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 Judicial Review - A Tool of Repression?

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PostSubject: Judicial Review - A Tool of Repression?   Tue Jul 08, 2008 9:47 pm

A comment by Miriam, over on Indymedia inspired this thread. LINK

I intended to write on this topic but hadn't set a timescale for myself to do so. There are lots of threads on Machine Nation that I want to take part in, but time is my enemy and it always will be I'm afraid. My apologies to folks for this. It's a case of lag rather than cut and run, if that's a reasonable excuse.

Anyway, Miriam, one of the most interesting and talented citizen journalists to grace Indymedia, has reminded me, with a single sentence, of the importance of judicial review. It's my intention to outline why I think that judicial review is a tool of repression and to go into serious argument over time and as this particular thread grows.

At the outset it is only fair to point out that this issue, like every other issue of importance, is not a simple black and white affair. There are many instances where judicial review has upheld justice, indeed it's a tool that facilitates and has arrived at most good case law, which in turn can and does facilitate justice.

The above having been said, I must go on to illustrate my opinion fully and state that: overall, I believe that judicial review is an abomination that subverts and perverts the aims and decrees of Bunreacht Na hÉireann.

Strong words huh?

Permit me to simplify the essence of judicial review. Judicial review can be summed up in a single sentence, which in turn can be extrapolated into the contents of every book ever written on law and every case that's ever been heard. The single sentence is: 'Judicial review is an examination of jurisdiction.'

Judicial review can examine any decision, taken by any group or person, that can impose legal (allegedly) restraints or obligations on a person or a group. I can judicially review anything from the current unlawful poster ban in Dublin, imposed unlawfully by Dublin City Council, to a Judge in Galway, who unlawfully and wilfully subverted the constitution and shattered my rights, by having me dragged from a courtroom by two Gardaí, for daring to bring a pen and a notebook into the courtroom and insist upon using them despite being ordered not to, by her.

The most powerful, and some might say the most sacred, use of judicial review, is where it is used in the instance of fighting a Habeas Corpus application.

The following from Bunreacht Na hÉireann defines my rights with regard to imprisonment and thus sets up the restrictions imposed upon the State with regard to my right to initiate a Habeas Corpus application.

Bunreacht wrote:
40. 3. 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

40. 4. 1° No citizen shall be deprived of his personal liberty save in accordance with law.

2° Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.

3° Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of case stated and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it.

4° The High Court before which the body of a person alleged to be unlawfully detained is to be produced in pursuance of an order in that behalf made under this section shall, if the President of the High Court or, if he is not available, the senior judge of that Court who is available so directs in respect of any particular case, consist of three judges and shall, in every other case, consist of one judge only.

In essence, a Habeas Corpus application is an Article 40 enquiry.

When one (or one's legal representation) initiates a Habeas Corpus application, it is considered one of the most sacred facets of law. It's so powerful, one is entitled to knock on the door at the house of a High Court judge at 3.00am on a Sunday morning to initiate it. Thus begins the Article 40 enquiry as demanded by our constitution.

At the High Court's very first opportunity however, this enquiry will be "converted" into a judicial review. The promise that the State will "... by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen." gets tossed at this point and it is the applicant who must catch it and attempt to wield it. It becomes the duty and burden of the applicant to protect himself/herself and to vindicate his or her life, person, good name and property rights. In this instance, a judicial review clearly subverts the constitution by placing the burden that is the State's, onto the shoulders of the individual. To add insult to injury, if a judge is a party to the incarceration (where a person has been jailed for alleged contempt of court for example), this judge may not be compelled to submit evidence to the hearing. That makes things interesting doesn't it?

That, ladies and gentlemen, is the essence of my argument. I've looked specifically at Habeas Corpus, but the argument may be expanded to any judicially reviewable entity. It is the duty and indeed the burden of the State, to vindicate and uphold my rights and freedoms. Judicial review reverses this burden.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Tue Jul 08, 2008 10:55 pm

From my limited experience of Judicial Review, it is just what you say - a second look at procedure. It doesn't go to the principles or the matter in had in a dispute, only the manner in which it has been examined.

In environmental matters, there is more possibility of success through using the planning processes at local authority and An Bord Pleanala level. Even there, when it comes to major government backed strategic development, the Board puts heavy weight on government policy, even when a project has multiple environmental disadvantages.

Miriam's statement on Indymedia called for pooling of resources on environmental matters. What she didn't mention is that we have a Green Minister for the Environment and once in Government he appears to be engaging in the typical obfuscation and cover up that you could expect of any "mainstream" politician.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Tue Jul 08, 2008 11:44 pm

Hermes, I'll have a look at this when I'm awake and can give it the attention it deserves!
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PostSubject: Re: Judicial Review - A Tool of Repression?   Tue Jul 08, 2008 11:52 pm

cactus flower wrote:
From my limited experience of Judicial Review, it is just what you say - a second look at procedure. It doesn't go to the principles or the matter in had in a dispute, only the manner in which it has been examined.

In environmental matters, there is more possibility of success through using the planning processes at local authority and An Bord Pleanala level. Even there, when it comes to major government backed strategic development, the Board puts heavy weight on government policy, even when a project has multiple environmental disadvantages.

Miriam's statement on Indymedia called for pooling of resources on environmental matters. What she didn't mention is that we have a Green Minister for the Environment and once in Government he appears to be engaging in the typical obfuscation and cover up that you could expect of any "mainstream" politician.

Nail on the head CF.

Judicial review simply looks at any problem from the perspective of deciding upon whether a particular mechanism that facilitated a particular decision or action was applied or used incorrectly. For example, one often encounters the following: "The judge may have been wrong but he did nor err in law."

I think Miriam succinctly rectified that omission in a follow-up comment, though she didn't specifically mention any minister by name Very Happy LINK.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Wed Jul 09, 2008 12:32 pm

Hermes, as far as I can see your post argues in favour of judicial review up until you deal with the mechanics of the adversarial process in repsect of one area, i.e. habeus corpus. In effect, I think you have made a compelling case for judicial review save in that one aspect.

On that aspect I think a number of points should be made:
- the adversarial system is just a method of arriving at the truth.
- Most habeus corpus applications are made by people availing of free legal aid, provided by the state fortheir protection.
- Even if you had no lawyer and made arguments as a lay man the judge would act in a fair manner and would examine the situation notwithstanding that the individual had not made all the right legal points. It is not like a civil situation where the judge can restrict his attention to the arguments made by the parties.

In other circumstances, judicial review allows people to second guess branches of the state apparatus which were in the first place supposed to act fairly at no cost to the individual, i.e., the State has already appointed people to act fairly and laid out money to achieve such fairness. To this end, the state has done its bit but the law admits that the agents of the state may fail and allows people to question it. There has to be some deterrent to abuse or swamping of this second guessing procedure and that deterrent, in civil matters, is the legal costs involved.

The truth of the matter is that people feel aggrieved, rightly or wrongly, every day. If judicial review was always at the cost of the state then there would be cases initiated every day. Lawyers would be creaming in the money, no claim would be dismissed as too trivial or too tenuous, people would threaten judicial review at all stages, decisions would be coloured by the possibility of delay, other parties would use it simply to cause delay, the courts would be swamped and the functioning of state entities would be crippled.

As things stand, if you do feel aggrieved and you bring a case and win then you will be awarded your costs. That means that people's rights are vindicated at no cost to them. What the state will not fund is people taking cases which are not well founded. The impact of this is a person can be totally biased and tunnel visioned and moan and berate a state bdy all they want, but at the end of the day the costs involved will force them to look coldly at the facts and to listen to others before they take a case.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Wed Jul 09, 2008 1:48 pm

Thanks for the response Zhou. I see that I'll have to flesh out my argument a bit more.

Let me start by saying that a Habeas Corpus application is not a judicial review, though they mostly (if not always) get "converted" into one. Whilst most applicants might indeed be buoyed by free legal aid, this protection vanishes as soon as the "conversion," takes place. One must apply for the Attorney General scheme if one cannot afford legal representation. This is quite a fair procedure and if one is entitled, one will get it, in all but the rarest of instances. However, successfully getting the Attorney General scheme is no guarantee that one will not be burdened by costs from the other side if one loses.

I'm a big fan of the adversarial system and in truth, it doesn't colour my thinking one way or the other with regard to judicial reviews. Other than to say, and it's the same in all facets of the justice system, that money talks.

Where my big issue with judicial review begins is best illustrated by a Habeas Corpus application, but in essence it does refelct the problem found in all judicial review applications. Say a person is arrested on suspicion of something and is being held in some prison after being refused a bail application. Despite the refusal of the bail application, it should be borne in mind that this person, according to Irish law, still enjoys the presumption of innocence. However, in this instance, let's pretend that we have divine gifts and know to an absolute certainty, that this person is totally innocent. This person knows that he or she is innocent too and naturally will and should initiate a Habeas Corpus application. The application becomes a judicial review. Let's say the applicant has lots of money and can afford decent legal representation and thus the Gardaí and the judge are named as respondents (as apposed to only the judge being named and the gardaí appearing as mere notice parties). The judicial review process begins and will take close to or longer than two years to reach a final hearing date. And it become's the applicant's burden to prove that either the Gardaí didn't have the right to take him into custody or that the Judge didn't have the right to refuse him bail. This might seem to be an impossible task, but it's not. It is a major uphill battle though. And it's insulting too, considering that the applicant is innocent, and supposedly enjoys a presumption of innocence. Of course proving that someone doesn't have the right to incarcerate you is similar to having to prove your innocence.

Let's say the judge in the High Court is made to see the light and grants the judicial review, but let's pretend that certiorari was not one of the reliefs sought (which is quite usual in Habeas Corpus application examining the denial of bail). Now the poor unfortunate must actually fight the criminal case, having given the State a full look at his defence beforehand. The case goes to court and both sides do their utmost to discredit each other's witnesses, due to the passage of time. The witnesses who made contemporaneous notes to avoid the pitfalls of time (the Gardaí) become the most credible of the witnesses.

Say our poor applicant loses the judicial review. Costs, smacked back into prison to await the trial and then face into it with the same disadvantages as outlined above.

All judicial reviews have the same inbuilt faults. The person who believes that his or her rights have been or are being shredded must run the Gauntlet and vindicate their own rights. To complicate this somewhat, the chances are that showing that one's rights are being urinated upon may not even be considered as admissable. Again, judicial review is all about jurisdiction. Fail to prove that the respondent/s didn't have jurisdiction and the fact that your rights were nullified becomes unimportant, though the judge might consider it poignant. Slap costs onto the violation of your rights for good measure to flavour your pain for you.

I've watched decent people on many an occasion lose their land, their houses and their bank accounts to judicial reviews. I've witnessed many's a time, that singular moment, when it dawns upon an applicant that the judicial review is about jurisdiction only and doesn't really care one way or the other for their rights. It's heartbreaking and even worse, judicial review is often the last or the only option open to them.

The legal profession is absolutely coining it. Many judicial reviews start each day. Check out Courts.ie to see how many of them succeed. Bear in mind that a large proportion of judicial reviews do not survive to hearing and are given up, with costs against the applicant.

Course you can always appeal a decision to the Supreme Court. That's where the real fun begins. Your burden increases. Now as well as proving that the original respondent/s didn't have jurisdiction, you must now prove that the High Court didn't have jurisdiction too.

God help us all. I'm all for the adversarial model. But Christ, it shouldn't be the whole world against you, arguing something that does not go to the heart of whatever it is that troubles you.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Wed Jul 09, 2008 2:13 pm

[This was written prior to your last comment Hermes]

I just read that comment by Miriam. She is a bit of a negative moaner if you ask me. She berates all official avenues to getting action as being false paths and promotes "peaceful direct actions" as an alternative to dealing with the sullied politicans. This of course misses the point that all peaceful protest does is to bring you back to the same politicians. This is the best time to address the Cobh problems with a principled Green Minister in the hot seat who is being open and fair with the people. I can't understand anyone who does not appreciate that. I also note her criticism of another interest group which is typical of people who are more into the fight than the cause and who want everybody to dance to their tune.

Two quotes came to me on reading that piece. The first was that of Robert Kennedy sayin gthat 20% of the people are against everything all of the time and the second was that of George Orwell who said that most socialists are motivated by a dislike of their country.

The quote statement that Judicial Review cases "only end up in casuist legal rulings that favour business interests while people get diverted and burned out by them". Is a glib insult to our Constitution our Courts and the rule of law. It is the kind of glib insult that one would expect of a Chavez or a Musharraf or somebody else who thinks that their view should prevail over all everybody else's because they are right and infallible and others are wrong and flawed.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Wed Jul 09, 2008 2:30 pm

I dunno Zhou. I think you might be taking her up wrong with regard to direct action. In my experience, direct action rarely brings you the full circle back to the politicians. And if it does, they normally have more incentive to do the right thing. I'm totally biased of course, I'm a very big fan of direct non violent action.

I must admit that I agree with her too on what she said about judicial review. Fair enough it was pretty stark, but it was a single sentence. Had she elaborated, I'm sure that some of the implied sting would have been removed. I don't think she insulted Bunreacht. After all, corporate bodies are not given rights by our constitution, only bodies of flesh and bone. Judicial review doesn't see it this way though.

I see her point about different groups too. Unfortunately, I see yours too Very Happy. I'm somewhere between the two of you on that one. I see lots of small groups taking different paths that can in some cases be squashed easilly because of their small numbers. On the other hand, it can be likened to a lottery too, where the more options you play, the greater the chance of success - success is a great binder too. Unfortunately, Miriam is very right, with regard to the past record of many of these organisations (through no deliberate fault of their own - nobody aims to fail). And I fear that she's very correct with her legal prediction in this particular instance.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Wed Jul 09, 2008 2:52 pm

Hermes, you seem to know more about bail applications etc. than I do. Can you explain to me when judical review is more appropriate than simply appealing a refusal of a bail application.
A few points occur to me in relation to bail applications and judicial review cases failing:
- Bail is not decided on guilt or innocence,
- I believe the refusal of Bail applications can be appealed in less than 2 years,
- guilt or innocence is decided in the criminal case,
- Judicial review is about process and findings of fact will not be over-turned unless they are ridiculous,
- expect the number of judicial review cases to increase as lawyers face loss of income,
- you cannot blame judicial review of itself for the fact that people think it is just another form of appeal or because clients are badly advised,
- you cannot blame judicial review for people not seeking the correct order,
- as far as I know, the High Court always has jurisdiction,
- Judicial Review isn't just about having jurisdiction; it is also about following fair and constitutional procedure.

I think we can agree to disagree about Miriam. If she is right that judicial review would fail then I suggest that is because the judicial review case would be weak rather then that Judges would engage in casuistry to protect business interests.

The difficulty for people seeking redress is that it is very hard to show causation of illness and the remedies for mental distress are very limited (for good practical reasons). If the EPA or other bodies have failed to discharge their duties or to act properly then that may be open to judicial review but the upshot may be that the operator is not adversely affected by findings of failures on the part of the state.

The main goal now should be to get the whole place cleaned up insofar as is possible. I think John Gormley being Minister will be a blessing to the people of Cobh in this regard.

What is "direct non-violent action" by the way?
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PostSubject: Re: Judicial Review - A Tool of Repression?   Wed Jul 09, 2008 4:16 pm

Zhou wrote:
Hermes, you seem to know more about bail applications etc. than I do.
Can you explain to me when judical review is more appropriate than
simply appealing a refusal of a bail application.
A few points occur to me in relation to bail applications and judicial review cases failing:
- Bail is not decided on guilt or innocence,
- I believe the refusal of Bail applications can be appealed in less than 2 years,
- guilt or innocence is decided in the criminal case,
- Judicial review is about process and findings of fact will not be over-turned unless they are ridiculous,
- expect the number of judicial review cases to increase as lawyers face loss of income,
-
you cannot blame judicial review of itself for the fact that people
think it is just another form of appeal or because clients are badly
advised,
- you cannot blame judicial review for people not seeking the correct order,
- as far as I know, the High Court always has jurisdiction,
- Judicial Review isn't just about having jurisdiction; it is also about following fair and constitutional procedure.

Bail is a minefield when it's refused as there are many legal approaches that one might take. I think an example might illustrate the answer to your question, rather than getting bogged down with the multitude of possibilities. This example will look at judicial review sorting out a bail application that has not been refused but where the defendent feels that the bail conditions are very punitive.

Let's say the defendant is accused of stealing a loaf of bread. Let's say the judge grants bail but insists upon, after taking advice from the Gardaí through the DPP, the defendant signing on six times a week in a local Garda station and surrendering his or her passport. The judge then sets the case down for hearing, after a request from the DPP has been lodged, some six months later.

The defendant might choose to appeal this matter. The appeal will take months if he or she is lucky. However, it might be the case that the defendant might be able to prove that the Gardaí gave misleading information that led to the strict bail conditions. He or she might also be able to show just reasons as to why the Judge should not have taken the word of the Gardaí on this matter. A judicial review can start the process of sorting this matter out immediately and indeed the High Court could very well suspend the sign-on conditions from the get go. The chances are though that the High Court won't. The applicant will most likely have to lodge a motion (separate to the actual judicial review) to have the Gardaí submit affidavits and open themselves to cross-examination. At this point the sign-on conditions might well be removed and as an added bonus, the applicant now has a fist full of Garda affidavits that he can produce at the criminal hearing, that show that the Gardaí have already mislead the court.

Tis all tactics I'm afraid. The wiley defendant with good representation will pull every stroke in the book. Though I hope my example shows the possibility of an honest approach and intent too.

- True, bail is not decided on guilt or innocence. It can be decided on misinformation though and often is.

- I'm not sure how long you have to appeal a bail application, without looking it up (which I'm not in a position to do currently - I'll check it out later and get back to you).

- Guilt or innocence is mostly decided in a criminal case, but not always. Certiorari can remove a case from the lower courts and decide upon its merit as part of a judicial review. Whether this happens or not most applicants will still have to go into what will eventually be their defence, in a judicial review. This will obviously give the prosecution an unfair advantage during the criminal trial. (Though in fairness, the defendant can gather some advantages too as can be seen in my bail example).

- You're correct, judicial review is about process. And findings of fact will not be overturned unless it can be shown that some facet of the process is an incorrect assumption and that the mechanism that arrived at the fact was an unlawful one, regardless as to the state of the alleged fact itself. But that is in and of itself the problem. The result of a process is what directly causes justice or injustice. Instead of backward engineering the issue from either the state of injustice or the state of justice, a judicial review merely examines the process and couldn't give a fig for its result. This would be fine if some alternative existed to examine the result of a process, it doesn't exist though.

- Expect the number of judicial reviews to increase regardless as to whether the legal profession feel the pain. A somewhat disturbing and large increase is due to many lay litigants launching their own judicial reviews. I expect to see this particular trend increase dramatically as the legal profession are ignored due to extortionate prices. With this increase, I also expect to see a significant increase on judicial reviews failing. I see the whole system heading towards collapse - this might seem somewhat alarmist and may be a bit premature this early in the thread.

- True, I cannot blame judicial review for people not seeking the correct order - and it does happen. However, I can blame judicial review for seeking to answer questions it's not being asked. Especially when no other forum exists to answer these questions. Judicial review happily parades as an entity that doesn't exist.

- For all intents and purposes the High Court always has jurisdiction. Except when it has to ask the Supreme Court for guidance, or when the Supreme Court overturns a ruling made by the High Court (an appeal of a Judicial Review being a good example).

- I disagree, judicial review is about jurisdiction solely. The court itself is mandated by the constitution, however, Bunreacht makes no mention whatsoever about judicial review. I might seem to be splitting hairs here, but I think my point makes a clear distinction. The behaviour of the court is dictated by the constitution (allegedly - but that's a whole new argument Very Happy ). The constitution no more governs a judicial review than it would a murder case.

Zhou wrote:
I think we can agree to disagree about Miriam. If she is right that
judicial review would fail then I suggest that is because the judicial
review case would be weak rather then that Judges would engage in
casuistry to protect business interests.

The difficulty for
people seeking redress is that it is very hard to show causation of
illness and the remedies for mental distress are very limited (for good
practical reasons). If the EPA or other bodies have failed to discharge
their duties or to act properly then that may be open to judicial
review but the upshot may be that the operator is not adversely
affected by findings of failures on the part of the state.

The
main goal now should be to get the whole place cleaned up insofar as is
possible. I think John Gormley being Minister will be a blessing to the
people of Cobh in this regard.

What is "direct non-violent action" by the way?


I think it only fair that we agree to disagree as to Miriam's intent. It'd not be fair on Miriam or on either of us, to presume to know her exact intent. My own opinion is that judicial review is as Miriam has called it. Though not because of any ill intent on behalf of the judiciary. It's the way it was set up to function and the judiciary, in fairness to them (for the most part) make the best they can of a bad situation.

I'm afraid I don't have the confidence that you do in Mr. Gormley. I'd love to be shown wrong in this mind you.

Direct action is where I exercise my right to ignore a particular law with the intent of ensuring that a greater crime or calamity doesn't occur. Mary Kelly, The Ploughshares, The Raytheon heroes etc., provide for a decent example. A group of workers striking would be another example. Taking matters into your own hands.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Wed Jul 09, 2008 5:21 pm

There's a big difference between a judicial review of a civil law decision/ruling and a criminal law decision. In either case the judge is not allowed to go to the substance of the decision and is supposed to restrict her/himself to considering the rules that govern that decision - and whether they were complied with. So, any decision taken outside those rules would qualify for a judicial review. However, that implicitly requires some sort of prior assessment of the relevant facts and law! There is also an entitlement to judicial review where the decision is so obviously contrary to the facts that its reasonableness can be reviewed.

This is an issue that separates the best lawyers from the worst - the ones who know how to make a durable case from those who rush at the obvious. The theory of ejudicating process while avoiding substance may sound nice but in practice it's nigh on impossible. Process and substance are inextricably bound up in almost every decision - especially so as they relate to administrative decisions where state bodies are acting under authority conferred by delegated legislation. Some judges are very good at separating the boundaries between the two as much as is sensibly possible (and there are very sound democratic reasons for why they should) while others make outrageous forays into substantive issues that they have no business being involved in.

This is where it get's knotty. Judges are supposed to respect parliamentary and legislative authority before judicial discretion. Sometimes a judge who means to rectify an obvious wrong can overreach themselves and make a ruling which in the specific case in question might do obvious justice to the facts but nevertheless set an atrocious precedent for future decisions where a comparably 'interfering' decision could easily work the other way. Hard cases make bad law as they say.

But 'Miriam's' point is different. While I admire Zhou's trusting faith in the system to function as it should and his happy confidence that there are few if any of the powerful folk about who would deliberately abuse it to achieve their ends, it is nevertheless the experience of many people that approving an application for judicial review is one means of simply diverting people from other forms of challenge and protest and keeping them safely occupied while the people they are challenging get on with planning for a guaranteed outcome. JR often makes things look fair without actually being fair. Frankly, the judiciary in Ireland are something of a breathtaking disgrace in this respect - they can get away with decisions here that would draw huge public attention to them in other jurisdictions. You'd have to have a blindfold and earmuffs on not to notice this in many cases.


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PostSubject: Re: Judicial Review - A Tool of Repression?   Wed Jul 09, 2008 7:29 pm

Aragon wrote:
But 'Miriam's' point is different. While I admire Zhou's trusting faith in the system to function as it should and his happy confidence that there are few if any of the powerful folk about who would deliberately abuse it to achieve their ends,...
I didn't say that. I think that is an unfair representation of my comments which can be seen in my post above. I simply said that to characterise the judiciary as engaging in casuistry in the interests of big business is a glib insult. By the way, it is not just some powerful people who try to abuse the system - all sorts of gobshites are at it.
Aragon wrote:

...it is nevertheless the experience of many people that approving an application for judicial review is one means of simply diverting people from other forms of challenge and protest and keeping them safely occupied while the people they are challenging get on with planning for a guaranteed outcome.
I don't know what you mean by "approving an application for judicial review". Do you mean that a Judge deciding that a person has a prima facie / arguable case is an act of deception by judges designed to distract and ultimately frustrate applicants? Surely it is people and their lawyers who take cases and they should be able to assess the risks before they start? Is the judge to be blamed that he agrees with them that they might have a case? It is not their opponents who bring the JR claims, it is the applicants themselves.
Also, I don't think the fact that businesses get on with planning indicates a guaranteed outcome. It simply means that they consider an good outcome to be likely and so the money spent in the meantime is at low risk. Nothing is guaranteed when you go to court.
Aragon wrote:
JR often makes things look fair without actually being fair.
How is that?
Aragon wrote:

[Z_E EDIT]...Some judges are very good at separating the boundaries between the two as much as is sensibly possible (and there are very sound democratic reasons for why they should) while others make outrageous forays into substantive issues that they have no business being involved in...

Frankly, the judiciary in Ireland are something of a breathtaking disgrace in this respect - they can get away with decisions here that would draw huge public attention to them in other jurisdictions. You'd have to have a blindfold and earmuffs on not to notice this in many cases.
I have to say that I have been very disappointed and disillusioned with the performance of the judiciary over the last 10 years. EDIT: This is a valid point. Judges who overstep the boundaries in JR cases to get at the facts are doing a disservice to future litigants as they give false hope and sow confusion in the interpretation of the law.


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PostSubject: Re: Judicial Review - A Tool of Repression?   Wed Jul 09, 2008 8:10 pm

Hermes wrote:
...The defendant might choose to appeal this matter. The appeal will take months if he or she is lucky. However, it might be the case that the defendant might be able to prove that the Gardaí gave misleading information that led to the strict bail conditions. He or she might also be able to show just reasons as to why the Judge should not have taken the word of the Gardaí on this matter. A judicial review can start the process of sorting this matter out immediately and indeed the High Court could very well suspend the sign-on conditions from the get go. The chances are though that the High Court won't. The applicant will most likely have to lodge a motion (separate to the actual judicial review) to have the Gardaí submit affidavits and open themselves to cross-examination. At this point the sign-on conditions might well be removed and as an added bonus, the applicant now has a fist full of Garda affidavits that he can produce at the criminal hearing, that show that the Gardaí have already mislead the court.
Tis all tactics I'm afraid. The wiley defendant with good representation will pull every stroke in the book. Though I hope my example shows the possibility of an honest approach and intent too...
I don't see how it shows oppression by the judicial review procedure though??
Hermes wrote:
...- True, bail is not decided on guilt or innocence. It can be decided on misinformation though and often is....
It is the Judge's perogative to make that call. The truth of the matter is that refusal of bail is not the norm.

Hermes wrote:
- Guilt or innocence is mostly decided in a criminal case, but not always. Certiorari can remove a case from the lower courts and decide upon its merit as part of a judicial review. Whether this happens or not most applicants will still have to go into what will eventually be their defence, in a judicial review. This will obviously give the prosecution an unfair advantage during the criminal trial. (Though in fairness, the defendant can gather some advantages too as can be seen in my bail example).
It is hardly an unfair advantage. The Gardai and DPP have to furnish all their documents and statements to the accused. The Defendant has his/her right to silence and only breaks it by his/her choice. Granted, if it is a stitch up the a corrupt Garda might use the evidence to "mend" their own case but that is hardly a flaw of the JR system.

Hermes wrote:
- You're correct, judicial review is about process. And findings of ....Instead of backward engineering the issue from either the state of injustice or the state of justice, a judicial review merely examines the process and couldn't give a fig for its result. This would be fine if some alternative existed to examine the result of a process, it doesn't exist though.
It generally does exist. It's called the right of appeal. JR is different and it is people's misunderstanding of it that causes them to try to use it as just another stage of an appeal.
Hermes wrote:

....However, I can blame judicial review for seeking to answer questions it's not being asked. Especially when no other forum exists to answer these questions. Judicial review happily parades as an entity that doesn't exist...
If it seeks to answer questions which it shouldn't then it is being wrongly administered and that is wrong. I don't think it happily parades as something it isn't. I don't understand that and I am getting a bit confused as to your position. On the one hand you say it is a mess because it only deals with jurisdiction. Then you say it is a mess because it is parading as something it isn't. That is all under a thread title which asks is JR a tool of repression. Is it perhaps the misapplication and bastardisation of JR which you oppose?
Hermes wrote:

- For all intents and purposes the High Court always has jurisdiction. Except when it has to ask the Supreme Court for guidance, or when the Supreme Court overturns a ruling made by the High Court (an appeal of a Judicial Review being a good example).
Unless the High Court itself is JR's then it has acted within its jurisdiction. An appeal of a JR case from High Court will be on the interpretation of a point of law not un jurisdiction. The high Court may decide to refer something to the Supreme Court not because it does not have jurisdiction but because it thinks the Supreme Court should decide on that point of law. The High Court has jurisdiction in all areas of the law but that does not equate to unlimited power. In any event I don't think this disctinction between jurisdiction, powers and processes is intellectually valid or helpful. Essentially the Supreme Court will look to see did the High Court Act Correctly.
Hermes wrote:

- I disagree, judicial review is about jurisdiction solely. The court itself is mandated by the constitution, however, Bunreacht makes no mention whatsoever about judicial review. I might seem to be splitting hairs here, but I think my point makes a clear distinction. The behaviour of the court is dictated by the constitution (allegedly - but that's a whole new argument ). The constitution no more governs a judicial review than it would a murder case.
Well, you are technically correct on that. Many things can impact on jurisdiction which the lay man might not see as issues of jurisdiction but technically that is what they are and the example I gave of following fair procedures is one of them.
The constitution does govern murder cases and the administration of all Justice in the state. Judicial Review seeks to see was the Constitution complied with: e.g., did a behave contrary to fair procedures guaranteed by the constitution? did a body exercise a power which had not validly been given to it by statute as being the only way the constitution allows such powers to be shared out? was a statute intepreted in a way which the constitution will not allow it to be interpreted? and so on and so forth.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Wed Jul 09, 2008 8:24 pm

I just had another thoght.

How can something which is optional be a tool or repression?

If the Bail laws are flawed then they are tool of repression not Judicial Review.

If people take JR case which fail then they made that decision.

Applicants can't be repressed by a voluntary process.

Therefore, if anyone can be oppressed by JR it is the repondents who are delayed and hamstrung until the process is completed, such as happened in relation to Carrickmines Castle.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Wed Jul 09, 2008 9:59 pm

Before I reply to Zhou, I'd like to say to Aragon: I wish I'd said that. Very succinct.

Methinks Zhou that this thread is becoming very complex and may become morseso. I'm tempted to go "na na - na - na na," in frustration Very Happy .

I won't do that though, you're making me work to stand over some very bold and stark claims; that's as it should be. You have my thanks.

I'll get to explaining how oppression arises (in my opinion) when I tackle the second of your replying posts.

We agree that it's the judge's perogative to decide on bail. And even if refusal of bail is not the norm, it cannot be argued that it doesn't happen. Refusal of bail and punative bail conditions are a significant fact of life. Fair enough, a lot of this is down to pure opinion (the judge's and the defendant's). Nonetheless, appeals and JR's concerning bail are quite frequent. In truth, I don't want to get bogged down in arguments concerning the rights and wrongs of bail. Such an argument would be hugely speculative and involve lots of opinion and in final analysis would not really impact upon the legitimacy or lack of it, concerning JR's.

The State having knowledge of a person's defence is a huge advantage. The State having to present the detail of its case to the defendant prior to the case being heard is part of the State's burden. The defendant, being forced to present his or her defence to the State prior to the case being heard, removes from the State's burden and adds to the burden of the defence. If this is not the case, then it must be argued that the State having to present the facts of its case to the defendant prior to the hearing does him or her no favour or service.

An appeal does not backward engineer anything. It's merely an opportunity for a defendant to retry a case. If an injustice facilitated by the court led to a conviction in the first hearing, it's irrelevent, it's not examined by, nor is it the subject of an appeal. A Judicial review will not put right any such injustice either. Which leaves us in a quandry, when one examines what I've quoted from the constitution. To put the point bluntly: what process, as mandated by the constitution, comes into play if a judge shafts you?

I think I can show that judicial review both seeks to answer questions not asked and at the same time pose as an entity that it isn't. Allow me to refer to a book entitled: "Judicial Review" by Mark De Blacam S.C. It is the standard guidebook for both judges and barristers in judicial review.

De Blacam S.C. wrote:
The unified remedy

(1.06) Pre-eminent among the procedural changes made by the 1986 rules was the merging of the various remedies formerly available into a single remedy by way of an application for judicial review. Under order 84 it is provided that an application for an order of certiorari, mandamus, prohibition or quo warranto must now be made by way of an application for judicial review; furthermore, the court is empowered to grant a declaration or injunction, on an application for review, in circumstances where it would be 'just and convenient', and to make an award of damages if satisfied that damages would have been awarded had the applicant made his claim in a civil action11. The effect of this merger on the law in respect of the various remedies has yet to be fully established. There has, for example, been a considerable divergence in respect of the standing requirements for the remedies: in some cases there has been a strict requirement, whereas in others a more liberal rule has applied. As we shall see, the unification of the remedies has, as one might expect, tended to impel the courts toward a standardisation of the rules and a rejection of anomalies.
Underlining by me. Judicial review is not the entity demanded by Bunreacht, it is merely in the process of becoming so (that's its claim and I'd refute that too, but such a refutation is not necessary here).

When you appeal any matter on a point of law you are suggesting that a matter has been decided without jurisdiction to do so. This includes all appeals of High Court decisions to the Supreme Court.

It is my contention that judicial review is not directed by the constitution in that it fails completely to recognise that it is the mechanism (as described by the courts themselves) that seeks to uphold and vindicate the actions as described by Article 40 of Bunreacht, and thus act accordingly. The quote I've supplied by De Blacam goes towards illustrating this somewhat. Allow me to quote another excerpt from 1.01 of the same book.

De Blacam S.C. wrote:
What do we mean by judicial review?

(1.01) ... In this text judicial review bears a slightly extended version of the latter meaning. Apart from the state side orders, the text examines reviews which take place in the form of inquiries under article 40 of the Constitution, references to the European Court of Justice under article 234 (formerly 177) of the European Community Treaty, and those taking place by way of case stated and statutory appeal.

If it is up to the applicant to vindicate his or her rights (and the Judge agrees with this vindication), then it cannot be argued that the State has vindicated those rights (especially in lots of instances where the State acts on behalf of the respondent). The court flip flops on this point too. As I said earlier the Court will convert a Habeas Corpus application into a judicial review. On the one hand the court says that both are the same entity, on the other it suggests that one has to be converted into the other. I say to you with no hint of shame, that it's not only those who seek judicial reviews who are confused as to what exactly a judicial review is.

It's quite easilly demonstrated that something optional can be repressive. Take electing a government for example. Whilst picking a government is optional, it's quite easy to see where one's optional choice can lead to repression. With judicial review it's much more insideous. There's no option. The judicial review masquerades as the promises outlined in article 40 of Bunreacht. But as I've shown by quotation, it's no such thing. Something that masquerades as an entity that vindicates and upholds rights, but doesn't, cannot be described as anything else, other than as a tool of oppression and repression.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Thu Jul 10, 2008 4:31 pm

Hermes wrote:
If this is not the case, then it must be argued that the State having to present the facts of its case to the defendant prior to the hearing does him or her no favour or service.
Disclosure of evidence by the prosecution is not a matter of favour, advantage or burden of proof. It is a matter of fairness. In any event, you are not forced to use the judicial review process. Like I said previously, if there were no appeal agaist the bail decision then it is the bail laws would be oppressive. However, one can appeal against bail decisions without using JR. This is provided for in S. 38(3) the Criminal Procedure Act 1967 as amended by the Criminal Justice Act 2007:

28.—(3)
(a) An applicant for bail or the prosecutor may appeal to the High Court if dissatisfied with a refusal or grant of the application for bail or, where bail is granted,with any matter relating to the bail.
(b) Where the applicant has been remanded in custody by the District Court and the offence with which the applicant is charged is triable by the Circuit Court, the High Court may transfer the appeal to the judge of the Circuit Court for the circuit in which the prison or place of detention to which the applicant has been remanded is situated.
(c) The judge of the Circuit Court referred to in paragraph
(b) shall exercise jurisdiction in respect of the appeal.
(d) An appeal against a decision by the Circuit Court under this section lies to the High Court at the instance of the applicant or prosecutor
.

Hermes wrote:
To put the point bluntly: what process, as mandated by the constitution, comes into play if a judge shafts you?
People have rights of appeal as set out in the law. If a State Body shafts you then you may need to go for Judicial Review.
Hermes wrote:
Allow me to refer to a book entitled: "Judicial Review" by Mark De Blacam S.C. .....
Has he moved on from road traffic offences and personal injury claims?
Hermes wrote:
Judicial review is not the entity demanded by Bunreacht, it is merely in the process of becoming so (that's its claim and I'd refute that too, but such a refutation is not necessary here).

According to Byrne and McCutcheon Judicial Review is the successor to the prerogative writ originally issued by the Monarch. B&M suggest that Habeus Corpus is the only JR type of writ which was substantially changed by Bunreacht as the individuls rights against unlawful detention are now primarily founded under A.40.4. Accordingly, I wonder if perhaps your points are specific to Habeus Corpus? The other laws operate largely the same way whether authority and jurisdiction came from the Crown or from Bunreacht.
Hermes wrote:
When you appeal any matter on a point of law you are suggesting that a matter has been decided without jurisdiction to do so. This includes all appeals of High Court decisions to the Supreme Court.
I don't think that is the case. You may have jurisdiction to decide on a question of law or apply it and be subject to appeal. One could misread your posts as suggesting that all appeals on points of law are Judicial Review proceedings, which of course they aren't. Many statutes and many parts of the common law allow appeal to the Supreme Court on points of law.
Hermes wrote:
If it is up to the applicant to vindicate his or her rights (and the Judge agrees with this vindication), then it cannot be argued that the State has vindicated those rights (especially in lots of instances where the State acts on behalf of the respondent).
You cannot expect a whole branch of the state to being dedicated to undermining and second guessing the rest of the state. Who would watch the watchers in any event. If the state provides the right of action and the Courts to hear the action then it has made good on its pledge to vindicate the right of the citizen through its laws. The state rightly undertake to vindicate rights through its laws. Anything else would be unworkable.

Hermes wrote:
As I said earlier the Court will convert a Habeas Corpus application into a judicial review. On the one hand the court says that both are the same entity, on the other it suggests that one has to be converted into the other. I say to you with no hint of shame, that it's not only those who seek judicial reviews who are confused as to what exactly a judicial review is.

I think that is a fair comment in respect of habeus corpus. The Rules clearly differentiate the two applications (Habeus Corpus -vs- A.40.4 application), with the result that habeus corpus may be seen to be obsolete. However, Judges have been criticised for muddying the waters since the rules came in by mixing and matching issues and laws.

Hermes wrote:
It's quite easilly demonstrated that something optional can be repressive. Take electing a government for example. Whilst picking a government is optional, it's quite easy to see where one's optional choice can lead to repression.

I think one has to be careful there. Democracy as a system may not be repressive whereas a Government may be if they eschew democratic principles. Judicial Review as a system and a body of law may not be repressive, whereas Judges may be if they mis-apply the law
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PostSubject: Re: Judicial Review - A Tool of Repression?   Sat Jul 12, 2008 7:33 am

I've had to break up this reply into a number of sections as MN won't let me post it in a single chunk. I've been writing for a couple of hours and need sleep. I'll sort out formatting, bad spelling and any examples of twisted English when I awake. I won't change the substance though - just make it more legible, so feel free to make any observations that need making, they'll still be applicable when I hoover up the gunk, I promise. Wink

Zhou wrote:
Disclosure of evidence by the prosecution is not a matter of favour, advantage or burden of proof. It is a matter of fairness. In any event, you are not forced to use the judicial review process. Like I said previously, if there were no appeal agaist the bail decision then it is the bail laws would be oppressive. However, one can appeal against bail decisions without using JR. This is provided for in S. 38(3) the Criminal Procedure Act 1967 as amended by the Criminal Justice Act 2007: ...

Without a doubt you're correct, disclosure is intrinsically linked to fairness. But this does not mean that is does not offer advantages. The defendant does not specifcally go into court to prove his innocence. If he had no idea of the State's case, that is the position he would start in. Knowing the State's evidence, facilitates him attacking the State's case. True, there is still a degree of proving his innocence, but, remember that the defendant has the right not to take the stand. This right would be subverted if he was not warned of the State's evidence in advance, in that he'd have to actively plan his defence around his own evidence, particularly so if he had no witnesses of his own. The idea behind all of this of course is that it's the State's exclusive burden to prove its case. There is no burden on the defendant to prove his innocence. To be forced to give his evidence to the State before a trial, facilitates the State ambushing him. Remember that essentially the State's resources are relatively unlimited when compared to the defendant's. Knowledge is power and power activated by unlimited
resources would act as a formiddable weapon against the defendant. On top of this, it would make a criminal case look somewhat like a civil case, where disclosure is mutual. Introduce this type of measure and you might as well eliminate judges and juries for the most part. Guilt and innocence could be decided by bargaining via the legal representation of either side. Tis a very slippery slope, and it redefines the idea of 'innocent until proven guilty.'

You're again very correct about the appeal process, regarding bail conditions. Most instances, I'd argue, that one would be better off trying the appeal process before judicially reviewing, should the appeal fail.
That way, you've two chances of being released instead of one. However, there are many circumstances where entering the appeal process is not the best answer. Like I said earlier, if one can prove that the Gardaí for example, aren't being entirely above board and honest, JR is easilly the better option as it will facilitate the gathering of some major evidence for both the trial (if it goes forward) and indeed any civil case that will follow. You might have a less dramatic reason, but one just as poignant, your daughter might be getting married and you might need to get out of custody as soon as possible. There are a multitude of reasons to pursue the JR path rather than the appeals path. A multitude they may be, but, in truth if you added them all together, they'd still be rarer than the incidence of folks using the appeals pathway. But nonetheless, happen it does.

Zhou wrote:
Hermes wrote:
To put the point bluntly: what process, as mandated by the constitution, comes into play if a judge shafts you?
People have rights of appeal as set out in the law. If a State Body shafts you then you may need to go for Judicial Review.

I'm afraid that I ought to have fleshed this point out more than I did. It's very vague and I left you with little option, but to wonder had I lost the plot. Allow me to put it this way:

Justice (particularly criminal justice) is founded on the premise of balance. The State takes the part of both the injured party and the defendant. This is what allows them to dispense justice. If I harm you,
the State kicks in and I'm supposed to be punished and you may initiate proceedings for compensation. If a judge harms you, you may only seek compensation and I suppose an acknowledgement that the Judge shafted you. However, the guilty party is punished in no way. That's very far from balance and therefore is not justice. JR in this instance, facilitates injustice and facilitates a wrongdoer avoiding punishment. As bad as that is, there is also the effect, that there is no incentive for the evil judge to mend his wicked ways.


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PostSubject: Re: Judicial Review - A Tool of Repression?   Sat Jul 12, 2008 7:35 am

Zhou wrote:
Hermes wrote:
Allow me to refer to a book entitled: "Judicial Review" by Mark De Blacam S.C. .....
Has he moved on from road traffic offences and personal injury claims?

I hope not Wink

In truth I know next to nothing about the guy and I've never been tempted to learn more. The book is a very important work, but the truth of the matter is that I cannot fathom why. That's very arrogant of me I know, but it's the truth nonetheless. In my opinion, it and many works like it, facilitate the justice system administering justice in a paint by numbers fashion using shoddy paints and materials. Try arguing that one in a court Laughing

Zhou wrote:
Hermes wrote:
Judicial review is not the entity demanded by Bunreacht, it is merely
in the process of becoming so (that's its claim and I'd refute that too, but such a refutation is not necessary here).
According to Byrne and McCutcheon Judicial Review is the successor to the prerogative writ originally issued by the Monarch. B&M suggest that Habeus Corpus is the only JR type of writ which was substantially changed by Bunreacht as the individuls rights against unlawful detention are now primarily founded under A.40.4. Accordingly, I wonder if perhaps your points are specific to Habeus Corpus? The other laws operate largely the same way whether authority and jurisdiction came from the Crown or from Bunreacht.

Jaysus affraid

That's a million dollar type question that would fill a library were it to be answered conclusively and properly. The most truthful thing I could say was that any answer would be very much based on jurisprudence rather than pure fact. All that said, I do have a very firm opinion on it. Let me try to translate my inner mess into something that might make some sense (fingers crossed - I've discussed aspects of this argument in the past and have had some limited success regarding legal argument that derived from it - but I've never been nailed to discuss something so fundamental). Please forgive any mess made when you get to read what I'll have written. I'll do my best to tidy it up as best I can before I post, but truthfully, it's tying my head in a knot just thinking about it. pale

Okay, simple answer first and hopefully I'll be able to develop it into something coherent:

No, Habeas Corpus was not the only JR type of writ that was substantially changed by Bunreacht. And no, my arguments are not limited to Habeas Corpus applications.

Of my two answers above, let me say that the second one is factual and that the first one is largely a matter of wishful thinking, on the the part of the State. Here's where my headache begins:

Bunreacht, lays down a very specific procedure with regard to making law. That's all fine and well. However, if the Irish State had to rewrite all law, we'd probably get around to dispensing some of it
sometime next century. Therefore, a whole swathe (the majority of it) of law was merely incorporated into Irish law with the idea that most of it was righteous and that the lesser portion of not so righteous law could be eliminated via the superior courts as it cropped up. Thus, it's a fact of life (and not one I take particular offence at) that the vast body of law that we practice, is for the most part not derived as Bunreacht demands. This is mostly forgivable. Except when we deal with fundamentals. And on top of the fundamentals pyramid, we have fundamental rights. Allow me to go into an example at this point to show the direction of my thinking (I must point out that the superior courts disagree with my conclusion - but why would I let that stop me Cool ):

Let's look at 'contempt.'

Firstly and obviously, contempt is not Irish law, it's British. That's not too important. What is important though, is that the law that provides for contempt is not a product of parliament. Back when days
were old and knights were bold etc. the King was considered to be only answerable to God. The British judiciary, seeing that this was a cool position of authority to be in, usurped this power for themselves.
Contempt is a judge-made law and is predicated upon an allegedly divine right to dispense justice. According to Bunreacht, the judiciary have an obligation and a right to interpret law; it gives no provisions for creating it. Fair enough, the Irish justice system had little choice but to incorporate a lot of law that wasn't a product of the State and that's fine so long as whatever law we examine does not violate any provisions of Bunreacht or indeed any fundamental laws that are very much recognsed by Bunreacht. It's fair to say before I delve deeper into this, that it looks like I'm going to break into yet another Habeas Corpus argument. Habeas Corpus can be a factor, but not necessarily so. One after all could still judicially review one's imprisonment and sentence after one had served one's time. Also, more importantly and more fundamentally, I'm aiming at what I believe to be a very unjust power that preexists any sentencing.

First of all, Bunreacht demands that an accused be able to defend himself in a court of his peers against any charges being brought against him. This obviously doesn't happen with contempt.

Nemo judex in sua causa - no man shall be a judge in his own cause. This is a fundamental in law and can be derived from Bunreacht, though it preexists it by a considerable longshot. I'll derive it for you
should you not take my word for it, but be warned, it'll take a lot of reading. I'm assuming that you'll agree with me and am taking the lazy road until I'm informed otherwise. In contempt, this fundamental of law is obviously shattered. Having said that, contempt has been examined by our courts on a number of occasions and has survived each time. Fair enough a Judge is constitutionally empowered to keep whatever courtroom he practices in functional and to be considered to be in charge etc. This is the usual defence against any attack on contempt. But, incarceration, if this attitude and power is to be considered limitless, is not the only option is it? Why not have the Gardaí take the offender out and shoot him? Your fundamental rights are nullified either way.

It's my argument, that because the contempt laws obviously violate the dictates of Bunreacht, it should never have been incorporated into Irish law to begin with, and thus not open to the interpretation of the Judiciary. In fairness, what mortal will give up a divine right (literally) without a fight? Contempt of court, is wrong, I believe that but, I also believe it should involve a hearing and a resolution in front a judge who's neutral on the issue, just like the judicial oath at Article 34.5 demands. Legislation is the only viable solution to this problem in my opinion. However, JR acts as a buffer to prevent this from happening. I've no problem with the British, practicing law derived from divine right, the Magna Carta and tradition allow for it. And therefore, it's quite fine that JR be allowed to decide the issue in Britain when it occasionally arises. Not so in Ireland.

Thus my point about wishful thinking. In essence, Bunreacht should substantially change the way this issue is examined. The authorities would argue that contempt has and should remain the same argument and be argued in our courts. The very existence of Bunreacht belies this and indeed the solution is very clear. Bunreach would suggest, as it still remains in the body of Irish law, that it has changed in some
fashion - to me that seems to be a logical premise. But the truth is, that both on the face of it and in its substance, that the law of contempt has not changed. Obviously, both positions cannot be correct.
To me though, it seems as if Bunreacht has been the one to step out of the way. Unfortunately a JR is defined (ambiguously at best) to be the remedy for any entity considered to be unconstitutional. As I've argued already, I don't see a JR and the entity defined by article 40 as being remotely similar. More to the point, I don't see something I consider to be a non-law, as falling under the remit of the provisions of Article 40 to begin with. As I said earlier, this particular 'law' fails long before it is every exercised to violate fundamental rights. I could keep elaborating and refining on this point, but it would be better and fairer to allow you your say before I presume to attempt to put words in your mouth by trying to cover all exits. It might be better to allow this particualr argument to evolve via discussion as opposed to me trying needlessly to carpet bomb the whole battlefield.


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PostSubject: Re: Judicial Review - A Tool of Repression?   Sat Jul 12, 2008 7:39 am

Zhou wrote:
Hermes wrote:
When you appeal any matter on a point of law you are suggesting that a matter has been decided without jurisdiction to do so. This includes all appeals of High Court decisions to the Supreme Court.
I don't think that is the case. You may have jurisdiction to decide on
a question of law or apply it and be subject to appeal. One could misread your posts as suggesting that all appeals on points of law are Judicial Review proceedings, which of course they aren't. Many statutes and many parts of the common law allow appeal to the Supreme Court on points of law.

I think we may be putting the cart before the horse here somewhat, and it's my fault. My apologies. Judicial review incorporates a specific set of writs that cover a pretty much uncountable number of variations that may be tried as JR's. However, all law is predicated upon jurisdiction. Any examination of a point of law is really an examination of jurisdiction if one wants to define it with the precision of a post mortem. This obviously does not mean that all such examinations are JR's. My apologies for inferring that they are. This is quite obviously not the case as you point out, the existence of differing procedures alone points out the falseness of my inference. My mistake, it's incredibly hard to cover all the possibilities in such a forum. Although in fairness, such a good discussion, more than fixes that - many thanks.

Zhou wrote:
Hermes wrote:
If it is up to the applicant to vindicate his or her rights (and the Judge agrees with this vindication), then it cannot be argued that the State has vindicated those rights (especially in lots of instances where the State acts on behalf of the respondent).
You cannot expect a whole branch of the state to being dedicated to undermining and second guessing the rest of the state. Who would watch the watchers in any event. If the state provides the right of action and the Courts to hear the action then it has made good on its pledge to vindicate the right of the citizen through its laws. The state rightly undertake to vindicate rights through its laws. Anything else would be unworkable.

I'm afraid this is the one point on which I disagree with you absolutely. It's possible I'm taking you up wrong, and if so, please put me right. You seem to be saying that the very existence of the court and the law is the vindication of my rights as demanded by Bunreacht. If this were the case, then practically every argument I've made up to this point is flawed and thus wrong - no ifs, ands, nor buts about it.

Okay, let me begin this by making an assumtion (one that seems to be backed up by Bunreacht). Which came first - the chicken or the egg? Or rather, which comes first - the State's right to punish me or my
fundamental rights. I say fundamental rights come first. Afterall, like an actual chicken must preexist any probable chicken, a fundamental right must preexist any potential violation of that fundamental right.

The State's first duty is to fundamental rights not to punishment. One cannot vindicate rights if punishment is considered more primal than fundamental rights. Therefore, yes I can expect the State to second guess itself when necessary.

I think it fair to say, that the justice system sees itself the way I'm suggesting that you're looking at it. If this is a correct diagnosis on my part, then the issue is a simple one to define. The State has reversed its priorities in opposition to what Bunreacht demands. It sees punishment as being more primal and important than rights. In this particular accusation of mine, I'm not including you in any shape or form. There's a massive difference between belief and practice in this particular instance. Of course it may be the case too, that I've completely missed your point and rambled elsewhere.

Zhou wrote:
Hermes wrote:
It's quite easilly demonstrated that something optional can be repressive. Take electing a government for example. Whilst picking a government is optional, it's quite easy to see where one's optional choice can lead to repression.
I think one has to be careful there. Democracy as a system may not be repressive whereas a Government may be if they eschew democratic principles. Judicial Review as a system and a body of law may not be repressive, whereas Judges may be if they mis-apply the law

That's a good distinction to make. But I think that in the refining of it, that you haven't gone far enough. We know that all human beings are very far from being perfect and thus, whether they be politicians or judges, there's always the potential for them to be repressive.

I suppose, pure unrefined democracy, by it's very nature could not be defined as repressive. Is what we practice pure? I don't believe it is. Were it refined some more itself, some of the impurities that allow
flawed men to exercise repression could be removed. Without this refining we are left with something impure that facilitates repression and is to some degree eligible to be described as repressive. That's
our fault mind you and that mitigates it something considerably.

This is not the case with the law though. The law sets out to be pure and comes with a promise that all and any impurities will be weeded out. To see a vast imperfection like JR (in my opinion) and to not
purify it, is to be repressive and is to be so before we need to examine the conscience of any judge.


Last edited by Hermes on Sat Jul 12, 2008 12:31 pm; edited 3 times in total
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PostSubject: Re: Judicial Review - A Tool of Repression?   Sat Jul 12, 2008 11:44 am

The discussion on Habeus Corpus looks very interesting but is a bit beyond me, as I've no experience of it that I can relate it to. On the environmental law side though I regularly run into people who are considering seeking Judicial Review.

In the main I find that they are completely misinformed or uninformed as to what Judicial Review involves. They tend to see the Courts as higher bodies that allow them to leapfrog over the local authorities and An Bord Pleanala. They often don't understand that their case will not be heard and that only proceedural matters dealt with. Even those who know this, don't recognise that finding a procedural flaw will not have any influence ulitmately on the case they are concerned with.

I have to say that many generalist legal professionals I encounter are not thoroughly familiar with environmental legislation and do little or nothing to point clients in the right direction. They are happy to take the case and the money.

I would be of the opinion that unless there is a dire emergency of some kind (destruction of an irreplaceable item) and Judicial Review may buy some time, or unless the applicants are genuinely concerned to clarify the matter of procedure or law and not with the matter of their case or the depth of their pocket, they should avoid Judicial Review like the plague.

Zhou's remark about the fight rather than the cause I think should be listened to.
There have been times when I have explained to people in environmental campaigns how, when and where to present their case so that it will be heard and they have proceeded to miss deadlines for submissions, fail to state their case and then run into pointless legal action and protest campaigns when it is far too late.

Frankly, Tara is a case in point.

There was a decision yesterday by An Bord Pleanala to refuse permission for an incinerator. Local communities and An Taisce are able to go to An Bord Pleanala at reasonable cost or none as appellants or observers. If people think something is going on that needs planning permission and hasn't got it they can go to the local authority and/or An Bord Pleanala for a decision. It has got much easier in the last few years to get a local authority to take enforcement action against unauthorised development. All these processes are quite well explained on the ABP website and in DoE leaflets.

Ireland has one of the best systems of third party access to planning and environmental decisions in the world. There have to be deadlines or legitimate development could be endlessly disrupted. Where I share ground with Miriam is that Judicial Review is generally a costly distraction in environmental cases.

There is plenty of other good law out there that enables third parties to have a say, as well as the option of making direct representations to politicians to, if need be, change the law.

The issue of the costs of going to law is a different one. That costs were awarded against a woman who took a case against the Department of Education because she was abused at school is a scandal. Would anyone like to start a thread on that?
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PostSubject: Re: Judicial Review - A Tool of Repression?   Sat Jul 12, 2008 1:06 pm

Howdy Cactus. I'd not consider this topic beyond you at all. Tis very involved and laborious alright. The real problem, I think, for most folks, is that it tends to be very counter intuitive.

Okay allow me to make a bit of a legal disclaimer here, for what I'm about to say next.

The following is my opinion and a methodology I'd employ. It is not meant to be taken as legal advice. Nor do I accept any responsibility in any fashion for anyone who takes and uses the following as legal advice.

If I were directing any particular campaign, especially one that was environmentally focused, I'd avoid judicial reviews like the plague. For the most part they are nothing more than a drain on valuable funds, time, and attention.

If I were to utilise judicial reviews, I'd use them as a strategy, to make the State pay through its eyeballs.

I'll not go further into my strategy at this point, just in case I ever have to use it and this comment is used against me.

The point I'm making is, that if you use a judicial review in a fashion that it's not intended to be used it in, it can be a very large sword over the State. Use it the old fashioned way and the sword's over your head. I'm being very mysterious and I apologise for that. But neither the State nor the courts would look kindly upon my strategy (tough shit for them).

This incinerator JR. Watch it be appealed, more resources consumed and watch the appeal allow the incinerator to be built. Only an opinion of course.

I must say that I disagree with you regarding issues associated with planning permission. At least when one is involved with a campaign. Here's an article about a debacle currently ongoing in Mayo - folks living on a protected Special Area of Conservation, who were essentially guarding it, were evicted by the County Council using the planning laws - now the Council themselves are ignoring the planning laws and indeed a plethora of other laws to destroy the very same area: LINK.

The last point you made, regarding the lady that was abused in school and further abused by the Courts, might well be discussed in this thread. It can always be split into a separate thread if it develops a life of its own. In the mean time, it's very applicable to the topic at hand. It's a classic example of focusing on everything but the heart of the matter. That's what JR's are famous for.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Sat Jul 12, 2008 1:45 pm

Hermes wrote:
Howdy Cactus. I'd not consider this topic beyond you at all. Tis very involved and laborious alright. The real problem, I think, for most folks, is that it tends to be very counter intuitive.

Okay allow me to make a bit of a legal disclaimer here, for what I'm about to say next.

The following is my opinion and a methodology I'd employ. It is not meant to be taken as legal advice. Nor do I accept any responsibility in any fashion for anyone who takes and uses the following as legal advice.

If I were directing any particular campaign, especially one that was environmentally focused, I'd avoid judicial reviews like the plague. For the most part they are nothing more than a drain on valuable funds, time, and attention.

If I were to utilise judicial reviews, I'd use them as a strategy, to make the State pay through its eyeballs.

I'll not go further into my strategy at this point, just in case I ever have to use it and this comment is used against me.

The point I'm making is, that if you use a judicial review in a fashion that it's not intended to be used it in, it can be a very large sword over the State. Use it the old fashioned way and the sword's over your head. I'm being very mysterious and I apologise for that. But neither the State nor the courts would look kindly upon my strategy (tough shit for them).

This incinerator JR. Watch it be appealed, more resources consumed and watch the appeal allow the incinerator to be built. Only an opinion of course.

I must say that I disagree with you regarding issues associated with planning permission. At least when one is involved with a campaign. Here's an article about a debacle currently ongoing in Mayo - folks living on a protected Special Area of Conservation, who were essentially guarding it, were evicted by the County Council using the planning laws - now the Council themselves are ignoring the planning laws and indeed a plethora of other laws to destroy the very same area: LINK.

The last point you made, regarding the lady that was abused in school and further abused by the Courts, might well be discussed in this thread. It can always be split into a separate thread if it develops a life of its own. In the mean time, it's very applicable to the topic at hand. It's a classic example of focusing on everything but the heart of the matter. That's what JR's are famous for.

In a previous post I did make the point that An Bord Pleanala ( and of course the Local Authorities) put very substantial weight on National Strategic Policies, NDP projects and so on. I looked at the Indymedia article. The Local Authority was aquiring land by voluntary agreement. Landowners can say no. I couldn't tell from the article what measures opponents had, and had not, used in relation to the project, so there is not much more I could say about it. The general point that large corporations (and in particular oil firms) exploit local resources and leave mainly damage behind them I would agree with. National politicians in Ireland have put together the current tax and legal regime - many aspects of it could be changed. There was a recent EU report (issued last week) that slated Ireland's failures to properly implement EIS directives. My point is to use the correct and most effective instruments to the full. Its an ongoing battle. Local objectors aren't always right but should always be listened to very carefully as they know local condiitons best. I would disagree with nimby opposition to wind energy on visual grounds, but when it came to the land slide in Mayo, the local residents had warned about ground conditions and the failure to have an EIS was a disgrace.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Sat Jul 12, 2008 10:31 pm

I'm sort of crashing in here at a bit of a tangent but I hope there is some worth in this post to the evolving discussion. My favourite legal philosopher is a man called HLA Hart who wrote a very powerful book titled 'The Concept of Law' back in 1961 in which he sets out an amazingly eloquent analysis of what law is. It's both a sociological and jurisprudential analysis and so particularly useful discussion of law and legal systems, how they operate and what they might reasonably be thought to be expected to do. If you decide to read it, it's not very long and it's very spare in style but don't be deceived by its seeming simplicity - it's a work of real genius.

Anyway, in Hart's theory he talks about primary and secondary rules of law. Primary rules govern behaviour and secondary rules are the ones that govern the conduct of law and administration itself. (This is a desperate oversimplification but it gives the gist of what Hart says.)

Judicial review falls into the category of what Hart calls secondary rules. As mentioned earlier, it is supposed NOT to go to the substance of the issue but only to review whether or not the manner in which a thing was decided was in keeping with the rules that are supposed to have governed that decision. However, in reality it frequently strays well over the boundary between process and substance and so can very easily be used inappropriately and as an instrument of oppression, or alternative form of decision-making which it is very definitely not supposed to be doing.

You might find this brief Wikipedia entry interesting:

http://en.wikipedia.org/wiki/The_Concept_of_Law
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PostSubject: Re: Judicial Review - A Tool of Repression?   Sun Jul 13, 2008 12:10 am

I think the distinction is clear. I also think in the environmental judicial review cases I know about the courts stick to procedure pretty well - sometimes it is precisely because people want them to go beyond that that there is frustration.

On the rare occasions when judges stray into environmental matters they are usually disastrous because frankly it is not their field and they don't have a clue.
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PostSubject: Re: Judicial Review - A Tool of Repression?   Sun Jul 13, 2008 2:31 am

cactus flower wrote:
I think the distinction is clear. I also think in the environmental judicial review cases I know about the courts stick to procedure pretty well - sometimes it is precisely because people want them to go beyond that that there is frustration.

On the rare occasions when judges stray into environmental matters they are usually disastrous because frankly it is not their field and they don't have a clue.

For sure. People almost always hope that the review will vindicate their case even though the are required to pretend that is not what they are really about. Of course, many/most JRs are entirely legitimate despite that 'secret' objective. Not knowing what they are talking about is a big thing about any judicial decision! Almost any case, to a greater or lesser extent requires them to decide on issues they often know diddly squat about. Hence the expert witness industry etc etc. On the other hand htf else are we, realistically, going to come up with some other form of edjudication that is any better? Civil disagreement and criminal behaviour are an unavoidable fact of human life under whatever system we adopt - even libertarian socialism :-). And please don't anybody mention the idiocy otherwise known as 'mediation'.
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