THE LAW REFORM COMMISSION
AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ
SIXTEENTH REPORT (1994)
IRELAND
The Law Reform Commission
Ardilaun Centre, 111 St Stephen's Green, Dublin 2
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©Copyright The Law Reform Commission 1995
First Published April 1995
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The Law Reform Commission
AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ ARDILAUN CENTRE
111 ST. STEPHEN'S GREEN
DUBLIN 2
IRELAND
TELEPHONE (01) 671 5699
FAX (01) 671 5316
10th April 1995
Dermot Gleeson Esq., S.C.,
Attorney General,
Government Buildings,
Dublin 2.
Dear Attorney General,
In accordance with section 6 of the Law Reform Commission Act 1975, I have the honour to present the Sixteenth Report (1994) of the Law Reform Commission. It covers the period from 1st January 1994 to 31st December 1994.
Yours sincerely,
ANTHONY J. HEDERMAN
PRESIDENT
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1.
This Report covers the period from 1 January 1994 to 31 December 1994 and 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 1994:
The Hon. Mr. Justice Anthony J. Hederman, former Judge of the Supreme Court, President;
John F. Buckley, Esq., B.A., LL.B., Solicitor;
William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Professor of Law and Jurisprudence, University of Dublin;
Ms. Maureen Gaffney, B.A., M.A. (University of Chicago), Senior Lecturer in Psychology, University of Dublin; and
Simon P. O'Leary, Esq., B.A., Barrister-at-Law.
The staff of the Commission consists of the Secretary, a Research Counsellor, three Research Assistants, two Clerical Officers and one Clerical Assistant.
Mr. John Quirke is Secretary to the Commission.
Alpha Connelly, B.A., LL.M., D.C.L., is Research Counsellor to the Commission.
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At the start of the year, Ms. Nuala Egan, B.C.L., LL.M. (Lond.), Barrister-at-Law, Mr. Jonathan Newman, LL.B., LL.M. (Cantab.) and Ms. Lia O'Hegarty, B.C.L., LL.M. (Mich.) were Research Assistants. In September, Mr. Newman and Ms. O'Hegarty were succeeded by Ms. Sarah Farrell, LL.B., LL.M. (Lond.) and Mr. Niall Fitzgibbon, B.C.L., LL.M. (Cantab.).
The clerical staff are Ms. Martina Burke, Ms. Mary Teresa Faherty and Ms. Martina McGuire.
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 1994, the Commission had formulated and submitted to the Taoiseach or the Attorney General 47 Reports containing proposals for reform of the law, as well as 11 Working Papers, 8 Consultation Papers and 15 Annual Reports.
Between 1987 and 1993, the Commission published the following Reports on topics contained in the Commission's First Programme:
Service of Documents Abroad re Civil Proceedings – The Hague Convention;
The Rule Against Hearsay in Civil Cases;
Recognition of Foreign Adoption Decrees;
Oaths and Affirmations;
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The Hague Convention on Succession to the Estates of Deceased Persons; and
United Nations (Vienna) Convention on Contracts for the International Sale of Goods.
A full list of the Commission's publications is to be found in the Appendix.
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:
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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.
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In March 1992, the Attorney General made a similar request in respect of the law relating to occupiers' liability.
In February 1994, the Attorney General requested the Commission to examine and research the law relating to bail. Although the Commission was asked for its “views” on the law, it was not asked to formulate proposals for reform.
Between 1987 and 1993, the Commission published the following Reports on topics contained in the Attorney General's Requests:
The Statute of Limitations in Cases of Latent Personal Injuries;
Receiving Stolen Property;
Rape and Allied Offences;
Malicious Damage;
Debt Collection: (1) The Law Relating to Sheriffs;
Debt Collection: (2) Retention of Title;
Land Law and Conveyancing Law: (1) General Proposals;
Land Law and Conveyancing Law: (2) Enduring Powers of Attorney;
Child Sexual Abuse;
Sexual Offences Against the Mentally Handicapped;
Confiscation of the Proceeds of Crime;
The Indexation of Fines;
The Civil Law of Defamation;
The Crime of Libel;
Land Law and Conveyancing Law: (3) Passing of Risk from Vendor to Purchaser;
Land Law and Conveyancing Law: (4) The Service of Completion Notices;
The Law Relating to Dishonesty; and
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Land Law and Conveyancing Law: (5) Further General Proposals.
In 1994 the Commission published the following Reports on topics contained in the Commission's First Programme:
Report on Non-Fatal Offences Against the Person.
In the same year, the Commission published the following Reports on topics referred to it by the Attorney General:
Report on Occupiers' Liability; and
Report on Contempt of Court.
In 1994 the Commission published the following Consultation Paper on a topic contained in the Commission's First Programme:
Consultation Paper on Family Courts
A review of the law relating to non-fatal offences against the person was undertaken by the Commission as a matter listed in the First Programme for Law Reform and specifically referred to in the Attorney General's request of 6 March 1987. The principal task of the Commission was to revise the provisions of the Offences Against the Person Act, 1861 and its associated common law offences. Difficulties arose from the fact that the 1861 Act was largely comprised of “a rag-bag of offences” brought together from a wide variety of sources without consistency as to substance or form.
The Commission published its Report on Non-Fatal Offences Against the Person in February 1994. Its recommendations included the following:
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Following its Consultation Paper on Sentencing and General Seminar in 1993, the Commission continued to study the law and decisions relating to sentencing policy and to explore ways of achieving consistency in sentencing by examining closely the factors involved in the decision-making process of judges.
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The Commission was concerned at the fact that the absence of a modern Irish reported decision on this matter led to significant uncertainty in this jurisdiction as to the parameters of this defence. The Commission has been concerned to reconcile the conflicting considerations which arise in the analysis of the intoxication defence and assess the appropriateness of the basic intent/specific intent dichotomy accepted in most of the common law world. A Consultation Paper on Intoxication is expected to be published early in 1995.
Having published its Report on Non-Fatal Offences against the Person in 1994, the Commission began its review of the law of homicide. The Commission intends to scrutinise the existing categorisation of homicide offences and, in particular, will focus on the adequacy of the definition of murder in respect of both its mens rea and actus reus components.
In referring this topic to the Commission the Attorney General asked that it be given priority. The principal task for the Commission in this context was to establish which particular classes of entrant should be covered by legislation, how the duty of care should be defined and whether or not children should be afforded special treatment in such provisions.
The Commission published its Report on Occupiers' Liability in April 1994. Its recommendations included the following:
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The corpus of law known as contempt of court is largely judge-made and based on the English common law as it evolved over several centuries. Contempt of court can be either criminal or civil and, in the case of each, the Commission was concerned to investigate whether a new statutory regime might be appropriate. In recognising the importance of the law of contempt in protecting the constitutional position of the courts in the administration of justice, the Commission was also concerned to preserve the integrity of the constitutional acknowledgement of the right of freedom of expression and of communication of information.
The Commission published its Report on Contempt of Court in September 1994. Its recommendations included the following:
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In its First Programme, the Commission undertook to review a number of aspects of family law. This review also embraced “the question of the best type of judicial or court structure or structures appropriate to deal with the different matters which fall under the general heading of family law”. The Commission felt that the issues involved went beyond the courtroom itself and encompassed, for example, ancillary services and procedures for diverting from the courts cases which may be more appropriately handled through alternative channels such as mediation. Such a review was considered to be of particular significance given the introduction of legislation providing for new or improved family law remedies which has imposed on the court system considerable additional burdens.
A Consultation Paper on Family Courts was published in March 1994 after the Commission had benefited from the advice and observations of a Working Group comprising judges and practising lawyers with considerable experience in matters of family law.
The provisional recommendations of the Commission include:
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Subsequent to the publication of the Consultation Paper, a Seminar was held at the Commission's premises on 10 December 1994 at which some of the more sensitive provisional recommendations were discussed and constructively criticised by invited experts. The Commission also benefited from the considerable expertise of Judge Svend Danielsen of the Danish High Court who visited in November.
The Commission continued to examine the current practice in this jurisdiction relating to verification of foreign public documents with a view to ratifying the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. The Convention envisaged a new system of verification by certificate which would considerably simplify the formalities involved in the current system of legalisation. The Commission circulated a Discussion Paper on the topic to
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The Commission expects to publish its Report on the matter early in 1995.
Matters arising in this context and in the Attorney General's request of 1987 include provision for periodic payment of damages and the making of provisional awards. Having circulated a Discussion Paper and received written submissions on the matter, the Commission held a meeting of experts at its premises on 9 December 1994. A Report is currently being prepared.
The Commission continued to work on this topic in 1994 and concentrated particularly on the growing threat to the individual's personal privacy due to the proliferation of highly sophisticated methods of surveillance. The lack of any coherent corpus of law in this context is disturbing given the very new threats arising in a modern, technologically advanced and information-based society.
The Commission expects to publish a Consultation Paper on this topic in 1995.
In 1994 the Working Group on Land Law and Conveyancing met on 9 occasions. In the early part of the year a number of meetings were devoted to an attempt to prepare a statutory set of Conditions for the Sale of Land which could apply automatically if a vendor and purchaser entered into an informal open contract e.g. by an exchange of letters for the sale of land. One effect of the decision of the Supreme Court in Boyle and Lee v. Goyns [1992] 1 I.R. 555 was to render the completion of such open contracts more difficult. After a great deal of consideration the Working Group regretfully found that too many problems arose in preparing a set of statutory conditions.
The Working Group then devoted considerable time to an analysis of the rule in Tempany v. Hynes [1976] I.R. 101 in which the Supreme Court attempted to characterise the nature of the interests held by a vendor and purchaser in land during the period between the coming into effect of a contract for the sale of that land and the completion of the sale. The Group favoured the dissenting view of Mr. Justice Henchy that a “transitory beneficial interest” could attach to the purchaser prior to full completion. The Group also considered the question of whether or not such an interest might exist despite the fact that the contract might not be specifically enforceable in law.
Among the other topics considered by the Working Group throughout the year were encroachment by a lessee on adjoining property, enforcement of judgements against land, the viability of a statutory standard contract for the sale of land and ss.125 and 126 of the Succession Act, 1965.
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Having prepared a preliminary draft of a Discussion Paper on the use of plain language in general, the Commission decided to concentrate on the method and style of drafting legislation and to broaden its study to include the interpretation of legislation by the Courts.
The Commission continued to examine the question of the advisability of setting up a uniform procedural system to govern the diverse range of licences required by law for various activities. Such a system would embrace the making and processing of such licences, the decisions to grant or refuse them and the hearing of appeals.
Work began on the preparation of a Discussion Paper on this topic.
The Criminal Justice (Public Order) Act, 1994 substantially enacted 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).
Parts II, III, IV, VI and VII of the Criminal Justice (No. 3) Act, 1994 took account of various recommendations made by the Commission in its Report on the Confiscation of the Proceeds of Crime (LRC 35–1991). Part IV also took into account recommendations of the Commission in its Report on Receiving Stolen Property (LRC 23–1987).
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) Act, 1994 introduces such amendments but differs from the precise solutions proposed by the Commission. To a limited extent, the Act provided for “contracting out” of the Landlord and Tenant Act, one of the recommendations contained in the Commission's Report on Land Law and Conveyancing Law: (1) General Proposals (LRC 30–1989).
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The Occupiers' Liability Bill, 1994 largely followed the recommendations made by the Commission in its Report on Occupiers' Liability (LRC 46–1994). However, the Bill departed from the Commission's proposals in the special treatment it gave to minors, and in its designation of a third category of entrant – the “recreational user”, rather than making special provision for recreational “use”.
The wide-ranging Family Law Bill, 1994 proposed a number of reforms in the context of court orders ancillary to decrees of nullity of marriage and legal separation granted both in the State and abroad. The Bill clarified other matters relating to marriage and strengthened the general law on maintenance. Consequently, the Bill drew on a number of Reports of the Commission: Report on the Age of Majority, the Age of Marriage and Some Connected Subjects (LRC 5–1983); Report on Jurisdiction in Proceedings for Nullity of Marriage, Recognition of Foreign Nullity Decrees and the Hague Convention on the Celebration and Recognition of the Validity of Marriages (LRC 20–1985); Report on Jactitation of Marriage and Related Matters (LRC 6–1983).
In recommending the imposition of a time-limit after which conveyances could not be declared void under the Family Home Protection Act, 1976 the Bill implemented a recommendation in the Commission's Report on Land Law and Conveyancing Law: (1) General Proposals (LRC 30–1989).
The provisions of the Family Law (Property) Bill, 1994 closely followed section 22 of the Commission's Draft Bill on Family Law contained in its First Report on Family Law (LRC 1–1981) which deals with the beneficial interest of a spouse arising from non-financial contributions made to the “family household”.
Professor Duncan attended the First Special Commission meeting of the Hague Conference on Private International Law on the Protection of Minors and Incapacitated Adults in May/June of 1994. The Special Commission is reviewing the 1961 Hague Convention on Protection of Minors and is considering a possible extension of the Convention's scope to the protection of incapacitated adults. Professor Duncan was elected Vice-Chair of the Special Commission, and will chair the Drafting Committee for a new Convention.
Commissioner Buckley, substituting for the President, attended a Special Commission of The Hague Conference on Private International Law on the question of the Recognition and Enforcement of Foreign Judgements in Civil and Commercial matters. Ireland, as a member of the European Union, is already
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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]
Working Paper No. 5–1978, The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse (Dec 1978) [out of print] [photocopy available] [£ 1.00 Net]
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]
Working Paper No. 8–1979, Judicial Review of Administrative Action: the Problem of Remedies (Dec 1979) [£ 1.50 Net]
Second (Annual) Report (1978/79) (Prl. 8855) [ 75p Net]
Working Paper No. 9–1980, The Rule Against Hearsay (April 1980) [out of print] [photocopy available] [£ 2.00 Net]
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]
Working Paper No. 10–1981, Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (Sep 1981) [£ 1.75 Net]
Fourth (Annual) Report (1981) (Pl. 742) [ 75p Net]
Report on Civil Liability for Animals (LRC 2–1982) (May 1982) [£ 1.00 Net]
Report on Defective Premises (LRC 3–1982) (May 1982) [£ 1.00 Net]
Report on Illegitimacy (LRC 4–1982) (Sep 1982) [£ 3.50 Net]
Fifth (Annual) Report (1982) (Pl. 1795) [ 75p Net]
Report on the Age of Majority, the Age for Marriage and Some Connected Subjects (LRC 5–1983) (April 1983) [£ 1.50 Net]
Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters (LRC 6–1983) (Nov 1983) [£ 1.00 Net]
Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (LRC 7–1983) (Dec 1983) [£ 1.50 Net]
Report on Divorce a Mensa et Thoro and Related Matters (LRC 8–1983) (Dec 1983) [£ 3.00 Net]
Sixth (Annual) Report (1983) (Pl. 2622) [£ 1.00 Net]
Report on Nullity of Marriage (LRC 9–1984) (Oct 1984) [£ 3.50 Net]
Working Paper No. 11–1984, Recognition of Foreign Divorces and Legal Separations (Oct 1984) [£ 2.00 Net]
Seventh (Annual) Report (1984) (Pl. 3313) [£ 1.00 Net]
Report on Recognition of Foreign Divorces and Legal Separations (LRC 10–1985) (April 1985) [£ 1.00 Net]
Report on Vagrancy and Related Offences (LRC 11–1985) (June 1985) [£ 3.00 Net]
Report on the Hague Convention on the Civil Aspects of International Child Abduction and Some Related Matters (LRC 12–1985) (June 1985) [£ 2.00 Net]
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Report on Competence and Compellability of Spouses as Witnesses (LRC 13–1985) (July 1985) [£ 2.50 Net]
Report on Offences Under the Dublin Police Acts and Related Offences (LRC 14–1985) (July 1985) [£ 2.50 Net]
Report on Minors' Contracts (LRC 15–1985) (August 1985) [£ 3.50 Net]
Report on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (LRC 16–1985) (August 1985) [£ 2.00 Net]
Report on the Liability in Tort of Minors and the Liability of Parents for Damage Caused by Minors (LRC 17–1985) (Sep 1985) [£ 3.00 Net]
Report on the Liability in Tort of Mentally Disabled Persons (LRC 18–1985) (Sep 1985) [£ 2.00 Net]
Report on Private International Law Aspects of Capacity to Marry and Choice of Law in Proceedings for Nullity of Marriage (LRC 19–1985) (Oct 1985) [£ 3.50 Net]
Report on Jurisdiction in Proceedings for Nullity of Marriage, Recognition of Foreign Nullity Decrees, and the Hague Convention on the Celebration and Recognition of the Validity of Marriages (LRC 20–1985)(Oct 1985) [£ 2.00 Net]
Eighth (Annual) Report (1985) (Pl. 4281) [£ 1.00 Net]
Report on the Statute of Limitations: Claims in Respect of Latent Personal Injuries (LRC 21–1987) (Sep 1987) [£ 4.50 Net]
Consultation Paper on Rape (Dec 1987) [£ 6.00 Net]
Report on the Service of Documents Abroad re Civil Proceedings – the Hague Convention (LRC 22–1987) (Dec 1987) [£ 2.00 Net]
Report on Receiving Stolen Property (LRC 23–1987) (Dec 1987) [£ 7.00 Net]
Ninth (Annual) Report (1986–1987) (Pl 5625) [£ 1.50 Net]
Report on Rape and Allied Offences (LRC 24–1988) (May 1988) [£ 3.00 Net]
Report on the Rule Against Hearsay in Civil Cases (LRC 25–1988) (Sep 1988) [£ 3.00 Net]
Report on Malicious Damage (LRC 26–1988) (Sep 1988) [£ 4.00 Net]
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Report on Debt Collection: (1) The Law Relating to Sheriffs (LRC 27–1988) (Oct 1988) [£ 5.00 Net]
Tenth (Annual) Report (1988) (Pl 6542) [£ 1.50 Net]
Report on Debt Collection: (2) Retention of Title (LRC 28–1989) (April 1989) (out of print) [£ 4.00 Net]
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]
Report on Land Law and Conveyancing Law: (2) Enduring Powers of Attorney (LRC 31–1989)(Oct 1989) [£ 4.00 Net]
Eleventh (Annual) Report (1989) (Pl 7448) [£ 1.50 Net]
Report on Child Sexual Abuse (September 1990) (LRC 32–1990) [£ 7.00 Net]
Report on Sexual Offences Against the Mentally Handicapped (September 1990) (LRC 33–1990) [£ 4.00 Net]
Report on Oaths and Affirmations (LRC 34–1990)(December 1990) [£ 5.00 Net]
Report on Confiscation of the Proceeds of Crime (LRC 35–1991) (January 1991) [£ 6.00 Net]
Consultation Paper on the Civil Law of Defamation (March 1991) [out of print] [£20.00 Net]
Report on the Hague Convention on Succession to the Estates of Deceased Persons (LRC 36–1991) (May 1991) [£ 7.00 Net]
Twelfth (Annual) Report (1990) (PI 8292) [£ 1.50 Net]
Consultation Paper on Contempt of Court (July 1991) [out of print] [£20.00 Net]
Consultation Paper on the Crime of Libel (August 1991) [£11.00 Net]
Report on The Indexation of Fines (LRC 37–1991) (October 1991) [£ 6.50 Net]
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Report on The Civil Law of Defamation (LRC 38–1991) (December 1991) [out of print] [£ 7.00 Net]
Report on Land Law and Conveyancing Law: (3) The Passing of Risk from Vendor to Purchaser (LRC 39–1991) (December 1991); (4) Service of Completion Notices (LRC 40–1991) (December 1991) [£ 6.00 Net]
Report on The Crime of Libel (LRC 41–1991) (December 1991) [£ 4.00 Net]
Report on United Nations (Vienna) Convention on Contracts for the International Sale of Goods 1980 (LRC 42–1992) (May 1992) [£ 8.00 Net]
Thirteenth (Annual) Report (1991) (PI 9214) [£ 2.00 Net]
Report on The Law Relating to Dishonesty (LRC 43–1992) (September 1992) [£20.00 Net]
Land Law and Conveyancing Law: (5) Further General Proposals (LRC 44–1992) (October 1992) [£ 6.00 Net]
Consultation Paper on Sentencing (March 1993) [out of print] [£20.00 Net]
Consultation Paper on Occupiers' Liability (June 1993) [out of print] [£10.00 Net]
Fourteenth (Annual) Report (1992) (PN.0051) [£ 2.00 Net]
Report on Non-Fatal Offences Against The Person (LRC 45–1994) (February 1994) [£20.00 Net]
Consultation Paper on Family Courts (March 1994) [£10.00 Net]
Report on Occupiers' Liability (LRC 46–1994) (April 1994) [out of print] [£ 6.00 Net]
Report on Contempt of Court (LRC 47–1994) (September 1994) [£10.00 Net]
Fifteenth (Annual) Report (1993) (PN.1122) [£ 2.00 Net]
Report on The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (LRC 48–1995) (February 1995) [£10.00 Net]
Consultation Paper on Intoxication as a Defence to a Criminal Offence (February 1995) [£10.00 Net]
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