To plead, or not to plead: that is the question.

When we hear about a serious crime that happened locally or maybe in the news, we automatically want to know, what were the circumstances of the crime? Who did it? Will they be caught? What will their punishment be?

It’s also a normal reaction to jump to conclusions of guilt, when you hear parts of the story and start piecing it together…‘their partner has been arrested’, ‘a male in his 30’s has been charged’. You assume guilt, even though, we know we’re meant to do the opposite and find out all of the facts first. For all we know, the male in his 30’s who was charged, may very well have been in Eddie Rockets, chomping down on a cheese please and an Oreo milkshake, when the crime occurred.

I have been asked many times, “How can you defend that sort of lad?”  That is something that most criminal defence solicitors ask themselves, but if you can’t see beyond the charge and recognise that there might not be a case to answer, then it’s time to take up something else. It is a human and constitutional right to be permitted a defence and indeed for fair procedure to prevail no matter how serious the allegation. The basic rule of law demands that a person or company be afforded due process.

Defence solicitors are not Judge’s or jurors. We are there to peruse the evidence and offer the client our advices to permit them to make an informed decision. Whether a client is innocent or guilty is a matter for the Judge or Jury and is not something that a criminal defence lawyer should concern themselves with.

On the hugely popular TV series ‘Making a murderer’, the subject Steven Avery - a Wisconsin man who served 18 years in prison for rape and attempted murder, before being exonerated by new DNA evidence, is a prime example of justice gone wrong. Could this happen in Ireland? Or, indeed, have similar events occurred?

Wrongly convicted: Miscarriages of justice in Ireland

FEICHIN HANNON Granted a certificate of miscarriage of justice after his conviction for sexual assault in 1999 was quashed when the complainant admitted she had invented the allegations.

NORA WALL A nun accused of rape following false allegations by two women who later admitted lying, Wall served four days of a life sentence in 1999 before her conviction was quashed. The trial took place against the background of widespread revelations about clerical child abuse, which may have influenced the jury. In 2005, Wall was declared the victim of a miscarriage of justice.

Evidence from all countries is that mistaken identification is the most common reason for wrongful convictions, as honest witnesses often make mistakes. Think about that. Imagine being accused of a crime because you looked like someone who committed it, and you were in the wrong place, at the wrong time? Steven Avery knows all about it.

When it comes to justice, we all have our jobs to do in the legal game. When working with An Garda Síochána, I think an appreciation of each other’s roles is crucial. It is important to understand each other’s responsibilities and duties. From the lawyer’s perspective taking into account a suspect’s right to a fair trial, and for Gardai, fairly representing the interests of victims/witnesses of crime and society in general.

It was the late, great Martin Luther King Jr who said “Injustice anywhere is a threat to justice everywhere”. Although, by its very nature, the work that criminal lawyers do is complicated and hard to understand, it is vital in order to maintain justice and ensure fair outcomes for anyone up against legal charges. Criminal defence lawyers are simply doing their duty to defend a citizen whose rights are protected and cannot be easily taken away.

 

 

 

 

 

Personal Injury – separating the accident prone from the accident affected.

You would be forgiven in judging newspaper headlines relating to personal injury claims, and feeling that some awards given might seem overly generous to what you think sounds like a hyped up injury. The good news is, there has been a crackdown on this compensation culture and this clampdown has been a welcome change for businesses, organisations and private citizens, crippled with ever-increasing insurance premiums. With that being said, it’s important not to let scepticism or scrutiny, deny the justice of the genuine claimants who should be compensated and justly so.

Cases can vary hugely in there severity - loss of life, loss of limbs and loss of mobility are obviously among the most serious before the courts but the range of issues for some victims might not be as obvious or as easy to work out as you think it would be. For anyone who is unable to work due to an injury and those who have expensive and ongoing medical needs, it is essential to pursue a personal injury claim using a solicitor with experience in the field, so that their chances of success are maximised and fairly compensated for.

The first thing to do is find out if you have a case. The Injuries Board is the first route that you must follow when seeking compensation for your personal injuries.

It is a statutory body which provides independent assessment of personal injury compensation for victims of workplace, motor and public liability accidents. It does not cover psychological injury or assess personal injury claims that are the result of medical negligence. Being involved in an accident that wasn’t your fault and becoming ill or injured as a result can lead to an array of emotional and financial problems - instructing a solicitor to help with it, can get the best outcome within your circumstances.

Time is of the essence. In general, you have two years from the accident or incident you are claiming for to make a claim through the Injuries Board, or through the courts.

If an insurance company contacts you immediately after an accident, do not settle before seeking legal and medical advice. You may not be fully aware of your legal rights and entitlements, or even have an accurate picture of your injuries or suffering straight away.

Legal and medical advice should always be sought in order to receive appropriate compensation for your current and future needs as a result of the injuries you have experienced.

Medical care is a must. Seeking medical attention after becoming ill or being injured through no fault of your own, is not just important for your own personal welfare, this documentation and a doctor’s reports will be beneficial to help prove your claim. Your doctor will be required to fill out a medical report if you progress with your claim.   

Assessment. As previously stated, the clock is ticking and you have 24 months to lodge your claim with the Injuries Board. Once this is done, the clock is put on hold and the Injuries Board will begin to assess a claim. They will write to the other party who then have 90 days to consent or decline to an assessment. Failure to respond is deemed consent.

If after 90 days the other party declines to have the claim assessed by the Injuries Board, then an authorisation will issue. It is important to note that upon the issuing of this authorisation, time begins to run again. That is why it is important to take legal advice so that you do not run the risk of becoming statute barred.

Medical Assessment. If the Injuries Board do not assess your claim within nine months they have the authority to extend the time to fifteen months in which to assess the claim. They must notify you of this.

Claims are assessed using all the medical evidence, based on their own independent medical reports, and your own doctor’s medical report when making their award. The level of compensation awarded for particular injuries is based on what’s known as the book of quantum and any out of pocket expenses you have incurred (doctor’s fees, physiotherapy, loss of earnings etc.) should be included.

Time limit to accept or reject the award. Once the award is decided by the Board it is communicated to you and the other party. You have 28 days to accept or reject the award and if you do not reply to the Board you are deemed to reject the award and the same rules apply for the other party.

Accepting or rejecting the award. If you and the other party accept the award, the claim is settled and an order to pay is provided to the other party. This document, which is copied to you, has the same effect as a court judgment and proceedings may be issued on foot of it, in the event of non-payment. If it is rejected by you or the other party, you are entitled to go to court immediately.

Making personal injury claims is everyone’s right under the law, and if successful, the award will go a long way towards helping you get your life back on track. If you think you or a loved one has a case, protect your rights by talking to a solicitor today.

 

 

 

 

Employment law - The issue of a fair/unfair dismissal.

Have you ever been on the receiving end of the words ‘you’re fired’? Well, you’re in good company. The renowned academic Truman Capote, business guru Mark Cuban and a woman who needs no introduction, Oprah Winfrey, have all been fired. The latter, was deemed ‘unfit for television news’. In most circumstances where you have just been dismissed, it can be an extremely difficult and turbulent time. When an individual is dismissed, they are protected under The Unfair Dismissals Acts of 1977 to 2015. It is worth noting, that when I say protected, I do not mean that this legislation protects you from being dismissed - rather, it allows you to have recourse and redress if you have already been dismissed.

Firstly, in order to qualify for unfair dismissal, there must be an actual dismissal. Secondly, you must have at least 12 months service, or failing that you must have been (or believe that you were), dismissed on one of the nine grounds of discrimination i.e. gender, civil status, family status, age, disability, religious belief, race, sexual orientation or indeed membership of the travelling community. An individual is also deemed to be unfairly dismissed, if the dismissal relates to trade union membership, pregnancy or anything attributed to maternity leave. This list is non exhaustive and legal advice should be obtained to avoid ambiguity.

The Work Place Relations commission is the adjudicating body which deals with unfair dismissals. You have six months from the date of your dismissal to enter a complaint with the aforementioned commissions and failing that, you run the risk of being statute barred. There are exceptions where they will extend it to twelve months, however, these need to be exceptional circumstances and I would strongly advise that you speak to your solicitor when considering that.

Constructive dismissal is where you end your contract of employment because of the actions of your employer. Employees who can prove constructive dismissal can be returned to their jobs under their original contracts, but more often receive compensation for earnings lost due to their dismissal. Constructive dismissal is complex and should only ever be considered as a last resort when you feel your employer is not going to honour the terms of your contract. In a case for constructive dismissal, it is up to the employee, not the employer, to show that they had exhausted all avenues open to them, before resigning.

In order to successfully claim constructive dismissal, it would have to be a situation where you can reasonably say your job (as described in your contract) has already been terminated. This can be for a number of reasons:

  • Your employer may be breaching the terms of your contract
  • Your employer has indicated through their actions that they don’t intend to keep honouring your contract
  • Your employer has acted unreasonably in a way serious enough to justify your resignation.

The other side of the coin is if you are an employer and have just dismissed somebody. Under The Unfair Dismissals Acts of 1977 to 2015, the qualifying dismissal is presumed unfair unless it can be justified under certain grounds. It is weighted in favour of the employee because dismissal can have such a major impact on the life of the employee. I believe that employers must go above and beyond in order to protect themselves.

There are three hurdles which you must cross.

  • You must demonstrate that the dismissal was based on one of the fair grounds for dismissal covered under Irish Employment law – capability, competence, qualifications, conduct, redundancy, contravening the law, or other substantial grounds.
  • You must be able to prove that you followed fair procedures and that you acted fairly.
  • You must avoid any of the automatically unfair reasons for dismissal.

The common thread running through all of these grounds is, you must follow fair procedures. You will lose the protection offered by a fair ground if you fail to follow fair procedures when dismissing an employee. Essentially, an employee should have a process that they can follow, should they have a grievance with their employer, or indeed, any other member of staff.

If it is a case that you are a small business, there are private entities who offer a grievance procedure, which would protect you and your business going forward. If it is a situation whereby an employee’s behaviour has become unprofessional and indeed disruptive to your business, you must follow all procedures before dismissing the employee. What I mean by that is, you should not ever dismiss an employee on the spot but rather engage in a grievance process. Having an independent outside mediator attend for the purposes of resolving the situation, is always advisable too.

It was Theodore Roosevelt who said, “Far and away the best prize that life has to offer is the chance to work hard at work worth doing.” If you are an employer or employee who feels they have not had that chance, due to complications arising from either side of the relationship, you should protect your rights and talk to a solicitor today.

                 

 

 

Mortgage arrears – when money really matters.

Most of us look forward to Christmas and all the festive fun it can bring, but we also know it can put even more financial pressure on some, particularly those already struggling to pay their bills. The biggest bill for most, being their mortgage. In fact, the Central Bank revealed that there were 87,796 accounts in mortgage arrears at the end of June this year - add the cost of Christmas into the mix for these families, and things suddenly don’t seem quite so festive.

For anyone worried about mortgage payments, or your bank is taking you to court over your mortgage arrears, there is free financial and legal advice available for anyone who needs it. Abhaile and MABS are a few of the fantastic services that can help mortgage holders in arrears to find the best solutions, and to keep them in their own homes, wherever possible. For some cases, court proceedings can even mark the beginning of a positive resolution process.

What to do if you receive a court summons?

Lenders can be aggressive in their communications when a borrower has been missing mortgage repayments or not paying the full repayment amount each month. It can start to feel very overwhelming and very stressful, very fast. Taking action and steps to resolve the issue, will help you feel back in control.

If you do get summonsed to court, the first thing to do is to get independent financial advice from the Abhaile service via your local MABS office or the MABS helpline (0761 07 2000). If you haven’t already discussed options with your lender, make contact with them to explain your situation – believe it or not, the banks are open to making alternative arrangements regarding repayments. The Central Bank has a Code of Conduct for Mortgage Arrears (CCMA) and lenders must work with you to help get you back on track with your mortgage.

Can they take my home?

Any borrower in fear of losing their home should know the legislative protections available to them. For example, the court can postpone repossession proceedings for up to two months, to allow the borrower to explore the possibility of putting in place a Personal Insolvency Arrangement under the Land and Conveyancing Reform Law, 2013.

A Personal Insolvency Arrangement or PIA, is a court-approved agreement between you and your creditor. It allows for the restructuring and write-off of debt, with the aim of keeping you in your home where possible. Borrowers can access the services of a Personal Insolvency Practitioner for free via Abhaile.

Cooperation is key. If you do not cooperate, you are at greater risk of losing your home, as you will lose the protection of the CCMA.

Do I need to attend court in person?

If your name is on a court list, it is always my advice to show up, if possible. It shows respect for the court and it’s also an opportunity for your side of the story to be heard. As I said at the start, it could also be an opportunity for a resolution. Proof of repayments or efforts made to pay towards them, will go a long way in fighting your corner in court too.

Do you need a Solicitor?

It is up to you – some of the more complicated cases definitely benefit from legal advice. Under the Abhaile scheme, you can have a free face-to-face meeting with a solicitor (a Duty Solicitor), who will explain your legal situation and advise you how best to resolve it. If you do not have a solicitor for court, there are Abhaile Duty Solicitors and Court Mentors offering free support at every Circuit Court sitting too.

The court has issued a repossession order. What happens now?

In April to June this year alone, 343 homes were repossessed over mortgage arrears. In these cases, a resolution had not been reached after repeat hearings, and the court ruled in the lender’s favour, giving permission to repossess these houses. If this happens, the court may grant a “stay”: a grace period allowing you to stay in your home for three to six months before the lender is permitted to take possession of it. After a repossession order is granted, you can still appeal the ruling to a higher court, or make contact with your bank to see if alternative agreements can be reached.

It’s never too late to try and come to a resolution. For anyone in fear of fear of losing their family home, the services mentioned here, can help and offer support. Especially, if needed, in the run up to Christmas. Abhaile is jointly coordinated and funded by the Department of Justice and Equality and the Department of Social Protection. MABS, the Insolvency Service of Ireland, the Legal Aid Board and the Citizens Information Board are working together to administer the Abhaile scheme. These initiatives have never been more important, and combined with national reforms to make improvements to Ireland’s housing crisis, can make a real difference to the lives of our neighbours, who are just trying to pay their ‘Abhaile’ bills.

 

 

Cyber safety – kids and crime

There has been much discussion and debate around the issue of kid’s and their safety online - there have even been proposed laws to make it illegal for retailers to sell an internet-enabled device to a child younger than 14. Whether you agree with this or think it’s a step too far, there is no denying that it is increasingly important for parent’s to be aware of their kid’s online activities, the apps they use and how they engage with them. Personally, I think it depends on the kids and if the parents are happy for them to use smartphones, but be smart about it! Supervision and education are key. The internet and technology are here to stay.

Kids aren’t going to suddenly become safe online at a certain age. Parents need to be part of the process and need to empower their kids to use the internet and apps in a safe, informed and appropriate way. This is not just for their own education or development, it could even keep them out of getting in serious trouble with the law.

I have had cases, and they are becoming more common, where children are sharing extremely inappropriate images of themselves (otherwise known as sexting - taking or sharing explicit images or video using a mobile phone), and not realising that they are in fact, in possession of and distributing child pornography, as per The Child Trafficking and Pornography Act, 1998, which has recently been amended by The Criminal Law (Sexual Offences) Act, 2017.

Help them understand the law. This includes:

  • Possessing, taking or distributing images of someone who is under the age of 18 is illegal in Ireland.
  • This could even be argued if the person in the photo is a minor, and the one distributing, in possession of or taking the photographs.
  • If a child's mobile phone contract is in his or her parent's name, then the parent can be liable for what the phone is used for, and any indecent material that is saved or sent from it.

In 2017, CyberSafeIreland reported that:

  • Despite age restrictions of 13 and older on many social media services, the vast majority of children under 13 that they met already had a significant online presence.
  • Snapchat and Instagram remained the most popular instant messaging and social media apps along with Musical.ly YouTube, Viber and WhatsApp amongst the 628 children surveyed.
  • 22% of the children surveyed were in online contact with strangers. Most of these (14%) reported that they were in contact at least once a week and 6% of this number every day.
  • Nearly a third (32%) of children surveyed have either never spoken to their parents/guardians about online safety or have not done so in the last year.
  • In almost two-thirds (64%) of the workshops with 8-10 year olds, at least one child was playing adult rated games.

These are, of course serious and worrying issues for parents - but denying access to the internet won’t make these problems disappear. Instead, support and safeguard your kids with their online use. Many parents feel more digital education should be taught in schools and although a very good idea, greater parental responsibility is needed too. It’s a much more realistic and effective approach than new laws or regulations.

Put the power back in your hands. For any parents wondering what they can do, check the parental controls on devices. These are technical settings that you can use to restrict or control content or activities for your child on a particular app, device or network. As the old phone campaign told us, ‘It’s good to talk’, but in a very different context to what they had meant then. 'It's good to talk' to your kids about how they use their smartphones, now. Once they press the send button, they will no longer have control of the image or the consequences of sending it. And unlike Las Vegas - what happens on the Internet stays on the Internet.

For more, check out CyberSafeIreland at http://cybersafeireland.org/