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Download Bar Review Volume 14 Journal of the Bar of Ireland • Volume 14 • Issue 5 • November 2009 Electronic Discovery Child Sexual Abuse Cases – The Need for Change Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Fax: 353-1-872 0455 E: [email protected] Editor: Eilis Brennan BL Cover Illustration: Brian Gallagher T: 01 4973389 Editorial Board: E: [email protected] W: www.bdgart.com Donal O’Donnell SC, Typeset by Gough Typesetting Services, Dublin Chairman, Editorial Board [email protected] T: 01 8727305 Gerry Durcan SC Mary O’Toole SC Patrick Dillon Malone BL Conor Dignam BL Brian Kennedy BL Vincent Browne BL Mark O’Connell BL Paul A. McDermott BL Volume 14, Issue 5, November 2009, ISSN 1339-3426 Tom O’Malley BL Patrick Leonard BL Paul McCarthy BL Des Mulhere Contents Jeanne McDonagh Jerry Carroll Consultant Editors: 90 Some Thoughts for New Entrants to the Law Library Dermot Gleeson SC PETER CHARLETON, JUDGE OF THE HIGH COURT Patrick MacEntee SC Eoghan Fitzsimons SC Pat Hanratty SC James O’Reilly SC 93 Le Mot Juste - Managing e-Discovery and Keyword Searches Gerard Hogan SC JOHN EVANS BL The Bar Review is published by Round Hall on behalf of The Bar 99 Dying with Dignity: A new Era in Assisted Suicide? Council of Ireland. SONYA DONNELLY BL AND SOPHIA PURCELL BL For all subscription queries contact: Round Hall lxxxi Thomson Reuters (Professional) Legal Update: Ireland Limited A Guide to Legal Developments from 43 Fitzwilliam Place, Dublin 2 24th June 2009 to 15th October 2009 Telephone: + 353 1 662 5301 Fax: + 353 1 662 5302 E: [email protected] web: www.roundhall.ie 103 Child sexual abuse cases: the need for cultural change within the criminal justice system Subscriptions: January 2009 to December 2009—6 issues ÚNA NÍ RAIFEARTAIGH SC Annual Subscription: €240.00 + VAT For all advertising queries contact: 111 FLAC Thank you to Volunteers Sean Duffy, Direct line: + 44 20 7393 7602 NOELINE BLACKWELL, DIRECTOR GENERAL, FLAC E: [email protected] Directories Unit. Sweet & Maxwell Telephone: + 44 20 7393 7000 112 Pupil Exchange Programme in Spain Contributions published in this journal are EMMA KEANE BL AND TRICIA SHEEHY SKEFFINGTON BL not intended to, and do not represent, legal advice on the subject matter contained herein. This publication should not be used as a substitute for or as a supplement to, legal advice. The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or the Bar Council. The Bar Review November 2009 Some Thoughts for New Entrants to the Law Library PETER CHARLETON, JUDGE OF THE HIGH COURT• 1 John A. Costello used to tell new entrants into the Law Library For the moment, the only people whose hopes rest with you that there were three rules that must always be followed: would be those of the clients whose case you are taking or advising on, and the solicitors who have entrusted you with (i) Never refuse a brief. their work. So, let’s turn to that, a safe and practical matter. (ii) Never write a letter to a newspaper. A friend of mine, a professional musician, used to suffer (iii) Never take a libel action. terribly from stage fright. There were one or two barristers that I knew who repaired to the men’s lavatory to vomit prior I am not so ancient that I ever met the former Taoiseach. I to going into court. My musician friend told me that she have this at second or third hand. Those times were simpler thought that there was one good remedy for stage fright - a ones than these. Since I have been asked to give a talk to you clear conscience. If you know your music, if you have done about relations between the Bar and the Judiciary, I thought to all the work you possibly can do, if you’ve really put your ask myself what might be important in these days. Whatever back into it, then not so much can go wrong. Preparation is it is, I can not encapsulate it into a set of rules. These few essential to being a good barrister. There is nothing that a thoughts, however, come to mind and I hope to be brief. judge would appreciate more. Furthermore, they can see it. Becoming a barrister is a tremendous achievement. You Sometimes you have to go and get help from people who are now professional people. We are at the end of September know about arcane subjects or look them up. Sometimes it and the courts are still not back in session. The motto of is a question of spending extra time with the witness, or of the King’s Inns reads “nolumus mutari” – we will not change; bringing a tape recorder to a consultation. I have been guilty and it also means we will not be changed! The vacation in the past of doing that and indeed sitting in the bath soaking times were set hundreds of years ago, and they certainly myself, and listening to what the witness was purporting do not suit people with children at school. September was to tell should he be called to the witness box in a criminal reserved to emergency sittings only because barristers were trial. Sometimes it can involve doing something as simple as bringing in the harvest. None are now. Nonetheless, there is looking up a map of a road traffic accident, or visiting the an idea there that professional people were once expected scene. All of it involves putting order on things. Maybe here to be privileged through family and land holding. You were I should add two simple things: your client’s instructions are once, in effect, a form of nobility. So, as the French say, like the confession – you can use nothing the client does not noblesse oblige. Even before the current economic crisis began authorise; you never gossip. Then, a hard lesson: someone in September of last year, a growing sense of unease had told me recently that in his view the maximum chance of pervaded thoughtful sections of Irish society. Some years defending the unloosable case or winning the unanswerable ago, in church, on an occasion when the gospel mentioned case is 80%. Don’t sell a client short, but bear in mind that St. John the Baptist, our local pastor had been inspired to in court lots of things can happen, and you are about to start deliver a sermon themed, “what would St. John the Baptist learning what. say if he were around today?” According to him, he would There was once a judge who once interrupted an opening have a message addressed to various sections of society, by counsel which, it will have to be said, was a rambling affair, including professionals and his prophetic insight was, “to saying “Mr. Snookes, I don’t mind what kind of order you those professionals among us he would say: don’t be so put on this case. It could be an order related to the issues or it grasping; give something back to the society from which could even be something as straightforward as chronological you take so much”. order. If I am going to ever understand this case, however, That’s a good rule for anybody and how you do it is up I’ve got to have some kind of order.” to yourself. I realise, that the journey you are setting out on Well, the grumpy old creature was right. The purpose of is a very hard one. There will come a point, however, where preparation is to make sense of a case to yourself. This is a you should be able to give something back. That can be lonely task. It takes time because briefs are getting larger. An done by writing, by involvement with charitable societies, by opening generally makes sense if it is put in chronological attempting to act as a voice of reason when national hysteria order. After all, what happens tomorrow can never influence breaks out, when witch hunts are prepared, or in many other what happened yesterday. Then, at the end of your ways. If you are going to be involved in politics, then, certainly chronological narrative you can set out what the issues are. the hopes of many would rest with you, particularly that you One barrister, whose opening statements are widely admired, would be effective, intelligent and decent. Start learning now! generally ends an opening by stating that the court will have the following two or three, or whatever number, of issues to • This paper was first delivered at a talk for new entrants to the Law decide. It doesn’t really matter what the complexity of the case Library is, the format is the same. In a road traffic accident there can Page 90 Bar Review November 2009 be a single issue as to whether the defendant crashed through a decided principle of law. You don’t advance an argument a red light. In a copyright case, the issues can be whether which every textbook says is wrong without saying that the the plaintiff has copyright in the work, whether the action textbooks are there and drawing the attention of the judge complained of constituted an infringement and whether to what they say. You do not cite a case as authority knowing damages should be awarded together with an injunction or that it has been overruled in the intervening time.
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