Cassandra Voices

Tag: David Langwallner Cassandra Voices

  • 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

  • Being Irish

    This Ireland exists. And should one travel there and not find it, then they have not looked closely enough..
    Hugo Hamilton: The Island of Talking – In the footsteps of Heinrich Boll

    #IrelandisFull: the migration of this phrase from the far-right into the mainstream is an awful feature of our woe-begotten times. It begs the question: what does it mean to be Irish? Ireland is of course full at one level; full of gaslighting and bullshit, not least from people who subscribe to these views, and those who have created the conditions for them to flourish.

    One is not more Irish because your grandfather was in the GPO. That your name is Lenehan, Murphy, Barrington, Finlay, Kelly, Doyle, or conversely, Langwallner, Smith, Varadkar, Naidoo, Bacik should make no difference to your claim. It is not where you come from, or your name, it is about who you are, what you do and why you do it.

    It should make no difference whether it was an immigrant who assaulted a child, given many Irish thugs are wont to do the same. And recall it was a Brazilian delivery driver that rescued her. Thuggish criminals come from all breeds and nationalities. And those who riot and attack people with baseball bats are simply thugs, as are those who spread hatred against Johnny Foreigner from whatever vector in whatever country.

    Consider the words of Kipling, often considered a jingoistic nationalist:

    Now in Injia’s sunny clime,
    Where I used to spend my time
    A-servin’ of ’Er Majesty the Queen,
    Of all them blackfaced crew
    The finest man I knew
    Was our regimental bhisti, Gunga Din

    Wealth inequality in the United States increased from 1989 to 2013.

    Under Neoliberalism

    Under a rampant neoliberalism, we now see overt far-right fascism, but also a structural form underpinning the centre-right, which is overseeing the impoverishment of all but the super-rich, while maintaining a veneer of inclusivity.

    Now, with an economic and environmental meltdown on the horizon, it is time to assert universal Enlightenment values, and fairly allocate the resources of the Earth, and of Ireland, while leaving room for diversity and even eccentricity. It is the time for those, such as the legendary mixed race writer Albert Camus, to assert the values of moderation against all forms of extremism.

    The phrase keep ‘Ireland for the Irish’ is one I have heard in family law proceedings. Sadly, it speaks of a widespread, generally unacknowledged, intolerance.

    In recent times we have become a nation of bean counters. Between 1996 and 2012 the number of qualified accountants in the state grew by a staggering eight-three percent to number 27,112.[i]

    Ireland has always been run by a privileged elite, a comprador class of money men and lawyers that facilitate exploitation. The Four Courts still operates with vestiges of primogeniture. So resentment should be targeted against the elites who perpetuate inequality, not the poor huddled masses from Ukraine seeking refuge, which of course was offered to Irish emigrants in the recent past.

    Racism, tribalism, and irredentism are worrying signs of fascism, which seems to be the way things are heading. A fascist corporate authoritarian state is on the horizon. The extreme economic doctrine of neoliberalism is breeding autarkic extremism.

    One’s nationality, whether Irish, Russian or American, is not an indication of exceptionalism. That you are Irish does not give you an entitlement to despise outsiders. It cannot justify thuggery. Irish lives matter is an empty phrase. The far-right at its most extreme propounds truly crazy fictions. Thus. anyone daring to disagree is labelled a paedo, destroying family values. Jesus wept.

    Of course this is linked to the dark money of the evangelical Christian Right. Perceptively, Noam Chomsky once described the U.S. Republican Party as the most dangerous organisation in human history.

    David Langwallner receiving the prize from Miriam O’Callaghan for Pro Bono & Public Interest Team/Lawyer of the Year at the AIB Private Banking Irish Law Awards 2015.

    Nein Danke Herr Langwallner

    As a speckled person myself, like Hugo Hamilton, half-Irish, half Austrian, I was confronted in my school days with comments like “go back to Austria Adolf”. Moreover, during a debate in that crucible of Irish corporate narrow-mindedness which is UCD, I was greeted with the rebuke on an unanswerable point of information: Nein Danke Herr Langwallner.

    Much laughter flowed from the thuggish mobocracy. That body included at least one present judge, along with a managing partner of a leading law firm. Thugs and or criminals thus come in all shapes and hues in fact. Many are to be found among our corporate and legal so-called professional classes.

    Now what is pure Irish blood? Garrett Fitzgerald, the reformist Blueshirt, was a contradiction in terms. He once described the intellectually superior Charles J. Haughey as having a flawed pedigree. Haughey had his faults but note the class snobbery, and arguably racism, of the comment.

    The blue blood Tories of Fine Gael are sustained by a sense of dynastic entitlement, evident with judicial appointments, where a kind of rabbit disease like myxomatosis seems to have created an overwhelming mediocrity.

    The name Fitzgerald of course comes from the Vikings who raped and pillaged Celtic Ireland – plus ca change. The only difference is the violations are now financial, which is spawning far right-wing fascism.

    One of the heroes of the Irish Revolution, Countess Markievicz was actually born in England and married a Polish-Ukrainian count. Even the long-shadowed Éamon de Valera had a Cuban father and was born in New York. If only he had stayed. The bloodline of pure Irishness has thus always been corrupted. Garret FitzGerald should have understood that being Irish is not akin to a dog breeding competition.

    In more recent times, if we are supposed to hate immigrants based on their skin colour or ethnicity, are we to hate the greatest Irish football player of all time, the Black Pearl of Inchicore, Paul McGrath or Phillip Lynott the lead singer of Thin Lizzy similarly?

    Are we to add Irish Protestants and Jews to the hate list? Samuel Beckett was a Protestant and so was Justice Kingsmill Moore. A few more Protestant judges might have been beneficial over the history of the state.

    Or consider those to whom we have given welcome: the great Austrian philosopher Ludwig Wittgenstein – one of the most significant minds of the twentieth century – is honoured by a plaque in the Ashling Hotel. The great German writer Heinreich Boll lived in Ireland and was favourably disposed, while the Rolling Stones have had a shadowy presence among the Guinness family. In short, emigres, non-nationals, or “half-castes” enrich our public discourse and provide diversity.

    And if we hate the English, should we hate Shane McGowan or John Lennon, both of Irish extraction or if we hate the Yanks, what about Eugene O Neill or F. Scott Fitzgerald, two of the greatest writers who have ever lived, who were of Irish lineage. It might be said that the former’s posthumously published play A Long Day’s Journey into Night captures perfectly at one level what it is to be Irish: alcoholism, mental illness and abuse are the central characteristics of our national polity and governing classes.

    Irish and proud..

    Who are these people and why are they terrorising poor immigrants? The Fianna Fáil councillors who seek to condone must understand they are spreading the seeds of fascism. To hate the other because he or she is different is a disgrace, and you have forfeited your legitimacy to remain in public office.

    Yes, there is a need for a more nuanced immigration system. But proportionately we do not attract as many as elsewhere. Let us not forget that many of these people have experienced horrific scenes we can only imagine. But I fear that Ukrainian refugees on slender social support have gone from the frying pan into the fire.

    To fail to understand how much diversity adds to any society is to demonise and exclude. The shocking truth, however, is that exclusion is to be found at the highest reaches of the Irish establishment, who display classic attributes of colonialism as Fritz Fannon describes this phenomenon. Exclusion from the good life enjoyed by a few extends to many native sons.

    And if we are to dislike other nationalities let us avoid making it global or universal. I love the Italian film director Fellini but hate Meloni because she is a proto-fascist. I adore the writer Dostoevsky, but cannot approve of Putin. I love the African writer Achebe but not the African dictator Mugabe. Nor should one hate the Irish.

    Sinn Fein have been brave in sticking to a non-racist stance, particularly as many of its constituents misguidedly move elsewhere, and if they are to be a party of government they should ignore the electoral consequences and stick to their principles.

    Featured image by David Kernan (Creative Commons Licence).

    [i] Tony Farmar, The History of Irish Book Publishing, Stroud, The History Press, 2018, p.12

  • White Riot in Dublin

    When David Irving, the mad fascist historian imprisoned in Austria for Holocaust denial, was asked to speak by The University Philosophical Society in Dublin in the late 1980’s, the Student Union – involving the current Labour leader Ivana Bacik – instigated a protest that led to a minor riot to prevent him from speaking.

    Given the criminal damage, which included broken windows, it’s miraculous no one was badly hurt. Having stormed the Bastille, they tried to track down Mr. Irving, who, bizarrely, had taken refuge in The Dracula Museum at the very top of the building. In the meantime, I, and others, witnessed him with a load of maps of Concentration Camps on the floor in front of him, in near darkness, insisting it could not have happened. I left the building.

    As the events unfolded, I was asked to speak to the chamber and suggested that a much better course of action would have been to allow Irving to speak and then heckle and destroy.

    I should add that my original advice that he should not have been invited had been ignored.

    David Irving.

    Guilt and Attribution

    I am loathe to agree with Mr. Varadkar about anything but I can’t help agreeing that the events in Dublin’s fair city on the 23rd of November disgraced Ireland. The question of course is the attribution of blame and responsibility. The Moral ledger. Guilt and attribution.

    Before initiating new legislation, I believe Varadkar and his government should read Albert Camus’s The Rebel on the subject of extremism, and how a reign of terror begins. How do we identify in advance the sans culottes?

    Here today we see a potential terror, but a terror by whom and for what purposes? And how does the state not become part of the problem – as an ancien regime adopting draconian laws that foment terror in response? How do we prevent the creation of a police state purporting to prevent anarchy?

    The far right is a product of neo-liberal Ireland, state authoritarianism and surveillance, and the conduct of our thuggish professional and business classes. The people rioting are Leo’s Picture of Dorian Gray: the generation he inherited as Taoiseach; and let us not forget the earlier, inconsequential, insurrectionist protest outside the gates of the Oireachtas. It wasn’t exactly The Boston Tea Party or the Trumpian storm on the White House, but a worrying indication of the shape of things to come.

    Though the numbers are small in Ireland now, the movement is trending with over one-third of Europeans endorsing far right-wing parties. And now the proto-fascist Geert Wilders has emerged as the main victor in the Dutch election; while in Italy far right Prime Minister Giorgia Meloni prosecutes the legendary Italian journalist Roberto Saviano, who had the temerity to describe her as a bastard over her immigration policies.

    Leo Varadkar ought to understand, as Mr Saviona does, that crony capitalism and drug cartels exhibit similar features. The drug cartels, subversion and gangsterism of the inner-city rioting often finds a reflection in the mendacious and buccaneering conduct of the commercial classes. Varadkar’s government cannot wash its hands of responsibility of the causes of the Promethean storm.

    Moreover, irresponsible comments by Mary Lou McDonald that Drew Harris should resign betray a complete lack of empathy with the injured, some seriously, rank and file Garda officers. Whatever I think of the police as an organization – which is not much – the timing of remarks such as these was unacceptable, and in context offensive.

    Image: Daniele Idini

    Themes of Protests

    The themes of the protests are transgender rights, sex education at schools, immigration, corruption, and criminalizing offence. A whole phalanx of designer leftist and so-called progressive issues are under attack. These are issues that need to be disentangled, and the rage of the mob understood if not in some situations, in my view, condoned.

    Of course we ought to be highly sceptical of agendas underlying this Populism, not least when it is guided by keeping Ireland for the Irish, or that Irish lives matter. This is a nasty echo of the exclusionary racism and division of our time such that one cannot say all lives matter without generating offence. The extremist reaction in response is to say that non-national life should matter less and can even be destroyed. Sadly, it seems, the moderate, inquiring centre ground has been lost.

    The question of sex education at school interacts with religious mullahs and those who enforce dogmatism. But it was nonetheless ridiculous to attempt, essentially, to no platform someone of William Binchy’s intellectual stature – however misguided he may be in my view – disqualifying him from talking about euthanasia because he is a white privileged male further fuels the fire.

    Moreover, it is unarguable that the transgender lobby are ludicrously over-represented in the media and dedicated to no platforming.

    Clearly, the Dublin Protest on the 23rd became nasty and racist after a social media sensation attributed blame to a non-national for a brutal attack produced a flash mob. Unsurprisingly, the protesters ignored how a Brazilian delivery rider had given the victim a chance of life, in a proportionate defence, acting as the good Samaritan.

    Image: Daniele Idini

    Understanding Hatred

    It is time to rid ourselves of Irish exceptionalism and investigate the gorgon’s head. To condemn at one level is to fail to understand. The indignation is the product and the cause of others.

    Let us deal first with the right to protest, as I envisage a new set of laws being promulgated to regulate this. Certainly, the Gardai now need to deal with a situation of extremism spiralling out of control with increased presence on the ground. But now many are calling for them to be equipped with tasers which are useless at preventing a riot such as we saw in Dublin.

    The current Minister for Justice Helen McEntee TD previously 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.

    Those in power ought to consider Paul Lynch’s Booker Prize winning novel, Prophet Song, a dystopian vision of an Ireland of the near future, which describes:

    The dark pouring of the riot police, the rattling staccato of live rounds fired above protesters heads … the slow-motion collapse of the body torn into pixels as it is consumed by tear gas.

    Article 11 of the European Convention of Human Rights provides for freedom of assembly. This means that every individual, regardless of cause, has the right to protest, march or demonstrate in a public space. Historically the police had a duty to refrain from restricting this right unnecessarily and a positive obligation to take measures to protect peaceful protests. It was also the case that any intervention had to be necessary, proportionate and for one of the following aims:

    1. In the interest of national security or public safety

    – to prevent disorder or crime.

    OR

    1. To protect health or morals – to protect others’ rights.

    Freedom of assembly is also guaranteed under the much-denuded Article 40.4 of the Irish Constitution.

    In the famous Irish common law ‘orange lily’ case Humphries v Connor, 1864 plucking an orange order lily from a woman in the nationalist area of Belfast was adjudged to be a justifiable police act and a regulation of protest, as this would likely cause a breach of the peace. In these situations, historically, the police may take reasonable steps, including arrest, to prevent or stop a breach of the peace intended to cause harassment, alarm, or distress. The authorities already enjoy sundry other powers about rerouting matches, such as in the Love Ulster situation.

    The Dublin riot should not be used as an excuse to introduce new powers that will have little or no affect on preventing disorder on the streets.

    Édouard Vuillard, An Enemy of the People program for Théâtre de l’Œuvre, November 1893

    Corruption

    One interesting aspect of the allegations made by far right protestors is that our ruling classes is irredeemably corrupt, a view which aligns with left-wing, even Marxist, critiques of crony capitalism.

    Although Henrik Ibsen was not an overtly political writer his An Enemy of The People (1882) explores a moral question pertinent to our times. In that play a prominent and well-connected engineer, whose brother is the town mayor, is asked to conduct a survey of the waters of a town which has become famous as a spa resort, attracting a great deal of tourism. When he tests the waters, however, he finds that they are polluted. He informs the town burghers and indeed his brother. In essence, he protests.

    Rather than lauding him and complimenting him for a finely attuned sense of ethics and professional analysis, they turn on him with ever-increasing ferocity. He is told that he will destroy the local economy. He is named and shamed. His family is torn apart, and he becomes an enemy of the people.

    This was also the fate of Jonathan Sugarman and Garda Maurice McCabe, among others, who have exposed serious wrongdoing in the Irish state. Interestingly, the arrests of those who speak out is also evident in Paul Lynch’s novel.

    For Leo Varadkar to say that anyone involved in civil disobedience or protest requires disproportionate sanction is to fail to understand the right in question.

    Jurgen Habermas, the greatest living intellectual on the planet, argues for the vital importance of civil disobedience in vitalizing a democracy. The question of civil disobedience has a long history. One of the first exponents was Antigone, who went against the will of the autocratic King Creon in Sophocles’s play in 430 BC, invoking a distinction between positive law and the law of God.

    The right to civil disobedience has never featured prominently in Catholic theology and philosophy, as civil disobedience tends to be sacrificed on the altar of order publique. As Catholicism recedes in Ireland we are witnessing the advent of a new corporate theocracy imposing its own order publique.

    But the right to disobey against tyranny is important, as Locke argued; Foucault also chastised what many writers have termed blind obedience, as did Hannah Arendt.

    An intolerance of dissent is an increasingly feature of our age. In a recent book by Frédéric Gros Disobey! The Philosophy of Resistance (2021) the question of surplus obedience is canvassed. This is a surplus to requirements where one obeys for the rewards or pledges, assumed promises and out of a visceral sense of gratitude. This is what is called anticipatory obedience.

    Leo Varadkar ought to recognise that not all protest is comfortable or right, but it is irrelevant at one level if the protester is misguided; he or she ought to retain a right to be a nuisance.

    Towards the end of his career Ronald Dworkin wrote an article on the right to ridicule. Perhaps we should also emphasis the right to be a nuisance: for holding awkward opinions.

    It should be stressed that the control of protest is also intimately related to the control of dissent. Thus, the dissident or conscientious objector is prosecuted as a deviation from an oppressive norm. Sakharov is imprisoned by the Communist state subversives. Religious mullahs prosecute Salman Rushdie. Thought censorship rules.

    Anyone has a right to be a nuisance or a gadfly in a participatory democracy.

    The Holiday Inn Express hotel in the aftermath.

    Protection Against Hatred

    The Gardaí enjoy the right and should be empowered to protect against hatred. If rioters spread hatred against transgender people, then the protest should be stopped, and they should be prosecuted. The same applies if they spread hatred and racism against immigrants. I am talking about thuggish racist behaviour.

    There may be a legitimate argument that an indigenous community is being displaced, and even being rendered homeless. But this does not condone anarchical jihadism. The Irish government are to be commended, to some extent, for protecting refugees in temporary accommodation, but not for negating affordable housing and embedding corruption. People have a right to affordable housing and a decent quality of life in a state. The cost of housing associated with the presence of vulture and cuckoo funds fosters hatred in Ireland.

    Through neoliberal policies and increasing state authoritarianism, the ruling parties have fostered far right Populism. In my view in moral terms there is little to distinguish many of the police enforcers from the protestors. You cannot claim the moral high ground to condemn unless you understand blame and responsibility.

    Thus, in general, in what remains of our democracy, protest rights should be protected. People ought to have a right to say, peacefully, ‘I disagree’ with the government’s immigration policies, but without spreading hatred towards minorities, or attacking innocent bystanders.

    The state has facilitated this promethean storm. The mob subscribes to fascists ideas, but it is within the architecture of the state security apparatus that fascism tends to emerge. Our government may not be overtly racist, but indifference to poverty and social exclusion has caused many problems and contributed to racism.

    The police should not be granted any further powers than they already enjoy, instead the government ought to alleviate the social conditions that breed hatred. We in fact need another New Deal and not another fictional or real latter-day Charles Lindberg leading us to Populist fascism as we find in Philip Roths fictional recreation of the 30’s The Plot Against America. It seems to me that the Plot Against Ireland is the twenty-four-hour mass surveillance.

  • Late Art and Hackney Diamonds

    The theme of ‘late art’ was recently explored by the art historian Carel Blotkamp in The End: Artists’ Late and Last Works (2019) focusing on the visual arts, but in an age nonspecific way.

    Raphael’s ‘Transfiguration’ is central to the argument of the book. After Raphael’s death, the author notes his body was laid out beneath the painting in his studio. Vasari tells us that ‘the sight of his dead body and this living painting filled the soul of everyone looking on with grief.’

    Raphael died aged just over thirty years of age. Picasso in a much later blasphemous parody had Raphael fucking. More on Picasso and indeed fucking later. This is an article about The Rolling Stones after all.

    More representative of late art in literary terms is Thomas Mann’s Doctor Faustus 1947, which was written when he was nearly eighty years of age, and was his second to last work. The last being Felix Krull, both of which were discussed in a previous article for Cassandra Voices. In these works his style loosens and is fresher than his earlier work. I attribute this revitalisation to his hatred of fascism and fakery.

    Both of these books were written in old age when the light was dimming, which is remarkable. Great art arrived against the odds, with physical and presumably mental powers failing. Like Michelangelo finishing off the frescoes in the Sistine Chapel with the Last Judgment or even more so the late sculptures.

    Picasso approaching ninety, as the aforementioned book references, famously started working faster and faster, painting in a sketch-like figurative way: parodies, exhumations of the western tradition such as by Valazquez Los Meninas; in contextual or parodic form; painting as ideas with the clock against him. He famously said in this respect: ‘I have less and less time, and yet I have more and more to say.’

    Well, what a drag it is getting old.

    heatfield with Crows — oil on canvas 101×50 cm Auvers june 1890.

    More commonly…

    But Mann and Picasso are uncommon. More commonly, artists repeat earlier tropes or descend into sentimentality, commercial opportunism or simply kitsch as they age. The late works of Marc Chagall and Salvador Dalí fall into these categories. Opera Designs or endless recycled Kitsch is very evident in the Dali Museum in his hometown of Figures.

    The phrase ‘late style’ is also relevant in this context and is, in fact, culled from Theodor Adorno’s 1937 essay on Beethoven. Adorno – and, more recently, Edward Said, whose own last book was on late style – both suggest in a distinct echo of Picassos observations that regularity, precision, and tidiness no longer matter when an artist is faced with death. The writing and painting become more scabrous, irreverent with a lightness and incompleteness but also harrowed.

    One thinks above all else of the finest achievement in the history of art the late paintings of Rembrandt, where the artist is merciless in self-portrait particularly his damaged and aged eyes. Though the formal precision is, remarkably, retained. Another notable achievement is in the late work of Goya, his Black Paintings In particular. These are visceral images of human torture, misery, cannibalism, and insanity.

    Adorno wrote that late art or style ‘does not resemble the kind one finds in fruit. They are not round, but furrowed, even ravaged.’

    Many great artists of course die young and without the necessary anticipation of doom. Egon Schiele tragically dies in the ‘Spanish’ Flu Pandemic of 1919-1920. The Romantic poet Percy Bysshe Shelley drowned after a boat accident. So, the suddenness of a departure does not affect the art for good or ill.

    Van Gogh hadn’t reached the age of forty, when he died, but the Wheatfield with Crows is one of his greatest works, the crows above providing a doom-laden portent. In contrast, the truly writer of The Great Gatsby F. Scott Fitzgerald was dead by forty-four having been dismissed as a burn out and a has been. He had felt compelled to hack for money, with the Pat Hobby stories. As he said there are no second acts in American life, although Donal Trump might disagree!

    Some artists try and go out on top before retreating into isolation. Neither Harper Lee nor the reclusive J. D. Salinger published much after To Kill Mockingbird and The Catcher on the Rye.

    We might tentatively say that generally the best work comes first or close to first, before decline sets in, often with coincident celebrity and accolades. The philosopher Jürgen Habermas once remarked that when they shower you with awards you know you are finished. Stressed vines make the best grapes by all accounts.

    In this respect The Nobel Prize is often the kiss of death for creativity. Exceptions to that rule are of course Gabriel Marquez. He wrote as good if not a greater novel than One Hundred Years of Solitude (1967) after the award with Love in The Time of Cholera (1985). And then there is the incomparable Samuel Beckett, about whom more later.

    Kurosawa the great Japanese film director was effectively persecuted by the Japanese state by being snubbed at awards ceremony. Suicide attempt followed, and but for the intervention of Steven Spielberg and George Lucas he would not have gone on to produce a work as incandescently brilliant as Ran, his Samurai adaption of King Lear, which is one of the greatest films of all time that he completed at nearly eighty years of age.

    Better to burn out…

    In Rock music there is a discernible trend in late art achievements. Leonard Cohen’s late albums include Old Ideas (2012), which includes the sublime song, or poem, ‘Going Home’. And Bob Dylan’s Rough and Rowdy Ways (2020) is a continuous flow of genius.

    But both Dylan and Cohen were geniuses and not a bunch of blues-thieving, decadent often priapic monsters with a not undeserved reputation for all sorts of destruction of many of those around them.

    Giving them their begrudging due, the shows are of course truly spectacular, as anyone who had the privilege of witnessing them in Glastonbury would attest.

    The youthful audience, and some bemused older curiosities, largely came to bury Caeser, or Satan, but Sir Michael will not be buried easily and strode on stage in red barbed devilish gown, 28-inch waste and barnstormed, not least with sympathy for the devil.

    Well yes, a tour band par excellence re-threading their hits from the 60’s and early 70’s and producing nothing of note in over two decades of self-enrichment. Bigger and Bigger Bangs of the same thing. Outrageously reliving their satanic rebelliousness. Funding Keith Richards drugs, albeit no longer indulged in apparently, and Mr Jagger’s endless libido – growing old as disgracefully as possible. Aged eighty, he is married to a woman almost fifty years younger.  The lucky sod.

    But the artistic community could rest assured there would be nothing further. No further trouble.

    And then it landed ‘Angry’, the opening song of their recent studio album, Hackney Diamonds, a better starter I think than ‘Start Me Up’ and a better song than ‘Shattered’. Propulsive not 1970’s but 60’s revitalised and pared down. And Mr J. certainly sounds angry.

    And so, three well preserved and ostensibly vigorous elderly gentlemen in casual costume get in touch with their north London roots and step fearlessly into Hackney, which of course they never hailed from, to introduce a brilliantly named album Hackney Diamonds, with a glorious smash and grab cover.

    By any reckoning it ought to have been a re-thread or a bombastic disaster. But is simply a great rock n’ roll album. In my view the best pure rock and roll album since The Clash’s London Calling with a not to dissimilar mining of styles. It even includes a punk song with Paul McCartney on bass, who seems like he was having a ball with the band he had recently described as a Blues cover band. But what a cover band!

    Burst of Blues Energy

    The bursts of blues energy with at most one longueur is sustained through its forty-five propulsive minutes. The best comparison in terms of form and antecedents is Exile on Main Street, with the odd ballad mitigating the relentless noise. There are many great or near great songs. There is a rose in Hackney and not just Spanish Harlem. OMG.

    In ‘Sweet Smells of Heaven’ Jagger sounds as great as in ‘You Can’t Always Get Want’ and ‘Angie’. In short it is one of the greatest ever Rolling Stones songs. Whether it ranks in the top ten is a matter for debate. In my view very close to the absolute pantheon Sympathy For the Devil.

    Notably Keith Richard’s is in flying form. I wonder is arthritis loosening his playing style?

    Geoff Dyer has recently published a book called The Last Days of Roger Federer and it is not intrinsically about Federer though he was also an artist but is about the dying light augmenting the enormity of the achievement.

    Sir Michael who prompted the album to stir the wild beasts from their slumber now suggest they are three quarters way through a new album. A sense of enormous anticipation should now prevail. One hopes though it is not a set of discards and out takes.

    Hackney Diamonds would be an incomparable way to put a full stop, but what if the next album is even better? After all, The Beatles in their pomp followed Revolver with Sgt. Pepper’s Lonely Hearts Club Band, but that is now almost fifty years ago. Let us be clear Hackney Diamonds is the greatest stones album in forty years.

    They have ascended the charts in Britain and the USA In a way unprecedented since their heyday. And methinks Mr Richards will not be thinking about the money. One senses that old rubber lips thinks the best is yet to come and will force them back into the studios. No pressure then lads.

  • 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.

  • Ten Faery Tales for Our Time

    This article is dedicated to Patrick Healy.

    The Irish people have a long-standing relationship with ‘numinous presences in the landscape’, often referred to as the little people, or faeries. The literature provides a complex set of illusions. The writer, philosopher and independent scholar, my friend, Patrick Healy on a recent visitation tendered me a painting of Mad Sweeney (buile shuibhne), which forms part of his forthcoming exhibition in Amsterdam.

    It made me consider the enduring relevance of the faeries, although I now live in Leatherhead in leafy Surrey, where the little people are well hidden.

    In H.G. Welles’ remarkable parable of the future invasion by aliens from outer space, The War of the Worlds, we find the ultimate understanding of an existential threat. When Orson Welles put out his infamous 1938 broadcast, he set it in New York, causing a level of consternation that led some to flee to the nearby hills. The original book is of course set in Leatherhead, which is clearly not immune to faery tales.

    Most contemporary faery tales often provide binary messages of good and evil for children – or even child-adults susceptible to manipulation – who see battles between good and evil and a Manichean Universe. Thus, children and adult minds can be manipulated, and often nefarious agendas can be set using their effect.

    According to the plagiarised – but well received at the time – work of the psychologist Bruno Bethlehem The Uses of Enchantment, faery tales help children resolve Freudian oedipal conflicts. But on whose behalf? They are cautioned to stay safe from ‘evil’, but the meaning of good and evil is far from clear in this day and age.

    Historically, faery tales contain a surprising level of terrifying violence, often involving gruesome acts such as cannibalism, witchcraft, and bodily metamorphosis, as with werewolves. They play to latent fears that can be deployed to manipulate or control the human psyche.

    I will now draw out some crucial messages for the profound structural ways we organise our present lives around faery tales.

    Illustration of “The Emperor’s New Clothes.” by Vilhelm Pedersen (1820 – 1859).
    1. The Emperor’s New Clothes

    Hans Christian Andersen’s 1837 tale is based on a 1335 story from the Libro de los ejemplos (or El Conde Lucanor). It is short and alarmingly precise, involving an emperor of such vanity and so susceptible to flattery that his dressmakers get him to pose and preen naked.

    It seems to me that most of the politicians of Ireland, the UK, the EU, and the world at large are the vain inheritors’ of the Emperor’s new clothes, with fake experts and insiders flattering and manipulating them. Political leadership is always subject to vanity and therefore susceptible to flattery.

    Juxtaposition and Commentary

    Where there is no leadership, the people perish.
    Proverbs 29.18.

    Vilhelm Pedersen illustration for “Ugly Duckling”
    1. The Ugly Duckling

    This 1843 tale by Hans Christian Anderson is perhaps my favourite faery tale. Anderson was not a transcriber of faery tales – as the Brothers Grimm were – but a great creative artist. Here the eponymous ugly duckling is hounded out of the tribe, simply for being ugly, but a new tribe welcomes her as she is really a swan, not an ugly duckling at all. At one level this is about finding your niche and not associating with quacks – including those who force you out of town.

    Juxtaposition and Commentary

    ‘Beauty is in the eye of the beholder.’
    H. G. Welles

    What we need now are more ugly ducklings, and not clean-cut conformists – the inappropriate adults in the room.

    Hobbit holes or smials as depicted in Peter Jackson’s The Lord of the Rings film trilogy.
    1. The Hobbit

    In J.R.R. Tolkien’s 1937 fantasy classic, an insignificant shire hobbit, Bilbo Baggins with the aid of dwarves and a magician defeats the dark forces in the battle of the five armies. Written just before World War II, it anticipated an Allied victory against the dark forces of fascism. A parable for that time and our own, which is elaborated upon in The Lord of The Rings.

    Juxtaposition and Commentary

    ‘We burned to death 100,000 Japanese civilians in Tokyo, men women men women and children recognised that what was doing would be thought immoral if his side had lost. Lemay said if we HAD lost we’d all have been prosecuted as war criminals, and was right’
    Robert McNamara, ‘The Fog of War’

    Always keep in mind who the dark forces are, and that winning is not everything, or not always. Manichean battle between good and evil rarely occur. Who is evil today? Is it just Vladimir Putin or those who seek to prolong the war? And if Mr Putin is a war criminal, what of Bush, Blair and Biden?

    The Cheshire Cat.
    1. Alice Adventures in Wonderland

    In Lewis Carrol’s famous 1865 story Alice falls into a rabbit hole, and witnesses a succession of fantastical creatures, including The Queen of Spades who conducts a trial in breach of due process: sentence first, verdict later.

    Juxtaposition and Commentary

    This cannot be improved upon in terms of a commentary on this age of prejudgement and guilt by social media, or in the wake of any accusation.

    One modern version occurred when then Spanish minister Donna Luzon in advance of the Catalonia trials referred to those accused as the ‘convicted.’ We continue to find prejudgement of pre-crime, and conviction by association of those we disagree with. Quasi-internment. Deportations and extraditions. The obliteration of due process. The end of human rights. Endgame. Off with your head or to Rwanda.

    Well mercifully the Court of Appeal disagrees in the U.K.. But what about Julian Assange’s final appeal?

    Humpty Dumpty and Alice, from Through the Looking-Glass. Illustration by John Tenniel.
    1. Alice Through the Looking Glass

    The second Wonderland visit is best interpreted as being about language and the distortion of tradition.

    Juxtaposition and Commentary

    ‘I know of only one authority which might justify the suggested method of construction. “When I use a word,” Humpty Dumpty said, in a scornful tone, “it means just what I choose it to mean, neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be the master, that’s all.” After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has”. I have an opinion that they cannot, and the case should be decided accordingly.’

    The above quote comes from Lord Atkin in his dissenting judgment in Liversidge v Anderson (1942). It concerned the decision to intern someone as a subversive without due process. Thus we find a direct transcription from the book in the great English language decision upholding due process at the height of the Second World War. A sole dissenting judgment from a man and lawyer in touch with working class sensibilities

    First combined edition (publ. Ted Smart, 2000)
    1. Northern Light / His Dark Materials

    The ultimate anticipation of medievalism, with orcs seeking to undermine our hero Lyra, with her supportive, if ambiguous, daemons. Here we find the oppressive authority of organised religion and the death of the great bear Irek Brisson, who has fought so valiantly on her side.

    Philip Pullman was clearly influenced by John Milton’s Paradise Lost (1667), where Lucifer seems to be seeking to save humanity from institutional religion – as opposed to Christian belief which is a force of good – thereby undermining the satanic myth of the fallen state from Original Sin.

    The reversion to biblical historicism of the Old Testament is a dangerous feature of our age, not least in the US Supreme Court. As Pullman put it elsewhere: that great man Jesus and that scoundrel Jesus Christ.

    Juxtaposition and Commentary

    Original Intent interpreting a legal document from its inception, and not dynamically. Thus, America recognises the right to bear arms because it was acceptable over two hundred years ago. As Amy Coney Barrett put it after her appointment to the U.S. Supreme Court: ‘[Catholic judges] are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty. They are also obliged to adhere to their church’s teaching on moral matters.’

    From Sleeping Beauty (1959 film).
    1. Sleeping Beauty

    Based on the faery tale ‘La Belle Au Bois Dormant, published in 1697 by Charles Perrault, this story has been sanitised for popular consumption. In Disney’s retelling, the kiss of the prince awakens the sleeping beauty, but in the original telling of the tale she is not roused, and he falls in love with her body and essentially rapes her.

    It is only at the birth of her twins when one of the babies suckles at her breast that she wakes up. The prince then tells her what has happened. As if all this was not bad enough it turns out that the prince’s mother is an ogress, who is longing to eat her grandchildren. The tale first appeared in England in 1729 in Stories or Faery Tales from Past Times.

    Pantomimes and Disney have thus obliterated everything but the kiss.

    Juxtaposition and Commentary

    The idea of a prince coming to the rescue is also a theme in Rumpelstiltskin, and is the driving force in Cinderella too, although what makes for a prince is far from clear. Is it a man who abuses women or a coercive structure which abuses men and woman? Or worse still, those individuals who rape the earth. Thus, we should be careful about what and who we consent to, whether princes or princesses. Stay safe from sexual predators if you can.

    The main cast during filming in 1970.
    1. Willie Wonka and The Chocolate Factory

    Let us remind ourselves of the plot of the 1971 movie (based on Roald Dahl’s novel), in which Willie Wonka owns a chocolate factory, but has closed it down, because of espionage and betrayal. Here a race of Oompah Lumpas work under him, who seem like incorruptible souls, like Norwegians perhaps or Icelanders.

    So, in seclusion he creates the Wonka chocolate bars containing elusive golden tickets to a factory for a competition, as he is getting old and realises that someone else needs to take over the place.

    The children lucky are given a series of tests, for he only trusts uncorrupted children to run the business. He is a man-child adult himself, or a magician or sorcerer. But he finds that the children have also been corrupted. Fallen angels in a world of illusions.

    Charlie Buckets is the last recipient of the golden ticket. He fails because after cheating along with his grandfather. But is redeemable, as Wonka comes to the conclusion that the ideal child to run the chocolate factory is working-class. At one level his poverty has produced an element of dishonesty.

    Juxtaposition and Commentary

    Let us be wary of the inappropriate adults in the room and conscious of how poverty and social exclusion are an increasing feature of our time. So let us also be wary of going it alone, for the poor fall into traps set by the rich. And in an age of limited mobility to escape the debt trap, let us be wary of how and by what mechanisms the poor can inherit the earth or even achieve a basic income.

    1. Puss in Boots

    The oldest written telling version is Costantino Fortunato (Italian for “Lucky Costantino”) by Italian author Giovanni Francesco Straparola.

    Charles Perrault’s transcription is about a miller’s son who is left a cat in his father’s will. The miller’s son is none too delighted with his inheritance until the cat assures him that he can make the young man’s fortune. All the cat needs to accomplish this is a pair of boots. Thereafter, the cat makes him richer than his wildest dreams, and he marries the most beautiful princess.

    Juxtaposition and Commentary

    Beware of charming con men who claim they will make you rich, a lesson learnt by as all those who suffered from subprime mortgages and banking misrepresentations from the wolves of Wall Street in Ireland and elsewhere. Lies and misrepresentations that have been rubber stamped by the courts.

    Beware of dynamic self-made monsters such as the unlamented Peter Sutherland for they have destroyed and pillaged the earth.

    Readers should by now understand how we have been manipulated since childhood by faery tales in a deeply structural way, through the creation of a simplified world of good and evil.

    1. Wilde Encounters…

    I recently acquired a first edition Oscar Wilde’s Salome with illustrations by Beardsley. Now as I alight daily in Clapham Junction station on my way to court there is a plaque to Oscar Wilde as I change trains. I am reminded of being an aspiring young thespian in Trinity College 1989 where I played Edward Carson opposite to Patrick Healy as Wilde. So I conclude with Oscar Wilde’s faery tales – above all ‘The Nightingale’, along with ‘The Rose’, ‘The Happy Prince’ and ‘The Selfish Giant’.

    By serving their masters selflessly, the swallow and the rose die and only the selfish giant gains a measure of redemption through the generosity of his soul. He had allowed Christ or Christ’s emblem into his garden and now he gains the garden of paradise, or is it the kingdom of heaven?

    Feature Image: The Fomorians, as depicted by John Duncan (1912).

  • 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.