Irish Law Updates

Tuesday, November 17, 2009

Forthcoming Events

The list of forthcoming Irish Law events has been updated. The full list appears here. To subscribe to the Irish Law site e-mail updates list, fill in the form here. Sample events on the list:

Thu.19 Nov.'09:
Mental Health in Prison - Dublin

Sat. 21 Nov.'09:
Economic, Social and Cultural Rights � Making States Accountable - Annual Human Rights Conference of the IHRC and the Law Society of Ireland, Dublin

Wed.25 Nov.'09:
Constitutional Courts and the Lisbon Treaty - ISEL 7th Annual Brian Walsh Memorial Lecture, Dublin

Thu.26 Nov.'09:
ECHR Update: The Recent Use of the ECHR in the Courts, Procedure, Remedies and Analysis - Dublin

Thu.26 Nov.2009:
A Comparatist�s Analysis of the Convergence of Legal Systems - Dublin

Thu.26 Nov. 2009:
National Asset Management Agency - UCD Commercial Law Centre, Dublin

Fri. 27 Nov.2009:
Assessing Liability in Asset Management - Placing the Legal Principles in their Financial Context - UCD Commercial Law Centre, Dublin

Sat. 28 Nov.'09:
Aspects of Asylum and Immigration Law - The Bar Council of Ireland, Dublin

Sat.28 Nov.'09
Recent Developments in Irish Defamation Law, Including the Defamation Act 2009 - School of Law, Trinity College Dublin, CPD Conference

Mon.30 Nov.'09:
The Intel Decision - ISEL Competition Law Forum, Dublin

Mon.30 Nov.'09:
Launch of IPRT report on Detention of Children - Dublin

Tue.1 Dec.'09:
FLAC Third Annual Dave Ellis Memorial Lecture

Wed.2 Dec.2009:
Land and Conveyancing Law Reform Act 2009 - UCD Commercial Law Centre, Dublin

Thu.-Fri.3-4 Dec.2009:
Police Governance and Accountability, Limerick

Thu.-Fri.3-4 Dec.'09:
Intensive Course on Planning Law (Including Developments on Strategic Infrastructure, Habitats and the New Planning Bill 2009) - Centre for Environmental Law, School of Law, Trinity College Dublin, CPD Course

Sat.5 Dec.'09:
Meeting the Challenges - New Ways of Doing Business. Speakers: K Erwin, Mediators'Institute of Ireland; J Maguire Collaborative Law; P Marrinan Quinn SC Conflict & Dispute Resolution Diploma TCD: T O'Riordan Manager Public Interest Law Project FLAC. Irish Women Lawyers' Association, Dublin.

Sat.5 Dec.'09:
Tort Litigation: Recent Developments - School of Law, Trinity College Dublin, CPD Conference

Fri.11 Dec.'09:
Intensive Course on Waste Law including the New Waste Directive - Centre for Environmental Law and Policy, School of Law, Trinity College Dublin, CPD Course

5-6 March 2010:
Irish Society of Comparative Law Annual Conference, Belfast

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Thursday, February 19, 2009

Mental Health Act 2001: Unresolved Issues

I've been waiting for the full decision in a mental health case from 31 October 2008 to appear on the website, but there's no sign of it yet. I wrote an article for the Irish Times about this case on 4 November (full text here.)

Here are some extracts from the Irish Times article, with links:

The hasty enactment of the Mental Health Act 2008 ... has probably resolved the legal issues caused by the recent High Court case, but there are other related issues that remain unresolved. Mr Justice Bryan McMahon issued a significant ruling in the case of a woman who has been detained in St Patrick's Hospital since August 2007. Various legal issues arose regarding her detention. ...

[McMahon J. decided that a renewal order for a period not exceeding 12 months was void for uncertainty. However, he put a four-week stay on his order directing the patient's discharge.]

This whole affair raises questions as to the wording of the Mental Health Act 2001, and the forms specified by the Mental Health Commission. As Mr Justice McMahon pointed out, "the error in this case was prompted by the wording of the form used by the Commission". ....

As regards the wording of the Mental Health Act, a number of issues have arisen regarding the time limits, and these have led to the Commission issuing a 1,200-word guidance page on "Duration of Involuntary Admission and Renewal Orders". This guidance will need to be amended in the light of the recent court case. It may now be better to reword the Act so that the time limits operate in a more logical and streamlined manner....

It is noteworthy that a number of other significant issues remain unresolved and require urgent attention. For example, a patient who has their detention renewed for six months (for example), cannot apply to a Mental Health Tribunal for a review of their case during the six-month period, and must wait until the automatic review which will occur at the end of the six months, if the psychiatrist makes a renewal order. This is in spite of a clear ruling from the European Court of Human Rights in Rakevich v Russia in 2003, where it was stated that "the detainee's access to the judge should not depend on the good will of the detaining authority".

The 2001 Act provides that a person may be removed to an approved psychiatric centre by members of staff of the approved centre in certain circumstances (s.13). These "assisted admissions" are often carried out by an independent contractor, rather than members of staff. In the R.L. case in 2008, it was held by the Supreme Court that the use of an independent contractor was a breach of the Act, although the patient's detention was upheld. It appears that such breaches of the Act have continued, in spite of the legal difficulties which they raise.
There are serious doubts about the burden of proof in Circuit Court appeals, where the patient is required to prove that he or she does not have a mental disorder (s.19), even though such a burden would appear to be contrary to the European Convention.

In addition, the powers of Mental Health Tribunals are unduly restricted by the 2001 Act. They may not consider questions of compliance with the sections on removal to the approved centre (s.13), referral of the admission order to the tribunal (s.17), transfer of a patient to hospital (s.22) or compliance with the Mental Treatment Act 1945.

The time has come for a fundamental review of the Mental Health Act 2001 in light of the Irish case law to date, experience in the operation of the Act and recent decisions of the European Court of Human Rights. Reference may also be made to the Mental Health Commission's Report on the Operation of Part 2 of the Mental Health Act 2001 (2008) and the Department of Health and Children's Review of the Operation of the Mental Health Act 2001: Findings and Conclusions (2007).

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Friday, May 02, 2008

Report of Commissioner for Human Rights on Ireland

The Report of the Commissioner for Human Rights on his visit to Ireland was just published on 30 April. It includes responses from the Irish Government.

Commissioner for Human Rights, Report by the Commissioner on his Visit to Ireland 26 - 30 November 2007 (CommDH(2008)9, Council of Europe, 2008)

Go to and choose 'Latest Documents'

For a link to the actual report, try this:

[Click the PDF icon if you want a PDF version]

Media report (extract):

Commissioner doesn't pull his punches
Irish Times, 1 May 2008

Ireland's record in looking after vulnerable people is graphically spelt out by the Council of Europe, writes Jamie Smyth, European Correspondent

COMMISSIONER FOR human rights Thomas Hammarberg didn't pull any punches when he presented his report on Ireland's human rights record to the Council of Europe's committee of ministers in Strasbourg yesterday.

His 58-page analysis of Government policy lays bare his office's assessment that the standard of care currently provided to vulnerable groups in society such as children, asylum seekers, Travellers and psychiatric patients is unacceptable.

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Friday, February 08, 2008

Equality and the Sikh Turban Ban

Lord Lester facilitated a fascinating workshop this morning here at UCC on Equality Law, assisted by Colm O'Cinneide.

Among the many interesting points that arose concerning the recent ban on a Sikh turban in the Garda reserve were the following:

  • Could it be argued that a member of the Garda reserve is engaged in an "occupation" (under the Framework Directive 2000/78/EC)

  • Even though the particular person involved has withdrawn from the Garda reserve, could a Judicial Review be brought against the Garda Commissioner's decision?

  • Could a JR application be made by the Equality Authority and/or the Human Rights Commission?

  • If a JR were brought, an argument could be made that the Garda Commissioner's decision applies both to members of the reserve and ordinary Gardai, if need be, in response to any defence relating to the status of members of the reserve.

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Monday, November 19, 2007

Transgender Law - Lydia Foy in High Court

As many people will know, the High Court has decided in the Lydia Foy case that it will issue the first declaration of incompatibilty of an Irish law with the European Convention on Human Rights. [update April 2008 - The full judgment is available on the Courts Service website at ]

Sample news stories and blog posts:

"State in breach of ECHR in transgender case

The High Court has ruled that the State is in breach of the European Convention on Human Rights (ECHR) over its failure to recognise a sex change that a transgendered person underwent more than a decade ago. "

Sex change law incompatible with ECHR:

The Foy Case (CCJHR Blog - Fiona De Londras):

Tanya N� Mhuirthile, Time to respect the rights of all gender identities, Irish Times:

Previous Lydia Foy case:

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Tuesday, October 30, 2007

Media and Tribunals

A Divisional Court of the High Court has ruled that Geraldine Kennedy and Colm Keena of the Irish Times must answer questions regarding the source of an article abou the Mahon Tribuanl.

The full judgment is not yet on the Courts Service website but is available here.
Title: Judge Mahon and Others v Keena and Kennedy, [2007] IEHC 348, High Court, 23 October 2007.
[Update 19 Nov. 2007:
The judgment is now available on the Courts Service website here.]

Cases cited in the judgment include

Oblique Financial Services Limited v. The Promise Production Company [1994]
Kiberd v. Hamilton [1992] 2 I.R. 257
Haughey v. Moriarty [1999] 3 I.R. 1
O�Callaghan v. Mahon [2006] 2 I.R. 32
O�Callaghan v. Mahon (No. 2), Supreme Court, 30th March, 2007
Mahon v. Post Publications Limited, High Court, 4th October, 2005
Mahon v. Post Publications Limited, Supreme Court, 29th March, 2007
Commonwealth of Australia v. Fairfax [1980] 147 C.L.R. 39
Sunday Times v. The United Kingdom (1979) 2 EHRR 245
Lingens v. Austria (1986) 87 EHRR 329
Castells v. Spain (1992) 14 EHRR 445
Goodwin v. The United Kingdom (1996) 22 EHRR 123
Dehaes and Gijsels v. Belgium (1997) 25 EHRR 1
Fressoz and Roire v. France (1999) 31 EHRR 28
Tromsov v. Norway (1999) 29 EHRR 12
Radio Twist AS v. Slovakia, European Court of Human Rights, 19th December, 2006
Tonsbergs & Blad A/S v. Norway, European Court of Human Rights, 1st March, 2007
Kwiecien v. Poland, European Court of Human Rights, 9th April, 2007
Ustun v. Turkey, European Court of Human Rights, 10th May, 2007
Ashworth Hospital Authority v. MGN Limited [2001] WLR 2003

Extract from the judgment:

In our view, nothing could be more damaging to the capacity of the Tribunal to carry out its functions than the perception that the Tribunal itself leaked information given to it in confidence. Thus, where a leak occurs as in this case, the Tribunal must inquire to establish the source of that leak as it has sought to do. Establishing that the Tribunal itself was not the source of the leak is in itself a legitimate aim and a pressing social need. At this stage, having regard to the destruction of the documents, the only means remaining to pursue that aim is by way of the proposed questioning of the defendants. If a Tribunal is not enabled to pursue the aim of establishing that it was not the source of the leak, even if it is not able to ultimately identify the source of the leak, the process of public inquiry in private investigative phase will be damaged to such an extent that there would be an inevitable loss of confidence in the integrity of the process and in all probability a significant reduction
in the voluntary co-operation of the public in its inquiry.
In the circumstances of this case we conclude that the defendants� privilege against disclosure of sources, is overwhelmingly outweighed by the pressing social need to preserve public confidence in the Tribunal and as there is no other means, by which this can be done other than the enquiry undertaken by the Tribunal, we are of opinion that the test �necessary in a democratic society� is satisfied.
Accordingly, we will grant the relief sought.
Sample News Story:

Blog Posting by Daithi Mac Sithigh:

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Friday, October 05, 2007

Mandatory Life Sentences, the Constitution and the ECHR

RTE is reporting that a challenge to the mandatory life sentence has been rejected:

Challenges to life sentences rejected Friday, 5 October 2007 16:20

"Two convicted murderers have lost their High Court challenge to the constitutionality of the mandatory life sentence for murder.

They are 25-year-old Peter Whelan, who was jailed for life in 2002 for the murder of Cork student Nicola Sweeney, and 30-year-old Paul Lynch, who pleaded guilty in 1997 to the murder of Donegal pensioner, William Campbell.

Each claimed the sentence breached their rights under the Constitution and under the European Convention of Human Rights.

The two men claimed the mandatory life sentence interfered with the role of the judiciary and offended the independence of the judiciary enshrined in the Consitution.

They also claimed their rights under the Convention were breached because they have no way of knowing how or when they are likely to be released.

The case could have had implications for more than 250 people serving life sentences for murder in Ireland.

But Ms Justice Mary Irvine rejected the men's claims on all grounds."

The full story is here.

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