LAW SOCIETY Gazette€3.75 June 2007 HERE’S LOOKING AT YOU: Privacy and surveillance INSIDE: MAHON TRIBUNAL LEAKS • BARONESS HELENA KENNEDY • BOLLYWOOD BLING BALL • LETTERS LAW SOCIETY GAZETTE JUNE 2007 CONTENTS On the cover LAW SOCIETY Who’s monitoring your email, phone and internet usage, and is such monitoring legal in the absence – or even the Gazette presence – of an acceptable- Gazette usage policy? June 2007 PIC: REX FEATURES/GAZETTE STUDIO Volume 101, number 5 Subscriptions: €57 REGULARS 5 President’s message 7 News Comment 13 13 Letters 14 Viiiewpoiiint::: will the new Garda Ombudsman Commission increase confidence in the gardaí? 16 Analysis 16 News feature::: new criminal courts complex 19 News feature::: Baroness Helena Kennedy speaks at the Society’s annual human rights lecture 16 20 Human riiights watch::: the D case 20 One to watch::: Consumer Protection Act 2007 43 Practice doctor 44 People and places 46 Student spotlight Book review 47 Ten in a Bed: a Memoir Briefing 48 48 Council report 49 Legislation update: 17 April 2007 – 15 May 19 52 Practice notes 57 Solicitors Disciplinary Tribunal 58 Firstlaw update 61 Eurlegal: recent developments in European law 64 Professional notices 69 Recruitment advertising Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 65. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Pamela 45 Cassidy, Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, Ken Murphy, Philip Nolan, William Prentice. 2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE JUNE 2007 Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO: LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997, right up to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including conference on details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] the European slave trade, 3-5 July, TCD Subscribers to the Gazette should send change-of-address details to: • Employment opportunities Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] FEATURES COVER STORY: 24 A very private affair The parameters of privacy law are undergoing rapid change, with technology allowing cheap and effective tools for interfering with the privacy of others. Irish privacy law remains in a state of flux, writes Denis Kelleher This old house 28 Condition 36 of the Law Society’s General Conditions of Sale is often deleted, shifting the burden of planning investigation and compliance to the purchaser. John Gore- Grimes points out solicitors’ responsibilities Hole in my bucket 32 The recent systematic leaking to the press of Mahon Tribunal briefing material relating to the finances of the taoiseach makes for riveting reading and opportunist politics, but is it legal? Pamela Cassidy mops the floor 35 Notes from underground In the second part of a two-part analysis (with 32 Dostoevsky-themed headlines), Frank Buttimer looks at the new offences created by the miscellaneous provisions of the Criminal Justice Act 2006 Ain’t misbehavin’ 38 When a solicitor comes on record for a client in a personal injuries action, insurers should deal exclusively with the solicitor. But certain insurance companies have taken the opportunity to deal with the claimant directly, writes Stuart Gilhooly Stone walls do not a prison make 40 The Prisons Act 2007 provides for legally-aided hearings in respect of a prisoner’s loss of remission, but there is no equivalent procedure yet for the revocation of temporary release. Cathal Ó Braonáin opens the case file The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. 35 Email: [email protected] Law Society website: www.lawsociety.ie www.lawsociety.ie 3 FREE HP laptop To celebrate the launch of the new eXpd8 scanning solution we are offering you a HP Compaq Business Notebook nx7300 including Microsoft Vista Business (worth €749) with every order* eXpd8 integrated scanning solution A complete digital file is now at your fingertips. The new eXpd8 scanning software allows you scan all your post and other documents in one go and attach to your file in seconds. Scanning is no longer the tedious task it once was, take a look at our online demo at www.expd8.com/movie.htm and see for yourself. eXpd8 scanning solution is compatible with a number of scanners. We recommend the HP 4345x mfp, which scans 45 pages a minute as well as printing and a host of other features. about HP LaserJet 4345x mfp • Print copy and scan with this flexible multifunction device • Multiple paper trays • Two-sided printing • Colour scan 45 pages per minute • Black and white printing and copying • Easy to use intuitive control panel with touch screen graphics • Multipurpose tray handles all a range of media types up to 200g/m • Powerful processor to handle tasks quickly • 50 sheet automatic document feeder The digital searchable equivalent of the “pile of post” e-mail [email protected] or telephone Michelle on 086 8194863 to avail of this limited offer The eXpd8 scanning solution requires eXpd8 SQL and will be subject to a complete complementary IT audit. Sample price for eXpd8 clients including complete scanning solution, HP 4345 mfp, eXpd8 sql upgrade, including training, installation based on a five-user site over five years is €34 per user per month. *offer is valid for 1 laptop per business, on all solutions over €2,000 in order value. Offer open to orders received on or before July 31st 2007. Subject to availability PRESIDENT’S MESSAGE LAW SOCIETY GAZETTE JUNE 2007 Unfair bias in judicial appointments? s I write this message, the 29th Dáil works about as well as any has come to an end and the result of could in appointing judges the general election, which was held of very high ability, on 24 May, is unknown. The outgoing integrity and government has recently appointed 17 independence – both Amembers of the legal profession to various judicial actual and perceived positions, and of the 17, eight are solicitors. independence. If it has a I wish all those nominated well in their new flaw, however, it lies in a careers and assure them, and indeed all judges, of lingering suspicion in the the Law Society’s continued support. The solicitors’ profession that appointment of persons to judicial office raises either the system itself or many issues. those involved in its It is vitally important that the system of operation at government appointment of judges avoids, as much as possible, level – not at Judicial any perception that judges may ever be less than Appointments Advisory fully independent in their judicial decision making. Board level – retain an This requires a delicate balance to be unfair bias in favour of maintained. Judges must inevitably be selected by appointment of barristers the executive branch of government but, following rather than solicitors to senior judicial office. Such a “Such a bias, their appointment, they must be – and be seen to bias, if it exists – and I suspect it does – should have be – truly independent of those who appointed been consigned to history with the enactments of the if it exists – them. It is essential that there should not be any 1995 and 2002 acts. and I suspect it perception of appointments being made on the The first ever appointment of a solicitor as a judge basis of political patronage rather than on legal of the High Court occurred in July 2002. Between does – should ability and personal suitability. then and the judicial appointments made on 2 May have been To assist with this, under the Courts and Court 2007, a further 12 High Court judges were appointed. Officers Act 1995, the Judicial Appointments All were excellent appointments. However, all were consigned to Advisory Board was established. The function of barristers. Can it really have been the case that the history with the the board is to provide the minister with the names solicitors’ profession, which constitutes approximately of persons whom the board recommends for 80% of all practising lawyers, had not one member enactments of appointment to any particular judicial position.