Cassandra Voices

Tag: Cassandra Voices Law

  • A Visit to the Hague

    Late last year HHJ Gumpert KC – one of the judges in the formidable fortress that is Woolwich Crown Court the flagship anti-terrorism court in the U.K. – kindly secured for me a visit to the ICC out of court time. The tour was given by a former member of the team he led in the Congolese prosecutions.

    The ICC issued its first judgment in 2012 when it found Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes related to his abuse of child soldiers. Lubanga was sentenced to fourteen years’ imprisonment. Gumpert also successfully prosecuted Dominic Ongwen, who was sentenced to twenty-five years for myriad crimes.

    The Rome Statute, which entered into force on 1 July 2002, established the International Criminal Court, though Israel voted against it, after murmurings on the transfer of populations that is the resettlement programme. The court works on the principle of ineffectiveness, where national courts have been derelict. It lacks universal territorial jurisdiction, and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council.

    On 17 March 2023, ICC judges issued arrest warrants for Russian leader Vladimir Putin and the Presidential Commissioner for Children’s Rights in Russia for alleged child abductions in the 2022 Russian invasion of Ukraine. Putin was charged for actions against Ukraine, which although not a party to it, has accepted the authority of the court since 2014. Should Putin travel to a state party to it, local authorities can arrest him. Later in 2023, Russia’s Ministry of Internal Affairs retaliated by placing several ICC officials on its wanted list. On November 21 last year, when I was in Gompert’s court in Woolwich, warrants were formally issued for the arrest of Benjamin Netanyahu.

    It occurs to me that an informal journalistic war crimes court was initiated by Christopher Hitchen, whose book The Trial Against Henry Kissinger (2001) accused Henry Kissinger of war crimes. This led to a Parisian judge issuing an arrest warrant and Kissinger hopscotching it back to the safety of Fox News. So, Netanyahu will no doubt control his foreign trips, and Ireland is clearly out of the question. Mr Putin does not seem to need to travel to enemy states.

    The process to establish the ICC district may be “triggered” by any one of three sources: (1) a state party, (2) the Security Council, or (3) a prosecutor.

    So, there is huge independence in that there is a self-originating prosecutor jurisdiction. though he needs the approval of Pre-Trial Chamber to initiate the investigation. The factors listed in Article 53 are a reasonable basis for a prosecution. These include whether the case would be admissible, or whether there are substantial reasons to believe that an investigation would not serve the interests of justice (the latter stipulates balancing against the gravity of the crime and the interests of the victims).

    Brumandinho Dam Disaster, Brazil, 2019.

    2016 Policy Paper

    During my visit there was much talk about the Policy paper on case selection and prioritisation published in September 2016, indicating that the ICC would focus on environmental crimes when selecting cases. According to this document, the Office will consider prosecuting Rome Statute crimes that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.

    Richard A. Falk coined the phrase Ecocide as a Crime Against Humanity in 1974. In my view we should also include Economicide, when one deals with the illegal dispossession of land. What about bringing banksters or hedge fund managers (including through NAMA) to justice? And what about no longer drawing a distinction between the Kinahan gang and Goldman Sachs? Or is it time bring a case against Bill Gates or Elon Musk?

    It should be born in mind that, alas, having someone prosecuted by the ICC is a tricky exercise. The Israelis clearly breached international law when they bundled Adolf Eichmann onto a plane in Argentina in 1960. How do you get Netanyahu to court? Or Putin? Or what if one indicted Trump or Bannon? A real danger is that the present U.S. administration will directly or indirectly withdraw funding for the court, even though the U.S. is not a signatory. They might even undermine American officials for working against the interests of Israel, or any of its allies in this dangerous world.

    The core concept of Crimes Against Humanity had its first incarnation during the Nuremberg Tribunal, but its inception may derive from the discourse in Sophocles ‘Antigone’ as to whether an immoral law is a law. In that play – the Rosetta stone of modern natural law – the heroine Antigone observes to the harsh, positivist Creon, King of Thebes, who will not allow her brother, who has fought against him, to be buried with the proper rites, that natural law has been breached.

    Yes; for it was not Zeus that had published me that edict; not such are the laws set among men by the justice who neither dwells with the gods below; nor deemed I that thy decrees were of such force, that a mortal could override the unwritten and unfailing statutes of heaven. For their life is not of to-day or yesterday, but from all time, and no man knows when they were first put forth…

    From the great Roman statesman Cicero’s perspective, an unjust law is not a law: ‘Those who formulated wicked and unjust statutes for nations, thereby breaking their promises and agreements, put into effect anything but laws.’

    Most famous of all, early Christian lawyers, St Augustine of Hippo said: ‘lex iniusta non-Est lex’ – an unjust law is not a law.

    Radbruchs’s Formula

    A crucial juristic figure was the German Gustav Radbruch (1878-1949), both a law professor and a government minister during the Weimar Republic. In Radbruchs’s Formula he argued that where statute law was incompatible with positivist law to an intolerable degree, and where it negated the principle of equality, which is central to justice, it could be disregarded.

    [P]reference is given to the positive law, duly enacted and secured by state power, even where it is unjust and fails to benefit the people unless it conflicts with justice to so intolerable a level that a statute becomes in effect false law and must therefore yield to justice…where there is not even an attempt at justice. Where equality, the core of justice, is deliberately betrayed in positive law then the statute is not merely false law it lacks completely the very nature of law.

    For him justice (Gerechtigkeit) was linked to human rights. Thus, in Funf Minuten Rechtsphilosophie he contended that there was a law which was above statute: ‘However one may like to describe it: the law of God, the law of nature, the law of reason.’

    It is important to note that his views were followed in various German cases after the War and was part of the discourse that led to the Nuremberg war crimes tribunal.

    Historically much later, in the 1992 cases of Strelitz, Kessler and Krenz, former East German Border Guards were convicted of offences despite section 27/2 of the East German Border Act that indicated that the protection of the border outweighed the right to life. The German Supreme Court in endorsing Radbruch indicated that:

    [A] justification available at the time of the act can be disregarded due to its violation of superior law if it shows an evident and gross violation of basic principles of justice and humanity… The contradiction of the positive law to justice must be of such unbearable proportions that the law must yield to justice as incorrect law.

    A group of Bosniaks from the Lašva Valley close by Travnik, Bosnia and Herzegovina that were forced out of their homes and villages by Croat forces in 1993. Photo: Mikhail Evstafiev.

    Ethnic Cleansing

    The Nuremberg Court and The European Convention on Human Rights were set up with the idea that the cataclysms of the past must never happen again. Sadly more have come to pass. In Bosnia we witnessed the arrival of a modern variant: ethnic cleansing. In 1992, the United Nations General Assembly deemed ethnic cleansing to be a form of genocide stating that it was:

    Gravely concerned about the deterioration of the situation in the Republic of Bosnia and Herzegovina owing to intensified aggressive acts by the Serbian and Montenegrin forces to acquire more territories by force, characterised by a consistent pattern of gross and systematic violations of human rights…. controlled areas of concentration camps and detention centres, in pursuit of the abhorrent policy of ‘ethnic cleansing’, which is a form of genocide.

    In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was genocide though the Court had no authority to determine whether it amounted to war crimes and Crimes against Humanity. A kind of fore runner of the ICC though ad hoc.

    The court concluded by seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces had committed genocide. They targeted for extinction the 40,000 Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general.  They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them, solely on the basis of their identity.

    Slobodan Milosevic, the former President of Serbia and of Yugoslavia, was the most senior political figure to stand trial at the ICTY. He was charged with having committed genocide. The formal accusation accused him of planning, preparing and executing the destruction of the Bosnian Muslim national, ethnical, racial or religious groups, as such, in named territories within Bosnia and Herzegovina.

    He died during his trial, on 11 March 2006, and no verdict was returned. Ten years later, Radovan Karadzic was found guilty of genocide in Srebrenica, war crimes and Crimes against Humanity, ten of the eleven charges in total, and sentenced to forty years’ imprisonment.

    Morality of the Law

    The natural lawyer Lon Fuller, in supporting Radbruch, argues that the German courts were correct in striking down the Nazi laws and that a legal system must have certain characteristics if it is to command the fidelity of a right-thinking person. Fuller, in The Morality of Law, (1964) argues that Nazi law did not have coherence and goodness and instances the use of retroactive legislation, such as the Rohm purge of 1934. Further, for Fuller, the Nazi laws were deeply immoral for a variety of procedural reasons. They were not published, they were vague, and they could not be interpreted in a congruent fashion.

    We are now entering such a dangerous universe. In camera, unpublished surveillance laws are violating privacy, and retroactive and overly broad legislation erode free expression. The anti-immigration hysteria and the rise of the far right may lead to de facto ethnic cleansing. The control of the world by transnational corporations has occurred through violations of privacy, data mining and economic crime.

    The real concern in northern Europe and in Brussels also is around how AI will not be controlled by a corporate economy. Why is that? Considerations of profit will ensure, as the former head of AI in Google recently argued, that within thirty years there is a ten to twenty percent chance of human liquidation. It trespasses in an unbridled way on boundaries.

    The question of compensation and reparation also arose in our discussion at the ICC, and I mentioned that the Innocence Project in all its conferences has a separate stream for the exonerated. So does the ICC. Thus, surely it is time the Irish government finally to deliver on its Magdalene Laundry promises, and compensate those disposed by banksters? Fat chance.

    The concept of obligations ergo omnes needs to be extended to new challenges. The ICC needs to be supported to extend its jurisdiction. They seem beleaguered but to quote Halldor Laxness they are at least Independent People. Independent People are important. Thus bankers were jailed in his native land Iceland when Independent People prevailed.

    Feature Image: The premises of the International Criminal Court in The Hague, Netherlands. The ICC moved into this building in December 2015.

  • The Relevance of Jurisprudence to Law Part 2

    In the first part of this series, London-based barrister, who taught Jurisprudence for sixteen years in the Honorable Society of the King’s Inns in Dublin, David Langwallner takes issue with Irish Supreme Court Justice Gerard Hogan devotion to Legal Positivism, instead arguing morality and politics should inform the law. He elaborates further on that debate in this article.

    This piece details what I believe is absent in the form of Legal Positivism that has been advocated by Supreme Court Judge Gerard Hogan. Indeed, there is a wider blind spot among the Irish legal establishment on whether jurisprudence should go beyond Legal Positivism, into the territory of Natural Law.

    A few years ago this debate might have been confined to the classroom and seminar, but it now assumes central importance.

    There is currently a crisis of legitimacy in the Rule of Law worldwide, unprecedented since the 1930s, and Ireland is not exempt. In my view Positivistic limitations on the subject is a sign of intellectual infantilism – an unnecessary curtailment of the boundaries of law, and what it means. Worse still, Legal Positivism contributes to a false assurance of just outcomes.

    The Nuremberg Trials.

    The Fundamental Question of Jurisprudence

    Let us thus address the fundamental question of jurisprudence: what law is, and what that matters in its practice?

    For a Positivist, the essence of law is legal fact, if it stems from an authoritative source often referred to as the Sovereign. Or let us call it, as Hans Kelsen and Hogan do the grundnorm (‘basic norm’). Then the law is divided into rules conferring powers on officials, within a given system, to apply them. This process occurs at a remove from politics or morality.

    H. L. A. Hart, the other leading Positivist with Kelsen, calls these rules either primary or duty imposing rules, or secondary or power conferring rules, which often rely on enforcement by adjudication by tribunals or courts, but not, it seems, by interpretation. That is the initial fallacy.

    Thus, according to Legal Positivism the job of any official is to apply rules literally. Giving, what Ronald Dworkin called, ‘plain facts their plain meaning.’

    Yet, very little is ever plain, and as the leading jurist of the 20th century, not Kelsen but Dworkin, maintained law is a question of the interpretation, not the application, of plain facts. It is also about principle not authority. And the texture of law is slippery and often as unclear as mud. Hence legitimate legal interpretation is a matter of law, not purely political philosophy. That is the crucial point and the one Hardiman and Hogan, among other UCD Positivists, fail to understand.

    Consider this in a different context. Imagine a witness says someone’s hair is dark, the question becomes how dark on a scale of 1-100, and was there any grey in the darkness? There is invariably a lack of clarity on any matter, and even the arch-Positivist Hart conceded an open texture or fuzziness even to statutory rules.

    That concession by Hart – as Dworkin correctly maintains – undermines his whole theory. For Hart, where the rule is fuzzy, he suggests a judge use his discretion. Dworkin correctly queries whether discretion per se should form any part of a legal dispensation.

    In fact, given that many rules have an open texture – in that they are capable of various interpretations – the reliance on an untrammelled or open-ended discretion, as Dworkin maintains, undermines Hart’s conception of Legal Positivism. The natural lawyer John Finnis also correctly points out, in parenthesis, a weakness to Hart’s internal point of view, crucial to his Positivist agenda. To save Legal Positivism from morality Finnis points out, by using normative language such as ‘ought’ or ‘should’ Hart is conceding a moral component to law.

    Contrary to Hogan’s position on legal interpretation, Dworkin contended that it must involve political and moral interpretation, and not be an exercise in literalism or strict constructionism.

    To make sense of law as a corpus and not rely on discretion per se law legal interpretation must be an exercise in principled interpretation. Only then can it create a seamless whole that is not a web of deceit, or draconian rules, but one of justice.

    Adolf Eichmann

    Slow Train

    The abandonment of principle and constitutional rights is a slow train to the sort of cognitive dissonance embodied in the likes of Adolf Eichman, when he argued he was only doing his job. This is the divorce of officialdom from morality.

    Such issues led to the famous Hart-Fuller Debate on the relationship between law and morality and to a consideration of retroactive laws. Fuller in effect maintained we owe no obedience to laws without a tinsel of legality. Even Kelsen applied retroactivity exceptionally in the case of the Nazis.

    Dworkins progenitor and mentor is John Rawls, who is decidedly back in fashion in the academic community. Not that his ideas have ever gone away entirely, but his critique of neoliberalism and his conception of a just society seems more pertinent than ever,

    Daniel Chandler in his recent book Free and Equal: What Would a Fair Society Look Like? (2023) argues that there is a broad approval among academics around the ideas of the maximisation of liberties; a measure of discrimination in favour of the disadvantaged; and an element of putting money aside for future generations to meet the economic and environmental devastation of neoliberalism. To our power brokers, however, these principles have little or no significance. Seemingly, as Chandler contends, the more Rawls gains traction in the academic community, the less his ideas are implemented by our rulers.

    Of course, Rawls is a political philosopher and though he does address law, he does not do so with the precision of Dworkin.

    For Dworkin the answer is very clear: our judiciary have a moral and principled obligation to interpret laws in a socially just way to protect the innocent, the disempowered, the accused and sanction the government when required. This also includes the moral obligation not to defer to a Separation of Powers, but to declare a law unconstitutional when it is called for. It also includes a non-textualist approach to read rights into the constitution as a living instrument, to protect the rights of the citizen, and non-citizen.

    In Ireland the lure of Legal Positivism and the abandonment of the wisdom of Rawls and Dworkin among the judiciary has led to the non-enforcement of social and economic rights. This has contributed to a housing and homelessness crisis, tearing apart the very fabric of our society and fuelling the rise of the far right.

    The judiciary could have easily followed Canadian and South Africa as well as Indian Jurisprudence, which either give vitality to the Right to Life contained in Article 2 of the Constitution, by including the quality of that life. They might have also revived Article 45, and thus the social contract.

    Ensnared by banking interests, debt, and agency capture, the courts have failed to intervene. These decisions and non-decisions are unforgiveable, immoral, and even borderline criminal.

    Further, In Rawlsian terms They have not maximised rights over absurd limitations on public and common good considerations, thus systematically destroying due process and privacy rights, ignoring or sidelining EU and ECHR law along the way. They have given ever more power to our police forces, standing idly by as 24-Hour Surveillance takes place, with more special courts to come, amidst an unspecified emergency.

    The Four Courts, Dublin.

    Long Dead Values

    Our gatekeepers have deferred to long dead values. They have not utilised the constitution progressively, and failed to protect non-nationals adequately. I suspect they will curtail freedom of speech if the hate speech bill passes.

    Since Adrian Hardiman, and indeed before, they have been utterly useless in upholding the constitution.

    Part of the Positivist agenda is to focus on Positivistic realism. Realism, though useful in some respects as an analysis of trial practice and what courts do, justifies cynicism and above all Populism. If there is one idea that captures the leading realists Karl Llewellyn’s conception of policy, it is the will of the majority, or what people want. What Hogan terms the grundnorm of popular sovereignty.

    The problem with deferring to Populism in our present Dark Age is that we are dealing with agency capture of the media, excessive blind sheep obedience, alt-right mob rule and the enforcement of it through legislation, such as anti-immigrant measures or mass surveillance.

    It is in fact important for judges to be, as Dworkin put it, philosopher monarchs, in the sense of vindicating rights against tyranny. Thus, gatekeepers must protect rights against tyranny and realise that, as Hannah Arendt put it, we should have the right to have rights.

    In Ireland the judiciary defer to Kesean popular sovereignty and judicial restraint. It is correct to see them as accomplices to evil. Even Hogan, our finest judge, risks selling his soul to the devil.

    Justitia in the Superior Courts Building in Budapest, Hungary.

    Are Rules Important?

    The other fundamental question is whether rules are really that important. The realist scholar Roscoe Pound called them merely pretty playthings. This is the view, commonly held among realists, that a judge reaches the subjective conclusion, dictated by policy considerations and then makes the rules fit the facts. In short, the rule is an intellectual justification of a conclusion. This is a view I have some sympathy with, but it again demonstrates the obsolescence of black letter law.

    Crucially, Dworkin gives rules or plain fact more weight, and thus does not undermine legality but argues that a rule or even the plain fact of a rule is subordinate to the interpretation of principle. Thus, the judge is obliged to attempt to achieve the best creative and constructive sense of the law as a matter of principle, where principles have dimensions of weight and importance, and rules do not.

    The important point comes where there is a conflict between a rule and a principle. Here the principle, whether legal or moral, prevails.

    Dworkin points to the Lord Atkins Neighbour principle in the foundational case in Tort Law Donoghue v Stevenson (1932), to the effect that constitutional values are principles in the law. Indeed, a crucial application of principle is where a law is declared unconstitutional. That is when a Positive law struck down by a principle. Or when the principles of the ECHR are enforced, which we rarely see, rendering our constitution a nudum pactum – a promise that is not legally enforceable.

    In this respect by its embrasure of literalism and historicism in judicial interpretation, Legal Positivism negates the spirit of the law, and deems crucial issues non justiciable. It does not protect matters of principle and rights, and fails to develop the constitution as a living instrument to adapt to changing circumstances.

    The negation of this development of constitutional rights has led in America to the justification of handguns, in that they were commonly in use at the time of the American Revolution by the historicist Scalia, and the over-ruling of Roe Versus Wade, as inter alia in a specific context it sought to graft a non-literal privacy right into the constitution of the US.

    Dworkin’s principled interpretation, unlike Legal Positivism, takes rights seriously and takes issue with legal realist premises, based on majoritarianism, that rights are subservient to policy consideration.

  • Guilt and Innocence in the Criminal Justice System Part 1

    I have just finished representing a client in a murder case and have plenty to reflect on about guilt and innocence. This is a two-part excursus for Cassandra Voices dealing first with why certain people are found guilty of crimes they did not commit.

    The Innocence Project, with which I was involved over many years, has flagged the issue of cognitive or confirmatory bias, which often plays a crucial part in my closing speeches. The idea that we are liable to jump to conclusions based on pre-existing prejudices or our life experiences is as old as Dante or Francis Bacon.

    The idea explains why in natural justice terms the aphorism: justice must not only be done but be seen to be done, cautions against a decision based on the perception of bias, including objective bias. The crucial point is to be self-reflexive and to acknowledge shades of grey. Such is the path of wisdom – esteem nuance and not dogmatism. That is how to judge or be a juror, or even an investigative police officer, and not a persecutor.

    In terms of Confirmatory Bias Drs. Dror and Hampikian of The Innocence Project have demonstrated that even when experts review a DNA test, if the police disclose which is the suspect’s DNA profile, a favourable match to the evidence may be found.

    In a case study they conducted, two state experts who declined to exclude a suspect had information about his background. Whereas, when that same evidence was sent to seventeen out-of-state experts at another lab – who had no information on the suspect – twelve of the seventeen DNA analysts excluded the suspect from the inquiry, four deemed the matter inconclusive, and only one agreed with the original state police lab scientists that the suspect could not be excluded.

    We refer to this as confirmatory bias, and in my view it goes beyond police officers and social workers. It also seems to apply to pathology experts and forensic experts. The best are trained to understand such biases exist, and as one expert I recently cross-examined recently intimated, allow for a spectrum of doubt.

    Leading Questions

    A crucial problem emerges in the trial and investigative processes when repetitive, leading questions are asked.

    Elizabeth Loftus and Maggie Bruck specialise and are associated with the Innocence Project in false memory syndrome, which is accepted as persuasive in many courts. So, for example Loftus conducted a survey familiar to lawyers as to how different participants react to how any question is framed.

    An example of a leading question is illustrated by the difference between the following questions.

    Question 1: At what speed did car one contact car two?

    Question 2: At what speed did car one smash into car two?

    The question using the verb to smash led to the witnesses seeing broken glass when there was none and to assume guilt. In short, the question was framed to achieve a particular answer. It was suggestive and leading.

    A leading question the big no-no of the criminal courts, as it is used to elicit a desired answer, and build a conclusion from a premises. Unfortunately it is often employed by police officers and social workers. A barrister may attempt to lead, but is chastised if it is obvious.

    Language matters and those who misuse or traduce it to achieve outcomes whether for personal, political  or commercial reasons should be treated with the utmost scepticism. It is increasingly tolerated in a culture of obvious untruth and exploitation, which is now seeping into the criminal justice system.

    Brains can be reduced to mush by leading and direct questions. By such mechanisms children can be led to believe that day workers slaughtered rabbits, as Stanley Schiff recently remarked in a book about the Salem Witch Trials.

    Examination of a Witch (1853) by T. H. Matteson, inspired by the Salem trials.

    An opinion once adopted

    Francis Bacon, the great British philosopher and intellectual as well as Lord Chancellor of Britain also remarked in this context:

    The human understanding when it has once adopted an opinion … draws all things else to support and agree with it. And though there be a greater number and weight of instances to be found on the other side, yet these it either neglects or despises, or else by some distinction sets aside or rejects

    In rape and abuse cases such attitudes as this have spiralled out of control, particularly through the overloading of a formal accusation with endless satellite allegations, which create an overwhelmingly prejudicial effect; compounded by the admission of bad character evidence in the U.K.. This represents the over-weighting of morality to determine criminality.

    Historic cases are hugely problematical, as is delay. The all too convenient idea that a victim waits donkey’s years because of suppressed memories leaves a defendant, twenty or more years later, relying on the fallibility of memory – often in the absence of documentation – to defeat allegations. When relationships break-up and partners move on and there are children involved it often opens up an unholy vista.

    That is not to undermine the victims of serious crimes. But the falsely accused are also victims and their lives are often destroyed.

    Conceptual closure, and stereotyping are necessary as a survival plan but not for justice. Black and white thinking leads to tick box, or slot machine justice.

    Identification Evidence

    Life of course is messy, as is the criminal justice system , and we need categories or categorisations to survive, but we must confront the problem of over-categorisation.

    The legendary jurist Jerome Frank was much attuned to how the prejudice of participants in the trial process (judges and indeed jurors or witnesses) influenced decisions, and how selective recall or mistakes about facts often affected the outcome of a case.

    Thus, the unpredictability of court decisions resides primarily in the elusiveness of facts and deep-seated prejudice. He wrote:

    When pivotal testimony at the trial is oral and conflicting, as it is in most lawsuits, the trial. Court’s finding of the fact involves a multitude of elusive factors: First the trial judge in a non- Jury trial or the jury in a jury trial must learn about the facts from the witnesses and Witnesses, being humanely fallible, frequently make mistakes in observation of what they saw and heard, or in their recollections of what they observed, or in their courtroom reports. Of those recollections. Second, the trial judges or juries also human, may have prejudices – often unconscious unknown even to themselves – for or against some of the witnesses, or the Parties to the suit, or the lawyers. Those prejudices when they are racial, religious, political or economic, may sometimes be surmised by others. But there are some hidden, unconscious. Biases of trial judges or jurors – such as for example, plus or minus reactions to women, or unmarried woman, or red-haired woman . . . or men with deep voices or high-pitched voices.

    Identification evidence or the fleeting glance is often subject to the Turnbull Warning of the dangers of same, and although safeguarded it remains troublesome. 

    Juries have always been swayed by advocacy, and it is, as I have hitherto written, about a dark art more akin to magic or sorcery, but even the most ingenious sorcerer cannot normally produce a silk purse from a sow’s ear. Jurors are not entirely naïve and, in my experience, do focus on the evidence, but particularly in America, hysterical prosecutors often confuse morality and criminality. That this is fuelled by excessively religious people warrants condemnation.

    There are other causes of false convictions. In Ireland since 2015 when the JC Case jettisoned the exclusionary rule, allowing the police to characterise tainted evidence as inadvertence or a mistake, it created an open door for targeting and framing. The prevalence of police corruption and incompetence in Ireland recommends, in my view, a special layer of checks in addition to the DPP, before any arrest is sanctioned.

    Another consideration is where an offence is far too loosely defined such as the proposed Irish criminalisation of so-called hate crimes.

    I am very attuned to dealing with vulnerable people with mental health problems and drug addictions. The problem of false confessions arises when a person is interviewed often without an appropriate adult in the room, and starts to sing like a canary. Vulnerable people will confess to almost anything, often based on lack of self-esteem and incredibly short-sighted desires to get out on bail, sometimes just to go to the pub or attend a football match. Solicitors should always be present. Psychiatric reports need to be secured.

    The explosive growth of social media has led to a proliferation of new crimes, such as what may be a mistaken decision to engage in a sexual role play conversation and, in that context, there is the rise in demonic entrapment, including the targeting of perceived sex offenders by vigilante groups who prepare the case for the police.

    We live in an age of extremes, characterised by witch hunts, increasing executive decrees, secret laws and over-regulation. It is eminently possible to stray into a wrong place at the wrong time and be accused unfairly.

    A crucial final point is to appreciates the damage caused by a false allegation. Even if a person is ultimately found not guilty, they may be traumatised for life.

    I hope the Innocence Project gains more traction improving processes at the beginning of the system, rather than providing a photo opportunity twenty years later, when someone’s life has already been destroyed.

    The question of compensation also arises, as in the recent Andrew Malscherk case who served eighteen years for a rape he did not commit.

    But to anticipate my next article not all are innocent, and some who are guilty are assumed to be innocent. Bob Dylan’s song about Rubin Carter ‘Hurricane’ is forceful and brilliant, although it may have given a sanitised account of the accused. Not that he could have been the champion of the world but that he was always an innocent man in a living hell.

    Feature Image: Christian Wasserfallen

  • Disturbing Developments in Criminal Justice in Ireland

    All persons and authorities within the state, whether public or private, should be bound by, and entitled to, the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.
    Lord Bingham, ‘The Rule of Law‘, Sir David Williams Lecture, Cambridge, 2006.

    I have written extensively about the whittling away of due process in Ireland. This is derived from Article 38 of the Constitution, which states: No person shall be tried on any criminal charge save in due course of law.

    In 2017 Supreme Court Justice Gerard Hogan at least had the courage to argue that the Irish Courts have, in effect, failed to enforce due process, constitutional rights in Ireland for the past thirty years. ‘Moves’, he said, to reduce the scope of ‘the most fundamental constitutional safeguard of all‘ — the habeas corpus guarantee in Article 40.4.2 – ‘speaks volumes regarding the prevailing constitutional zeitgeist.’ That zeitgeist has only become more illiberal, especially with the advent of emergency powers in response to Covid-19.

    Indeed, we have no equivalent to the UK’s Police and Criminal Evidence Act 1984 giving statutory protection to anyone suspected of a crime.

    The particular violations of due process have been exposed in the J.C. Case (2015) where the Supreme Court – notwithstanding what was probably Adrian Hardiman’s most brilliant dissenting judgment – effectively allowed the police to characterise as an accident, what seems to have been a purposeful and deliberate breach of constitutional rights.

    We have also witnessed the subordination of privacy rights to considerations of public order in the Dwyer Case on appeal to the Supreme Court. There, the Court simply sidestepped the State’s breaches of directly applicable EU data protection legislation, rendering privacy rights a dead duck.

    But if these developments aren’t sinister enough, consider what is happening now for the liberty of the subject.

    Adrian Hardiman.

    In Camera Proceedings

    The term in camera in legal and juridical terms is about a hearing being held in private. It is a pragmatic feature of civil or industrial processes, such as patent violations or family law proceedings. It has various implications, including that the names and identities of the parties to the suit are kept out of the public gaze, and reporting restrictions are in place, including press coverage and conventional law reporting. A judgment could be published, and context made clear, but details may be kept out, redacted or anonymised.

    The intra-jurisdictional consensus – a fundamental principle of international law – is that when a process or a piece of legislation or an executive decree is adjudicated without there being independent representation or scrutiny it is of dubious authority, as it has not been adequately challenged.

    In camera proceedings can be a shortcut to secretive laws, which were even condemned by the Nazi jurist Carl Schmidt. Schmidt’s view is echoed in the minority report on the future of the Special Criminal Court.

    So-called emergency powers have a nasty habit of becoming permanent, everywhere. In the face of opposition, however, the UK government repealed its controversial law, giving police the right to apprehend people suspected (hence ‘sus’) of ‘intent to commit an arrestable offence.’

    Within Lord Bingham’s summary of the Rule of Law is the idea that the law ‘should be publicly administered in the courts.’ It is crucial for any democracy that all judgments become a matter of public record or, failing that, only partial elements are excluded, and then only by implication, after independent representations of counsel.

    This is violated when in camera proceedings occur. Justice, as Bingham said, cannot be achieved behind closed doors.

    The current Minister for Justice Helen McEntee TD has, nonetheless, obtained a High Court order from Justice Owens requiring telecommunications service providers to retain certain data – including user, traffic and location data – for a period of twelve months, for the purpose of safeguarding the security of the State.

    The Communications (Retention of Data) (Amendment) Act 2022 came into operation on June 26, 2023. Under the terms of the Act, the Minister for Justice must have been satisfied that there exists a serious and genuine, present or foreseeable, threat to the security of the State.

    She also, presumably, had regard to the necessity and proportionality of the retention of Schedule 2 data, and how this could potentially impact on the fundamental rights of citizens under the Constitution. Justice Owens was obviously persuaded by her arguments, which are not in the public domain, for reasons of state security; do you see where this is going?

    It should also be noted that the Minister consulted with the Garda Commissioner prior to making the application. The Act was, in effect, a transposition of an EU Directive, but no scrutiny has been permitted. No independent counsel. No counterweight.

    So what could this threat to the security of the state amount to? Minister McEntee also recently stated that Sinn Féin presents a threat to the criminal justice system because they timorously suggested adopting suggestions of the review group on the Special Criminal Court.

    The Yam Case of 2020, which Geoffrey Robertson QC litigated before the ECHR under Article 6, clearly identified that even partial exclusion under the in camera rule and partial reportage invites scrutiny.

    Thus, T.J. McIntyre from the Sutherland School of Law in UCD argued that Ireland’s new mass surveillance regime is ‘certain’ to be challenged in the European courts. He said the government’s decision to seek a High Court order was made ‘behind closed doors, without any consultation with the data protection commissioner, with civil society, or with the industry’ and, importantly with no detail provided on the supposed national security threat.

    In a damning assessment he stated:

    The 2022 Act has to be treated as of no legal value … You can’t have a measure that’s supposed to authorise mass surveillance of the entire population, and be the basis for criminal investigations and prosecutions for years to come, where its foundation is so uncertain. It’s grossly irresponsible to do that.

    Thomas Bingham, Baron Bingham of Cornhill 1933-2010.

    Special Justice

    The Special Criminal Court is a three-judge criminal court, convened without a jury to avoid any potential intimidation of its members. It is enabled by the Offences Against the State Act, the first of which was published in 1939 to prosecute members of the IRA and declare any similar organisations unlawful. More recently, the Court has been used to deal with the deadly rise in gangland crime and organised criminal syndicates.

    The legislation, and its Court, have been criticised by Amnesty International, the United Nations and the Irish Council of Civil Liberties over the last number of decades and at its inception by Mary Robinson.

    Most of the recent review group concluded that the use of a non-jury court is ‘justified’ and that the court is needed to counter ‘a real risk to juror intimidations.’ However, the review added, contradictorily, that there is ‘an absence of concrete evidence’ on the nature and extent of the risk posed to jurors today. The review added that a non-jury court should only be used in ‘an exceptional case.’

    One way that the review recommended this should be done is through abolishing ‘scheduled offences’ – where certain offences are automatically tried by a non-jury court – and placing the decision in the hands of the Director of Public Prosecutions (DPP), which, it should be noted, is a political appointment.

    As an additional safeguard, the majority review recommended the appointment of a judge to review whether the correct procedure has been followed by the DPP, and whether the decision had been made based on of the evidence heard in that case alone. This would mean, under the new Court, that the DPP would decide whether it is suitable that a citizen, who stands accused of a crime, be tried in a non-jury court based on the evidence in the case, regardless of the case’s threat to national security.

    Accompanying the majority review, there is also a minority review which argues that the establishment of a permanent non-jury court is ‘constitutionally inappropriate’. The minority review said: ‘Just because something can be done does not mean it should be done, we are in danger in all sorts of way as Iseult O’Malley of the Irish Supreme Court said of becoming ‘overly habituated to the abnormal.’

    Commenting on the recommendation to replace the SCC with a new Special Criminal Court Minister for Justice Helen McEntee said that the Special Criminal Court eliminates the very real risk to jurors and potential jurors posed by subversives and organised criminal groups. She said that the recommendation from the review group ‘requires serious consideration’ due to the importance of the Special Criminal Court and its place in the Irish judicial system.

    Minister for Justice Helen McEntee.

    ‘Belief Evidence’

    As well as non-jury trials, the SCC has special powers to accept ‘belief-evidence’. This allows the belief of a Garda Chief Superintendent that a person is a member of an illegal organisation to be used and accepted as evidence of that person’s membership. While the majority’s report recommends that new legislation be created to provide more regulation around the use of non-jury courts, they have deemed the continuation of belief-evidence ‘appropriate’.

    While the report says that belief-evidence can continue to be used, it adds that someone must not be prosecuted ‘solely on the basis of that evidence.’ There needs to be corroboration. The minority simply notes that the UK police did not need belief evidence to prosecute and recommends its abolition.

    Last month, Minister Simon Harris, who took over as Justice Minister while McEntee was on maternity leave, received approval to propose the resolutions to extend the legislation. A Government spokesperson said Harris considered that there remained ‘a real and persistent threat from terrorist activity, primarily from so-called ‘dissident’ republican paramilitary groups.’

    The criminal court of justice, Dublin. Daniele Idini/Cassandra Voices

    Conclusion

    We appear to be witnessing a serious regression in the Rule of Law in Ireland, where unspecified threats to the state are decided in camera, and an extension to the use of judges without jury with police belief evidence continuing to be accepted. All of this twenty-five years after the signature of the Good Friday Agreement which effectively ended the Troubles.

  • Regulating Online Safety: Ireland v. U.K.

    U.K. lawmakers, unlike their Irish counterparts, are currently agonising over the Online Safety Bill 2023. It is far less draconian than the recent Irish Bill, which I recently assessed. 

    This is currently being reviewed in the House or Lords – a body not to be automatically dismissed. This archaic assembly is still capable of acting as a real corrective to the excesses of Parliament. They can delay and amend, but also, crucially, awaken moral authority to invite reconsideration, as with Tony Blair’s draconian anti-terror legislation.

    Thus, the U.K. is not passing a misguided and extremist Hate Speech Act, as in Ireland, but will continue to rely on its existing empiric and specific Protection Against Hatred legislation.

    The core differences between the Irish legislation and that being considered for the U.K. are as follows:

    First, the U.K.’s Online Safety Bill is primarily concerned with protecting underage minors from harmful content online. Assuming material is not subject to an existing criminal sanction, adults are allowed to be self-regulating, when viewing, for example, pornography or extremist political content. This is a sensible response that recognises that censorship can often be counter-productive, and treats adults as adults.

    Secondly, the U.K. is not establishing a potentially political controlled commission in Ireland which will fine, pressurise, and finally enforce compliance.

    Finally, the U.K. legislation is primarily concerned with taming the Wild West of the internet and social media, not established media. The Irish legislations targets all media.

    At one level this shows that the British state is confident in the conformity of established vectors of public opinion. But there is a world of difference between the rambunctious content found in, for example, the right-wing Telegraph or the left-wing New Statesman, and servile and increasingly anodyne content found in legacy Irish media. However, the Overton window is narrowing over on Fleet Street too.

    The era of Covid-19 has witnessed unprecedented conformity, censorship of scientists and censorship-by-omission. This dangerous trend recalls Clarence Darrow’s speech in the Scopes Monkey Trial in which a high school teacher, John T. Scopes, was accused of violating Tennessee’s Butler Act, which had made it illegal for teachers to teach human evolution in any state-funded school is apposite:

    Today it is the public-school teachers, tomorrow the private. The next day the preachers and the lectures, the magazines, the books, the newspapers. After a while, your honour, it is the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century weights burdened the men who dared to bring any intelligence and enlightenment and culture to the human mind.

    The British have a long tradition of being protective of intellect and permissible disagreement, which is, arguably, innate to Protestantism. They have never been subject to Savonarola figures, as in culturally Catholic countries like Ireland. Today civil society in the U.K. has not uniformly approved of a glossary of politically correct terms – as we seem to have in Ireland, where the Bishop’s crozier has been replaced by the corporate induction.

    The recent criminalisation of the mere possession of offensive materials in Ireland is akin to the banning of books from libraries in the U.S. Bible Belt.

    Yet remarkably, when the Irish government consulted the public over 70% of those who responded suggested they should not enact it. The rubber-stamping exercise had backfired. In response, Leo Varadkar airily claimed ‘the vast majority of people, don’t make submissions to public consultations’, meaning they’re ‘not necessarily reflective of public opinion.’ So why bother with the exercise?

    Yet it is clear the Irish establishment does not appreciate expert independent opinion when this diverges from an intended outcome – an opinion recently expressed by Supreme Court Justice Charleton. Intelligent opinion cannot be allowed to upset vested absurdity. There really is nothing worse than a so-called moral principle cloaking a vested interest.

    The ultra-censorious Archbishop of Dublin John Charles McQuaid offers an interesting case study in this context. He was like Richelieu or Talleyrand – more important than the monarch du jour. In Ireland today religiously ordained censorship has been replaced by proto-corporate social control. Fintan O’Toole’s is probably the leading ideologue in Ireland today.

    Sinn Féin’s unwillingness to oppose the Bill demonstrates a distinct lack of judgment, naivete and even a certain quality of turkeys voting for Christmas, as we the inexorable crisis in what Jürgen Habermas calls participatory democracy continues.

    I suspect that prior to the forthcoming 2025 election the new law will be used to nullify dissent, perhaps extending to opposition to support for the War in Ukraine. Sinn Féin may wish to become the arbiters of acceptable speech, but they must get into power first. That ought to have led to a cautionary opposition.

    It is of course necessary for the State to regulate the Promethean capacity of the internet and, in particular, protect children from harmful content. The question is how to police and monitor it. One solution that China offers is complete censorship. It is fair to say that Ireland is veering in that direction.

    The question is thus one of nuance and balance. The U.K.’s Online Safety Bill seeks to protect children in a variety of ways from accessing illegal content, by providing for risk assessments and modes of entry, including age identification.

    But the Irish act applies this restrictive approach to adults and established media and then sets up a commission of politically appointed individuals to determine whether the content provider is to be fined or prosecuted.

    The Irish polity has never trusted independent adults to form their own opinions, and the current legislation reflects that paternalistic attitude. A chill wind blows in the U.K. but a hurricane is raging in Ireland, with the steady denudation of what Habermas has called the civic space.

    Feature Image: Daniele Idini

  • Weighing up Ireland’s Hate Crime Law

    The new so-called Hate Crime Bill [Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022] in Ireland has generated quite a furore, including outright condemnation by Elon Musk, who described the measure as a “Massive attack on freedom of speech.”

    It has also been branded “insane” by Donald Trump Junior, which was used as a distorted form of justification for the law by Minister Simon Harris. However, criticism has also come from Paul Murphy of People Before Profit from the opposite end of the political spectrum to the Trump family. There has also been criticism from human rights bodies.

    The crucial provisions are Section 7 and Section 8.

    Protected Characteristics

    Section 7 is the mechanism by which offences against those of protected characteristics can be criminalised. At one level it is an admirable measure. Indeed, I have represented people with disabilities, who are one of the categories included.

    More controversially, transgenderism is one of the protected categories. It was surely not hate speech for the feminist author Germaine Greer to say that a man who becomes a woman can never really understand what it is to be a woman.

    In my view it was a serious violation of fair comment to no platform Greer for the comments – no matter whether one agrees with her ideas or not. To criminalise such a statement would be a return to the Dark Ages of the Papal Index.

    One hopes that a statement such as that made by Greer would be protected as legitimate political or cultural criticism, which are important delimiters and qualifiers contained in the Act, but the defence would arise only if the matter actually came to Court. The existence of a criminal charge might still be bandied about to damage the reputation of an individual or publisher. Malicious prosecutions are not unheard of in the Emerald Isle.

    Perhaps what really stoked the ire was Greer also stating “because he does not have a smelly vagina”. This brings us to the subject of ridicule. Ronald Dworkin wrote an article on the right to ridicule inspired by the Danish Cartoons incident.

    ridicule is a distinct kind of expression: its substance cannot be repackaged in a less offensive rhetorical form without expressing something very different from what was intended….

    So, in a democracy no one, however powerful or important, enjoys a right not to be insulted or offended. Christopher Hitchens and the English judge Stephan Sedley have also remarked that any freedom to speak inoffensively is worthless.

    In more carefree times, political opponents Gore Vidal and William F. Buckley came together as pundits at the behest of a failing network for the 1968 Democratic and Republican Party Conventions. This has recently been documented in a film called ‘Best of Enemies’, which is now a West End play by the same name.

    William F. Buckley was the archangel of neo-conservatism, while Gore Vidal was an embodiment of what now seems an excessive liberalism. They deliberated on a state of siege, with riots in Chicago and democratic legitimation in question. America, along with the rest of the world, was on the brink, just like today.

    The debate famously culminated after the Republican Convention nominating Richard Nixon, who now seems a more sympathetic figure when compared to what followed him. Indeed, Nixon’s statement in 1969 that government has a great role to play in health care, ‘but we must always make sure that our doctors will be working for their patients and not for the federal government,’ is perhaps an idea that still has some merit; especially when one considers the damage of the top-down, dictatorial approach taken by many governments in response to Covid-19.

    In front of a live TV audience of millions, Buckley vented an anger, which he later regretted, calling Vidal ‘a queer’; in response to Vidal describing Buckley as a crypto-Nazi.

    Hate Speech

    Let’s consider both comments in the light of the current Irish legislation, Section 7 and Section 8 in particular. Buckley’s comment is arguably hate speech directed against a protected characteristic, i.e. gay people, although a term that was originally meant as an insult has since been appropriated by the gay community as almost a badge of honour, in a way similar to the artistic licence taken with the “n-word” among African-American (or Black?) communities. Can offensive terms be used by those with a protected characteristic?

    Moreover, in a 1974 essay for the New York Review of Books ‘Fascinating Fascism’ on Leni Riefenstahl, Susan Sontag wondered how it had come about that ‘a regime which persecuted homosexuals [had] become a gay turn-on?’ Under the current legislation would it be a crime to suggest that the Nazi (anti-)aesthetic could be ‘a turn on’ to a gay person?

    A latter-day Gore Vidal might also be prosecuted for branding a right-wing Republican such as Buckley a crypto-Nazi, as Section 8 criminalises grossly trivialising genocide, crimes against humanity and peace.

    Crucially Section 11 of the act allows for a defence of criticism with respect to protected characteristics. But this does not apply, remarkably, to crimes against humanity under Section 8. To this we now turn.

    The language of Section 8 which criminalises inter alia crimes against humanity may be desirable in principle, although the overly broad language sets off alarm bells.

    Arguably, condoning or negating such crimes ought to be a criminal offence. Imagine being an Armenian and having to listen to Turkish propaganda justifying what is considered the first orchestrated attempt to eliminate a national group in the twentieth century?

    But this may easily become a legitimate subject for debate, such as exploring whether the Malthusian policies of the British Crown in Ireland during the Famine of 1845-51 should be described as a genocide.

    Also, who decides whether a genocide has taken place, a body of historians, or a court of law? Do we need to allow the fog of war to dissipate before any such adjudications with criminal ramifications are determined?

    Could it now be an offence to claim that Putin’s war in the Ukraine is really about Great Powers competing for resources rather than an attempt to eliminate Ukrainian national identity? By assessing the attendant brutality of the war in terms of Great Power politics, would a publisher or individual then be “trivialising” a crime against humanity.

    A measured denial of genocide – such as claims that the ICC’s Putin arrest warrant was based on State Department funded report that debunked itself – is completely different to an ahistorical assessment of a wide range of primary sources. The crucial issue here is adherence to the facts. It must be open for historians, journalists and lawyers to scrutinise questionable narratives around controversial events, such as the Kennedy Assassination. A distinction perhaps is that crimes against humanity are generally on a scale such as to make them undeniable.

    Criminalising that which grossly trivialises crimes against humanity is far too opaque and subjective a ground for a prosecution. The Act ought to be challenged under Article 40.6.1 of the Irish Constitution: ‘The right of the citizens to express freely their convictions and opinions.’

    An Article 26 Reference (by the President to the Supreme Court required within seven days of his receiving it) poses the risk however that if is unsuccessful there will be no further opportunity challenge any aspect of it in an Irish court.

    Ecocide and Economicide

    There may, however, be certain unintended consequences of the Act that could be used to advance progressive causes.

    In international law there are established candidates which are part of customary international law so called lex lata (established principles of customary international law), and more speculative controversial candidates over which there is an increasing lack of consensus, called in international law terms de lega ferenda (not yet firmly established).

    Thus, for example, one potential crime against humanity supported from the 1970’s proposed by Richard A. Falk is ecocide or crimes against the environment. Since such a crime involves various forms of intent and can include a conspiracy, it would involve at least the meeting of minds of the major oil and gas companies, and those who profit from them, including legislators.

    There is also a potential new crime against humanity for which there is less authority to date of economicide. Perhaps all of those who peddle a neoliberal world view, or support vulture or cuckoo fund, or allowed wealth to be siphoned off by Big Pharma during Covid-19 could and should be prosecuted!

    It could be said that the lifting of the eviction ban by the government is a form of economicide, as it is indirectly fuelling far-right wing extremism, led by gangsters attacking people with baseball bats. Thus, arguably, government policies, or the lack thereof, have indirectly generated racial hatred, and racism (speech directed against a protected characteristic) is criminalised by the Act.

    The framing of the innocent is also a de ledge ferenda candidate as a crime against humanity. One might argue that the Garda and/or the Department of Justice have condoned or been in denial of this.

    European Convention

    The Act is also likely to be challenged, and is subject to the jurisprudence of the European Court of Human Rights. Irish courts are bound, but rarely properly observe the Charter, despite the interpretative obligation. In reality we follow the ECHR selectively, ignoring it if it is too awkward, as in the nefarious Dwyer case.

    In a number of cases such as Jersild v Denmark (1994) and Lingens v Austria (1986) the ECHR have indicated under Article 10 of the Convention that speech encompasses a right to outrage and shock. These are deemed hallmarks of pluralism, tolerance and broad-mindedness in a society.

    Not everything is permitted. Thus, Holocaust denial or racist speech are excluded from protection, but the parameters are wide and restricted categories do not go quite as far as this Act.

    The crucial case of Lehideux and Isorni v France (1998) is particularly instructive. Here Le Monde newspaper were protected under Article 10 of the Convention for publishing an article celebrating the career of Marshall Pétain, the Vichy French leader who collaborated with the Nazis. The content was not set out in a way to negate or revise clearly established facts.

    It should also be noted that no action of publication or broadcast of hateful material is required, bringing us into the territory of thought crimes. The much-trumpeted defence of legitimate artistic and political criticism only applies to possession of such material.

    Considering the imposition of close to absolute liability for the distribution of so-called offensive material on the internet, and even a reversal of the burden of proof, it is no wonder Elton Musk is concerned. He may be put out of business!

    Moreover, the term ‘may be prosecuted’ is very loose statutory language. On whose behest?

    Stress Test

    Let us stress test the crucial sections of the Act against potential scenarios.

    1. Stating that Leo Varadkar is like Verruca Salz from Willie Wonka’s Chocolate Factory, a spoilt privileged brat, and a wart on the body politic offence falls short of being a criminal offence on a literal interpretation of the Act. But what if one called him a crypto-Nazi or inferred that Nazism could be a turn-on to him? Would that be grossly trivialising crimes against humanity or demeaning to a protected category? Crucially, the defence of political criticism is unavailable for crimes against humanity.
    2. Adrian Hardiman, our finest judge since Declan Costello, once addressed my King’s Inn class to defend his decision in the Portmanock Golf Club case (2009) where he sanctioned the barring of women members from the club, much to the distress of the Equality Authority, which had taken the case. He then argued that a lesbian rugby club should not be obliged to accept him as a member given he was not a lesbian and couldn’t play rugby. These comments by a Supreme Court judge were in a public place. We may have to shut down, or sanitise beyond recognition, the hallowed debating societies of Ireland in response to this Act.
    3. Is Michael O’ Leary the Chairman of Ryanair in his denial of man-made climate change grossly trivialising the crime against humanity that is ecocide? Or what if one were to say that supposed climate change activists including the IMF and Bill Gates are themselves guilty of crimes against humanity for condoning Malthusian practices, rather than focusing on regulating the extractive corporations devouring the planet?

    Book Collector

    I have been a book collector of first editions since I was sixteen. One book in my collection is a first edition of Vladimir Nabokov Lolita, (1959) which narrates in baroque language an affair between a middle-aged man and an under-age girl. I also possess a first edition of the notorious fascist writer Louis-Ferdinand Céline’s Journey to the End of Night (1932). In possessing works that seemingly supports crimes against humanity, and another that undermines protected characteristics am I guilty of an offence?

    Even if I am not prosecuted, does the very existence of such an offence generate opprobrium towards great literature?

    One fears that even the great Dostoevsky’s books may soon be de-platformed if any of these are deemed a “Kremlin-favoured work.”

    Simon Harris has suggested that there is no conspiracy, or campaign being orchestrated against free speech in response to condemnation. The jury is still decidedly out on that question. Perhaps what we see at work is a coalition of interests, or a just a confederacy of dunces.

    A chill wind blows. Slow train coming and more acts to follow.