Welcome to Ex Tempore, a website that covers the Irish Supreme Court. The aim of Ex Tempore is to provide a resource for lawyers, academics, law students, and anyone seeking to understand what the Court does and how it does it.
Identification Evidence and the Appliance of Science (Part 1 of 2)

Featured: Identification Evidence and the Appliance of Science (Part 1 of 2)

If you missed it: Tom O'Malley's post on cross-racial ID evidence. (Photo: "Busáras mosaic" by siobh.ie).
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Weekly Preview for 30th May 2013

After a little break, the Supreme Court is in session again. Two cases are set for hearing today. There seems to be no publicly available High Court judgment for either case, but I have been able to surmise what each is about from other online sources.

Voznuka v. Governor of the Dochas Centre raises a technical point about arrests and the European Arrest Warrant Act. 

… keep reading Weekly Preview for 30th May 2013

Weekly Preview for 13th May 2013

I’m a day late with this week’s account of goings-on at the Irish Supreme Court. (This time, my excuse is that I was attending a tremendous conference on the Philosophical Foundations of Contract Law at University College, London at the weekend.) So I can only review, rather than preview, what happened yesterday: the seven-judge Supreme Court panel finished off the argument in Callely v. Moylan. The Court reserved judgment until a later date (Irish Independent report here).

Speaking of judgments, the Court is scheduled to deliver two of those this week. One of them, Minister for Justice v Ostrowski, raises an important general issue under the European Arrest Warrant Act. Here’s how I previewed the case when it was listed for hearing back in October:

Poland wishes to bring Ostrowski back to Poland from Ireland so he can be prosecuted for possession of a small quantity of marijuana (0.72 grams). Put broadly, Ostrowski’s argument is that the offence is too trivial to justify extradition.

… keep reading Weekly Preview for 13th May 2013

Today at the Supreme Court: McGowan and More

A quick note on today’s developments at the Supreme Court.

Most notably, the Court delivered judgment in McGowan v. Labour Court (my preview of the judgment is here). The Court cut through the procedural thicket and proceeded to rule on the main issue in the case. It ruled that the system of Registered Employment Agreements (REAs) for setting employment terms in certain industries is an unconstitutional delegation of legislative authority. The Court’s decision on the constitutionality of the REA system is subject to the one judgment rule, and Judge O’Donnell delivered the judgment of the Court (available here). The Irish Times summarizes it here. The Court didn’t seem to think the REA system was even close to being constitutional:

[T]here is a wholesale grant, indeed abdication, of lawmaking power to private persons unidentified and unidentifiable at the time of grant to make law in respect of a broad and important area of human activity and subject only to a limited power of veto by a subordinate body. In effect, Part III allows the parties to an employment agreement to make any law they wish

… keep reading Today at the Supreme Court: McGowan and More

Weekly Preview for 7th May 2013 (Part 2)

Today, as promised, I preview the three judgments scheduled to come down in the Supreme Court this week. But first, I’ll note that it’s turning out to be an even more eventful week than I expected for Court-watchers. The government announced yesterday that it will be introducing legislation providing for two extra judges in the Supreme Court, as a means of reducing the Court’s shocking backlog. Though two extra judges would surely help a bit, I don’t think they would make a huge difference. The Supreme Court received 600 appeals last year. This week, the court is hearing just five appeals, and that’s relatively large number by current standards. Even allowing for the percentage of appeals that are abandoned before hearing, I don’t see that adding a couple of appeals a week would bring the court anywhere near to the level at which it needs to be moving to make a major dent in the backlog. So this, I think, is very much an interim measure: a more fundamental restructuring, after a referendum facilitating an intermediate court of appeal, is in the works.

Anyway, on to the judgments. All three judgments this week will be delivered on Thursday. The first is McGowan v. Labour Court. When the case was set for hearing back in December, I previewed it in the following way:

… keep reading Weekly Preview for 7th May 2013 (Part 2)

Weekly Preview for 7th May 2013 (Part 1)

It’s a short but heavy week in the Supreme Court, with five cases set for hearing and three for judgment. I’ll preview the hearings today, leaving the judgments until another post tomorrow.

Five judges will sit on Thursday to hear DCC v McFeely, which is probably the week’s most newsworthy case. In 2011, more than 200 residents of the Priory Hall apartment complex in Donaghmede were evacuated because the building was found to be a fire safety risk. As I noted here, the Supreme Court has already ruled on this case once, when it set aside the High Court’s finding that developer Thomas McFeely was in contempt of court. (In the course of prevailing on that appeal, McFeely’s lawyers provoked the President of the High Court to chastise them for not providing the stenographer’s version of his contempt finding to the Supreme Court). The building is still very far from being habitable, and former Supreme Court judge Joseph Finnegan has been presiding over an attempt to resolve the dispute consensually. In the meantime, the President of the High Court has ordered Dublin City Council to pay for temporary housing for the residents. This week’s appeal is by the Council, which now wants the Supreme Court to overturn the High Court’s decision requiring it to fit the bill for the residents’ alternative accommodation.

Tomorrow, a three-judge panel will hear EMI Records (Ireland) Limited v. Data Protection Commissioner. This case is part of the ongoing litigation between record companies and Internet Service Providers (ISPs) over copyright infringement.

… keep reading Weekly Preview for 7th May 2013 (Part 1)

An Introduction to the Supreme Court’s Fleming Judgment

Earlier today, the Supreme Court rejected Marie Fleming’s challenge to Ireland’s ban on assisted suicide. The judgment of the Court in Fleming v Ireland was delivered by the Chief Justice, and it’s available here. So section 2(2) of the Criminal Law (Suicide) Act 1993 survives unscathed, and it is still a crime in Ireland to aid, abet, counsel, or procure another’s suicide or attempted suicide.

Here’s a quick guide to the important parts of the Supreme Court’s judgment:

… keep reading An Introduction to the Supreme Court’s Fleming Judgment

Weekly Preview for 29th April 2013

I missed last week’s preview, partly because of disruptions resulting from the search for the Boston bombers (I live in Cambridge, Massachusetts). The main thing I missed was Callely v. Moylan, ex-Senator Ivor Callely’s challenge to the Seanad’s decision to discipline him in 2010 for alleged expenses irregularities.  The case raises issues of large significance about the powers of the Houses of the Oireachtas to sanction their own members, the procedures the Houses must follow, and the power of the courts to supervise the Oireachtas’s disciplinary activities. Callely’s challenge was successful in the High Court (see here). The Supreme Court hearing—before seven judges—ran for two days last week and will continue next month.

Turning to this week, the Supreme Court will deliver judgment today in Fleming v. Ireland, Marie Fleming’s challenge to Ireland’s ban on doctor-assisted suicide.

… keep reading Weekly Preview for 29th April 2013

Weekly Preview for April 15th 2013

The Supreme Court will hear five appeals this week. I’m afraid none of them seems terribly appetizing, but until the much-vaunted intermediate civil appellate court comes into existence, the Court will have to continue handling a large number of ordinary appeals.

One appeal will probably make the news, for reasons apart from the merits of the legal arguments at stake. On Monday, five judges will hear Gilligan v Ireland. Incarcerated drug dealer John Gilligan is no stranger to litigation; this case concerns his conviction for possession of a mobile phone while in prison.  I glean from this news report that Gilligan is (1) mounting a constitutional challenge to the rule that any sentence imposed on a prisoner for an offence committed in prison must be served consecutively; (2)  arguing that he was unfairly punished twice for mobile possession because the prison authorities had already sentenced him to a period of solitary confinement for the offence. Because Gilligan is challenging the constitutionality of an Act of the Oireachtas, five judges will hear his appeal.

On Wednesday,

… keep reading Weekly Preview for April 15th 2013

Weekly Preview for 8th April 2013

The Supreme Court is back in action after the Easter Break, and will hear two appeals this week. Both start today, and both are listed for two days. One appeal has five judges assigned to it; the other has three. So all eight of the Supreme Court’s judges are in court today and tomorrow.

The five-judge case is named In the Matter of FX, and it’s about the procedures for detention of a person found unfit to plead to a criminal charge by reason of mental disorder. The applicant, who was charged with a very serious criminal offence, suffers from chronic paranoid schizophrenia and is resistant to treatment. He was found unfit to plead to the criminal charge by Judge Carney in the Central Criminal Court under section 4 of the Criminal Law (Insanity) Act 2006; Judge Carney also ordered the applicant’s detention in the Central Mental Hospital. The applicant now challenges his detention on the ground that the detention order was made without compliance with a statutory procedural requirement.

Giving judgment in the High Court, Judge Hogan stated that the case “raises very difficult questions of far reaching importance

… keep reading Weekly Preview for 8th April 2013

Weekly Preview for 19th March 2013

The Supreme Court is back open for business today after the long weekend, and is hearing two cases this week.

Unless the Court adds some judgments to its calendar, the main event is likely to be the hearing in Koger Inc v. O’Donnell. It’s an action brought by a Slovakian/American software company called Koger against three of its former employees, who worked in the business’s Dublin office. Koger created and sold software for financial institutions. In 2006, the three employees left Koger and set up a rival business. The rival business quickly developed a competing product. Koger sued, claiming

… keep reading Weekly Preview for 19th March 2013

New Judgment: DPP v. Cagney

If a person is arrested for drink driving, and a Garda asks her to provide a breath sample, it’s an offence for her to refuse or fail to comply with the request. What if she just can’t provide a breath sample, because of a medical condition? Well, there’s a statutory defence if the accused can satisfy the court of two things, set forth in section 23 of the Road Traffic Act 1994. First, she has to show that she had a “special or substantial reason” for failing to provide the sample. So far, so good: the medical condition should do the trick.

But that’s not enough. To avail of the defence, she also has to show that “as soon as practicable … [s]he complied (or offered, but was not called upon, to comply) with the requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine”. This second condition, if you read the statute literally, can be satisfied in two ways:

(a) by complying with a Garda officer’s request for a blood or urine sample; or

(b) by offering to give a blood or urine sample (even if the offer isn’t accepted, you’re OK as long as you offer).

What if the suspect is never asked for a blood or urine sample? Is she guilty of an offence unless she offers to provide one? That seems a harsh and unreasonable rule

… keep reading New Judgment: DPP v. Cagney

Weekly Preview for 11th March, 2013 (Part 2)

After yesterday’s judgments preview, here’s a preview of this week’s hearings in the Supreme Court. Of the four cases set for argument on the merits this week, electronic judgments are available for two of them: I’ll focus on those two.

The Court has scheduled three days of argument, beginning yesterday, in KBC Bank v BCM Hanby Wallace. It’s an appeal from an eye-popping €17.7 million damages award in favour of the bank against its former solicitors (now know as Byrne Wallace). The solicitors advised the bank on some large loan transactions, but, despite the bank’s instructions, the solicitors failed to secure charges on several of the properties that were the subject of the transactions. The solicitors instead accepted undertakings from the borrower that charges would be created–a practice that, the solicitors eventually admitted, was negligent.

In light of the admission of negligence, the High Court’s judgment was mainly about the amount of damages

… keep reading Weekly Preview for 11th March, 2013 (Part 2)