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March Info :- St Luke's Protest Dec 08 07 Government's refusal to raise asylum seekers allowance shameful Dec 07 07 Those Critical Underspends in Health and Education Nov 29 07 Farmer Tom Kennedy national | rights and
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 Saturday
November 17, 2007 16:53
by We the People
 Jailed for a non-crime. This man has spent over nine Months in various Prisons throughout the Country , for a non-crime. Tipperary Farmer Tom Kennedy rots in Mountjoy Training
Unit today for a non-crime. Like many other People protecting their Land ,
he was jailed under a contempt Order in February 2003 by Judge Olive
Buttimer of the Nenagh Circuit Court for not vacating his Land although he
bought it from his deceased Brother in the early seventies and has farmed
the Land for 25 years.  printable
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BACKUP COPY LOCATED AT:
http://www.europeancourtofhumanrightswilliamfinnerty.com/BACKUP/Indy9Dec2007/Post.htm#comment215188
(As the above article appeared
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Sunday, December 9th 2007, at 22:22)
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Original Indymedia (Ireland) Article Location:
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Jump To Comment: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92My heart goes out to Mr. Kennedy.
Contempt is a 'Judge Made' law. This means that it was never before the Oireachteas nor indeed was it before the President of Ireland.
There is a law (which is particularly embraced by ECHR) that states that 'no man may be a judge in his own cause.' In most instances of contempt, including the alleged contempt exhibited by Mr. Kennedy, the Judge is the injured party. Therefore, in my opinion, the honourable Buttimer J. acted as a judge in her own cause.
More law states that nobody can be incarcerated except in circumstances as provided for by law. Every human being accused of a crime has a right to defend themselves in a trial specifically convened to try the actual crime that is alleged to have been committed. ECHR is very clear on this and Irish law accepts and applies ECHR, indeed, even if ECHR didn't exist, Irish law embraces this principle. But not in this case (and in many others), again in my opinion. There has not been a trial that has accepted and has pronounced Mr. Kennedy's guilt, so I'm very confident in my opinion here.
Nine months in jail, being moved around a lot and being put at considerable risk (regarding Mr. Kennedy's age and considering the company he's forced to keep) seems somewhat unfair, to understate it considerably, again in my opinion, for allegedly offending (and allegedly in a deceitful fashion - afterall the truth is neither an act of contempt nor a tort) a fellow citizen. Rapists have been known to have an easier time of it (in recent memory too).
All in all, I wish Mr. Kennedy and his family all the best for Mr. Kennedy's next visit to the High Court. And I hope for justice to manifestly be seen to be done.
Again Indymedia highlights this case while giving us only a scant amount of information (biased).
The role of the court is to dispense the Law, not justice. Has this happened in this case? We don't
know because we haven't got the facts.
The full details of this case are printed right here. Why Mr. Kennedy was in court to begin with, though it's interesting and newsworthy, is quite irrelevant. He's in jail for alleged contempt. He's not had a trial for the offence that lead to his jailing, hence the sparsity of the article. He'll be back up before the High Court again in the next few days, there might be more news then.
I understand the frustration some readers might feel, but this is one of those occasions when a story that's devestating in its consequences, is very short in the telling.
On the face of things, if Habeas Corpus was ignored/refused, it would be disturbing. However, I'm of the opinion that not all the facts are presented here impartially. As for Mr.Ryans' complaint about the company Mr.Kennedy has to keep. I was not under the impression that law-breakers( agree or not) have any sort of veto on their cell-mates. Also elaborate please on the claim that 'Rapists have been known to have an easier time of it'.
I'd be happy to elaborate on where I said "Rapists have been known to have an easier time of it (in recent memory too)."
Everything I printed to do with this article, I stated as being part of my opinion. Opinion is naturally biased but this is not guaranteed to be a negative, in the way for example, a judge could be described as being biased. I've included arguments as part of my opinion and have not described myself as infallible. So by all means, if my arguments are flawed, point out how and why - anyone? I'd appreciate it. I don't want to exist in a fashion where I'm deceiving myself.
With regard to my elaborating on what I've said.
Firstly someone held for rape in a prison is not considered a criminal. Sexual offenders are considered sick rather than being criminals. They are treated far differently than garden variety criminals. For example: if a normal prisoner assaults another prisoner, the matter must be tried and the person found guilty will be sentenced for it (usually less than 2 years). If a prisoner assaults a sexual offender and is found guilty, it's an automatic 7 or 8 (I'm afraid I'm too tired to look up the exact figure at this moment) years tacked onto his or her time. There are many other differences, but I think this shows my point.
As well as that: All members of the public who are considered to have shown contempt are caught and are held accountable (without being allowed either a defence or a trial) - 100%. On the other-hand, less than one percent of rapes make it as far as a court, all are allowed to defend themselves. Many rapes result in a suspended sentence despite a guilty verdict. Only a few months ago the papers and the television were full of such a case, where the rapist was only given a meaningful sentence afer he spat on his victim on their way home. And that was only because the victim had the guts to speak out about it, reveal her identity and cause a fuss.
I believe that in that particular case, that the 'he came from a good home' shite/excuse also featured strongly. If that scumbag had the presence of mind to travel home seperately and/or not spit on his victim that he had also raped, he'd be free today. Mr. Kennedy didn't so much as lay his hand on anybody, and he was in prison whilst this case was going on, and he's still in prison now. I'm disgusted at this and I can think of no logical or ethical reason as to why I shouldn't be.
"I was not under the impression that law-breakers( agree or not) have any sort of veto on their cell-mates."
If a judge shows contempt for you, lump it. The average citzen has to put up with it everyday, cops endure a lot of it, esp at closing time, but you just dare disagree with the judge in his courtroom, and off you go to prison without much in the way of due process.
Contempt of court should be totally reworked, especially in this country where too often prosecutors ignore court rulings if the defendant is defending himself, and where state witnesses can commit obvious perjury without being chucked behind bars.
Why should we lump it? I agree that 'contempt of Court' should be totally reworked or even abolished.
Tom Kennedy was denied due process and given 'unjust attack' ,from the Bench.
A meltdown of his Fundamental rights through 'contempt'.
Cops may encounter contempt after hours , but they are not jailed as a result. Lets get the difference right.
Why was he asked to leave the land? What is this story about? If you're highlighting some legal technicality then all well and good. When you're less tired I'm sure you'll clarify what you are on about.
It seems Mr. Kennedy refused to obey a direct order of the court. That is why he is in prison.
The order may be unjust but according to our legal system you may not disobey it. You may fight it through the courts - appeals etc, but you may not disobey it. There has to be a final line in court.
Mr. Kennedy, it seems, has crossed it. I repeat: in court - expect the Law, not justice.
He has disobeyed a court order. The sanction for that is imprisonment until he agrees to abide by the court order.
Its easy, isn't it? Whats all the whining about?
When a peasant defies a judges instruction, he is IMMEDIATELY chucked in the slammer.
When a corporation, politician or even a bent judge ignores a court ruling, or the law itself, then there must be some sort of adjournment, appeal to a higher court, or tribunal of inquiry.
The ability to have someone dragged away, recused, or held to account hardly exists at the bottom of the heap. That type of power travels in one direction only.
Take for example, the Mary Kelly case. In this case, the Judge DELIBERATELY gave the jury the impression that in order to find Mary Kelly innocent, they would have to be convinced that the threat she meant to disarm was immediate and local. This is DESPITE the fact that it was POINTED out to him (in the absence of the jury) that those requirements had been REMOVED by an amendment to the act. Mary had a law book to prove this, and it was handed up to the Judge, who feigned surprise, yet still refused to correct this error in the mind of the Jury. Mary was forbidden to raise this matter in the presence of the jury, (who were removed from the room a lot during the trial)
Whatever you think of the rightness or wrongness of the woman's action, the judge was obliged to have her tried under the law AS IT WAS at the time of the offence, not as it was 6 years previously.
There was no immediate remedy available to the defendant. A long drawn out appeals process, with no great consequences for the original Judge Carol Moran, if her rights are upheld.
Justice delayed is justice denied.
Well digger,
if you were 65 years old and spent the last nine months being ferried around prisons ( in order to break you to purge your 'contempt' ) , from cork,limerick,cloverhill,the midlands and back to Mountjoy - for a third time , you would not post such cut and dry attitudes.
This man has been granted a high court order for an injunction after his incarceration , on the solicitor who presently occupies his lands, owen harrahill who refuses to vacate.
I don't see him in prison.
Sure why would you whine , it's easy.
It would seem that many of the postings in this thread contain an enormous amount of ill informed comment.
I do not suppose to know exactly what led to Mr. Kennedy being jailed for contempt but from the little fact advanced so far the following would seem to be plain.
The initial poster alleges that Mr Kennedy in fact won an initial case , (High Court, Giliigan J.) in relation to the land in question in 2005 but that the land is now in the hands of some solicitor or other. Another competant court ( and I use that in the strictly legal sense, ie one that is legally entitled to hear the issue, as opposed to whether any poster thinks the judge did his or her job compenantly), in the form of Buttimer J, heard some form of proceedings (we are not told what type of proceeding or the matter which was in dispute) .
Now ,contempt proceedings are not heard in isolation. Mr. Kennedy must have done something during the course of said legal proceeding before Buttimer J. to warrent his jailing for contempt. The other alternative is that he refused to obey the lawful order of Buttimer J. (in reation to what we are not told ) and was resultantly jailed.
It would help clarify matters for everyone if we were told why Mr. Kennedy was committed to prison for a contempt of court. If a solicitor is not lawfully in posession of the land alleged to be owned by Mr. Kennedy he , Mr. Kennedy has ample recourse through the courts. If, in the alternative, the solicitor is in lawfull possession of the lands I do not see the issue or how it is connected to Mr. Kennedy's committal for contempt unless both are linked in some manner or for some reason not explained to us.
In relation to the larger issue is IS MOST unsual for someone being committeed to prison for simple contempt for such a long period of time without being released by the committing court or a superior court. This also gives me reason for thinking that all the pertinant facts have not been put before us by previous posters.
Could we have more information please!!!!
As to what I canot forgo but to call " the tripe" spouted by Mr. Ryan to the effect that, and I quote
"Firstly someone held for rape in a prison is not considered a criminal. Sexual offenders are considered sick rather than being criminals. They are treated far differently than garden variety criminals. For example: if a normal prisoner assaults another prisoner, the matter must be tried and the person found guilty will be sentenced for it (usually less than 2 years). If a prisoner assaults a sexual offender and is found guilty, it's an automatic 7 or 8 (I'm afraid I'm too tired to look up the exact figure at this moment) years tacked onto his or her time. There are many other differences, but I think this shows my point."
Can I point out that none of the above has any basis in fact. All of the Criminal Justice Acts involving sexual offences are just that., Criminal Justice Acts, they involve the commital of CRIMES. They are not illnesses that deserve imprisonment. They are CRIMES. Would Mr. Ryan please even one of the relevent pieces of legislation please. As to the assertion that they are treated in prison as persons with illness is absolute rubbish. Some are, in fact, segrated from the majority prison population for their own safety as they are at risk (particularly those convicted of offences against young people or children), of attack due to the contempt that most "ODC's" ( ordinary decent criminals) hold them in. There are , additionally, and in fact ,only a handfull of places available in the prison system for the treatment of those convicted of sexual offences and these are particularly reserved for those convicted of paedophelia etc. It's aim is to rehabilitate those so convicted so as do decrease the chance of re-offending on release. In every other regard they are treated exactly the same as any other offender.
It is also completely untrue to assert, simpliciter, that someone who assaults a person convicted of a criminal offence is given a substantially more severe sentence than for assaulting someone not so convicted. Can you please reference any case where the sentencing judge considered that one of the aggrivating factors in sentencing was the fact that the victim was a sexual offender thus allowing the imposition of a 200% increase in the sentence. More to the point can you direct me to the relevent decision of the Court of Criminal Appeal where it was accepted as a factor that could aggrivate the offence?
Are you aware that there are various catagories of assault that can be committed against the person? The old common law catagories of common/grevious bodily harm etc have been abolished but replaced by legislative catatories which range from the mild to the very serious and can carry up to a life sentence depending on the circumstances. I would not presume, if I were you, that the person who received a two year sentence for assault was convicted of the same assault offence as the person who received 7/8 years. However, I presume that these people do not exist and were just an ill informed means of you communicating a point.
Finally, in sentencing in this jusrisdiction, nothing, with the exception of the sentence in murder and various capital offences, is "automatic" as alleged above. It is the overriding principle of sentencing policy in this State that the sentence is imposed in the particular circumstances of the case. It would never be the case that an "automatic" 7/8 years would be tacked on to a sentence being served for assault on a sexual offender, as alleged above. This, I am sorry to say, is absolute and complete nonsense.
Any chance of a little more clarity and fact in this thread!!
Indeed, as some of the other posters have said, there is a lack of information here. But it certainly seems to warrant furthur analysis.
Does the original poster have a date when this this Mr. Kennedy is due to appear before a judge again?
Campaign Ireland's member Anthony Smailes and another member have insisted Tom Kennedy be presented to the HIgh Court urgently because they believe he has not had a fair trial.
T H I S H E A R I N G T A K E S P L A C E T H I S M O R N I N G A T T H E H I G H C O U R T
Can Campaign Ireland members reach Carlow in time to represent Tom Kennedy? Why was it necessary to move this elderly man in poor health from Dublin to Carlow?
Any reports on his latest appearance before the high court this morning?
Thank you.
Yes, the latest is that Tom Kennedy appeared in Carlow Circuit Court this morning before Judge Olive Buttimer. He was heard at 1.14p.m. when most in the Court room went for lunch.
He was afforded Audience of approx.20minutes when he explained that he had a High Court Order from Judge Gilligan in 2005 that injuncted his relation in the matter ,Owen Harrahill ,vacate the Lands in question ,approx.80 Acres between Thurles and Templemore.
It was argued by Tom that Councel for Harrahill,Patrick Treacy , said it was an ex parte Order by Gilligan and was never received.
To complicate the issue further , it was mentioned that Judge Herbert overturned Gilligan's Order - both are High Court Judges and it was argured that the Supreme Court would overturn such an unlawful move.
In July 205 Judge Barry White jumped in and adjuorned the matter and suggested a Letter be sent to Harrahill rather than him be served.
In jumps Judge Abbot who requests that Harrahill should be served with Gilligan's Order. Gilligan then asks for an inquiry. This was adjourned three times to allow Harrahill time to defend. They did not appear as they claim that they were not served.
It (case)appears before Gilligan again and he remembers that his order was not issued ex-parte and that he was not about to change the Order.
Mentioned again ,was that Herbert had no Jurisdiction to vacate Gilligan's Order - it's , a matter for the Supreme Court.
Herby stated that there is nothing he can do about it now - vacating Gilligan's Order.
Mentioned was the fact that such a vacate is no decision at all - unlawful.
( I really should have recorder all this as it is not verbatim - I can only catch so much by Pen).
Tom argued that his Constitutional rights were violated for lack of due process , breach of Natural Justice, denied access to re-butt the issue and the rest.
Buttimer stated that...' I injuncted you from the Land so as to prevent injury to both Parties and keep the Peace, as there were some serious breaches of the Peace at these Lands and if you cannot guarantee me today that you wwill desist from going there , my Order of Contempt will still stand . You need to persue this case through the proper channels and you cannot do tha in Prison`.
Tom refused to guarantee the Judge.
So,there is the latest update on the matter.
With reference to your comment above that the "The role of the court is to dispense the Law, not justice", I'm really curious as to where this piece of legal theory comes from?
Is there any reference to it in Bunreacht na hEireann (Constitution of the Republic of Ireland)? - or in any of the United Nations or Council of Europe human-rights legislation that the Republic of Ireland has ratified?
The reason this issue concerns me is that your statement conjures up images in my mind of the kind of "law" I imagine the "brownshirts" would have operated a century or so ago.
By "brownshirts" I mean the "SA Sturmabteilung", which played a key role in Adolf Hitler's rise to power in the 1930s. (More information on this subject can be found at http://en.wikipedia.org/wiki/Sturmabteilung )
William,
Law, not justice is a standard maxim and makes complete sense. it originates from Oliver Wendell Holmes, Jr. who remarked : "This is a court of law, young man, not a court of justice".
Have a read of the link I've added at the bottom to see why judges must dispense law and not justice.
The maxim is outlined in the constitution where the judicial oath requires judges to "uphold the Constitution and the laws" ... note the key word is law, not justice.
That article, (well penned propoganda) mostly demonstrates why in ORDER for an authoritarian STATE to have stability, the LAW rather than JUSTICE must be considered supreme.
Of course it was written by a Chief Counsel for NIXON, who (like many heads of State) decided that he was above the law, while preaching morality and law to everyone else, even during the secret illegal bombing of Cambodia, and Watergate burglaries.
In reality, for society to be stable, Justice is more important.
But, being as the violence, or power only flows one way in a hierarchy, that hierarchy offers the ordinary citizen little ability to hold corrupt judges to account, or corrupt leaders, or indeed the system, and will pervert its own laws to defend that status quo.
We don't have a department of LAW. We have a department of justice, equality and "law reform".
Presumably the laws must be amended from time to time, in order to be just, and of course, Judges in their discretion, can help shape that process.
In American political theory, it was argued that to be free and just, that the laws, bill of rights, and limitations on state power should be applied in such a way, that even a government of devils could not corrupt the state.
In Fascist states they prefer to limit the law, that even a compassionate fair minded judge, if he sticks to the law of that fascist state, cannot dispense justice to someone who opposes the system.
If I might add: Justice is a concept and is therefore subjective. For example 'justice' in a Middle-Eastern state is very different to 'justice' in the West.
Any court could not operate effectively according to such a subjective method.
It is for our legislators to express the societal notion of justice in our laws, according to our constitution, and for our courts to administer those laws.
"Justice concerns the proper ordering of things and persons within a society."
The above piece of text has been taken from http://en.wikipedia.org/wiki/Justice
Indeed it does William. The problem is this - like justice, who gets to define 'proper'?
"It is for our legislators to express the societal notion of justice in our laws, according to our constitution, and for our courts to administer those laws."
Most of our laws these days are simply rubber stamping something dreamed up by unelected commissioners of the EU. But that's a different debate.
And yet, where two pieces of law conflict in a case where the government has a vested interest, eg property, allegation of crime, contempt, v human rights, if a judge decides to favour the state, the remedies are NOT immediate to restore them.
The state can deny rights quickly, and the apparatus to restore them is grindingly slow, because 'we must consider these things carefully'.
Even though, an ounce of prevention, when making the law would be the most advised path.. and there have been countless times in this country of passing obviously flawed laws for vested or political purposes.
There is no shortage of laws on the books. Why the rush to legislate more, when there is little enforcement, and little supervision of the consitutionality of much of what comes out of our legislative branch.
The point is, there is no NEED to commit a man for contempt in this case.
It is fairer for the wheels of justice to pay proper attention to the whole of the case, and to let his man free to argue his case.
If he violates a court order, that's one thing,
But jailing him for not giving an _undertaking_ to abide by it is nothing more than the shadowy concept of 'pre-emptive justice' from the bench.
Buttimer stated that...' I injuncted you from the Land so as to prevent injury to both Parties and keep the Peace, as there were some serious breaches of the Peace at these Lands and if you cannot guarantee me today that you will desist from going there , my Order of Contempt will still stand . You need to pursue this case through the proper channels and you cannot do that in Prison`
The judge, in this case, has spelled out her reasoning for jailing TK - to prevent somebody getting hurt, or worse. Should she turn a blind eye to this aspect of the case? She has told TK effectively to 'cop on' and use the legal system to pursue his case. TK seems to be intimating that he will take matters into his own hands. I'm sorry for anybody who is brought before the courts on a matter such as this but TK has not done himself any favours with what appears to be a pig-headed approach.
"... there were some serious breaches of the Peace at these Lands ..."
When was Mr. Kennedy found guilty of a breach of the peace?
With regard to the courts being courts of law - quite correct. But to allege that justice is some unsubstantiated component of this; utter crap. Law exists to facilitate justice and no law can be made without a clear concept of the form of justice it is supposed to bring about. The law exists so that justice can be done and be seen to be done. The law is supposed to perform two duties, the first to act as a deterrent and secondly when it fails to deter, it exists to facilitate justice.
I've just spotted Damien's answer to Mr. Finnerty above where he quotes article 34.5 (the judge's oath) in order to suggest that it is not the court's business to administer justice.
It's funny (or indeed suspect) that he would have skipped over 34.1 to 34.5 to do this as Article 34.1 explicitly states:
"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."
I can't see the issue you have Sean. We all agree that laws are a vehicle to implement "justice". We all agree that judges "judge" based on law.
The confusion arises when people try to suggest that a judge can take natural justice into account when deciding a case. This is untrue - he must consider only the law - this is why a judge swears to uphold the law, and not justice.
For example a defendent may get off on a technicality such as the date on a summons being wrong - this is not "justice" if he would have otherwise been guilty beyond reasonable doubt; it is the rule of law.
Maybe it's a case of us pronouncing potato and tomato differently.
The law does indeed provide for a case to be dropped in the case of a technical issue like an incorrectly issued summons being issued. Although this particular (fraid I cannot recall the specific case off hand, but it always struck me as interesting considering that Curtain J. was released on a technicality) trait of the court is subject to some tests before before a case will be dropped. A technicality facilitating a case being dropped, is I believe, an act that supposedly prevents an injustice from happening simply because any act to pursue a case with tainted evidence would remove the presumption of innocence. But, I agree to a certain degree, that is a potato tomato type argument.
I think we'd both agree that as well as law guiding a judge, there is a great degree of lattitude afforded a judge in terms of exercising his or her discretion. I believe discretion must (or rather should) be exercised in order to administer justice. Otherwise injustice is the goal.
'I think we'd both agree that as well as law guiding a judge, there is a great degree of lattitude afforded a judge in terms of exercising his or her discretion. I believe discretion must (or rather should) be exercised in order to administer justice. Otherwise injustice is the goal.'
But the judge delivers (through using his discretion) what is in his opinion justice. Thats the whole point. You may disagree with his decision but his discretion has been used. The fact remains that this farmer has chosen to pursue his case outside of the law. Other parties have sought the protection of the law and a judge has granted such protection to them.
The farmer has chosen to ignore the court orders; that is why he was imprisoned. He has the options of pursuing his own case through the courts or he could appeal his imprisonment to the supreme court.
"Genuine justice is about the protection of the inalienable rights of each and every individual human being - and - the punishment (for deterrent purposes) of the inalienable wrongs of ALL individuals who violate such rights." (Excerpt from http://www.indymedia.ie/article/83999#comment206640 )
"In law, what plea so tainted and corrupt
But, being seasoned with a gracious voice,
Obscures the show of evil?"
"Dealing with injustice" (by Dublin based psychologist Marie Murray):
http://www.europeancourtofhumanrightswilliamfinnerty.com/MarieMurray19April2006/IrishTimesArticle.htm
I have to disagree regarding the discretion which you feel judges have. The only discretion they have is discretion given to them in law - such as deciding on what is "reasonable". They however, could have discretion in sentencing, where the law permits it - such as offences where there is no mandatory sentence.
I don't think juries have been mentioned so far in this thread?
Personally, I believe juries have an extremely important role to play in the provision of justice (genuine justice that is).
Among other things, I believe it should be COMPLETELY IMPOSSIBLE for judges to be able to imprison people for more than a few days without the approval of a lawful jury.
Otherwise, judges can abuse their "powers" with impunity, and thus perversely become the instruments of INJUSTICE (rather than justice).
A further consideration relating to this point is that unlike politicians, judges cannot (as things stand at present in the Republic of Ireland) be voted out of office at election time.
For anybody interested, some information on the the very long history of "trial by jury" can be found at http://en.wikipedia.org/wiki/Jury_trial#History_of_jury_trials
William,
Are you joking? Are you proposing some sort of popularity contest for judges ? Like the Eurovision for judges, or pop idol?
I'm going to let you in on a little secret .... NOBODY would vote for the judges that sent them to prison. NOBODY would vote for judges that gave custody of their children to a former partner. NOBODY would vote for the judges that sent their relations to prison.
Do you not think that perhaps judges might end up making decisions just because they are popular rather than just?
Your ideas are really starting to become rediculous.
William has a valid point.
Judges are political appointees; nobody should be surprised if some judges occasionally behave as such.
It is high time for an overhaul of the process of judicial appointments.
Personally I think that appointments should be made by a panel of made up of legal peers and of
suitable citizens and should be open to regular review.
Judiciary and state are supposed to be separate but I fail to see how this can be the case as
long as politicians decide who sits on the bench.
Hi Yu,
Care to give an example in ireland where "judges can abuse their "powers" with impunity" ?
Have any examples where they have "perversely become the instruments of INJUSTICE" ?
Any examples of political bias in judgements?
More uninformed comment here i see.
For Yu' s infrormation, and for william indeed, judges in this State are appointed as follows.
An advertisement is placed in the national press and solicitors and barristers of the relevent period of practice, 10 years, are invited to apply. They apply and are considered by the Judicial Appointments Commission which consists of the Presidents of the district, circuit, high courts and the chief justice. Also on the commmittee is a representative of the bar council and the law society. Also included are three members of the public. (one of whom at the moment is Olive Braiden, of the rape crisis centre and human rights commission). They give a list of seven names who they think appointable, in no particular order of preference, to cabinet and then the cabinet makes the decision.
There is provision in the legislation for the government to appoint outside of this list of seven ( so they can appoint a sitting attorney general as used to be the practice) but in the history of the judicial appointments board this has never happened. The only exception to this is when appointing the presidents of the courts from amongst the serving judiciary or appointing a judge from a lower to a higher court.
Now you know the facts you can go back to your argument.
Damien
Check out Michael Mescalls case on the VILP website to get an clear example of the work of a corrupt judge. To get back to Tom Kennedys case, I would like to point out that if the solicitor now in possession of his land has come into this property illegally there is no point of recourse until a body to monitor the legal profession is established.
Thanks for the information Observer, from what you say, the way things work now is almost exactly as Yu was proposing they should work.
Jacinta perhaps you could post an actual link detailing the corruption and explaining why an appeal to a higher court wouldnt have found that the original judge erred in law?
'the way things work now is almost exactly as Yu was proposing they should work.'
- not even close
http://www.law.cam.ac.uk/docs/view.php?doc=863
http://www.independent.ie/national-news/judges-losing-grip-on-power-1038669.html
http://iccl.ie/DB_Data/news/ICCLcallsfornewCounciltoStrengthenJudicialAccountability_57.htm
Damien,
I read the Mescalls case on the www.crookedlawyers.com website Then I rang them and they explained the case to me.
Why should they have to go to the supreme court?
They are both a little older and they say that they have absolutely no confidence in the Irish Legal System. The barrister that fought their case was shocked. The English solicitors to whom they have shown their paperwork were also shocked. The Irish legal system has now fallen into international disrepute.
Every VLPS member and journalist and fair minded citizen must get behind a campaign to GET TOM KENNEDY HOME FOR CHRISTMAS.
It is a national disgrace of enormous proportions that Tom Kennedy is in jail since 6th March. A family man in his seventies, supported by his wife, son and brother, has been incarcarated by Judge Olive Buttimer. She has brought him in handcuffs before her on a monthly basis and each time returned him to prison. Tom's CRIME is that he refuses to vacate his Co Tipperary farm that he has farmed continuosly with his family since he bought it in the 1970's.
How is he in this mess? Answer! colleages of Messers Byrne & Lynn, solicitors, solcitors and more ***** solicitors. A solicitor who failed to register his title has left an unwholly mess. Solicitors and courts trying to cover up for that solicitors incompetence just dug a deeper and deeper hole. Their reasoning was that stonewalling and solidarity (collusion) between lawyers and courts succeeds in rolling over 99% of their victims.
They did not know that TOM KENNEDY is one of the remaining 1% and he will not be rolled over. Judge Buttimer has played alternative "good cop - bad cop" games to get him to agree to leave his farm. She full well knows the strength of the dictum "POSSESSION IS NINE POINTS OF THE LAW" and that is why she wants him to give up his posession so that he can be rolled over.
TOM KENNEDY knows that dictum aswell and will not give up his possession. TOM is determined to walk his beloved fields. He ploughed them, he sowed them, he fenced them, he picked stones off them, he pulled weeds off them all his life. Tom vows that whenever he gets out he will walk those fields within hours of his release He will NEVER agree to forsake those fields and move to a hotel and engge new solicitors as ridiculously suggested by Judge Buttimer in Carlow courthouse last month.
Judge Buttimer has lost the plot and lost the game. Tom Kennedy must be immediately released to spend Christmas at home in Rossestown, Thurles.
Start the slogan now TOM KENNEDY HOME FOR CHRISTMAS
Strange as this may sound, Tom Kennedy's plight is not widely known in Thurles or the surrounding area. I for one live in a nearby town, and I have never heard of this case.
"A kangaroo court ... is a sham legal proceeding or court."
"The outcome of such a trial is essentially made in advance, usually for the purpose of providing a conviction, either by going through the motions of manipulated procedure or by allowing no defence at all".
VLPS you are starting to make a lot of sense - finally some pertinent information on this thread.
Can you tell us any more? - the legal background, the judge's reference to 'serious breaches of the peace'?
People need as much relevant information as possible if they are to get behind TK.
In response to YU. You ask me for details of the legal ins and outs of Thomas Kennedy's case.
I have in my hand a copy of the sale contract dated 15th Feb 1972 setting out the folio numbers and the consideration of £12000 and a copy of the deposit cheque for £3000 dated February 1972 and a copy of a receipt for £9000 to Thomas Kennedy from Bartholemew Kennedy's solicitor A I Cunningham dated 4th April 1972. These documents evidence the fact that the late Bartholomew Kennedy sold the disputed lands to Thomas Kennedy in 1972. Bartholemew by all his subsequent deeds and actions and those of Thomas Kennedy clearly indicate that a satisfactory change of ownership of the lands in question had transpired between the brothers.
I also have in my hand a copy of the last Will & Testament of the late Bartholemew Kennedy who died in 2001. The will does not mention any land and does not have a residue clause. the pertinent part is that it directs the executors, solicitor A I Cunningham and his brother in law, Eoin Harrihill, publican, to "divide all of my property both real and personal between my two sisters Maura Larkin and Joan Harrihill"
All of the above documents were considered by the Circuit Court and on Appeal, the High Court who incredibly concluded that Thomas Kennedy's lands were covered by the above will and that Thomas Kennedy was to be evicted and the lands be handed over to Eoin Harrihill.
Not suprisingly Tom Kennedy refused to leave his land and an injunction was sought to evict him. At the hearing, Judge Olive Buttimer gave Thomas Kennedy's solicitor Paddy Cadden, leave to come off record. With Tom thus without representation, she handed down an injunction to have Tom removed from the lands. In the courtroom Tom understandably protested this state of affairs.
That is the core of the issues that has Thomas Kennedy in prison since last March. He was initially sent to prison by Judge Buttimer for contempt because she would not let him address the court.
What has followed is a series of hearings where on a monthly basis Thomas is brought in handcuffs to Judge Buttimers court Each time Tom has behaved with impeccable dignity and has quietly read a prepared and well researched legal paper citing the issues and various good precedents relating to loss of liberty and illegal detention. On each occasion she ignored every thing he said, asked him bluntly would he purge his contempt and when he declined she sent him back to prison. In recent hearings she is now in "good cop" mode, beseeching him to " be reasonable" and give up his land. As media and supporters now attend these hearings she is now saying that she is keeping him in prison for his "own safety". This is nonsense. If it is true then why is Tom's wife and family not also be in prison for their safety. NO this is about a judge who has lost the run of herself an arrogant highly paid public official bullying a defencesless man.
A judge is Ultra Vires in arbitrarily imprisoning a person "for their own safety" without any supporting Garda or psychological report.
This is a GROSSLY ILLEGAL DETENTION to cover up for a GROSSLY FLAWED LEGAL SYSTEM.
Tom is in his seventies, he is in frail health and the whole sorry mess is bring Ireland inc into disrepute costing tax payers MILLIONS.
Its time for people to get up and speak out.
LET TOM KENNEDY HOME FOR CHRISTMAS
"He was initially sent to prison by Judge Buttimer for contempt because she would not let him address the court." but it would appear he is now being kept in prison because he refuses to vacate his land.
This is indeed cause for concern.
any pictures of TK?. It always helps to put a human face on a story.
http://www.tribune.ie/article.tvt?_scope=Tribune/News/Home%20News&id=79996&SUBCAT=Tribune/News&SUBCATNAME=News
As this thread illustrates, the Thomas Kennedy Saga may be very complex. Addressing the issue at this point it is clear that "solicitor cock up" is what has Thomas now in prison. The "cock ups" include the following:
1. I A Cunningham, the solicitor who dealt with the sale of the land from Batt to Thomas in 1972, did not register the change of ownership with the Land Registry. In fact the land was still in their mothers name at the time. It is BAD PRACTISE to delay registration "sine dei". It may be common solicitor practise but it is a BAD PRACTISE as tragically illustrated by this case.
2. I A Cunnigham, the solicitor that drew up Batt's will, and was an executor to the will, did not precsely specify the property covered by the will. It is BAD PRACTISE not to specify details of any property covered by a will. The purpose of going to a family solicitor is that this will be done. It wasn't done.
If either of the above had been done correctly, Thomas, and the Kennedy family,would not be in the position they are in today.
The solicitors colleagues, including those on the bench, would rather see Tom rot in prison indefinitely than deal with the "cock -up" by one of their own.
HE MUST BE OUT FOR CRISTMAS
The person now occupying TK's farm is a solicitor Owen Harrahil who refuses to comply with a court injunction, issued in 2005, to vacate the property. The story of this particular injunction and its serving could only happen in Ireland. It makes Judge Gilligan, who issued it, look like very weak. We may hear more on this. Perhaps Harrahil will be joining TK in prison.
The conduct of this case, as reported, can only be described as 'shenanigans'.
"the Land is now occupied by Solicitor Owen Harrahill who refuses to vacate the Land"
/
"solicitor A I Cunningham and his brother in law, Eoin Harrihill, publican,"
which is it?
I have a copy of Batt Kennedy's will. Eoin Harrihill is husband of Joan Kennedy, Tom's sister. In the will he is appointed joint executor with Solicitor Cunningham In the will he is described as a publican.
I also would like the previous poster to clarify this. Has Eoin Harrihill become a solicitor? is it another Eoin Harrihill? Is t a son?
At any event it is just another red herring in the matter of Tom Kennedy's current position.
There is no lawful or reasonable cause for taking away Tom Kennedy's right to his Liberty.
Keep it simple GET HIM HOME FOR CHRISTMAS!
why is the Tom Kennedy article in the Tribune so different in tone to the information expressed above? Have they viewed the paperwork?
Sounds to me the real disagreement here is between Tom and his sister, not the lawyers.
One assumes his sister is claiming ownership of the land in question also?
If the problem is the sisters, then why is a solicitor occupying the land? And to whom did Tom Kennedy pay money for the alleged purchase of the farm from his brother?
Does Toms sister claim ownership ?
OK I think I've figured this out ...
Your Question :
"If the problem is the sisters, then why is a solicitor occupying the land? "
I think the solicitor is Joans ( Toms Sister ) husband. It sounds like when Toms Brother died, his sister moved into the house along with her husband, believing that they now owned the property.
The real tragedy here is that there was obviously a major falling out in the family which has lead to the current legal situation. Given that Thomas lost his high court case one must assume that the "evidence" he claims to have is not as solid as it sounds.
I feel there is much in the last few posts that could be resolved by reading my earlier post.
The intial probl;em was a solicitor who failed to do his job. ie failed to register a land deal that he had carriage of. He is dead (A I Cunningham) but the evil that he did lives on.
Yes there have been many twists and turns since, and many judges have been involved and a family has been torn apart BUT there has NEVER BEEN A FULL OPEN HEARING OF THIS CASE.. All judges have heard pieces of it by affidavit but no full hearing with witnesses etc etc. WHY?
It is my belief the reason is that ia proper hearing would expose the solicitor failure to public view. Something the legals dread.
In any respect Tom''s current position is wrong.
Basically he is being tortured to force him to agree that he has not been tortured. IT is a scandal
TOM KENNEDY HOME FOR CHRISTMAS
Did the circuit and high courts accept the contract and cheque into evidence?
If so, why did they feel that this was not evidence of the transaction?
Or did they rule that the transaction was irrelevent, as Bartholemew still held the Title to the land at the time fo his death?
How can a transaction be irrelevant? Did a solicitor get paid for the transaction? Did money change hands?
Marie - please see earlier post by Out for Christmas - Victims of Legal Profession Society Mon Dec 03, 2007 20:24
So it appears the court ruled that Thomas had fabricated the "transaction" ?
What position did his sister Joans laywers take regarding the transaction that allegedly occured? Did she dispute the authenticity of the evidence provided?
Why did Thomas dispute the authenticity of the will if he had already bought the land ( above it says he wanted to have it carbon dated ) ?
There are many more questions than answers but I agree with VLP -
this case should now be given a full court hearing. As it stands it can only undermine public confidence
in the judiciary (too late for the solicitors). What does Justice Buttimer, or any other judge, have to lose
by fully trying this case in open court? Let's see the evidence and hear the witnesses. Isn't that how
justice (even the Law) is supposed to work.
Throwing one of the parties in jail until he decides to comply with a possible outcome of the very reason
he went to court in the first place is not justice. Its legality is surely questionable.
There is also the question of the injunction against Eoin Harrihill -why is it not enforced? Why the imbalance
in the application of court authority?
Questions, questions.... the greatest loser will be trust in the judiciary.
"What does Justice Buttimer, or any other judge, have to lose by fully trying this case in open court"
Nothing - in fact this case has been heard in both the district and high courts, and a further high court case is now pending. The previous hearings granted ownership to Toms sister, surely it is reasonable that he stays off the land until he gets that decision over turned? The injunction only requires him to stay off the land until the High Court case is heard.
"There is also the question of the injunction against Eoin Harrihill -why is it not enforced? "
It was overturned by Herbert in the high court, so in its current state is unenforceable. It looks like this needs to go to the Supreme court to be reinstated.
If TK cedes possession of his farm does he then weaken his case in any future court?
There is one VERY basic question I would like to get a CLEAR answer to (if possible) regarding Farmer Tom Kennedy's ongoing imprisonment:
Where is Justice Buttimer getting the authority from to keep Mr Kennedy in jail for so long?
Is there any "Act", or anything of that nature, which Justice Buttimer is operating to; and, if so, does the "Act" in question set ANY limit to the time she can keep Tom Kennedy in jail for?
Personally, I know of nothing in Bunreacht na hEireann (for example) that would allow Justice Buttimer to be doing what she is doing (by way of keeping Mr Kennedy jail for so long).
My concern of course is that Justice Buttimer might(?) be acting unlawfully, through the use some "contempt of court" type of completely bogus "law" that she and her colleagues in the judiciary have invented for themselves: "invented", that is, as far as the Republic of Ireland jurisdiction is concerned.
"Is there any "Act", or anything of that nature, which Justice Buttimer is operating to; and, if so, does the "Act" in question set ANY limit to the time she can keep Tom Kennedy in jail for"
Its pretty clear contempt to break an injunction, as outlined in the District Court Rules :
"the Court may .... commit the person to prison...until he or she shall purge his or her contempt"
There is no time limit imposed.
http://www.irishstatutebook.ie/1999/en/si/0124.html
'Its pretty clear contempt to break an injunction, as outlined in the District Court Rules'
and yet - an injunction was issued by the District Court against EH. He did not obey this injunction,
nor was it enforced. Instead, EH had ample time to appeal it and have it rescinded.
TK, on the other hand, was thrown in jail, immediately, from where he cannot fight for his rights.
Have I got this much right?
Is this equitable treatment before the Law?
"He did not obey this injunction"
How do you know? My reading of the article suggests that he is not obeying the injunction at present - but then this is fairly reasonable seeing as it was overturned by a high court judge. It is quite possible that he complied with the injunction before it was overturned. You are being more than a little unfair in assuming he it without any evidence.
Obviously someone who stands up in court and tells the judge he will defy an injunction is going to be held in contempt immediatly, what do you expect?
Anyway why did Tom take an injuction against his sisters husband and not his sister ?
In addition, EH may have appealed it immediately and obtained a stay on the inujunction which effectively froze it until the matter was decided by a superior court.
Do you ahve any record numbers for his cases?If so, it may be possible to search for written judgements of the case on courts.ie.
Do the "District Court Rules" referred to above form part of some "Act" that has been through the normal Oireachtas (Republic of Ireland Parliament) procedure?
If so, which one?
I ask this question because I would genuinely like to know more about how this "contempt of court" business actually operates, and the legal basis on which its use depends (in the Republic of Ireland jurisdiction).
One reason I'm curious is that, apart from imprisoning people, as has obviously happened in Mr Kennedy's case unfortunately, I have read reports some months ago of one judge (in the Republic of Ireland) who imposed what seemed to me to be a HUGE fine on somebody: because the person in question, who was not the defendant, made what appeared (to me) to be a pretty harmless and indeed largely meaningless remark from somewhere in the body of the court room.
Basically, I'm wondering if there are any limits (short of imposing the death penalty perhaps) to what judges in the Republic of Ireland can do to people who are in attendance at their courts: through the use of the "contempt of court" rule?
William,
I provided the link to the legislation in my previous post. The relevent legislation is S.I. No. 124 of 1999.
Here it is again : http://www.irishstatutebook.ie/1999/en/si/0124.html
The District Court Rules are otherwise known as Statutory Instrument (S.I.) No. 933 of 1997. Statutory Instruments are a subsidiary form of legislation which must be expressly authorized under an Act of the Oireachtas. In the case of the D/Ct Rules there are several authorizing statutes. The principal enabling acts are the Courts of Justice Act 1924 (Section 91) and the Courts (Supplemental Provisions) Act 1961.
The power to attatch for contempt of Court is an inherent power of all courts under all jurisdictions. It is used by Courts to maintain order and to ensure compliance with orders made by the court. It is an essential of the administration of justice that the decision reached by the court is enforceable, and if disobeyed, enforced. If this were not so, anyone who didn't like the decision of the court would just ignore it. Moreover, because courts exist to determine conflicts in a dignified and civilized manner, the court must be able to protect the administration of justice from loutish and intimidatory behaviour.
The contempt powers of the District and Circuit Courts are limited. The Constitution confers a unlimited jurisdiction of the High Court. However, the High Court uses its contempt powers very sparingly and only when faced with particularly obdurate and bloody-minded persons, and only after giving the offender every opportunity to apologise.
If I remember correctly, the case the ever dissimulating Mr. Finnerty refers to is one in which he himself was before the High Court having persistently denied any connection with a website on which scurrulous comment was published. The gent in question to which Mr. Finnerty refers was a supporter of his who had made a smart-ass offensive comment from the body of the Court. Mr. Finnerty well knows the ultimate outcome of that incident. That outcome confirms my earlier comment as to how the court exercises its contempt jurisdiction.
"If I remember correctly, the case the ever dissimulating Mr. Finnerty refers to is one in which he himself was before the High Court having persistently denied any connection with a website on which scurrilous comment was published."
With reference to the above comment, please note that I have never appeared before the High Court (or any other court of law) for any reason.
Neither was I present in the court where the "gent in question" made the alleged "smart-ass offensive comment", and neither do I even know the name of the person who made the comment, or the name of the court where all of this happened. What I can remember, is reading somewhere that somebody got fined 12,000 Euros (I think?) for uttering the single sentence: "I think it was the cat" (or something very similar).
I would like to take this opportunity to state that I grow more and more concerned regarding false and misleading comments of the kind referred to above, which are regularly appearing on Indymedia (Ireland): at the hands of people who use are using pseudonyms ("aristotle" in this particular case).
Changing back to the subject of "contempt of court", I have not found the information at the http://www.irishstatutebook.ie/1999/en/si/0124.html provided above to be very helpful, with the result that many practical questions on this particular subject (as it relates to the Republic of Ireland jurisdiction) remain unanswered for me.
Elsewhere, and under the heading "Trial for Contempt of Court" I have however come across the following statement:
"The Supreme Court decided, in Keegan v de Burca (1973), that where imprisonment is imposed, it must be for a definite period".
If that is the case, how come Judge Olive Buttimer appears to have imprisoned Mr Kennedy for an INDEFINITE period (in effect)?
And, yet more importantly perhaps, how come Mr Kennedy is not receiving any trial?
In recent years I am aware of several instances when people committed to prison for contempt were released without "purging" their contempt. The Rossport five are the best known example but also John McMahomnof Co Monaghan whose problem was also discussed here at the time.
Judge Buttimer by shifting her ground away from contempt towards keeing him in "for his own safety" has created a huge problem for herself and the state. If he is inside to preotect him from the security company that are currently guarding the farm, how can she ever decide that it is safe to let him out. If she lets him out and omething happens to him, will the state not now be liable. Remember there is no guarda report or psychiatric report here. Convicted felons will get this Christmas on parole but Tom Kennedy will be kept in "for is own safety?"
This whole thing is an experiment in judicial intimidation that has got out of hand. To the names of Frank Shortt nd the McBrearty's will be added the name of Tom Kennedy.
TOM KENNEDY OUT FOR CHRISTMAS
The length of Tom's imprisionment really seems to be excessive. I could understand were he jailed for 3 or 4 days but months is in my opinion excessive.
Also does Tom have legal representation? Have the garda fruad squad been asked to investigate the allegations of fraud? Did any money change hands in a purported transaction? Will the fruad squad investigate the solicitors office?
For comparison purposes, some general information on the way other "contempt" cases have been handled in the Republic of Ireland can be found at http://www.google.com/search?hl=en&q=Keegan+v+de+Burca+%281973%29%2C+Contempt+&btnG=Search
The consultation paper at the address provided below was produced by the The Law Reform Commission (Ardilaun Centre, 111 St Stephen's Green, Dublin 2) in 1991.
Allowing for the way some members of our judiciary (Republic of Ireland) appear (to me) to be GROSSLY abusing their powers through the use of the "contempt of court" rule, this might be a very good time for the people of the Republic of Ireland to reconsider the contents of this particular document?
"... of major contemporary significance..." - taken from the excerpt (of the document in question) reproduced immediately below:
"In January 1989, the Attorney General referred to us the law of contempt of court for our examination with a view to making recommendations for reform. The subject is one of considerable complexity, which traces its origins back several centuries; it is also of major contemporary significance, since it sets limits for the freedom of comment on the administration of justice, as well as controlling the information and commentary that may be made about current legal proceedings."
The full text of this consultative paper can be found at Internet location: http://www.lawreform.ie/publications/data/volume9/lrc_64.html
Among the several closely associated questions which rise up in my mind, apart from the shocking situation Mr Kennedy (please see above) finds himself in at the present time, is this:
"Was the imprisonment of the 'Rossport 5' (Shell Oil Protestors) for 94 days by Justice Finnegan in 2005, using the 'contempt' rule, really lawful: having due regard for the contents of Bunreacht na hEireann (Constitution of the Republic of Ireland) - especially Article 10.1" ? (Information on the "Rossport 5" group is available via http://www.google.com/search?hl=en&q=Rossport+5+%28Shell+Oil+Protests%29%2C+Justice+Finnegan&btnG=Search )
Article 10. 1 of Bunreacht na hEireann (in part) reads as follows:
"All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State ..." (The full text of Bunreacht na hEireann is available via http://www.google.com/search?hl=en&q=Bunreacht+na+hEireann&btnG=Google+Search )
""All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State"
Nobody has said the natural resources didn't belong to the state, but when the state "sells" the rights to private company then those natural resources belong to that company, same as if W Finnerty goes to his corner shop to buy a loaf of bread.
The bread belongs to the shop owner until he sells it to Mr. Finnerty, then it is the sole property of said Mr. Finnerty!
our elected government are "the shop keeper" since we elected them for that purpose. (running the country!).
If Mr.Finnertys logic was followed to its conclusion, then the state would never allow development of infrastructure, or extraction of minerals.
To "No problem" (at Fri Dec 07, 2007 11:22 above),
Thank you for your point of "fact" (as you view the situation), which appears to me have been taken from some kindergarten or other possibly?
My own opinion on this new subject that you raise (i.e. "running the country!"), is that ALL such environmental matters would be best dealt with under the control of the INTERNATIONAL United Nations Aarhus Convention Agreement, which the Republic of Ireland signed in 1998. (Information on the Aarhus Convention Agreement can be found via the following link: http://www.google.com/search?hl=en&q=Aarhus+Convention+Agreement&btnG=Google+Search )
Unfortunately, our Government has so far failed - for well over NINE YEARS now - to have this international agreement "laid before Dail Eireann": as is VERY clearly required under the terms of Article 29.5.1 of Bunreacht na hEireann (the Constitution of the Republic of Ireland).
It follows on (from the contents of the paragraph immediately above) that our present Government is clearly VIOLATING our Constitution, while at the same time, please note, producing environmental and heritage legislation which also violates Bunreacht na hEireann.
How bad can things get?
Numerous efforts have already been made (by myself) during recent years to have this "core constitutional issue" raised with our senior law officers: including for example with Mr Michael McDowell (Barrister), who of course was "Minister for Justice, Equality and Law Reform" up to the time of our last general election on May 24th 2007. (For further information on some of the efforts made by me in this regard, please see at http://www.google.com/search?hl=en&q=Aarhus%2C+McDowell%2C+Finnerty&btnG=Search )
All that said, I do hope this particular post of mine will not be viewed as a distraction from the efforts being made to help Mr Kennedy: who, as I see things, and without wishing to in any anyway trivialise the awful situation he is in at the present time, is just one of the many, many victims of all the outrageous political, legal, and corporate corruption that is taking place at the present time in the Republic of Ireland: and which is all (as I see things) being powerfully underpinned and supported by our legal profession.
There's also the matter of Article 29.6 of Bunreacht na hEireann which reads: "No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas." Put this alongside Article 29.5.1 which (as W. Finnerty points out) obliges the Government to lay the Convention before Dail Eireann. What does this combination mean?
It seems to me that the Governemnt is obliged to lay the The Aarhus Convention before the Dail. This involves telling the Dail that it exists. It does not require the Dail to debate the convention or to adopt it.
Article 29.6 says that The Aarhus Convention is not part of Irish law until the Oireachtas says so. As the Oireachtas hasn't done this the Convention doesn't in effect exist for the purposes of Irish law and no Irish citizen or organ of Government is legally bound by it.
This doesn't mean that the Convention is a bad idea - it seems to be a very good idea - but there is no legal obligation on the Government (or anybody else) to do anything about it.
The previous poster is absolutely correct.
The most recent and obvious statement of where international treaties (or more specifically international law) come in relation to our domestic legal order was, unfortunately, in the Case of Horgan V An Taoiseach & Ors.
In that case Kearns J. was forcefull in saying that as far as he was concerned the huge troop movements through shannon DID consist of aiding a beligerant under Customary International Law, such laws were only judiciable at the very bottom of the scale. He catagorically said that they come in beneath Constitutional, Statute or Judge made law (common law). In case of a conflict between any one of these then international law looses. In that case he said the State's actions were constitutionally permissable so international law lost.
In relation to international treaties generally, we have a duelist system of law, and though the state sign up to various international treaties and agree to abide by them, it is for the State to determine how we do so (providing so by doing there is not done some injury to the constitution) and the courts will not interfere. The State is only accountable to OTHER STATES who ratify the convention in question.
As for laying the treaties before the Oireachtas, it is merely a niceity and is of no practical use.
RE: Posts at Fri Dec 07, 2007 22:57 & Fri Dec 07, 2007 23:26 above:
=========================================
WHAT IS THE DIFFERENCE BETWEEN SIGNING AND RATIFYING A CONVENTION?
If a state (country) has signed a convention or treaty, it has declared that it agrees with the principles included in the convention or treaty and that it will not do anything to undermine it.
If a state (country) has ratified a convention or treaty, it has also agreed to be legally bound by that convention. From then on it is known as "a state party to that convention".
(Amnesty International)
=========================================
As stated in the e-mail at the following address, and for the reasons provided, our Government has not only undermined the international Aarhus Convention Agreement, but it has made smithereens out of it as well: http://www.constitutionofireland.com/EddieHoltIrishTimesJournalist17January2006/Email.htm
This, unfortunately, is the kind of Government that Tom Kennedy (and many others including myself) have to try and somehow deal with.
And, if I might add, in the strongest terms available to me, our respective situations are not being helped by anonymous contributors to this thread, spouting whatever nonsense comes into their heads from behind the cowardly cover of pseudonyms.
For obvious reasons, you are afraid to put your real names to your false, misleading and nonsensical assertions.
How, I wonder, do you think the destructive and distracting actions you are indulging yourselves in are going to help Mr Kennedy?
Correct me if I am wrong.
Apparently, the land in question was left by will to Mr. Kennedy's sister.
Mr Kennedy believes he has some entitlement to the land and/or has disputed the will.
Mr Kennedy is not the executor of the will (or administrator of the estate) of the former owner of the land.
So what the hell was he doing on the land? I would have thought that, pending a declaration by the court that Mr. Kennedy is entitled to the land or the will being overturned by the court (presuming Mr. Kennedy would then be the beneficiary on intestacy), Mr Kennedy has no business being on the land.
If someone has no legal entitlement, and the only reason he can give for being on the land is that he himself has decided that he is entitled to the land, what option has the court other than committing the trespasser? If he is let out (I understand he is still in gaol) he has let it be known that he will re-enter the land. He is utterly the author of his own incarceration. All he needs to do is to undertake to behave himself.
On a more important point. This is a family dispute. Mr Kennedy is disputing his sister's entitlement. Just because the usual suspects from some off-the-wall group of conspiracy theorists have decided to use Mr Kennedy to further their agenda doesn't change the issue. I would hardly consider that a family squabble over inherited wealth is an appropriate matter for Indymedia - particularly because no attempt seems to have been made by Indymedia to inform us on the no doubt very different view of this issue which Mr Kenedy's sister and the executors of the will must have.
Fully agree with the points made above by justicia
Due legal process needs to be followed here -it is s not unlikely that Tom Keendy is attempting to steal land by forging documents , he wouldnt be the first to try this.
Given the number of times this case has been before the high court, and indeed the supreme court, it is starting to look rather like Tom is his own worst enemy.
I note mr. finnerty does not dispute the accuracy of my statements.
One wonders why'!
Justicia, Observer & Damian are clearly noble, high, minded individuals. They have decided that Tom Kennedy is rightly imprisoned for the last 9 months. It is logical to extrapolate that they agree that he should be kept in prison until he agrees that his purchase of the farm in 1972 did not happen.
I know that repeat postings are not acceptable on this site but since a man's leberty is in question, I am pasting below the facts of this case as already set out.
It is a national disgrace of enormous proportions that Tom Kennedy is in jail since 6th March. A family man in his seventies, supported by his wife, son and brother, has been incarcarated by Judge Olive Buttimer. She has brought him in handcuffs before her on a monthly basis and each time returned him to prison. Tom's CRIME is that he refuses to vacate his Co Tipperary farm that he has farmed continuosly with his family since he bought it in the 1970's.
Judge Buttimer has lost the plot and lost the game. Tom Kennedy must be immediately released to spend Christmas at home in Rossestown, Thurles.
I have in my hand a copy of the sale contract dated 15th Feb 1972 setting out the folio numbers and the consideration of £12000 and a copy of the deposit cheque for £3000 dated February 1972 and a copy of a receipt for £9000 to Thomas Kennedy from Bartholemew Kennedy's solicitor A I Cunningham dated 4th April 1972. These documents evidence the fact that the late Bartholomew Kennedy sold the disputed lands to Thomas Kennedy in 1972. Bartholemew by all his subsequent deeds and actions and those of Thomas Kennedy clearly indicate that a satisfactory change of ownership of the lands in question had transpired between the brothers.
I also have in my hand a copy of the last Will & Testament of the late Bartholemew Kennedy who died in 2001. The will does not mention any land and does not have a residue clause. the pertinent part is that it directs the executors, solicitor A I Cunningham and his brother in law, Eoin Harrihill, publican, to "divide all of my property both real and personal between my two sisters Maura Larkin and Joan Harrihill"
All of the above documents were considered by the Circuit Court and on Appeal, the High Court who incredibly concluded that Thomas Kennedy's lands were covered by the above will and that Thomas Kennedy was to be evicted and the lands be handed over to Eoin Harrihill.
Not suprisingly Tom Kennedy refused to leave his land and an injunction was sought to evict him. At the hearing, Judge Olive Buttimer gave Thomas Kennedy's solicitor Paddy Cadden, leave to come off record. With Tom thus without representation, she handed down an injunction to have Tom removed from the lands. In the courtroom Tom understandably protested this state of affairs.
That is the core of the issues that has Thomas Kennedy in prison since last March. He was initially sent to prison by Judge Buttimer for contempt because she would not let him address the court.
What has followed is a series of hearings where on a monthly basis Thomas is brought in handcuffs to Judge Buttimers court Each time Tom has behaved with impeccable dignity and has quietly read a prepared and well researched legal paper citing the issues and various good precedents relating to loss of liberty and illegal detention. On each occasion she ignored every thing he said, asked him bluntly would he purge his contempt and when he declined she sent him back to prison. In recent hearings she is now in "good cop" mode, beseeching him to " be reasonable" and give up his land. As media and supporters now attend these hearings she is now saying that she is keeping him in prison for his "own safety". This is nonsense. If it is true then why is Tom's wife and family not also be in prison for their safety. NO this is about a judge who has lost the run of herself an arrogant highly paid public official bullying a defencesless man.
A judge is Ultra Vires in arbitrarily imprisoning a person "for their own safety" without any supporting Garda or psychological report.
This is a GROSSLY ILLEGAL DETENTION to cover up for a GROSSLY FLAWED LEGAL SYSTEM.
Tom is in his late sixties, he is in frail health and the whole sorry mess is bring Ireland inc into disrepute costing tax payers MILLIONS.
Its time for people to get up and speak out.
As this thread illustrates, the Thomas Kennedy Saga may be very complex. Addressing the issue at this point it is clear that "solicitor cock up" is what has Thomas now in prison. The "cock ups" include the following:
1. I A Cunningham, the solicitor who dealt with the sale of the land from Batt to Thomas in 1972, did not register the change of ownership with the Land Registry. In fact the land was still in their mothers name at the time. It is BAD PRACTISE to delay registration "sine dei". It may be common solicitor practise but it is a BAD PRACTISE as tragically illustrated by this case.
2. I A Cunnigham, the solicitor that drew up Batt's will, and was an executor to the will, did not precsely specify the property covered by the will. It is BAD PRACTISE not to specify details of any property covered by a will. The purpose of going to a family solicitor is that this will be done. It wasn't done.
If either of the above had been done correctly, Thomas, and the Kennedy family,would not be in the position they are in today.
The solicitors colleagues, including those on the bench, would rather see Tom rot in prison indefinitely than deal with the "cock -up" by one of their own.
HE MUST BE OUT FOR CRISTMAS
So now I get it.
A massive conspiracy involving both High Court and Circuit Court judges to do poor farmer Kennedy out of his lawful entitlements.
I can imagine it now. A demonic cabal of judges conspire in some secret location to deprive an obscure farmer of his land and to pervert the course of justice - presumably just for laughs. And this conspiracy, if it is a conspiracy, can have no other motivation, because these alleged judicial conspirators have nothing personal to gain from their diabolical machinations.
On the other hand, it might just be that the various judges, after seeing all the documentation and hearing all the evidence presented by both sides in two different courts, came to a different conclusion from that reached by Mr Finnerty. But what do mere judges know anyway compared to the massive jurisprudential intellect of Mr. Finnerty?
Of course, it might be that the documentation presented by Mr Kennedy is not what he says it is, or that it might not support the assertion that Mr K purchased the land. On the other hand, if Mr K is a victim of incompetent conveyancing or fraud he can sue the solicitor responsible. That is why solicitors carry professional indemnity insurance. If he were a victim of professional negligence he would then be indemnified by the solicitor's insurer or awarded damages in compensation for the loss of his land. This is commonplace and the courts have no difficulty in awarding damages against errant solicitors.
However, I suspect that poor Mr. K has convinced himself that he is entitled to something that rightly belongs to someone else. The Finnerty gang has homed in on him like vultures to use him in furtherance of their agenda of conspiracy and victimization. They my even have had the effect of encouraging the unfortunate man to paint himself into a corner. If Finnerty and co. have some influence over Mr. K. they should use it to persuade Mr. Kennedy to purge his contempt.
To: "justicia", "Observer", "Damien", "man tuesday", "No problem", "aristotle", and "digger",
Despite what "Observer" states (at Sat Dec 08, 2007 22:35 above) I have, as far as I can remember, always tried to reply to your posts.
However, and as I expect happens to everybody at times, my posts are sometimes deleted by the Indymedia (Ireland) editors.
As I trust you'll all understand, I have no absolutely no control over the decisions of the Indymedia editors.
With reference to "Observer's" comment on the "Shannon Airport" situation (at Fri Dec 07, 2007 23:26 above), I wish to point out that Article 28.3.1 of Bunreacht na hEireann (Constitution of the Republic of Ireland) reads as follows:
"War shall not be declared and the State shall not participate in any war save with the assent of Dail Eireann".
Did the State get the "assent of Dail Eireann" for participating in the unlawful March 2003 invasion of Iraq?
Also, I did make a "general" type of rely (of sorts) to all of you yesterday (i.e. Saturday, December 8th, 2007). Though this "general overall reply" of mine (to all of you) appears to have been deleted from the Indymedia (Ireland) site, a copy of it can be viewed at the following location: http://www.europeancourtofhumanrightswilliamfinnerty.com/BACKUP/8Dec2007/Post.htm#comment215087
My general overall reply to all of you of yesterday (at the Internet address just above) forms part of the comment titled "Answer to Vincent Browne's Question". (If any of you have any questions relating to it, please do not hesitate to contact me, and to correct me where I might have made mistakes of any kind; I would not wish to misrepresent you in any way.)
Finally, I would like to end by repeating the question I asked at "Sat Dec 08, 2007 14:57" above:
"How, I wonder, do you think the destructive and distracting actions you are indulging yourselves in are going to help Mr Kennedy?"