The right to defend your home

Recently, when researching some material on the law of self-defence in Ireland I came across a headline over an article on this subject. The headline stated;  “Irish gun owners can now shoot intruders”. While the particular article was written some time ago, it was clear that it was anticipating the proposed change in our law under the Criminal Law (Defence and the Dwelling) Bill 2010. However the headline was inaccurate and misleading at the time it was written, and will continue to be inaccurate and misleading when the Bill becomes law, which will possibly be before the end of this year. The present legal position is that a homeowner who uses force against a person who has entered their home without consent is entitled to do so, so long as the it is for the purpose of protecting himself, another person, or their property. However, that force must be reasonable.The new act, when passed, will allow a homeowner, tenant or visitor to stand their ground and to use reasonable force when attacked by an intruder and specifically also acknowledges that this reasonable force may result in the death of the intruder in certain circumstances.

The new law will not in fact substantially change the existing law , but it will clarify certain aspects, and it will set out in one document, in a reasonably clear way, what in fact the law is on this issue.

These issues have been matters of controversy for some years, especially in the light of two high profile court cases.The first of those was the so called Nally case. The issue of whether a person could use lethal force in defending their home arose in the case of Co Mayo farmer Pádraig Nally, who shot dead John “Frog” Ward in October 2004 in controversial circumstances. Mr Nally claimed Mr Ward had come to his farm to rob him, and that he had shot him in self-defence. He was jailed for six years for manslaughter. He served 11 months of that term before the case was taken to the Court of Criminal Appeal, where he was acquitted after it was accepted he had acted in self-defence.

Many will also remember the Waterford case where Mr. Richard Forrestal aged 69 years was stabbed to death in his house at Tramore, Co. Waterford, in 2005. The killer was Anthony Barnes, and in the course of his legal defence Barnes claimed that he was acting in self defence. In a judgement rejecting that defence the Court of Criminal appeal set out in some detail the current Irish law on the issue of self defence. The Court noted that the sanctity of a persons dwellinghouse in law dates back to time immemorial. It was described in an English common law case known as Semaynes case in 1604 as follows; “That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose…”.

While the  proposed new law has been criticized by civil liberties organisations, on a number of grounds, we should remember that, in comparison with many States of America, our law is reasonably tame. In Colorado for instance the equivalent law is commonly referred to as the “ Make my day” law. This law protects householders from any criminal charge or civil suit if they use force, including deadly force – against an invader of the home. That law states that the ”uninvited entry” must have occurred for criminal purposes like burglary, or that the resident had a reasonable belief that the intruder’s motives were criminal.

Copyright in Ireland

One of the earliest recorded copyright disputes took place in the 6th century in Ireland and involved Colmcille, (later St Colmcille). He had been visiting the monastery of St Finian of Moville. While there he copied an original manuscript of St Jerome’s Psalter, and this was done without the permission of Finian. On discovering this, Finian claimed ownership of  the copy and demanded that Colmcille hand it over to him. The dispute was brought before Diarmuid, the High King of Ireland, for his decision. Diarmuid gave his judgement in favour of Finian, with the phrase that has endured over the centuries “ As to every Cow its Calf, so to every Book its Copy”.  Apart from the legal impact of the judgement, the language is interesting.

One aspect is that the old Brehon law provided the very reasonable rule that a calf, wherever it might be found wandering, belonged to its mother. Also this was centuries before paper and printing made their appearance in Ireland, in the days when documents were laboriously hand-scripted onto Vellum, and Vellum was  manufactured from treated calf-skin. This made the reasoning and the language all the more relevant.

This simple judgement is one of the earliest known descriptions and analysis of the concept of copyright, That is “You cannot copy an original work without the permission of it’s owner”.

In modern days copyright protects published and unpublished literary, scientific and artistic works, whatever the form of expression, provided such works are fixed in a tangible or material form. This means that if you can see it, hear it or touch it, it may be protected. Our most recent legislation, in 2000, extends existing protections to broadcasts, cable programmes, and original databases. There are also provisions concerning recordings of works of folklore, anonymous works and retransmission of encrypted broadcasts. The Act introduces into Irish Law the concept of moral rights. These are rights which belong to the author of a work no matter who the owner of the copyright is. The Act in effect establishes a “paternity right”, that is the right to be identified as the author of a work and an ” integrity right” , the right not to have a work subjected to a treatment which could damage the honour or reputation of the author.

While copyright may protect literary and artistic works, this does not mean that these works have to be of any particular standard or quality, and both sublime and horrendous literary and artistic efforts enjoy equal protection.

The time duration of protection for copyright is considerable. It lasts for seventy years after the death of an author in the case of a literary, dramatic, musical, artistic work or an original database and also seventy years in the case of a film, after the death of the last of the principal director, screen play author, and music composer. With a sound recording, broadcast and typographical arrangement copyright lasts for fifty years.

When copyright does expire, it means that the work is available for general use, and can be  published or adapted. In the next year one very significant literary work, James Joyce’s Ulysses, will emerge from the protection of copyright. There is general agreement that this will be a good thing for that work, and will lift restrictions on interpretations of the book, and will also allow for unrestricted performances and readings of the work.

In terms of musical composition, the copyright in the Irish national anthem, “Amhrán na bhFiann” will expire at the end of this year. , This was composed in 1907 by Patrick Heeney who died nearly 70 years ago. Peadar Kearney wrote the English lyrics to the anthem and it is on the 70th anniversary of his death that the copyright will lapse in accordance with Irish copyright legislation. The Irish State purchased the copyright for the anthem for £1,000 in 1933. One of the reasons for the State buying this copyright was to ensure that the anthem would always be freely accessible and available and to ensure that performance fees are not charged for its use. Also, with the State owning the copyright it could make sure that the anthem was not used in an inappropriate context or in a disrespectful manner. An example of this is the version by the Sex Pistols of ‘God Save the Queen’. Other examples might be the Jimi Hendrix’s version of ‘The Star Spangled Banner’ at Woodstock in 1969 and many variations of ” La Marseillaise”.

Such variations may represent a valid artistic interpretation, and, whatever about their artistic merit, possibly have copyright protection.

What makes a bad law

Even the most enthusiastic supporter of our legal system would not be likely to hold the view that all of our laws are good and just. We are governed by legislation which has been enacted over a span of several hundred years, some of which is of it’s time, and to that extent may have lost it’s relevance today. Our modern legislation is drafted for an increasingly complex society, and demands more thought in it’s drafting to make it effective in achieving it’s purpose.

One way of evaluating whether a law is good or not is to see if the law has unintended consequences. Sometimes a law will have unforeseen consequences, but that is something different. An unintended consequence is where, for instance, a law, in attempting to achieve its purpose prohibits other conduct which is not of itself harmful or damaging to society. For this reason the consequences of new laws should be fully considered before being enacted. One example of this is the proposed ban on smoking in cars, with the  objective of protecting children from the dangers of passive smoking. The intention behind this proposal is valid and praiseworthy. However one example of an unintended consequence of this law would be that a bachelor farmer in the hills of Mayo will be committing a criminal offence if he lights up a fag in his car after a day on the bog. Would society see his action as being so wrong that it deserves criminal sanctions?

Another example of this is in relation to our competition laws. Having strong competition laws is an absolute necessity for society. They give protection to consumers and business  from the abuses of market rigging, cartels, price fixing and abuse of monopoly. Without such legislation we would all be at the mercy of unscrupulous commercial interests. However, there are some aspects of this law as enacted in Ireland worth noting. Firstly, of necessity our competition law is very widely drafted, so as to capture as far as possible, the many varieties of anti-competitive practices that exist. Secondly, we do not have what is called a “De Minimis” clause in our legislation. This means that the law applies to every commercial entity, whatever it’s size. It applies equally to both the sole trader as it does to the multinational company.

In such circumstances it is not difficult to imagine a situation where that law could have unintended, and possibly unjust, consequences.  Consider the illustration of two self employed window cleaners who, by coincidence, turn up in town one Monday morning. They meet in the Square and recognising each other get chatting. One of them remarks that he intends only working on Main street, and suggests to the other that it would probably make sense for him to work on the adjoining streets. They agree on this. At that point, without doing anything further, it is likely that the two of them have committed an  offence under the Competition Act, and, consequently could face a Criminal prosecution. If convicted they could face penalties of, at least theoretically, up to four Million Euro each and up to five years imprisonment.

The fact that such an outcome is unlikely is not really relevant, if only for the reason that it raises another element of good law making, namely that everyone is entitled to know with certainty where they stand under the law.

The law is not the same for everyone

After the publication of the Cloyne report, the Minister for Children, Frances Fitzgerald, in announcing proposals to abolish the legal privilege which presently applies to religious confessions, stated that “If there is a law in the land, it has to be followed by everybody. There are no exceptions, there are no exemptions,”

While the statement reflects a social ideal, the reality is that it never has held true, and probably never will. For many good reasons there will always be certain categories of people who, by reason of their function in society, are given special privileges when it comes to the application of the law. The essence of such a privilege is that it exists not for the personal benefit of that person, but for the betterment of society as a whole.

One example of this is diplomatic immunity, which is a legal immunity that governments give each others’ diplomats when they work in another country. Since ancient times diplomats or envoys were regarded as entering a country under safe-conduct, and violating a diplomat has always been viewed as a great breach of honour. The law gives diplomats immunity from our criminal, civil and administrative jurisdiction.

Another example of special legal privilege is that of parliamentary immunity. The Irish Constitution states that members of the Oireachtas shall not, in respect of any utterance made in either house, be amenable to any court or authority other than the House itself. This privilege was described by the High Court in a case of AG v Hamilton as being “for the benefit of democracy and the People . . It is a cornerstone of democracy that members of the Oireachtas have free speech in the legislature. This right to free speech is for the protection of the democratic process and in doing so it protects parliament and deputies in parliament” It is a very important and significant privilege which gives a safe forum for politicians to highlight concerns about Government and administrative practices, and without it much of the abuses and corruption exposed in the last twenty years may never have come to light.

The ordinary working man and woman also in certain situations enjoy such immunities. One example is in the Industrial Relations Act which gives  legal immunity (both criminal and civil) for workers engaged in what would otherwise be unlawful activity in the course of a labour dispute.

This immunity was introduced as a response to the practice of employers, in the early years of industrial unrest, using the full rigours of the law against workers to prevent picketing and and to break strikes.

There is also provision under various laws such as the Competition Acts where offenders who assist in the prosecution of others may be granted immunity from prosecution.

Judges, in the course of their work, enjoy what is termed Judicial Immunity, which means that they cannot be sued for the consequences of their decisions, even where it appears that they might have got it wrong. Without this protection judicial independence would be compromised, and there would be no finality to litigation.

In the context of this topic it is not uncommon to hear the complaint that “there’s one law for the rich, and one law for the poor.” While theoretically untrue, there are occasionally circumstances which make it difficult to argue with that proposition. However there is no doubt that the single most important protection against such a situation is the existence of an independent and impartial judiciary.

The legal privilege of confession

There has been a lot written since the publication of the Cloyne report regarding the proposal to abolish the legal privilege attached to the seal of confession. For the Catholic Church the seal of confession is absolute. Under the Code of Canon Law, it is provided that  “...It is a crime for a confessor in any way to betray a penitent by word or in any other manner or for any reason”. A priest, therefore, cannot break the seal, even to save his own life. There is nothing new about this seal of confession. One of the early Church Decrees dealing with it comes from the Fourth Lateran Council held in the year 1215 where the council pronounced “Let the confessor take absolute care not to betray the sinner through word or sign, or in any other way whatever” 

In Civil Law in Ireland one of the landmark decisions was the case of Cook v. Carroll in 1945 which established that a Roman Catholic priest was not obliged to answer questions as to the nature of communications made in confidence to him in a private consultation with a parishioner. Since then there have been a number of further Court decisions which have fleshed out the scope and extent of the protection, and the present law is that a member of the clergy of any denomination may not be compelled to disclose the content of any conversation between them and a parishioner unless the parishioner agrees to such disclosure.

While there are valid arguments in favour of the proposal to change the law, the matter may not be quite as straightforward as would first appear, and there are questions which need to be addressed.

The first and obvious question is simply how can such mandatory disclosure be enforced.  Without the presence of a third party at a confession the only people who know what was said are the confessor and the penitent.In these circumstances it is difficult to see how a failure to report details of the confession could ever come to light, since the penitent, who has confessed their wrongdoing, is hardly likely to complain to the authorities that the priest has failed to report their confession. Bearing in mind that a priest is bound by Civil law, but is also bound by Canon law, how is he to resolve his dilemma, and who can ever know when he has resolved it in favour of Canon Law. Short of assigning a Guard to every confessional in the country, it would appear that passing such a law would be an exercise in futility.

Secondly, if a confession is open to disclosure to the State authorities, should all penitents receive a legal caution before they commence their confession? On the basis that what they say may subsequently be used as evidence against them, our legal system would say that they should receive a caution. Having received such a legal caution, who in their right mind is ever likely to make a full and frank confession?

What of the overzealous cleric who reports every suspicion? Where does the legal duty start, and finish? In Catholicism a sin can refer not only to physical actions taken, but also to thoughts and internalized motivations and feelings. Does that mean that a confession of impure thoughts is reportable as evidence that the penitent may possibly commit an unlawful act in the future?

Without addressing these issues any new laws are likely to be unenforceable.Legislation which is unenforceable is bad legislation, and apart from the fact that it fails to achieve it’s purpose, it diminishes confidence and respect for our legal system.

The freedom of the press

The freedom of the press in Ireland is something which is a highly valued prize of democracy. In our Constitution which was enacted in 1937 there is a guarantee of the right of citizens to express freely their convictions and opinions. But the right of freedom of expression in Ireland is not absolute. The Constitution provides that, because of the importance of educating public opinion, the State will try to ensure that the organs of public opinion such as the radio and the press keep their right to liberty of expression, but they shall not be used to undermine public order, morality or the authority of the State.

This freedom of the press is sometimes misunderstood as being a freedom for the benefit of the press. The reality is that the freedom is simply an extension of the right of freedom of speech, as exercised by the press. This freedom when exercised is not exercised for the private benefit or gain of the press, but for the benefit of the public generally. The fact that this distinction is often overlooked helps explain some of the recent conduct by certain sections of the British press.

There are limits and boundaries to the freedom of expression of the press, some imposed by law, others accepted voluntarily, The legal limits imposed are in the main related to the law of defamation, and to a lesser extent nowadays, under censorship legislation.The traditional definition of defamation was publication of a false statement which subjected a person to hatred, ridicule or contempt. That definition has now been updated in the Defamation Act 2009, which describes a defamatory statement as one which tends to injure a person’s reputation in the eyes of reasonable members of society. For journalists and newspaper publishers the risk of a defamation claim is very real. It is estimated that about 80% of all defamation actions are brought against the media, and the costs associated with such claims can be huge. For instance in the libel action taken by Albert Reynolds against the Sunday Times many years ago, the damages awarded amounted to just one penny, but the costs were estimated to be in the region of one million pounds.

The voluntary restrictions on press freedom are firstly acceptance and adherence to the Code of Conduct of the Press Council of Ireland. This Code sets the benchmark for what all publishers should aspire to, that is, the highest professional and ethical standards.

The other aspect of self-regulation relates to the often unnoticed and undervalued practice of editorial sympathy and discretion. A common example of this occurs in Court reporting. Frequently newspapers in reporting circumstances of a Court case will not disclose the identities of parties, particularly in cases of hardship, such as cases involving the repossession of a family home. The vast majority of our newspapers recognise that there is really no need for gratuitous descriptive reporting of grief and distress.

Alongside this discretion our press over the years have displayed on occasion qualities of  courage and fearlessness which has brought to light corruption and abuse which had become institutionalised in our society. There are very many instances of this, in the areas of politics, religion, finance, business and planning. Without a free press much of this abuse and corruption would still be flourishing, concealed below the surface of our society.

Internet Bullying

For those who remember Andy Warhol, the American artist and leading figure in the visual art movement known as “Pop Art”, you may also remember a prediction which he made in 1968 to the effect that “In the future, everyone will be world-famous for 15 minutes.”

Set in todays context of the internet, Facebook, youtube, personal websites and blogs, that predication now seems prophetic. For most of us who were around in 1968 the concept of an internet was almost unimaginable. Now the internet is an inescapable part of our lives and there is no doubt that through it many ordinary people are having their moment in the limelight. The slogan of Youtube is “broadcast yourself”. This is an invitation which is obviously taken seriously, since there are an estimated 3 billion videos viewed each day on Youtube. There are occassions however this fame is unwanted.With the relative ease of publishing online comes the opportunity for the insensitive, or the vindictive, to post embarrassing or humiliating videos of others. Others take the chance to satisfy a grudge by posting offensive material of comments.

One very unsavory aspect of this is termed “Cyber bullying”. Cyber bullying refers to bullying which is carried out using the internet, mobile phone or other technological devices.It’s effect is psychological rather than physical.It can take the form of putting up nasty posts or pictures on a message board, website or chat room online. It is often done anonymously.

This is a developing area of law worldwide, and, because the internet does not observe national boundaries, it is proving a challenge for our legal systems. In Ireland, apart from the civil court remedies which may be available to victims of such bullying, there are a number of criminal sanctions which can be imposed under various statutes, some of which would not have anticipated internet use when they were first drafted. In a sense the Courts are now faced with adapting new interpretations to existing laws. We have had a number of such cases come before our courts, one of which concerned a prosecution against a man who had put offensive and obscene messages about a teenage girl, with whom he had a disagreement, on the social networking site Bebo. In Court the man agreed to pay the victim compensation of €3,000.

The fact that such posts are anonymous does make it difficult to track down the real culprit. However, judges are prepared to tackle that problem, and quite recently a judge in the United States ruled that Google must release the names of those who anonymously made offensive and crude comments about a young businesswoman.

In an Italian court last year three Google executives were convicted over a video posted online which shows schoolboys taunting an autistic boy. The Italian court found that by allowing the video to be posted the executives were violating the privacy rights of the victim.

These decisions reveal the fault-line between the competing concepts of the right to freedom of expression and the right to privacy of the individual. To some, such decisions are an attack on the freedom of expression on which the internet is built, to others the decisions mean that there will be accountability when that freedom is abused.

In cyber bullying there is also one significant difference between the prediction of Andy Warhol and the new reality; his prediction was that the fame would last a mere 15 minutes, whereas an internet posting is quite likely to be permanent.

 

The good Samaritan; Legal issues

At present in Ireland we do not have any specific laws which protect “Good Samaritans”. This may however change in the near future with the introduction of a new Bill in the Dail which covers, amongst other things, a statement of legal protections for the civic minded. In legal terms a “good Samaritan” is someone who goes to the aid of somebody in peril, or someone who involves themselves, on a voluntary basis, in activities which benefit others.

The benefit of the new law is not to be doubted, if only to bring clarity to our existing law. It also highlights a common misconception which on occasion is used as an excuse not to get involved. This is the assertion that by becoming involved, you may be leaving yourself open to a liability claim. In this regard the proposed new law follows on from a recent comprehensive study of this area by the Law Reform Commission. One of the very interesting conclusions of that study was that it is unlikely that any legal liability would arise in most “good Samaritan” situations, and the Commission also pointed out that it could find no evidence of any claims against those involved in saving peoples lives or rescuing people in emergency situations.

In general there is no legal duty on citizens to intervene and rescue in an emergency situation. There are exceptions. Where there is a “dependency” in a relationship such as parent and child, there is a legal duty to intervene in appropriate circumstances. In other circumstances, where there is a special relationship, such as between doctor and patient, or employer and employee, it is open to the courts, depending on the situation, to imply a duty to intervene.

For doctors, and emergency services, there is the further question of whether or not they have a duty to provide medical care in an emergency. Again there is no such specific duty unless the person seeking medical attention is a patient of the doctor, or is in the care of the health services. That is not to say that the courts would not in a particular case hold that there is such a duty. In an 1996 Australian case a doctor was held to be negligent for refusing to treat a boy in the vicinity (who was not his patient), who was having an epileptic fit.The reasoning of the court was that the doctor was nearby, he had the competence and ability to treat the child and had no other commitments at the time.

The proposed new law will give protection from liability for persons described as ‘good samaritans’, who in good faith, and in a way that does not constitute gross negligence, provide assistance, advice or care during an accident or emergency. Protection is also extended to persons involved in voluntary work for charitable or other purposes for the benefit of society, including sports, recreation and rescue. Such volunteers are required to act in a way that does not constitute gross negligence. However the volunteer organisation, with whose authorisation the volunteers operate, will be held to the higher legal standard of ordinary negligence. In assessing this however, the Courts will take into account the benefits accruing to society as a result of the organisation’s work in determining whether it is just and reasonable to impose liability.

To the credit of all of our voluntary organisations, and volunteers, the lack of clarity in our law to date has not dampened the enthusiasm of those who are prepared to get involved.

Social networking and the law

Social networking through Facebook, My Space, LinkedIn, Twitter and blogs, is for very many people an integral part of communication. Where it is brought into the workplace it can present some serious difficulties for employers.

Many will have heard of the case a couple of years ago when in the US a Pizza company employee posted an allegedly humorous video about how pizzas are made. The video included unhygienic and rude behavior, as well as employees mocking customers. The video did untold damage to the company.

So far as our law is concerned an employee has an implied duty to act in good faith in relation to their employer, and not to deliberately act in a way which brings the employer into disrepute. This is not just a 9 to 5 duty, and extends to the employee at all times.

Most businesses will have an IT and internet policy to cover these situations, and if they don’t have such a policy at this stage they should put one in place. If there is no policy in place the employer faces a more difficult challenge in carrying out a disciplinary process where the the consequences of such actions have not been fully spelt out.

From an employers perspective where an employee has posted damaging or offensive material on the internet, they have a number of options.

As a first step they should immediately request the employee to remove the post, and if for some reason this is not done, or is not possible, the employer should contact the owner of the site, or the host, to remove it. If that fails, and the post is particularly damaging, there is the option of applying to court for an injunction to remove the post, and this is an option which has been successfully pursued in our courts. There is also the option of invoking the disciplinary process against the employee, and in certain situations, depending on the seriousness of the incident, dismissal may be justified.

It may also be the case that the material published is defamatory, and in such a situation a further option would be to bring Court proceedings for libel.

Holidays and the law

For those lucky enough to be able to have a holiday abroad this year there are some precautions to take which should help to ensure that everything runs smoothly. The growth of internet booking gives an opportunity to tailor your holiday to your individual tastes. Booking a holiday in this way allows greater flexibility and choice. It also gives a sense of independence. However it does have a down-side, since by booking your holiday independently, you do not have all of the legal protections which you would otherwise have if you book through a travel agent or broker. This is something which only becomes apparent when things go wrong, and so it is important to consider carefully what your best options are. Whatever your decision, at the very least you should take out travel insurance to cover your holiday. Another prudent step, if you are traveling within Europe, is to get a European Health Insurance Card (EHIC). Also if you are booking a package holiday over the internet, you should check whether Irish consumer legislation covering package holidays applies to it.
Cancelled flights have been a major problem in recent times. If your flight is cancelled or significantly delayed the airline must give you a choice between re-routing to your final destination or a refund. While awaiting an alternative flight you have the right to receive care and assistance from the airline. If your luggage is lost, damaged or delayed by the airline you can claim compensation, but that compensation is limited.

All tour operators and travel agents are required by law to enter into a bond before they are licensed. This bond is for the protection of the consumer and means that if the travel agent or tour operator goes out of business, the bond is used to compensate the consumers for their losses. This involves an assessment of each individual claim and making refunds to customers who have purchased holidays and where necessary, arranging for customers who have been unable to  complete their holiday to be brought home. It is also a legal requirement that every customer must receive a copy of the booking contract and every contract must contain all relevant information relating to the holiday,