L AW RIGHT TO DIE? MIGHTY OAKES STATE COLLUSION S OCIET The High Court decision The Central Bank’s Why the facts of Pat in the landmark case of director of enforcement on Finucane’s murder must Y GAZETTE Fleming v Ireland regulation and compliance not be whitewashed • Vol 107 No 1 • Vol LAW SOCIETY LAW GAZETTEGAZETTE€4.00 Jan/Feb 2013 J AN /F E B 2013 Law Society of Ireland MEMORIA IN AETERNA: Who owns your digital legacy? Law Society Gazette www.gazette.ie Jan/Feb 2013 president’s message 1 READY, WILLING AND ABLE write my first message of 2013 on a cold and dark January I have dispatched a number day. I hope that the social, political and economic climate of eBulletins over the past two Iimproves and turns to heat and light for all of you over the months, briefing the profession, coming months. However, the challenges facing our profession for example, on the Society’s are no different to those that face everyone in Ireland in these demand that the British difficult times. Let us hope that the current Irish presidency of government establish a public the EU, coupled with a year of ‘The Gathering’ encourages a inquiry into the murder of rising tide to lift all of our boats. solicitor Pat Finucane – to which It is indeed pleasing to note again that professional the Society received a negative indemnity renewals appear to have gone reasonably smoothly. response in a letter from the As a profession, we must continue to apply always the highest Secretary of State for Northern standards as we strive to deliver a quality service to clients at Ireland. “The proposed home and abroad. The Society’s committees closure of a great In difficult times particularly, some may be tempted to are busy with a wide variety of cut corners. An inevitable outcome of such practices is a projects. The Legal Services number of courts decline in the standard of work, with occasional catastrophic Regulation Task Force continues and garda stations consequences for practitioner and client alike. We should to refine its submissions and, always apply the highest standards and charge proper and has recently written again to around the country, appropriate fees for doing so. Minister Shatter. The Future of inevitably raises the Law Society Task Force is Constructive engagement expected to produce a report for concerns about In February 2012, the Society delivered a detailed 100-page Council at its April meeting. access to justice” submission to the Minister for Justice regarding the Legal Services Regulation Bill. We remain ready, willing and able to Sympathy actively and constructively engage with Minister Shatter when On a sad note, we have lost a number of eminent colleagues the bill reaches committee stage. recently. On behalf of the Law Society and its members, The minister is to be commended for his unstinting efforts I extend my deepest sympathy to the Overend family on to promote reform in many areas. In particular, I welcome the passing of Brian, a pillar of A&L Goodbody and a his recent announcement of impending change in the area of true gentleman. Both his father and his brother served periodic payments of damages to the victims of catastrophic as presidents of the Law Society. Brian’s outstanding injury. The Law Society has supported and called for such commitment was his astonishing 30 years of selfless service as change for some considerable time. a director of the Solicitors’ Benevolent Association. We understand that there are further initiatives and I also express my sympathy to the Dowling family on the changes in the offing relating to the levels of jurisdictions of untimely passing of Dominic, who practised in Dalkey, Co the courts in civil litigation. We will inform you as soon as Dublin. At the time of his passing, Dominic was chairman any announcements are made. Meanwhile, the Society’s staff of the Society’s Public Relations Committee and a member continues to provide unstinting service in all areas. of both the Curriculum Development Unit (which he had previously chaired) and the Law Clerks’ Joint Labour Ever-increasing delays Committee. He was an unsung hero – one who contributed Of growing concern to court practitioners are, we understand, unstintingly to numerous committees of the Law Society ever-increasing delays in the process. These, coupled with the over many years. He had served as a Council member and, proposed closure of a great number of courts and garda stations also, as president of the Dublin Solicitors’ Bar Association – around the country, inevitably raise concerns about access to roles he performed with distinction. justice. While we recognise the need to maximise the use of Both men were paragons of the profession who always limited resources, we question the ability to deliver adequate applied the highest standards in their daily work. They legal services when resources are being depleted to such an will be missed greatly by their families, friends and extent. colleagues. G James McCourt President 2 CONTENTS Law Society Gazette www.gazette.ie Jan/Feb 2013 Law Society Gazette Volume 107, number 1 Subscriptions: €60/€90 Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle Art director: Nuala Redmond SOCIETY LAW Editorial secretaries: Catherine Kearney, GAZETTEGAZETTE Valerie Farrell Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, REGULARS email: [email protected] 4 News 54 One to watch: Personal Insolvency For professional notice rates (wills, title deeds, Act 2012 employment, miscellaneous), see page 61. 12 Analysis 55 Regulation: Solicitors Disciplinary Tribunal; information on complaints Published at Blackhall Place, Dublin 7, 12 News feature: Is the State in breach tel: 01 672 4828, fax: 01 672 4877. of human rights standards with regard 56 Brief cases: Judgment abstracts Email: [email protected] to legal aid? 58 Eurlegal: The Energy Efficiency Directive; Website: www.gazette.ie 14 News feature: Is ‘child-friendly recent developments in European law Printing: Turner’s Printing Company Ltd, justice’ possible? Longford 16 Human rights watch: Government 61 Professional notices has a duty to provide reasons for refusal Editorial board: Michael Kealey (chairman), of naturalisation application 64 Captain’s blawg Mark McDermott (secretary), Mairéad Cashman, Paul Egan, Richard Hammond, Mary Keane, Aisling Kelly, Tracy Lyne, Patrick J McGonagle, 19 Comment Ken Murphy, Andrew Sheridan 19 Letters 20 Viewpoint: The need for an independent The Law Society of Ireland can accept inquiry into the murder of Pat Finucane no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions 43 People and places expressed are not necessarily those of the Law Society’s Council, save where otherwise 46 Books indicated. No responsibility for loss or distress 46 Book reviews: Battle of Wills – Irish occasioned to any person acting or refraining Families at War over Wills; The Taxation from acting as a result of the material in of Gifts and Inheritances; and The Law of this publication can be accepted by the Companies (3rd edition) authors, contributors, editor or publishers. The editor reserves the right to make publishing 47 Reading room decisions on any advertisement or editorial article submitted to this magazine, and to 49 Briefing refuse publication or to edit any editorial 49 Council report: 2 November and material as seems appropriate to him. 14 December 2012 Professional legal advice should always be 50 Practice notes sought in relation to any specific matter. 52 Legislation update: 10 November – 26 December 2012 64 FSC independently certified wood and paper products used by the Law Society Gazette come from ecologically managed forests. Visit: www.fsc.org PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 43 45 Law Society Gazette www.gazette.ie Jan/Feb 2013 CONTENTS 3 26 20 STATE COLLUSION HTY OAKES Why the facts of Pat MIG Finucane’s murder must The Central Bank’s not be whitewashed LAW SOCIETY GAZETTE • Vol 107 No 1 HT TO DIE? RIG director of enforcement on The High Court decision regulation and compliance in the landmark case of Fleming v Ireland €4.00 Jan/Feb 2013 LAW SOCIETY GAZETTELAW COVER STORY 22 The remains of the data JAN/FEB 2013 Online accounts may hold a vast ‘back catalogue’ of information, some of which is potentially valuable. So, who inherits your online legacy? Damien McCallig logs on RIA IN AETERNA: Law Society of Ireland MEMO Who owns your digital legacy? FEATURES 14 26 In my time of dying 34 Shifting sands Assisted suicide is punishable by up to The administration of stamp duty has 14 years’ imprisonment. Fleming v Ireland seen a range of changes due to the Finance & Ors is a landmark case that challenges Act 2012. Emmet Scully surveys the the constitutionality of the Common Law shifting sands (Suicide) Act 1993. Michaela Herron weighs up the options 38 Cara sa chúirt The right to put one’s case in the official 30 From little acorns... language of one’s choice is a right enjoyed From high-rise Sydney to the seventh by both sides, but your right to choose floor of the Central Bank, Peter Oakes does not oblige another party to use your has had a mighty career.