Cassandra Voices

Tag: David Langwallner barrister

  • Political Art – from Banksy to Weimar

    A reliable source, who happens to be representing him, now informs me that Banksy is to be prosecuted over his RCJ mural. This form of artistic censorship, leads me to consider the important role that art has played in terms of political commentary, and how some of the masterpieces in this genre resonate with contemporary events.

    Many of the atrocities of our time are today hidden from view, as computer game technology permits de-humanised genocide. War reporters are often banned from reporting on the ground, or if they do they are generally ’embedded,’ as tools of propaganda. There is no Robert Capa or Don McCullen visible in this age. As a result, death and barbarism are remote, with disinformation omnipresent. Thus we rely on an artist such as Banksy to redress the imbalance, and provoke a moral response.

    Today we can, at best, only partially bear witness to our reality. The news media offers up a version akin to a flame throwing shadows on the wall of a cave. Previously art engaged more closely with politics, but today few artists speak to our time.

    Many great artists throughout history have of course remained non-political and focused on the human condition. Moreover, political art often veers into dogmatism – recall socialist realism or Italian fascist art. One must carefully distinguish art from propaganda. Satire and caricature walk an uneasy path in this respect.

    The origins of European art lie in the depiction of mainly Biblical scenes, which yielded little of an overtly political nature, although the proton-surrealist work of Hieronymus Bosch especially ‘The Garden of Earthly Delights’ (1490) speak of a world of chaos and brutality. This is not dissimilar to our present universe. Depictions of hell provide a commentary on social entropy and evil.

    Among the pioneers in depicting ordinary human life was the Flemish master Peter Breughal the Elder. Scenes of social gatherings and festivities contain subtle and unobtrusive political messages. So, for example in the ‘Census at Bethlehem’ (1566) you have to look very closely to find Jesus and Mary arriving in on a donkey and trap amid representations of peasant life. His paintings provide hints into the nature of the institutions and practices of the time, and the plight of poor folk.

    In Renaissance Italy Titian and Raphael’s Cardinals often show cruelty or majestic temporal power. In those hardened faces one often gets a sense of that time. The demonic religious paintings of Caravaggio are almost a textbook exercise in conspiracy, murder and intrigue. How much fun would he have hid with the Jeffrey Epstein revelations!?

    Mary and Joseph are registered in the census at Bethlehem.

    Durer and Beyond

    The only Renaissance giant who is markedly different, and often avowedly political by way of mysterious and hidden social commentaries, is the great German painter Albrecht Dürer. It is the woodcuts and the lithographs where the apocalyptic commentary is most evident. The fourth woodcut of his Apocalypse cycle ‘The Four Horsemen of the Apocalypse’, (1497) depicts the first four of seven seals that must be opened for the Apocalypse to begin, These are Conquest, War, Famine, and Death. All are now evident internationally.

    In the famous engraving ‘Knight Death and Devil’ (1513) the knight seems resigned, and his facial features are downcast with the devil enveloping him. It is believed the portrayal is a literal, though pointed, celebration of the knight’s Christian faith, and of the ideals of humanism threatened or protected by the fox.

    The engraving Melancholia (1514) is a magus of ideas, clearly influenced by paganism, alchemy, and astrology – the dark demonological arts. It is also a cold mathematical work and exercise in numerology. It contains a brooding central figure, best represented as an allegory of the limits of reason, and a personal or collective descent into madness when reason no longer makes sense. To anyone scrolling through Twitter on a daily basis this may sound all-too-familiar.

    William Hogarth’s tremendous political engravings are also worth mentioning in respect of contemporary afflictions. His most famous print, Gin Lane (1751) graphically depicts infanticide, drunken oblivion, disinterment of corpses, starvation, beggary, poverty, impalement, suicide, debt, debauchery and the collapsing buildings of society. Also notable are his anti-corruption election cartoons such as An Election Entertainment (1757).

    Hogarth’s only contemporary competitor was James Gilroy and his famous ‘Plum Pudding in Danger’ (1805), which seems most apt for our present world, dividing into competing trading blocks. In this Napoleon and Pitt divide the world up and gorge themselves. Napoleon is cutting away a slice of land to the east of the British Isles marked ‘Europe’, but his piece of land is much smaller than Pitt’s portion of sea. The inscription reads: ‘state gourmets taking a little supper’. Greenland, Ukraine take your pick.

    Goya is the greatest political artist of them all in my view. In his oeuvre we encounter a treasure trove of commentary for our time. First and foremost, there is the incredible execution painting ‘The Third of May’ (1808), revisited by Manet, as well as lithographs of torture and brutality. His work curiously presages contemporary debauchery and cannibalism, societal and solipsistic that is.

    French Revolution

    In the same period there is the great portrait painter of the French Revolution and the Napoleonic era Jacque-Louis David. Some might consider his Neo-Classicisal style a little austere, but it’s nonetheless worthwhile visiting the main gallery in Bruges just to see The Death of Marat (1793).

    David was a propagandist for the Jacobins. Marat, the Montagnard faction, was murdered by Charlotte Corday, who supported the opposing Girondins. She blamed Marat for his involvement in numerous executions that had taken place during the Terror quite correctly, but the painting strengthened support for the Montagnards as David successfully presented him as a tireless revolutionary betrayed by conniving forces. A martyr covered in a holy glow, taking his last breaths, with revolutionary pen in hand.

    Indeed, the Reign of Terror only heightened after this painting’s release and after the Revolution, Jacques-Louis David shifted allegiance to the Emperor Napoleon, for whom he produced fawning political art including The Coronation of Napoleon (1807). Admirers of the Marat painting should read Albert Camus’s The Rebel (1951) as to the true Marat and the extremist terror.

    A near contemporary of David, Delacroix of course creates the famous painting of the flag and revolution Liberty Leading the People (1830), but we should be cautious about that French notion in its unrestrained form, certainly at this juncture, although the argument for protest and change are greater than ever.

    Death of Marat by David

    Greatest Epoch

    The greatest epoch in my view for political art was just after World War I. Many artists experienced the devastation of the trenches, and used this to condemn bellicose militarism. In the Weimar Republic we find the apogee of political art and social commentary through caricaturists such as George Grosz, and Otto Dix. No wonder the Nazis considered this degenerate art.

    If you look at Grosz’s inelegantly titled Pillars of Society (1926) – with the superior subtitle Shit for Brains – you will see one of the paragons of virtue, with, well, shit for brains. It anticipates disaster as the economy collapses, while the Nazi judges and commissars worked hand-in-glove with their jackboot associates.

    The etchings and paintings of Otto Dix also perfectly capture the collapse, most obviously The Match Seller (1920), The War Triptych or the engraving Stormtroopers Advance Under Gas (1924). These are among the greatest anti-war works. He survived the Somme and intellectual pretentiousness to produce paintings of the calibre of Portrait of the Journalist Sylvia von Harden (1926).

    Close to the Prada hangs the most monumental work of political art. To see it in the flesh is extraordinary. That is Picasso’s fatal depiction of the massacre of the innocents during the Spanish Civil War Guernica (1937). It now hangs symbolically now over Gaza or The Ukraine as a rebuke, as is the core symbol the dove of peace.

    The Spanish Civil War produced many other great works of art particularly the photography of Robert Capa, which is disturbing in its brutality, as are the later pictures of Cartier Bresson after the liberation of Paris where collaborators were made examples of. Likewise, the extremism of our time cuts in all sorts of ways, as does the demonisation of those we disagree with.

    Other great war photographs show the aftermath of Hiroshima and the liberation of the Concentration Camps, documented in Resnais documentary Night and Fog (1945). Unforgettable also is the photography of the bullet to the head of the Viet Kong activist. Even in this de-sensitised social media age that still has the capacity to shock.

    Picasso’s Guernica.

    Animation and Cartoons

    Animation substantively begins with Walt Disney, and his films are at times wonderful and at other times an expression of crass American values. The figure of Cruella de Ville from The Dalmatians appears crucial to our time, conveying the theme of the murder of the innocent for personal self-aggrandisement. A few contemporary figures would appear well equipped for the role, Ghislaine Maxwell in particular.

    The greatest cartoonist of all was the Belgian Hergé (George Prosper Remi), who has been accused, unfairly, of fascism for writing for Le Soir during wartime. This is an accusation almost as absurd as that levelled against P.G. Wodehouse, which is not to say that the character of the creator of the immortal Tintin is unimpeachable.

    Literary critic Jean-Marie Apostolidès identifies the character of Tintin as representing a personification of the ‘New Youth’ concept promoted by the European far-right. Indeed, Tintin in the Land of the Soviets (1930) was a work of anti-socialist propaganda, but then, in fairness, Tintin in America was designed as a work of anti-Americanism, highly critical of capitalism, commercialism, and industrialisation.

    Many would counter that Hergé was far from right-wing, as exemplified by his condemnation of racism in the United States in the introduction to Tintin in America (1932), and that the wonderful The Blue Lotus (1936) took a distinctly anti-imperialist stance, unlike Tintin in The Congo (1931), which has shades of Colonel Kurz. During the fascist era he did not join the far-right Rexist Party, later asserting that he ‘had always had an aversion to it’ and that ‘to throw my heart and soul into an ideology is the opposite of who I am.’

    From his earliest years, Hergé was openly critical of racism. He lambasted the pervasive racism of U.S. society in the prelude to Tintin in America published in Le Petit Vingtième on 20 August 1931, and ridiculed racist attitudes toward the Chinese in The Blue Lotus.

    Whatever the ambiguity, the art is riveting as Vietnamese-American novelist Viet Thanh Nguyen observed: ‘Hergé’s work is deeply flawed, and yet riveting narratively and aesthetically. I have forgotten all the well-intentioned, moralistic children’s literature that I have read, but I haven’t forgotten Hergé.’

    Of moralism and cartoons Roald Dahls illustrated by Quentin Blakes books are less ambiguous and more unsettling as portrayals of human evil and the macabre. not least the character of Willie Wonka. His character anticipates the soma-induced greed of our age.

    Animation has of course transmogrified into manga and anime, where the master is Miyzaki. In My Neighbour Totora (1988) the forest is warding off the evil spirits. Gai regenerating as when the industrial demons are confronted and beaten in his ecological masterpiece Princess Mononoke (1997). A little spring blossoms.

    Preserve his Anonymity!

    The important role of art as a form of political commentary should be re-asserted, and the forthcoming prosecution (if my source is to be believed) of Banksy sets a very dangerous precedent. It sends out a clear message to other artists, and will have a chilling effect in all likelihood. At the very least Banksy’s anonymity should be preserved in the event of him being prosecuted. Very few comment in a visual form so presciently on our times. He is the greatest political muralist since Diego Riveria, and the world needs more, not less, political art as a way of vitalising people and as an antidote to propaganda.

    Feature Image: The Plumb-pudding in danger; – or – State Epicures taking un Petit Souper by James Gillray

  • Banksy and Protest Rights: The View from The Robing Room

    As I sauntered from the Old Bailey past the RCJ the Banksy painting caricaturing a judge attacking a protester was no longer even a ghostly shadow, but it very much remains in the public domain, after reports emerged that it had been reported as criminal damage.

    On September 25, on Old Brompton Road, a comprehensive exhibition of Banksy’s work opened, which brazenly included the mural stencilled onto a different surface. This raised all sorts of issues about the commercialization of art and the edge of protest, not to mention whether or not he should be prosecuted.

    Based on Fiat Justicia, Mr Bansky faces prosecution for the recent RCJ Mural as criminal damage. I also hear he may be charged with being in contempt of court, leading to his long anonymity being exposed. Being named and shamed is another feature of our hysterical times.

    Recently, a bit like the opening to a P.J. Wodehouse novel, an erudite discussion was held among learned friends in the robing room of Hove Crown Court, steered by the most venerable member, as to whether the t-shirts, now selling fast, of this auspicious work should be deemed the proceeds of crime. The consensus was that in the U.K., post-conviction, the seller is responsible. Perhaps that is fanciful, but you never know.

    Policy considerations were also broached, such as whether in prosecuting him would you create a martyr that would lead to more t-shirts being sold? Would the state then be complicit in facilitating crime not least by increasing his revenues.

    Charles Dickens, his work the subject of many copyright violations and thieving particularly by Americans in his lifetime, expressed the view in Bleak House that it was far, far better to have nothing to do with the law. Well, it is certainly far better for the law to have nothing to do with Banksy, or is it?

    The consensus in the robing room was that given he is profiting from the mural, there was a strong argument for a significant fine, with the trial perhaps being conducted through in camera proceedings, preserving his anonymity, with any receipts being diverted back into the criminal justice system.

    Further, the venerable member concluded that he was inciting protest. The discussion took place over an entire lunch, and if any of us were briefed it would have occupied many days of court time, but should it occupy any court time at all is the real question?

    Mr Banksy, I am reliably informed, arrived at around 4-5am masquerading as a delivery truck driver. There was just enough light to use his meticulously prepared stencil. It is not now simply guerilla art, but increasingly reflective on worrying times. Many people are in on the act.

    The recreated version of the mural by Diiego Rivera, known as Man, Controller of the Universe.

    Diego Rivera

    Among the greatest painters of murals was Diego Rivera. His famous mural in the Rockefeller Center in New York was taken down because of his cheeky insertion of Lenin contrary to the edicts of one of the citadels of world capitalism. They destroyed it in violation of copyright law. An integrity right protects a work from being destroyed, mutilated or defaced or put it in an inappropriate setting.

    Examples of violations include colorizing a black and white film such as The Maltese Falcon (1941), or including ad breaks during the Monty Python parrot sketch, or inserting cover ups of nudity, such as even in the Sistine Chapel, but outright destruction is rare. Indeed, there was uproar in Berlin when some of the murals on the Berlin wall were destroyed.

    The Banksy mural was an insertion of overtly political content in a work of art, and the destruction or censorship of protest art has always been a feature of oppressive regimes. So, was the reaction disproportionate or ill-thought out?

    Mr Banksy is a national treasure, and frankly as great an artists as any in England since Lucien Freud. I suspect any prosecution will backfire or has, revealing institutional incompetence and hubris.

    The Banksy mural has significant political implications and presents authoritarian judges and the state cracking down on protest, not least in response to legitimate public outrage over Gaza, but what’s good for the goose is also for the gander. It is legitimate political art, but the regulation of protest as opposed to protest art is more complex now.

    Jasper Johns’s ‘Flag’, Encaustic, oil and collage on fabric mounted on plywood,1954-55.

    Protest Rights.

    The flag of St George is also copyright protected, and very similar to the flag of Switzerland and indeed the Red Cross, but it has been traduced by maniacs spreading hatred and division. The visibility of the flag has increased significantly across England.

    It is now the case that English, Irish and indeed American national identity is as fragile as the American flag fractured and loose as in the Jasper Johns painting. The Irish tricolour is also a symbol of unity of green and orange, but is now potentially divisive. Extreme nationalism, along with racism, is one of the scourges of our time. It is a reversion in my view to the 1930’s – symptomatic of a new dark age.

    There is, of course, a marked distinction between genuine patriotism and the revival of tribalistic, exclusionary and racist nationalism. Not all patriotism to reference Jeremy Bentham is the refuge of the scoundrel.

    But racism and chauvinistic nationalism go hand in hand and generally morph into fascism. The target is the excluded other, now the immigrant. Nigel Farage is now proposing to remove those without a settled status.

    Timothy Snyder recently came off the fence in On Freedom (2024) labelling the alt-right fascists, after considering the etymology of the term. But is he also an enabler given some of the neoconservative views he has expressed?

    Let us cease bandying about anodyne terms like crypto-fascism and use language with precision and exactitude. There are now fascists and a gathering mob, but this has been engineered by, and is under the control of, others. Who then are the enablers is the crucial question?

    Is Banksy an enabler? I am not so sure

    Source: BBC.

    London Protests

    On the streets of central London recently I was reminded of three things: John Reed and Ten Days That Shook the World (1919), his blow-by-blow account of the Russian Revolution; the scene in Cabaret (1972) where, semi-fictitiously, Christopher Isherwood decides to leave Berlin after hearing a version of Horst Wessel being sung. Finally, surveying the hate-filled eyes I was also reminded of Leni Riefenstahl’s Triumph of the Will (1935).

    I would argue that a similar species of Irish hatred is more vicious but far less powerful in electoral terms, bu there is now a real danger of the extreme right winning power in the U.K..

    Dozens of police officers were injured at the protests, yet only twenty-five arrests were made.  The counter demonstrators, understandably smaller in number, were non-violent, and let us be clear that a right to protest is intrinsic to democracy. Peaceful protest that is, an idea as old as Gandhi or Martin Luther King. Yet there were 500 arrests made at the peaceful Gaza protests in early October.

    This casts the right to protest into doubt, or at the very least demonstrates a need for greater regulation and proportionality. The insurrectionist riots and arson attacks on accommodation related to asylum seekers in Ireland in recent times is also a case in point, demonstrating the necessity of regulating (violent) protest.

    The Just Oil protesters, with others to come, were convicted under the Police, Crime, Sentencing and Courts Act 2022 (PCA) of conspiracy to cause a public nuisance, in response to the M25 motorway disruption in November 2022. Judge Hehir dismissed the defence of mere political opinion and belief as excluded from the present English legislation.

    That decision undoubtedly opens a dangerous vista, but the crucial question is that of whether a demonstration potentially causes harm, and that one clearly could have caused harm, and it certainly caused a significant furore and inconvenience.

    “Lilies that fester smell far worse than weeds.”

    Orange lily

    In the famous common law prosecution orange lily case Humphries v O’ Connor (1864) plucking an orange order lily from a woman in the nationalist area of Belfast was deemed a justifiable police act and regulation of protest, as the offending lily had the potential to cause a breach of the peace. This occurs when an individual causes harm, or if it is likely that they will cause harm to another individual or property, or if it puts another person in fear of being harmed.

    As Shakespeare put it in Sonnet 94:

    For sweetest things turn sourest by their deeds;
    Lilies that fester smell far worse than weeds.

    But what harm or public nuisance has Banksy caused? He has frankly adorned RCJ with better artwork outside than there is inside. Is it really an incitement to protest in contravention of the law or a protest to survive?

    Ronald Dworkin, towards the end of his career, wrote an article on the Right to Ridicule peculiarly appropriate to Banksy. There are, for sure, limits, such as Enoch Burke silently or not so silently protesting outside his school. He is not an artist and most decidedly frankly a nuisance, disturbing children being educated. So perhaps certain forms of protest should be consigned to Mountjoy. But there are also demonstrators from Stop Oil, Gaza Extinction Rebellion residing, perhaps excessively, in custody in the U.K.. Now, perhaps a great artist in will be in there next. But that mural was created before 150,000 people turned up in central London.

    The great political artist of our time, a private and ostensibly decent man, should not be publicly prosecuted for making legitimate points of criticism, with a drawing that Goya Picasso, Schiele or indeed Hergé would have been proud of. Hergé’s TIN TIN books were about the Manichean divide between good and evil. So who is the demon today, the contemporary Captain Haddock?

    Banksy deserves an anonymous knighthood not public humiliation. He should be known by his self-designation and not outed by a magistrate’s court.

    Whether he should pay a fine for profiting commercially from the mural is a different question. After all, would he not approve of charges being pressed against the fascist mob that attacked the police?  Perhaps any proceeds should go to police wellness programmes?

    In the film Cabaret the Isherwood character says: “do you really think you can control them?” Well, Banksy do you? And are you encouraging them or inciting the mob, the robbing room sagely discussed.

    It is crucial to realize that the Populist alt-right and indeed at times the extreme left have served to reduce speech and protest rights in an increasingly vigilante age, and now use protest to destroy democracy. So be careful about admonitions of judicial crackdowns even through art. For many are using democracy to destroy the social democratic consensus. And fringe leftist protests such as Just Oil are not much better.

    So, the legal arguments about disproportionately cracking down on violent or even peaceful protests certainly are no longer as clear-cut as the mural might suggest.

    In the robing room the venerable member concluded that perhaps an arbitral solution might involve a private settlement, i.e. a charitable gift. But none of that settles the regulation of the right to protest, which is now increasingly fragile.


    Feature Image: Banksy mural, 8 September 2025.

  • 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

  • Public Intellectuals: Thomas Mann

    Born in 1875, like many in his era Thomas Mann was initially a Great German Conservative, but by the outbreak of World War II he was making anti-Nazi speeches for the BBC.

    Mann won the Nobel Prize in 1929 for his chronicles of German families in Buddenbrooks (1901), and for his bildungsroman The Magic Mountain (1924), along with a number of well received novellas and short stories. Among his later publications, the novella Death in Venice (1929) is a terrific book, expressing his repressed same-sex attraction; it is a worthy expression of a hyper-civilised, fin de siècle aesthetic intelligence. The film by Luchino Visconti with Dirk Bogarde, though laboured, is also a masterpiece. It includes the famous adagio by Mahler, with whom Mann was acquainted.

    Mann seems to have known almost everyone who was anyone in his time, and was very catholic in his tastes and company. He remains, however, a crucial bridge between the tradition of nineteenth century letters and the twentieth century. Indeed, the earlier novels referenced above may appear at times like caricatures of that tradition.But great aestheticism does not necessarily equate to human greatness.

    As alluded to, Mann was a supporter of Kaiser Wilhelm during the First World War, and a romantic German nationalist with a lifelong fascination with Nietzsche. He lived for most of his adult life in Munich and his lifestyle consisted of work, an eclectic set of friends and a digression into unconventional Germanic behaviour. He was married to a Jewish woman, Katia, who he adored, notwithstanding a suppressed homosexuality or bisexuality: they had six children.

    As a novelist, not only Kafka but also Musil and arguably Broch, are greater twentieth century writers of fiction or prose within the Germanic tradition. But greatness also involves moral influence. Although, there was little until the 1930s to disclose his abundant moral courage, it was almost unparalleled among great writers even including Albert Camus. The stakes were higher.

    Colm Toibin’s recently published zeitgeist book on Thomas Mann The Magician (2021) reveals at one level a set of character traits crucial to how he achieved greatness. He was innately Protestant, despite a Brazilian, Catholic mother, modest and hard working. Commenting on his own prose style, Mann said it was ponderous, ceremonious, and civilised. This he said was all that fascists hate.

    And boy did he hate them. He hated in fact all forms of human fakeness, lies, deceptions and misinformation; an inclination very evident in the early novel Mario the Magician (1929). He also hated a lack of order and fecklessness, which was apparent in his attitude towards his brother Heinrich. And he hated barbarism.

    Thus, the arch conservative of Lubeck, in response to the rise of fascism and barbarism, changed his colour. Like Fernando Pessoa in Portugal, the caterpillar became a butterfly.

    The change was gradual. First, he had supported the Social Democrats in the Weimar government, writing treatises on his conversion to socialism as the Nazis emerged triumphant over the course of the 1920s and early 1930s.

    Mann simply could not deal with Nazis. At an implicit level, it might have been simply a matter of bourgeois taste, as he had an impeccable personal and aesthetic sensibility and was cosmopolitan but not decadent in his outlook.

    In American exile, where he was suspected of harbouring communist views, he was asked about his views on the avowedly communist Bertold Brecht. He said he did not like his writing, but that if he liked a communist writer he would have no problem saying so.

    Book burning in Berlin, 10 May 1933.

    Exile

    On holiday in 1933 he was advised not to return to Germany after many of his books had been burned in the modern day auto–da–fé. It is noticeable that it was mostly the books of Jews and communists that were burnt, but the German Student’s Union, spurred on by Goebbels, also burned Mann’s work.

    In Berlin, some 40,000 people heard Joseph Goebbels deliver an address saying:

    No to decadence and moral corruption … The future German man will not just be a man of books, but a man of character. It is to this end that we want to educate you. … And thus you do well in this midnight hour to commit to the flames the evil spirit of the past.

    Mann was excommunicated as a citizen in 1936. His life was threatened, and he was a moving target for the fascists for the rest of his life. Thus he left Germany when he was almost sixty, and apart from some brief post war visits never returned to reside there again.

    One wonders what would have happened if he had been more compliant. He was not Jewish and only a socialist at a stretch. It is possible that they would have showered him with hollow accolades if he had shown more deference. But unlike Martin Heidegger, he did not succumb, and thereafter in exile in Switzerland and America he became a more complete human being, which is reflected in the marked improvement in the quality of the prose thereafter.

    His wartime broadcast relayed on the BBC might be regarded as a kind of inverse Lord Haw Haw. On one of his eight-minute broadcasts from 1940 Mann condemned Hitler and his ‘paladins’ as crude philistines completely out of touch with European culture.

    In another noted speech, he said: ‘The war is horrible, but it has the advantage of keeping Hitler from making speeches about culture.’

    ‘Crude Philistines’…

    At the end of the war, he refused to allow his nation off the hook. They had turned mad; it was collective hysteria and even the 1945 atrocities documented so well in Anthony Beevor’s Berlin: the Downfall 1945 (2002) were in context to him condonable:

    Those, whose world became grey a long time ago when they realized what mountains of hate towered over Germany; those, who a long time ago imagined during sleepless nights how terrible would be the revenge on Germany for the inhuman deeds of the Nazis, cannot help but view with wretchedness all that is being done to Germans by the Russians, Poles, or Czechs as nothing other than a mechanical and inevitable reaction to the crimes that the people have committed as a nation, in which unfortunately individual justice, or the guilt or innocence of the individual, can play no part.

    Members of the Hollywood Ten and their families in 1950, protesting the impending incarceration of the ten.

    Unamerican Activities…

    Extremism cuts both ways. In exile he was forced to testify before the House for unamerican activities as a suspected communist. Here is how he responded:

    As an American citizen of German birth, I finally testify that I am painfully familiar with certain political trends. Spiritual intolerance, political inquisitions, and declining legal security, and all this in the name of an alleged ‘state of emergency’. … That is how it started in Germany.”

    Moreover, when Mann joined protests the jailing of The Hollywood Ten and the firing of schoolteachers suspected of being Communists, he found ‘the media had been closed to him.’ Finally, he was forced to quit his position as Consultant in Germanic Literature at the Library of Congress, and in 1952, he returned to Europe. Th Overton window of the thought police fell on the great writer, as it does to many today. He was now nearing eighty years of age.

    Exile created both a looseness and precision of prose style. A spring in the step. Dr Faustus (1947) is one of the best books ever written. It is a masterpiece and worthy of Broch or Musil or indeed Kafka. The stilted Germanic prose style becomes freer. The theme inspires: good versus evil.

    The book is about the composer Leverkuhn who sells his soul to the devil. The Faustian pact is Fascism. It is also about the corrupting influence of atonal music and its nihilistic dissonance which creates a valueless universe, like the structuralists and deconstructionists of our time. The great prose meister was having none of it.

    In my view, Dr Faustus is also about Martin Heidegger the other central intellectual figures in Germany at the time. Heidegger fell for the bait and took all the Nazi accolades, entering the Faustian pact despite his Jewish mistress Hannah Arendt, who wrote eloquently subsequently about the banality of evil. Mann, though a man of considerable means, said no.

    A theme central to his existence was that an artist cannot abandon politics at least not in such a period as the 1940s, and must recognise the moral consequences of his actions.

    Dr Faustus frequently references Leverkuhn’s veneration of Albrecht Durer, the great Renaissance artist, and his pictorial representations of moderation, judgment, melancholia and the apocalypse. Indeed, as the Nazi state collapses, he becomes obsessed with melancholia.

    In the search for spirituality, Mann invokes in a man who has lost all reason and his soul. When composing Dr Faustus, Mann showed and lectured on this to a fourteen-year-old girl who was visiting, who was Susan Sonntag. Thus, the magician bridges generations and resonates through the ages.

    And then at the end of Days with the light dimming he showed in his book about the conman Felix Krull the darkly comic humour at the heart of capitalist chicanery, which, if left unchecked, culminates in fascism.

    Mann is the great Protestant Germanic intellect of the last century, but he was also an ethereal magus and magician.

    His legacy lies in the assertion of standards, of discipline, of stable family values, and of a certain amorphous sexuality. Above all it is in the condemnation of extremism, the condemnation of barbarism, the assertion of civilised values, the rejection of censorship, the hatred of chauvinism and the social cleansing from the left or right. A consistent hatred of intolerance from all sides.

    That is what is needed now.

    His life is also an example of moral courage. The Germans wanted the magician back, but he was not satisfied that they had changed. It was him judging them not them judging him. He did not think they were displaying appropriate contrition for what they had done. He was right.

    In a different context, in Chile, when Pinochet was forced to call an election – as our conservative rulers will soon be required to in Ireland – a persecuted advertising expert advised the opposition as to how to orchestrate a campaign. No reference to mass murders or internment camps, just young Chileans with the slogan JUST SAY NO.

    That is what Mann said to fascism, and what we must now say to the ruling parties in Ireland. No images of homelessness, no incessant exposure of state corruption and criminality. JUST SAY NO, before it is too late.

    Feature Image: Thomas Mann in 1905.

  • Facilitating the Dirty Business of the State

    Both as a lawyer and Supreme Court judge, Louis Brandeis was an inveterate opponent of big business interests. Less well known than his other contributions, is that he a co-authored a text in the 1890 Harvard Law Review that invented a privacy right, which has steadily been eroded in criminal justice.

    Indeed, as a judge in Olmstead v US Brandeis extended the privacy right to what he termed ‘the dirty business of the state’. In that case, without judicial approval, federal agents had installed wiretaps in the basement of Olmstead’s office and in the streets near his home.

    Culminating in the recent Quirke case, in Ireland, a right to privacy in criminal proceedings has now reached a juncture of virtual nonexistence.

    In my last article I referred to Irish Supreme Court Justice Gerard Hogan’s opinion that for thirty years the Irish Courts have failed to enforce due process under Article 38 of the Irish Constitution. The Quirke case delivers us to the terminus, facilitating the dirty business of the state.

    In that case, evidence gleaned from a computer unlawfully seized from Patrick Quirke’s home was deemed admissible. Jurors in Quirke’s original trial were informed that Quirke’s computer was used for internet searches on the decomposition of human remains and limitations of forensic DNA. Quirke was found guilty of murder based on circumstantial evidence.

    Louis Brandeis 1856-1941.

    No Statutory Safeguards

    In Ireland we now enjoy no statutory safeguards, other than Judges’ Rules, whereas in the U.K. Section 76 and Section 78 of PACE (The Police and Criminal Evidence Act 1984) are actively enforced to exclude coercive and inappropriate tricks or force, and that which impacts on the fairness of the proceedings. I know from experience that judges in the U.K. are vigilant at throwing out a case in the event of an abuse of process.

    The murmurings by the Irish government about the implementation of the Special Criminal Court recommendations is a space which should be carefully watched. Most likely, in my view, is that an institutional preference for non-jury courts will be given ever-wider jurisdiction.

    It is a sign of how we are entering an inquisitorial rather than adversarial age worldwide, not just in Ireland, which suits the interests of many of our elites. Our own, and other states, are sidestepping the Rule of Law in the interests of big business, often at the expense of the sometimes-innocent lives of others.

    Furthermore, it is noticeable that the seven judges of the Supreme Court selected to adjudicate on the Quirke case did not include the state’s leading constitutional lawyer. Gerard Hogan’s absence was his presence.

    One can only wonder why Hogan was, deliberately or otherwise, excluded. Perhaps to preserve a show of strength through unanimity? Or maybe Hogan would rather colleagues were unanimously wrong, and wanted no hand nor part in it.

    While on the High Court Peter Charleton was the architect of the nefarious JC case. His judgment in Quirke expressly reinforces that case, and fails to over-rule it as doctrinally unsound. He also sidesteps accepted breaches of EU and ECHR data protection under the privacy right. The judgment effectively subsumes a right to privacy at the expense of public order considerations, and legitimates the dirty business of the state.

    The Supreme Court could have engaged in a process of reconsideration and followed the late Adrian Hardiman’s masterful dissenting judgment in JC. They had a choice and did not.

    Hardiman’s absence is also his presence. The shade of a forgotten ancestor. His dissent is not even addressed in any satisfactory detail in Quirke. This failure to address Hardiman’s reasoning is not dissimilar to the way the State treats whistleblowers, who are demonised, ignored, trivialised or excluded. If all else fails, as in the McCabe inquiry which Charlton presided over, the State endeavours to deflect, invoking the shabby excuse of inadvertence – at least until confronted by the stark truth.

    Then, only after being caught with your legal pants down, do you cobble together a shabby deal involving a multimillion pound pay out. With a confidentiality agreement of course.

    Image: Daniele Idini

    Factual Matrix

    The factual matrix of Quirke may go some way towards suggesting that it was an inadvertent mistake, but that is not a typical pattern, as various sources, including the Morris Tribunal, and Hardiman’s eviscerating judgment in JC, demonstrate that discipline – and it might be said ethics –  are barely apparent in the Irish police force: An Garda Síochana.

    It is not a case of – as I can testify – simply of incompetence, though this is undoubtedly part of the problem. It is a combination of tunnel vision, or cognitive bias, coupled with active attempts to frame those deemed to be threats, or perceived threats.

    Whistleblowers, including and especially internal ones, are a particular target, but human rights lawyers or defence counsels may also be in their line of fire.

    There is no point having the symmetrical precision contained in Charleton’s detailed judgment and in some of the majority judgments in the JC case. This is not a case about shipping or guarantees where rules can be implemented precisely with clear consequences; and where high commercial stakes demand clarity and precision, which can then be cross-checked against best practice in industry.

    The rules in criminal proceedings must be matched up with, and adapted to, social realities. A member of An Garda Síochana may describe something as inadvertence when it was a reckless or deliberate violation of constitutional rights. There is a consistent tendency to lie or cover up. That is what the Morris Tribunal and other reports demonstrate. Things have got worse not better. This was not dealt with adequately in the Report of the Fennelly Commission.

    Image: Daniele Idini.

    The Path of The Law

    In one of his most celebrated contributions to legal discourse Brandeis created the so-called Brandeis Brief, which is often used in cases involving the death penalty, and others. This involves the marshalling of economic and sociological data, historical experience, and expert opinions to support legal propositions, i.e. judgments must be cross-checked against social realities.

    Therefore, in Ireland the behaviour of the police does not warrant a watering down of the strict exclusionary rule. In Ireland we require a high standard. Discretionary rules will not be applied.

    If the police are afforded the excuse of inadvertence, they will happily paper over illegality.

    Rules must be informed by social realities. It was recently alleged in the High Court that a number of officers supervised the importation of drugs, and controlled the flow of shipments to dealers. Woe betide anyone who has the temerity to stand in their way.

    Charleton by implication, and expressly, suggests that a factual inquiry into the bona fides or honesty of a police action and decision can be made in a specific context. But given the present Special Criminal Court dispensation, accepting uncorroborated police evidence, that inquiry must be very limited and conditioned by the judgement of subjective officialdom.

    The acceptance of a Garda evidence in even securing a warrant without adversarial scrutiny is unacceptable. Safeguards need to be built into the system.

    The Quirke judgment is a travesty: a neatly-ordered, precise and tidy travesty – as is Charleton’s want. We should not be facilitating the dirty business of the state but enforcing the privacy right.

    Feature Image: Daniele Idini

  • 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.