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Challenging the Marriage Equality Referendum December 4, 2015

Posted by Tomboktu in Judiciary, Justice.
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Gerry Walshe was back in the High Court last week, with a preliminary procedure before an application to the Supreme Court for leave to challenge — again — the result of the marriage equality referendum.

Mr Walshe was one of two men who started legal challenges to the result of the referendum, in accordance the Referendum Act, shortly after the referendum returning officer signed the provisional referendum certificate.

He’ll lose, and I and many others will welcome that outcome. But I think that we should not welcome the process that got us here.

It’s worth summarising the sequence of some of the events in Mr Walshe’s challenge. The broad picture is that Mr Walshe (and another man in a separate case) sought leave to challenge the referendum certificate in the High Court, was denied leave by the High Court, and then appealed to the Court of Appeal, which heard and rejected his appeal on 30 July. (The legal order for the judgement was finalised — ‘perfected’ in legal jargon — the following day, 31 July, completing that court’s task with that case, just in time for its summer break.)

Here the sequence stops being a simple linear narrative. It doesn’t spoil the plot to say that Mr Walshe did lodge an appeal to the Supreme Court, and lost there too.

Pay attention to the dates in following two quotations, which are taken from the Supreme Court’s summary of the sequence of events:

(vi) The applicant filed his application for leave to appeal in the Office of the Supreme Court on the 27th August, 2015, and served it on the respondents on the 27th August, 2015.


(ix) The Referendum Returning officer received written notification from the Master of the High Court on Monday, 24th August, 2015, that no leave was granted by the High Court to present a referendum petition in respect of the Referendum on the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015.

Here’s the problem both Mr Walshe and the Supreme Court faced: The referendum returning officer received the notification — which in the context of the Referendum Act is effectively an instruction to her to tell the Taoiseach and President to proceed with the final steps in making the amendment to the Constitution — before Mr Walshe lodged his appeal with the Supreme Court.

It is also important to note that Mr Walshe’s application to the Supreme Court was made before the deadline for doing that.

So how did the returning officer get a notification from the High Court before the deadline for Mr Walshe to appeal? The answer is that the Court of Appeal, in addition to rejecting his appeal, also lifted a stay on the referendum certificate being issued.

I think we should be worried at that decision.

Access to our courts — and therefore part of access to justice — is difficult enough. Barriers include the cost of barristers, and the opaque nature of the procedures. (One of the two challenges to the referendum could have fallen even before being heard in the High Court because it was lodged as an application for judicial review rather than as an application for leave under the Referendum Act. When the President of the High Court noted that the application he had before him was incorrect, the barrister for the state essentially forced the High Court to deal with the substantive matter by saying it was not challenging the case on the basis of that error and was happy to let it be treated as a petition application rather than a judicial review application.) Both were wrong in the arguments they made in support of their challenges, ridiculously wrong. But when the rule of law applies, you have a a right to go to court. There are situations when that right might be restricted, but being wrong in your arguments, your understanding of constitutional law or your grasp of the Referendum Act (and the Electoral Act, as it happens with Mr Walsh) are not among them.

Mr Walshe was a ‘lay litigants’, who had found his way through the Referendum Act and the rules of the courts to lodge his challenge. Also, while it might have been justified to deal with his case expeditiously, there was no pressing need to deal with it unduly urgently. (If the issue was urgent, the referendum sould have been held three months earlier in February, or the previous November.) I believe that when the Court of Appeal lifted the stay, it misjudged. It knew that Mr Walshe is not a lawyer, and it knew that the matter could have waited a few more weeks.

Justice would have been better served by allowing Mr Walshe (and the man who took the other case) to plod his way through the processes, without introducing technical hurdles, and have him lose — as he did — in the Supreme Court on the substantive issue that his case was wrong, without opening the question he now raises: that the process of issuing the referendum certificate should not have happened while he was still entitled to challenge it in the Supreme Court.

Constitutional Convention February 24, 2014

Posted by Tomboktu in Bunreacht na hÉireann, Health, Housing, Human Rights, Judiciary, Religion.

It would not be correct ot say that the Convention on the Constitution has been radical, but it has wrapped up its work with its most radical recommendation.

In Ireland, economic, social and cultural (ESC) rights are included in the Constitution merely as “directive principles” for the guidance of the Oireachtas. (The exception is the right to a primary education.) The Constitution states that these rights “shall not be cognisable by any Court under any of the provisions of this Constitution”. [An aside: doesn’t the word ‘cognisable’ sound like street slang for ‘recognisable’? The image of Dev getting down with the lads doesn’t seem right. At all.]

The principles listed under this provision are

  • an adequate means of livelihood
  • ownership and control of the material resources distributed to best subserve the common good
  • the operation of free competition not being allowed so todevelop to the common detriment
  • the aim of the control of credit shall be the welfare of the people as a whole
  • there may be established on the land in economic security as many families as practicable
  • the State whall favour and, where necessary, supplement private initiative in industry and commerce
  • private enterprise shall be conducted to ensure reasonable efficiency in the production and distribution of goods and to protect the public against unjust exploitation
  • the State safeguarding with especial care the economic interests of the weaker sections of the community
  • ensure that the strength and health of workers, men and women, and the tender age of children shall not be abused

Those of us on the Left would hardly think it radical that any of these would move to legal requirements that can be invoked before the courts, and would not be thrilled to see the status of private industry — already sheltered with property rights — re-inforced by being made something judges must take account of in legal decisions.

An overwhelming majority — 85 percent — of the members of the convention voted in favour of the broad proposition that the Constitution should be amended to strengthen the protection of economic, social and cultural rights. A smaller majority — 59 percent — recommended that the Constitution be amended by the insertion of a provision that the State shall progressively realise ESC rights, subject to maximum available resources and that this duty is cognisable by the Courts. This was the strongest of three options the Convention considered for strangthening the status of ESC rights in the Constitution.

However, progressive realisation subject to maximum available resources is not a very strong standard.

It also voted on five possible specific new rights to be named in the Constitution:

  • housing
  • social security
  • essential health care
  • rights of people with disabilities
  • linguistic and cultural rights

In each case, it voted overwhelmlingly in favour of each of these — the least popular was linguistic and cultural rights, with 75 percent support.

It also voted for the “rights covered in the International Covenant on ESC Rights” to be named in the Constitution — this received support from 80 percent of the members of the Convention.

I do not expect this recommendation to go far. The idea that citizens could go to the courts to invoke rights on these matters is simply too alien to our governments, politcal and permanent. Indeed, when an alliance of NGOs first met last year to discuss the idea of asking the Convention to consider the issue, they held a seminar at which the political parties sent representatives to give their views. It was disappointing to hear the party representatives say that constituional protection of ESC rights is not something they support. I hope some them reconsider in lgiht of the numbers from Sunday’s vote.

Apply the law, Judge Teehan. August 13, 2011

Posted by Tomboktu in Human Rights, Inequality, Judiciary, racism, Rights.

A judge’s job is to apply the law, as set out by the Oireachtas. That task is subject to the Constitution and EU law.

I am trying to figure out Judge Tom Teehan’s thought process in doing his job in a recent case. In fact, it looks to me like he didn’t do it correctly. The case was the appeal against a decision in favour of a teenager called John Stokes. He is a Traveller, and had been refused entry to a secondary school of his choice. (Actually, it was his mother’s choice, but when you’re at the younger end of your teens, that’s how these things are decided.)

The facts behind the case have been reported widely enough in the Irish media, and not all of them are relevant to the issue I have with the judge’s thinking, so I won’t repeat them here.

To tee-up my point, let me quote the three relevant pieces of law.

Exhibit A, Section 7(2) of the Equal Status Act:

(2) An educational establishment shall not discriminate in relation to—
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,

Exhibit B, Section 3(1) of the Equal Status Act (this was amended by the Equality Act 2004, and it is the current wording I quote here):

(1) For the purposes of this Act discrimination shall be taken to occur—

(c) where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary

And the final piece of law, Exhibit C, the section 3(2) of the Equal Status Act which is referred to in Exhibit B:

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”) […]

The key piece is Exhibit B. The starting point of it — in fact the core purpose of it — is that an apparently neutral rule cannot be used to discriminate on the Traveller ground. It then allows an exception to that: the rule “is objectively justified by a legitimate aim”, and sets a standard for that exception: “the means of achieving that aim are appropriate and necessary”.

Now, I know some disagree with this law (I don’t), but whether or not it should be the law is beside the point here. The fact is that the democratically elected Oireachtas decided that this is what the law is, and the judge’s job is to apply the law.

The rule the school used to exclude John Stokes was that his father had not been a pupil at the school, and when the school was over-subscribed it gave places to the sons of past-pupils first before running a draw for others.

The judge summarised the situation and said:

Accordingly, it can be stated unequivocally that the “parental rule” — an ostensibly neutral provision as provided for by the amended section 3(1)(c) of the Equal Status Act — is discriminatory against Travellers.

He then said that the question that arises is whether the school can invoke the exception:

[T]he onus is on the [school]
(A) to objectively justify the there was a legitimate aim;
(B) to prove that the measure was proportionate; and
(C) to establish that such measure was necessary.

In paragraph 17 of the his judgement, Judge Teehan said*:

17. With regard to the question of the legitimacy of the aim, [John Stokes] adverted in argument to the school’s Admissions Policy, and the lack of any direct correlation between the stated aims and the “parental rule”. Dealing with “Goals”, one of the criteria referred to is “supporting the family ethos within education”. While this goes on to justify the “sibling rule”, with no reference to parents, I find that the overall aim of the [school’s] Board in introducing the “parental rule” is entirely in keeping with this goal and the “characteristic spirit of the school”, a concept to which it must have regard with section 15(2)(b) and (d) of the Education Act 1998. The [school] has thus objectively justified to the satisfaction of this Court that the aim of the Board in this regard was wholly legitimate.

Now, the judge goes on to deal with the second and third components of the exception — the bits about ‘proportionate’ and ‘necessary’ — but I stop here at the first stage and ask: what on earth did the judge think he was doing finding a ‘father rule’ was legitimate? That finding completely rejects the the intention of the Oireachtas, and the judge has failed in his duty to apply the law as set by the democratic legislature. (Nor he is not invoking a higher authority such as the Constitution or an over-riding EU law.)

Let us remind the judge: the core purpose of the law you were meant to apply is to prohibit discrimination against Travellers. Now, ask the question: how do you get to be a Traveller? The answer, of course, is by being the son or daughter of a Traveller. I can think of no other way of becoming a Traveller. And the rule the school used to give preference to non-Travellers — which the Judge did find is discriminatory — uses that very criteria of who your father (in this case) is, and that rule is, he says, a ‘legitimate aim’?

If the judgment is not overturned, the idea of a ‘legitimate aim’ will be allowed to be so wide, so flexible, that all somebody has to do to get away with undermining the intention of the Oireachtas would be to define an aim that is based not on your membership per se of a group that is the subject of the discrimination at hand, but on the process by which you come to be a member of that group.

Do you want to exclude people who have a disability? Then write a rule that discriminates against anybody who has had an accident that severed their spinal cord, or who in utero experienced a bio-chemical assault that irrepairably damaged the genes that control the development of hearing, etc.,

I wonder would Judge Teehan have tried his logic with a rule that permitted lower pay for people formed from the merging of a human sperm containing an X chromosome with a human egg. That would have been an ingenious way to overturn the Oireachtas’s intentions on gender discrimination.

*To make it easier to follow, I have replaced the words ‘respondent’ with ‘John Stokes’, and ‘appelant’ with ‘school’ in the quoted text.

Dear FG, please copy and paste January 8, 2011

Posted by Tomboktu in Bunreacht na hÉireann, Complete nonsense, Fine Gael, Judiciary.

Dear Fine Gael,

In light of the news that 22 judges are refusing to take a pay cut, and the failure to implement your 2009 promise to introduce a Constitutional amendment to allow judges’ pay to be reduced, Cedar Lounge Revolution is happy to present, for a second time (with the year changed), the English language text your party needs. Unlike the recently discussed plans to abolish the Seanad, this isn’t complicated and involves only one article in the Constitution. Could you arrange for it to be among our ballot papers on the day of the General Election, please.


With Kind Regards,


(PS: Apologies that my Gaeilge is not up to doing the Irish texts, but I know that you have access to the necessary expertise.)



Twenty-seventh Amendment of the Constitution Bill, 2011


As initiated






Mar a tionscnáodh




1. Amendment of Article 35 of the Constitution.

2. Citation.








WHEREAS by virtue of Article 46 of the Constitution any provision of the Constitution may be amended in the manner provided by that Article:

AND WHEREAS it is proposed to amend Article 35 of the Constitution:


1.–(1) Article 35 of the Constitution is hereby amended as follows:

(a) in the Irish text – […],

(b) in the English text –

(i) the insertion of “except as provided for in section 6” after the word “office”, and

(ii) the insert of the following section after section 5–

“6 The remuneration of a judge may be reduced during her or his continuance in office only when and to the same extent that a reduction in pay is applied to a significant proportion of workers who remuneration is supplied from public funds.”.

2.–(1) The amendment of the Constitution effected by this Act shall be called the Twenty-seventh Amendment of the Constitution.

(2) This Act may be cited as the Twenty-seventh Amendment of the Constitution (Putting Manners on the Judiciary) Act, 2011.







Purpose of Bill

The Bill is designed to amend the Constitution in order to achieve the following purpose: To make it constitutional for the pay of members of the judiciary to be reduced provided that this is done in a way and at a time that is similar to any reduction that applies to other public sector workers.


The acceptance of dishonesty February 21, 2010

Posted by Tomboktu in Ethics, Ireland, Irish Politics, Judiciary, media, Sport.

RTÉ’s Sunday Miscellany (on Radio 1) is listed as entertainment by the station. The worst emotion you might expect the programme to raise is nostalgic sadness for times now passed. This morning’s programme [I don’t know how long this link will last], however, contained an essay that produced in me frustration at the acceptance of dishonesty in our society.

The essay was by the John O’Donnell telling about his participation in the Irish Times’ Debate competition [as the paper dubs it] in 1979. In his essay [at the 44 min mark in the webcast], he says:

I learned just how inventive speakers could be. In the out-of-town semi-final, one team spewed out an impressive array of statistics from a survey which they claimed had been carried out by two researchers named Termin and Tyler. All the statistics supported the team’s argument on the motion that women’s liberation did not mean equality. The duo duly roared on into the final. Only later did we discover that Termin and Tyler were the names of two shoe shops our heroes had driven by as the drove through the town of Naas en route to the venue.

I am not surprised that some competitors in the debating competition would pull strokes. All competitive sports have cheats: competitors who take performance-enhancing drugs in physical sports like athletics or cycling, or somebody who assaults a wife’s competitor, as famously happened in skating. However, would a sports writer or former competitor expect to get away with describing those tactics as “inventiveness” or refer to the outcome as “duly” roaring into the final? The only way I could see it being acceptable is if it were clearly with sarcasm or irony. [As the sport discussed in the Sunday Miscellany essay is debating, I probably don’t need to tell this morning’s contributor that ‘duly’ is defined as: “adv properly; fitly; at the proper time” (The Chambers Dictionary, New Ninth Edition; 2003).]

Two things sadden and irritate me about this morning’s broadcast. The first is that nobody in RTÉ said rewording of that part of the essay would be needed to make it less accepting of the cheating. The second is the arena in which that cheating occurred and what that tells us about problems elsewhere in our society. Many of the winners of the Irish Times Debate competition go on told key roles in our institutions: in the legal system, medical establishment, in broadcasting. If participants like this morning’s essayist recount without criticism that cheating has occurred in the speeches delivered by competitors, should we be surprised that speeches made in other fora, such as the Dáil by a government minister, contain assertions that are, as Professor Karl Whelan put it recently,“well (… looking for polite term for it) not correct”?

The shape of things to come… A 32 county Republic… well, maybe… April 11, 2008

Posted by WorldbyStorm in Judiciary, The Left.

An interesting but frustrating piece in the Irish Times by Deaglán de Bréadún, their Political Correspondent considers the question ‘Could the 26 ever really become the 32?’. Interesting because it appears there, frustrating because it is relatively short. And the occasion for these ruminations? Why the 10th anniversary of the Belfast Agreement (the term used pretty much exclusively in the IT).

It certainly appreciates Unionist opposition to the concept and argues that initial Unionist objections to a United Ireland have been ‘eroded’ since they were first raised.

The Ulster Covenant, a solemn and binding oath of resistance taken by almost half a million unionists, declared that “Home Rule would be disastrous to the material wellbeing of Ulster as well as of the whole of Ireland, subversive of our civil and religious freedom, destructive of our citizenship and perilous to the unity of the empire”. Almost 100 years later and in defiance of the covenant prophecy, the independent part of Ireland is thriving and prosperous, with a high measure of civil and religious freedoms enjoyed by those who live there.

Which is true, but makes me wonder. After all, an embedded national identity is more difficult to overturn than a simple listing of objections might suggest. It doesn’t begin to hint at the sense underlying all nationalisms of self and other. De Bréadún does address this in some measure, noting that the Belfast Agreement specifically fixed citizenship rights in the North with the two governments “recognis[ing] the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both governments and would not be affected by any future change in the status of Northern Ireland”.

This isn’t incidental by any means. As De Bréadún relates: although the pledge is “not justiciable” (ie cannot be vindicated in the courts) it is nevertheless a “very, very big promise”, which was unprecedented and was not extended to the residents of Hong Kong, for example, when the British left.

It is indeed crucial, but citizenship is more than simply a passport. It is built up of a complex web of political, social and cultural interactions. Would a passport suffice to substitute for those in this putative 32 county Republic?

That said he points to the changing, or evolving if you prefer, nature of the United Kingdom itself. With Scottish and Welsh political devolution generating new and subtle tensions within the UK it is reasonable to suggest, as has been done on the Cedar Lounge previously, any manner of possible outcomes. For example, a successful independent Scotland would result in a most interesting situation for the remainder of the UK. And this in spite of the strong links between the North and Scotland which would make for a most interesting new layer of relationships on the east west axis.

The ties that bind the constituent elements of the United Kingdom are gradually getting looser. An ICM poll conducted in England for the Sunday Telegraph found that only 18 per cent of respondents believed the union would survive indefinitely.

Well, indefinitely is, as they say, a long time.

Scottish independence is a hot topic again and a “velvet divorce” à la the Czech Republic and Slovakia cannot be ruled out.

Perhaps. I tend to think it is a medium term prospect, but then again, who knows? He rightly considers the mechanisms by which a UI might emerge…

The legal and parliamentary procedure for bringing about a united Ireland is clear-cut. Former head of the Northern Ireland civil service Sir Kenneth Bloomfield put it succinctly in a lecture at the 2007 Merriman Summer School in Lisdoonvarna: “If and when a majority of the people living in Northern Ireland vote in favour of such a step, legislation will be introduced into the parliaments of the two sovereign states to transfer the six counties from the one jurisdiction to the other.”

This would come in the wake of a “Border poll”, although relatively little attention has been paid to this issue. There is provision for it in the Belfast Agreement. The Northern Ireland Secretary may order a poll if it appears likely to him or her that a majority wish to join a united Ireland, but there must be a seven-year gap between polls.

So if, for example it arrived on the table in 2010, we would then have to wait until 2017 for a repeat. And it’s not hard to envision a situation where it might, on paper, be feasible.

Theoretically, if a relatively small percentage of unionists broke away from the consensus within their community and made common cause with the vast majority of their nationalist neighbours, a united Ireland would follow. In practice, the majority for unity would have to be considerably greater than that (ideally, there would be a strong majority in both communities) and it would have to be clear that the dissident unionist minority would accept the referendum result in a democratic spirit and refrain from violence, or at least be incapable of perpetrating more than a token level of violence.

I find that ‘token’ level of violence phrase fascinating, and perhaps worthy of future examination. What precisely would that be, but in the meantime, the point is well made. This could only ever, in practice, be an agreed merger, which means that somehow a lot of minds have to be changed and rapidly at that.

Incidentally, am I missing something but on a conceptual level it seems that the journey to a UI would only ever be one way, at least insofar as it is structured by the GFA and indeed previous Acts. Once entered into a UI there would be no process by which Northern Ireland could secede. Which, perhaps, tells us something about the underlying dynamics of the contested nationalisms on this island.

Incidentally, at the time of writing, the two main unionist parties occupy only 54 or precisely half of the 108 seats in the Assembly. The remainder is made up of Sinn Féin, the SDLP and Alliance as well as two Independents from the nationalist or republican “gene pool”, one Green and one Progressive Unionist. Given the continuance of the powersharing administration in the North, who knows how the unionist mindset might gradually start to shift and reassess the constitutional position? The functioning and performance of the North-South bodies could have a major influence in this regard.

I’m not entirely convinced, again at least in the short term.

Éamon de Valera regarded Irish membership of the Commonwealth as a form of reassurance for Britain and the unionists that could potentially ease the path to unity. Perhaps in a future final settlement there could be a quid pro quo: Ireland becomes a 32-county independent republic but forges a fresh link with the Commonwealth as a symbolic gesture of reconciliation and on the clear understanding that there are no implications for Irish sovereignty in such a move.

That last I find interesting as well. To be honest, and this returns to the issue of citizenship addressed earlier, it would to my mind have to incorporate some degree of political linkage on the east west axis. This might well be unpalatable for many. Retention of seats in the House of Lords for the six? How does that strike people? Because I really can’t see the citizenship issue being cast aside… Such accommodations were made in the past as with the Trinity Senate seats. Granted that was internal to the 26 with no clear issues as regards sovereignty, but with a very specific purpose in mind.

Still, he goes on to make some fascinating suggestions.

Unionists and probably even nationalists in the North would have to be reassured that Belfast would not be downgraded to the status of a provincial town. It would seem logical to offer the North some form of regional autonomy, at least on a transitional basis. Alternatively, or in addition, Belfast could be deemed the political and/or administrative capital of a united Ireland, given that Dublin is widely considered to have exceeded all reasonable levels of growth.

Éire Nua how are you. The then, presumably, shade of R Ó’B might well find that a strange sort of vindication. But again regional autonomy makes sense of sorts. Still, in all that there is an interesting point that he raises when he notes:

Bloomfield suggested a way forward in his Merriman lecture: “Let Catholic and Protestant, unionist and republican, learn in the first instance to work harmoniously together in the North for the public good rather than for ulterior motives. Let North and South co-operate over a widening range of issues, proceeding always on a basis of mutual consent. “Let us acknowledge that, however dominant and oppressive that other island may have been in the past, today we should be the greatest and most natural of friends. Let us build on the foundations of our North-South and east-west institutions a commonwealth of common heritage and mutual understanding.”

It’s not so much that they’re particularly innovative as that they come from a very particular source.

Hearing such comments from a former top civil servant and close adviser to Northern Ireland prime ministers, whose home was subjected to a terrifying bomb attack by the IRA in August 1988, underlines how far we have come in the last 10 to 15 years. Although Bloomfield was a sharp critic of the 1985 Anglo-Irish Agreement, in a sense he is picking up where he left off in early 1965, when he was involved in the mould-breaking cross-Border meetings between prime ministers Seán Lemass and Capt Terence O’Neill.

I’m certainly not dismissing the possibility that situations do change, and rapidly – but we’re not there yet. That Bloomfield says such things is not indicative of a surge of sub-nationalist sentiment in the Unionist community, but it might just point to a way that that community may come to rethink and rework the relationships on the island in particularly unexpected ways. One thing we can probably bet the house on is that whatever emerges will not be in the shape of a single unitary Republic of Ireland pristine and whole unto itself. Instead the new entity will most likely bear the marks of a long and fractious history. And why not? At least that’s honest.

Iran still stoning women to death January 15, 2008

Posted by franklittle in Crime, Iran, Judiciary, Middle East.

Stunned to hear people being interviewed on Matt Cooper’s Last Word this evening about the practice of stoning, which it turns out is still alive and well in Iran. Amnesty International has just published a report highlighting the cases of nine women and two men who are under sentence of death by stoning at the moment and as grotesque as the notion is to my mind, it’s the little things about the process that are the most horrifying.

Article 104 of the Iranian Penal Code specifies the kind of stones that should be used. They should, “not be large enough to kill the person by one or two strikes; nor should they be so small that they could not be defined as stones.” In other words, we need stones big enough to really hurt someone, but not big enough that they die or lose conciousness. And we’re going to write that into the law. As Amnesty put it, “In Iran stoning is not against the law. Using the wrong stone is.”

Under Article 102 of the Iranian Penal Code, the process begins by digging a pit for the victim. The pit is then filled in to waist height for a man, and to chest height for a woman. I wasn’t sure of the reason for the difference, but perhaps it is to be found in one of the defences used by the Iranians to explain stoning.

In September 2007, the Secretary General of Iran’s Human Rights Headquarters and Deputy Head of the Judiciary defended the use of stoning by arguing, among other points, that in stoning, “the defendant has the chance to survive.” So a man is buried to his waist and a woman to her breasts and if, under a hail of stones, either one of them manages to climb out (Let’s pause for a moment to consider how unlikely this is) they’re free to go. Hence, perhaps, why the woman is buried to her chest.

According to Amnesty one of the most recent stonings was in 2006:


“Abbas H and Mahboubeh M were said to have been executed in Beheshteh Reza cemetery, part of which was cordoned off before more than 100 members of the Revolutionary Guards and Bassij Forces carried out the stoning. Abbas H and Mahboubeh M were reportedly washed and dressed in shrouds, as if they were already dead, and then put in holes that had been dug in the ground. Following a reading from the Qur’an, those present began to stone Abbas H and Mahboubeh M, who reportedly took over 20 minutes to die. They were said to have been convicted of murdering Mahboubeh M’s husband, and of adultery.”

Speaking of convictions, the sentences for some of those awaiting this punishment are an interesting insight into Iranian judicial priorities. One woman, whose name is Iran, was sentenced to five years imprisonment for being an accomplice in the murder of her husband, and to death by stoning for adultery. Another, Kobra N, sentenced to eight years imprisonment for being an accomplice in the murder of her husband and for sleeping with someone outside of her marriage, death at the hands of stones ‘not large enough to kill the person by one or two strikes.’ So for being involved in killing your husband, you face less of a sentence than having slept with a man other than your husband.


There’s some more information in the report about Iran’s less than perfect judicial process and the work of women activists and journalists within Iran to end this atrocity, which can only be applauded considering that country’s approach to political activism.

It’s an ‘optional’ kind of civil rights violation December 28, 2007

Posted by franklittle in Bioethics, Ethics, Ireland, Judiciary, Technology.

The Irish Times has an interesting piece today (Sub required) with Justice Minister Brian Lenihan laying out his priorities for the year to come in an interview with former left-wing revolutionary turned Irish Times Legal Affairs correspondent Carol Coulter. The interview flags up the forthcoming Immigration and Residence Bill and points to the benefits this will have in the area of human trafficking, two items I intend to return to in coming weeks as it happens. But it is the proposed DNA database, which is dealt with at the very end of the article that struck me:

“However, he said legislation on a DNA database was coming. “Admissions are declining as a source of convictions. Science will play a greater role. I will be bringing proposals on a DNA database to Government. “People who are convicted will have their DNA taken. But I think there is a reason for a much broader database – not on a compulsory basis, but we could promote people voluntarily giving DNA. That could exclude people who innocently left traces at a scene.””


Little has been heard of this proposal since last August when the Irish Human Rights Commission (IHRC) issued its observations on the Criminal Justice (Forensic Sampling and Evidence) Bill 2007, which aims to establish just such a database. The IHRC makes clear its concerns about the human rights implications of such a database not being understood by the wider public and points to a lack of safeguards in the existing legislation. Two aspects of the legislation in particular terrified the Hell out of me when I first read it.

The first was that DNA samples provided would be held indefinitely. So, hypothetically, I decide in the interests of assisting the Gardaí to provide my DNA to rule me out as a suspect in a case where a rape took place at a party I attended. It saves the police time in considering me a suspect and from my point of view eliminates me as a suspect saving me time and grief. Yet though I gave my DNA for this specific reason, my DNA can be stored indefinitely. With increased EU level legislation around the sharing of data held by police and security forces such as the proposals on air passenger data retention, it is likely that at some point my DNA could be transferred to police forces outside of this jurisdiction if they felt it was necessary. Indefinite retention of DNA samples is not the international or European norm. And if, by the way, I choose to exert my right not to give a sample, does this make me more of a suspect? One assumes it does in practice whatever about in legal theory. Yet rights not exercised can fade away, overtaken by the ‘practice’ on the ground.

The second is that under the Bill the Forensic Science Laboratory can out-source or delegate responsibilities around the creation of the database to other parties inside or outside the state. In theory my DNA in the above case could be sampled by a person working for a private company hired by the Gardaí to carry out the taking of samples, sent to another private company who carry out the analysis and then stored with another private company who are responsible for the storage. There’s just no end to the gravy train for private companies being fattened up with the people’s money. Would these private companies be most concerned with ensuring my rights are protected or with maximising their profits by cutting corners? I think history can answer that for me.

And even if the proper safeguards are in place, what price incompetence? In November the British lost two computer discs with the personal details of every family with a child under the age of 16, containing the bank account and insurance details of a mere 25 million people. What price corruption? As we reported here in August Gardaí and other government officials routinely access confidential information which ends up in the hands of insurance companies, private investigators and the media.
The DNA database debate will, in all likelihood, be one that is ill-informed and hysterical in much the same way as the one on Anti Social Behaviour Orders, on which I remember no less a luminary than Gerry Ryan giving his two cents arguing that anyone opposed to them was supporting anti-social behaviour. But the IHRC, who are not opposing the idea of such a database, deserve to have their call for an informed debate heeded.

Our last, best hope for civil liberties September 13, 2007

Posted by franklittle in Crime, Ethics, Ireland, Irish Labour Party, Irish Politics, Judiciary, Sinn Féin.


Yes, it’s Sinn Féin. I am as astonished as you are, and I am being a little tongue in cheek, but it is worth noting just how little commentary there has been on Gilmore’s Prime Time interview last Tuesday night and the implications it has for the traditional position of Labour as a defender of civil liberties and human rights.

Gilmore was being interviewed about the murder of Donna Cleary in March 2006, and specifically the failure of anyone to be charged in relation to her death. Cleary was killed while attending a 40th birthday party when a man refused entry to the party earlier sprayed the house with gunfire. The identified shooter died in police custody a couple of days later but according to reports there is insufficient evidence to positively identify or charge the two men who were in the car with him.

Gilmore was interviewed by Mark Little, possibly following up on the speech he made at the first hustings for the Labour deputy leadership contest, his first major speech since his election, where he emphasised freedom as a core Labour value, defining it as freedom from criminal activity  and gangland crime. Nothing hugely controversial in his speech but perhaps slightly odd for the Labour leader to lead off with that topic, something one might have expected to be more likely to be a Fine Gael speech. But then, maybe that was the point.

During his interview Gilmore made two interesting points, both of which suggest a change in Labour criminal justice policy. The first was his statement that ‘membership of a violent gang should be a crime’, claiming that this is the case in the United States and Canada. This is something McDowell considered, but ruled out in 2003 arguing that such measures were unconstitutional. It was also something addressed by the Bar Council in its submission to the Joint Oireachtas Committee on Justice, Equality and Law Reform on the Criminal Justice System and Organised or Gangland crime. It is worth quoting in some detail:

“It is also worth observing that when charges of membership of an unlawful organisation are brought the organisation referred to is invariably an organisation in respect of which the Government of the day has made a Suppression Order. The organisations involved are paramilitary groups, oath bound, operating under a Constitution and Standing Orders. In contrast those involved in organised crime or gangland activity would usually be much more informal, much more unstructured and much more unregulated in nature. The obstacles to creating such an offence such as being a member of a criminal gang are very considerable and probably insurmountable.”

The DIrector of Public Prosecution, in his submission,  warned such measures “…would  amount to a weakening of the jury system…” and in Section 18 of his submission points to a number of technical difficulties with such a measure.

In fairness, common sense should be kicking in by now. How do you define an organised gang? Do you have to specify the gang in legislation? Could we end up with someone charged with the offence of being a member of the ‘McCoy’s tavern gang’? Comparisons with the US and with Canada are false in firstly overstating the gang problem we have in Ireland, but also in misunderstanding the gang culture. Gangs in the US identify themselves through colours and body art. Gangs in Ireland identify themselves chiefly through extended family connections. It is possible, even for someone whose knowledge of gangland in the US extends to watching cop shows, for a person to identify gang members in Los Angelus or New York, but not in Dublin.

As for the right to silence, well here we have a basic principle of the criminal justice system stretching back hundreds of years that is even now under assault when it comes to subversive or terrorist offences. If the suggestion by Gilmore is to restrict the right to silence so that an inference can be drawn by the refusal to answer questions, as is the case with suspected paramilitarism, again we are back to people being members of designated and clearly distinct organisations that have been specified in law.

As the Irish Council for Civil Liberties put it:

“The right to silence is crucial to the most fundamental principle of our legal system – the presumption that everyone is innocent until proven guilty. It is an essential protection for people who have already suffered the trauma of being arrested and find themselves in the unfamiliar and frightening surroundings of an interrogation room.

“Even the strongest personality can become alarmed and confused in such circumstances. Nervous and vulnerable people and those who are drug or alcohol addicted can easily break down and admit to things they never did. We should learn the lessons of the Birmingham Six, The Guildford Four and Judith Ward cases in Britain. And we have had our own examples of false confessions in the recent past in the Sallins and Kerry Babies cases.

“Restrictions on the right to silence combined with longer detention periods is a sure-fire recipe for a number of wrongful convictions that will eventually damage confidence in the justice system…”

So, what’s Gilmore up to? Well to an extent he is killing two birds with one stone. He is trying to reconnect with Labour’s working class vote, located in the estates that see the worst of this kind of violence, and at the same time move the party to the right. A far cry from his call for an alliance of the broad left in the previous leadership election.  He is indulging in the same dishonest macho posturing that characterised the McDowell era of criminal justice, which I have previously described as ‘never mind whether it works, look at the poll numbers.’

In other words, it doesn’t matter whether making membership of an illegal organisation is a good idea, unconstitutional or even technically possible. It sounds good. It makes Eamon Gilmore look tough, a bit hard. It doesn’t matter if the right to silence is a basic civil liberty there to protect citizens from the actions of the state. It sounds good. It makes Eamon Gilmore look like one of those Dirty Harry, hard boiled TV cops shouting ‘Damn your procedures Captain, I want justice’ as he takes on the racially different drug kingpin.

At one level, this is not out of character. Labour have supported a number of McDowell ‘Don’t get tough on crime, appear tough on crime’ measures such as the discredited and largely unused Anti Social Behaviour Orders and the retention of emergency legislation. But the party has always had an image, a connection with those who have argued for civil liberties, largely because when they chose to do so, they were alone in that. What does it say about the new Gilmore Labour party, that even this has changed?

And Sinn Féin’s role in all of this? Well at this point they’re the political party arguing most strongly for protections against Garda abuse, for the maintenance and extension of civil liberties. As I said before, “The Shinners, and Aengus Ó Snodaigh in particular, are excellent on civil rights issues in Leinster House and in opposing McDowell’s criminal justice legislation, but the party’s support for the IRA’s campaign make it hard for many to accept Sinn Féin as defenders of human rights.”

But with the IRA shuffling off the scene, are they now the party to look to for the defence of our hard won and greatly under threat civil liberties.

“If you’ve nothing to hide, you’ve nothing to fear.” August 3, 2007

Posted by franklittle in Ethics, Greens, Ireland, Irish Labour Party, Irish Politics, Judiciary, Progressive Democrats, Sinn Féin, Technology.

The conviction of Joe O’Reilly for the murder of his wife led to an uncharacteristic lapse into idiocy by Fianna Fáil’s Pat Carey TD, now a Junior Minister with special responsibility for drugs. The use of mobile phone data was a crucial part of the Garda case in convicting O’Reilly, leading to Carey suggesting a national register of mobile phones and trotting out the tired old argument that:

“If you’ve nothing to hide, you’ve nothing to fear. There may well be confidentiality or civil liberties issues but there are lives of people at stake as well, which I believe overrides any of those.”

I’ll come back to the stupidity of that statement in a moment, but worryingly the commitment to introducing a mandatory register of mobile phone users is in the Programme for Government:

“Require all mobile phones to be registered with name, address and proof of
identity in order to stop drug-pushers using untraceable, unregistered

It is, perhaps, a little ironic that this provision won the support of a Green Party that normally has a good record on civil liberties issues, but perhaps no surprise that the PDs want the state out of the economy, but are happy enough to see it gathering data on our mobile phone use.

The explanation for this proposal is that it will enable the Gardaí to track drug-dealers and criminals, by treating the entire population as suspected drug-dealers, providing them with intelligence about the movements of these dealers and potential evidence for constructing criminal cases against them. Or at least it would, if the Irish criminal element was composed entirely of idiots, something regrettably not the case.

A long-time friend of mine is a regular drinker in a south inner city pub. Other regular drinkers include numerous individuals who would fit the traditional Garda Press Office description of ‘being known to the Gardaí’. They habitually carry a number of mobile phone and, aware that they can be used to track them a long time before the Joe O’Reilly case (Some actually believe they can be used to electronically eavesdrop on conversations though I believe that’s mistaken), have an arrangement to leave their phones behind the counter with the barmen when they would prefer the Gardaí not to know where they are. The gents in question are not criminal masterminds, but local scumbags bright enough to know that taking risks about going to prison is a foolish thing to do and that a mobile is basically a tracking device you bought for yourself.

In short, members of Irish drugs gangs are not sending text messages to each other while waiting for customers or for their target of the night to show up.

But do we have nothing to fear if we have nothing to hide?

Well, quite simply no. Digital Rights Ireland (Highly recommend supporting it) has a few articles here showing how common it is for the private information of citizens to be illegally leaked to private investigators or journalists. To steal a couple of quotes:

“NEARLY 50 serving Gardai have been interviewed as part of an internal inquiry into allegations that members of the force supplied confidential information to insurance companies to help them settle road traffic claims quickly.” (Sunday Tribune)

“Two years ago The Sunday Times revealed that at least 72 civil servants accessed the social welfare details of Dolores McNamara, the EuroMillions lottery winner. The department’s system logged over 125 hits on McNamara’s files after she scooped a E115m jackpot. Her social welfare details were subsequently published by a newspaper. (Sunday Times)

“CIVIL servants in the Department of Social and Family Affairs “routinely” leak welfare and employment records to private investigators employed by the insurance industry, an inquiry has concluded.” (Sunday Times. Inquiry carried out by Data Protection Commissioner.)

A few months ago it was necessary for work-related reasons for me to obtain a list of phone numbers I had called or texted. As I have a speakeasy phone, I don’t get an itemised bill but I was also aware that under the law, my mobile phone company is obliged to keep on file a list of every phone number I ring or rings me along with the duration of the call, and also a list of who texts me or whom I text for a period of three years. It also includes where I was when I made the calls or texts and where the people who contacted me are.

This information can be requested by the Gardaí without need for a warrant or judicial oversight or anything other than the signature of a senior Garda officer. They do not need to be investigating a crime to gain access to the call data. No information is given, due to security concerns, to the Oireachtas about how many such requests are made by the Gardaí but the Data Protection Commissioner has estimated a figure of ‘hundreds’ every month.

But when I contacted my mobile provider for information about calls made to and from my phone, I was told I was entitled only to the calls or texts I had made, not those I has received, and only for a period of three months. I had a brief argument with the customer care representative about the discrepancy between what I can find out about my own calls and what the Gardaí can find out but since the information I needed was included in what they were going to provide me I didn’t get too hung up on it.

The law as it stands allows the Gardaí to go on fishing expeditions and can have the effect of bringing people into contact with the Gardaí who would not otherwise be questioned. Three years ago a former co-worker of mine was questioned by the Gardaí about a serious crime. The reason was that the woman in question was a good friend of the wife of the chief suspect and consequently when the Gardaí investigated his mobile phone records they found a couple of calls to my former colleague. She had no information to give and the Gardaí were satisfied with that, assuring her they were questioning everyone on his phone records and she was not being singled out.

The result is that a woman who had never had any contact with the Gardaí before, other than to report crimes, is now listed in Garda computers as having been questioned in relation to a serious crime, and as an associate of a suspected criminal.

Obviously there is a need for the Gardaí to be able to access mobile phone information to solve crimes and to gather intelligence. But if the Gardaí need a warrant to search my house, why should they not require one to investigate my phone records? Why should information about my mobile phone use be available to them, but not to me? Why should the Oireachtas not be entitled to more information about how these laws are being used?

Why, according to the current Phoenix, are people who leak confidential information held by the state to private investigators or journalists given little more than a slap on the wrist? And why, despite all these problems, is a chap like Pat Carey wandering about calling for mandatory registration of mobile phones?

As pointed out when he made the suggestion, the Department of Communications, Marine and Natural Resources said in January of this year that such a register was a bad idea:

“The idea for a Register of mobile phones was extensively reviewed by officials in the Department. There were many complex legal, technical, data protection and practical issues to be considered. In theory, a Register of mobile phones might seem like a good idea.

“However, having looked at the situation in other administrations, considered the ease with which an unregistered foreign or stolen SIM card can be used and the difficulties that would be posed in verifying identity in the absence of a national identification card system, and having consulted with the Office of the Attorney General and other interested parties, it was concluded that the proposal would be of limited benefit, in that it would not solve the illegal and inappropriate use of pre-paid mobile phones and was not practical.”

Case closed? Well, obviously not since despite this statement being made in January, the objective still found its way into the Programme for Government. Furthermore, some of the problems listed above could be ‘solved’. Arguably, the fact that without a mandatory ID card system a mobile phone register wouldn’t work is not an argument against a mobile phone register, it can be seen in a certain light as an argument in favour of mandatory ID cards. Remember too that on crime, this is a Government that prefers the cherishs perception. Mandatory sentencing, ASBOs, bigger prisons are eye-catching in a way that tackling the causes of crime, working with local communities and drug rehabilitation are not. The latter however, are more likely to succeed on information from other adminstrations.

And so we return to a core problem in Irish society that I’ve raised before. The lack of a real civil liberties or human rights culture. Outside of the ICCL, hilariously described as having too much power recently in one of the worst posts I’ve ever seen on politics.ie, there is little interest in civil liberties issues and the political parties who could push the issue are reluctant.

Labour has a track record of supporting repressive legislation such as the Offences Against the State Act, Section 31 and Anti Social Behaviour Orders as part of the party’s move to the right and traditional support in protecting the state from ‘subversives’. The Shinners, and Aengus Ó Snodaigh in particular, are excellent on civil rights issues in Leinster House and in opposing McDowell’s criminal justice legislation, but the party’s support for the IRA’s campaign make it hard for many to accept Sinn Féin as defenders of human rights. The Greens have, of course, decided to go into government and administer the criminal justice and anti-civil liberties legislation they have previously opposed.

“If you’ve nothing to hide, you’ve nothing to fear.” So we end up back at the words of Pat Carey. For a country whose police force is a regular sight at the Tribunals and which already has repressive legislation on the books this is a pretty optimistic statement to make. With personal data being leaked by Gardaí and civil servants, it is downright ridiculous. I have nothing to hide, but with the Irish approach to data protection I certainly have something to fear.

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