Journal of The Bar of Ireland • Volume 20 • Issue 6 • December 2015 Data Protection Concerns for Barristers New titles from... Bloomsbury Professional Medical Negligence and Childbirth by Doireann O’Mahony (A practising barrister in personal injury and medical negligence) Consultant Editor: Roger V Clements This new book will equip legal practitioners How will this book help you? who may not have an in-depth knowledge You’ll find all the specialist medical and legal of specific birth related injuries with the advice you need to manage a childbirth claim. knowledge needed to advise on such cases. 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December 2015 Order your copy today Contact Jennifer Simpson on +353 (0) 1 637 3920 or email [email protected] Or buy online at www.bloomsburyprofessional.com/ie Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Cover Illustration: Brian Gallagher T: 01 4973389 Fax: 353-1-872 0455 E: [email protected] W: www.bdgart.com E: [email protected] Typeset by Gough Typesetting Services, Dublin [email protected] T: 01 8727305 Editor: Eilis Brennan BL Editorial Board: Gerry Durcan SC Mary O’Toole SC Conor Dignam SC Brian Kennedy SC Paul A. McDermott SC Mark O’Connell BL Volume 20, Issue 6, December 2015, ISSN 1339-3426 Tom O’Malley BL Patrick Leonard BL Paul McCarthy BL Contents Des Mulhere Consultant Editors: Patrick MacEntee SC Eoghan Fitzsimons SC Pat Hanratty SC 130 Courtus Interruptus – New Case Law on Interruptions By James O’Reilly SC Judges The Bar Review is published by Matthew Holmes BL Round Hall in association with The Bar of Ireland. 133 Passing Off: An Uncertain Remedy: Part 3 For all subscription queries contact: Peter Charleton and Sinéad Reilly Round Hall Thomson Reuters Ireland Limited 43 Fitzwilliam Place, Dublin 2 138 Data Protection Concerns for Barristers Post-Schrems Telephone: + 353 1 662 5301 Fax: + 353 1 662 5302 Stephen Fitzpatrick BL E: [email protected] web: www.roundhall.ie lxxxi Legal Update Subscriptions: January 2015 to December 2015—6 issues Annual Subscription: €390.00 + VAT 141 So who is Donor 376? New Rules for Donor Assisted Human For all advertising queries contact: Reproduction David Dooley, Inge Clissmann SC and Erika Coughlan BCL, LLM Direct line: + 44 20 7393 7775 E: [email protected] Directories Unit. Sweet & Maxwell 148 Drugs in Packages Telephone: + 44 20 7393 7000 Garnet Orange SC Contributions published in this journal are not intended to, and do not represent, legal advice on the subject matter contained herein. This publication should 152 Obituary: The Honourable Mr Justice Paul Carney not be used as a substitute for or as a supplement to, legal advice. The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or The Bar of Ireland. The Bar Review December 2015 Courtus Interruptus – New Case Law on Interruptions By Judges Matthew Holmes BL It is no secret that some judges feel that cases would run interrupted cross-examination of the complainant on a a lot more smoothly if they asked all the questions. One number of occasions and the questions were not confined divorce case from Liverpool in 1952 was overturned because to seeking clarification of questions asked or resolving the judge made 587 interventions.1 The issue of excessive ambiguities. The Court of Criminal Appeal noted that the or inappropriate judicial interruption can arise in both defence had probably planned cross-examination carefully civil and criminal hearings and has done so throughout the before the trial and would be severely handicapped if diverted common law world.2 Excessive or inappropriate judicial from this plan. The defence must be allowed to follow this intervention may ground a successful judicial review or result without unnecessary interruption. The Judge had asked in a rehearing. Three recent cases, DPP v Heaphy3, Farrelly 123 questions of the complainant and made 60 remarks to v Watkin4 and McCann v Halpin5, have shed new light on counsel. At one point, he asked 20 consecutive questions of this. This article hopes to provide an overview of the new the complainant’s mother during cross-examination by the decisions and the law here. State. To put this in context, a total of 423 questions had been asked of the complainant during the case- almost a Appropriate interventions third coming from the judge. The CCA was of the opinion that the number of questions and interventions made by Judges are of course entitled to ask questions during a case, the judge made it impossible for the defence to conduct an however these should be confined to seeking clarification effective cross-examination and could have caused the jury to of questions asked of witnesses or resolving ambiguities. believe he had formed a definite opinion as to the credibility In Donnelly v Timber Factors Ltd and Robert Rogers6 McCarthy of the complainant. J. considered the roles of judge and advocate, where it was The Court in Heaphy followed McGuinness but found on claimed that the judge had intervened excessively. He held: the facts that the interventions were nowhere near as serious as those in McGuinness. They occurred at the conclusion “The role of the judge of trial in maintaining an of two separate cross examinations and did not interrupt even balance will require that on occasion, he must the trial. The court held that whilst they did not help the intervene in the questioning of witnesses with applicant, they were relevant and added little to the trial. questions of his own- the purpose being to clarify the This approach was also taken in the subsequent civil case of unclear, to complete the incomplete, to elaborate the Kurzyna v Michalski.8 inadequate and to truncate the long-winded. It is not Farrelly v Watkin is a recent example where Kearns P to embellish, to emphasise or, save rarely, to criticise.” was scathing of the conduct of a District Court trial. The applicant had been tried for a sexual assault alleged to have Excessive judicial intervention taken place in the Palace nightclub in Dublin. Kearns P found It is hardly unknown for judges to go beyond those limits. that the conduct was unfair to such a degree as to divest Where a judge makes excessive or inappropriate interventions the trial from the requirements of constitutional justice. He during examination or cross-examination of witnesses, this went on to find; can be a breach of fair procedures and may give rise to an apprehension of bias. “Historically, it has been a source of considerable The Court of Appeal in Heaphy re-iterated that DPP v annoyance to District Court Judges, and in my view McGuinness7 is the leading Irish case on judicial interruption. rightly so, to read in judicial review court papers, In McGuinness, a retrial was ordered where the trial judge’s or worse, in national newspapers, what they regard interventions rendered a rape trial unsatisfactory. He as wildly distorted accounts by applicants or their solicitors of the judge’s conduct of a particular case or cases. 1 The Times, 8th March 1952 2 See for example; Jones v National Coal Board [1957] 2 QB 55 (Britain), … R v Kwatefana (1983) SILR 106 ( the Solomon Islands) R v Thompson Having read the transcript the Court finds, [2002] NSWCCA 149 (Australia), and R v Hinchy [1988] 3 SCR 1128 regrettably, that the contentions advanced on behalf (Canada) of the applicant are borne out to a significant degree. 3 DPP v Heaphy [2015] IECA 61 In fairness to the respondent, the lack of clarity in 4 DPP v Watkin [2015] IECA 117 5 McCann v Halpin [2015] 1 ICLMD 31 the CCTV and in other parts of the prosecution 6 Donnelly v Timber Factors Ltd and Robert Rogers [1991] 1 IR 553 7 DPP v McGuinness [1978] 1 IR 189 8 Kurzyna v Michalski [2015] IECA 135 Page 130 Bar Review December 2015 evidence was such as to fully justify attempts by her to Dineen v Delap12 was also referred to in Farrelly.