privilege to decline to answer questions from a Tribunal, but then ordered the paper to pay the Tribunal’s costs. This is, to say the least, a curious and illogical decision, and it is very doubtful whether the European Court of Human Rights would find it compatible with Article 10 of the European Convention on Human Rights.

According to a report in yesterday’s Sunday Tribune (see also Saturday’s Irish Times and the BBC News website) the Police Service of Northern Ireland (PSNI) have been ordered to pay 75% of the costs incurred by Suzanne Breen, Northern Editor of the Sunday Tribune, in successfully resisting the PSNI’s attempt to compel her to disclose her sources. The general rule, subject to the court’s discretion, is that costs follow the event, so Breen might reasonably have expected that the PSNI would have to pay all of her costs, but she seems to be satisfied with the decision that they should pay 75%.

Recall that in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times similarly resisted an attempt by the Mahon Tribunal to compel the newspaper to disclose the source of a leaked Tribunal document.…

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The last Irish case on criminal libel

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| criminal libel, ECHR, Freedom of Expression, Irish Law, Irish Society

Star logoYesterday’s Irish Times reminds me of an interesting High Court judgment handed down early in the Summer. It’s called Dennehy v Independent Star Ltd trading as The Irish Daily Star Newspaper [2009] IEHC 458 (28 May 2009) and it concerns an attempt to bring a prosecution for criminal libel. Section 8 of the Defamation Act, 1961 (also here) provides

No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application.

When the Defamation Act, 2009 (pdf) comes into effect in the new year, section 4 will repeal the 1961 Act and section 35 will abolish the common law crime of criminal or defamatory libel (the UK is soon to follow this lead). So, the Dennehy is likely to be last Irish case concerning this ancient crime. But the case also looks to the future, as one of the arguments made on behalf of the applicants was founded upon the European Convention of Human Rights, and the reasons why that argument failed are quite striking.…

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Defamation and the Constitution

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| Defamation, Defamation Act 2009, ECHR, Freedom of Expression, Irish Law

Coat of Arms, Ireland (the image on the cover of the Constitution) via Wikipedia“Predictions are difficult, especially about the future.” I have seen this variously attributed to Neils Bohr, Sam Goldwyn, and Yogi Berra. Whoever said it, it contains a grain of truth: when it comes to the future, all we can do is speculate. In my paper for last Saturday’s conference on Recent developments in Irish Defamation Law, I speculated on the prospect that the Defamation Act, 2009 (pdf) may be unconstitutional or incompatible with the ECHR in some important respects.

In Steel and Morris v UK 68416/01, (2005) 41 EHRR 22, [2005] ECHR 103 (15 February 2005) (the infamous McLibel case) the ECHR held that the applicants’ rights under the Convention had been infringed by the failure to allow them legal aid, in an inflexible presumption of falisty (affirmed here), and in the rule that a body corporate taking a defamation action need not prove special damage, in all three cases because these rules compounded the significant imbalance which they faced in defending a defamation action being taken against them by a multinational corporation (McDonald’s).

In Ireland, defamation is absolutely excluded from the legal aid regime by section 29(8)(a)(i) of the Civil Legal Aid Act, 1995 (also here), and the 2009 Act does not ameliorate this in any way; but since there is no constitutional right to civil legal aid at Irish law, if it is invalid, the remedy is a declaration of incompatibility with the ECHR under section 5 of the European Convention on Human Rights Act, 2003 (also here).…

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Revising the statute book is dusty but serious business

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| Irish Law

Title page of 'Statutes at Large, 1310' via TCD library websiteFurther to my three posts on the Statute Law Revision Act, 2007 (also here), I note that the second stage of the sibling Statute Law Revision Bill, 2009 was taken in the Dáil on Thursday. Friday’s Irish Times had a suitably colourful take on it: Bill to repeal statute laws dating back to Henry VIII.

In this process of tidying up the statute book, Ireland has been followed first by Westminster and then by Holyrood. In fact, it is a very important piece of legislation which will tidy up a statute book which still has more than 10,000 old Acts (3,182 pre-1751 Private Acts and 7,543 pre-1851 Local and Personal Acts) of which only 138 contain provisions of ongoing relevance. Apart from these 138 Acts specifically listed in Schedule 1 of the Bill, section 2 proposes the repeal of the other spent or obsolete Acts (1,351 are specifically listed in Schedule 2; the others will be implicitly repealed by their not being saved and referred to in Schedule 1 to the Bill). As Brian Hunt of Dublin solicitors firm Mason Hayes & Curran pointed out at an earlier stage in the process, this is difficult, technical, toilsome work with few visible results; but it is entirely necessary; and I’m delighted to see that it is progressing so effectively.…

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New kids on the block

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| Blogging, Human Rights, Irish Law, Sedition

Fiona de Londras, via UCD law school websiteI’ve just discovered the wonderful new(ish) blog Human Rights in Ireland, a group blog about – well, the clue is in the name – human rights issues in Ireland and Irish scholarship about human rights more generally. With apologies for the nkotb title, I can say without fear of contradiction that there’s lots of great stuff there; one piece in particular caught my eye, by Fiona de Londras (pictured above left):

Terrorist Propaganda or Political Speech?

In Ireland we are quite accustomed to our freedom of expression being significantly limited where that freedom is abused. This results from the express limitations in both Bunreacht na hÉireann (the Irish Constitution) and Article 10 of the European Convention on Human Rights. International law also prohibits propaganda to war as our colleague Michael Kearney has explained and examined in detail in his book The Prohibition of Propaganda for War in International Law (2007, OUP). In the United States, however, the constitutional protection of free speech (First Amendment), while not absolute, is certainly broader than is the case in Ireland or indeed under the ECHR. This makes the appeal argument by counsel for Al Hamza Ahmad Suliman al Bahlul—the only person currently in Guantánamo Bay to have been convicted of an offence relating to the ‘War on Terrorism’—all the more interesting.

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Announcing the Irish Law Quarterly

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| Irish Law, Legal Journals and Law Reviews, open access

Image from Boole Library website, UCCIt is exciting news that there is to be a new online peer-reviewed Irish law journal, the Irish Law Quarterly. (Don’t be cynical: it is exciting news; and the world – or at least Ireland – really does need another one). According to the home page:

The ILQ is an innovative journal which aims at broad coverage of legal issues, national and international, both purely doctrinal and interdisciplinary. We aim at a diversity of high quality discussion of the law from any angle. Both commentary on current matters and more considered pieces are invited.

The ILQ is run by members of the Faculty of Law, UCC; and it is supported by a grant from the National Academy for Integration of Research, Teaching and Learning (NAIRTL – I have a similar list in the comments to this post). Contributions are encouraged and readers are needed. Both will benefit: the ILQ will consist of the full mix of articles, review articles, book reviews, notes and comments, and in doing so it will provide another outlet for academic scholarship and considered debate about important legal topics.

Publication will be online (and, as a bonus, the website has a wonderful collection of links to other similar online journals).…

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Report of the Working Group on a Court of Appeal

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| Irish Court of Appeal, Irish Court of Appeal, Irish Law, Irish Society, judges, Politics

Courts Service logoI’ve written about this report twice already. The first occasion was when a committee chaired by Ms Justice Susan Denham of the Supreme Court was established to consider the necessity for a new Irish Court of Appeal (this was in part a response to an article on the point which Judge Denham had written the previous year in the [2006] 1 Judicial Institute Studies Journal 1 (pdf)). The second occasion when the Government received the committee’s report. In the most recent installment of this slow-moving story, the report was published last week – only three months after it was submitted to government – and to generally favourable reviews in the media (see Belfast Telegraph | Irish Independent here and here | Irish Times | RTÉ). …

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