Champerty offends the rules of public policy

The High Court has ruled that champerty offends the rules of public policy. The Court held that professional third party funding, by an entity that has no independent or bona fide interest, for a share of the profits, is prohibited.

This is the first case in Ireland directly concerning the acceptability of professional third party litigation funding.

Persona Digital Telephony Ltd. and Sigma Wireless Networks Ltd. sought a declaration that entering into an agreement with Harbour Fund III Limited Partnership is not an abuse of process, and, or does not breach the rules on maintenance and champerty.

The case relates to the awarding of the second GSM mobile telephone licence to ESAT Telephone Ltd. by the Minister for Public Enterprise. Persona Digital Telphony Ltd. and Sigma Wireless Networks Ltd., unsuccessful in the competition process, are impecunious as a result.

The third party entity, Harbour III and Harbour Litigation Fund were incorporated in 2015 as a limited partnership in the Cayman Islands with a fund of £230 Sterling to invest in commercial litigation worldwide.

The Court found that maintenance and champerty continue to be torts and offences in Ireland. The Court also found that it could not develop the ingredients of a statutory offence in a manner that fundamentally changes the nature of the offence.

Persona Digital Telphony Ltd. and Sigma Wireless Networks Ltd. were seeking damages, including exemplary damages, for misfeasance in public office, breach of duty, including legitimate expectations, constitutional rights, rights under European Union Law and a declaration that the European Communities (Mobiles and Personal Communications) Regulation, 1996, breach European Union law. 

NI: The absence of exceptions to the general prohibition on abortion in cases of Fatal Foetal Abnormality and pregnancies arisng out of a sexual crime up to the point where the foetus becomes capable of existing independently of the mother, violates the right to respect for private life under the European Convention on Human Rights

The High Court has delivered a seminal judgment on the absence of exceptions to the general prohibition on abortion in cases of Fatal Foetal Abnormality, pregnancies arising out of a sexual crime and serious malformation of the foetus. 

The application from the Northern Ireland Human Rights Commission was about whether the failure to provide certain limited exceptions to the general prohibition on abortion in Northern Ireland is in compliance with the European Convention on Human Rights.

The Commission sought a declaration that the administering of drugs or using instruments to procure abortion, procuring drugs, &c. to cause abortion and punishment for child destruction are incompatible with Article 3 (prohibition of torture), Article 8 (right to respect for family and private life) and Article 14 (prohibition on discrimination) of the Convention.

In relation to Article 3, Mr. Justice Horner held that there is no breach in the additional stress of a pregnant women having to travel to England for an abortion.

The Commission failed to establish that there is a potential for pregnant women in cases of Fatal Foetal Abnormality, pregnancies arising out of a sexual crime or serious malformation of the foetus to receive treatment that would amount to inhuman or degrading treatment.

In his judgment, Mr. Justice Horner reasoned that there is no suggestion that women who become pregnant do not get the best of medical treatment during their pregnancies. Moreover, there is nothing preventing women from travelling to England to access medical facilities there to obtain a termination. The Director of the Public Prosecution Service has also made it clear that no one assisting any of these pregnant women will face criminal prosecution in Northern Ireland should their pregnancies be terminated in England.

He reasoned that similar stress might also be inflicted on a woman who becomes pregnant as a result of a consensual relationship due to an error or a "contraceptive malfunction". It depends on both the "personal circumstances" and "psychological make-up" of the woman concerned, he concluded.

But Mr. Justice Horner did find that the absence of exceptions to the general prohibition on abortion in cases of Fatal Foetal Abnormality and pregnancies arising out a sexual crime up to the point where the foetus becomes capable of existing independently of the mother, violates Article 8 of the Convention.

On Fatal Foetal Abnormality, Mr. Justice Horner emphasised that there is no life to protect because the foetus cannot survive independently outside the womb. He also cited the lack of evidence before the Court that even a "substantial section [...] never mind a majority", of the community in Northern Ireland requires a mother to carry such a foetus full term.

On pregnancies arising out of a sexual crime, Mr. Justice Horner found that the law places a "disproportionate burden" on a victim of sexual crime. The law makes no attempt to balance the rights of the women:

By imposing a blanket ban on abortion, reinforced with criminal sanctions, it effectively prevents any considerations of the interests of the woman whose personal autonomy in those circumstances has been so vilely and heinously invaded. A law so framed, can never be said to be proportionate.

However he rejected the submission that serious malformation of the foetus violates Article 8, despite acknowledging  the previous recognition that the criminalisation of abortion in such cases interferes with a woman's autonomy. 

Mr. Justice Horner also held that the criminalisation of the particular categories of pregnant women does not breach Article 14, when considered together with Article 8. Moreover, he found it "strictly speaking unnecessary" to consider Article 14, given his findings under Article 8.

In respect of the relief sought by the Commission, Mr. Justice Horner expressed his intention to grant a declaration of incompatibility for three reasons.

The first reason is because the identified provisions of law are incompatible with Article 8 of the Convention in respect of those women who have to carry a foetus with Fatal Foetal Abnormalities and, or who are pregnant as a result of a sexual crime.

The second reason is twofold. One, by not making a declaration of incompatibility the Court would be abandoning the immediate future of those women. Two, these matters have not been debated by the Assembly in Northern Ireland and are unlikely to be debated in the foreseeable future.

While the third reason is because there has been no hearing on these matters in Northern Ireland which would be binding or requires the Court to revise its opinion.

The failure to record, on the face of the warrant, the decision of the Director of Public Prosecutions to proceed by way of summary trial renders the warrant bad

The High Court has ruled that the failure to record, on the face of the warrant, the decision of the Director of Public Prosecutions to proceed by way of summary trial (i.e. judge alone) is a "fatal flaw", rendering the warrant bad. 

A minor convicted of possession of controlled drugs for unlawful sale or supply challenged the validity of his detention under Article 40 of the Constitution on the basis that the warrant, on foot of which the minor was committed to prison, fails to record the decision of the Director that the matter be tried summarily.

Mr. Justice Seamus Noonan, in his written judgment, stated that it is not in dispute that an accused is brought before the District Court on foot of a charge sheet. Or that the accused cannot know the form of trial (i.e. summary or indictable) until the Director's decision has been conveyed to a District Court judge. It is "settled law" that the Director alone decides the venue, subject to the District Court judge determining that the offence is minor. Indeed, the trial cannot proceed until the Director invokes the relevant jurisdiction.

It seems to me beyond argument that if the Director has determined that the accused be tried by jury, the District Judge cannot embark on a summary trial and, were he or she to do so, any resultant order would be quashed for the asking. That can be the only reason that in such circumstances the District Judge has no jurisdiction to try the accused. I cannot see how any other construction is possible. It must follow as a matter of logic that if the Director has made no decision one way or the other equally the District Judge has no jurisdiction.

Paraphrasing precedent, Mr. Justice Noonan described the decision of the Director as an "essential ingredient to the exercise of that jurisdiction". In the absence of such a decision by the Director there is simply no jurisdiction vested in the District Court.

Therefore Mr. Justice Noonan concluded that the failure to record, on the face of the warrant, the decision by the Director to proceed by way of summary trial renders the warrant bad. 

Breath specimen printouts must be produced in both English and Irish to comply with the law

The High Court has ruled that breath specimen printouts must be produced in both English and Irish in order to comply with the Road Traffic Act 2010 and the (Prescribed Form and Manner of Statements) Regulations 2011 (S.I. 541/2011).

The case was referred to the High Court from the District Court by Judge Conal Gibbons.

On April 21st, 2014, Mihai Avadenei was stopped on Wolfe Tone Quay in Dublin by Gardai operating a speeding check because he was doing 80 kilometers in a 50 kilometer per hour zone. Using the Drager Alcotest apparatus Mr. Avadenei was asked to provide a breath specimen for the presence of alcohol, which he failed.

At Store Street Garda Station Mr. Avadenei provided another breath specimen using the Evidenzer Irl apparatus. The Evidenzer Irl apparatus produces a document which is tendered as a certificate in court for what would otherwise be hearsay. During cross-examination Judge Gibbons heard that the only document produced by the Evidenzer Irl was in English only, despite the fact the apparatus could produce the same document in Irish.

At the conclusion of the Prosecution's case, solicitor for Mr. Avadenei submitted that there was no case to answer because the document was not a duly completed statement as there was no equivalent in Irish.

After the case was adjourned until a later date to allow for written submissions, Judge Gibbons accepted that the document, purporting to show the concentration of alcohol in the breath of Mr. Avadenei, was not a duly completed statement.

Arising from the foregoing, Judge Gibbons asked the High Court whether he was entitled to hold that the document was not a duly completed statement within the meaning of section 13 of the 2010 Act.

(i) On the facts so found, was I entitled to hold that the document purporting to show the concentration of alcohol in the breath of [Mr. Avadenei] is not a "duly completed" certificate within the meaning of s[ection] 13 of the Road Traffic Act 2010 and S.I. 541/2011, namely the Road Traffic Act 2010 (s.13) (Prescribed Form and Manner of Statements) Regulations 2011? 

Mr. Justice Seamus Noonan found that there are two lines of authority with regard to defective certificates in drunk driving cases:

The first can be said to arise in cases where certificate evidence is sought to be adduced in circumstances where there has been a technical error in the completion of the relevant certificate which doe not breach a mandatory statutory provision and does not result in any misleading and thus prejudice to the accused.

The second line of authority with regard to defective certificates holds that:

[...] where the relevant statute mandates the adoption of a particular procedure, a failure to adhere to that procedure will deprive the relevant certificates of any evidential value irrespective of whether or not the accused has been in any way misled or has suffered any prejudice as a result.

In the case of Mr. Avadenei, Mr. Justice Noonan took the view that the certificate falls into the second line of authority and, therefore, has no evidential value and cannot be admitted in court.  

EW: The Data Retention and Investigatory Powers Act is inconsistent with the right to privacy and protection of personal data in the absence of a national access regime protecting those rights under the EU Charter of Fundamental Rights

The Divisional Court of the High Court has ruled that section 1 of the Data Retention and Investigatory Powers Act 2014 is inconsistent with Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

David Davis MP and Tom Watson MP, among others, challenged the validity of section 1  of the Act and the Data Retention Regulations 2014 as being contrary to Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and, or, Article 8 of the European Convention on Human Rights.

Article 7 of the Charter protects the right to respect for private and family life. This right is also covered by Article 8 of the Convention. Article 8 of the Charter provides for the right to the protection of personal data.

The Act was a response to the Digital Rights Ireland judgment. The invalidation of the Data Retention Directive put the legal foundation for requiring retention of communications data in doubt. Some communications service providers expressed the view that there was no legal foundation to keep communications data and indicated that any data retained under the 2009 Regulations would be deleted.

The Court found that legislation providing a general data retention regime for communications data infringes Article 7 and 8 of the Charter, unless the legislation is accompanied by an access regime on a national level that provides adequate protection for the rights under the respective articles:

The solution to the conundrum, in our view, and the ratio of Digital Rights Ireland, is that legislation establishing a general retention regime for communications data infringes on Article 7 and 8 of the EU Charter unless it is accompanied by an access regime (laid down at national level) which provides adequate safeguards for those rights.

The Court awarded a Declaration stating that section 1 of the Act is inconsistent with the Charter for two reasons. One, the Act does not lay down clear and precise rules providing for access to, and use of, communications data. Two, access to the data is not made dependent on a prior review by a court or an independent administrative body.

However the Court disapplied section 1 of the Act, suspending the Order until March 31st, 2016. The Order disapplying section 1 applies to the extent that it permits access to retained data in the two respects set out in the Declaration.

CJEU(J): The Outright Monetary Transaction programme does not exceed the powers of the European Central Bank in relation to monetary policy or breach the prohibition on monetary financing of EU Member States

The Court of Justice of the European Union has ruled that the Outright Monetary Transaction programme does not: (i) exceed the powers of the European Central Bank in relation to monetary policy; (ii) infringe the principle of proportionality, or; (iii) breach the prohibition of monetary financing of EU Member States. 

On September 6th, 2012, the European Central Bank issued a press release announcing that it had adopted certain decisions concerning the Outright Monetary Transaction programme. The Programme permits the European System of Central Banks to purchase government bonds of Member States on the secondary market subject to certain conditions: (i) the States concerned must participate in a financial assistance programme of the European Financial Stability Facility or the European Stability Mechanism; (ii) transactions would focus on the shorter part of the yield curve; (iii) quantitative limits would not be set in advance; (iv) the European Central Bank would receive the same treatment as a private creditor, and; (v) liquidity would be fully sterilised.

The case originated in Germany, where a number of concerned parties brought a case before the Federal Constitutional Court against the Federal Government. The parties argued that the Programme: (i) is not covered by the mandate of the European Central Bank and breaches the prohibition on monetary financing of Member States, and; (ii) that those decisions breach the principle of democracy, which is enshrined in German Basic Law.

For the first time in its history, the Federal Constitutional Court requested a preliminary ruling from the Court of Justice.   

In view of the Programme's objectives and the instruments provided for achieving those objectives, the Court found the Programme falls within the monetary policy.

First, the Programme contributes to achieving the objectives of the monetary policy by seeking to preserve the singleness of that policy.

Second, the Programme is likely to preserve the singleness of the monetary policy and contribute to maintaining price stability - its primary objective.

The Court found that the ability of the ESCB to influence price developments through its monetary policy decisions largely depends on the transmission of the impulses. The impulses are sent out by the ECB across the money market to various sectors of the economy. Thus, if the monetary policy transmission mechanism is disrupted, it would likely render the decision of the ESCB ineffective in a part of the Euro area. This would undermine the effectiveness of the measures adopted by the ESCB, affecting its ability to guarantee price stability.

The Court concluded that a monetary policy cannot be treated as equivalent to an economic policy simply because the monetary policy is likely to have indirect effects on the stability of the Euro area. The fact that Programme is made conditional upon full compliance with the European Financial Stability Facility or the European Stability Mechanism does not change that conclusion.

The Programme, the Court held, does not infringe on the principle of proportionality for three reasons.

The first reason is, considering the economic conditions described by the ECB in the press release in September 2012, the ESCB could take the view that the Programme was appropriate for the purpose of maintaining price stability.

The second reason is, in view of the conditions that would apply in the event of the Programme being implemented, it does not manifestly go beyond what is necessary to achieve those objectives.

The third reason is because the ESCB considered the various interests in question in order to prevent disadvantages from arising. Those disadvantages are manifestly disproportionate to the Programme's objectives.

The Court held that the prohibition on monetary financing does not prevent the ESCB from adopting or implementing the Programme under conditions that do not result in intervention by the ESCB as having the same effect as that of a direct purchase of bonds from public authorities and bodies member states.

Moreover, the prohibition does not preclude the possibility of the ESCB purchasing bonds from creditors previously issued by that state.

However the Court warned that in purchasing government bonds on the secondary market, "sufficient safeguards" must be put in place to ensure that the Programme does not "fall foul" of the prohibition.

Three safeguards were put forward by the ECB to the Court. The first safeguard, contained in the draft decision and draft guideline, indicates that the Governing Council will be responsible for deciding on: (i) the scope; (ii) the start; (iii) the continuation, and; (iv) the suspension of the intervention envisaged by the Programme on the secondary market. The second safeguard, the ESCB intends to ensure the observation of a minimum period between the issue of security on the primary market and its purchase on the secondary market. While the third safeguard, the ESCB intends to refrain from making prior announcement about either its decision to: (i) carry out such purchases, or; (ii) the volume of purchases envisaged.

UK: The policy of indefinite retention of DNA profile, fingerprints and photographs of a person convicted of a recordable offence is compatible with the right to respect for private life under the European Convention on Human Rights

The Supreme Court has ruled that the indefinite retention of the DNA profile, fingerprints and photographs of a person convicted of a recordable offence is compatible with Article 8 (right to respect for private life) of the European Convention on Human Rights.

Fergus Gaughran was arrested on the morning of October 14th, 2008, for driving with excess alcohol. Mr. Gaughran later pleaded guilty to the offence at Newry Magistrates Court. He was fined and disqualified from driving for twelve months.

On the day of the arrest, the police took Mr Gaughran's fingerprints, photographs and "non-intimate" DNA sample with his full consent.

In January 2009, Mr. Gaughran's solicitor wrote to the Police Service claiming that the retention of the DNA profile, fingerprints and photograph is unlawful. The Police Service replied in February, 2009, stating that the consequences of S and Marper -v- United Kingdom judgment was a matter for the government of the United Kingdom. However following the devolution of policing in 2010, the DNA retention policy became an issue for the Northern Ireland Minister for Justice.

Mr. Gaughran was granted leave to apply for judicial review in April 2009. The case was heard by Lord Justice Girvan in the High Court, which held that the infringement of Article 8 by the Police Service was justified.

The question before the Supreme Court was whether the policy of the Police Service to retain indefinitely the DNA profile, fingerprints and photographs of a person convicted of a recordable offence is a breach of the right to respect for private life.

The lack of reference to the DNA sample in the question is because legislation is due to come into force in Northern Ireland that means DNA samples must be destroyed within six months of being taken.

The onus in this case was on the Police Service to satisfy the Court that its policy is consistent with the law, justifiable, and satisfies the principle of proportionality.

Lord Clarke agreed with Lord Justice Girvan that S and Marper only considered the position of those suspected of a crime:

There is no indication that the Strasbourg court was considering the position of those who had been convicted at all. I agree with [Lord Justice] Girvan's conclusion at para 42 that Strasbourg was not saying that a blanket policy of retaining the data of convicted persons would be unlawful.

On the policy of the Police Service indefinitely retaining biometric data, Lord Clarke found that there was no jurisprudence to support that it was not justified.

Lord Clarke concluded that the balance struck between the competing public and private interests by authorities in Northern Ireland, and England and Wales, is proportionate and justified:

Taking account of all relevant factors I would hold that the balance struck by the Northern Irish authorities, and indeed in England and Wales, is proportionate and justified.

Moreover, Lord Clarke concluded that the benefits of retaining DNA profiles of a person who are convicted outweighs the right to respect for private life under Article 8.

Lord Kerr, however, in his dissenting opinion, concluded that the indefinite retention of DNA profiles, fingerprints and photographs of a person convicted of recordable offences in Northern Ireland is incompatible with the right to respect for private life.