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IN THiS ISSue... IILEX PROFILE: The new Minister for Justice, Equality and Defence; MR ALAN SHATTER TD Plus... Remembering Christine Smith The Office of Notary Public in Ireland

A History of the Women’s Refuge in Rathmines

Spotlight on Cork City Hall

ElementsIn this Issue of. . . Pro-active Plus . . . Diane Burleigh becomes a Patron The Innocence Project CriminalFrances Fitzgerald Justice Profile Brighwater Salary Scales The Companies Act Griffith College Conferring - Dublin & Cork A Day in the Life of a Legal ExecutiveIILEX | The Brief 2015 1 in the Public Service

2011 Brief.indd 1 13/08/2011 10:41:35 The Brief 2015 TThe OfficialH Journale of the IrishB InstituteR of ieLegal ExecutivesF 2011 Issue CONTENTS Page Page N MessageH S fromSS the President... 3 The Companies Act 2014 10 I TClosei Encounters I ue Down Under 3 Appointment of Patron of IILEX Mrs. Diane Burleigh O.B.E. 12 Frances Fitzgerald - Profile 4 IILEX PROFILE: Salary Survey 2015 13 My Experience at Studying Law in Griffith The newCollege Minister Dublin for 5 Why not qualify as a Mediator? 14 Justice,The AIBEquality Private Bankingand Irish Law Awards 2015 5 Cork Conferring Ceremony 15 Defence;Marie McSweeney, Legal Executive of the Criminalising Contagion 16 Year 2014 - Irish Law Awards 2014 7 MR ALAN SHATTER TD Irish Convict Garret Cotter 18 Eu Treaty Rights - (Free Movement Rights) 7 Irish Innocence Project 20 Commissioner... for Oaths 8 Plus Frank Crummey FIILEX - Brief Profile 23 RememberingGriffith College Conferring Ceremony 9 Christine Smith Legal Disclaimer EDITORIAL TEAM The Brief adopts an independent and inquiring We the Editorial team hereby extend many thanks approach towards the law and the legal profession. to all of those who contributed articles as well as The OfficeIt is published of forNotary the benefit ofPublic members of the Irish photographs for this Edition of the Official Journal of Institute of Legal Executives and therefore aims to IILEX – “The Brief”. in Irelandkeep them properly informed of developments in the law and legal practice. Your contribution and interest in being involved is much appreciated and makes all of the difference As part of this objective, The Brief will act as an towards the production of a quality publication. authoritative source of information on Institute All of our members and others should really enjoy A Historyactivities of and policies.the Women’s From time to time The Brief reading the many interesting features and viewing may cover controversial issues. The editorial team the various exciting photographs kindly supplied by shall have the final decision on matters of editorial you, Refugepolicy in or content Rathmines but always strive to preserve and to enhance the good name of the Irish Institute of If you have any social or current events coming Legal Executives and its members. up in the near future that you would like to see advertised or written about on the IILEX Website, The views expressed should be taken as those of Spotlightthe author on only Corkunless it is specifically City indicated that or further more, maybe for inclusion in the next the Irish Institute of Legal Executives has given its Edition of “The Brief”, then please feel free to send Hall endorsement. Neither The Brief nor The Irish Institute of information, photographs and other images to the Legal Executives accept liability to any party for any following address:- error, omission or mis-statement by any contributor in The Irish Institute of Legal Executives. any material published herein. 22/24 Lower Mount Street, Dublin 2 DX No, 15, ElementsThe appearance of Pro-active of an advertisement in this Telephone: - (01) 892 4278 Email - [email protected] publication does not necessarily indicate approval Congratulations and well done all. by IILEX for the product or service advertised. Mary O’Dwyer, FIILEX Criminal Justice Editor Front cover picture: Frances Fitzgerald, Minister for Justice and Equality A Day2 IILEXin | Thethe Brief 2015 Life of a Legal Executive in the Public Service

2011 Brief.indd 1 13/08/2011 10:41:35 IILEX PRESIDENT’S ADDRESS

Dear Members,

Having just completed the year 2014 / 2015 as President I am pleased to advise that myself and my colleague directors have had a very productive year promoting and representing the Irish Institute of Legal Executives and making ourselves known as the organisation which represents Legal Executives within this Legal Jurisdiction.

This year I have had the great pleasure in welcoming Mrs Diane Burleigh O.B.E. as our Patron. Mrs Burleigh the retired Chief Executive of CILEX. U.K. brings with her a wealth of knowledge to IILEX and how we can progress as a Legal Representative body. Mrs Burleigh was presented with her Patrons Medal at a C.P.D. presentation at Dublin City Hall.

In March of this year myself and a delegation from IILEX had a very cordial meeting with the Minister for Justice & Equality Frances Fitzgerald at the Department of Justice & Equality St. Stephens Green and have now opened communications with the Minister regarding the Legal Services Regulation Bill 2011 and the possibility of having Legal Executives included in the legislation.

I am very pleased that Griffith College Dublin and Cork continue to provide Legal Executive graduates. I congratulate all of those students who graduated this year and look forward to having them as full members of the institute in the future.

Recently at The Irish Law Awards Jacci Fox of Holmes O’Malley Sexton was chosen as Legal Executive of the year, I would like to take this opportunity both on my own behalf and on behalf of my fellow directors of IILEX to congratulate Jacci on receiving this prestigious award.

In the last twelve months membership has increased, I welcome all new members and would encourage all members to actively promote the Institute to their colleagues.

May I remind you that the institute is here to assist you should you have any difficulties please do not hesitate to contact us directly. I acknowledge all the tireless work that my colleagues on the board of IILEX do for the institute and you the members and for this work I say a very big THANK YOU.

Patrick J. Courtney President

Close Encounters Down Under

Whilst visiting family in Australia I decided to try to visit my friends in ILEX Victoria. Typical of Legal Executives everywhere once I made contact with Roz Curnow, C.E.O., the usual ‘can do’ attitude came into play.

Unbelievably after a couple of emails we had ‘brunch’ near Melbourne and cemented our relationship which commenced many years ago by post, then email and now we were having a face to face meeting.

It was a wonderful exchange of thoughts, challenges and ideas. We had much in common, the main one being the almost total voluntary nature of our Institutes being an obstacle towards real growth which we both found frustrating. They experience a very close relationship with the Law Society in Victoria who sponsors their website and various other ventures.

I am so grateful for their long friendship and their hospitality to me last September. L-R Roz Curnow, CEO ILEX Victoria, Veronica Duffy Veronica Duffy, Vice-President IILEX and Vicki Askew, Secretary & Vice-President of IILEX Treasurer ILEX Victoria IILEX | The Brief 2015 3 Frances Fitzgerald, Minister for Justice and Equality - a profile Frances Fitzgerald was appointed as Minister for Justice and As an opposition Parliamentarian, Frances served in six Equality on the 8th May 2014. different portfolios under three different Fine Gael leaders - John Bruton, Michael Noonan and Enda Kenny. On her Since taking office, the Minister has been actively involved first day in the Dáil Frances was appointed as Fine Gael in delivering the Government’s comprehensive programme Spokesperson on Arts, Culture and the Gaeltacht and went of justice reform which includes the planned establishment on to serve as Spokesperson on Defence, Social Community of a new Independent Garda Authority; the appointments & Family Affairs, Equality & Family Affairs, and Social Welfare. of the Garda Commissioner by open competition and the She served as Spokesperson on Health and Children while introduction of new legislation to reform, strengthen and in the Senate. Frances has served on various Dáil and clarify the remit and operation of the Garda Síochána Seanad committees including Justice, the Committee on Ombudsman Commission. In addition, Frances has overseen the Constitution, the National and Economic Social Forum, the recommencement of training for new the Forum for Peace and Reconciliation, Garda recruits. Social Affairs and Health. Frances was a member of the Joint Committee on the Frances is committed to bringing forward Constitutional Amendment on Children a referendum on marriage equality in and co-authored several Oireachtas 2015 and is working on a new system for Committee reports. She co-founded the Legal Services regulation. first ever Cross Party Group on Mental Health and worked closely with Amnesty Frances is also overseeing major reviews International to help break down the in areas including judicial appointments, stigmas associated with mental health firearms licensing, penal policy, legislation issues. pertaining to domestic violence; and Frances has campaigned strongly on the implementation of the EU Directive mental health, special needs, social on victims of crime. A key Government policy and equality issues and worked commitment was met when the Court of professionally in these areas. Appeal was established in October 2014. Frances has previously served as a Between March 2011 and May 2014, member of Dublin City Council. Frances served as Ireland’s first-ever senior Minister for Children and Youth Affairs. In this role Frances led Frances has held numerous senior positions in the Fine Gael a programme of comprehensive reform of child protection party, including as a member of the party’s Executive and welfare in Ireland including: the establishment of Council; and Director of Elections for the 2013 Meath East Ireland’s first-ever dedicated Child & Family Agency, the by-election. holding of a referendum to amend the Irish Constitution to strengthen child protection and children’s rights; the Prior to her election to the Dáil, Frances served as Chair of the introduction of new legislation to put the Children First National Women’s Council of Ireland (1988-1992) and Vice guidelines on a statutory footing; the introduction for the President of the European Women’s Lobby. As Chair of the first time of the National Standards for Child Protection and National Women’s Council she initiated and served on the independent inspections of child protection services by second Commission on Women, chairing the Employment HIQA; the commencement of development of a €50 million Sub-Committee. She held the first conference in Ireland on National Child Detention Facility project at Oberstown, Co. Women and Decision Making and championed the cause Dublin; the introduction of the ABC (Area-Based Childhood of introducing equality proofing mechanisms. Frances also Programme) and major improvement on the promotion, led a number of high profile health campaigns. She has regulation and enforcement of standards in early years and served on the boards of the Employment Equality Agency, childcare settings. Frances represented Ireland at the EU Arthritis Ireland, The O’Reilly Theatre and the Breast Research Council of Youth Ministers and in 2013, during Ireland’s EU Unit in St. Vincent’s Hospital. Frances was also Vice Chair of Presidency, she chaired the Council hosting two Presidency Europa Donna, the European breast cancer campaign. events in Dublin: an EU Youth Conference and an Expert Roundtable event on youth employability. As Minister Frances trained as a social worker and family therapist. for Children & Youth Affairs, Frances published the 2011 She worked in the Mater Hospital, St James’ Hospital and Report of the Commission of Investigation into the Catholic Ballymun Child and Family Centre for ten years. She also Diocese of Cloyne; and the 2012 Report of the Independent worked in inner city communities in London and Dublin. Child Death Review Group. Frances has been a keynote She specialised in family-work including adoption and speaker at a number of major national and international fostering. Frances gained a B.Soc. Science in U.C.D. and an conferences including: the WHO Global Conference in M.SC. in Social Administration and Social Work in the London Helsinki in 2013, the ISPCAN 13th European Conference on School of Economics. She also lectured in social work in Child Abuse & Neglect in Dublin in 2014 and the EU Equity Adult Education Courses and in Trinity College, Dublin. Action Health Conference in Brussels in 2014. Frances is married and has three sons, an actor, an Frances is TD for Dublin Mid West, having secured over 9,000 accountant and a student. final votes in the 2011 General Election. Between 2007 and 2011 Frances served as Leader of the Opposition in the Irish Profile and Cover photograph by kind permission of Frances Senate; having previously served as TD for Dublin South East Fitzgerald, Minister for Justice and Equality for ten years before that. 4 IILEX | The Brief 2015 My Experience at Studying Law in Griffith College Dublin y apprehension of studying existed long before an appetite and the inclination to want to know more. So I entered the gates of Griffith College. At the much so that I am now contemplating going further with my age of 45 and having a visual impairment I studies and entering the second year of the law degree at Mhad never been to college and had only ever Griffith College. completed my Leaving Certificate. The thought of going For anybody who is considering studying the Diploma in to college had never even entered my head until my boss Legal Studies and Practice in Griffith College, I would highly encouraged me to apply, believing that I was well capable recommend doing so and not to worry about age, or prior for it and that it would help me in my future career. knowledge of law. The course caters for people who have My fear and apprehension were unfounded. The course no previous third level experience. All materials for the was challenging (as it should be) but it was made very course are provided and you will have full access to the manageable by all the lecturers who were extremely college library and campus. helpful, supportive, and most of all encouraging. This could I am living proof that a previously apprehensive and nervous also be said of my classmates. student can not only succeed in securing the Diploma in I could only have imagined that going to college was Legal Studies and Practice but also develop a passion for a going to be tough but the fact that I was going to be subject previously unknown to him or her. I would like to take studying law made the whole idea more terrifying to me. this opportunity to thank Griffith College for giving me such I really had very little knowledge of the law and what was a great learning experience and for helping me graduate involved in grasping it. I found the more that I studied and with this Diploma, qualifying me as a Legal Executive. researched law and how it worked, the more intrigued and inquisitive I became. The Diploma in Legal Studies and Lysander Preston Practice at Griffith College gives a person a wide butin- Legal Executive. A.I.I.L.Ex. depth knowledge of the law in Ireland today. It gave me Diploma in Legal Studies and Practice The AIB Private Banking Irish Law Awards 2015 The AIB Private Banking Irish Law Awards 2015 was held The Institute congratulates her on this achievement. It in the DoubleTree by Hilton, Burlington Road, Dublin 4 on also extends its congratulations to the candidates that Thursday 30th April 2015. were shortlisted Natalie Boyce, Sharon Lennon, Deirdre O’Donovan and Sheila Rennick. The opening address was made by the Minister for Justice and Equality Frances Fitzgerald in which she mentioned the role of Legal Executives within the legal services industry. L-R- Miriam The ‘Best Legal Executive’ was won by Jacci Fox, a member O’Callaghan, of IILEX, who works with Holmes, O’Malley Sexton Solicitors Presenter and David in Limerick. Langwallner, Dean of Law Faculty, Griffith College recipient of the ‘Best Pro Bono & Public Interest Team/ Lawyer of the Year‘

Another wonderful award ‘Best Pro Bono & Public Interest Team/Lawyer of the Year’ went to David Langwallner for the Innocence Project at Griffith College, Dublin. David is Dean of the Law Faculty in Griffith College Dublin and was successful in obtaining a posthumous pardon for Harry Gleeson who was hanged 74 years ago for a murder he did not commit. L- R--Miriam O’ Callaghan, Presenter, Jacci Fox, Recipient of Best Legal Executive Award 2015 and Thomas Creaton, Congratulations David and Griffith College, Solicitor and Founding Partner, Holmes O’ Malley Sexton, Solicitors Veronica Duffy, Vice-President of IILEX IILEX | The Brief 2015 5

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Marie McSweeney Legal Executive of the Year 2014 Irish Law Awards 2014

Congratulations to Marie McSweeney who has been Marie has also lectured to College students in debt voted Legal Executive of the Year at the Irish Law Awards collection procedures through the District, Circuit and 2014. All at IILEX are very proud and very happy that High Courts. Marie’s hard work and achievements to date in her career have been acknowledged Marie has maintained and progressed her career through her qualities as an efficient, clear thinking, hard working, Marie McSweeney has worked in Ronan Daly Jermyn, trustworthy and highly experienced Legal Executive. Solicitor’s Office - (Cork branch) for over 35 years. She works in the Litigation Department within the Corporate Recovery Unit. Marie has responsibility in dealing with large and small commercial clients and financial institutions and pursues the recovery of outstanding debts on their behalf through all levels of the Courts, from District Court through to High Court. Marie meets with clients, deals with any queries that may arise and runs the various files from initial instructions through to final Judgment as well as enforcement of Judgments together with ensuring the smooth running of the team.

Marie also has a Human Resources role within the office, dealing with staffing matters, interviewing candidates for job vacancies, keeping personnel records, Staff Committee Marie being presented with her award at the liaison and monitoring work loads throughout the office. Irish Law Awards 2014 EU TREATY RIGHTS - (FREE MOVEMENT RIGHTS) he human race always migrates Directives and Regulations. One of the While exercising EU Treaty Rights, a from one place to another most important Directives is EU Directive Union citizen can invite and apply For place and its origin goes back 2004/38 EC as transposed into Irish law the residence rights for their Non-EEA Tto the time when Adam arrived by way of Statutory Instrument No. family members. EU Directive divides in this planet. People migrated from 656 of 2006 European Communities family members in two categories one place to another for a variety (Free Movement of Persons) (No. 2) ‘Qualified Family Members’ and of reasons in different times, but Regulations 2006 (as amended). The ‘Permitted Family Members’. Spouse, contemporary migration trend shows said Directive empowers the Union parents/grandparents of EU National people from less Developed regions citizens to choose to live and work and/or his/her spouse, children/ of the world to the developed regions wherever they wish to without any grandchildren of EU National and/ e.g. Europe and America, in quest for entry visas and work freely within the or his/her spouse are classified as better job opportunities, facilities and a Member States of the European Union. ‘Qualified Family Members’, and, other secure future. Developed countries of These rights are commonly known as family members including partner the world have formulated indigenous Free Movement Rights. of the EU National are classified as immigration policies keeping an ‘Permitted Family Members’. The Directive is applicable to the account of the need of human citizens of the Union in the event However, it is important to note that resources and work force requirement of migrating from home country to Member States are given a power to of an educated and skilled pool of another Member State for the purpose restrict such Free Movement Rights in workers from less developed countries of work, business or studies. Any certain circumstances where it feels of the world to meet the need of the citizen of the Union or their families that the said rights are being abused. time and better sustainability of their can benefit from visa free entry to Furthermore, Member States may also economy. any Member State and reside for restrict these rights pursuant to public In this respect, formation of the 3 months without any legal hurdle. policy, security, health or abuse of European Union brought a change Residence rights can be extended rights. in the immigration regulations for the for more than three months subject citizens of the members of the EU to entering to employment, business Imran Khurshid and liberated their free movement activity or pursuance of education in Barrister-at-Law (np), M.Com, LLB and work rights by issuing different the Member State. IK Immigration Consultants IILEX | The Brief 2015 7 COMMISSIONER FOR OATHS

Commissioner for Oaths is a swearing of persons who come to Commissioner for Oaths particularly person who is authorised to before him or her to the truth of so if having an Affidavit verified. verify affidavits, which are evidence which has been reduced Astatements in writing and on to writing in a draft affidavit; The Oath to be taken by persons oath, and other legal documents. • The Commissioner must ascertain before the Commissioner for Oaths is that the person has read the draft as follows:- A Commissioner for Oaths is appointed affidavit and fully understands its by the Chief Justice, by commission contents; “I swear by Almighty God (or given under his/her hand. The • The Commissioner will require the whichever is appropriate of that appointees are solicitors or “other person to swear that the Affidavit particular religion) that this is my fit and proper persons” and the is true by raising the appropriate name and handwriting and that the commission is held during the pleasure Testament or holy book in either contents of this my Affidavit are true”. of the Chief Justice. The commission hand and repeating the words of a solicitor or a non-solicitor may of the oath being administered, Every deponent who is sworn must be be revoked or suspended by the (whichever is appropriate of that sworn with the Testament or holy book Chief Justice. A non-solicitor must not particular religion); (or whichever is appropriate to that practise outside the area for which • To verify that the Affidavit was religion) in his/her raised hand. they are appointed. properly sworn by completing a “Jurat” on the Affidavit; A person who objects to be sworn on the Ground that the taking of an oath is contrary to his/her religious belief, or that he/she has no religious belief, is permitted to make a solemn affirmation. The affirmation commences:-

I, A.B. of ...... ……………………………….. do, solemnly sincerely and truly declare and affirm that ………………....

These words replace “swear by” etc in the oath, and the Jurat reads “Affirmed by …………… before me etc.”

Powers of a Commissioner for Oaths: • To charge a fee for his/her There is a duty on the Commissioner to A Commissioner for Oaths may take services (which can be found in ensure that a person who wishes to be any affidavit, affirmation, statutory or the Rules of the Superior Courts). affirmed states the ground on which other declaration, acknowledgment, he/she objects to be sworn, even examination and attestation for the though the ground is not shown on the purpose of any Court in this jurisdiction, Oaths and Affirmations: face of written affirmation. for matters relating to applications for A person making an Oath will be notarial faculties, or for the registration required to swear the oath by raising Deborah Walsh MIILEX of any instrument. the appropriate Testament or holy (Secretary/Director of IILEX) book, (whichever is appropriate of that COMMISSIONER FOR OATHS Functions of a Commissioner for Oaths: particular religion). It’s important to • The essential function of a remember that he/she must produce Commissioner for Oaths is the identity (e.g. Driving Licence/Passport)

RECENT COMMISSIONER FOR HOW TO BECOME A COMMISSIONER FOR OATHS OATHS APPOINTMENTS: This is open to Legal Executives by Application to the Supreme Court. If you as a Legal Executive want to be appointed as a Commissioner for Oaths, you CONGRATULATIONS TO must apply by Petition to the Chief Justice. You must verify the Petition by an Affidavit, accompanied by Certificate of Fitness signed by six members of the Joseph Whelan Member of IILEX; legal profession and by six local businesses. You must have the Documents Mary Shiels Member of IILEX; stamped and filed in the Office of the Supreme Court. You must also obtain a Barrister to move your Application on the date of Hearing. Deborah Walsh Member of IILEX, Director/Secretary This process takes persistence and determination but it is so worthwhile. It of IILEX does not involve the sitting of exams. It is a wonderful honour to have and Mary-Celeste of value, in terms of respect and status is enormous. Hetherington Member of IILEX

Information can be obtained from the Supreme Court Office at 01-8886568 or email on being appointed as [email protected] or if you require help you can also contact the Institute at [email protected] Commissioner for Oaths, by the Supreme Court.

8 IILEX | The Brief 2015 Griffith College Dublin Graduation and Conferring Ceremony 2014 Diploma in Legal Studies and Practice - (QQI)

he Conferring Ceremony of in Legal Studies and Practice (QQ1) as graduates of the Diploma in well as the Certificate in Legal Studies Legal Studies and Practice (QQ1). For many graduates of such T- (QQI) took place at the legal studies this has been recognised Conference Centre in Griffith College as a pathway to undergoing further Dublin on 13 November 2014. This legal studies such as the LLB (Hons) in Course is delivered by Griffith College Irish Law and others. Professional Law School and run in It was marvellous to evidence Ms. conjunction with the Irish Institute of Sylvia Meehan a well known and Legal Executives (IILEX). renowned pioneer of womens’ rights Representing the Irish Institute of being conferred with a Professional Legal Executives on this occasion Excellence Award by Griffith College were, Veronica Duffy (Vice-President), This award was presented by Professor Gabriel Canning (Chairman), Mary Diarmuid Hegarty, President of Griffith Veronica Duffy Vice –President of O’Dwyer (Director of Communications) College who congratulated her and IILEX , Professor Diarmuid Hegarty, and Frank Crummey (Fellow and Hon. made reference to her very long President Griffith College and Life Member). distinguished and outstanding career. Student, Teresa Duigan She thanked Professor Hegarty and A total of 20 students graduated with a Griffith College for bestowing on her By kind permission of Lafayette Photography Diploma in Legal Studies and Practice with such an honour of which she was - (QQI) as well as a total of 9 students truly greatful to receive. who graduated with Certificates in Dublin as well as Director Tomás Mac- Legal Studies (QQ1). Students were Ms. Meehan was instrumental in Eochagáin and other Directors’ of formally presented with their respective establishing the Employment Equality Griffith College. parchments by the President of Griffith Agency where she was Chairpeson Once again, the entire Conferring College, Professor Diarmuid Hegarty and served with this agency for a Ceremony was a very professional and who congratulated each on their long number of years. In later years, memorable event and to be present great achievement as well as wishing Sylvia has been involved, inter alia, at such was a tremendous honour them every success and happiness in as President of the Irish Senior Citizens and was very deeply appreciated. their new lives ahead. Parliament and has fostered and Compliments are extended to all who espoused the rights and concerns of In addition, best student achievement worked tirelessly towards organising senior citizens. of the year 2014 awards were this entire event. Well done all. presented by Griffith College to Teresa Following the Graduation Ceremony, Many thanks to Professor Diarmuid Duigan - Diploma in Professional Studies Directors’of IILEX were delighted to Hegarty, President of Griffith College and Practice (QQI) and to Laura Doyle have the opportunity to meet and for the very kind invitation and – Certificate in Legal Studies (QQI). speak with Professor Diarmuid Hegarty, hospitality extended on this occasion President of Griffith College as well as Students who were not in attendance to Directors’ of the Irish Institute of academic staff who included, Siobhán on the day were conferred in abstentia. Legal Executives.- (IILEX). Leonard, Head of Law Faculty, Ronan The Irish Institute of Legal Executives – Fenelon, Director of the Law School Mary O’Dwyer FIILEX (IILEX) were again delighted to learn of and Karen Sutton, Lecturer in the Law Director of Communications-IILEX the high number of students graduating Faculty, Anne Driscoll, US Fulbright Editor of The Brief and thus signifying a sustained interest Scholar and Manager at the Irish in the pursuance of both the Diploma Innocence Project, at Griffith College Professor Diarmuid Hegarty, President of Griffith College, Sylvia Meehan, accompanied by Academic staff, Students and Directors of the Irish Institute of Legal Executives - ( IILEX). By kind permission of Lafayette Photography

IILEX | The Brief 2015 9 The Companies Act 2014

he President of Ireland on 23 December 2014 signed created by the Act is a Designated Activity Company into law the Companies Act 2014 (the “Act”), formerly (DAC). known as Bill No. 116 of 2012. The Act was published The Act dispenses with the current two separate Constitution on 28 January 2015 on the Oireachtas (Irish Parliament) T documents (Memorandum of Association and the Articles website. The Act is the biggest central Statute to-date in our of Association) for the new simpler type CLS and instead State’s history. The purpose of the Act is to consolidate, with permits utilisation of a single Constitution document, which amendments, certain enactments relating to companies obviates the need for an Objects Clause. The new CLS will and to provide for related matters. The Act replaces the therefore have complete unlimited capacity to conduct existing 16 Companies Acts from 1963 to 2013 and various legal business, subject to any restrictions in other legislation. related Statutory Instruments. The Act is therefore riven The ultra vires doctrine becomes redundant for the new into two volumes. The Act is divided into 25 parts with 17 type CLS. The CLS has limited liability and has share capital. schedules and contains 1,448 sections. It may have between 1 and 149 members and does not While the Act is complex and extensive legislation it is need to hold an Annual General Meeting. The CLS may drafted to simplify company law for the approximate 90% have a single Company Director but must have a separate of companies registered in Ireland – the private company Company Secretary if there is a single Company Director. limited by shares. Parts 1 to 15 of the Act provide legislative The CLS may claim eligibility for audit exemption (and requirements for all aspects of the private company limited dormant company audit exemption) thereby avoiding by shares from inception until termination. There is no need Registered Auditor professional audit fees. The CLS company to be concerned with the rest of the Act if a company name must end with Limited or Teoranta. category falls into Parts 1 to 15. Parts 16 to 25 of the Act Part 16 of the Act sets out the requirements for a Designated concern legislative requirements for all other company Activity Company (DAC). A DAC is defined as a private types provided for under the legislation, namely the new company limited by shares or a private company limited Designated Activity Company (DAC) (Part 16), the Public by guarantee. A DAC private company limited by shares Limited Company (Part 17), the Guarantee Company (Part or a DAC company limited by guarantee will each have 18), the Unlimited Company (Part 19), External Companies capacity, including powers, to conduct their activities as (Part 21) the Unregistered Company (Part 22) and the laid out in their Constitution documents (Memorandum Investment Company (Part 24). of Association and Articles of Association). A DAC private The Act is scheduled to commence on 1 June 2015 by way limited company by shares or a DAC private company of Statutory Instrument with a further 18 month transition limited by guarantee have powers to only conduct their period. The transition period begins on the commencement activities to acts or things set out in their Constitution date but may be extended to 30 months by Ministerial documents, so there is limited capacity to conduct legal Order. The transition period cannot be extended to longer business. Part 16 of the Act deems private guarantee than 30 months. The transition period is important given the companies to be DACs on the commencement date - 1 new categories of company created by the Act and the June 2015. The regulatory features of a DAC are: - conversion procedures to new company types and how the 1. There are a minimum of two Company Directors. Companies Registration Office, and with some categories of 2. Constitution documents are a Memorandum of company how the Central Bank Authority and the Charities Association and Articles of Association. Regulatory Authority, will recognise, regulate and deal with 3. Capacity is limited by an Objects Clause. same. 4. It must hold a physical Annual General Meeting where New Categories of Private Company Limited by Shares there are 2 or more members. 5. It may list debentures on a debt market. The Act creates two categories of private company limited 6. The company title must end with “Designated by shares. The first type is a simpler model of an existing Activity Company” or “Cuideachta Ghniomhaiochta private company limited by shares (CLS). The second type Ainmhithe”, unless it is exempted. A DAC private company limited by shares is the nearest form of company to live private companies limited by shares regulated under the Companies Acts 1963–2013. It may be that some live private companies limited by shares regulated under the Companies Acts 1963-2013 may require an Objects Clause or may wish to have their Debentures listed on a regulated market or that minority shareholders, investors and venture capitalists demand that the company in which they hold their investment continues to only carry on its legal business activities as set out in its Objects Clause rather than have unlimited capacity to conduct other business as will be the position with the new type CLS. The DAC type company is designed to cater for these situations and is the appropriate type of company for Boards and Company Directors of private companies limited by shares to elect to operate under the Companies Act 2014. Companies incorporating after 1 June 2015 Companies incorporating after the commencement date (1 June 2015) can register with the Companies Registration Office as a CLS Company (LTD) or a Designated Activity Company (DAC) or the other type of companies. 10 IILEX | The Brief 2015 Transition Arrangements, Conversion and Default Position (DAC) will find, as previously stated, pursuant to section 16 for Existing Private Companies Limited by Shares of the Act that their company has by default become a The Act requires all existing private limited companies to new private company limited by shares (LTD) to which alter their legal forms. Once the Act comes into operation parts 1 to 15 of the Act apply. Such a situation may not be existing private limited companies cannot continue in their appropriate to company’s business or circumstances and current forms. pursuant to section 58 of the Act, members holding not less than 15% of the share capital or any class of shareholder There are a number of ways an existing private company or creditor holding not less than 15% of the company’s limited by shares, which was incorporated before the Act debentures, which entitled them to object to an alteration may convert to the new simpler CLS Company (LTD). During of the company’s Objects, may apply to Court for an Order the transition period if an existing private company limited to re-register as a Designated Activity Company. by shares fails to voluntary change its existing status to the simpler LTD it will be deemed to be a DAC company for the Pursuant to section 63 of the Act, any member of an duration of the transition period only. existing company who believes that he or she has suffered prejudice by anything the Company or its directors have Section 59 of the Act done or failed to do to convert during the transition period An existing private company limited by shares incorporated may apply to Court for relief. If directors fail to comply with before the Act may convert during the transition period to their obligations to re-register as a new company type by the new simpler CLS Company (LTD) pursuant to section 59 shares during the transition period pursuant to section 61 of the Act. It must submit to the Registrar of Companies a of the Act there is a presumption, which may be rebutted, special resolution together with its new model Constitution that the directors exercised their powers in a way that is as well as Form N1. The new model Constitution must be in oppressive to that member and in disregard for their rights. a format as set out in section 19 of the Act. The new model Codification of Directors’ Duties Constitution must state: - The Act consolidates the existing statutory directors’ duties • The Name of the Company. into a single Statute and for the first time codifies the main • That it is a private company limited by shares fiduciary duties, which apply to company directors. The Act registered under Part 2. also requires directors of newly incorporated companies • Details of its share capital. and directors newly appointed to existing companies • The number of shares taken by each subscriber to the following the commencement of the Act to acknowledge Constitution. in writing their duties as set out in the Act. Every company • And the Supplement Regulations, if any, adopted by director and company secretary must be 18 years of age the Company. or over. Any appointment where the company officer is a Section 60 of the Act minor is void. Directors duties are: - An existing private company limited by shares incorporated • To act in good faith in the company’s best interests. before the Act may convert during the transition period to • To act honestly and responsibly in the conduct of the the new simpler CLS Company (LTD) and pursuant to section company’s affairs. 60 of the Act. Directors may submit to the Registrar Form • To act in accordance with the company’s constitution. N1 together with the new model Constitution drafted by • Not to misuse company’s property, information or them. Directors should have before sending the new model opportunities. Constitution to the Registrar have forwarded a copy of • Not to fetter discretion. same to each member of the Company. Directors should • To avoid conflicts of interest unless agreed. ensure that the new model Constitution does not alter the • To exercise care, skill and diligence. rights and obligations of existing company members’ rights • To have regard to the interests of the members as well and obligations and their rights and obligations as set out in as employees. its Memorandum of Association and Articles of Association. These duties apply to all directors and includes de The Registrar of Companies will forward a new Certificate of facto directors and shadow directors. Directors of newly Incorporation when processing of registration documents is incorporated companies and company directors newly completed. The Company becomes a new company type appointed to existing companies must sign a statement only when the new certificate of incorporation is issued. when filing notification of their appointment to the Registrar of Companies in terminology below: Section 61 of the Act If at the end of the transition period, 30 November 2016, an “I acknowledge that, as a Director, I have legal existing private company limited by shares fails to convert duties and obligations imposed by the Companies to a new type company, the Registrar of companies Act, other enactments and at common law.” will apply the deeming provisions. The existing private Directors’ offences categorised company limited by shares becomes a CLS company The Act streamlines criminal offences arising from non- (LTD) when the Registrar will issue a new certificate of compliance in categories as follows: incorporation. The existing Memorandum and Articles of Category 1) Conviction on indictment / term of the company will then exist as its single Constitution. The imprisonment of up to 10 years / or a fine Constitution will contain the existing Memorandum other of up to the sum of €50,000 or both. than the provisions that comprise its objects or provide for, Category 2) Conviction on indictment /imprisonment or prevent, the modification of all or any of the provisions of up to 5 years / or a fine up to the sum of its Memorandum or Articles and the provisions of its existing €50,000 or both. Articles. Category 3) Summary Offence /Imprisonment up to 6 Possible consequences for Directors who fail to make months / a Class A fine or both arrangements to change company type during the Category 4) Summary Offence Class A fine only. transition period A Class A fine may impose a fine not exceeding the sum of Directors of existing private companies limited by shares €5,000.00 who fail during the transition period, to voluntarily convert to either a CLS company (LTD) or designated activity company IILEX | The Brief 2015 11 Examples of Category non-compliance offences are: - Other notable features of the Companies Act 2014: • Not displaying a company’s name ‘in a conspicuous • An audit committee is required for ‘large’ private position’ is a category 4 offence (S.49 CA 2014). companies (i.e. Balance Sheet €25 million plus and • Failure to notify the Registrar of Companies of any turnover of €50 million plus). increase/decrease in share capital is a Category 3 • Loans to Directors or to connected persons must be offence (S92/93 CA 2014). in writing with terms set out, otherwise they will be • Mutilation or falsification of a book or document presumed to be repayable on demand and attract relating to a company’s affairs is a Category 2 offence interest. (S. 877 CA 2014). • Loans from Directors must also be in writing with terms • When a restricted or disqualified person acts in relation set out otherwise may be considered as a ‘gift’ and to a company (S855 CA 2014) and enters into any may not rank with creditors. arrangement which breaches the rules on loans to • An audit exemption exists for Group companies where directors or connected persons (S239 CA 2014). combined turnover is less than €8.8 million or Balance • Intent to defraud creditors is a Category 1 offence Sheet net asset position is €4.4 million, or 50 employees (S722 CA 2014). or less. • There is an audit exemption for ‘dormant’ companies Directors Compliance Statements in a Group. This obligation was first introduced during 2003 but never • There is an audit exemption for Companies Limited by commenced as it was considered to be too onerous. It is Guarantee. now revised and re-introduced and applies to: • There is an increase in penalties when failure to keep • All Public Companies (except investment companies). proper books of account lead to insolvency. • Applies to the new form Private Company Limited by • Voluntary Strike Off will be a statutory basis. All directors Shares LTD’s / DAC’s /CLG’s, which have a turnover must sign the application. €25 million plus and a Balance Sheet Net Asset total of • No Annual Returns or Accounts required where €12.5 million plus. Voluntary Strike Off / Members Voluntary Liquidation is • It does not apply to ULC/PUC/PULC. commenced. • Directors must declare compliance with relevant • A Company Secretary must have the relevant obligations (i.e. where failure to comply would be a Qualifications and / or Expertise Category 1 / Category 2 or tax law offence). • The Companies Registration Office penalty fees waiver Additionally, a Directors’ annual report must contain a arrangement is to cease. An application to the District statement which acknowledges that they are responsible Court must be made. An audit exemption will be for securing the Company’s compliance with its relevant restored if application is successful. obligations and must also include in the annual report a • Any director of a company who is subject to a foreign statement which confirms that the following points have disqualification subsequent to their appointment, must been carried out: file a form with the Companies Registration Office. This does not apply to directors who filed a Form • A compliance policy statement exits and it sets out the B74 with their notice of appointment. It only applies company’s policies in relation to compliance. ‘In the to disqualifications not notified to the Companies directors’ opinion’, these policies must be appropriate Registration Office previously. to the subject company. • Liquidators must be formally qualified. • Arrangements have been put in place which are ‘in the directors’ opinion’ designed to secure substantial Please visit the Companies Registration Office website at compliance with the company’s relevant obligations. www.cro.ie or e-mail the office at [email protected] if you have • A review has been conducted of the arrangements any queries or require further information. noted above. This review must have taken place during the financial year to which the report relates. Martin Tierney MIILEX Director of Education, Central Council - IILEX Failure to comply is a Category 3 offence (i.e. maximum and fine of €5,000 and /or maximum prison sentence of 6 months Deirdre Butler MIILEX (summary conviction only)). Director of the Munster Council – IILEX Appointment of Patron of IILEX - Mrs. Diane Burleigh O.B.E. The Institute was humbled and delighted when Mrs Diane Diane is the former CEO of the Chartered Institute of Legal Burleigh O.B.E. agreed to become our first patron on the 25th Executives (England & Wales) and she was recognised with a October 2014 at a most professional talk on Probate given by Lifetime Achievement Award at the Modern Law Awards in Mary McKeever, Associate Solicitor, Private Client Group at October 2014 prior to her retirement as CEO this in December 2014. Eugene F. Collins Solicitors held in City Hall, Dublin 2. During her tenure as CEO of CIILEX she was instrumental in advancing the recognition of the work of Legal Executives in the United Kingdom. Legal Executive Lawyers in the U.K. are acknowledged and respected as they can become Judges, Coroners, Partners in Law Firms and the Institute in the U.K. has been granted chartered status.

In the New Year’s Honours List 2013 Diane received an OBE from Queen Elizabeth for services to the legal profession in England and Wales.

We know that we will grow and develop under her patronage and we thank her most sincerely for becoming our patron and friend. Patrick J. Courtney, President of IILEX presenting Mrs Diane Burleigh O.B.E. with the Patron’s Medal Veronica Duffy, Vice-President of IILEX 12 IILEX | The Brief 2015 salary survey 2015

legal Salary Survey carried out in-house by Brightwater Recruitment There has been a steady increase in There has been a continued increase in the recruitment activity over the course of 2014 Agents. Below are pages amount of in-house opportunities with with positive signs including the smaller companies streamlining and bringing the practices recruiting again. This growth extracted from their survey legal function in-house. Whilst there are more whilst steady has not seen a rapid increase opportunities, the competition for these roles which relate to the legal which still suggests signs of positivity but remains very high as lawyers with a strong also some caution as to the market. We have profession in both the business acumen compete for these roles. also noted a marked increase of activity in areas such as corporate, commercial Republic (page 25) and property and niche areas such as energy. practice North of Ireland (page 8). We had expected these increases as these £

particular areas improve and companies Job title 65,000 + salaried partner start to acquire and expand again. The main 45,000 – 65,000 bulk of the roles and recruitment do remain 6-9+ years’ pQe 30,000 – 55,000 By kind permission of in the larger corporate/commercial firms. 3-6 years’ pQe 22,000 – 30,000 Brightwater Recruitment 1-3 years’ pQe We have also seen an increase in not 20,000 – 26,000 newly Qualifieds olicitor Specialists just the amount of trainees being kept 16,000 – 20,000 paralegal on but also in companies looking for legal executive / NQ solicitors which is a really positive indicator for the legal sector. in-house £ The larger multinational firms continue to Job title 70,000 - 90,000 grow and hire with continued success and head of legal there has been some notable new entrants to 50,000 - 70,000 senior lawyer the local market in 2014. These firms attract 35,000 - 55,000 legal counsel candidates from all levels from partner 25,000 - 35,000 company secretary level down to legal graduates and so offer 16,000 - 20,000 the local market a broader range of career legal executive / paralegal opportunities.

We have also seen some of the local firms increasing their salaries across the board which is an indication of the market “the larger improving. Employers have realised that they need to look after their employees as there is now an increased number of roles multinational firms and opportunities available for them. brig HtwAt Er r EC ruitm EN t SPEC iAL iStS Continue to grow and there has Been some notaBle new LEGAL entrants to the loCal market in 2014.” Practice 2014 has seen continued growth in the legal sector. This is predicted to continue into 2015 Practice and is a strong indicator of the confidence that now exists within the legal market. Job Title Equity Partner 8 _ Solicitors in key growth areas with Dublin € commercially relevant experience can expect to Salaried Partner 150,000 - 250,000 Regional €

see a 2%-5% increase in their base salary. This 150,000 - 250,000 8 6 - 9 years’ PQE 90,000 - 250,000 is particularly relevant in the areas of funds, 65,000 - 145,000 5 years’ PQE 65,000 - 150,000 commercial conveyancing, financial services, 48,000 - 90,000 corporate and commercial law. 4 years’ PQE 57,000 - 110,000 45,000 - 70,000 3 years’ PQE 50,000 - 90,000 Due to increased workloads, recruitment 40,000 - 65,000 2 years’ PQE 45,000 - 85,000 activity has risen across small to medium sized 38,000 - 45,000 firms but the majority of roles in practice still 1 year’s PQE 45,000 - 75,000 30,000 - 40,000 come from the ‘Top 10” firms. Newly Qualified Solicitor 35,000 - 65,000 30,000 - 35,000 Company Secretary (5+ years’ exp.) 30,000 - 60,000 An extremely welcome development is Company Secretary 25,000 - 30,000 the substantial demand for residential and 40,000 - 95,000 35,000 - 70,000 commercial conveyancing solicitors with a Company Secretary (0-3 years’ exp.) 30,000 - 55,000 35,000 - 50,000 significant number of these roles are arising Legal Executive / Paralegal 25,000 - 45,000 within the Dublin area. Solicitors with strong 25,000 - 38,000 Professional Support Lawyer 25,000 - 45,000 conveyancing experience are in demand on 22,000 - 30,000 both a permanent and contract basis. 65,000 - 90,000 N/A Firms have always experienced staff losses Niche Areas due to movement into in-house roles for the Job Title perceived improvement in ‘work life balance’. Litigation Commercial Property This is particularly true in the aviation finance and funds sector. This is an issue that firms are Salaried Partner (Dublin €) Funds 100,000 - 250,000 (Dublin €) addressing and are beginning to rethink their 6-9 years’ PQE 100,000 (Dublin €) 65,000 - 250,000 non - monetary packages in order to attract and 5 years’ PQE - 150,000 160,000 - 250,000 80,000 - 140,000 retain existing staff. 60,000 - 105,000 100,000 4 years’ PQE 70,000 - 165,000 - 105,000 3 years’ PQE 60,000 - 85,000 90,000 - 105,000 in-House 65,000 - 95,000 50,000 - 80,000 85,000 2 years’ PQE 60,000 - 90,000 In-house roles have continued to grow at a 45,000 - 75,000 steady rate throughout 2014 with a need for 1 year’s PQE - 70,000 75,000 - 85,000 50,000 - 75,000 staff at different levels. Demand for these roles Newly Qualified Solicitor 40,000 - 65,000 60,000 - 75,000 45,000 - 65,000 is always high from professionals looking to 30,000 - 60,000 50,000 30,000 - 65,000 make a move from practice and we expect this - 60,000 30,000 - 60,000 to continue throughout 2015. In-House The financial services sector is the market Job Title leader in recruiting experienced legal Head of Legal professionals with insurance, funds and asset Dublin € Regional € management companies all expanding their Senior Legal Counsel 100,000 - 350,000 teams throughout the year. Companies in the 95,000 Junior Legal Counsel 80,000 - 140,000 technology sector are also continually seeking - 160,000 Funds Lawyer 65,000 - 115,000 candidates for both specific contract/IP roles 45,000 - 75,000 40,000 - 60,000 and on a more general legal counsel basis. Legal & Compliance Officer 50,000 - 155,000 A second European language is increasingly Company Secretary 70,000 - 110,000 N/A becoming a benefit for the in-house market. 55,000 Legal Administrator / Assistant 50,000 - 90,000 - 120,000 50,000 - 90,000 25,000 - 45,000 25,000 - 30,000

_ IILEX | The Brief 2015 13 25 25 Legal Executives: Why not qualify as a Mediator? Here at IILEX we are always on the lookout for new a pre-requisite to being a mediator. In a way opportunities for our members. One growth area it is a hindrance, as one needs to unlearn the in the legal industry which should be of interest to requirement to be partisan for your client. Legal Executives seeking to add another string to As a mediator, your job is not to take sides. their bow is Mediation. Generally, as a solicitor, your job is to fight your client’s side. It can be difficult to switch What is Mediation? seamlessly between the two professional modes. Mediation is a confidential and voluntary process It is likely to be more cost efficient for a legal where a mediator sits down with disputing parties practice to offer the services of a Legal and helps facilitate a discussion where the parties Executive as a mediator over those of a agree on their own way forward. People are solicitor. The cost of a solicitor’s practicing present at mediation of their own free will and certificate and insurance are much higher can leave whenever they wish. The mediator does than those of mediators. Certainly many of not impose any solutions, but rather is present to the Legal Executives I have met on the DLSP facilitate effective communication. Would you would strike me as highly suited to the job of The Mediation process can be applied to almost a mediator.” any situation where there is conflict, or just the potential of conflict. It is particularly effective where Becoming a Mediator:- people with close relationships are clashing, such like to tip theHead lecturer in the Law department in Griffith as workplace relationships or married couples. College’s Cork Campus is Sian Langley. “It is very The Mediation Process provides a safe place for exciting that Griffith College has chosen their fine difficult, emotionally charged conversations to new campus on Wellington Road to launch the take placescales where people with closein relationships your Certificate in Mediation this Autumn. This is the first and shared interests can explore options. You can course that I know of outside the greater Dublin find out more about the process of mediation on area that has gone through the rigorous process the website of the Mediators Institute of Ireland of obtaining HETAC level 8 accreditation as well (www.themii.ie).favour? as certified mediator status for its graduates from the Mediators Institute of Ireland.” The course Legal Executives as Mediators begins this October and runs for 4 months, where We spoke with Griffith College Law Lecturer Paul a student would attend usually on Fridays and Pierse, who has met with many Legal Executives Saturdays once every few weeks. It is intended over the last number of years, both as a solicitor that the course will run in both the Dublin and Cork and as a lecturer on the Diploma in Legal Studies campuses of Griffith College, subject to demand. and Practice (DLSP). Mr. Pierse is a mediator in Succession• DisputesTo Protect with Succession your Ireland. experienceYou can and find knowledge out more about the course When asked about the suitability of mediation to on www.griffith.ie Legal Executives, Mr. Pierse had the following to say: • To regulate and represent you “It would appear to me to make a world Mary O’Dwyer FIILEX of sense for a solicitor’s office to train up Director of Communications –IILEX a Legal• ExecutiveTo advocate in the skills of for mediation rights for Legal Executives In conversation with rather than a solicitor. Being a solicitor is not Paul Pierse, Law Lecturer, Griffith College, Cork You need us for direction We need you for strength and resources

14 IILEX | The Brief 2015 For an application form visit www.iilex.ie or contact 01-890 4278 or [email protected] Conferring Ceremony 2014 at Griffith College Cork DIPLOMA IN LEGAL STUDIES AND PRACTICE (QQI)

he Conferring Ceremony of the Irish Institute of Legal Executives Graduates of Griffith College IIlEX and Deirdre Butler Director of Cork took place on Thursday Regional Council/Education IIlEX. 20th November 2014 in the T Other dignitaries included Cllr. Tony Honan Chapel at Griffith College Fitzgerald on behalf of the Lord Cork Wellington Road Campus. Mayor of Cork, Professor Diarmuid The Ceremony was attended by Hegarty President of Griffith College, family and friends of Graduates Paul Pierce Solicitor and Law Lecturer as well as representatives of the Griffith College Cork, Clíodhna validation bodies and local elected Dineen Programme Director for representatives. LLB Online & Senior Lecturer in Awards being conferred were Law Griffith College Cork & Dublin Diploma in Legal Studies & Practice along with other members of Griffith (QQI). LLB (Hons) in Irish Law (NTU/ College Staff. QQI). BA in Journalism (QQI). Roseanne Murphy recipient of the Professor Diarmuid Hegarty gave the Certificate in Computing Science Frank Crummey Perpetual Cup, conferring address congratulating (QQI). Higher Diploma in Science Professor Diarmuid Hegarty, President students on their achievements in Computing (QQI). BA in Business of Griffith College and Frank and wishing them every success Studies (QQI), BA in Marketing Crummey (Hon. Life Member IILEX) going forward for the future. Cllr (QQI). BA (Hons) in Accounting By kind permission of Lafayette Photography Tony Fitzgerald also in his address & Finance (QQI). Certificate in congratulated both graduates, Advanced Taxation Planning and Anna Tuianova, Philip Wade and supporting families and GCC staff on Advice (QQI). Diploma in Digital finally Eoghan Weldon who received a job well done. Communications for Business (QQI). the Best Academic Achievement. Diploma in Business Management Alan Cashman, Tracy McSweeney Following the Conferring Ceremony, (ICM). Diploma in Human Resource and Roseanne Murphy successfully all were invited by GCC to a Management (ICM). Diploma in completed the Diploma in Legal reception which was held in Marketing, Advertising, PR & Sales Studies & Practice (QQI). Roseanne the Ambassador Hotel allowing (ICM). Murphy was the recipient of the everyone to socialise. The entire Frank Crummey Perpetual Cup. Directors who were in attendance, ceremony was well structured and a representing Irish Institute of Legal LLB (Hons) in Irish Law (NTU/QQI) huge success with the organisers to Executives (IIlEX), were Frank was presented to the following be commended, and, of course this Crummey Fellow Hon. Life Member graduates: Reeda Bokhari, Kevin day would not have been possible FIILEx, Gabriel Canning Chairperson Ferris, Danielle Ho, Kevin Holland, without the hard work of Griffith IIlEX, Mary Foley Membership/ Edward Long, Killian McCarthy, College Cork and their students. Director Central Co. IIlEX, Fintan James Mooring, Jennifer O’Sullivan, Personally, it was a great honour to Hudson International Ambassador for Shannon O’Sullivan, Fjolla Sahiti, be a part of this special occasion. Many thanks to Professor Diarmuid Hegarty, President and the Griffith College staff and students for the warm welcome given to Irish Institute of Legal Executives. It was a wonderful end to an equally wonderful day

Deirdre Butler MIILEx Director for Regional Council/ Education Munster Council - IILEX Cork

Professor Diarmuid Hegarty, President of Griffith College with Academic staff of Griffith College Cork and some students and IILEX Directors

By kind permission of Lafayette Photography

IILEX | The Brief 2015 15 Criminalising Contagion n most jurisdictions the first instance a prosecution would not be require evidence that the there is an offence mounted under this heading, and if it were accused was aware of which may be that the Irish courts would prefer the position his status, or that he was Iprosecuted in relation of the English courts who do not recognise wilfully blind, if it is the latter to transmitting a serious a failure to disclose that one is infected standard then this could sexually transmitted with a SSTI as a fraud sufficient to vitiate criminalise the conduct infection (SSTI) during consent to intercourse, as to do otherwise, of any person who engaged in high sexual intercourse, or it is argued, mistakes the true wrong of rape, risk conduct, further he should possess exposing someone to risk of transmission. which is a wrong related to a deception as knowledge of the modes of transmission, Such a prosecution has not yet taken place to the physical act, specifically penetration which should not be taken as a given. The in Ireland, and in this article we will examine which carries with it a significant social objective assessment of the unjustifiability how such a prosecution might take place, meaning, and non-consent to that act as of the risk also requires consideration both and whether such prosecutions are in the properly understood, thus objectifying the at the prosecutorial level, and by the judge public interest. complainant, whereas in HIV or SSTI cases, directing the jury, and it has been argued the act itself does not change, although that the construction of harm and risk in In Ireland it is possible that a wide range results flowing from it may. this context may militate against a correct of existing offences could be prosecuted consideration of these factors. It remains in these circumstances, including; assault, Further if the Canadian model is preferred, a significant concern that the objective assault causing harm, causing serious harm, which is a model which recognises that test element of the overall subjective poisoning, endangerment, rape, “rape” failure to disclose, ones HIV status for recklessness test, allied to the great fear under section 4, murder, the common law instance, amounts to a fraud sufficient to and prejudice which surround infection offence of manslaughter, and attempted vitiate consent to the sexual act, it seems with a SSTI, is apt to create a situation murder. odd that this would be confined to the where an accused will rarely if ever be transmission of a disease, for if we truly wish able to deny being reckless, this may in Homicide based offences have not been a to protect a complainant from any and all significant feature of prosecutions in other many respects contradict prevailing public invasions to their autonomy and integrity, health messages in terms of risk reduction jurisdictions, but it remains theoretically one cannot logically or reasonably single possible to make out these offences. behaviour as an effective method of out the transmission of a disease for this curbing the spread of infection. Both manslaughter and murder are result purpose. Thus we would move towards offences, and as such causation must what Herring refers to as the mistaken sex If a defence of consent were found to exist, be proved, issues may arise such as the scenario, where all consent is vitiated if the then disclosure and the state of knowledge problems in proving factual causation complainant later learns something, which if of the complainant become paramount. It even in the presence of phylogenetic they had known it at the time of intercourse, is argued that consent to intercourse should analysis, and the necessity to inquire into would have prevented them from giving amount to consent to risk of transmission the sexual history of the complainant, these the consent they actually did give, again where the complainant had general problems also dog the assault and harm mistaking the real wrong of rape. knowledge of such risks. This accords to offences which follow. Further the result, the public health effort in this area which i.e. death, may well be problematic as the Assault, assault causing harm, and causing prizes shared responsibility, it is recognised person who transmitted the infection may serious harm are likely the most obvious though that circumstances such as a predecease the person they infected. choice of offences to be prosecuted if fear of violence, the type of relationship Further the temporal lag between the act transmission occurs, and the criminal law concerned, or an active deceit on the part and death might pose evidential difficulties sees it as appropriate to become involved of the accused, may skew responsibility for a prosecution in terms of discounting at all. The basic offence of assault requires back toward an accused. It is recognised a novus actus interveniens and indeed the absence of consent; the approach in that these are challenging suggestions; causation in relation to the ultimate cause Canadian law, just mentioned, to vitiating nevertheless it is felt they are justified when of death. Obviously were murder charged consent would have implications in relation to considering the correct allocation of the accused must have intended to kill sexual offences and thus should be rejected. responsibility between consenting parties or cause serious injury, this it is argued to sexual intercourse, and the broader represents a significant evidential hurdle. In considering how such prosecutions might be mounted in Ireland, and societal implications of eroding a public On the offence of attempted murder, this health message of shared responsibility. may only be established where there was reflecting on the English experience where intent to kill, intent to cause serious injury reckless transmission of an infection during Further the question arises as to the type would not be sufficient. Prosecutions for intercourse is recognised as grievous bodily of harm required; the s.3 definition poses manslaughter would require proof of an harm, firstly consent is not an element of the no difficulty if the harm is conceived as unlawful and dangerous act causing death, s.4 offence, thus the courts would first have a biomedical effect of the body. The s.4 dangerousness being judged objectively, to consider whether they would permit a offence is more specific than the s.20 GBH or a grossly negligent act, which need not defence of consent. In the context of s.3 it offence in England and Wales, and thus be unlawful, but must involve negligence has been found that assault does not form requires further consideration. Whether above ordinary carelessness, and a high an element of the offence, however this infection with a SSTI would amount to the degree of risk of substantial personal injury. determination remains highly questionable type of harm comprehended in s.4 as It would seem that the evidential difficulties based on the statutory construction of defined in s.1, is at least debateable, firstly associated with these offences make them the offences within the 1997 Act. To deny it would depend on the STI concerned, impractical to prosecute, further bearing consent outright, firstly would preclude secondly there is no longer a substantial in mind that we are dealing with risks sexual expression on the part of a person risk of death arising from infection with a associated with sexual relations, and given infected with a SSTI, and would akin to the SSTI which is treated, and it is argued that that infection, even with HIV, no longer position rejected in R v Dica in England an assessment of harm should include an represents a death sentence and may in preclude all risk taking in the context of assessment of the treatment options and fact not affect life span at all, it seems that sexual intercourse, with the potential of prognosis available. The question in Irish such offences are ill suited to dealing with causing harm, which the court rightly law will likely turn on whether there has the transmission of a SSTI save when same is discerned should be a role for legislators been substantial impairment of bodily used as a weapon, and causes death. and not the courts. functioning, on this point permanence of dysfunction is not required, thus any There remain significant problems in relation Rape, and rape under Section 4, would be substantial impairment would suffice, to causation, recklessness in prosecuting a viable route of prosecution, depending however in light of the time lag between such offences. Regarding causation there is on the approach of an Irish court to frauds infection and impairment, say for instance an inability to prove factual causation, and capable of vitiating consent. The availability in HIV infection, it is at least questionable the necessary inquiry into the sexual history of both offences reduces the gender whether the definition of the offence could of both the complainant and accused. specific argument against the use of the be made out. offence of rape, however it is hoped that in The determination of recklessness should 16 IILEX | The Brief 2015 Whether it would be possible to make out shame prevents complainants from coming health message that infections are not an the offence of poisoning contrary to section forward; another more cogent argument is ‘us and them’ matter, simply an ‘us’ issue for 12 of the 1997 Act, in this context, would that many people see the risk of infection joint management. depend on the definition of administers as a shared responsibility and have no wish which would be adopted by a court. If to seek a prosecution. In the absence of an effective and administer were taken to include the consistent enforcement mechanism, which emission of bodily fluids during intercourse One is left to irresistibly conclude that the raises the spectre of a government invasion it seems that the message given is that the issue here is really sexual intercourse, the in the sexual lives of so many, it is argued that fluid of a person is a poisonous substance, intimacy and privacy of the act, and the any prosecutions in this arena would simply and harmful in and of itself, which possibility of harm arising out of that act, be symbolic and serve no positive purpose contradicts what we argue to be the real a sense of betrayal, and who bears the in achieving the overall goal of infection nature of infection with a SSTI, that is the lived responsibility for consequences. To single reduction or eradication. Further the experience, context, and meaning, not the out sexual transmission should immediately general principles of the criminal law were factual moment of infection. Otherwise it raise one’s suspicions, why is criminalisation never designed to deal with these scenarios, would appear that a SSTI, depending on appropriate in this context but not in relation and this very generalist approach is what its type, would be capable of interfering to all other communicable diseases, each makes the laws involvement so challenging substantially with bodily functions, the issues of which are dealt with by public health and open to critique. The conceptions of surrounding the mens rea elements, and initiatives? The debate on this alone could harm, risk, recklessness, and consent are consent, which have just been addressed fuel an entire paper. dissected in a manner which in no way would apply equally here. recognises the incredible complexity of the What we shall say is that the intervention of negotiation and occurrence of consensual The final offence is that of endangerment the criminal law overall is seen to be justified sexual acts. An immediate response is that which is similar in some respects to the as an effective and necessary adjunct to we should legislate for such eventualities, Canadian offence, and in many respects the operation of public health efforts, in unfortunately the experience of the USA to a number of the specific statutes in the an overall effort to curb the transmission tells us a different story, there has been USA. The distinction with Canada arises of SSTIs. The criminal law is seen to achieve no reduction in transmission rates or any because in our offence no assault need these goals through its incapacitation, appreciable impact on high risk behaviour, be established. The Irish Supreme Court in rehabilitation, deterrence, and retributive but there has been demonising media its consideration of this offence pointed functions. Critics of the involvement of coverage of a small number of HIV positive to many challenging aspects of a such a the criminal law point to the potential people who engaged in high risk behaviour, general and unspecific offence, correctly it detriments associated with criminalisation; resulting in greater stigmatisation of those is argued they identified the importance of disincentives to testing, treatment, care infected with HIV. specificity and certainty in the criminal law and support, spreading misinformation which are notably absent in this offence. regarding HIV and its transmission, creating Ireland has in many respects a unique Further they referred to the possibility of a false sense of security which promotes a opportunity, we do not have a specific law the offence being used to comprehend lack of concern for personal sexual health in this area, nor should we develop one, activities which were not intended by the and an increase in high risk behaviours, the and we have no case law recognising legislature when enacting the offence; it is stigmatisation of all persons infected with a infection with a SSTI as a harm before the argued that this was a prescient observation SSTI as potential weapons, degradation of law. What will now be suggested requires in this context, for it is unlikely its extension relationships between health professionals a leap of imagination as one author to the transmission of infection generally and patients, discriminatory and selective described it; however it is suggested that or in the context of sexual intercourse was prosecutions, the risk of miscarriages of the intervention of the criminal law is not foreseen. A further difficulty is whether justice in light of causation difficulties, necessary in this area, nor is it appropriate. consent represents a defence, which would invasions of privacy, and finally the general The law developed in other jurisdictions be key in this context, if all sexual conduct ineffectiveness of the law in contributing when HIV was an inevitably fatal disease, involving a risk of transmission of a SSTI to managing the spread of infection. this is no longer the case. Further people were not to be criminalised, and indeed all Proponents and critics of each goal are in general want to practice safer sex, we sexual conduct carrying a risk of harm, such evident throughout the literature, and the are only ever dealing with a tiny minority as procreation in some circumstances. This lack of empirical evidence supporting the of persons who are resistant to public is a general offence; its application would positions on both sides of the debate is health advice, and there are public health encounter significant difficulties. Akin to notable. What does emerge is that the only ways of dealing with such persons such as Canada, significant, and it is asserted functions of the criminal law which cannot involuntary civil detention with appropriate torturous, analysis of risk and harm would be be achieved by public health initiatives are judicial safeguards. It is accepted that required. This could also, as it has in Canada deterrence and retribution. an infection of any sort is concerning, and the USA, lead to over criminalisation and one which impairs our immunity The effectiveness of deterrence is hotly even more so, this is a health issue, and and operate in distinct contrast to public contested, however it is argued that health messages of shared responsibility as such the emphasis in Ireland should be the preferable view is that the type of on genuinely curbing the spread of same and risk reduction as the primary vehicles behaviours involved are sexual in nature, for curbing the spread of SSTIs. through intensive public health efforts, do not lend themselves to easy explanation not by prosecuting selected cases for the never mind deterrence, and overall there purposes of populist retributivism, which in Should the law intervene? is little to suggest that the law, particularly turn distorts the very public health message in light of the low level of policing and that could do so much good. A lesson The final piece of the puzzle is whether the prosecution, will have any real deterrent from history shows that a public health criminal law should involve itself at all in this effect in this area. Indeed we might note approach to syphilis effectively reduced area, absent circumstances where a SSTI is that attempts to control homosexual that phenomenon, without recourse to the used as a weapon, and whether it would behaviour in the past had little effect criminal law; a similar approach should be be better all round to leave this area to and did more harm than good, similar adopted here. realm of public health as is the case with things might be said regarding attempted all other communicable diseases. To argue prohibitions of alcohol use, and drug use. both descriptively and proscriptively that Retributive initiatives are sufficient in and transmission of a SSTI represents either a risk of themselves as a justification for criminal of harm, or harm, comparable to all others liability; they mark morally blameworthy Edward Mathews BL, is it is argued fallacious. If so where offences behaviour, and as such have the potential RNID, LLB, LLM PhD Candidate - relating to SSTIs are successfully prosecuted to generate normative standards. The key Trinity College Dublin why are sentencing patterns harsher than then is whether on balance this retributive Law Lecturer GCD those offences involving comparable risk function, employed in a tiny minority of Director of Regulation and Social Policy, or harm? Further if infection with a SSTI cases, which attract lurid and salacious represents, in the eyes of the community, a media coverage, have the effect desired, Irish Nurses and Midwives Organisation harm the same as all others why then are or in fact contribute to the stigmatisation of prosecutions so low compared to the rates persons infected with SSTIs, predominantly of infection? Some arguments might be that HIV, and as such detract from the public IILEX | The Brief 2015 17 Irish Convict Garret Cotter he River Cotter rises in the occupation of Ploughman was often which he was believed to have been Brindabella Ranges in the South given by convict transportees. It is sentenced and transported for. West of the Australian Capital essentially a farm labourer. At the date According to the trial report, on the Territory and flows northwards of his trial on the 21st February, 1822, T night of the 15th January, 1822 at joined by six minor tributaries (including Cotter was 20 years of age. The prison about one o’ clock in the morning it Paddy’s River) until reaching a records held for Cotter in the National was alleged that Cotter and Leary confluence with the Murrumbidgee Archives in Dublin record the reason attacked the house of Reardan at River in the Murray-Darling Basin. The for his internment as the offence of Drominny and swore him to quit his River Cotter, the Cotter Dam, the ‘Whiteboyism’ and he was admitted to residence and employment of his Cotter Valley and the Cotter Gap are Cork Prison on the 17th January, 1822. master, Mr. McCarthy. It was alleged namesakes in honour of a man named ‘Whiteboyism’ was the general term that the prisoners on entering the Garret Cotter, an Irish convict from which was given to rural violence premises of Reardan bade him bless Cork and a man who undoubtedly left in connection with secret societies. himself and take oath to leave the his mark on Australian history. A Whiteboy (as Gaeilge, Buachaillí property on Friday morning, as well as Bána) was a member of a secret Irish swearing the women on the property. agrarian society who used violent It was on returning from his house that attacks to defend tenant farmer rights. they were captured about four miles The name ‘whiteboy’ is derived from from Drishane, to the north of Millstreet. the white smocks the members wore Both men were on horseback. Cotter on their nightly raids so that they would had in his possession a pistol and recognise each other as members Leary a musket. The prisoners offered when they met in the darkness. These no defence to the charge in court. whiteboys were of the poor rural Judge Moore charged the Jury with society, waged labourers, those who returning a verdict based on that worked in small scale industries or part of the Whiteboy Act under which were cottiers. Each town often had the men were charged. After a short an independent group which formed consultation, the Jury returned with a network with those in other towns a verdict of guilty for both men. Both and often across several counties. men were sentenced to be hanged. There was ritualistic use of initiation The sentence, however, was later oaths amongst members, costumes commuted to transportation for life. or uniforms, pseudonyms and special The exact origin of the use of insignia. The Whiteboy Act made it an transportation of convicts as a offence, amongst others, to send a penal measure is considered to be threatening letter, to compel another My research of this convict contributed obscure. Rena Lohan, Archivist of the man to leave his farm, habitation to an article in The Canberra Times National Archives recognises that it or lawful employment or maliciously published on the 11th October, 2013 appears to have developed in the causing any door to be opened by entitled ‘Finding Garret Cotter’ written sixteenth and seventeenth centuries threats or menaces. by Richard Begbie and which research during the Cromwellian times for dispelled the historic belief that the Cotter, as reported in The Freemans the purpose of ejecting the Irish crime that Cotter was convicted of Journal, was indicted on a charge from Ireland as well as by means of was for firing on His Majesty’s Troops. under the Whiteboy Act which made solution to the severity of the death My research into the trial reports of it a capital felony without the benefit penalty as punishment for capital the time and, in particular, my finding of clergy to make any person quit his offences. The relevant legislation of The a onlyreport known in the photograph Freemans of JournalGarret Cotter of house or employment or to attempt to is the Habeas Corpus Act of 1679 Monday 25th February, 1822 turned compel any person to leave his abode which legalised the already common

Cotter’s history on its head. The story or employment. Cotter was indicted practice of pardoning criminals long recounted in Australia was that with another by the name of John Leary on condition that they accepted Other photos available: ‘firing on His Majesty’s Troops’ was for compelling a man named Richard transportation to the colonies. As a the crime that Cotter was convicted 2. Ticket of Leave of Garret Cotter Reardon to quit his employment. result of this, transportation became of and his resultant sentencing of Quite obviously this is not the offence the government’s response to many transportation3. Picture of to the Australia. ship the Mangles This history crimes - is entirely at odds with the trial report ‘A man is vanished from Scotland discovered4. Recommendations and for this Conditional has ultimately Pardon for a great crimes, from England altered forever the legend behind the for a small one and from Ireland for name.5. Extract from the Freeman’s Journal. hardly any crime at all’. Anon. Observer. Garret( Photographs Cotter 2-5 was if suitable born for in printing 1802 and) believed to reside to the north of Following Cotter’s sentencing he Millstreet, Cork, according to the was returned to Cork City Gaol until details given in evidence at his trial preparations were made for his as written in the aforementioned transportation. In Cotter’s case this was trial report. According to the state a wait of 5 months. Those convicts tried records for New South Wales and the in the southern counties were detained passenger manifest of the convict ship in Cork City Gaol. Those brought to ‘The Mangles’, on which Cotter sailed Dublin were detained in Newgate and from Ireland, Cotter’s occupation Kilmainham Gaols, Newgate being is listed as being a Ploughman. The 18 IILEX | The Brief 2015 notorious at the time for its deplorable convicts on board the Mangles prior to been used to clear the land, tend to conditions. It was commonplace that their departure from Cove. There also livestock and construct roads and some convicts would have to wait is held there a letter from Dr. Matthew buildings. On the re-assignment the for as long as two years before being Anderson to Dr. Trevor acknowledging Rev. Thomas Redall wrote a glowing transported. During their detention receipt of various articles for the reference of Cotter and he was gaols were often overcrowded and convicts’ use during the voyage, described by his employers as being disease infested. Cotter would have including two gallons of ink, 190 combs a good stockman. During the drought been detained in one of the prisons and 12 spelling books. The letter also of 1827 to 1828 Cotter took Kenny’s at either North Gate Bridge or South expresses that Dr. Anderson required cattle across the Murrumbidgee River Gate Bridge. There were two gaols, 2 copies of an arithmetic books which to find grazing land. He was guided one for debtors and the other for “many of our convicts are desirous of there by an Aboriginal leader named criminals. These were the predecessors making themselves acquainted with”. Onyong, whom he had befriended. to the structure built to replace them There Cotter established basic huts The conditions on board the Mangles shortly after. The new Cork City Gaol and Kenny’s stock fattened under his and other convict transportation was opened in 1824 and the existing regime. vessels of the time were significantly structure now functions today as a better than their predecessors. Many In 1832, Cotter was accused of stealing tourist attraction. of the convicts who were shipped to a horse from a neighbouring property The error in the recording of Cotter’s New South Wales in the early years of and managed to evade arrest for offence was made on the convict convict transportation were already two months. The case was thrown ship’s indent, as ‘Insurrection and Firing disease ridden prior to setting sail. out of Court for want of evidence but on the King’s Troops’. It would appear Many would perish during the voyage because Cotter had resisted arrest that the cause of this erroneous from such illness as typhoid and Magistrate McAlister banished him to notation was made because one cholera and health was worsened ‘live beyond the limits of location’ for of the men sentenced at the same by the dreadful conditions of the four years. He thus had to stay west of Special Commission as Cotter ship which often also caused scurvy, the Murrumbidgee River, an area he had been convicted of this crime. dysentery and fever amongst the was already luckily very familiar with. Consequentially, all those convicts on convicts. The ship’s surgeons did their Kenny had attempted to exonerate board the Mangles who had been jobs well enough. There were often Cotter, without success, but gave sentenced at the same Court sitting many cases recorded of sea sickness, Cotter some of his own cattle and were recorded as having committed stomach upsets and measles. Towards own brand (a brand which the present the same crime. the mid nineteenth century conditions generation of Cotters still hold). For six on board convict transportation years thereafter Cotter lived beyond vessels vastly improved and records the river which would come to bear indicate that the mortality rate thus his name. In 1838 he was granted his decreased. Improved conditions on Ticket of Leave which thus allowed him board the ships were only as a result to work in the Queanbeyan District. A of the complaints made by colonists Ticket of Leave was a parole document when the convicts arrived in such a issued to convicts who had shown poor state that they were unable to that they could be trusted with some undertake the work they had been freedoms. One of these freedoms was sent to do. In the later years a bonus permission to marry. Cotter married in was paid to the ship’s charterers for the 1841. safe arrival of prisoners. Cotter would have been taken aboard The Mangles in Cove in chains and shackles. Once aboard prisoners were unlocked and were sent through a The Mangles sailed from Cove, Cork on hatch below to the prison deck and the the 21st June, 1822 via Rio de Janeiro hatch locked. Sometimes the prisoners (departing there on the 1st September, were kept in the chains behind bars. 1822) to Port Jackson New South In the early days of transportation Wales, arriving on the 8th November, convicts were kept below most of the 1822. The ship was captained by John time and were only allowed on deck for Coghill, who was also part owner of the fresh air and exercise. In the early form ship. The Superintendent on board was of discipline on board was brutal with In 1847 he was granted a Conditional Matthew Anderson. The journey took regular use of the lash. This lessened Pardon making him a free man on the 140 days from departure to destination during the nineteenth century when condition that he never returned to the and transported only male convicts. misbehaviour resulted in a prisoner United Kingdom and to his homeland 191 men embarked on the journey being ‘boxed’. This meant they were of Ireland. and there was one death of epilepsy put in a small confined space in which according to the Surgeon, Matthew they could neither lie down nor stand. Anderson’s journal. Aileen Jennings BA, MIILEx Cotter’s history in New South Wales The C.S.O.R.P. records (Chief has left its mark. On landing he was Secretary’s Office Registered Papers) Further Reading: assigned to work as labourer, along with held in the National Archives in Charles White, ‘Early Australian History, another Cork man named Buckley, to Dublin hold correspondence dated Convict Life in New South Wales and a Mr. Warby of Airds. Two years later the 13th June, 1822 from Dr. Edward Van Diemen’s Land’, (1889), Bathhurst he was re-assigned to Francis Kenny Trevor of Cove, Cork to William H. C.& G.S. White. of Appin. Little is known of Cotter Gregory, Under Secretary of Ireland, Charles Bateson, ‘The Convict Ships during the intervening period. Convict Dublin Castle. Dr. Trevor examined the 1787-1868’,(1985), Brown Son & labourers of the time would have Ferguson. IILEX | The Brief 2015 19 Posthumous pardon for man wrongly hanged of murder – landmark action in the history of the Irish State Irish Innocence Project and Justice for Harry Gleeson Group Prove his Innocence

inally, 74 years after Harry Among the new or newly discovered In the Central Criminal Court the Gleeson was hanged for the evidence submitted was: State relied entirely on ballistic murder of his neighbour, the • Copy of Firearms Register evidence, and most importantly on FIrish Innocence Project and the • Dr. Peter Cummings’s evidence given by Mr. Leamy, a Justice for Harry Gleeson welcomed pathologist report that shop assistant at Feehan’s hardware the announcement by Minister of supported store in Cashel. The State sought Justice Frances Fitzgerald of the • Statements by various witnesses to prove that Mr. Caesar, Harry’s Government’s decision to grant a that supported Gleeson’s uncle, bought shotgun cartridges posthumous presidential pardon innocence from Feehan’s hardware store and that will, at last, clear his name. It will be the first time in Irish history that anyone has received such a pardon. Mr. Gleeson lived on his Uncle John Caesar’s farm in New Inn, Co. Tipperary and on the morning of Thursday the 21st of November 1940 when walking his dogs, Mr. Gleeson discovered what later turned out to be his neighbour Mary “Moll” McCarthy’s body. Mr. Gleeson immediately returned to his uncle’s house informing him of the discovery before leaving to report the incident to the Gardaí. Subsequently, within five months of the murder, Mr. Gleeson was charged, tried, convicted, hanged and was buried at Mountjoy Prison. He always claimed his innocence and his final words to his junior counsel Sean McBride haunted McBride and, in later years, inspired him to advocate for the abolition of the death penalty in Ireland and Internationally and to be instrumental in the beginnings of Amnesty International. The State’s original charge against Mr. Gleeson was that he murdered Mary “Moll” McCarthy on the 20th of November 1940 between 5:30pm and 6pm. Although the prosecution, in the Central Criminal Court, requested that the charge be amended to ‘on or about the 20th or 21st of November 1940’ they nevertheless prosecuted Mr. Gleeson based upon shots that were fired on the 20th of November 1940 between 5:30pm and 6pm.

20 IILEX | The Brief 2015 that those cartridges were available knowingly withheld the Register, reported his findings to the Gardaí, to Mr. Gleeson, in order for him to aware that there was no 10 October was 96 Degrees Fahrenheit or 35.5 commit the crime. At trial, Mr. Leamy 1940 corresponding entry. Degrees Celsius. Dr. O’Connor was called as a prosecution witness testified that the body was not as There is an unusual entry in the and asked whether, on the 3rd of cold as it should be if it had been Register however, which shows that October 1940, he sold any cartridges “laying there all night,” suggesting John Caesar had bought 25 shotgun to Mr. Caesar, to which he replied he wasn’t convinced the murder cartridges on the 10th of July 1940. yes. When asked whether he knows had occurred the previous night The size of which was No.4. (Copy what kind of cartridges he sold to Mr. between 5:30 and 6:00pm. The enclosed) This fact is vital as it seems Caesar, he replied ‘Ely, Grand Prix’ testimony of Dr. Flood suggested that the prosecution attempted, however; he could not remember that the death had occurred “within and indeed succeeded, to withhold the number – meaning the shot size of a few hours of his examination.” the firearms register so as to avoid the cartridge. The victim in this case explaining the discrepancy between To explore the time of death further, was shot with size No. 5 cartridges the date on the receipt and the the Irish Innocence Project consulted and the prosecution claimed this actual entry in the firearms register. Dr. Peter Cummings, a renowned was the type of ammunition bought If the Firearms Register had been Boston forensic pathologist who by Mr. Caesar on the 3rd of October, available to the defence, serious went to medical school at the Royal 1940. When the Judge asks Mr. doubt would have been raised in College of Surgeons. Leamy whether he has the Register, respect of the State’s claim that Mr. which is a log of all the ammunition Dr. Cummings, who is Director of Caesar had bought No.5 cartridges sold by establishment, including the Forensic Neuropathology at the on the 3rd of October 1940, a date date, quantity, ammunition type, Boston Office of the Chief Medical in proximity to the murder. name and address of the buyer, as Examiner in Massachusetts, confirms well as the buyer’s firearm certificate Aside from introducing new that in his professional opinion, and, number. Mr. Leamy said, in reply, evidence related to the gun register, based on the vaginal temperature “We have a Firearms Register, but I the Irish Innocence Project and the taken by Dr. O’Connor at about have not it here.” The Judge then Justice for Harry Gleeson group 1:15pm on Thursday 21st November asks that the Register be produced also submitted new evidence with 1940, that Ms. McCarthy had been in court the next morning. regards to the time of death. dead 3 – 8 hours from the time she was examined by Dr. O’Connor. However, Mr. McCarthy, State The original charge against Mr. Dr. Cummings’s report supports Dr. Prosecutor, told the judge that, ‘the Gleeson was that he committed the Flood and Dr. O’Connor’s opinions register won’t show it. It has been murder between 5:30pm and 6pm and evidence that death occurred examined.’ Mr. Leamy told the on the 20th of November 1940. This the morning shortly before the body court he couldn’t be sure what size charge was subsequently amended was found. cartridge was bought and produced in the CCC. The ‘new’ charge against In essence, the above medical a receipt dated 3/10/40, that didn’t Mr. Gleeson was that he murdered evidence casts serious doubt as show the type or size of cartridge, Ms. McCarthy ‘on or about the 20th to whether Ms. McCarthy was only the price of the purchase. The or 21st of November 1940.’ murdered when the State claimed Register was never produced in In relation to the original charge, she was and also raises serious Court. evidence places Mr. Gleeson on Mr. questions in respect of the charges Among the new evidence submitted Caesar’s farm around 5:30pm and against Mr. Gleeson. If Ms. McCarthy for consideration by the Irish 6pm on the 20th of November 1940. had been dead for 3-8 hours from Innocence Project and the Justice Mr. Gleeson was busy feeding his the time Dr. O’Connor recorded the for Harry Gleeson group, which is hounds at about 5:30pm and usually body temperature it means that an informal organisation made up ‘delayed about a quarter or 20 death occurred any time between of relatives and supporters of Harry minutes brushing them and rubbing 5:15am and 1:15pm on the 21st of Gleeson, was the Firearms Register, them’ before supper, according to November 1940, the Thursday Mr. a piece of evidence that was never Thomas Reid, another farmhand Gleeson found the body. Since it is introduced at trial, despite the who lived with the Caesars. After known that the body was found by Judge’s interest in examining it. supper Mr. Gleeson started reading Mr. Gleeson at about 9:30am that the newspaper and he said that morning, it is safe to say that death The Firearms Register clearly shows that would have been ‘in or about occurred between 5:15am and that there is no record, contrary 6 o’clock pm’according to Harry 9:30am on Thursday morning 21st to the receipt produced by Mr. Gleeson’s statement. November 1940. Leamy, that Mr. Caesar bought ammunition/cartridges on the 3rd of The victim’s son Michael McCarthy It is well documented that Mr. October 1940. Thus, had the Firearms stated in his deposition that ‘I Gleeson was a ‘creature of habit’ Register been produced in Court saw mammy last time alive on and it is clear from his statement when requested/ordered, along Wednesday about six or seven that he generally woke up at around with the receipt, it would have likely o‘clock’, which suggests that Mr. 7am every morning and went to caused significant doubt as to the Gleeson can be accounted for at bed at around 9pm every night. authenticity of the receipt. It also the time the State originally alleged On one occasion, according to would have called into question the the murder was committed. his statement, Mr. Gleeson went to statement made by Mr. McCarthy for Also, Dr. O’Connor testified that the sleep later than 9pm. It is also well the prosecution namely ‘the register body temperature of the victim documented and accepted that Mr. won’t show it. It has been examined’ that he recorded shortly after 1pm, Gleeson and Mr. Reid, who shared and suggests that the prosecution roughly 4 hours after Mr. Gleeson a house, would have breakfast

IILEX | The Brief 2015 21 together each morning before they went together to feed the horses Conviction Film Festival and milk the cows. They would 27th of June 2015 then generally part ways sometime around 9am. On Thursday morning 21st November 1940, Mr. Gleeson and Mr. Reid parted ways at about 9am or 9:15am. Speaking about the news, David International Langwallner, Dean of Law at Griffith Conference College, Director and Founder of on Wrongful Convictions, the Irish Innocence Project said: Human Rights and the Student “Nothing can adequately Learning Experience comfort those who have - 26th of June 2015 fought to exonerate Harry Gleeson but this posthumous This conference will be a first pardon and the clearing of its kind. Never before have of the good name of Mr law, journalism and innocence Gleeson is a proud moment work professionals, exonerees for everyone involved.” and higher education students from Ireland and around the David Langwallner worked on the globe been invited to come International Wrongful case in conjunction with Griffith Conviction Film Festival will be College student Tertius Van Eeden. together to share their clinical Having reviewed the trial transcripts experience pursuing innocence the first ever wrongful conviction and exhibits, which they obtained and human rights work. film festival and will feature nine from the National Archives, as well international films, Q&As with as information, provided by the The conference features a directors and exonerees, and a Justice for Harry Gleeson Group, keynote address by Gareth closing capstone event: the Irish Innocence Project sought Peirce, who successfully a special screening of the pardon under the Criminal overturned the wrongful In the Name of the Father with Procedure Act 1993 Section 9 convictions of the Guildford Four director Jim Sheridan and Gerry and under a created posthumous and the Birmingham Six, as well Conlon’s family. pardon procedure. as a talk by Innocence Project Prof. Diarmuid Hegarty, President of co-founders Barry Scheck and The Gerry Conlon Memorial Law Griffith College, said: Peter Neufeld, and presentation and Journalism Justice Student by “48 Hours” American Scholarship will be awarded “This case was a tragic television journalist and lawyer that evening to a law or media miscarriage of justice and Erin Moriarty. student who is interested in the hanging of Mr. Gleeson pursuing innocence or human for a murder he never We would be delighted to rights work. committed is a dark stain welcome our friends and on the memory of the State. colleagues from around Both events will be held on the However his posthumous the globe. We are also Griffith College Dublin campus. pardon shows that justice encouraging students with a is not blind to injustice and passion for justice and human Both conference and film on behalf of everyone at rights to come and are offering festival programs are expected Griffith College I wish to discounted prices for them. to be high impact, high thank David Langwallner profile events attended by and everyone involved in The Irish Innocence Project international VIPs, celebrities the Irish Innocence Project currently has 21 student and dignitaries. The aim of team who worked on this caseworkers drawn from these two robust days are to: case I want to express our Trinity College, Dublin City • Increase understanding thanks to The Justice for University and Griffith College and awareness of wrongful Harry Gleeson group who investigating about 26 convictions as a human brought this to the projects presumed wrongful conviction rights issue attention.” cases under the supervision of • Promote the role that both about eight overseeing lawyers. law and the media has in Anne Driscoll For more information about addressing miscarriages of US Fulbright Scholar the Irish Innocence Project or justice Manager at the Irish Innocence the upcoming Irish Innocence • Inspire a new generation Project 2015, Griffith College Dublin Project International Innocence of young people to pursue Conference and Wrongful innocence and human Conviction Film Festival visit rights work innocenceproject.ie.

22 IILEX | The Brief 2015 Brief Profile of Frank Crummey, FIILEx

Pictured and featured in the article hereunder is our esteemed colleague, Frank Crummey, Director, Fellow (FIILEX and Honorary Life Member) of the Irish Institute of Legal Executives as well as holding the position of Commissioner-for-Oaths. In 1987, Frank was one of the founding members of the Irish Institute of Legal Executives – (IILEX).

Over the years, Frank has made an enormous contribution to the Irish Institute of Legal Executives – (IILEX) where his knowledge and expertise is an invaluable feature and always deeply appreciated.

Most importantly, over 25 years ago, Frank was involved in the setting up of the Women’s Refuge in Rathmines and since then has worked relentlessly as a volunteer assisting in the pivotal services given to vulnerable women and children seeking refuge from domestic violence and other difficult life situations. His in-depth knowledge of Family Law has played a major role in his involvement with the Women’s Refuge in Rathmines.

Mary O’Dwyer FIILEX US students volunteer to fix up Dublin women’s refuge The students worked with staff from the US Embassy in Dublin to give Rathmines Women’s Refuge a makeover

In addition to refurbishing the garden and playground in Rathmines, the volunteers undertook some internal paintwork and improvements. US Embassy Charges D’affaires Stuart Dwyer visited the Refuge to oversee the work.

Localise director Derek Cleary said that the work showed what can be achieved through volunteerism.

Frank Crummey, a founder of Rathmines Womens Refuge, with Notre Dame University volunteers Rebecca Mayus and Lauren Josephson.

OVER FORTY AMERICAN students and volunteers provided by the US Embassy in Dublin spent last weekend transforming and refurbishing one of the country’s largest women’s refuges.

Rathmines Women’s Refuge, in Dublin, which houses up to 10 families at any one time, has been helping victims of domestic violence since 1986.

The centre and its gardens received the weekend makeover in a blitz organised by Localise, the youth and community development organisation, in tandem with the US embassy. “The makeover illustrated just what can be achieved when young people decide to Both the embassy and Localise drew on support from volunteer their time and give something back students from Notre Dame University currently on to the community. exchange in Ireland, embassy staff and members of The benefits to the centre can be seen physically the Ireland US Alumni Association. in the work undertaken”. By kind permission of The Journal

IILEX | The Brief 2015 23 Legal Studies Advert A5__Layout 1 22/12/2014 13:38 Page 1

Diploma in Legal Studies and Practice

• Validated by QQI • Recognised by IILEx • Option to study over 1 or 2 years • Option to study onsite or online • Upon completion direct entry to second year LL.B. (law degree)

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The Irish Institute of Legal Executives 22/24 Lower Mount Street, Dublin 2. DX No. 15 Telephone: (01) 890 4278 Website: www.iilex.ie Email: [email protected]

24 IILEX | The Brief 2015