Cassandra Voices

Tag: justice

  • Guilt and Innocence in the Criminal Justice System Part 2

    As the founder of the now seemingly inactive Irish Innocence Project, and co-founder of The European Innocence Network, I staunchly oppose the death penalty, with exceptions for certain Crimes Against Humanity. I have personally visited and represented individuals on death row in Kenya and the U.S.. This underscores the critical need for our legal system to exercise caution, and precision, to avoid wrongful convictions.

    Recently, I have condemned in a Cassandra Voices Podcast the inhumane prospect of Julian Assange enduring indefinite incarceration. This stance does not, however, imply a belief in universal innocence, or countenance a dismissal of deserved punishment. Rather, I advocate for a measured approach to justice, echoing Shakespeare’s notion of ‘measure for measure’ in determining appropriate consequences for actions.

    Following an ethical determination of guilt, the central question revolves around what form of punishment is suitable. But before delving into punishment, we must first address the concept of guilt, and whether the guilty evade accountability.

    Unfortunately, instances abound of individuals with power or wealth evading justice through various means. Examples include former President Trump and Clinton’s long list of pardons on leaving office, and instances of state officials abusing their authority, as depicted in literature such as Klima’s 1991 novel Judges on Trial. These cases underscore the danger posed by those entrusted with upholding the law manipulating it for personal gain.

    The Worst Criminal

    A state or judicial criminal is often the worst criminal. They have subverted the Rule of Law and the processes they were appointed to uphold. They are professional hypocrites.

    In his 1971 detective novel Equal Danger, Leonardo Sciascia demonstrates how in Italy judges may become, by stages, complicit in murder. Chillingly, the President of the Supreme Court intimates to the investigating detective that in condoning murder the judiciary are incapable of error.

    Sciascia also documented the complicity of the mafia and Christian Democrats in the murder of God’s banker Roberto Calvi in 1982, and of course the kidnap and murder of the progressive, or incorruptible, Christian Democrat Aldo Moro in 1978.

    In Ireland the incident that primarily gave rise to Conor Cruise O’ Brian’s immortal phrase GUBU (grotesque, unbelievable, bizarre and unprecedented) was the murderer of the nurse Bridie Gargan and the farmer Dónal Dunne in 1982. The murderer Malcolm McArthur was discovered on the private property of then Attorney General Patrick Connolly.

    Not uniquely in Ireland, the powerful avoid and do not accept responsibility for their actions and may resort to framing others. Voltaire, the earliest expert in miscarriages of justice coined the phrase per encourager les autres, to deal with the scapegoating of Admiral Pyle by the establishment.

    Political criminals also enact laws to protect their interests. The new Hate Crimes Bill in Ireland is finally being opposed by SF as they have recognised the danger it poses.

    Foundational Tenet

    The legal principle of ‘presumed innocent until proven guilty beyond reasonable doubt,’ as established in the case of Woolmington v DPP (1935), serves as a foundational tenet. Yet, challenges arise, particularly regarding the interpretation of evidence and credibility of assessments.

    In every case I have recently conducted the same question is asked by jurors: “is sure the same as beyond all reasonable doubt?” Judge rightly say yes, and try to avoid further questioning to avoid being buried in semantics.

    Of course, the crucial point is that unless someone tells a defence lawyer he or she is guilty – in which case you either withdraw or can only defend by challenging the prosecution evidence without asserting innocence – you cannot know definitively.

    Cognitive bias cuts all sorts of ways. A defence lawyer should be timorous about getting a client to plead guilty if there is any doubt. Not least, many clients are vulnerable and inclined to please authority and, as has happened in my experience, defendants may seek to change their plea.

    The intersection of morality and legality further complicates matters. It is essential to caution against conflating moral judgment with legal culpability. Instances of moral condemnation influencing legal proceedings – as seen in the admission of bad character evidence – highlight the need for a nuanced approach.

    A feature of my speeches is to caution a jury not to confuse morality with legality. Moral condemnation is often used by the prosecution to smear the accused, and the previous bad character admissions ushered in by Blair in the U.K. opens that gateway.

    In Ireland, however, the exclusion of bad character is not a good idea. Evidence of bad character is only inadmissible in certain defined exceptions, such as if one puts one’s good character in evidence. There should be more of a halfway house.

    Despite efforts to discern guilt, the process remains fraught with challenges. Guilty individuals often resort to elaborate tactics to obfuscate the truth, necessitating a vigilant approach from their lawyers. Additionally, societal biases and institutional pressures can influence witness testimony and judicial outcomes.

    In the pursuit of justice, it is crucial to distinguish between genuine miscarriages of justice and rightful accountability. While liberal objections to wrongful convictions are warranted, there are instances where the punishment must align with the severity of the crime. The case of the Moors Murderers 1963-65, Ian Brady and Myra Hindley, serves as a poignant example of criminals rightfully facing lifelong imprisonment.

    Reluctantly, it must be conceded many are guilty. And it is sometimes very difficult to get them to accept their guilt. Even my great hero Clarence Darrow ‘Attorney for the Damned’ represented Leopold and Loeb, who in a nihilistic fashion attempted to kill another young man simply to prove they could get away with it. As in the Jamie Bolger case. Darrow knew they were guilty and avoided an insanity plea. Instead, he made the greatest plea in mitigation in the recorded legal annals to avoid the death penalty. But they did do it.

    Lucy Letby mugshot.

    Nurse Letby Case

    The recent case of Nurse Lucy Letby who was found guilty of murdering seven infants in Manchester crown court in 2023 is instructive.

    She is not the first Mancunium serial killer. Between 1963-65 in Saddleworth Moor near Manchester Mancunians Ian Brady and Myra Hindley murdered innocent children. It is noticeable that they were also influenced by the film ‘Compulsion‘ documenting the Leopold and Loeb case.

    Working on a recent case in Manchester, I resisted the temptation to visit the moors, but did pass by Market Street, Cheshire where another notorious murderer, the serial killer and doctor, erstwhile respectability known as Harold Shipman had his surgery. In this case a later inquiry revealed the police should have acted sooner. So, one should not always attack the police.

    And there is some evidence in Nurse Letby’s case that the NHS, in collective group think, buried their heads in the sand as the evidence accumulated. They were protecting the guilty through cognitive bias. A consultant who gave evidence in her case said lives could have been saved if there was not a cover up to preserve institutional reputation. Thus, in fairness, state officials, doctors and police officers are often hit from both sides: damned if they do; damned if they don’t.

    I have represented clients in several cases where due to witness reluctance or external pressures, the police have taken the action of NFA (No Further Action), which they have come to regret.

    The cheaper the crook…

    So, what are the hallmarks of guilt? It is surprisingly difficult to work out. One crucial sign is perhaps, as the American actor Humphrey Bogart said: ‘the cheaper the crook the gaudier the patter.’ Overly complex explanations are often a sign of guilt.

    The patter includes: convoluted challenges to police evidence gathering and exercise of due diligence on instruction; excessive casting of doubt on overwhelming expert evidence; elaborate excuses for extreme violence based on self-defence; and inappropriate allegations of police misconduct.

    Now the process must be tested and many wish to save their skins. Those who are desperate will often resort to anything, and the defence lawyer on instructions often must facilitate this.

    I remember how both myself and Adrian Hardiman were tarred with damnation, overlooking constitutional niceties, in the constitutional challenge to The Proceeds of Crime Act as lawyers for Gilligan by the Sunday Independent.

    A trial process weighs up whether evidence is relevant or not, and whether there is a case to be answered. The question of whether a case should have been brought in the first place is a different matter.

    Legal representatives may also argue over whether there has been an abuse of process through non-disclosure, non-compliance or a fit up. In this respect the absence of video or phone evidence is crucial. Once confronted, a guilty person may tangle themselves up in lies, which affects their credibility when giving evidence

    A witness who is lying must avoid the truth and is often lulled by persistent questioning into the trap of telling the truth by indirection.

    Thus, the prosecuting barrister Edward Carson, after listening to days of Oscar Wildes’ ridicule at his trial for gross indecency in 1895, popped the surprise question – a deadly weapon to be sparingly used in the barrister’s art – about the boy Grainger.

    Did you Kiss him?

    The answer which leads to the Reading Gaol and early death in Paris was:

    Oh no he was far too ugly.

    It must be stressed that the credibility of a witness must be read in the context of the vulnerable person they may be. Some suffer from addiction and mental health issues, which is not to say they are not telling the truth.

    Sadly, in a world of increasing subjectivism and loss of truth those who lie may have been telling the truth as they see it, or as they remember it, but not as a fact. Witnesses for defence and prosecution also have intellectual masking to justify in their own mind what they have done. Everyone, as Voltaire indicated, has their reasons.

    Anti-social Media

    In our time, text evidence from social media and other digital uploads such as chat lines are often very incriminating. The utilisation of social media can have disastrous consequences as historic texts and chats can come back to haunt you. They might demonstrate a propensity as a prelude or aftermath to an incident, and they often show planning, ostensible grooming or worse still acceptance. But comments of a salacious nature in isolation can be magnified by unscrupulous prosecutors.

    Scurrilous tactics are never justified, but tarnished evidence is often admitted. I am no fan of racist vigilante groups or engaging in quasi entrapment, but I recognise that sometimes they catch people who are guilty, or, more ambiguously, exhibit certain traits.

    Video evidence often confronts someone with what they really did under the influence and normally leads to a quick acceptance of responsibility.

    What happens next has been characterised by Oliver Wendell Holmes as the ‘bad man’ of law:

    If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, and not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.

    The legal process is often unforgiving, albeit this is necessary at times.

    I do not believe in punishment as denunciation, or retribution where guilt and sin are confused, such as occurred in the sentencing of Roger Casement to death.

    With respect to what the British call just and proportionate punishment, I had the privilege of inspecting a Norwegian prison when attending a death penalty conference in Oslo. The tennis courts, swimming pools, private rooms discourage recidivism and potentially rehabilitate criminals.

    The Court of Appeal in the UK in R v. Ali (2023) is actively discouraging judges from sending people to prison, not least in congested post-Covid times. Most come out not wiser, but weaker.

    But let us also be conscious of the appropriate punishment for the massacre of the innocents.  Not all who claim a miscarriage has occurred are victims. There is a time for a liberal objection to a miscarriage of justice, and a time for when the punishment should fit the crime. Even the Norwegian prison system struggled with the serial killer Anders Breivik, who they had to build a special facility for.

    I wonder will certain lawyers, businessmen or lawyers ever see justice? Not likely, apart from a few subordinates thrown to the wolves. This was the pattern of our banking prosecutions. The rich can retain the best lawyers and engage in plausible deniability, and a chain of command.

    Thus, corporate lawyers, judges and businessmen, as well as puppet politicians, have the justice game rigged, up to the point where they commit murder. Then of course the system must react? This may become a pertinent question for Ireland in the coming months.

    Feature Image: Christian Wasserfallen

  • Guilt and Innocence in the Criminal Justice System Part 1

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

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

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

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

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

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

    Leading Questions

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

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

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

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

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

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

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

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

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

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

    An opinion once adopted

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

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

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

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

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

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

    Identification Evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Feature Image: Christian Wasserfallen

  • Disturbing Developments in Criminal Justice in Ireland

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

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

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

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

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

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

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

    Adrian Hardiman.

    In Camera Proceedings

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

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

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

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

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

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

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

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

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

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

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

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

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

    In a damning assessment he stated:

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

    Thomas Bingham, Baron Bingham of Cornhill 1933-2010.

    Special Justice

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

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

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

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

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

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

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

    Minister for Justice Helen McEntee.

    ‘Belief Evidence’

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

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

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

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

    Conclusion

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

  • The Brick Wall: Access to Justice

    I’m living in cloud cuckoo land
    And this just feels like
    Spinning plates
    Radiohead, Like Spinning Plates, Amnesiac 2001.

    Ten years on from the Irish Banking Crisis and the subsequent taxpayer funded bailouts, how are we faring in term of regulating the financial sector?

    In view of the possibility of another property bubble, it is surely vital to ensure appropriate access to justice, especially for those with limited resources.

    Prior to the Crash, banks through their own internal regulatory mechanisms – including risk management and third party auditing firms – were, essentially, allowed to regulate their own affairs, which unfortunately permitted a lax regime.

    On a rare occasion that a risk manager signalled grave breaches of conduct to the Central Bank of Ireland – as in the case of whistle-blower Jonathan Sugarman – he was largely ignored. And, even though thanks to his revelations we know a great deal more than we would otherwise about widespread banking mis-conducts, Sugarman subsequently had his professional and personal life destroyed. That message is surely not lost on colleagues intending to pursue a similar course.

    Back then, inadequate regulatory frameworks allowed underestimation of risk and outright profiteering in the banking sector. Yet there are reasons to believe that, despite the successes boasted of by the regulators, thousands of people are still being failed by the State.

    Despite concerns being raised in February, 2021 by Sinn Fein deputy Pearse Doherty that “2,865 complaints to the Financial Ombudsman remain unsolved for over 12 months” very little attention has been paid in the media to enduring dysfunctions in consumer protection frameworks, potentially affecting hundreds of thousands of consumers of financial services.

    Regulatory Capture

    Regulators come in two types: smart and dumb. The latter are more likely to make mistakes, and the market will learn about mistakes when firms squawk.
    Ernesto Dal Bó in the Oxford review of economic policy, Vol.22, NO.2

    Could this be a subtle example of so-called ‘regulatory capture’, which is said to occur when a particular industry holds an excessive level of influence over a statutory agency designed  to monitor and regulate it?

    Ernesto Dal Bó offers two interpretation of the phrase:

    According to the broad interpretation, regulatory capture is the process through which special interests affect state intervention in any of its forms, which can include areas as diverse as the setting of taxes, the choice of foreign or monetary policy, or the legislation affecting R&D.

    According to the narrow interpretation, regulatory capture is specifically the process through which regulated monopolies end up manipulating the state agencies that are supposed to control them.

    Either of these descriptions could easily be used to describe successive Irish government’s cosy relationship with foreign multinationals. Witness how in 2016 then Taoiseach Enda Kenny unashamedly set out Ireland’s stall as ‘the best small country to do business in’. Attracting financial service companies to a friendly, relatively unregulated, environment appears to remain high on the government’s agenda.

    But insofar as this is a legitimate goal, the way it is achieved, for example, by perpetuating dysfunctions in regulatory mechanisms, have grave consequences for the public at large, especially in terms of access to justice.

    Ombudsman

    One mechanism to provide access to justice is embodied in the role of the Ombudsman.

    This word come from Sweden where its first use is recorded in the 19th century. Meaning “Commission Man”, it involved oversight over the abuse of power by public administration. The position evolved with changing times and industries, to become globally adopted, assuming the part of an impartial mediator between individual complainants and large, well-resourced organizations.

    To give a simple example with a bit more context: what if you have a complaint against the misbehaviour of a credit institution with which you have a resulting outstanding debt?

    In Ireland, anyone in such a predicament can avail first of internal complaint procedures within the credit/insurance/pension providers. If this proves futile, as often seems to be the case, you can either go to the Financial Services and Pension Ombudsman (FSPO), or for the better-resourced, proceed directly to the courts.

    The FSPO was established in order to provide “an impartial, accessible, and responsive complaint resolution service that delivers fair, transparent and timely outcomes for all our customers, and enhances the financial services and pension environment.”

    It’s role is crucial in ensuring basic standards of consumer protection especially in a sector such as financial services, which bears significant responsibility for a dysfunctional property market

    This article is not disputing that the Office has fullfilled aspects of it’s responsabilities to date, and recognises the challanges of the past two years of the COVID-19 pandemic. The Office’s results are well presented in their annual digests of decisions, and were compellingly illustrated by the current Head of the FSPO, Ger Deering, in his Opening Statement to the Oireachtas Petitions Committee the 25th May 2021.

    What we are interrogating is why a large number of complaints, seem to have been closed in preliminary scrutiny on a narrow, legal interpretation of the Act. It is also unclear whether the FSPO is sufficiently staffed and organized to make use of the necessary banking knowledge in order to fulfil all its statutory duties.

    Boasting Figures

    Ben Hoey, an experienced ex-banker who founded Quartech services, a mortgage mis-selling advisory firm, has been assisting individuals with the filings of such complaints and has made us aware of some of the challenges encountered.

    Having submitted over fifty complaints over the last two year to the FSPO, as well as two FOI requests in June 2021 and most recently a judicial review, he also raises serious concerns over the ability of FSPO to carry out its duties.

    In an Opening Statement to the Oireachtas Petitions Committee, Mr Deering boasted: “In 2020, I am happy to report that, despite the challenges of the pandemic and remote working, we closed 6,193 complaints, an increase of 35% on 2019.”

    But thanks to Hoey’s FOI requests, we now know that 2,110 of these cases never entered the dispute resolution or investigation processes.

    Those numbers also slightly differ from the ones found in the annual report of 2020, and are presented in a way suggesting that 1,401 cases were actually sorted within a very short time frame.

    There are, undoubtedly, cases that were legitimately rejected as indicated in the Act. But in order to gain more detailed explanations for preliminary decisions, made in the first registration and assessment phase, the FOI requested documentation and records in relation to reasons for closure. Unfortunately, in this case the answer was ‘no records exist.’

    This is just the first stage of the complaint; the staff needs to interpret the Act and establish if the newly arrived complaint falls within the FSPO jurisdiction.

    It relies on training and guidance materials, which have also been released, and from this we see that when issues of jurisdiction arise, there is an over-reliance on the legal profession and a marked absence of the necessary banking expertise.

    In general, we know that if a complainant does not accept the preliminary rejection, and responds in writing, he or she receives a letter issued by the legal department. But in order to interpret and respond to this one would likely require legal advice.

    This doesn’t come cheap as the FSPO is well aware, since it spent €1.8m (46% of staff costs) on “Legal Fees” according to their 2020 accounts. By comparison the equivalent UK body filed no such expenses. Recall that the role of an Ombudsman is to be an impartial mediator between individual complainant and large, well-resourced organizations.

    Some of Ben Hoey’s clients received letters up to twenty-two pages long, containing dense legal terminology, supporting FSPO arguments not to investigate; rather than a professional financial analysis of the issue in question.

    Others have seen their complaints dragged out for years, stuck in the earliest phase of the “statutory complaints procedure”; which was established in order ‘to afford complainants an informal, expeditious and independent mechanism for the resolution of complaints.’

    From the point of view of some complainants, it feels as if the process of adjudication has been designed to keep their case out of the FSPO jurisdiction, thus keeping the number of cases that the Office investigates to a minimum.

    When the Financial and Pension Ombudsman positions were merged into their current form in 2018, the new organisation should have been structured, and staffed, to handle a increasing number of annual complaints. It appear from the latest annual report that this has been achieved, but when we get into the granular detail, we see that up to a third of these may have been inadequately handled.

    Given that a significant percentage of such disputes are in relation to mortgages and to a dysfunctional housing market, we can surely appreciate the importance of such an institution.

    The stigma attached to debt is a deep scar that afflicts many in an apparently prosperous country. Given that a level of responsibility lies with the lending industry, we should expect the Department of Finance to ensure that the relevant agencies such as the CBI and the FSPO that protect such individuals are adequately resourced.

    Yet the total count of full time employees of the FSPO is just 85 as of the end of 2021. That amounts to roughly twenty staff per million inhabitants in Ireland. By comparison, its counterpart in the UK employs double that with 3,000 staff, or approximately forty-four per million.

    A Stairway to Heaven

    Since Ger Deering was recently nominated by the Minister for Public Expenditure and Reform, Michael McGrath, to become Ombudsman and Information Commissioner, we expect that the position of Head of the FSPO will soon become vacant.

    We now have access to another FOI request providing insights into the recruitment of Ger Deering to the office in 2015/16, at a point when the Financial Services Ombudsman FSO and Pension Ombudsman were still separate bodies.

    A series of interviews were carried out with eight candidates on February 17-18, 2015 for the first round, and on February, 27, 2015 there were final interviews with the remaining three candidates, the “Board Members Guidelines” resembling a basic template for corporate hiring.

    All of the interviewers had impressive CV’s and expertise, including Mr John Hogan, then Head of Banking Policy for the Department of Finance and recently appointed as Secretary General.

    Revealingly, Hogan contributed to the “The Keane” Report on Residential Mortgage Arrears, which was criticised by Deputy Luke “Ming“ Flanaghan in 2011. The Report rules out the introduction of any scheme involving blanket debt forgiveness.

    Notably, the majority of complaints received by the FSPO pertained to financial and banking issues.  One would expect that any individual considered for that role – with powers to make legally binding decisions – would have extensive experience within the banking sector.

    By analogy, if one looks at the skills required of managers and other positions with supervisory roles, employed in the banking and insurance sectors that are imposed by the EU Single Supervisory Mechanism, we find clear guidelines in regard to required banking knowledge or one can even look up the job description for an FSPO Case Manager in PTSB.

    Yet in the advertised job description for The Financial and Pension Ombudsman we see theoretical banking or financial knowledge being “desirable” instead of “essential”, nor is there an examination process, beyond a standard interview.

    This is not to question Ger Deering’s managerial skills, nor his ability to adapt and learn, but when the job requires him to lead an oversight body over the banking, insurance and pension industries, his work experience is not what one would expect for the appointment.

    We know that the Office contains some banking expertise thanks to the qualifications of less senior staff, who have to deal with an enormous workload. But an appointment process for the top job focused on legal and managerial skills may perpetuate the current imbalance between the private and public sectors.

    In the forthcoming recruitment process for a position such as the FSPO, it is surely in the interest of the Department of Finance to appoint a person with more than generic managerial skills, and for some form of competitive examination to occur. Otherwise, it will be difficult to convince an increasingly sceptical Irish public that the government is genuinely intent on levelling the playing field between ordinary citizens and “too big to fail” corporations.

    Shared Responsibility

    One might say that appointing an ex-banker to the position creates a dangerous revolving door between banks and regulators, and is itself a recipe for regulatory capture. That argument is right to a point, but does not take into account that the necessary banking expertise might be found outside the banking industry itself, such as in auditing and accountancy firms; or by casting the net internationally to guarantee a greater degree of separation between the regulator and the regulated, especially in a small country such as Ireland.

    And, insofar as it is important to have sound legal advice, it is important that this is not set out in such a way as to intimidate complainants, and that the Office receives the same level of financial consultancy as the banks themselves.

    When we talk about consumer protection in the financial industry, we are really talking about the level field that the government promises, in relation to an industry administering one of the most powerful means of control, which is the complex socio-psychological phenomenon of debt.

    While some are celebrating that ‘The Boom is Back’, a significant proportion of the population is still struggling to overcome the effects that the previous boom and subsequent financial collapse actually brought; and, as in the period of austerity, the burden of bad choices is still carried almost exclusively by the most vulnerable and least resourced.

  • The Shadow of Italian Justice

    Nowhere that I have visited has quite the charm of Umbria, Italy’s throbbing green heart, and only land-locked province apart from the Alpine region. Along its horizon, verdant hills culminate in fortified settlements that act as sentinels over fecund valleys, where wheat fields and vineyards have long sustained a saturnine populace. The lumbering waters of the Tiber snaking through the countryside bestow lush fertility, while in the distance the spine of mountains that form the Apennine range cleaves into view.

    The region has strong spiritual traditions: Saint Benedict, who developed the communal model of Western monasticism, hailed from Norcia; while around Assisi Saint Francis saw the divine in all living beings. But inward contemplation has often intertwined with outward savagery, the charming cities bearing the stain of bloodshed from centuries of internecine conflict.

    Just as sweet birdsong contains fierce threats to competitors, so the form and grace of Umbria’s built environment belies the violence of perennial power struggles. Extravagant civic architecture was a form of competitive display between the signorie that ruled those city states during the Middle Ages and Renaissance.

    First among equals is Perugia, Umbria’s capital and hub. At dusk, imbibing the rising chatter on Piazza IV Novembre, one may assume the light to be eternal, and that the dancing shadows will never give way to the enduring gloom of night.

    Into this setting in 2007 strode an insouciant Amanda Knox, then twenty years of age. Enrolling in Perugia’s Universitá per Stranieri, she realised a dream of studying the Italian language on a semester abroad from her native Seattle, a world apart on the distant west coast of America. A familiar student lifestyle followed in those first weeks of term: falling in love; alcohol and cannabis; the irritations of part-time work as a waitress; all this as she nursed the hope of a career as an interpreter.

    Universitá per Stranieri, Perugia. Image: Daniele Idini ©

    Video footage from the period reveals her as vivacious and quirky, a bundle of mischievous energy whose fair complexion might break a few hearts over the course of her stay. She seemed destined to skip back home to the relative anonymity of grad school, career and family, holding on to fond memories of an old Europe she would rarely, if ever, return to. What lay in store was an altogether different fate, a living nightmare. She retains the role of femme fatale in a film noir that was not of her choosing.

    On November 1st, 2007 British student Meredith Kercher was found dead in the apartment she shared with Knox and two other Italian students. Knox and her then boyfriend Raffaele Sollecito were accused of her rape and murder. The prosecution alleged that Kercher had been killed during a sex game gone wrong, with Knox orchestrating proceedings. Crucially, DNA evidence linked Knox to a knife the prosecution claimed could have been the murder weapon. But this evidence was found inadmissible when independent forensic experts found a strong likelihood of contamination of the DNA, leading to Knox and Sollecito’s successful appeal in 2011, ending their incarceration. They were definitively exonerated in 2015 by the Italian Supreme Court. In the meantime, a serial offender, Rudy Guede, was found guilty of the crime and is currently serving a reduced sentence after an early admission of guilt, based on incontrovertible DNA evidence and a confession after he had fled to Germany, from where he was extradited back to Italy.

    The circumstance of Meredith Kercher’s horrifying demise gave rise to a mystery play, in which the two main characters are removed from the scene of the awful attack. As the plot unfolds we encounter another articulation of evil no less sinister than that which prompted the fatal assault.

    It involved a battle of wills, and wits, between Amanda Knox and her prosecutor Giuliano Mignini, whose bizarre conjectures suggests perverse imaginings. He had been revealed as a fantasist before his attention was drawn to the pretty American student ‘inappropriately’ kissing her boyfriend outside the crime scene. In 2001, the same Mignini, as Perugia prosecutor, had ‘identified’ a satanic sect that supposedly killed women for black masses, which he linked to the unsolved ‘Monster of Florence’ serial murder case. To that he end, he arrested twenty people all of whom were, like Amanda Knox and Raffaele Sollecito, completely exonerated.

    In the 2016 Netflix documentary Amanda Knox we meet an unrepentant Mignini, who speaks of his fondness for Arthur Conan Doyle’s Sherlock Holmes. The pipe he sports seems in homage to the Victorian sleuth. It is unsurprising to discover this taste for fantasy fiction, and characterisations of extreme evil. Did he cast himself as the English gentleman – the ‘dandy’ long revered in Italy – defending an idealised damsel? In such imagining Kercher had been killed at the instigation of the promiscuous and drug-addled Knox, who was portrayed as a sinister witch.

    We may speculate that Mignini developed a sordid fascination with both Meredith Kercher and Amanda Knox. A devious and enduring campaign against Knox might suggest a Freudian sublimation.

    Mignini’s persecution of Knox and Sollecito could be dismissed as a sinister aberration of Italian justice, but for the extent to which his theories found favour among many Italians, stoked by an international tabloid media that latched on to every gruesome conjecture. The prosecution manipulated damaging evidence against Knox, in particular, before the court of international opinion, and a character of ‘Foxy Knoxy’, previously her MySpace handle, was invented. To this end, a policeman masquerading as a doctor lied to her saying she was HIV positive, and encouraged her to write a diary outlining her sexual history, which was then stolen and passed on to the media.

    In the documentary Mignini makes the startling boast that ‘normally people say that ‘Nobody is a prophet in his own country’, but that’s not what I experienced’. Casting himself as a Savonarola for our time, he sought to cast away the sins of the world, sins he believed were personified in Amanda. The backdrop to this was a widespread feeling of moral decline in Italy, especially identified with the then prime minister Silvio Berlusconi’s lewd antics. But Mignini’s self-righteousness recalls Shakespeare’s ‘Sonnet 94’: ‘Lillies that fester smell far worse than weeds’.

    Mark Williams suggests that a mythology ‘furnishes a culture with a total worldview, interpreting and mirroring back everything that that culture finds significant’. Contemporary Italian culture is still steeped in mythology, whose living presence is emphasised by the ubiquity of ancient ruins. Perugia itself possesses an architectural legacy stretching back to the ancient Etruscans.

    The Etruscan Arch or Arch of Augustus, Perugia. Image: Daniele Idini

    Italy was only unified in 1861. The following day, the politician and intellectual Massimo d’Azeglio famously said: ‘We have made Italy and, now, we must make the Italians.’ The formidable culture of Ancient Rome was drawn on in particular. For example, the term ‘fascist’ derives from the Latin word ‘fascis’ meaning bundle. ‘Fasces’ is a bound bundle of rods, which had its origin in the Etruscan civilisation and was passed on to ancient Rome, where it symbolised a magistrate’s power and jurisdiction.

    That Roman inheritance still exerts influence on the Italian collective unconscious, often importing an ideal of woman as objective beauty and passive agent. Laurens van der Post contrasts the Ancient Greek attitude to women, expressed in Homer’s Odyssey, with that of the Roman, expressed in Virgil’s Aeneid: ‘It is precisely because this journey of Odysseus and his reunion with the eternal feminine that is Penelope, is the blueprint of the Greek story that made Greece, I believe, more creative than Rome.’

    Van der Post contrasts Odysseus, who returns to his wife after twenty years of exile, with Aeneas – a Trojan who becomes the first hero of Rome – and symbolically rejects ‘the eternal feminine’, not once but twice. Firstly, in choosing to carry his father Anchises rather than his then wife Creusa, on his back out of a burning Troy; and afterwards, in his memorable rejection of Dido’s love in favour of patriarchal duty.

    After many trials Aeneas and his fellow surviving Trojan refugees land in Latium in Italy. There, he has learnt on a mystical Underworld journey, a (male) ancestor will establish the city of Rome. To bring this about, however, he must first subdue the local tribes. Defeating their champion Turnus in mortal combat he wins the hand of the virginal Lavinia, daughter of Latinus, king of the Latins. Critically, Virgil describes her as, ‘the cause of all this suffering, her lovely eyes downcast.’ The unashamed sensuality of Amanda Knox – kissing inappropriately outside a crime scene – was an insult to a Roman ideal of downcast loveliness.

    Knox and  Sollecito – he as collateral damage it seems – became the victim of Mignini, the latter-day Sherlock. In custody for days on end, and without access to lawyers, the young pair were made to sing. Confessions were extracted and subsequently recanted. In the grip of terror, bizarre fictions emerged.

    This is not unusual. Saul M. Kassin describes ‘coerced-internalized false confessions‘, as ‘statements made by an innocent but vulnerable person, who, as a result of exposure to highly suggestive and misleading interrogation tactics, comes to believe that he or she may have committed the crime – a belief that is sometimes supplemented by false memories.’ Kassin cites numerous US cases where innocent parties implicate themselves in crimes in which subsequent DNA evidence definitively reveals they had no involvement. One such instance was the notorious Central Park jogger case, in which a number of young men confessed to a crime and were found guilty, before the real perpetrator came forward and admitted to the crime, saying he acted alone, with DNA evidence corroborating his account.

    Amanda Knox is often criticised for implicating Patrick Lumumba, the Congolese boss of the bar she worked in at the time. But who among us knows the scenarios that would spill forth to end a long and tortuous interrogation, after probable trauma in the wake of a horrific murder? The important principle is that confessions extracted under duress are entirely unreliable as evidence, and unworthy of consideration. Any charge of conspiracy over the false accusation should never have been leveled against her.

    As far back as 1908 Hugo Munsterberg  wrote about a Salem witch confession involving ‘illusions of memory’ in which ‘a split-off second personality began to form itself with its own connected life story built up from the absurd superstitions which had been suggested to her through the hypnotising examination.’ A witch hunt will find “absurd superstitions”, just as a man with a hammer sees nails.

    Jung’s conception of evil is useful for examining the aftermath of Meredith Kercher’s murder and rape. His ideas diverge from the Catholic doctrine of Privatio Boni, which identifies evil simply with the absence of good and not as an independent and eternal phenomenon. In contrast, Jung argues: ‘Evil does not decrease by being hushed up as a non-reality or as mere negligence of man. It was there before him, when he could not possibly have had a hand in it.’ Furthermore, he warned:  ‘The future of mankind very much depends upon the recognition of the shadow’. The serpent may crawl into the most rarefied of environments.

    Shadows in Perugia. Image: Daniele Idini

    The evil evident in Rudy Guede’s offence is a sadly familiar story of a dislocated childhood, and a spiral of nefarious deeds, ending in a heinous crime. But Mignini’s actions appear to represent denial of the shadow. He comes across as virtuous – disciplined, abstemious, family-orientated –  but he may have failed to countenance an evil lurking within his own nature. This may have led him to build a narrative out of diabolical imaginings, which nearly destroyed the lives of two young people, who will never fully recover from the ordeal.

    Jung saw the mechanism of the shadow as accounting for the persecution of Jews through history. He argued that Christians scapegoated Jews in response to their own rejection of the real meaning of Christ. Mignini’s reign of terror fits into a wider phenomenon of targeting individuals for broader perceived failings in a society. The origin of contemporary racism is also located in the inability of communities to live up to standards some members expect, with contagion blamed on an internal enemy.

    The Meredith Kercher case became a cause celebre in early twenty-first century in Italy. Television channels featured nightly debates which voyeuristically picked apart the details, while the personalities of the protagonists were relentlessly scrutinised and their images placed on constant display. One may assume it suited Silvio Berlusconi’s government, which controlled most television channels, to saturate the public mind with the protracted case, distracting from the endemic corruption, which would ultimately bring down his government in 2011, the same year as Knox’s successful appeal.

    Moreover, it is commonly believed in Italy that official explanations cannot be relied on. The suspicion that there is always something going on behind, ‘dietro’, the surface, produces the common word ‘dietrologia‘, used to refer to a conspiracy. The bizarre details of the Knox-Sollecito case fed a veritable industry in competing interpretations. Besides, a liberal critique could be countered by the racial dimension: the black African languishing in jail, while the white American escapes, plus ca change.

    Many Italians are still unwilling to contemplate that the whole Knox-Sollecito prosecution was indeed a bizarre invention. After all, to do so casts grave doubts over the integrity of their entire legal system. This has parallels with the unwillingness of Lord Denning to countenance the ‘appalling vista’ of police criminality in the Birmingham Six, wrongfully found guilty of the Birmingham pub bombings, who spent sixteen years in prison before the Court of Appeal quashed their conviction in 1991. The ‘Umbrian vista’ of a serious miscarriage of justice is still questioned by many Italians.

    Douglas Preston argued that the answer for this denial of an unwillingness to recognise a manifest injustice lies in the Italian concept of face (‘la faccia‘) ‘whose deep and pervasive power most Anglo-Saxons who have not lived in a Mediterranean country have a hard time appreciating.’

    V

    Amanda Knox and Christopher Robinson ‘selfie’, Dublin, February 2018

    I met Amanda Knox and her boyfriend the writer Christopher Robinson when they visited Dublin last month. They had arrived in advance of Amanda’s appearance on the Ray D’Arcy Show, her first television interview outside the United States since her exoneration in 2015.

    Like most people, I had taken a passing interest in what seemed a bizarre case, piqued more by the Umbrian backdrop to the crime scene than the lurid storylines. In truth, I had not given serious consideration to the guilt or innocence of the protagonist, and only engaged with the case when I met a person whose nature seemed entirely unfitted for the role of psychotic murderess. The more I read, the more my intuition was confirmed.

    The protagonists in high-profile cases seem unreal until you actually meet them, or not, as is the case with most of the self-anointed true-crime experts, who search Amanda Knox’s every gesture for ‘signs’ of guilt; bestowing credibility on evidence that was not only inadmissible, but may have been part of a sinister conspiracy.

    What is most striking about Amanda is an outgoing disposition, a West Coast woman with plenty of spunk. She and Christopher are a gregarious pair, at ease in the territory of literature, philosophy and languages, the last of which is her specialism. Surprisingly, she gives no impression of bitterness, even towards Italy. Perhaps it is still that failure to play the role of downcast Lavinia bemoaning her fate which evokes suspicion, but why should she restrain a natural joie de vivre?

    Nor does she shy away from recalling her experiences: casually dropping in a mention of the aubergine – or ‘egg plant’ – provided in prison; or how she earned the respect of illiterate inmates by writing letters on their behalf (in return at one point a Neapolitan gang pulled her out of a brawl that was getting nasty). Nonetheless, she has admitted to suicide ideation during four years behind bars. Sharing cells with hardened criminals for four years for a crime she did not commit provides a perspective few of us gain.

    On their trip I accompanied the couple on a hike along Howth Head, during which she revealed herself as an animal lover, greeting every pooch and kitty as if they were long lost friends. Travelling by train I became conscious of a few gawkers, mostly Italian tourists, but this did not interrupt her flow. She refuses to cower before unsubstantiated accusations. Understandably, between Amanda and Christopher humour has become a safety valve, though a lifetime of being the butt of cheap jokes cannot be an easy lot.

    Following her release she took a degree and then worked as a journalist for a local newspaper under a pseudonym. Now she uses her unchosen fame judiciously, advocating on behalf of the Innocence Project in the United States, and writing for Vice magazine, among others. Ideologically, she is left-liberal and opposes President Trump, despite his support for her cause. I can envisage her becoming a politician herself one day.

    The monster of Giuliano Mignini’s imagining is still at large in the obscure regions of virtual reality, and Amanda Knox seems likely to be pursued by vengeful furies all her life. She told me she receives death threats on a daily basis. In the anonymous chambers of social media she still evokes an outrage proving that mud, no matter how unearned, always sticks. A cursory search on Twitter for #AmandaKnox reveals an array of hateful commentaries. Yet she is free – free of guilt and free-spirited.

    From these exacting trials she bears wounds that will never heal, and a life sentence of having to defend herself against unsupported accusations. From a depth of suffering she emerges as a hero to anyone wrongfully accused; to women who are attacked for unashamed sensuality; for those who embrace life and do not succumb to despair. Like the rest of us, she has made mistakes, but her life experiences give her rare insights.

    The Knox-Sollecito case exposed wider failing in the Italian justice system – 4 million Italians since the Second World War have been falsely charged with criminal offences. That Giuliano Mignini and his jackbooted Squadra Mobile remain in positions of authority suggests the endurance of fascist attitudes in the administration of justice. Widespread corruption did not begin or end with Silvio Berlusconi, as Michael Day puts it: ‘Perhaps Italians should start looking in the mirror rather than blaming everything on one brilliant but unscrupulous entrepreneur.’ The octogenarian’s apparently impending return to power might be interpreted as a symptom rather than a cause.

    As part of that self-assessment embedded mythologies might be explored. Can the sympathetic vision of St. Francis displace the judgmental attitude of latter-day Savonarolas? Might the spirit of the exiled Roman poet Ovid return to metamorphose the relationship with the ‘eternal feminine’? His ‘Kind Earth Mother’ asks:

        Do I deserve this? Is this the reward
    for my unflagging truthfulness? For bearing
    year after year, the wounds of plough and mattock?
    And for providing flocks with pasturage,
    the human race with ripened grain to eat,
    the gods with incense burning on their altars?

    At least the many enlightened Italians I know can draw solace from Amanda Knox and Raffaele Sollecito’s belated exoneration by the Italian Supreme Court. That court also upheld a prison sentence against Silvio Berlusconi in 2013, which is now preventing him from returning to the office of Prime Minister. Many observers consider the senior Italian judiciary as a crucial bulwark against erosion of democracy and the Rule of Law.

    Perhaps the bereft family of Meredith Kercher may some day come to believe Amanda Knox’s protestations of innocence. Their grief must have been considerably heightened by Giuliano Mignini’s handling of the case. One suspects that any process of coming to terms with their loss will include some form of reconciliation with Amanda Knox and Raffaele Sollecito.

    RIP Meredith Kercher.

  • ‘Wild Law’ is the Path of Natural Justice

    Man-made climate change is as good as a fact, but the consequences are uncertain in any specific location. Indeed, the island of Ireland could actually be more hospitable to human habitation under certain scenarios: drier and hotter summers are predicted, albeit with an increased likelihood of storm events; higher atmospheric CO2-levels could also increase crop yields.[i] Our rising emissions could have greater impacts elsewhere.

    Mitigation strategies may also have adverse side effects. Witness the expansion of sitka spruce plantations across Ireland, which acidify soils and strangle biodiversity,[ii] in pursuit of an improved carbon balance sheet permitting increases in dairy production. There are also question marks around the impacts of wind farms, especially those sited on blanket peat[iii], requiring hundreds of tonnes of concrete in construction, and disrupting the flightpaths of birds. If this energy is devoted to a new generation of electrified autonomous vehicles, rather than communal transport, it will be in vain.

    Climate change opportunism includes the distortion of supermarket shelves being stacked with organic products wrapped in plastic and flown halfway around the world. It is most obvious in the greenwashing of the agricultural sector,[iv] which consistently argues that Irish livestock’s lower emissions profile justifies expansion – as beef and dairy would only be produced elsewhere with higher emissions. Thankfully, the ‘our coal smokes less than their coal’ argument is more easily dismissed as data from the United Nations Food and Agriculture Organisation (FAO), analysed by An Taisce, shows that Ireland is, in actual fact, the most carbon-intensive beef producer in Europe, and ranks third on emissions from its dairy sector.[v] Most importantly, however, narrowing the environmental agenda to climate change alone obscures the equally pressing consideration of the Sixth Extinction, the unarguable reality of which is apparent in Ireland.

    With this in mind, Is it possible that interested parties could assert rights, already implied by the Irish Constitution, to protect Irish nature itself? Could spiralling emissions then be reduced alongside meaningful biodiversity-gains? Such an argument would build on a foundation of Natural Law, a school of thought embedded in the language and historic interpretation of the Irish Constitution. It can be traced to Classical antiquity, as Sophocles’s Antigone puts it: ‘the unwritten and unfailing statutes of heaven’, beyond the temporary, and occasionally illegitimate, laws of any state.

    During the Middle Ages, especially through Thomas Aquinas, ‘pagan’ Classical arguments were adopted by the Roman Catholic Church. In more recent times these became associated with a toxic and myopic focus on human sexuality, especially women’s bodies. Natural Law still transmits, however, compelling arguments for a universal justice beyond, and above, positive law, informed by dialectic, rather than Christian Revelation as is widely assumed.

    The jurist and former President of the High Court, Declan Costello wrote: ‘It has more than once been judicially observed that it can clearly be inferred that the [Irish] Constitution rejects legal positivism as a basis for the protection of fundamental rights and suggests instead a theory of natural law from which those rights can be derived.’[vi] Thus, from the 1960s, Natural Law interpretations ascribed a host of ‘Unenumerated Rights’[vii] to all citizens, including rights to bodily integrity, work, marry, privacy in marital relations, and free movement within the State. These rights are not explicitly identified in the Irish Constitution but are considered intrinsic to the human condition, flowing in particular from a generalised protection of personal rights under Article 40.3. With the Sixth Extinction now upon us, there is an urgent need for Natural Law to be extended to imply an Unenumerated Rights of other species to exist, along with ourselves.

    For this to occur, however, the Court must overcome a contemporary moral relativism, and aversion to decisive ethical responses. No doubt truth is a shifting target, and any single account is insufficient, but faith in our capacity to settle ethical arguments at a given point in time needs to be restored. As Aristotle – whose influence on Aquinas’s Natural Law theory was immense – pointed out:

    The theorizing of truth is in one sense difficult, in another easy. This is shown by the fact that whereas no one person can obtain an adequate grasp of it, we cannot all fail in the attempt; each thinker makes some statement about the natural world and as an individual contributes little or nothing to the inquiry; but a combination of all conjectures results in something considerable.[viii]

    Post-modernists will argue otherwise, but an outlook of ambient confusion is an admission of failure. Holes can be picked in any argument, but the argument as a whole – “a combination of all conjectures” – may stand. One cannot propose anything meaningful without the conviction of arriving at “something considerable” –  an elusive truth. A capacity to determine justice requires we overcome a ponderous Post-Truth incoherence.

    A contemporary philosopher Alasdair MacIntyre sees in the dialectic process, ‘the movement from thesis to thesis as a movement towards a kind of logos which will disclose how things are, not relative to some point of view, but as such’. Contemporary environmental challenges require new logical departures, disclosing “how things are”, “as such.”  Natural Law theory should encompass an Earth Jurisprudence. Then our laws may confront the reality of an oversized human population radically out of balance with its environment, with Ireland presenting a difficult case.

    Currently, however, environmental laws are generally seen as a body of rules foisted on the populace, often in exchange for a subsidy, rather than practices adopted for the commonweal. Accordingly, Coyle and Morrow claim such regulations are seen ‘as a technical instrument of social goals and policies, rather than a body of principles aiming at the articulation of a concept of justice and the good life.’[ix] This can partly be attributed to the prior failure of Natural Law theorists to identify inherent rights in other species.

    In contrast, the sanctity of human property rights have been vigorously upheld. Early modern theorists, drawing more on Christian revelation than reason, assumed rights of virtually unrestrained possession, along with dominion over all wild creatures therein. The seventeenth century Dutch jurist Hugo Grotius described this as ‘a grant which was renewed on the restoration of the world after the deluge’. To deprive any owner of this would, he said, be ‘an act of injustice.’[x] Importantly, however, up to that point there had been little necessity to assert the rights of wild animals, even in Europe, as humans were living in relative harmony with nature, or at least allowing other species to survive. According to Tim Flannery: ‘after the last muskox died in what is now Sweden about 9,000 years ago, the European mainland did not lose another species until the seventeenth century.’[xi]

    Since then the picture has changed dramatically across the world with sixty percent of wild animals wiped out since 1970 alone.[xii] Coyle and Morrow affirm: ‘The very agricultural practices which were held out as a moral necessity by the natural rights theorists can, it seems, create untold environmental damage.’ Given the scale of ecological damage that has ensued – associated with European colonisation of the globe – they argue that ‘the ethical assumptions of the seventeenth century conception of property cannot survive in such circumstances.’[xiii] The accumulating impacts on our planet of over seven billion human beings, living longer than ever, enjoins alternative approaches to land ownership. As Coyle and Morrow put it: ‘If human agriculture was ever in harmony with nature it certainly is not any longer and the sanctity of individual ownership must be restrained. Duties must join rights.’[xiv]

    Natural Law is an ongoing, truth-seeking dialectical process with the aim of disclosing, “how things are, not relative to some point of view, but as such.” If Natural Law is to have continued relevance it must adapt to current conditions. A re-imagining of Natural Law is evident in the field of Earth Jurisprudence, or Wild Law, a term coined by Cormac Cullinan to refer to human laws that are consistent with Earth Jurisprudence.[xv] According to one of its inspirators, Thomas Berry: ‘The Universe is not a collection of objects but a communion of subjects and every member of the Earth Community has three inherent rights: the right to be, to habitat, and to fulfil its role in the ever-renewing processes of the Earth community.’[xvi] These rights ought, logically and morally, to be incorporated into Irish law.

    But how can these aspirations be given tangible legal form? In a seminal 1972 article ‘Should Trees Have Standing?’[xvii] Christopher D. Stone explores how Wild Law might apply. He argues that natural objects could have legal standing by analogy with companies, states, infants, incompetents, municipalities or even universities. Thus, a court appoints a trustee when a corporation displays incompetence. He writes:

    On a parity of reasoning, we should have a system in which, when a friend of a natural object perceives it to be endangered, he can apply to a court for the creation of a guardianship … The guardian would urge before the court injuries not presently cognizable – the death of eagles and inedible crabs, the suffering of sea lions, the loss from the face of the earth of species of commercially valueless birds, the disappearance of wilderness areas.

    He also draws an analogy with the law of patents and copyright:

    I am proposing that we do the same with eagles and wilderness areas as we do with copyrighted works, patented inventions and privacy: make the violation of rights in them to be a cost by declaring the piracy of them to be the invasion of a property interest.

    Furthermore, he suggests this could lead to modifications in our representative democracies:

    I am suggesting that there is nothing unthinkable about, and there might on balance even be a prevailing case to be made for an electoral appointment that made some systematic effort to allow for the representative “rights” of non-human life.

    Stone envisages changes in our legal culture informing wider social norms, as, ‘a society that spoke of the “legal rights of the environment” would be inclined to legislate more environment-protecting rules by formal enactment.’

    Intriguingly, he also speculates, ‘What is needed is a myth that can fit our growing body of knowledge of geophysics, biology and the cosmos’, proposing ‘that we may come to regard the Earth, as some have suggested, as one organism of which mankind is a functional part’. Similarly, Coyle and Morrow argue: ‘The problem is that meaningful change responding to environmental and social imperatives will require a true paradigm shift in how we regard our relationship with the world of which we form a part.’

    A transformation in our legal relationship with the natural world requires the participation of other fields. It was Percy Bysshe Shelley who famously described the poets as the ‘unacknowledged legislators of the world.’ The philosopher Timothy Morton makes the provocative claim that putting ‘something called Nature on a pedestal and admiring it from afar does for the environment what patriarchy did for the figure of women.’[xviii] Perhaps W.B. Yeats’s identification of Irish nature with a ‘glimmering girl’, ‘with apple blossoms in her hair’ distracts from an ongoing exploitative relationship, linked to our colonial inheritance. Indeed, rather than celebrating a patriarch ‘Digging’ for turf, as in Seamus Heaney’s poem by that name did, new accounts might draw inspiration from an often-overlooked visionary poet of the early twentieth-century Irish Revival, Eva Gore-Booth. She gave up the wealth and privilege of her aristocratic background to devote herself to the poor. Gore-Booth also recognises the right of all creatures to exist on the land, notwithstanding human ownership in her 1906 poem ‘The Landlord’

    O the bracken waves and the foxgloves flame,
    And none of them ever has heard your name –
    Near and dear is the curlew’s cry,
    You are merely a stranger passing by.    [xix]

    Hearteningly, all around the world, from Ecuador to New Zealand, conceptions of Earth Jurisprudence, Wild Law or Pachamama are actually taking route. For example, Germany’s constitution makes protection of ‘the foundations of nature and animals’ a national imperative, applicable to government agencies, the legislature and the judiciary. The provision has been cited in over seven hundred cases. Moreover, echoing Christopher D. Stone, Oliver A. Houck points out this ‘does not include the more numerous acts of compliance that drew no litigation at all.’[xx]

    Meanwhile in Ireland species loss continues apace. Liam Lysaght recently records: ‘of the 3,000 species that have undergone a red list conservation assessment, one in every four species is threatened with extinction here.’[xxi] Of particular concern is the continued exploitation of peat bogs for fossil fuel extraction – where considerations of nature conservation align precisely with keeping fossil fuels, and embedded methane, in the ground – as well as the impacts of grazing ruminants.

    Unfortunately, existing environmental legislation, including the EU’s Habitats Directive, is failing to protect endangered species adequately, including the iconic curlew, which is now on the red list. This can partly be attributed to a lack of enforcement, but also, as we observed, such laws are currently considered an encumbrance on property owners, and not a scheme of protection for a common inheritance. So how do we spare what remains of Irish nature from the ravages of human exploitation?

    A constitutional amendment enshrining nature rights, similar to that operating in Germany, should be the long-term goal. But this will take time to bring to fruition, especially as mainstream media only falteringly highlights extinction threats, and none of the main political parties prioritise protection of biodiversity.

    I propose the alternative of a test case, applying Thomas Berry’s tripartite rights to a particular native species; proposing, for example, the curlew has a right to be, to habitat and to reproduce, alongside humans, based on a Natural Law interpretation of the Irish Constitution – as a previously Unenumerated Right. It seems crucial that such rights are ‘discovered’ sooner rather than later before further, irreversible, losses occur.

    The Court could certainly injunct particular activities to protect species under threat, or prohibit certain classes of herbicides or insecticides outright, or even declare particular lands under private ownership as protected habitats. This will require expert witness from recognised authorities to distinguish competing rights of native, invasive and naturalized species. Property owners should be compensated for any loss, but under the Irish Constitution all rights, including that to property, are subject to the common good, which is served by preventing extinctions.

    The allocation of reserves and prohibition on the use of certain chemicals would be a proportionate appropriation by the Judiciary of the powers of the Legislature and Executive branches, in circumstances where there has been a serious dereliction of duty. The Sixth Extinction is an emergency happening before our eyes with recognisable victims, unlike the unpredictable devastation that climate change is wreaking.

    Cattle and sheep farmers can find new roles as landscape guardians. Re-wilding may begin with marginal lands, where farming is already uneconomic, while better land currently under pasture can be converted to tillage in order to accelerate what a recent article in The Lancet has referred to as the ‘Great Food Transformation.’[xxii]

    Eventually, beyond legal prescriptions, habitat reclamation can endear the population to the landscape, and reform destructive behaviours. In developing our appreciation of the soft sounds and sweet aromas in nature we may consider reducing dependence on noisy, polluting motor cars. Greater biodiversity also offers scope for judicious harvesting of foodstuffs, building materials and fuel. The tragedy of the loss of other species is almost impossible to convey.

    Many of us wish to see our laws go further: putting an end to the perverse subsidy regime that only benefits the Beef Barons; or dignifying all animals with a decent life, in the wild. For the moment, however, our best legal argument is to assert the rights of all resident Irish species, living in ecological balance, simply to exist. Reduced emissions will be a happy by-product of biodiversity-gain, raising environmental awareness to a point where destructive behaviours are recognised, and changed. In beginning to liberate the natural world from human dominion let us recall the small victories won in the battle against human slavery along the road to the great milestones. Wild Law can emerge incrementally in Ireland through our existing constitutional framework.

    [i] Stephen Flood, ‘Projected Economic Impacts of Climate Change on Irish Agriculture’, October, 2013, Stop Climate Chaos, https://www.stopclimatechaos.ie/download/pdf/projected_economic_impacts_of_climate_change_on_irish_agriculture_oct_2013.pdf, accessed 19/2/19.

    [ii] Mary Colwell, ‘A forestry boom is turning Ireland into an ecological dead zone’, October 10th, 2018, https://www.theguardian.com/commentisfree/2018/oct/10/trees-ireland-biodiversity-sitka-birds-extinction, accessed 19/2/19.

    [iii] Richard Lindsay and Olivia Bragg ‘WIND FARMS AND BLANKET PEAT. The Bog Slide of 16th October 2003 at Derrybrien, Co. Galway, Ireland’, November, 2005, School of Health & Biosciences University of East London. https://web.archive.org/web/20131218090914/http://www.uel.ac.uk/erg/documents/Derrybrien.pdf, accessed 28/2/19.

    [iv] Kevin O’Sullivan, ‘Environmental group calls Origin Green a ‘sham’’, October 4th, 2017, Irish Times, https://www.irishtimes.com/news/environment/environmental-group-calls-origin-green-a-sham-1.3244507, accessed 28/2/19.

    [v] Press Release ‘Bombshell for Irish Peace’, 12th of February, 2019, An Taisce, http://www.antaisce.org/articles/bombshell-for-irish-beef?fbclid=IwAR0uPTUu1TEoZToCGugOCIoS-nmsigAQNU0g_U3XrIZHNU3PKbF2_zO0YIU, accessed 19/2/19.

    [vi] Declan Costello, ‘Natural Law, the Constitution, and the Courts’, from Lynch and Meenan (eds.) Essays in Memory of Alexis FitzGerald, Dublin, The Incorporated Law Society of Ireland, 1987, p.109

    [vii] The original ‘Unenumerated Right’ to ‘Bodily Integrity’ was approved by the Supreme Court in Ryan v. A.G. [1965] IESC 1; [1965] IR 294 (3rd July, 1965)

    [viii] Aristotle, Metaphysics, Book 2, Part 1.

    [ix] Coyle and Morrow, The Philosophical Foundations of Environmental Law. Property, Rights and Nature, Oxford, Hart Publishing, 2004, p.211

    [x] Coyle and Morrow, p.15

    [xi] Flannery, 2018, p.251

    [xii] Damian Carrington, ‘Humanity has wiped out 60% of animal populations since 1970, report finds’, 30th of October, 2018, https://www.theguardian.com/environment/2018/oct/30/humanity-wiped-out-animals-since-1970-major-report-finds, accessed 20/2/19.

    [xiii] Coyle and Morrow, p.206

    [xiv] Ibid, p.209

    [xv] ‘Discovering the meaning of Earth jurisprudence’, Legalbrief, August 27, 2002

    [xvi] Quoted in Mike Bell, ‘Thomas Berry and an Earth Jurisprudence’, http://rainforestinfo.org.au/deep-eco/earth%20jurisprudence/Earth%20Justice.htm, accessed 20/2/19.

    [xvii] Christopher D. Stone, ‘Should Trees Have Standing–Toward Legal Rights for Natural Objects’, Southern California Law Review. 45 (1972): 450–87.

    [xviii] Timothy Morton, Ecology Without Nature: Rethinking Environmental Aesthetics, Cambridge, Harvard University Press, 2007, p.5.

    [xix] [xix] Eva Gore-Booth ‘The Land to a Landlord’, from Sonja Tierney (ed), Eva Gore-Booth: Collected Poems, Dublin, Arlen House, 2018, p.166

    [xx] Houck, Noah’s Second Voyage: The Rights of Nature as Law, 31 Tul. Envtl. L.J. 1, 2017

    [xxi] Liam Lysaght, ‘The six steps needed to save Irish Biodiversity’, February 19th, 2019, Irish Times

    [xxii] Prof Walter Willett, MD et al, Food in the Anthropocene: the EAT–Lancet Commission on healthy diets from sustainable food systems, January, 2019. The Lancet. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31788-4/fulltext?utm_campaign=tleat19&utm_source=HPfeature’, accessed 26/1/19.