THE LAW REFORM COMMISSION
AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ
FIFTEENTH ANNUAL REPORT (1993)
The Law Reform Commission
Ardilaun Centre, 111 St Stephen's Green, Dublin 2
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© Copyright The Law Reform Commission 1994
First Published August 1994
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This Report, which covers the period from 1 January 1993 to 31 December 1993, is addressed to the Attorney General pursuant to section 6 of the Law Reform Commission Act, 1975.
The following were the Commissioners in office in 1993:
At the beginning of 1993 the staff of the Commission consisted of the Secretary, a Research Counsellor, four Research Assistants and four Clerical Assistants.
Mr John Quirke is Secretary to the Commission.
Dr Alpha Connelly, B.A., LL.M., D.C.L., is Research Counsellor to the
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At the start of the year, Ms Emily Egan, LL.B., B.C.L. (Oxon), Ms Cliona Kimber, LL.B., M.A., LL.M., Barrister-at-Law, Mr James Kingston, LL.B., M.A., LL.M., Barrister-at-Law and Ms Julianne O'Leary, B.A., LL.B., Barrister-at-Law were Research Assistants. They were succeeded in September by Ms Nuala Egan, B.C.L., LL.M. (Lond.), Mr Jonathan Newman, LL.B., LL.M. (Cantab.) and Ms Lia O'Hegarty, B.C.L., LL.M. (Mich.).
The clerical staff were Ms Martina Burke, Ms Kathleen Browne, Ms Mary Teresa Faherty and Ms Martina McGuire.
Functions of the Commission
The functions of the Commission are to keep the law under review, to undertake examinations and to conduct research with a view to reforming the law, and to formulate proposals for law reform. After its establishment, the Commission prepared a programme for the examination of different branches of the law, which was subsequently approved by the Government. Copies of it were laid before both Houses of the Oireachtas on 4 January 1977.
In addition to reporting on matters in the programme, it is also the function of the Commission, at the request of the Attorney General, to undertake an examination of and to conduct research in relation to any particular branch or matter of law whether or not it is included in the programme, and if so requested, to formulate and submit to the Attorney General proposals for its reform.
By 31 December 1993, the Commission had formulated and submitted to the Taoiseach or the Attorney General 46 Reports containing proposals for reform of the law, as well as 11 Working Papers, 8 Consultation Papers and 14 Annual Reports.
Requests by the Attorney General
On 6 March 1987, the then Attorney General requested the Commission to examine and research certain areas of law and submit to him proposals for reform in relation to the following matters:
In January 1989, the then Attorney General requested the Commission to undertake an examination of and conduct research into the law of defamation and contempt of court, and to formulate and submit to him proposals for reform in relation to these areas.
In March 1992, the Attorney General made a similar request in respect of the law relating to occupiers' liability.
Reports on Topics in the Attorney General's Request
Between 1987 and 1992, the Commission published the following Reports on topics contained in the Attorney General's Request:
Reports on Topics in the Commission's First Programme for Law Reform
Between 1987 and 1992, the Commission published the following Reports on topics contained in the Commission's First Programme:
A full list of the Commission's publications is to be found in the Appendix.
Consultation Papers in 1993
In 1993 the Commission published the following Consultation Papers on topics
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referred to it by the Attorney General:
Consultation Paper on Sentencing; and
Consultation Paper on Occupiers' Liability.
In March 1993, the Commission published a Consultation Paper on Sentencing.
The Attorney General asked the Commission to examine the law relating to sentencing policy. As the Whitaker Committee of Inquiry into the Penal system had reported less than two years previously, it was clear that the Commission's brief was not to examine the entire system but to examine in depth the law and policy involved in the sentencing decisions arrived at by judges and to explore ways of achieving consistency in sentencing.
Among the Commission's provisional recommendations were that:
The Commission invited comments generally on its provisional proposals, and it specifically sought views on the following:
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A meeting with Judges of the Circuit Court was held on 14 June 1993 and with Judges of the District Court on 14 July 1993. In addition, a General Seminar on Sentencing was held in the Commission's offices on 19 June 1993 which was attended by a wide range of people – academics, practitioners, TDs, representatives of various public interest groups and social workers. The Commission wishes to thank all those who attended and made their views known and also to thank all those who submitted written comments on the topic.
In referring the area of occupiers' liability to the Law Reform Commission, the Attorney General requested that it be given priority. In June 1993 the Commission published its Consultation Paper on Occupiers' Liability to stimulate discussion on this controversial topic in advance of the Commission's final report.
The problems considered
Among the Commission's provisional recommendations were:
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The Commission requested written submissions from interested bodies and members of the public. Many helpful and constructive written submissions were received, mostly from occupiers and recreational associations which displayed a striking unanimity of approach. The Commission would like to thank those who took the trouble to send in written submissions, which were of considerable assistance.
A Seminar on Occupiers' Liability was held at the Commission's offices on 19 November 1993 attended by academics, representatives of landowners' groups and representatives of landusers' (e.g. recreational) groups. The Seminar was divided into three short sessions: “Recreational Use of Land”, “Children” and “General Matters”. The Commission would like to thank all those who attended.
Work then began on a final Report on the topic, with a view to its publication in 1994.
Non-Fatal Offences against the Person
The law relating to non-fatal offences against the person, encompasses crimes of violence and crimes against personal liberty, and was among the topics covered by the Attorney General's reference of March 1987. Work continued on this topic during the year with a view to publishing a final Report as early as possible in 1994.
One area the Commission proposed for examination in its first programme was the mental element in crime and criminal responsibility, including the defence of intoxication. Work continued on this latter topic throughout the year and by the
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end of 1993 a draft Discussion Paper was being finalised.
Private International Law
The First Programme for Law Reform contained several proposals as to private international law, including the examination of some Conventions prepared by the Hague Conference on Private International Law.
The Commission examined current practice in Ireland with regard to the verification of foreign public documents with a view to ratification of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. The Convention brings about a simplification of formalities involved in legalisation by providing for a new system of verification by certificate.
The Commission proposes to circulate a Discussion Paper in 1994.
Land Law and Conveyancing Law
The Working Group on Land Law and Conveyancing met on 11 occasions during the year and devoted the majority of its meetings to reviewing the requirements for the coming into effect of a valid contract for the sale of an interest in land following the decision of the Supreme Court in the case of Boyle v Lee and Goyns (1992) ILRM 65. Some concern was expressed that one effect of the judgment would be to make it more difficult for parties to conclude a binding agreement for the sale of land without professional assistance.
The Group had earlier reviewed the operation of the English Law of Property (Miscellaneous) Provisions Act of 1989 which followed on the Report of the Law Commission, Transfer of Land – Formalities for Contracts for Sale Etc. of Land (Law Com. No. 164). The 1989 Act provided that contracts for the sale of interests in land could only be made in writing and by incorporating all the terms the parties had expressly agreed in one document or, in the case of a contract formed by exchange, in each of the exchange documents. The Working Group had earlier expressed doubts about the wisdom of the principal provisions of the English Act but reopened discussion on the matter in the light of the Boyle v Lee and Goyns judgment.
The initial view taken by the Working Group was that it should explore the possibilities of preparing a statutory set of conditions of sale which would automatically attach to any binding, but not formalised, agreement for the sale of an interest in land. This has proved a lengthy and difficult exercise and was not completed before the end of the year.
Among the other topics which the Group considered during the year were encroachment by a lessee on adjoining property and the nature of the interests held by vendor and purchaser in land during the period between the coming into
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effect of a contract for the sale of that land and the completion of the sale.
In its First Programme for Law Reform (1976), the Commission undertook to review a number of aspects of family law. The Commission has already submitted to the Attorney General 13 Reports which relate to family law. The Commission considered that the most important aspect of family law not yet examined was the procedural question of the best type of court structure appropriate to family law. Having considered the observations of the Working Group on Family Law chaired by Commissioners Gaffney and Duncan, the Commission began to formulate a Consultation Paper on Family Courts with a view to its publication in 1994.
Contempt of Court
The Commission up-dated and adjusted its Draft Report on Contempt of Court in order to take account of a number of highly pertinent decisions of the High Court and Supreme Court during 1993. The Report is due for publication in 1994.
Among the requests made by the Attorney General in 1987 was a request for the Commission to consider the law relating to compensation for personal injuries cases, including, in particular, provision for periodic payments of damages, the making of provisional awards and the limitation period in cases of latent personal injuries. The latter aspect of that reference was addressed in 1987 in Report on the Statute of Limitations: Claims in respect of Latent Personal Injuries (LRC 21–1987).
The Commission is now addressing the law on structured settlements, i.e. the law on compensation for personal injuries in so far as relates to (i) periodic payments of damages and (ii) provisional awards.
A Discussion Paper on Structured Settlements was circulated to experts in August 1993. Written submissions were then received in response and considered. It was decided that further consultation with experts was necessary as views were fundamentally divided.
The Commission commenced its review of the law of privacy in 1992 with a view to considering protection of privacy under the common law, statute, the Constitution and international law.
The Commission decided to focus first on the area of personal privacy as threatened by interception of communications and surveillance. The move
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towards an information-based society and the rapid progress of technology have created unforeseen possibilities for intrusion into the personal life of the individual. Hence the need not only to reform extant law but to fashion new legal responses to these very new threats. Work is continuing on this topic.
The Commission is exploring the question as to whether a policy of plain language should be adopted in Ireland. Many common law jurisdictions have done extensive work in the area of plain language and the law.
The Commission decided to focus on plain language in legislation and work is continuing on the preparation of a Discussion Paper on this subject.
Among the proposals made in the Commission's First Programme for Law Reform (1976) which was approved by the Government (1977) was a proposal that the Commission examine the question of establishing a uniform procedural system to govern the many different kinds of licences required by law for various activities, their making and processing, the decisions to grant or refuse them and the hearing of appeals. Research began on this vast topic in 1993, with an initial focus on the various types of intoxicating liquor licences.
Criminal Law (Sexual Offences) Act, 1993
The reforms effected by the Criminal Law (Sexual Offences) Act, 1993 are based on various recommendations of the Law Reform Commission. In particular: sections 2–4 of the Act follow, with regard to homosexual offences against children, some recommendations of the Commission contained in its Report on Child Sexual Abuse (LRC 32–1990); section 5 substantially implements several recommendations of the Commission in its Report on Sexual Offences Against the Mentally Handicapped (LRC 33–1990); and the reforms contained in the remaining sections of the Act (sections 6–14) are based mainly on recommendations from the Commission's Report on Vagrancy and Related Offences (LRC 11–1985).
Criminal Justice Act, 1993
The Criminal Justice Act, 1993 follows recommendations as to victim compensation contained in the Commission's Reports on Receiving Stolen Property, (LRC 23–1987), on Rape and Allied Offences (LRC 24–1988) and on Malicious Damage. (LRC 26–1988).
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Criminal Justice (Public Order) Bill, 1993
The Criminal Justice (Public Order) Bill, 1993 substantially enacts many recommendations made by the Commission in its Report on Vagrancy and Related Offences (LRC 11–1985) as well as its Report on Offences Under the Dublin Police Acts and Related Offences (LRC 14–1985).
Criminal Justice (No.3) Bill, 1993
Parts II, III, IV, VI and VII of the Criminal Justice (No.3) Bill, 1993 take account of various recommendations made by the Commission in its Report on The Confiscation of the Proceeds of Crime (LRC 35–1991). Additionally, Part IV also takes into account recommendations of the Commission in its Report on Receiving Stolen Property (LRC 23–1987).
Landlord and Tenant (Amendment) Bill, 1993
The Commission's Report on Land Law and Conveyancing Law: (5) Further General Proposals (LRC 44–1992) recognised that the Landlord and Tenant (Amendment) Act 1980 needed to be amended in so far as it confers on business tenants of three years' continuous business occupation the right to a thirty-five year lease. The Landlord and Tenant (Amendment) Bill, 1993, a private member's bill, proposes such amendments but differs from the precise solutions proposed by the Commission.
Matrimonial Home Bill, 1993
Sections 18, 20 and 21 of the Matrimonial Home Bill, 1993 (which were not the central provisions of the Bill) derived from a draft bill proposed by the Commission in its First Report on Family Law (LRC 1–1981), a report dealing inter alia with the question of matrimonial property.
Prisons and Detention Centres
Through September 1993, the President and the Research Counsellor visited all prisons and some special schools in the State. Additionally, in November 1993, they visited both the Prisons Section and the Probation and Welfare Service of the Department of Justice. These visits were undertaken in the context of the Commission's work on sentencing policy.
In this regard, the Law Reform Commission wishes to thank the Governors, prison staff, prison inmates, Probation Officers and Department of Justice officials for their co-operation and assistance.
French Law of Privacy
In the context of the Commission's ongoing work on privacy, and in particular
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with a view to broadening its comparative research to include the study of European civil law systems, the Research Counsellor spent a week in Paris in June 1993 where she researched the protection of privacy in French law. As well as doing intensive library research, she visited the French Ministry of Justice, the National Commission for Control of Security Interceptions and the National Commission on Freedom and Computerised Data, and gathered a large amount of relevant material and information which was unavailable in Ireland.
The Law Reform Commission would like to express its gratitude to the various officials who met with Dr Connelly, to the Irish Embassy in France for arranging the visits, and to the French Government for funding the trip in part.
Hague Conference on Private International Law
Professor Duncan attended the 17th Session of the Hague Conference on Private International Law from 10 to 29 May 1993, at which two Commissions were constituted, the first to consider general affairs and the second to complete work on the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption. Professor Duncan continued throughout to work as a member of the drafting committee for this Convention. The Convention was examined in two Plenary Sessions before being unanimously approved on 28 May 1993. Thirty-six member States of the Hague Conference, thirty non-member States and seventeen inter-governmental and non-governmental international organisations were represented at the Plenary Sessions. The Final Act was signed on 29 May 1993 in the Peace Palace.
Commissioner Buckley attended the fourth session of the Committee of Experts considering the Draft Convention on the Return of Stolen or Illegally Exported Cultural Objects under the auspices of UNIDROIT which was held in Rome between 29 September and 8 October 1993.
Significant progress was made up on the Draft Convention and subject to clarification with the European Union on how certain provisions of the draft Convention might be affected by the operation of Regulation no. 3911/92 of the Council of the European Communities on the Export of Cultural Goods and of Council Directive 93/7/EEC on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State, the draft Convention is ready for presentation to a Diplomatic Conference the purpose of adapting the Draft Convention, which is presently scheduled to be held in early 1995.
Library and Offices
The Commission decided to rationalise its library and a computerised cataloguing system was introduced. It had never been intended that the library would resemble a complete law library; rather the policy is to acquire books according to the research needs at a particular time. However, due to the increase in legal
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publishing in Ireland as well as the increased need for awareness of the obligations of European Union membership, the library collection has expanded in recent years to such an extent that its proper organisation became crucial. The new system will save time and make legal research more efficient at the Law Reform Commission.
The Commission also decided that refurbishment of its offices should take place in 1994 in order to render them more suitable both as a working environment and for visiting members of the public.
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First Programme for Examination of Certain Branches of the Law with a View to their Reform (Dec 1976) (Prl. 5984) [out of print] [photocopy available] [ 10p Net]
Working Paper No. 1–1977, The Law Relating to the Liability of Builders, Vendors and Lessors for the Quality and Fitness of Premises (June 1977) [£ 1.50 Net]
Working Paper No. 2–1977, The Law Relating to the Age of Majority, the Age for Marriage and Some Connected Subjects (Nov 1977) [out of print] [photocopy available] [£ 1.00 Net]
Working Paper No. 3–1977, Civil Liability for Animals (Nov 1977) [£ 2.50 Net]
First (Annual) Report (1977) (Prl. 6961) [ 40p Net]
Working Paper No. 4–1978, The Law Relating to Breach of Promise of Marriage (Nov 1978) [£ 1.00 Net]
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Working Paper No. 6–1979, The Law Relating to Seduction and the Enticement and Harbouring of a Child (Feb 1979) [£ 1.50 Net]
Working Paper No. 7–1979, The Law Relating to Loss of Consortium and Loss of Services of a Child (March 1979) [£ 1.00 Net]
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Third (Annual) Report (1980) (Prl. 9733) [ 75p Net]
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First Report on Family Law – Criminal Conversation, Enticement and Harbouring of a Spouse or Child, Loss of Consortium, Personal Injury to a Child, Seduction of a Child, Matrimonial Property and Breach of Promise of Marriage (LRC 1–1981) (March 1981) [£ 2.00 Net]
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Fourth (Annual) Report (1981) (PI. 742) [ 75p Net]
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Report on Competence and Compellability of Spouses as Witnesses (LRC 13–1985) (July 1985) [£ 2.50 Net]
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Report on the Recognition of Foreign Adoption Decrees (LRC 29–1989) (June 1989) [£ 5.00 Net]
Report on Land Law and Conveyancing Law: (1) General Proposals (LRC 30–1989) (June 1989) [£ 5.00 Net]
Consultation Paper on Child Sexual Abuse (August 1989) [£10.00 Net]
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Consultation Paper on the Civil Law of Defamation (March 1991) [£20.00 Net]
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Twelfth (Annual) Report (1990) (Pl 8292) [£ 1.50 Net]
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Fourteenth (Annual) Report (1992) (PN.0051) [£ 2.00 Net]
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