Reasons, and the reasons for giving Reasons.

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This is a case report on the Supreme Court judgment of:

Kathleen Connelly v. An Bord Pleanala

(Clare County Council and McMahon Finn Wind Acquisitions Ltd – Notice Parties)

Full judgment here: Kathleen Connolly v ABP Supreme Court

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The Parties

Kathleen Connolly was originally the applicant. She was successful in overturning the decision of An Bord Pleanala (ABP) to reverse the refusal of planning permission by Clare County Council and grant planning permission to McMahon Finn Wind Acquisitions Limited (the developer).

ABP appealed this decision of the High Court (Barrett J.) and because of its extreme public importance, the decision “leapfrogged” to the Supreme Court, without having to first go through the Court of Appeal.

 

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The Facts

The developer applied for planning permission for six wind turbines at Coor West, Shanvogh, County Clare. Clare County Council refused permission, and the developer appealed this refusal to the ABP. As it seems to do with alarming frequency, the ABP rejected its inspector’s recommendation to refuse permission and dismissed a number of the inspector’s concerns, particularly his concern over the significant impact that the wind farm would have on Carrowmore Point to Spanish Point and Islands Special Area of Conservation and on the Mid Clare Coast Special Protection Area.

The ABP issued the developer with a Section 132 Notice, which essentially calls for a Natura Impact Statement (NIS). The developer complied with this, and the ABP thereafter concluded that it had sufficient information before it to conduct an Environmental Impact Assessment (EIA) and an Appropriate Assessment (AA), that it had done so, and that it was satisfied that it could grant planning permission.

The Arguments

In essence the High Court had found against the ABP for providing inadequate reasons for its decision. The High Court agreed with Ms Connelly that although the ABP had carried out an AA and an EIA, it had had not provided sufficient reasons for its decision granting permission.

The High Court said the following:

” … what is required of An Bord Pleanala are complete, precise and definitive findings and conclusions of a degree of specificity sufficient that a party minded to seek judicial review of such determination can turn readily to the particular observations, reasoning or conclusions in, say, a particular report or text to which reference is made, rather than simply being told that somewhere in an ocean of documentation is some stream of logic that An Bord Pleanala favours. And if it is all of a particular report or text that is being relied upon by An Bord Pleanala, so be it, but let it be identified properly, so that the findings and conclusions reached in its determination are sufficiently complete, precise and definitive as to enable

(i) an interested party meaningfully to assess the lawfulness of that determination and

(ii) a court to undertake a ready and comprehensive judicial review of same.

   (my bold)

Judge Barrett was not satisfied that the decision of the ABP met this standard and concluded that Ms. Connelly could not readily satisfy herself as to whether or not to bring a challenge against the ABP’s decision to grant consent to the developer.

The ABP argued that the High Court had set the bar too high when it came to the adequacy of reasons. In its appeal, the Board argued that if the High Court judgment was upheld, that this would have “serious consequences” for how the ABP would in future have to deal with making its decisions. In other words, the ABP was horrified at the thought of having to provide clear and precise reasons for its decisions, particularly as this would involve scientifically verifiable facts and conclusions.

It is important to point out that the High Court did not consider the Kelly judgment regarding the specific requirements which must be satisfied when it carries out an AA in order to give the Board jurisdiction to grant a permission. Judge Barrett was focused on the general duty to provide reasons:

“…when it comes to providing, again pursuant to s.l72(1J) “the main reasons and considerations on which the decision is based”, the court considers that the summary form of the text of An Bord Pleanala’s decision in this regardimparts next to no information to an affected party-here [Ms. Connelly]. She is not given a proper understanding of why the decision has been reached- and if she wants to seek a judicial review of the decision within the tight time constraints applicable, the generic form of the reasoning employed by An Bord Pleanala has the effect that she cannot properly assess matters without a detailed consideration of the underlying documentation and/or costly expert assistance.”

 

The Decision

Whilst it is true that the ABP lost its appeal, it actually lost on a very narrow point of law. The Supreme Court rejected most of the High Court’s findings. However, having said that, it was mostly on findings of fact that the High Court was reversed. The Supreme Court echoed Judge Barrett’s pronouncements on the reasons for giving reasons. It simply disagreed with his application of the law on the facts before him. This is very important, because it is the principle of law that is the precedent going forward, and now this is a Supreme Court precedent.

Giving the court’s judgment, the Chief Justice, Mr Justice Frank Clarke, said the High Court had imposed “too exacting a standard” on the Board in respect of the obligation under national law to give reasons.

The law on reasons does not require that one agree with the reasons given but only entitles an interested part to know what the reasons were. The Supreme Court was satisfied that the reasons given by the ABP were adequate to enable any interested party know why the Board had made its decision, and also to decide whether there were any grounds to challenge the decision. The Supreme Court also held that there was sufficient detail to allow any interested party to trace the materials that ABP had considered in coming to its decision.

In other words, as previously mentioned, the Supreme Court is agreeing with Judge Barrett’s (i) and (ii) quoted above, but on the facts, and disagreeing with Judge Barrett,  it is saying that the ABP satisfied the requirements of (i) and (ii).

This is not great news on a factual basis as the Supreme Court is saying that the quagmire of impenetrable levels that poses as the ABP website is sufficient for the average person to find information. In truth you need a B.Sc in Computer Science to make any sense of that infuriating site.

“Any materials can be relied on as being a source for relevant reasons subject to the important caveat that it must be reasonably clear to any interested party that the materials sought to be relied on actually provide the reasons which led to the decision concerned. In that regard, it seems to me that the trial judge has, put the matter much too far. The trial judge was· clearly correct to state that a party cannot be expected to trawl through a vast amount of documentation to attempt to discern the reasons for a decision. However, it is not necessary that all of the reasons must be found in the decision itself or in other documents expressly referred to in the decision. The reasons may be found anywhere, provided that it is sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning. If the search required were to be excessive then the reasons could not be said to be reasonably clear.

But it must also be noted that, in at least certain types of applications for planning consent, the issues involved may themselves be complex. The reasons put forward either in favour or against a proposed project may involve detailed scientific argument or complex calculation. If such issues arise then it will inevitably be the case that the reasons themselves may be complex and scientific. Where a party wishes to engage with the planning process in a case which raises complex issues of that type (whether at the stage of the application for permission or in the context of mounting a court challenge to a permission granted) then it is inevitable that the party concerned will also have to engage with such matters if any part of their opposition or challenge derives from such complex or scientific questions. It could form no part of a legitimate complaint, based on an argument as to reasons or the lack thereof, to suggest that the reasoning was unduly complicated or scientific if the issues which arose in the context of the grant or refusal of permission required engagement with such issues.”

What Clarke CJ seems to be saying is that if an issue is very complex in its nature, and that requires a high level of expertise or knowledge in that area, the layperson applicant cannot complain that the reasons provided by the ABP are too complicated to understand, as that is the nature of the beast. However, when the ABP relies on documentation or outside sources of reference, these must be reasonably accessible to the concerned citizen who is considering whether to challenge the ABP’s decision.

It might be argued that the Supreme Court has put too high a premium on the average person’s computer skills, and has ignored the practice of government departments in hiding documentation under multiple layers of electronic camouflage. It also says that once you find these camouflaged documents, you have to pay an expert a fortune to decipher them for you. This is hardly the scenario that was contemplated by the Aarhus Convention and I would suggest that the Supreme Court missed a golden opportunity to lay down a benchmark concerning the type and accessibility of information that should be provided to citizens seeking to exercise their legal rights.

The Supreme Court was satisfied, on the facts, that the ABP’s decision, and materials referred to in that decision, provided adequate information for any interested party to assess whether an appropriate EIA was carried out. Chief Justice Clarke reversed the High Court findings that the reasons were not adequate to demonstrate an EIA had been carried out:

“The law on reasons does not require that one agrees with the reasons given. In a challenge based on allegedly inadequate reasoning, the law only entitles an interested party to know what the reasons were. Someone reading the Decision is informed as to why the Board ultimately came to be satisfied in respect of each of the aspects of the Inspector’s report which were negative. It is no part of the function of this Court in this case to review whether there was a sustainable basis for any of the views expressed by the Board in that regard let alone to second guess the judgment of the Board as to whether it reached the correct conclusions. However, any interested party knows why the Board came to a different view from the Inspector and has attention drawn, where appropriate, to any specific materials which played an important part in persuading the Board to come to that view.

In my view, an interested party would, as a result of reading the Decision in conjunction with the Inspector’s report, together with documents (such as, for example, the Noise and Shadow Flicker Monitoring Report referred to earlier) which are either expressly referred to or by necessary inference must be taken to form part of the reasoning, have sufficient information both to inform themselves as to why the Board ultimately came to the conclusions which it did and also to consider whether there was any basis for challenging the conclusions which the Board reached. In my view, the trial judge imposed too exacting a standard in respect of reasons. Just as, at one extreme, the modern law on reasons does not permit a decision maker to engage in a simple box ticking exercise so also, at the other extreme, the law does not require a level of reasoning which goes beyond that required to afford an interested party reasonable information as to why the Decision was made and whether it can be challenged. In those circumstances I would hold that the reasoning of the Board in this case was adequate. Insofar as the High Court judgment held otherwise I would reverse the judgment.”

However, the Chief Justice noted that “different considerations” applied to the complaints about the AA which had been carried out by the Board.

Here the requirements on the ABP were far more exact and demanding. Before looking at those, the Supreme Court agreed with the High Court that no reasons could be found anywhere in the materials to suggest why the Board decided that a full AA was required. However, the High Court had also correctly held that, provided the AA met the necessary requirements, the failure to give adequate reasons for requiring a full AA was not itself sufficient to render a permission invalid.

But an AA itself goes much further than that. A key requirement of a sustainable AA must involve identifying all aspects of the development project which might affect a protected site and must identify “complete, precise and definitive” findings and conclusions that “no reasonable scientific doubt remains” about the absence of identified potential detrimental effects.

This went far beyond the issue of merely giving adequate reasons:

As noted earlier this is not, strictly speaking, a reasons issue. The issue concerns the validity of an AA decision which gives jurisdiction to the Board to grant permission. It may involve reasons, and when it does those reasons must be given in accordance with the established jurisprudence. But there must also be complete, precise and definitive findings and conclusions which sustain the ultimate conclusion. It is against that backdrop that it is necessary to assess the Decision to determine whether it can be said to contain the sort of scientific findings which the CJEU jurisprudence requires.

In that context it is important to note that there are, in reality, two different stages to the process which must take place in an appropriate sequence. First there must be an AA and an appropriate decision must be made as a result of the AA in order that the Board have jurisdiction to grant a consent. Thereafter, assuming the Board has jurisdiction, the Board may go on to consider whether it should, in all the circumstances, actually grant permission and, if so, on what conditions.

There is no reason why the analysis and conclusion of the Board in respect of both of those matters cannot be contained in the one document. That is, of course, what happened here. The Decision sets out the analysis and conclusion both in respect of the AA and also in respect of the general planning process including the EIA. Once a single document dealing with both matters contains all appropriate information (including reasons) then the fact that all matters are dealt with in a single document even though relating to what are, technically, two different decisions, creates no difficulty. I would, however, recommend that the Board take care in ensuring that there is reasonable clarity as to which parts of such a document relate to an AA and which parts relate to more general planning considerations. This is not a formal requirement and a decision of a planning authority (including the Board) will not be invalid provided that the reasonable observer would be able to understand with reasonable clarity what the Board was deciding and why. However, it might well make the task of all concerned a lot easier if the Board were to clearly distinguish, in any document recording its decision, those aspects of the document which are concerned with an AA from those which are concerned with more general planning considerations.

In any event there is no doubt but that the Decision reaches the appropriate conclusion in respect of the AA. But as already noted that is not sufficient. There must be found either in the decision itself or in other materials which clearly must be taken by express reference or by necessary inference to identify the reasons for the ultimate determination, the sort of complete, precise and definitive findings which justify that conclusion.”

(my bold)

 

On the facts the Supreme Court found that neither the ABP’s decision, nor any materials forming part of the process leading to the decision, contained the sort of “complete, precise and definitive findings” to underpin its conclusion that no reasonable scientific doubt remained concerning the absence of any identified potential detrimental effects on a protected site.

As these findings were a necessary pre-condition to the Board having jurisdiction to grant planning permission, the decision of the ABP to grant consent was invalid.

 

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Commentary

This is not new law. I wrote about this stringent requirement over three years ago. There must be complete, precise and definitive findings and conclusions which sustain the ultimate conclusion. In other words, you cannot fudge the picture and portray your opinions as fact. No, here you must have scientifically verifiable facts which ultimately can only lead to the one conclusion, which is the one you must accept, even where it does not tally with the wishes of your political masters.

The fact of the matter is that this requirement has been routinely ignored by the ABP and now it has been caught out. Hopefully it has learnt its lesson. But this is too late to reverse the multitude of very questionable decisions that the ABP has made on the back of an AA that it supposedly carried out.

Posted in An Bord Pleanala; appeal; interested parties, High Court; Judicial Review; Appeal on the merits; judicial discretion, Strategic Environmental Assessment (SEA); Grid 25; North-South Interconnector | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , | 3 Comments

Gratitude.

Truly inspirational. I wish you great success in your efforts to support a fabulous cause.

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It is the eve of our open garden weekend and there are still lots of things to tend to. There are floors to sweep, furniture to move, the café area to organize further and many other last minute preparations.

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Despite this we decided to walk around the garden for a while and take a few photos for sharing with you all here. We are so fortunate to have a place of our own; a garden full of food plants and beautiful flowers to delight us and all the wildlife that we share it with. It makes us feel tremendous gratitude.

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Many millions of people around the world are not so fortunate. They have had to flee their homes and sometimes even their countries and it is because of this we decided to open our garden and home again this year in Support of Amnesty International Ireland and their #Iwelcome Refugees…

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The Courts of Ireland – take 2

judge asleep

Many thanks indeed for the loads of helpful comments and suggestions to the first draft of a chapter I am writing which seeks to introduce the Irish legal system to people who know little or nothing about Irish law.

I have done my best to implement most of the suggestions. Some of the suggestions asking for more detail on particular topics could not be fully accommodated as this is simply an introductory chapter. It would not do if the chapter was two hundred pages and took up half the book!

I enclose the second draft. Again, comments and suggestions would be most welcome.

 

Introduction: The Hierarchy and Jurisdiction of the Courts of Ireland

Learning Outcomes

At the completion of this chapter, the reader should know and understand the following:

Ø  Core legal concepts that are often used in this book.

Ø  The difference between the criminal courts and the civil courts.

Ø The courts system in Ireland and what the different courts can and cannot do.

Ø The people that work in the courts system.

 

The contents of this book will be easier to understand if you first read this short explanation on how the court system works in Ireland and become familiar with the following concepts:

 

Hierarchy

Generally, the word ‘hierarchy’ means any system of grades or ranks, in which some are superior to others. What is meant by the hierarchy of courts is the position of the courts with reference to each other, starting at the bottom all the way to the top.

This hierarchy is very important to understand when you are comparing judgments of two different courts and they disagree with each other. The position of the court on the “pecking order” will usually determine which judgment you must follow.

There is a more detailed diagram later on in this chapter but the basic hierarchy of Irish courts from top to bottom is: Supreme Court – Court of Appeal –  High Court – Circuit Court – District Court.

 

Precedents

Previous decisions (judgments) of the superior courts (High Court; Court of Appeal; Supreme Court) which contain a legal principle which may, in a later case raising the same point of law, be referred to and which may influence the court’s decision. This is a crucial concept in our system of law, which is a common law system where our law comes from many different sources, as opposed to a codified system where everything must be written down before it becomes law.

 

Bind a court

Where a court must follow a previous decision or precedent, even if it does not agree with that decision. Lower courts are therefore ‘bound’ by the decisions of superior courts. Sometimes judges in lower courts might have a little grouse when they have to follow a judgment they do not like, but follow it they must.

 

Adversarial

The Irish legal system is predominantly adversarial, which means it is characterised by its confrontational nature. Parties directly oppose each other, and there is a “winner” and a “loser”. This is very important, as there are no “draws”: if the party bearing the burden of proof fails to win their case, they must lose.

Again this is an important concept to understand, and one that can cause confusion. Very often people cannot understand how they lost because their case seemed no worse than their opponent’s case. That is the whole point: if you bring a case to court, your case must be better than your opponent’s, or else you will lose. The same is not good enough.

A contrasting system is the inquisitorial system, where the proceedings are conducted by the presiding officer in the form of an investigation rather than a direct contest. These are found mostly in Europe, France being a well-known example.

 

 Pleadings

Formal written or printed statements delivered by litigating parties to each other, stating the allegations of fact (and sometimes their legal arguments as well) upon which the parties base their case. This ensures that nobody is caught by surprise on the day of the court hearing, as the parties have been forewarned about their opponent’s arguments and have had time to prepare a reply.

This notion of not being allowed to catch your opponent by surprise is more important in an adversarial system, where the court is not investigating, but only officiating (“refereeing”), and finally declaring a winner.

 

 Injunction

An order of the court directing a party to an action to do something (mandatory injunction) or refrain from doing something (prohibitory injunction). So for example you might get a mandatory injunction against your neighbour to replace soil he has removed along your boundary, causing it to collapse. On the other hand, you might get a prohibitory injunction against your neighbour if he tries to build something which juts onto your land. Hopefully neither of these are good examples, as you should always get on with your neighbour!

 

Burden of Proof (Onus)

The burden of proof needs to be satisfied by the person bringing the claim or laying the charge in order to be successful in that action or charge. A plaintiff in a civil action bears the onus to prove his or her claim on a balance of probabilities, whereas in criminal proceedings the State bears the onus of proving the guilt of the accused beyond a reasonable doubt.

As mentioned above, in an adversarial system where there has to be a winner and a loser, the burden of proof will determine the winner when the two sides seem to be evenly matched.

 

Indictable

An indictable offence is one which is sufficiently serious to warrant a jury trial (and heavy sentences), whereas a summary offence is one which can be heard by a judge only (often called misdemeanours in other jurisdictions) with correspondingly lighter sentences.

We do not have plea bargaining in Ireland but it might happen that a person can agree to plead guilty to a summary offence with a lighter sentence as this saves the State the time and expense of a jury trial.

 

 Acquitted

When the accused / defendant is found “not guilty” in a criminal trial.

 

Citation

A reference to an authority (for example, a reported judgment) usually in support of an argument or another judgement. For example, Gilligan v. Ireland [2013] 2 IR 745 involves the famous case of John Gilligan against Ireland. The State was represented by the Attorney General, the Minister for Justice, Equality and Defence and the Governor of Portlaoise Prison. The citation tells you that you can find the case on page 745 of the second volume of the 2013 Irish Law Reports (I.R.), as opposed to the Irish Law Reports Monthly (I.L.R.M.). You could also find this case on the internet using its electronic citation: [2013] IESC 45 (which stands for Irish Electronic Supreme Court).

Not all judgments are reported. Generally the citation for an unreported judgment will tell you the date of the decision, and the court making that decision, and perhaps the name of the judge.

 

Bar

In systems that distinguish between barristers and solicitors, the Bar generally refers to the professional collection of barristers. Many countries use the expression “Side-Bar” to refer to the professional collection of solicitors, but this does not seem to be the case in Ireland.

 

Jurisdiction

Jurisdiction refers to the extent or territory over which legal or other power extends. A decision of an Irish court would not affect an American citizen, unless that American was physically present in Ireland, because then they would be subject to Irish law. This is called “territorial jurisdiction”, and it is this type of jurisdiction that most people know.

There are however other types of jurisdiction. Substantive jurisdiction refers to the particular types of case that a court is entitled to deal with. When speaking about civil and criminal jurisdiction therefore, we are talking about what civil and criminal courts can and cannot do, and where they can and cannot do it. There are also specialised courts within these civil and criminal jurisdictions. For example, the Commercial Court is really a division of the High Court, but deals with the following types of cases:

  • Disputes of a commercial nature between commercial bodies where the value of the claim is at least €1 million;
  • Proceedings under the Arbitration Act 2010 with a value of at least €1 million;
  • Disputes concerning intellectual property;
  • Appeals from or applications for judicial review of regulatory decisions;
  • Proceedings in connection with any function of the Registrar under the Cape Town Convention or the Aircraft Protocol as defined in the International Interests in Mobile Equipment (Cape Town Convention) Act 2005;
  • Other cases a judge of the Commercial Court considers appropriate (which have included judicial review of planning permission decisions, for example).

There is also a type of jurisdiction that can best be described as “quantum jurisdiction” and this is where certain civil courts are limited from hearing cases above a certain money value and certain criminal courts from hearing certain cases or from sentencing above a certain number of years and/or the amount of a fine.

For example, the different civil courts can hear cases for compensation of certain amounts. These are:

  • in the District Court claims up to €15,000;
  • in the Circuit Court claims between €15,000 and €75,000;
  • in the High Court claims above €75,000.

Similarly, in our criminal law, for example, the following types and categories of offences must be heard by the Central Criminal Court (which is the High Court with its criminal law hat on) sitting with a judge and jury:

  • Treason;
  • encouragement or concealing knowledge of treason;
  • offences relating to the obstruction of government and obstruction of the President;
  • murder, attempted murder, conspiracy to murder;
  • piracy (the fellow with the peg leg and the parrot on his shoulder, as opposed to illegally downloading movies);
  • offences under the Genocide Act, 1973;
  • rape, aggravated sexual assault and attempted aggravated sexual assault under the Criminal Law (Rape) (Amendment) Act, 1990.

 

A court of law must be distinguished from other tribunals

Article 34.1 of the Constitution provides that “justice” cannot be administered in any place other than a court which has been established in accordance with the Constitution, presided over by a properly appointed judge. However, Article 37.1 also authorises persons other than judges or courts to exercise “limited” functions and powers of a judicial nature, except in criminal matters.

It is therefore very important to determine what is meant by Article 34.1 read with Article 37.1. So where a person or tribunal other than a duly appointed judge engages in the administration of justice, does that person or tribunal act in violation of the Constitution, and are their decisions invalid? The quick answer is yes they will be, unless these powers and decisions are “limited” in the sense envisaged by Article 37.1. In other words, are those powers being exercised contrary to Article 34.1, and if so, are they saved by Article 37.1?

The question is also important because it determines what issues are capable of being dealt with by the courts, what are called justiciable matters, and those which are not, which can be described as non-justiciable matters.

This is a tricky question which is difficult to answer conclusively as each case will need to be looked at on its own before deciding. However, in the case of McDonald v Bord na gCon (No 2) [1965] IR 217, the following five characteristics of an administration of justice within the meaning of Article 34.1 were listed:

  1. A dispute or controversy as to the existence of legal rights or a violation of the law.
  2. The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty.
  3. The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties.
  4. The enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgement.
  5. The making of an order by the court which as a matter of history is an order characteristic of the courts in this country.

This list is a useful, although not definitive, guide as to what constitutes a justiciable dispute or what constitutes an exercise of judicial power, as opposed to a purely administrative power.

 

Civil courts and Criminal courts

It is impossible to understand the structure and functioning of courts without understanding the distinction between a criminal case and a civil case, and the functions and powers of both courts.

The nature of the dispute and the mechanisms used are the critical differences between the two systems.

Civil procedure involves private law disputes, for example personal injury claims (tort) or claims for breach of contract, where one of the parties to the dispute initiates the proceedings. Criminal procedure deals with the processing of some activity regarded as a wrong against society or the public in general, and is thus a public law matter. Criminal prosecutions are generally initiated by the Director of Public Prosecutions or the Garda Síochána. It is possible for individuals to initiate private prosecutions, but these are rare.

Generally the purpose of a civil claim is to seek compensation (damages) or some specific relief, like an injunction, whereas the aim of criminal proceedings is to punish wrongdoers. For example, if the accused is found guilty and sentenced to a fine rather than imprisonment, that fine is paid to the State and not to the victim of the crime, as the criminal law seeks to protect society as a whole rather than the individual.

 

Civil proceedings are generally initiated by pleadings, whilst criminal proceedings are generally initiated by a summons and indictment (“charge sheet”). In civil cases we speak of a plaintiff and a defendant, or perhaps applicant and respondent, whereas in criminal cases we speak of the prosecution and a defendant (“the accused”).

In other words, it is not so much the type of wrongful act that distinguishes the civil from the criminal, but the consequences of that wrongful act. If the wrongful act leads to criminal charges, it is governed by criminal law but if it leads to the wrongdoer being sued for damages or having an injunction taken against him or being ordered to perform on a contract, that is governed by the civil law. Therefore it is possible for the same act to lead to both criminal charges and a civil action. For example, if a driver went through a red traffic light and smashed into another car, the driver might be charged in the criminal court with dangerous driving, but might also be sued in the civil court by the owner of the damaged car for compensation. There was only one act, but two types of litigation which ended up in different courts with different questions being asked.

The final distinction to be made between civil and criminal proceedings relates to the burden of proof, which describes the level of evidence needed to secure a judgement or a conviction. In civil cases, any particular issue as well as the overall question of liability is determined on a balance of probabilities, which involves comparing the versions of the plaintiff and defendant. In a criminal case all issues and the question of guilt must be proved beyond reasonable doubt, a higher standard of proof which needs to convince the reasonable person not that the accused is guilty, but rather that there is no reasonable chance that the accused is innocent.

 

The Organisation of the Courts

courts 

 From: The Irish Courts System – courtesy of the The Courts Service

 

The District Court

The District Court consists of a President and sixty three ordinary judges. For legal purposes Ireland is divided into twenty four districts with one or more judges permanently assigned to each district and the Dublin Metropolitan District. In criminal law the venue of a District Court case usually depends on where an offence was committed or where the defendant was arrested. In civil law the venue will depend on things like where the contract was created or where the defendant resides or carries on business.

The business of the District Court can be divided into four categories:- criminal, civil, family law and licensing. The District Courts are the workhorses of the system, and they hear an enormous number of cases, including things like actions taken under the Control of Dogs Acts, applications for citizenship, applications to amend birth and marriage certificates, and applications under the Environmental Protection Act, 1992 (for noise reduction orders).

The District Court is a court of local and limited jurisdiction. This means that it is restricted as to which cases it can hear and/or decide. As a general rule, a District Court cannot hear a case that has been commenced in a different District Court area. It is also restricted to hearing cases where the damages or compensation sought do not exceed a certain amount (at the moment up to €15,000), and in criminal matters it is generally restricted to summary offences.

A summary offence does not entitle the accused person to a trial by jury, and carries a maximum punishment of twelve months’ imprisonment and/or a monetary fine. An example would be driving a motor vehicle without insurance. An indictable offence entitles the defendant to a trial by jury, unless the accused agrees to a summary trial where the court is of the opinion that the offence is minor. In such cases, the maximum punishment is two years’ imprisonment or twelve months’ imprisonment for one offence and/or a monetary fine. An example here would be assault.

In serious criminal cases, for example murder or rape, the District Court may conduct a preliminary hearing to decide whether there is sufficient evidence to commit the accused for trial by jury before a higher court.

 

The Circuit Court

The Circuit Court consists of the President and thirty-seven ordinary judges. The President of the District Court is ex officio (by virtue of their office) an additional judge of the Circuit Court. The country is divided into eight circuits with one judge assigned to each circuit except in Dublin where ten judges may be assigned, and Cork where there is provision for three judges. There are twenty-six Circuit Court offices throughout the Republic.

The work of the Circuit Court can be divided into four main areas: civil, criminal, family law and jury service.

The Circuit Court is also a court of local and limited jurisdiction. This means that it is restricted as to which cases it can decide. As a general rule, a Circuit Court in one county cannot hear a case that has been commenced in another county.

Civil cases in the Circuit Court are tried by a judge sitting without a jury and are restricted to cases where the damages or compensation sought do not exceed a certain amount (between €15,000 – €75,000 at the moment).

There is a right of appeal against the decision of the judge to the High Court, and a Circuit Court judge may consult the Supreme Court on points of law. An unsuccessful party in a District Court civil case can appeal to the Circuit Court, which will rehear the case and may substitute its own opinion.

In criminal matters, the Circuit Court Judge sits with a jury of twelve. The criminal jurisdiction is exercised by the judge of the Circuit in which the offence was committed or where the defendant (‘accused’) resides or carries on business or where the defendant was arrested. However, the Circuit Judge may transfer a criminal trial from one part of his/her Circuit to another. On application by the Director of Public Prosecutions or the accused, the Circuit Judge may, if satisfied that it would be manifestly unjust not to do so, transfer the trial from the Circuit Court sitting outside of the Dublin Circuit to the Dublin Circuit Court.

 

The Court of Criminal Appeal

This court hears appeals from the Circuit Court, Central Criminal Court or a Special Criminal Court (which is a non-jury court which may be set up under Part V of the Offences Against the State Act 1939). The court consists of three judges, one from the Supreme Court and two from the High Court, with the decision of the court by majority.

 

The High Court

The High Court consists of the President of the High Court and thirty six ordinary judges. The President of the Circuit Court and the Chief Justice are ex officio additional judges of the High Court.

Normally the High Court sits in Dublin to hear original actions (cases that begin in the High Court rather than appeals from a lower court), but it also sits in the other counties during the year.

The jurisdiction of the High Court extends to all matters whether of law or fact, civil or criminal. It also has jurisdiction to hear constitutional challenges (usually by citizens) to statutes (with the Court of Appeal and the Supreme Court (in more limited cases now) having appellate jurisdiction in these matters).

The High Court can award unlimited damages.

When the High Court hears a criminal case, it sits as the Central Criminal Court and only tries serious offences such as murder or rape. It also tries cases which have been transferred from the Circuit Court to avoid trial before a local jury.

Finally, the High Court possesses supervisory jurisdiction over the inferior courts, state bodies and individuals. The High Court has the power to issue an order of:

a) prohibition, to prevent a person or body from exercising a power it does not legally have;

b) mandamus, to compel a person or body to carry out a legal duty;

c) certiorari, to investigate or challenge a person or body who has exceeded their legal powers;

d) habeas corpus, to require the person in custody and the detainer to come before the High Court to explain the circumstances of, and justification for, the detention.

The High Court acts as an appeal court from the Circuit Court in civil matters. The High Court has power to review the decisions of all inferior courts by judicial review. The High Court may give rulings on a question of law submitted by the District Court and may hear appeals in certain other circumstances provided by statute, i.e. in regard to decisions of the District Court on applications for bail. The High Court can review decisions of certain Tribunals of Inquiry.

 

The Court of Appeal

The Thirty-third Amendment of the Constitution established a Court of Appeal to sit between the existing High and Supreme Courts, and take over the existing appellate jurisdiction of the Supreme Court. The amendment was effected by the Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013, which was approved by the People in a referendum on 4 October 2013, and then signed into law by the President of Ireland, Michael D. Higgins on 1 November 2013.

The Court of Appeal was established on 28th October 2014 by the Court of Appeal Act 2014. The court is composed of a President and nine ordinary judges. The Chief Justice and the President of the High Court are ex officio judges of the Court of Appeal. The Court may sit in divisions of three judges. Some interlocutory and procedural applications may be heard by the President alone or by another judge nominated by the President.

The primary reason for the creation of this court was the large number of outstanding civil & constitutional law appeals from the High Court dating back in some cases to 2008. It was hoped that the new court would eliminate these court delays.

The Court of Appeal will deal with civil appeals from the High Court. It will be possible for the Supreme Court to hear appeals from the Court of Appeal where the issue involved concerns a matter of general public importance or where it is in the interests of justice that the appeal be heard by the Supreme Court. It will also be possible in exceptional circumstances for the Supreme Court to hear appeals directly from the High Court where this is in the public interest or the interest of justice.

The Court of Appeal will deal with criminal cases which were due to be heard by the Court of Criminal Appeal (now abolished). It will hear appeals against conviction and/or sentence from the Central Criminal Court, the Special Criminal Court and the Circuit Court. The appeal is not a rehearing of the case but is based on the transcript of the evidence given at the trial and is usually confined to points of law, or alternatively that the verdict was contrary to the weight of the evidence. On hearing the evidence, the Court of Appeal may exercise a number of options including allowing the appeal and acquitting the defendant or dismissing the appeal.

 

The Supreme Court

Article 34 of Bunreacht na hÉireann (the Irish Constitution) states that the courts system in Ireland will include a Court of Final Appeal. This Court of Final Appeal is known in Ireland as the ‘Supreme Court’. The Supreme Court consists of the Chief Justice and seven ordinary judges. In addition, the President of the High Court is ex officio a member of the Supreme Court. This court is located in Dublin.

The Supreme Court has the power to hear appeals from all decisions of the Court of Appeal, and it may hear an appeal from the Court of Criminal Appeal if that court or the Attorney General certifies that the decision involves a legal point of exceptional public interest. The Supreme Court may also give a ruling on a question of law submitted to it by the Circuit Court.

The Constitution provides that the President of Ireland may refer any Bill (or any provision(s) of a Bill) for adjudication to the Supreme Court, in other words the Supreme Court will decide whether that proposed law is in agreement with, or repugnant to, the Constitution. For this type of case a quorum of five judges will sit, but there will be a single (unanimous) judgment. Once the Supreme Court declares a Bill as being constitutional, that is the end of the matter, and the constitutionality of that Bill can never be challenged again. If the Court declares the Bill unconstitutional, that Bill will have to go back to the Oireachtas to repair the problems that were raised by the Supreme Court.

If a question of the permanent incapacity of the President arises, this is decided by the Supreme Court, again by five judges.

This court is known as the Supreme Court for the simple reason that it is at the top of the hierarchy of courts. It is the court of ‘final resort’.

 

Referral to the European Court of Justice (ECJ)

All domestic courts, from the lowest to the highest, are empowered by the EU treaties to refer points of EU law to the ECJ. A referral means that the court is asking for advice which it is not obliged to follow, but usually does as long as it does not offend our own Constitution. All Irish courts except the Special Criminal Court have referred matters to the ECJ. The majority of cases referred to the ECJ are civil claims originating in the High Court.

In terms of EU law, there are also instances when an Irish court must refer a matter to the ECJ. This is when a court or tribunal can make a decision ‘against which there is no judicial remedy under national law’. In other words, that decision cannot be challenged in terms of Irish law, but can be challenged under EU law. In this situation the Irish court must refer a point of EU law that is raised by the case before them to the ECJ.

The ECJ has made it clear that this does not just mean the Supreme Court (against which there is no appeal as it is at the top if the hierarchy) but any court or tribunal whose decision cannot be appealed.

It is important to realise that a judgment of the ECJ is not binding on our domestic courts, although they might follow it (it is persuasive). Rather, a judgment of the ECJ is binding on the Republic of Ireland as an EU Member State, and therefore the government of the day must take steps to ensure that a judgment of the ECJ is implemented and followed. This is usually done through legislation.

 

Judicial review

Judicial review should be distinguished from an appeal. An appeal on a point of law concerns the issue involved in the lower court’s decision, which lawyers describe as “the merits”. In other words you can appeal a decision that you think is wrong.

Judicial review, on the other hand, is concerned with the authority of the lower court or tribunal to enter into an adjudication in the first place (its jurisdiction) or the procedures followed by it in the course of the adjudication.

Put simply, judicial review involves determining whether the court or tribunal acted intra vires (within its powers) or ultra vires (in excess of, or outside, its powers) and whether it complied with the basic rules of natural justice and fair procedures. In particular it must be unbiased (nemo judex in causa sua – nobody may be a judge in his own court) and give all sides involved in the matter the chance to properly prepare their case and to be afforded an even-handed hearing allowing them to properly present their case (audi alteram partem – let the other side be heard).

In essence therefore where an appeal is looking at the substance of a decision and deciding on the merits whether that decision is right or wrong, a review is more interested in how that decision was reached.

The application for judicial review is in two stages. The first stage involves an ex parte application (where the applicant is on their own, their opponent is not notified) to a High Court judge for leave to proceed. Here the applicant is only allowed to set out the grounds on which relief is being sought. This application is granted if the judge considers that the case discloses some ground for claiming relief, although no decision on the merits will be made at that stage. The applicant must then serve notice on the other party, the respondent. The respondent now has an opportunity to challenge the applicant’s case.

The second stage is the application for judicial review itself, where the court determines whether the order sought by the applicant should be granted. The court may grant other remedies, such as an award of damages.

In particular, a reviewing court can grant what are known as prerogative writs, which consist of the orders of Mandamus, prohibition and certiorari. A writ of Mandamus orders a particular person or a  court to carry out a specific function. Prohibition is the reverse of that where a particular person or court is prohibited from carrying out a specific function. Certiorari is an order that requires an issue to be transferred to the court for an order to be reviewed by that court and if necessary to be quashed if, for example, the order was made ultra vires the powers of that court.

The other order which is generally described as a prerogative writ (although in Ireland it is specifically mentioned and guaranteed in the Constitution and therefore has a unique quality) is the writ of habeus corpus (“present the body” or “deliver the body”) which if granted will secure the release of a person who is wrongfully detained.

 

Officers of the courts

Appointment of Judges and the Independence of the Judiciary

Article 35.1 of the Constitution says that Judges must be appointed by the President. In practice, the President appoints judges on the advice of government, who in turn are guided by the recommendations of the Judicial Appointments Advisory Board.

A qualified barrister or solicitor who has practised as such for not less than ten years is qualified to be appointed as a Judge of the District Court and Circuit Court. As to the appointment to the High Court and Supreme Court, a judge of the Circuit Court of four years standing is qualified for appointment as a judge of the High Court or the Supreme Court.

It is possible for barristers or solicitors to be appointed directly to the High Court and even the Supreme Court. So for example, a barrister or solicitor of not less than twelve years’ standing who has practised for a continuous period of not less than two years before such appointment can be appointed directly to the Supreme Court.

The whole basis of any democratic system is that the courts must be able to stop the government from breaking the law or undermining the Constitution.  What this means is that a judge must be free of any political influence or duress, particularly from the government of the day.

Article 34.5.1 of the Constitution sets out the sworn oath to be taken by judges, and includes the well-known line “without fear or favour, affection or ill-will”, and this underlines the importance of an independent judiciary. Two further practical elements in the independence of the judges of the High Court and the Supreme Court are the extreme difficulty in removing a judge from office (Article 35.4.1), and the guarantee that their salary cannot be reduced (Article 35.5), which both ensure that judges do not feel in any way obliged to the government of the day, and do not need to fear for their jobs if they oppose the government.

As long as a judge’s performance in court is bona fide (in good faith), he or she cannot be sued for negligence or defamation. This ensures that a judge will act without fear or favour, and is an important common law principle, which has consistently been upheld by our courts.

 

Barristers

The barrister’s profession is regulated by the Bar Council. The barrister is essentially a courtroom specialist, skilled in the art of advocacy and argument. In addition a barrister is often instructed by a solicitor (“briefed”) to draft pleadings and other complex legal documents. In a big case, a solicitor may gather the evidence, but will brief a barrister to draft the pleadings, give an advice on proofs (i.e. advise on the prospects of success in light of the available evidence) and present the case in court.

 

Solicitors

The solicitor’s profession is regulated by the Law Society of Ireland, which controls entry to the profession, disciplines its members where necessary, and protects the public from unqualified persons.

Solicitors often do legal work not involving litigation or dispute, for example drafting a will or a contract, or conveyancing immovable property. Where there is litigation, the solicitor often does the ground work: research, correspondence, preparation of documentation and collection of evidence, and attends preliminary hearings. Since 1971 a solicitor may appear alone as an advocate in any court in Ireland. However, in practice, the solicitor tends to restrict appearance to the lower courts and employs a barrister to conduct matters in the superior courts and at trials.

 

The Director of Public Prosecutions (“the DPP”)

This office was established by the Prosecution of Offences Act 1974. Although the DPP is a public servant, he or she should be independent of the government of the day in the carrying out of the functions of the office. The role of the DPP is to prosecute serious crimes in the name of the people, which essentially amounts to deciding whether to charge a person or not and if so, with what crime to charge that person.

All decisions to prosecute or not are final once made, and the reasons for the decision are not published (although this has changed to a very limited extent and might be further changed in the future).

 

The Attorney General (“the AG”)

The office of the AG was created in 1924, and has been preserved by Article 30 of the Constitution. The AG is appointed by the President on the nomination of the Taoiseach, and is linked to that office, to the extent that the AG will resign if the Taoiseach resigns.

The AG is a legal adviser to the government and institutes and defends proceedings to which the State is a party.

 

Useful websites:

  1. The Supreme Court (supremecourt.ie)
  2. Courts Service of Ireland (courts.ie)
  3. Office of the Attorney-General (attorneygeneral.ie)
  4. Office of the Director of Public Prosecutions (dppireland.ie/)
  5. The Bar Council of Ireland (barcouncil.ie)
  6. The Law Society of Ireland (lawsociety.ie).
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Communities under threat

The Bully EirGrid

 

This is the Press Release from WindAware Ireland concerning the critical situation in which the people of Ratheniska, County Laois, find themselves.

Wind Aware Ireland Press Release

One Small Laois Community to Blockade A Big Energy Company

A small Laois community will begin to blockade the site of an enormous electrical sub-station in Ratheniska Co. Laois tomorrow morning 25th June. Practically every hill within view of the site has a wind farm proposed upon it and the largest solar farm in Ireland (320 acres) has just been granted permission in the valley. This an entire region facing the destruction of their entire landscape. Decent and reasonable people are being left no option but to engage in direct action.

http://www.midlands103.com/midlandstoday/one-small-laois-community-versus-a-big-energy-company/

Local spokesperson Colm Fingleton said; ‘… we were never told the truth, … this company Eirgird have never told this community the truth about this station.. …I’m sorry but we are going to have to call it to a halt.’

The project, the Laois/Kilkenny reinforcement project, which Eirgrid claim is required to reinforce the grid in ‘high wind scenarios’ and has been opposed by the local community for over nine years. The sub-station, sited above an important aquifer that supplies water to large areas of Laois, was opposed through the planning system and the courts until Eirgridthreatened to pursue to the community for enormous costs. The community were left with no choice but to withdraw their case. This tactic is typical of large companies pushing infrastructure on unwilling rural communities.

In addition to this enormous sub-station Laois is the site of several proposed wind farms, one of which, in Cullenagh, has been opposed by that community for over 6 years. This group were also threatened with costs in court by An Bord Pleanála but continued their fight and have recently scored a major victory against Coillte in the European Court of Justice.

https://www.irishtimes.com/news/environment/european-court-upholds-claims-of-laois-wind-farm-objectors-1.3465503

Deputy Sean Fleming has said he will bring the issue before the Public Accounts Committee and examine expenditure by Eirgrid, which to date, has seen an overspend of €30m. The Commission for Regulation of Utilities (CRU) has stated that ‘each proposed project over €10m will undergo a rigorous cost-benefit analysis’. When asked to confirm the purpose and necessity of the extra capacity for further power line connection, CRU responded; ‘The (CRU) does not hold any records in relation to this matter’ but, amazingly, that the project had been ‘deemed necessary works’.

In other words, the purpose of this €110m project, the costs of which will be retrievable from energy customers despite the complete lack of cost-benefit analysis, is so secret that even the Regulator doesn’t know what it is for!

Wind energy and associated grid infrastructure, such as this, are estimated to cost about €1.2 billion p.a. To date, no cost benefit analysis, strategic environmental assessment or regulatory impact analysis has been carried out to justify these enormous costs. It should not be left to community groups to point this out.

https://www.yumpu.com/en/document/view/59534715/costs-of-wind-energy-report

windaware ireland

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How do our courts work?

 

Jail Full

The volume of work at my place of employment has caused me to neglect this blog, for which I apologise.

Rather  than simply stopping  blogging, I thought I might combine work and blogging.

The piece below is a very rough draft of the introductory chapter of a book I am writing for students entering third level education. It should be clear and easy to understand.

A lot of the readers of this blog do not necessarily understand how the courts work in this country and so this presents a great opportunity  for us to help each other

I would greatly appreciate it if you would read this chapter.  Hopefully you will learn something, or simply confirm what you already know. Then I would ask that you provide  feedback on whether the language was accessible, whether terms and concepts were properly  explained, and if anything has been left out.

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Introduction: The Hierarchy and Jurisdiction of the Courts of Ireland

 

Learning Outcomes

At the completion of this chapter, the reader should know and understand the following:

Ø  Core legal concepts that are often used in this book.

Ø  The difference between the criminal courts and the civil courts.

Ø The courts system in Ireland and what the different courts can and cannot do.

Ø The people that work in the courts system.

 

The contents of this book will be easier to understand if you first read this short explanation on how the court system works in Ireland and become familiar with the following concepts:

 

Hierarchy

Generally, any system of grades or ranks, in which some are superior to others. What is meant by the hierarchy of courts is the position of the courts with reference to each other, starting at the bottom all the way to the top.

 

Precedents

Previous decisions of the superior courts which contain a legal principle which may, in a later case raising the same point of law, be referred to and which may influence the court’s decision.

 

Bind a court

Where a court must follow a previous decision or precedent. Lower courts must follow the decisions of higher courts, whether they agree with that decision or not, as they are ‘bound’ by the decisions of superior courts.

 

Adversarial

The Irish legal system is predominantly adversarial, which means it is characterised by its confrontational nature. Parties directly oppose each other, and there is a “winner” and a “loser”. A contrasting system is the inquisitorial system, where the proceedings are conducted by the presiding officer in the form of an investigation rather than a direct contest.

 

 Pleadings

Formal written or printed statements delivered by litigating parties to each other, stating the allegations of fact upon which the parties base their case. This ensures that nobody is caught by surprise on the day of the court hearing, as the parties have been forewarned about their opponent’s arguments and had time to prepare a reply.

 

Injunction

An order of the court directing a party to an action to do something (mandatory injunction) or refrain from doing something (prohibitory injunction).

 

Burden of Proof (Onus)

The burden of proof needs to be satisfied by the person bringing the claim or laying the charge in order to be successful in that action or charge. A plaintiff in a civil action bears the onus to prove his or her claim on a balance of probabilities, whereas in criminal proceedings the State bears the onus of proving the guilt of the accused beyond a reasonable doubt.

 

Indictable

An indictable offence is one which is sufficiently serious to warrant a jury trial (and heavy sentences), whereas a summary or non-indictable offence is one which can be heard by a judge only (often called misdemeanours in other jurisdictions) with correspondingly lighter sentences.

 

Acquitted

When the accused / defendant is found “not guilty” in a criminal trial.

 

Citation

A reference to an authority (for example, a reported judgment) usually in support of an argument or another judgement. For example, Walsh v Family Planning Services Ltd [1992]1 I.R. 496 is a citation of a judgment where the plaintiff was Walsh, the defendant was Family Planning Services, and the case can be found on page 496 of the first volume of the 1992 edition of the Irish Law Reports (I.R.), as opposed to the Irish Law Reports Monthly (I.L.R.M.). Not all judgments are reported. Generally the citation for an unreported judgment will tell you the date of the decision, and the court making that decision.

 

Bar

In systems that distinguish between barristers and solicitors, the Bar generally refers to the professional collection of barristers, whilst “Side-Bar” refers to solicitors.

 

Jurisdiction

Jurisdiction refers to the extent or territory over which legal or other power extends. A decision of an Irish court would not affect an American citizen, unless that American was physically present in Ireland, because then they would be subject to Irish law.

When speaking about civil and criminal jurisdiction therefore, we are talking about what civil and criminal courts can and cannot do, and where they can and cannot do it.

 

Civil courts and Criminal courts

It is impossible to understand the structure and functioning of courts without understanding the distinction between a criminal case and a civil case, and the functions and powers of both courts.

The nature of the dispute and the mechanisms used are the critical differences between the two systems.

Civil procedure involves private law disputes, for example personal injury claims (tort) or claims for breach of contract, where one of the parties to the dispute initiates the proceedings. Criminal procedure deals with the processing of some activity regarded as a wrong against society or the public in general, and is thus a public law matter. Criminal prosecutions are generally initiated by the Director of Public Prosecutions or the Garda Síochána. It is possible for individuals to initiate private prosecutions, but these are rare.

Generally the purpose of a civil claim is to seek compensation (damages) or some specific relief, like an injunction, whereas the aim of criminal proceedings is to punish wrongdoers. For example, if the accused is found guilty and sentenced to a fine rather than imprisonment, that fine is paid to the State and not to the victim of the crime, as the criminal law seeks to protect society as a whole rather than the individual.

Civil proceedings are generally initiated by pleadings, whilst criminal proceedings are generally initiated by a summons and indictment (“charge sheet”). In civil cases we speak of a plaintiff and a defendant, or perhaps applicant and respondent, whereas in criminal cases we speak of the prosecution and adefendant (“the accused”).

In other words, it is not so much the type of wrongful act that distinguishes the civil from the criminal, but the consequences of that wrongful act. If the wrongful act leads to criminal charges, it is governed by criminal law but if it leads to the wrongdoer being sued for damages or having an injunction taken against him or being ordered to perform on a contract, that is governed by the civil law. Therefore it is possible for the same act to lead to both criminal charges and a civil action. For example, if a driver went through a red traffic light and smashed into another car, the driver might be charged in the criminal court with dangerous driving, but might also be sued in the civil court by the owner of the damaged car for compensation. There was only one act, but two types of litigation which ended up in different courts with different questions being asked.

The final distinction to be made between civil and criminal proceedings relates to the burden of proof, which describes the level of evidence needed to secure a judgement or a conviction. In civil cases, any particular issue as well as the overall question of liability is determined on a balance of probabilities, which involves comparing the versions of the plaintiff and defendant. In a criminal case all issues and the question of guilt must be proved beyond reasonable doubt, a higher standard of proof which needs to convince the reasonable person not that the accused is guilty, but rather that there is no reasonable chance that the accused is innocent.


Organisation of the Courts

 

The District Court

The District Court consists of a President and sixty three ordinary judges. The Republic is divided into twenty four districts with one or more judges permanently assigned to each district and the Dublin Metropolitan District. The venue of a District Court case usually depends on where an offence was committed or where the defendant resides or carries on business or was arrested.

The business of the District Court can be divided into four categories:- criminal, civil, family law and licensing. The District Courts are the workhorses of the system, and they hear an enormous number of cases, including things like actions taken under the Control of Dogs Acts, applications for citizenship, applications to amend birth and marriage certificates, and applications under the Environmental Protection Act, 1992 (for noise reduction orders).

The District Court is a court of local and limited jurisdiction. This means that it is restricted as to which cases it can hear and/or decide. As a general rule, a District Court cannot hear a case that has been commenced in a different District Court area, and is restricted to hearing cases where the damages or compensation sought do not exceed a certain amount, and in criminal matters it is generally restricted to summary offences.

A summary offence does not entitle the accused person to a trial by jury, and carries a maximum punishment of twelve months’ imprisonment and/or a monetary fine. An example would be driving a motor vehicle without insurance. An indictable offence entitles the defendant to a trial by jury, unless the accused agrees to a summary trial where the court is of the opinion that the offence is minor. In such cases, the maximum punishment is two years’ imprisonment or twelve months’ imprisonment for one offence and/or a monetary fine. An example here would be assault. In serious criminal cases, for example murder or rape, the District Court may conduct a preliminary hearing to decide whether there is sufficient evidence to commit the accused for trial by jury before a higher court.

 

The Circuit Court

The Circuit Court consists of the President and thirty-seven ordinary judges. The President of the District Court is ex officio (by virtue of their office) an additional judge of the Circuit Court. The country is divided into eight circuits with one judge assigned to each circuit except in Dublin where ten judges may be assigned, and Cork where there is provision for three judges. There are twenty-six Circuit Court offices throughout the Republic.

The work of the Circuit Court can be divided into four main areas: civil, criminal, family law and jury service.

The Circuit Court is also a court of local and limited jurisdiction. This means that it is restricted as to which cases it can decide. As a general rule, a Circuit Court in one county cannot hear a case that has been commenced in another county.

Civil cases in the Circuit Court are tried by a judge sitting without a jury and are restricted to cases where the damages or compensation sought do not exceed a certain amount.

There is a right of appeal against the decision of the judge to the High Court, and a Circuit Court judge may consult the Supreme Court on points of law. An unsuccessful party in a District Court civil case can appeal to the Circuit Court, which will rehear the case and may substitute its own opinion.

In criminal matters, the Circuit Court Judge sits with a jury of twelve. The criminal jurisdiction is exercised by the judge of the Circuit in which the offence was committed or where the defendant (‘accused’) resides or carries on business or where the defendant was arrested. However, the Circuit Judge may transfer a criminal trial from one part of his/her Circuit to another. On application by the Director of Public Prosecutions or the accused, the Circuit Judge may, if satisfied that it would be manifestly unjust not to do so, transfer the trial from the Circuit Court sitting outside of the Dublin Circuit to the Dublin Circuit Court.

 

The Court of Criminal Appeal

This court hears appeals from the Circuit Court, Central Criminal Court or a Special Criminal Court (which is a non-jury court which may be set up under Part V of the Offences Against the State Act 1939). The court consists of three judges, one from the Supreme Court and two from the High Court, with the decision of the court by majority.

 

The High Court

The High Court consists of the President of the High Court and thirty six ordinary judges. The President of the Circuit Court and the Chief Justice are ex officio additional judges of the High Court.

Normally the High Court sits in Dublin to hear original actions (cases that begin in the High Court rather than appeals from a lower court), but it also sits in the other counties during the year.

The jurisdiction of the High Court extends to all matters whether of law or fact, civil or criminal. It also has jurisdiction to hear constitutional challenges (usually by citizens) to statutes (with the Court of Appeal and the Supreme Court (in more limited cases now) having appellate jurisdiction in these matters).

The High Court can award unlimited damages.

When the High Court hears a criminal case, it sits as the Central Criminal Court and only tries serious offences such as murder or rape. It also tries cases which have been transferred from the Circuit Court to avoid trial before a local jury.

Finally, the High Court possesses supervisory jurisdiction over the inferior courts, state bodies and individuals. The High Court has the power to issue an order of:

 

  1. a) prohibition, to prevent a person or body from exercising a power it does not legally have;
  2. b) mandamus, to compel a person or body to carry out a legal duty;
  3. c) certiorari, to investigate or challenge a person or body who has exceeded their legal powers;
  4. d) habeas corpus, to require the person in custody and the detainer to come before the High Court to explain the circumstances of, and justification for, the detention.

 

The High Court acts as an appeal court from the Circuit Court in civil matters. The High Court has power to review the decisions of all inferior courts by judicial review. The High Court may give rulings on a question of law submitted by the District Court and may hear appeals in certain other circumstances provided by statute, i.e. in regard to decisions of the District Court on applications for bail. The High Court can review decisions of certain Tribunals of Inquiry.

 

The Court of Appeal

The Thirty-third Amendment of the Constitution established a Court of Appeal to sit between the existing High and Supreme Courts, and take over the existing appellate jurisdiction of the Supreme Court. The amendment was effected by the Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013, which was approved by the People in a referendum on 4 October 2013, and then signed into law by the President of Ireland, Michael D. Higgins on 1 November 2013.

The Court of Appeal was established on 28th October 2014 by the Court of Appeal Act 2014. The court is composed of a President and nine ordinary judges. The Chief Justice and the President of the High Court are ex officio judges of the Court of Appeal. The Court may sit in divisions of three judges. Some interlocutory and procedural applications may be heard by the President alone or by another judge nominated by the President.

The primary reason for the creation of this court was the large number of outstanding civil & constitutional law appeals from the High Court dating back in some cases to 2008. It was hoped that the new court would eliminate these court delays.

The Court of Appeal will deal with civil appeals from the High Court. It will be possible for the Supreme Court to hear appeals from the Court of Appeal where the issue involved concerns a matter of general public importance or where it is in the interests of justice that the appeal be heard by the Supreme Court. It will also be possible in exceptional circumstances for the Supreme Court to hear appeals directly from the High Court where this is in the public interest or the interest of justice.

The Court of Appeal will deal with criminal cases which were due to be heard by the Court of Criminal Appeal (now abolished). It will hear appeals against conviction and/or sentence from the Central Criminal Court, the Special Criminal Court and the Circuit Court. The appeal is not a rehearing of the case but is based on the transcript of the evidence given at the trial and is usually confined to points of law, or alternatively that the verdict was contrary to the weight of the evidence. On hearing the evidence, the Court of Appeal may exercise a number of options including allowing the appeal and acquitting the defendant or dismissing the appeal.

 

The Supreme Court

Article 34 of Bunreacht na hÉireann (the Irish Constitution) states that the courts system in Ireland will include a Court of Final Appeal. This Court of Final Appeal is known in Ireland as the ‘Supreme Court’. The Supreme Court consists of the Chief Justice and seven ordinary judges. In addition, the President of the High Court is ex officio a member of the Supreme Court. This court is located in Dublin.

The Supreme Court has the power to hear appeals from all decisions of the Court of Appeal, and it may hear an appeal from the Court of Criminal Appeal if that court or the Attorney General certifies that the decision involves a legal point of exceptional public interest. The Supreme Court may also give a ruling on a question of law submitted to it by the Circuit Court.

The Constitution provides that the President of Ireland may refer any Bill (or any provision(s) of a Bill) for adjudication to the Supreme Court, in other words the Supreme Court will decide whether that proposed law is in agreement with, or repugnant to, the Constitution. For this type of case a quorum of five judges will sit, but there will be a single (unanimous) judgment. Once the Supreme Court declares a Bill as being constitutional, that is the end of the matter, and the constitutionality of that Bill can never be challenged again. If the Court declares the Bill unconstitutional, that Bill will have to go back to the Oireachtas to repair the problems that were raised by the Supreme Court.

If a question of the permanent incapacity of the President arises, this is decided by the Supreme Court, again by five judges.

This court is known as the Supreme Court for the simple reason that it is at the top of the hierarchy of courts. It is the court of ‘final resort’.

 

 

Officers of the courts

 

Appointment of Judges and the Independence of the Judiciary

Article 35.1 of the Constitution says that Judges must be appointed by the President. In practice, the President appoints judges on the advice of government, who in turn are guided by the recommendations of the Judicial Appointments Advisory Board.

A qualified barrister or solicitor who has practised as such for not less than ten years is qualified to be appointed as a Judge of the District Court and Circuit Court. As to the appointment to the High Court and Supreme Court, a judge of the Circuit Court of four years standing is qualified for appointment as a judge of the High Court or the Supreme Court.

A judge must be free of any political influence, particularly from the government of the day. Article 34.5.1 of the Constitution sets out the sworn oath to be taken by judges, and includes the well known line “without fear or favour, affection or ill-will”, and this underlines the importance of an independent judiciary. Two further practical elements in the independence of the judges of the High Court and the Supreme Court are the extreme difficulty in removing a judge from office (Article 35.4.1), and the guarantee that their salary cannot be reduced (Article 35.5), which both ensure that judges do not feel in any way obliged to the government of the day.

As long as a judge’s performance in court is bona fide (in good faith), he or she cannot be sued for negligence or defamation. This ensures that a judge will act without fear or favour, and is an important common law principle, which has consistently been upheld by our courts.

 

Barristers

The barrister’s profession is regulated by the Bar Council. The barrister is essentially a courtroom specialist, skilled in the art of advocacy and argument. In addition a barrister is often instructed by a solicitor (“briefed”) to draft pleadings and other complex legal documents. In a big case, a solicitor may gather the evidence, but will brief a barrister to draft the pleadings, give an advice on proofs (i.e. advise on the prospects of success in light of the available evidence) and present the case in court.

 

Solicitors

The solicitor’s profession is regulated by the Law Society of Ireland, which controls entry to the profession, disciplines its members where necessary, and protects the public from unqualified persons.

Solicitors often do legal work not involving litigation or dispute, for example drafting a will or a contract, or conveyancing immovable property. Where there is litigation, the solicitor often does the ground work: research, correspondence, preparation of documentation and collection of evidence, and attends preliminary hearings. Since 1971 a solicitor may appear alone as an advocate in any court in Ireland. However, in practice, the solicitor tends to restrict appearance to the lower courts and employs a barrister to conduct matters in the superior courts and at trials.

 

The Director of Public Prosecutions (“the DPP”)

This office was established by the Prosecution of Offences Act 1974. Although the DPP is a public servant, he or she should be independent of the government of the day in the carrying out of the functions of the office. The role of the DPP is to prosecute serious crimes in the name of the people, which essentially amounts to deciding whether to charge a person or not and if so, with what crime to charge that person.

All decisions to prosecute or not are final once made, and the reasons for the decision are not published (although this has changed to a very limited extent and might be further changed in the future). 

 

The Attorney General (“the AG”)

The office of the AG was created in 1924, and has been preserved by Article 30 of the Constitution. The AG is appointed by the President on the nomination of the Taoiseach, and is linked to that office, to the extent that the AG will resign if the Taoiseach resigns.

The AG is a legal adviser to the government and institutes and defends proceedings to which the State is a party.

 

Useful websites:

 

  1. The Supreme Court (supremecourt.ie)
  2. Courts Service of Ireland (courts.ie)
  3. Office of the Attorney-General (attorneygeneral.ie)
  4. Office of the Director of Public Prosecutions (dppireland.ie/)
  5. The Bar Council of Ireland (barcouncil.ie)
  6. The Law Society of Ireland (lawsociety.ie).
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Does the GDPR protect the citizen?

DPC

 

The GDPR – Data Subject Rights

 

The General Data Protection Regulation (the “GDPR”) will come into effect on 25 May 2018. As previously mentioned, the GDPR will be directly effective in each EU member state, with the aim that the same rules will be applied uniformly within the EU. This marks a shift in the approach to data protection at a European level, which until 25 May 2018 had relied on the individual Member States to implement the applicable Directives. In my previous blog I took a quick look at the overall effect of the GDPR. In response to a question about the effect it will have on an individual who thinks that an organisation has a file on him or her, I will try and explain what a private individual should be able to do in regard to controlling that data.

 

Overview of individual rights

Chapter 3 (Articles 12-23) is entitled “Rights of the Data Subject” with the Data Subject being the individual seeking to find out what personal data an organisation or government department (“the Data Controller”) has on him or her.

 

The GDPR extends a number of existing individual rights which individuals can exercise against controllers, as well as introducing a number of new rights. The focus on individual rights, and on the transparency and accountability principles which underpin all of the GDPR, put individuals and their rights at the heart of the GDPR.

 

As with most laws, they are only as good as their enforcement provisions, and it remains to be seen what practical and accessible means are available to a private individual to enforce his or her rights under the GDPR. Without an effective enforcement mechanism, all the lofty ideals in the world cannot help you.

 

Article 12(4) provides a first clue:

“4.  If the controller does not take action on the request of the data subject, the controller shall inform the data subject without delay and at the latest within one month of receipt of the request of the reasons for not taking action and on the possibility of lodging a complaint with a supervisory authority and seeking a judicial remedy.”

 

In other words, it is very similar to the current FOI system. If the data controller does not cooperate, you complain to the regulatory authority, and if you get no satisfaction there, you can go to court. This is highly unsatisfactory as it is both time-consuming and expensive and therefore out of the reach of most citizens. It can be argued that this system is not a real enforcement at all, and in direct violation of the Aarhus Access to Justice provisions.

 

Another major problem that immediately occurred to me was how does one go about proving a negative? If you ask an organisation whether they have data on you, and they say that they do not, what can you do, legally, to prove otherwise? In other words, the GDPR should really create a presumption that if an organisation has had previous dealings with you, it shall be presumed until otherwise proven by the organisation (the data controller), that the organisation has your personal data.

 

Whether this can be reasonably enforced is another question. Given the cosy relationship between the government and big business / the banks, I cannot imagine any legislation being passed that will force a commercial organisation to lay bare all its databases so that we can have a scrummage around looking for any bits and pieces they might have on us.

 

It is against this background that we need to look at the individual rights created by the GDPR.

 

Right of access

In terms of Article 15 an individual has the right to establish whether a data controller processes information relating to him / her, and to access and obtain a copy of that data and certain additional information in relation to the processing, such as its purposes, the categories of data, the recipients of the data, and the existence of additional rights such as the rights to erasure and objection.

 

The Article makes it clear that this right of access is “not an absolute right”, and the exercise of that right cannot prejudice the rights of others.

 

I find the vagueness of these exceptions very troubling because they could be used to essentially negate any right an individual might think he or she has.

 

Again, the practicalities of enforcement are a cause for concern. The Article says that “The controller shall provide a copy of the personal data undergoing processing”. The word “shall” when used in legislation is known as a mandatory – you have to do it, there is no choice, and if you do not do it, you break the law. All well and good, but how do you force the data controller to give up those details without having to go to the “higher authority” all the time? And will the higher authority have the muscle and wherewithal to scour the controller’s databases for information on you?

 

Right to be forgotten

The right to have personal data rectified, blocked or erased already exists under current data protection law. They existed, but were hardly ever acted upon, because of the need for the individual to show that the data controller had contravened data protection principles. Once again this was often a matter of proving a negative.

 

Partly as a result of the Google Spain decision of the Court of Justice of the European Union, however, there has been much more emphasis on the right of erasure or “the right to be forgotten”, and the GDPR has put a fresh focus on this area.

 

Under the GDPR, every individual has the right to have his / her data erased, or the “right to be forgotten”, in circumstances where:

■ the data is no longer necessary for the purpose for which they were collected;

■ processing is based on consent, but the individual has withdrawn consent and there is no other legal ground for continued processing available to the controller;

■ an individual has exercised his / her right to object, and there is no overriding legitimate interest on which the controller can continue to legitimise its processing;

■ the data is unlawfully processed;

■ the erasure is required by a law applicable to the controller; or

■ the data was collected in connection with the offer of information society services to a child.

 

Once again Article 17 makes it very clear that this is not an absolute right. For example, the data controller will be allowed to retain your data “on the basis of freedom of expression and information”, whatever that might mean; for reasons of “public interest in the area of public health” or if the processing is required to “establish, exercise or defend legal claims” (would that include the original application to erase?).

Article 17 does not include any specific enforcement mechanisms.

 

Right to restrict processing

Article 18 says that individuals have the right to require that a data controller restricts its processing of his / her data in some circumstances, including where the data is inaccurate, the data is no longer required in light of the purposes of the processing but the individual requires the data in connection with legal claims, or the data subject has exercised his / her right to object (pending verification of any legitimate grounds of the controller which override those of the data subject).

What is meant by restrict? Article 4(3) defines it as follows:

“(3) ‘restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future”.

 

That definition begs the question.

‘Restriction’ = ‘Limiting’.

But what does “limiting” mean?

How long is a piece of string?

 

 

Right to object

As with the right to be forgotten, the right to object to processing already exists in the current Directive where an individual could object to direct marketing or processing for example, on the grounds that this direct marketing was “likely to cause unwarranted substantial damage or distress”.

In practice it was not used very much. Easier to delete and block the sender.

 

Under the GDPR, the existing right to object to processing continues, along with some clarifications and expansion. An individual can still object to direct marketing at any time, and in that event, the controller must stop using the information for marketing purposes. However, an individual can also object where:

■ retaining the data is no longer necessary for the purposes for which collected;

■ consent has been withdrawn and there is no other legitimate ground for processing;

■ unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims, the controller must cease the processing;

■ the data has been unlawfully processed;

■ erasure is required by either EU under a legal obligation to which the controller is subject under EU or member state law; or the law of the Member State;

■ the data was collected in the context of the provision of information society services to a child.

 

Automated decision making and profiling

Under the GDPR, an individuals will continue to have the right (created by the current Directive) not to be subject to decisions based solely on automated processing in a similar manner. Article 22 introduces additional restrictions to automated processing of special categories of data.

 

Profiling seems to be the main target, and the GDPR defines profiling as “any form of automated process to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements”.

 

There are exceptions to this blanket-like prohibition, and on paper they seem more restrictive than the current Directive. For example, under the Directive such processing was permitted in the course of considering ‘whether to enter into a contract’, or ‘with a view to entering into a contract’ or ‘for the performance of a contract’. Under the GDPR, automated processing will only be permitted, in the context of contract, where it is a “contractual necessity”, which is a more restrictive test with a seemingly higher threshold.

However, I would suggest that ‘necessity’ is a highly subjective concept. Some people’s luxuries are regarded as other people’s necessities, depending on, for example, your socio-economic standing or your business targets. Surely it is a contractual necessity for a business to chase your custom?

 

The other aspect that seems to have been beefed up is the question of consent. Where a controller seeks to rely on consent, it must be explicit consent to automated decision making. This really means a written consent (including e-mail and/or electronic signature) to the use of a specified piece of data for a specified purpose.

 

Portability

The right to data portability is a new right introduced by the GDPR, and allows individuals to obtain and, importantly, reuse their personal data. A data subject can either obtain the data him / herself, and, in turn, provide it to a third party (if he / she so wishes), or require the data controller to transfer the personal data directly to a third party.

 

Compliance with individual requests

Individuals must be in a position to exercise their rights free of charge, and a controller must respond (and comply) to a request without undue delay, which means within one month, with a maximum two month extension depending on the complexity and the number of requests.

The GDPR does insist that all these transactions are done electronically, but it does say that data controllers must provide the means for electronic requests, in particular where the data is processed by electronic means. In other words, a data controller can still shower you with paper, but this is frowned upon.

 

Transparency

The increased transparency required under the GDPR means that individuals must be clearly and fully informed of their rights. The burden of proof is on the data controller to demonstrate compliance. This will have a substantial impact on the content of the ‘small print’ (notifications and privacy statements), but it will still be small print, so read it carefully before committing to anything.

An Irish organisation called the GDPR Awareness Coalition have produced this very handy infographic outlining the basic rights of the data subject:

GDPR

The EU Commission has also produced some handy visual material explaining your rights.

 

 

Enforcement and sanctions under the GDPR

 

Onto the big question: Can these rights be effectively enforced or will they be evaded with ease or too expensive and difficult to pursue?

 

The approach to penalties under the General Data Protection Regulation (GDPR) seems to follow a tried and tested formula: the Big Stick. The financial penalties are stiff: offenders can be hit with fines of up to 4% of total global annual turnover to a maximum of €20 million.

These tough penalties have certainly grabbed the attention of the media, which is a good thing, as Big Business cannot feign ignorance.

The big question is how will the Irish Supervisory Authority wield this big stick? The other question is to what extent will the Irish Supervisory Authority co-operate with the Supervisory Authorities of other EU Member States to protect the rights of its citizens dealing with foreign enterprises?

 

Powers

Under the GDPR, Supervisory Authorities are given a number of powers which can be placed into two broad categories: investigative and corrective (punitive).

 

Supervisory Authority investigative powers include:

  • to order the controller/processor to provide any information;
  • carry out data protection audits;
  • review certifications;
  • notify controller/processor of any alleged infringement of the GDPR;
  • obtain from controller/processor access to all personal data and all information necessary to perform its tasks; and
  • obtain access to any premises of controller and processor including data processing equipment.

These powers are extensive and if used properly could do a lot of good in protecting the rights of the citizen against invasive or unlawful data collection practices.

 

Supervisory Authority corrective powers include:

  • issue warnings or reprimands to a controller or processor where processing operations have infringed provisions of the GDPR;
  • order the controller or processor to comply with the law;
  • order the controller to communicate a personal data breach to the data subject;
  • impose a temporary or definitive limitation including a ban on processing;
  • order the rectification, restriction or erasure of data or order a certification body not to issue a certificate;
  • impose fines (which should be “effective, proportionate and dissuasive”);
  • order the suspension of data flows to a recipient in a third country or to an international organisation.

 

Importantly, it can be seen that a lot of these powers can be applied to both data controllers and data processors. This might become very important as one of the major loopholes of current data protection legislation is that processors were calling themselves controllers and so evading large sections of the law. It would have been nice if the GDPR had completely collapsed the distinction between controllers and processors, but at least it is a start.

 

While it is much too early to tell how different Supervisory Authorities will use these powers, it seems virtually inevitable that there will be a range of approaches across Member States. Although this is a Regulation, it is silent on a number of aspects which will have to be dealt with by the laws of the particular Member State.

 

The most obvious of these will be what (if any) criminal sanctions will be imposed on offenders who infringe the GDPR?   Whilst fines might seem huge, the maximum values do not have to be imposed, and it might be that there will be better compliance if individual directors could face jail time.

Again, Irish governments have an extremely poor record when it comes to prosecuting big business for financial crimes, so it is unlikely that this will change to any large degree.

 

What is clear is that from an EU perspective, the Supervisory Authorities in the different Member States will need to co-operate closely to have any hope of the GDPR being an effective mechanism, given the truly international nature of electronic commerce. We can only hope that Ireland lives up to this expectation.

Our Data Protection Commissioner (who will be the Supervisory Authority in Ireland) has been somewhat hampered by the very clumsy provisions of the Data Protection Act when it comes to prosecuting offenders. Hopefully the GDPR will to some extent fill this large gap in our law, or at least provide the impetus for a complete overhaul of our existing law which needs to be replaced by a system with teeth.

 

Posted in GDPR; Data Protection; Individual Rights | Tagged , , | Leave a comment

Who’s Afraid of the GDPR?

being followed

The GDPR – how will it affect us?

I have been inundated with questions about the upcoming General Data Protection Regulation (GDPR).

My default excuse of “I haven’t had time to look at it yet” was wearing a bit thin, so I decided to make the time to have a (very quick) look at it and attempt to answer the FAQs, starting with most asked to some others that raised interesting points.

Q: “Is this an attempt by our neo-nazi Irish Government to infiltrate us and destroy us from within?”

(Yes, this was the most-asked question. I substituted the phrase ‘neo-nazi’ for more offensive expressions).

Just to be clear, the Irish Government is a fairly passive player in this whole thing. In fact, there are certain aspects of the GDPR that must be scaring the bejaysus out of the Government. More on that later.

As the GDPR is a Regulation, it has “direct effect”, which means it automatically becomes Irish law on its commencement date, simply by virtue of Ireland being a member of the EU.

This is unlike the other source of EU law, the Directive, which allows the Member State quite a long time to implement it, and the Member State is also allowed to modify the contents to align it with its own national law, as long as the national law maintains the core values and spirit of the original Directive.

Irish governments do have a bit of a reputation for delaying the implementation of Directives for as long as they can or even after holding out after the final date. They also are often guilty of diluting the core values, or in the case of Aarhus for example, actually removing some of the best bits to the detriment of its citizens.

They are certainly not the only EU Government guilty of such shenanigans, and the EU decided to avoid all that nonsense this time by supplying the law through a Regulation.

In other words, this is something imposed on all Member States by the EU. I say imposed, but there would have been a huge amount of talks and backroom deals being done before the EU Parliament could agree on the final draft. The GDPR really is a collective effort, rather than the work of some evil genius sitting in a chair stroking his cat.

The official reasons provided by the EU Commission for replacing the Data Protection Directive (Directive 95/46/EC + Directive 2002/58/EC) with this Regulation were as follows:

  • “eliminating inconsistencies in national laws”;

  • “raising the bar to provide better privacy protection for individuals”;

  • “updating the law to better address contemporary privacy challenges, such as those posed by the Internet, social media, mobile apps, cloud computing, “big data,” and behavioural marketing, that were in their infancy when the Data Protection Directive was drafted”;

  • “reducing costly administrative burdens for companies dealing with multiple data protection authorities.”

In other words, the primary policy objective is uniformity across the EU with regards to government departments and online businesses keeping all your personal information for years on end so they can bombard you with email advertising. I personally applaud this, given how often we are doing electronic transactions etc. with people in other countries or completing electronic questionnaires for some or other government department.

Q: “Can the GDPR be used to find out details about fund-raising for example?”

No. The GDPR is all about “personal data”.

Personal Data is defined in the Definitions section of the GDPR as:

“ … any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person”.

 

The first thing to notice is that this is only about information on a “natural person”. This means a flesh-and-blood human being. It does not include organisations or juristic persons (a person ‘created’ by the law so it can sue or be sued in its own name – a company being the most well-known example).

The main thrust of the GDPR seems to be to force governments and businesses to not hold onto personal information about citizens or clients and where they do have to hold onto some information about you, to anonymise that information, or if that is not possible, to secure and safeguard that information from any outside access. Its main stated objective is to stop the government or businesses from “profiling” people, either with regard to things like their political beliefs or their consumer trends.

A person will be entitled to approach any government department or business and ask them if they are holding personal data about that person and furthermore insist that it destroys that personal data that they are holding unless they can show that it is necessary to achieve the legitimate purpose for which that data was originally gathered (unless that person specifically consents to the department or business continuing to hold onto that personal data for use in a specified future activity).

Article 6 of the GDPR explains these parameters of fair use of personal data:

Lawfulness of processing.

  1. Processing shall be lawful only if and to the extent that at least one of the following applies:

(a)  the data subject has given consent to the processing of his or her personal data for one or more specific purposes;

(b)  processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;

(c)  processing is necessary for compliance with a legal obligation to which the controller is subject;

(d)  processing is necessary in order to protect the vital interests of the data subject or of another natural person;

(e)  processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

(f)  processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.”

It is also interesting to note that the definition of “personal data” is attempting to eliminate the huge confusion caused under the current Directive when attempts were made to define what was meant by “personally identifiable information”. Adding the phrases “location data” and “online identifiers” to the existing language of the Directive makes it more likely that the Regulation will capture various forms of identifiers used in mobile devices and apps, advertising networks, and website analytics (infamously used by big providers like Google and social media like Facebook for commercial and content profiling – the so-called ‘knowledge algorithm’).

The existing Directive already allows data subjects to opt out of direct marketing, and it requires transparency if there are automated decisions such as computers declining transactions based on risk scores. These provisions are expanded in the Regulation, in sections entitled “Right to object” and “Measures based on profiling” (Articles 19 and 20). Automated decisions must include safeguards such as an appeal to a real human. In addition, automated decisions (i.e. by a computer) cannot be based solely on the defined sensitive categories (mentioned below) of personal data such as race and health.

An indirect benefit of the GDPR is that it will hopefully stop a lot of people living in an information bubble where they were only exposed to news / information that they would find “agreeable” (i.e. consistent with their beliefs/prejudices/religion). I suppose if a person specifically asks for that information bubble to be created, that will constitute consent, which means I am being ridiculously optimistic. People generally want their beliefs and prejudices confirmed, not challenged, hence the massive growth of Facebook and Twitter.

Article 9 carries over from the Directive the concept of “special categories” of especially sensitive data concerning race or ethnicity, political opinions, religious or philosophical beliefs, trade union membership, health, or sex life. These types of data collections are expressly prohibited in the general sense. Where such collections are necessary, they generally require express consent or a legal obligation in order to collect or process the data, and they require heightened security and attention to data storage limits. The Regulation adds genetic and biometric data to the categories of sensitive data. This will clearly include membership of community (non-commercial) organisations that are organised around a political, social or religious belief.

The law is fairly clear on the point that fundraising is not a commercial activity (which is why charities are now being closely watched after the recent scandals involving some high profile Irish charities). The collection plate at Sunday mass will never be legally classified as a “commercial activity”! There is therefore little chance that somebody who dropped a euro into the collection plate will now have the right to ask for that information, and even if they did, they could only ask that you delete the reference to the fact that they were a contributor. This is not like the FOI laws, it is about not storing and/or removing personal details, rather than trying to reveal details that somebody else is trying to hide.

Q: “Is this an attempt to emasculate NGOs, especially environmental / conservation / community groups?”

I could really just answer ‘no’, but I know that would never satisfy the conspiracy theorists among you, so here goes:

This is really a two-fold question. The one obvious fear is that people are concerned that the government will be able to infiltrate and destroy community groups from within by having access to their data. The second fear seems to be that the community groups (including their FB pages, their blogs and their newsletters) will be regarded as Data Controllers and therefore be susceptible to requests (from the wind industry for example) for what they would regard as sensitive information?

In this regard, notice must be had to Clause 18 of the Preamble, which says:

“(18) This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or 4.5.2016 L 119/3 Official Journal of the European Union EN (1) Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium‑sized enterprises (C(2003) 1422) (OJ L 124, 20.5.2003, p. 36). (2) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).

Household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, this Regulation applies to controllers or processors which provide the means for processing personal data for such personal or household activities.”

(My emphasis)

I would argue that this should exclude FB pages and blogs, depending on the interpretation of the phrase “no connection to a professional or commercial activity” and just before it: “purely personal or household activity”. So for example, the fact that I am a law lecturer by profession, does that mean if a write a (non-commercial) blog with legal content that there is a connection to my professional /commercial activity?

I doubt that very much, as that would be an incredibly expansive interpretation of that clause. As neither phrase is defined in the Definitions section, they must be given their ordinary everyday meaning. I would argue that this involves public authorities / government departments and/or commercial organisations who are operating for profit or some other material gain. It cannot and should not be extended to private or personal activities that a person does at home without the primary aim of making money.

The definition of “enterprise” in the Definition section of the GDPR as meaning a “natural or legal person engaged in an economic activity, irrespective of its legal form, including partnerships or associations regularly engaged in an economic activity” seems to support the view that this Regulation concerns government departments and commercial businesses.

The related question is whether a government department or agency, or a business (like a wind farm) could seek information from a community group engaged in opposing that government or business?

 

This GDPR is not replacing the Freedom of Information legislation (including the freedom to environmental information legislation). Its purpose is different to typical freedom of information legislation. The purpose of the GDPR is to empower a citizen to have the right to demand to know what personal data is being held about him or her, to be told what is the reason for holding that personal data, and if that personal data is being held purely on the basis of consent, to allow the person to withdraw that consent or at least challenge the retention of their personal data.

In other words this is not so much about asking a government department or business to disclose information per se, but rather to disclose the extent of their information on you, and to justify their holding onto it after it was used for its initial or original purpose.

Therefore the GDPR is going to be used by private individuals against government departments or commercial organisations, but not the other way around.

Another clue is the fact that the GDPR says it is also applicable to organisations outside the EU (for example the USA and China) where those organisations practice personal data processing that relates to “the offering of goods or services to data subjects (individuals) in the EU or the monitoring of their behaviour”.

This interpretation is confirmed by the definition of “controller” (i.e. data controller):

‘controller’ means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law;”

Whereas the person identified by the personal data was clearly defined as an individual  flesh and blood human being, the definition of ‘controller’ is very wide and embracing. Public authorities are expressly included, and the more general description of “other body” can be linked to that commercial or economic activity that we talked about earlier, i.e. businesses. I do not think that a non-commercial / charitable / political NGO can ever fall into that net. That is clearly not the objective of this Regulation.

Another clue that this only covers the government and big business is that Articles 35-37 stipulate that an  organization must appoint a data protection officer (DPO) if it employs “250 or more persons” or if its core activities require “regular and systematic monitoring of data subjects”.

This has been a very quick glimpse at the GDPR. It is most definitely not meant to constitute legal advice, nor is it a particular comprehensive commentary on a huge document (the PDF file is 88 pages of tiny print). I simply identified a few of the questions that I have been routinely asked by individuals and organisations that I help, and I have attempted to shine a little light on those aspects.

Posted in Apple; Google; Data Centre, Cloud; iCloud; Data Centre; Data Center, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, lobbying; democracy; political process; general election, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Press Freedom, Profiling; Data Collection; Information Algorithm. | Tagged , , , , , , , , , , , | 2 Comments

More Lies

 

pinocchio

No matter where they are in the world, the wind industry try to sell us the same porky pies. And their paid politicians are only to happy to take their money.

via Wind Industry Claims that ‘Coal is Dead’- Nothing But Lies, Myth & Propaganda

Posted in EirGrid; Insurance; Law; Cancer; EMF | Leave a comment

The End of the Road – for the CCDG

The Comeraghs
As readers of this blog are well aware, I have for a while now followed the longstanding dispute between the two Declans – Declan McGrath, well-known author and conservationist, and Declan Mulhearne, the Chairperson of the Comeragh Community Development Group (CCDG).

  1. My coverage of this local dispute has come at some personal cost, having been the subject of a number of personal and vicious attacks from one of the individuals involved in constructing the “Mahon Falls Highway”.

The dispute between the Declans came about as a result of an illegal road constructed by the CCDG through the scenic Mahon Falls valley (Coum Mahon).

  1. Declan McGrath first appealed this matter to the Waterford City&County Council, who did not react for a long time (subsequently explained by the fact that they were funding the illegal development.

The WCCC (on foot of complaints by Inland Fisheries) finally referred the matter to An Bord Pleanala (‘the ABP’) as to whether they could regard the road as “exempted development”. This was strange coming from the WCCC, a Planning Authority, in light of the fact that the WCCC have been involved in three other identical incidents, and on each occasion it was made clear that a road in an SAC can never be “exempted development”.

The ABP ruled quite clearly and unconditionally that the road is indeed illegal and that it is not an exempted development, as originally claimed to me by Declan Mulhearne.

“AND WHEREAS An Bord Pleanála has concluded that: (a) the construction of a road is development as defined in section 3(1) of the Planning and Development Act, 2000, and (b) the construction of a road is not exempted development.

NOW THEREFORE An Bord Pleanála, in exercise of the powers conferred on it by section 5 (3) (a) of the 2000 Act, hereby decides that construction of a road at Coum Mahon, Mahon Valley, County Waterford is development and is not exempted development”.

The ABP Inspector highlighted the anomaly that public funds were used for a private development on privately owned land and commonage:

“With regard to the question of whether it is or is not exempted development, a relevant consideration is whether the works were carried out as part of the works of a statutory undertaker or public body (Article 80). It appears that public funding was used for the works, and the report from the planning authority does not address the issue, but it seems clear to me that it was undertaken by a private body on privately owned lands (which are not part of Coilte works), and the land is not part of the public highway, and is not part of an existing private street, road or way, and as such is not exempted under Schedule 2, Part 1, Class 13.
8.2.2. The land, while open and a mix of privately owned land and (possibly) commonage, is not a park, open space or ornamental garden, or used for athletics or sports. It is open ground used seemingly for sheep grazing, or is untended heath/bog. As such, I do not consider that it is exempt under Schedule 2 Part 1 Class 33.
8.3. As such, I do not consider that the development come within these, or any other exemption class and so is not exempted development.”

The APB Inspector was even more forthright and scathing of the antics of the CCDG and its blatant disregard for the environmental sanctity of this once beautiful and protected area:

8.4.1. Notwithstanding the issue of my assessment above of the works not being exempted development, works are not exempt if they would require an EIS or NIS.
8.4.2. The structure is in excess of 2 km, so would, under Schedule 5, Part 2, Class 10(dd) (private roads in excess of 2000 metres) require screening, and while I acknowledge some ambiguity about the nature of the structure, I would consider, having regard also to the provisions of Schedule 7 of the Regulations, that there is a reasonable likelihood that it would require an EIS, especially having regard to the likely environmental impact of the works and the cumulative impact with the hydroelectric scheme (which was granted permission in 2005 with an EIS).
8.4.3. The issue of Appropriate Assessment is much more straightforward. I would refer the Board to the document ‘Assessment of Impacts on Comeragh Mountains SAC’ dated Dec. 2015, competed by Wetland Surveys Ireland on behalf of the Council.
On the basis of my site visit, I can confirm that the survey details of the impacts are consistent with my observations. The upper levels of the works run directly through part of the designated SAC. There is no question but that the works have caused significant direct effect on heathland (Annex I habitat) within the designated SAC by way of direct excavation and coverage by spoil – the report estimates that around 0.4 ha. of Annex 1 habitat has been destroyed – I would consider this an accurate assessment. There is also visible evidence of run-off to the stream, which includes another Annex 1 habitat ‘’floating river vegetation’. As such, as there is the significant disruption/destruction of habitat identified as ‘Dry Heath’ [4030] and ‘Wet Heath’ [4010], there is a significant effect on a Natura 2000 site in view of the sites conservation objectives. An NIS would therefore have been required. As such, the works cannot be considered to be exempted development by virtue of Article 9(i)(viiB) as it would have required an NIS.

Despite these conclusive and damning findings by the ABP, the Comeragh Community Development Group still had the audacity to recently respond to this Report by stating in a local newspaper that this monstrosity that is carved into protected land was a “woodland walk”.

CCDG newspaper

Does this sound like a “woodland walk”?:

“It is around 3-5 metres in width, very unevenly surfaced, with open cross-drains. It is approximately 2,700 metres in length.”

(The ABP Inspector’s Report).

Does this look like a “woodland walk”? (The only woodland on this road is the smashed woodland caused by the digger when digging the road). This “woodland walk” is wider than the existing road used for vehicles!

Shame on you CCDG. It surely must be the end of the road.

Posted in Comeragh Mountains; Declan McGrath, EirGrid; Insurance; Law; Cancer; EMF | Tagged , , , , , , , , , , | Leave a comment

Scandal! EirGrid in the Crosshairs.

 

eirgrid crosshairs

Ratheniska residents are claiming that they have exposed Eirgrid’s litany of failures and systematic corporate sharp practice. 

The Ratheniska, Timahoe, Spink (RTS) Action Group, when briefing Minister Denis Naughten, made a number of extremely serious allegations, which they backed up with a dossier of painstakingly accumulated evidence: 20170118 – Presentation to Ministers-For Issue

Aside from the long standing issues of site unsuitability, water source destruction and planning process corruption, the RTS Action Group claimed to have unearthed very serious transgressions by Eirgrid’s board of the code of practice for semi state bodies.

The evidence indicated that EirGrid had created “a short cut on the board“.  RTS Action Group explained that four members on the EirGrid Board had formed a “sub-board” and were “filtering information going to the board where they are now rubber stamping projects and funding on the basis of recommendation by this four member sub – board.”

If these allegations prove to be true, and the RTS Action Group are adamant that they are, then this constitutes an extremely serious breach of the code of practice, which should lead to a mass resignation of the EirGrid Board of Directors.

In a statement released after the meeting with the Minister, the RTS Group said:

“The RTS Group believe that Minister Naughten, who was accompanied to meet the delegation by his Cabinet colleague and local TD, Charlie Flanagan, had his eyes opened and was astonished by the import, nature, scope, scale and seriousness of the information being placed before him, for the first time.

This meeting arose from a promise made last June in the Dáil by Minister Naughten to visit the site of Eirgrid’s “unauthorised development” and the community who alerted the authorities to Eirgrid’s illegal building activities.

Our greatest concern is that the construction of Eirgrid’s unnecessary energy hub project will destroy and pollute the very necessary and only source of clean water for not just this community but for 8,000 Laois people. All of the evidence of how Eirgrid have conducted themselves up to now points to this eventuality, and we just can’t allow that to happen.
The political fallout from this semi-state operating with such a cavalier attitude to planning law, sustainable development, professional best practice, and corporate responsibility was that all three local TD’s and all Laois County Councillors were unanimous in calling for Eirgrid to cease the development.

We set out some of the evidence for the Ministers as to how Eirgrid have been deliberately deceiving us, the planning authorities, the other arms of state, and even the Dáil from the very outset of this ill-conceived project. This is not due to a few mistakes, or a few individuals making errors, but systematic deception through every phase of this development from its inception to illegal commencement. This evidence has been collected through in depth research and forensic examination. The community could not rely on what Eirgrid were telling us in the public domain throughout their sham consultation process. This damning dossier has been given to Minister Naughten, who as line Minister is ultimately responsible for Eirgrid, their conduct and corporate transparency and accountability.

The buck stops with him. He is now in full knowledge of the scale and scope of Eirgrid’s deception and disgraceful behaviour, we expect the Minister to reel Eirgrid in, to finally make them accountable for their actions on site and in their boardroom. He must move to scrap the project. On foot of today’s new revelations it is incumbent on the Minster to act, act promptly and decisively”.

 

The last word goes to the current Minister of Justice, who made the following statement after being briefed by the RTS Group:

“There has been a clear breach of law. The breach is sufficiently serious to abandon the project. I don’t believe there is any way back for EirGrid. They should pack up their machinery and should not come back.”

Posted in EirGrid; Insurance; Law; Cancer; EMF, RTS Action Group; Ratheniska; Timahoe; Spink | Tagged , , , , , , , , , , , , , , , | 5 Comments

‘Windfarm has ruined my family’s life’

wind-noise

 

Yet another distressed family has come forward to describe how a wind farm in Co. Wicklow has ‘ruined’ their lives.

 

Richard Hobson and his partner have two special needs children who are sensitive to noise and light. The family moved to County Wicklow for the ‘space and tranquility’ it offered and so that the children could be play outside in peaceful surroundings, as is a child’s right.

 

Due to the noise of the newly constructed wind turbines at Ballycumber Wind Farm the children can no longer play outside.

Elaine says:

“But after being out there for a while and being exposed to the noise, between 30 and 45 decibels, they get very stressed and upset. A lot of the time now I bring them elsewhere to play. It breaks my heart as we moved here to have space. We used to live in a housing estate in the city but it was too busy and dangerous. We thought we would have the space and tranquillity of the countryside here.”

See the full story: Wicklow Times and National Wind Watch.

 

Governments are elected by the People to serve the People, but the scale and extent of wind farm development in this country exposes our rulers as self-serving autocrats. One of the most fundamental constitutional and human rights is for a citizen and his/her family to be allowed “undisturbed possession” of their home. How is it then that wind farm developments are allowed to drive citizens and their families from their homes with the endorsement and financial assistance from those in power?

 

The continuous inaction on planning guidelines is another indicator of who actually rules this country. We should have statutory Regulations in place to control wind farm development, but instead we are still waiting for mere guidelines!

This crime against the People cannot be laid at the feet of one political party or one government. At the moment all political parties support the development of wind energy in Ireland despite the overwhelming evidence that they do not work, and cause more environmental harm than good. The exception to this might be Renua, but even they need to be more forthright in their denouncement of the subsidy scam .

We are still waiting for a cost-benefit analysis of the massive €1.2 billion spend per annum  that is paid by the taxpayer to achieve a CO2 emissions saving that is so negligible it barely raises a blip on the scale. And that is the official figure that they admit to spending. God knows what monies are passing hands under the table.

 

The bank crash and subsequent bailout proved who actually ruled this country, and with the wind farms and subsidy scam, it is simply a matter of “here we go again”.

Wake up Ireland. Somebody’s arse needs to be soundly kicked.

 

Posted in Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten | Tagged , , , , , , , , , , , , , , , , , | 7 Comments

Lots of hot air, but still no cost-benefit analysis

Wind-aware-logo220W

Wind Aware Ireland Press Release

Minister Naughten has been accused of talking  ‘gobbledygook’ on wind energy by a top economist.

Minister Naughten’s take on wind energy in Ireland has been described as “gobbledygook verging on baby talk.” by top economist Cormac Lucey in the Sunday Independent.

Our energy policy has been promulgated by anonymous civil servants, and unchallenged by successive ministers afraid of not being seen to take climate change seriously. Almost all political parties have followed this Green Party zealotry without understanding the context, technical limitations of wind energy or asking any hard questions.

The Department and SEAI have been led a merry dance by the wind developers while we, the citizens, pay €1.2billion a year, to support this industry. A largely complicit and unquestioning media have gone along for the ride, choosing to believe the SEAI and Irish Wind Energy Association spin. Meanwhile emissions continue to rise.

Two of Ireland’s leading economists, Cormac Lucey and Colm Mc Carthy, as well as the Irish Academy of Engineering are now asking serious questions about wind energy. When will Minister Naughten stand up his department and the SEAI, and act on evidence instead of “gobbledegook” wishful thinking?

http://cormaclucey.blogspot.ie/2018/01/for-all-hot-air-about-wind-farms-we.html

https://www.yumpu.com/en/document/view/59534715/costs-of-wind-energy-report

 

 

 

 

 

 

Posted in EU Renewable Energy 2020 Target, Green Party; Ireland; Eamonn Ryan; Cormac Manning | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , | 4 Comments

Plus ça change, plus c’est la même chose

An interesting commentary from Pat Swords on the North-South Interconnector:

“Some thoughts and facts about the Ireland of today with further confirmation that we don’t live in anything that even remotely approaches a Democracy. Still one gives it a ‘poke’ and it interesting to see what comes out.

The background to this is the North South Interconnector which is a 400 kV pylon route of 140 km in length from the South of Meath some 34 km into Tyrone, with a cost of some €250 million. The reason for it? It is part of the €4 billion high voltage grid expansion for the Island of Ireland to facilitate a target of some 40% wind energy (42% in N. Ireland target). Let’s face it for years the Irish grid functioned perfectly well without this project. Pretty picture of typical 400 kV pylon below, plus this project directly facilitates the roll out of more than 600 MW (> 300 turbines) in Donegal and West N. Ireland.

Naturally, it is contentious. As a Strategic Infrastructure Development it went straight into An Bord Pleanala, with the only right of review being into the Courts. Under the UNECE Convention and the European Law which implements it, such a legal appeal is meant to address the substantive and procedural acts and omissions. In practice, an Irish Court will not look at a substantive issues, i.e. related to the merit of the decision making, unless you can first prove that the Government official acted so irrationally that it defied common sense. So your only chance is on procedures.

At the Bord Pleanala stage an unprecedented 871 submissions costing €50 each were made by individuals and groups of individuals working together. Plus people put a lot of time and effort in to present at the oral hearing. An Bord Peanala file: http://www.pleanala.ie/casenum/VA0017.htm

You will notice that a repeated theme of the public from the summary of their submissions, was why do we need this project and there are huge illegalities in the manner this renewable programme has been adopted:  http://www.pleanala.ie/documents/reports/VA0/RVA0017A.pdf

However, An Bord Pleanala ruled all matters connected with the need for the project and anything related to overarching plans and programmes as out of the scope of its decision making. Instead this decision-making was limited as to whether it went overground or underground and the final routing, i.e. left or right. The Convention and the EU’s Environmental Impact Assessment Directive, which transpose it, require “effective public participation when all options are open”. The UNECE’s Recommendations and International ‘case law’ on public participation are clear: Participation means that there must be a possibility to influence the decision. Note: Consultation is when you tell them what you are doing, participation is when it can be influenced. Secondly, decision making often occurs in tiers; for example some overarching decisions being taken at a plan / programme level and then others at the subsequent project level, for which as the Recommendations explain:

https://www.unece.org/fileadmin/DAM/env/pp/Publications/2015/1514364_E_web.pdf

• F. Early public participation when all options are open (article 6, paragraph 4) 78. In the case of tiered decision-making (see para. 17 above), in order to ensure early and effective public participation when all options are open: a. There should be at least one stage in the decision-making process when the public has the opportunity to participate effectively on whether the proposed activity should go ahead at all (the zero option) (see also para 16 above); b. In addition, at each stage of a tiered decision-making process, the public should have the opportunity to participate in an early and effective manner on all options being considered at that stage; c. Information about the decision-making in the earlier tiers should be available in order for the public to understand the justification of those earlier decisions — including the rejection of the zero option and other alternatives; d. When in a tiered decision-making process new information subsequently sheds doubt on decisions made in the earlier tiers or stages or severely undermines their justification it should be possible to reopen these decisions.

Needless to say the public were never involved with the decision-making on the National Renewable Energy Action Plans for 40% renewable electricity, which included this grid programme, neither does any environmental assessment exist for any aspect of that.

So what did we learn today? Well essentially An Bord Pleanala is a ‘clearing house’ or ‘rubber stamp’ for Government policy and we have absolutely nothing to do with their function other than they just collect public submissions at €50 a go from us, record them and ignore them.

It gets deeper though, not only did the EU do the complete dirt on the public by adopting these National Renewable Energy Action Plans without any environmental assessment or public participation, but it went out and repeated this exercise in 2013, by adopting a Regulation on Projects of Common Interest (PCIs) to provide fast track planning and billions of funding to some 150 transboundary electricity projects. At the moment there is a UNECE Aarhus Compliance Case (C-96) on-going on this which is very near completion. But in summary that compliance case proves as to how no environmental information was available, as it simply did not exist. The public in the Member States were never informed. Instead an obscure EU consultation website was used, which only ‘insiders’ would know about and everything was in English only, which is ‘bugger all use’ to the majority of the EU’s 470 million citizens, who don’t speak English. The below is the sum total of environmental information relating to the North South Interconnector which the EU had, when it adopted the below on its 2013 PCI list. :

First of all even if we wanted to legally challenge the EU on this PCI Regulation, we can’t as EU Citizens have no access to the European Court of Justice to do so, a position in which the EU is in contempt of a ruling at UNECE against it. Therefore, one has to try and take an indirect challenge through a project, such as the North South Interconnector. However, it is position the judge adopted on this Article 7 of the Regulation above, which is very interesting (despite what we had argued / presented):

•  http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013R0347

• Article 7
‘Priority status’ of projects of common interest
1.   The adoption of the Union list shall establish, for the purposes of any decisions issued in the permit granting process, the necessity of these projects from an energy policy perspective, without prejudice to the exact location, routing or technology of the project. [Emphasis in bold]

So once the EU put it on the list, it was all a done deal! The public participation was only there for ‘candy floss’. An Bord Pleanala is a clearing house to rubber stamp the project and the Irish High Court is a clearing house to rubber stamp An Bord Pleanala.

So it’s just like Animal Farm, where the pigs (especially Napoleon) decide and the animals have to toil building windmills, as Squealer the pig explains it:

• “No one believes more firmly than Comrade Napoleon that all animals are equal. He would be only too happy to let you make your decisions for yourselves. But sometimes you might make the wrong decisions, comrades, and then where should we be?”

Plus ca change!

Regards

Pat

Posted in An Bord Pleanala; appeal; interested parties, Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, EIA Directive 2014/52/EU, EirGrid; Insurance; Law; Cancer; EMF, EU Renewable Energy 2020 Target | Tagged , , , , , , , , , , | 1 Comment

A Solar Roof?

I found this on Bloomberg.

 

I would be interested to read peoples’ comments.

 

 
“Tesla Inc. has kicked off production of its long-awaited electricity-producing shingles that Elon Musk says will transform the rooftop solar industry.

Manufacturing of the photovoltaic glass tiles began last month at a factory in Buffalo built with backing from New York State, the company said in an email Tuesday. It comes more than a year after Tesla unveiled the shingles to a mix of fanfare and skepticism.

The appeal: a sleek, clean solar product, especially for homeowners seeking to replace aging roofs. The tiles — from most angles — look like ordinary shingles. They allow light to pass from above and onto a standard flat solar cell.

Tesla, the biggest U.S. installer of rooftop-solar systems, piloted the product on the homes of several employees. The company expects to begin installing roofs for customers within the next few months.

 

Solar shingles will cost more than a conventional roof along with photovoltaic panels — but not “wickedly so,” said Hugh Bromley, a New York-based Bloomberg New Energy Finance analyst. He estimates a Tesla roof would cost about $57,000 for a 2,000-square-foot house, compared to about $41,000 for terracotta tiles along with a 5-kilowatt solar-panel system. A plain-old asphalt roof with panels would run about $22,000, Bromley said.

“It may actually do well in overseas markets where solar-photovoltaic is cheap and homeowners are used to paying a premium for building materials and cars — such as Australia,” Bromley said in an email.

Tesla started production of solar cells and panels about four months ago at its Gigafactory 2 in Buffalo. New York committed $750 million to help build the 1.2 million-square-foot factory, which currently employs about 500 people. The plant will eventually create nearly 3,000 jobs in Western New York and nearly 5,000 statewide, Governor Andrew Cuomo said in 2015.”

Posted in Academic Research; Peer-Review Process; Medical Journals, EU Renewable Energy 2020 Target | Tagged , , , , , , , , , , , , , , , , | 7 Comments

Corporate Energy Control is the big problem

If each household was an energy neutral entity, would that not be far more desirable than ramping up the grid and building massive wind farms all over the country? It seems logical, but of course that would mean an end to the subsidy scam and the corporate control of the energy market.

A very interesting article by Claire McCormack:

Big energy players wield ‘too much control’ on future renewable vision

Claire McCormack

Dec 29, 2017, 2:52pm

The Micro-Renewable Energy Federation (MREF) has today warned against the “significant influence” major energy companies have over the country’s future renewable strategy.

Pat Smith, joint chairman of MREF, has claimed that major utilities want to retain “total control” over the generation, distribution and supply of electricity – a move which he says “dismisses” the potential growth of a micro renewable energy sector in Ireland.

Micro generation is the small-scale generation (less than 11kW) of heat and electricity power by individuals, small businesses and communities to meet their own needs.

This type generation from small-scale wind, solar and hydro energy, could be used as a viable alternative to traditional centralised grid-connected power.

“Recently released consultation documents on a new renewable energy support scheme bore all the hallmarks of big energy influence. The micro generation sector is almost totally dismissed as a viable alternative to big energy players,” said Smith.

Nothing could be further from the truth as roof top solar PV (photo voltaic) and battery storage are viable and sustainable solutions to help Ireland achieve its challenging climate change targets.

The MREF estimates that there are at least 500,000 homes, 50,000 businesses, and 100,000 farms whose roof space could collectively accommodate at least 5,000MW of electricity generation.

“With the use of battery and other storage options – such as water heating and electric vehicle charging – most if not all of this energy could be consumed within the very homes and businesses where the renewable power is generated. This would also have a positive impact on grid capacity.

“The incentives needed to support businesses and homes switching to solar and battery storage technologies are less than what the government is currently paying big wind developers in guaranteed feed-in tariffs. Most of these financial supports are leaving the country,” he said.

Redirecting PSO levy

The MREF contends that redirecting 20% of the existing PSO levy towards micro generation would provide grant support; a generation tariff; and facilitate the viable roll-out of up to 250MW per year of roof top and ground mounted solar – that could be used for energy consumption in homes and businesses countrywide.

It is time that the government moved to break the stranglehold of the major energy utilities by supporting micro generation and encouraging households and businesses to generate some, if not all, of their own electricity requirements.

Ireland is one of the only countries in Europe yet to support micro renewable technologies including roof top solar and battery storage, according to the MREF.

“Farmers also need to be incentivised to adopt renewable technologies with a credit offsetting carbon reductions achieved through micro generation,” Smith concluded.

The Micro-Renewable Energy Federation is a members’ organisation representing the majority of companies and stakeholders engaged in developing, installing and manufacturing micro PV solar and battery storage in Ireland.

MREF also represents thousands of households and businesses waiting for the “long overdue” delivery of the government’s commitment to support micro energy generation.

Posted in EU Renewable Energy 2020 Target | Tagged , , , , , , , , , , , | Leave a comment

Germany’s ‘Green’ Energy Myth Busted: Landscapes Trashed, Countless Birds & Bats Slaughtered

STOP THESE THINGS

Wind and sun worshipping eco-zealots don’t hold a monopoly on hypocrisy, but come very close. As nasty as they are sanctimonious, the more active and vociferous members of the wind cult have no difficulty in justifying the destruction of pristine landscapes; the dismemberment of once cohesive, rural communities; the creation of toxic waste lands in China (where the rare earths essential to wind turbines are processed); power prices that punish the poorest and most vulnerable in society; and barely bat an eyelid at the slaughter of millions upon millions of birds and bats, across the globe.

Germany has been held up as the renewable energy poster child. However, with its landscapes being trashed and wildlife perpetually walloped out of existence, the wind industry is fast becoming environmentalists’ public enemy number one.

Truly Green? How Germany’s ‘Energy Transition’ is Destroying Nature
Global Warming Policy Foundation
Michael Miersch
24…

View original post 3,882 more words

Posted in EirGrid; Insurance; Law; Cancer; EMF | Leave a comment

Autism: how do you explain …

My amazing wife and one of our handsome sons!

From the Inside

Today I came across some notes I had written a couple of years ago, when Ian was due to spend two weeks with some people who didn’t know him.  Perhaps this would be a suitable adult centre for him to attend;  perhaps not.  How could I possibly sum up our complicated young adult in a way that would make sense?

I had no choice but to limit my notes to the few things I considered most important.  It was, after all, only a two week stint.

When I read them today, I laughed.  How terse I sound!  How anxious to impress upon them the rules we had instilled so many years ago!  And how impossible it was to encapsulate all that is Ian in less than two pages!

But I felt it was worth sharing.  It entertained me;  perhaps it will entertain you.  This is what I wrote —

“Please…

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Unjustified spending and rampant price increases in costs of electricity

The Report is now available to read.

The Law is my Oyster

wind-money

Wind Aware Ireland have launched their new report “The Costs of Wind Energy in Ireland”. This report may precipitate the latest scandal in public spending.

REPORT: The Costs of Wind Energy in Ireland

The report shows that the Irish State and consumer are spending approximately €1.2 billion per year on wind energy and no one has done the sums to justify this spend.

The Irish Academy of Engineering found that focusing mainly on wind to reduce emissions would create the highest technical risk, would generate the lowest amount of reliable electricity and had lowest public acceptability compared to using biomass or carbon capture and storage. They said “A detailed analysis needs to be carried out of the costs and socio-economic implications of reducing emissions”.

Economist Colm McCarthy noted “It is time for Government to acknowledge that Ireland has enough wind farms, that they cost too much in subsidies and that promising…

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Posted in EirGrid; Insurance; Law; Cancer; EMF | 2 Comments

Unjustified spending and rampant price increases in costs of electricity

wind-money

 

Wind Aware Ireland have launched their new report “The Costs of Wind Energy in Ireland”. This report may precipitate the latest scandal in public spending.

REPORT: The Costs of Wind Energy in Ireland

The report shows that the Irish State and consumer are spending approximately €1.2 billion per year on wind energy and no one has done the sums to justify this spend.

The Irish Academy of Engineering found that focusing mainly on wind to reduce emissions would create the highest technical risk, would generate the lowest amount of reliable electricity and had lowest public acceptability compared to using biomass or carbon capture and storage. They said “A detailed analysis needs to be carried out of the costs and socio-economic implications of reducing emissions”.

Economist Colm McCarthy noted “It is time for Government to acknowledge that Ireland has enough wind farms, that they cost too much in subsidies and that promising routes to cut emissions lie elsewhere.”

All legally mandated checks and balances for wind energy have been bypassed; no costs benefit analysis, no strategic environmental assessment and no regulatory impact analysis has ever been undertaken to justify this spend.

This sheer lack of accountability and the capture of policy by wind developers should be grounds for a national scandal.

Paula Byrne (PRO)

Wind Aware Ireland

www.windawareireland.com

Phone:  057 86 27048

Mobile: 086 8241523

Email:  paula@windawareireland.com

Posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, EirGrid; Insurance; Law; Cancer; EMF, EU Renewable Energy 2020 Target, Green Party; Ireland; Eamonn Ryan; Cormac Manning, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Strategic Environmental Assessment (SEA); Grid 25; North-South Interconnector, Wind Farm Contract, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten, Wind Turbine Syndrome; Professor Alun Evans, Wind Turbines: Esen Fatma Kabadayi Whiting | Tagged , , , , , , , , , , | 2 Comments

Think, dammit, THINK!

'I know figures don't lie. Your job is to make them.'

 

“If we are uncritical, we shall always find what we want: we shall look for, and find, confirmations; and we shall look away from, and not see, whatever might be dangerous to our pet theories.”

(Karl Popper)

in this Information Age, we are being bombarded with huge amounts of information all the time. The obvious result is that we stop looking too closely – this is almost a self-defence mechanism by our brain, as it stops us from going mad at the sheer volume of STUFF.

This is also extremely dangerous, as we are reading, digesting, and passing on a lot of information that is likely to be downright dodgy, we just don’t have the time or energy to check its provenance.

It is essential that we continue to disagree, debate and question as much as possible. In doing so we must understand what it is we don’t agree with, so that we are able to clearly articulate what it is that we don’t agree with when somebody challenges us or our views. It is not enough to just say you disagree, you must be able to come up with a better alternative or explanation.

“We engage in critical thinking, or benefit from the lessons of previous critical thought, all the time without being aware of it. If we took everything at face value, we wouldn’t get very far in life: we would be deceived, bewildered, manipulated, confused. Imagine if you believed everything you were told by everyone, everything that you saw and heard and read in every advert, in every politician’s claim.”

“When we are thinking critically, we are setting out actively to understand what is going on by using reasoning, evaluating evidence and thinking carefully about the process of thinking itself.”

(Tom Chatfield  #TalkCriticalThinking)

This blog has not been shy in voicing certain strong opinions, but that is all they are – opinions. I have always encouraged people to comment, whether for or against, and engage in spirited debate. Work pressure is preventing me from blogging as much as I used to, but I would welcome peoples’ comments and views on the energy debate, climate change, global warming, planning, and of course the law!

All I ask is that we stop uncritically accepting the massive amounts of nonsense that seem to constantly pour out of the websites of various government departments, and the plethora of sycophantic media outlets that disseminate their sh*t, forever polluting the minds of the uncritical reader.

DISAGREE! DEBATE! QUESTION!

“The trouble with having an open mind of course is that people will insist on coming along and trying to put things in it.”

(Terry Pratchett)

Posted in Academic Research; Peer-Review Process; Medical Journals, Brexit, Cloud; iCloud; Data Centre; Data Center, EirGrid; Insurance; Law; Cancer; EMF | Tagged , , , , , , , , , , , , , , , , , , , , , | 9 Comments