During 1985, the Commission published eleven reports.
The subject matter of the Report on Recognition of Foreign Divorces and Legal Separations was treated earlier in the Commission's Working Paper No. 11–1984 published in October 1984. In that Working Paper observations on the Commission's proposals were sought from the general public. In fact, no observations were received from any quarter. The Commission, having reconsidered the subject, adhered to the recommendations which it had made in the Working Paper.
The Commission proceeded on the basis that its proposals had to be made within the context of, and have regard to the prohibition on, divorce contained in the Constitution. Accordingly, the Report recommended that different rules for the recognition of foreign divorces should apply to people who have close connections with the State than should apply to those who do not have such close connections. Wider recognition rules were proposed for the latter than for the former.
The Report proposed the following rules for persons who would be regarded as having close connections with the State:
For the purpose of the above rules the Report proposed that a person should be deemed to be habitually resident in the State who, having been habitually resident here, has temporarily ceased to reside here and has acquired a temporary residence abroad for the primary purpose of acquiring a foreign divorce. The reason for this is that
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Wider rules were proposed in the Report for recognition of foreign divorces obtained by those who have not close connections with Ireland in the sense described above. The rules proposed for such people are those contained in the 1970 Hague Convention on Recognition of Divorces and Legal Separations. These rules would allow for recognition of foreign divorces in a number of different sets of circumstances – for example, where both spouses are nationals of the country where the divorce is obtained, or the respondent was habitually resident there at the time of the institution of the proceedings, or the petitioner was habitually resident there for at least one year prior to that time. The Report recommended that these rules should apply to the recognition of foreign legal separations whether or not the parties are habitually resident in Ireland.
In cases where a foreign divorce or legal separation is recognised in Ireland, the Report recommended that the courts should have a discretionary power to act on principles of domestic legislation in order to protect the rights of a spouse with respect to maintenance, occupation and beneficial ownership of the family home and barring orders.
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In its First Programme for the Examination of certain Branches of the Law with a view to their Reform (Prl. 5984), the Commission indicated that it proposed to examine the law relating to minor offences concerned with public peace and order. As part of that project, the Report on Vagrancy and Related Matters examined the Vagrancy Acts and certain closely related provisions in other legislation.
The Report recommended the repeal without replacement of a number of offences contained in section 4 of the Vagrancy Act of 1824, which was extended to Ireland by the Prevention of Crimes Act, 1871. These offences are (i) fortune– telling, (ii) wandering abroad and lodging in various places not having any visible means of subsistence and not giving a good account of oneself, (iii) the desertion of a wife or child, and (iv) loitering with intent to commit a felony (which has been held to be unconstitutional). The Report also recommended that the offences in the Vagrancy Act, 1824, the Towns Improvement (Ireland) Act, 1854 and the Dublin Police Act, 1842 which relate to gaming should also be repealed without replacement there being adequate provision for them in the Gaming and Lotteries Act, 1956.
While proposing the abolition of the offence of “wandering abroad”, the Report recommended that the maximum penalty for an offence of trespass to land under section 8 of the Summary Jurisdiction (Ireland) Act, 1851 should be increased to a fine of £500 and/or imprisonment for 6 months. At present, those found guilty of this offence are liable to a penalty not exceeding 50 pence or in default of payment, to imprisonment for a period not exceeding one week. However, the Commission was not prepared to recommend any offence of “sleeping rough”. To meet the
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The Law Reform Commission's Report recommended the repeal of the provision in the Vagrancy Act, 1824 prohibiting the exposure in a public place of any obscene print, picture or other indecent exhibition and the repeal of several cognate provisions in other statutes. It also recommended that the common law offence of indecent exhibition, which covers the public exhibition of indecent acts as well as indecent things, should be repealed in so far as it applies to exhibitions of indecent matter. It was proposed that a new provision should be enacted making it an offence to display indecent matter in any place to which the public have access, whether as of right or by permission and whether on payment or otherwise. It was not envisaged that the new offence would apply to films, books or television broadcasts as they are covered by the Censorship of Films Acts, the Censorship of Publications Acts, and the Wireless Telegraphy Act, 1926 respectively, or to public museums or art galleries. The Commission also considered the common law and statutory offences of indecent exposure and its Report recommended that they should be repealed and replaced by an offence which would be committed by a person who intentionally commits any indecent act, (including indecently exposing his or her person):–
It was recommended that the new offences should be triable only summarily and the maximum penalty should be a fine of £500 and/or six months imprisonment.
The Report recommended that the existing offences of begging should be replaced by a new offence of begging (i) in a public place or (ii) from house to house in a manner likely to cause fear or annoyance and the maximum penalty for this offence should be a fine of £300 and/or 3 months' imprisonment. At present, imprisonment is the only penalty available for begging. The Report further recommended that the offence (under section 14 of the Children's Act, 1908) of causing or procuring children to beg should be retained. It was also recommended that it should be made an offence for a collector in a collection within the meaning of the Street and House Collections Act, 1962 to obstruct passersby or to act in a manner likely to cause fear or annoyance.
The Report recommended that the offence under the Vagrancy Act 1824 of possession of any implement with intent feloniously to break into any dwelling house or certain other buildings should be replaced by a new provision making it an offence to be in possession of any article for the purposes of burglary, theft or taking a vehicle without authority. It proposed that the offence under that Act of possession of an offensive weapon with intent to commit a felonious act should be replaced by a new offence of possession of an offensive weapon in a public place. It was recommended that both these offences should be triable
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The Report recommended that the existing provisions relating to loitering or soliciting by common prostitutes in public places and to persistent solicitation by a male person in a public place for an immoral purpose should be replaced by two new summary offences which would be committed by any person who in a public place
The Report went on to recommend that the existing offences under the Vagrancy Act, 1898, as amended by the Criminal Law Amendment Act, 1912, relating to a man living on the earnings of prostitution and to a woman exercising control
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The Report recommended that a member of the Garda Siochana should be empowered to arrest without warrant any person whom he finds in a public place and whom he reasonably suspects to be committing or have committed any of the new offences proposed in the Report; however in the case of the proposed new offence of public display of indecent matter and of living on the earnings of prostitution or exercising control over a prostitute, it was recommended that that power should be confined to situations where a Garda demands the name and address of a person whom he reasonably suspects of committing or having committed an offence and that person fails to give them.
The Report on the Hague Convention on Civil Aspects of Child Abduction and some Related Matters recommended that legislation should be enacted giving the Convention the force of law in Ireland and that Ireland should subsequently become Party to the Convention. This Convention was adopted at the fourteenth session of the Hague Conference on Private International Law in 1980 at which Ireland was represented by Mr Justice Walsh, the President of the Law
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The Report recommended that the legislation giving effect to the Convention should provide that, in deciding on
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The Commission recommended that the Department of Justice should continue its consideration of the European Convention on Recognition and Enforcement of the Decisions concerning Custody of Children and on Restoration of Custody of Children with a view to its ratification by Ireland but this process should not be allowed to delay the recommended adherence to the Convention on the Civil Aspects of International Child Abduction.
The Report also contained a number of recommendations designed to prevent the abduction of children out of the jurisdiction. Thus, it was proposed that the Garda Siochana should be given power to detain a ward of court or other child when they reasonably suspect he/she is being removed from the jurisdiction in breach of a court order. The Report also recommended the creation of an offence of abduction out of the jurisdiction of a child under sixteen. This offence would be committed by anybody who takes or sends or keeps a child (being a child habitually resident in the State) out of the State in defiance of a court order or without the consent of each person who is a parent or guardian or to whom custody has been granted unless the leave of the court is obtained; it would be a defence that the accused either (i) honestly believed that the child was over 16; or (ii) obtained the consent of the requisite persons or of the court; or (iii) was unable to communicate with the requisite persons having taken all reasonable steps to do so, and believed that they would all consent if they were aware of the relevant circumstances;
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The Commission considered section 40 of the Adoption Act, 1952 dealing with the removal of very young children out of the jurisdiction. Certain parts of this section were held to be in conflict with the Constitution in The State (M.) v Attorney General  I.R. 731. The Report recommended that the section should now be repealed in its entirety and a provision enacted in its place prohibiting the removal of a child under one year of age out of the State unless the removal is made with the approval of the parents or guardians for the purpose of residing with a parent or relative outside the State or unless the removal is approved by the court on the ground that it would be in the best interests of the child.
The Commission was of the opinion that the position regarding the grant of passports by the Department of Foreign Affairs might involve the State being found to be in breach of its obligations under Protocol No. 4 of the European Convention on Human Rights. Accordingly, the Report recommended that legislation should be enacted compatible with that Protocol stating the grounds upon which the Minister for Foreign Affairs may refuse to issue a passport to an applicant. The Report proposed that such legislation should provide that a minor may obtain a passport on the application of any of its legal guardians, but no such passport should be issued upon such application without the approval of the court where any other legal
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The Report on Competence and Compellability of Spouses as Witnesses set out in detail the present law govening the competence and compellability of spouses as witnesses. This is believed to be the first full statement of the law on this subject in Ireland. As a general rule a spouse is now not competent to give evidence for the prosecution when the other spouse is accused; a spouse is competent but not compellable to give evidence for the other spouse when that other spouse is accused; a spouse is competent but not compellable to give evidence for a co-accused of the other spouse in a joint trial provided the other spouse consents. Ad hoc exceptions have been evolved to these general rules over the years. These exceptional cases are to be found in numerous statutes from 1872 onwards. As a result, there are now many offences in respect of which the spouse of an accused is competent to give evidence in court
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The rule that the spouse of an accused is incompetent to testify for the prosecution has been abolished in most other common law jurisdictions. The Director of Public Prosecutions has stated that its retention here has inhibited him from taking certain prosecutions, notably those for bigamy, sexual offences and offences against children. Accordingly, the Report recommended that the spouse of an accused should be competent for the prosecution in all cases, but not compellable except in joint trials where the other spouse is tried jointly with other persons. In such joint trials it was recommended that a spouse compelled to testify for the prosecution should be entitled to refuse to answer any question or to produce any document, if to do so would tend to incriminate the spouse who is accused.
In considering whether a spouse should be compellable as well as competent to testify for the defence, the Report proceeded on the basis that it is indefensible that an accused person should be deprived of any evidence which might exculpate him. It recommended, therefore, that a person should be compellable to give evidence for the defence even if his or her spouse is the accused or one of those accused. The rule that the prosecution may not comment on the failure of such a spouse to testify should, as a consequence, be abolished. Where a spouse of one accused is compelled to give evidence for the defence on behalf of another accused, it was recommended that the spouse so testifying should be entitled to refuse to answer any question or to produce any document if to do so would tend to incriminate the spouse who is accused. The Report contained specific recommendations relating to the position of former spouses, spouses who are judicially separated or parties to voidable marriages which have been annulled.
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Under the present law, in joint trials, none of those accused is competent to testify for the prosecution. Nor may one accused be compelled to testify on behalf of another accused. These rules apply in cases where spouses are jointly accused as well as in other cases. No recommendations were made to change them in the Commission's Report which was concerned only with cases where one spouse is accused and the other is a prospective witness but not an accused.
The Report recommended that the parent or child of an accused should not be compelled to give evidence for the prosecution incriminating that accused unless a certificate from the Director of Public Prosecutions is tendered stating that he personally has examined the case and, having considered the hardship of compelling the witness to testify, the importance of the evidence that witness could give and the gravity of the offence charged, believes that it is in the public interest that the evidence be heard. At present, the law contains no provision under which a parent or child of an accused may claim a right not to testify.
The Report dealt with the privilege of a witness not to incriminate his or her spouse. The present law on this matter is uncertain. So the Report recommended that in both criminal and civil proceedings a witness should have the same right to refuse to answer any question or produce any document or thing tending to incriminate his or her spouse as that witness has not to incriminate himself. However, where the spouse of an accused is called as a
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The Report pointed out that some doubts attach to the competence or compellability of spouses of parties in civil proceedings. For the removal of doubt, it was recommended that the existing enactments governing the matter should be repealed and replaced by a provision stating that in civil proceedings the present or former spouse of a party thereto is a competent and compellable witness.
A general scheme of a Bill to reform the law relating to the evidence of spouses in criminal cases was included in an Appendix to the Report.
The Report on Offences under the Dublin Police Acts and Related Offences, which, like the Report on Vagrancy and Related Matters (LRC 11–1985), is part of the review of minor offences concerned with public peace and order mentioned in the First Programme of the Commission, dealt with offences under the Dublin Police Acts, mainly the Dublin Police Act, 1842, and a number of other statutory provisions relating to matters treated in the Dublin Police Acts. The Report recommended the repeal of provisions in these Acts concerning offences which are adequately covered by subsequent legislation. It also proposed the repeal of a number of other provisions to the Dublin Police Acts as being no longer appropriate to today's conditions. An example is section 17(3) of the Dublin Police Act, 1842, which prohibits the beating or shaking in any thoroughfare
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Under the existing law, the balance of authority appears to favour the position that in a prosecution for assaulting a member of the Garda Siochana in the execution of his duty (for which provision is made in the Dublin Police Act, 1836, the Offences Against the Person Act, 1861 and the Prevention of Crimes Act, 1871) it is not necessary to prove that the defendant knew that the person assaulted was in fact a Garda; it is enough that the defendant should have adverted to the possibility that this was the case. The Report recommended that the existing provisions under which it is an offence to assault a policeman or other peace officer should be replaced by a new offence for which knowledge that, or recklessness as to whether, the victim was a peace officer and was acting in the execution of his duty would be required; a defendant wishing to deny knowledge or recklessness regarding the fact that the peace officer was acting in the execution of his duty would have to adduce sufficient evidence that he believed that the peace officer was not acting in the execution of his duty to raise an issue on the matter, but the ultimate or persuasive burden of proof should still remain on the prosecution. The Report recommended that it should remain an offence to
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As regards the road traffic offences created by the Dublin Police Act, 1842 and subsequent legislation, the Report noted that most of the provisions are virtually redundant in view of the provisions of the Road Traffic Act, 1961 relating to driving without reasonable consideration, careless driving and dangerous driving. It appeared to the Commission that the only road traffic offence not adequately covered by the later legislation was the riding of a horse in a dangerous manner. Accordingly, the Report recommended that the provisions in the Dublin Police Act should be repealed and one enacted in its place making it an offence to ride an animal in a public place in a manner that is dangerous to the public. The Report recommended that provision should also be made for a new offence, to replace the existing offence of turning loose any animal or permitting it to wander in any public place. It was proposed that there should be a burden on the keeper, if charged with an offence, to adduce evidence that he did not permit his animal to wander in the public place.
The Report recommended that the existing provisions relating to the deposit of materials such as stones and bricks in thoroughfares for which provision is made in the Dublin Police Act, 1842 and subsequent legislation, should be replaced by a new provision making it an offence without lawful authority or excuse to deposit anything on a public
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It was further recommended that the deposit of building materials and builders' skips and the making of an excavation on a street would be subject to permission of the appropriate road authority and the conditions attached to such permission. It was proposed that a person to whom permission is thus granted should be under an obligation to ensure proper fencing and lighting of the obstruction or excavation; breach of such obligation would be an offence, as would depositing materials or a skip or making an excavation without permission, or in breach of any condition attached to such permission by the road authority.
The Report recommended that the existing offence of depositing offensive matter in the thoroughfares under section 17 of the Dublin Police Act, 1842 should be replaced by a new offence of depositing dung, compost or any other offensive matter on a public roadway or footpath without lawful authority or excuse. An offence was also proposed to cover cases where filth, dirt or other offensive matter or things are allowed to run or flow onto a public roadway or footpath from any adjoining premises. New provisions were recommended to replace existing provisions relating to the safety of vaults and cellars under streets.
The Dublin Police Act, 1842 made it an offence to use noisy instruments in any thoroughfare for certain purposes. The Report recommended that this provision should be
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The Dublin Police Act, 1842 also made provision under which certain dangerous and annoying activities such as throwing stones or playing games are offences. The Report recommended that these provisions should be replaced by a new offence without lawful authority or excuse to light any fire or discharge any stone or other missile on or within twenty metres of the centre of any public road so that a roaduser is injured or interrupted or endangered; it should also be an offence to play any game which is dangerous or causes substantial inconvenience to a user of a public road. The Report also recommended that provision should be made for an offence of deliberately setting fire to a chimney causing, or likely to cause, personal injury or damage to the property of another. This would replace an offence under the Town Police Clauses Act, 1847.
The Report, having listed a number of provisions under which drunkenness in a public place is an offence, stated the Commission's view that mere drunkenness in a public
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In place of the existing offences of being “drunk and disorderly” in a public place, “insulting behaviour”, and disorderly conduct at public meetings, the Report proposed that it should be an offence
Being drunk and disorderly would not of itself constitute an offence when the conduct is not threatening, abusive or insulting or where there is no intent to cause, or any likelihood of there being, a breach of the peace. The Report went on to recommend that a new offence should be created which would be committed by anyone who in a public
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The Dublin Police Act, 1842 has provisions under which it is an offence to fail to control a dangerous dog. The Commission considered whether it was now necessary to have such an offence or whether the provision in the Dogs Act, 1871 (under which a person could be ordered to keep a dog under control or have it destroyed) together with civil liability, sufficiently covered the problem. They concluded that failure to control a dangerous dog involved sufficient risk of personal injury to members of the public and was sufficiently culpable to warrant its constituting an offence. Accordingly the Report recommended that, in place of the existing provisions, there should be a new provision making it an offence in a public place (i) to allow any dangerous dog to be at large, or (ii) to fail to exercise proper control over such a dog, or (iii) to set on or urge any dog to attack or worry any person or animal.
It had come to the attention of the Commission that large numbers of unregistered motor vehicles were being used on the public roads in Ireland. While this problem is not directly related to any of the provisions of the Dublin Police Acts, it was felt that it was sufficiently related to the road traffic provisions of those Acts to warrant the Commission's availing itself of the publication of its Report on Offences under the Dublin Police Acts to make proposals in regard to it. Accordingly, the Report recommended that a new offence should be created which would be committed by any person who delivers on retail sale, lease or hire, a mechancially propelled vehicle that has not been registered or has not fixed on it a mark indicating its
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In making proposals for fresh provisions relating to offences previously falling within the scope of the Dublin Police Acts, the Report recommended penalties, including fines more in line with the existing value of money. The Commission also adverted to certain problems of general application associated with the maximum penalties prescribed for offences. In the first place there are some summary offences for which imprisonment is the only penalty provided by law so that it is not open to a court to fine a person found guilty of it. Furthermore, courts other than the District Court have not power to impose a fine for an offence which is a felony. Another difficulty arises from the fact that some enactments contain provisions which enable only a specified period of imprisonment or a fine of a specified amount to be imposed on an offender so that no lesser punishment is permissible in such cases. As a result a court may find itself compelled to choose between no penalty or an excessive penalty. To meet these problems the Report made the following recommendations relating to fines:
The Commission recommended the repeal of the specific powers of arrest, stop and search contained in the Dublin Police Acts. As regards the new offences proposed in the
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The Report on Minors' Contracts arose out of the examination of the law relating to the age of majority which in December 1975 the then Attorney General, Mr Declan Costello S.C., requested the Commission to undertake. The Commission recognised that the practical size of the problem of minors' contracts had been significantly reduced by the reduction of the age of majority to 18, pursuant to one of its earlier Reports, by the Age of Majority Act, 1985.
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The Report recommended the enactment of legislation which would introduce a general principle of restitution whereby a contract made between a minor and an adult would be enforceable by the minor against the adult but unenforceable by the adult against the minor; the adult would however be entitled to apply to the Court for compensation from the minor based on restitutionary principles. In making a decision on any such application it was recommended that the Court should have regard to
The Report recommended that the restitutionary principle should apply to both concluded transactions and those not yet concluded. This represents a different approach from the existing law under which, when the contract with the minor has been performed on both sides, the minor is not then permitted to resile from it whether, before it was performed, it was void, voidable or unenforceable. The Report proposed that the Court, in exercising its discretion in cases where a contract has been performed, should be required to have regard to the difficulties likely to result from reopening the contract for the party who contracted with the minor. The Commission was of the view that the application to contracts of this general equitable principle of restitution, whether executed or executory, would have the advantage of encouraging adults to contract responsibly
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The Report recommended that property should pass irrespective of the fact that the contract is unenforceable because one of the parties is a minor. The Commission did not consider it proper or sensible that a person who receives any property from another person should have to concern himself or herself as to whether the donor, grantor, vendor or lessor, as the case might be, derived the article from a minor. This should be the case whether or not the person receiving the property is a bona fide purchaser for value. Accordingly, the Report recommended that property should pass in all such cases; however, this would not preclude the Court from making an order in accordance with restitutionary principles affecting title to the property as between the minor and the person with whom that minor had contracted.
The Report recommended that special provision should be made for contracts of employment. Under the present law a contract of employment will bind a minor if, taken as a whole, it is for the minor's benefit. The Commission saw merit in this approach and expressed itself reluctant to create any unnecessary disincentive to the employment of minors at a time when teenage employment is hard to obtain. Accordingly the Report recommended that a contract of employment or for personal services should bind a minor if, taken as a whole, it is for the minor's benefit; however, the Report went on to recommend that the present law should be modified so that where the Court finds that the contract, taken as a whole, is not for the minor's benefit because it contains a particular term or terms, then, rather than being obliged to declare the entire contract unenforceable against the minor, the Court should have power to strike out the
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The Report recommended that contracts of loans to minors should remain void as they are under the existing law; moreover, no action should be capable of being brought on a promise made after full age to pay any debt contracted during infancy and any negotiable instrument given in respect of such a loan should be void and incapable of enforcement against a former minor. This recommendation is applicable even to loans for the purchase of necessaries which would be enforceable against a minor under the existing law.
The Report recommended that minors, once they have come of age, should be free to ratify undertakings made during their minority as well as to make new contracts with fresh consideration with respect to such undertakings. The Commission also considered the position of contracts involving continuing obligations which commence when the party is a minor but which continue after that party comes of age. The Report recommended that such a contract should become fully enforceable with respect to obligations contracted and to be dischaged by the parties whether before or after the minor comes of age. Accordingly, if a minor wishes not to be bound by a contract of this nature it will be necessary, under the Commission's proposals, that that minor should take steps to have the court apply the restitutionary principles before reaching full age.
The Commission recommended that the proposed
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The Report recommended that the proposed legislation should retain the rule that the minor should not be exposed to an action in tort where this would amount to an indirect enforcement of an unenforceable contract. It was further recommended that in cases where there is a misrepresentation by the minor as to age, the restitutionary principles applicable to contracts with such a minor should be applicable.
Under existing law it appears that an adult's guarantee of a minor's void contract is itself void. The Report recommended that this rule should be altered and that an adult who guarantees any contract made by a minor should be liable on the guarantee. It was the Commission's view that the present rule works against the interests of minors because anyone who might otherwise be prepared to advance money to a minor on the security of an adult guarantee is less inclined to do so.
The Report on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters recommended that Ireland should become party to that Convention. The Convention was adopted by the Hague Conference on Private International Law at its eleventh session in 1968 at which Ireland was represented by the late Mr Roger Hayes, then an Assistant Secretary in the Department of Justice, who became a member of the Law Reform Commission. The Convention
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The Report noted that it is the common practice in Irish litigation to invite all witnesses to travel to Ireland to give their evidence before the Court. If a witness is not prepared to travel but is willing to give evidence where he is resident, the usual practice is for the Irish court to appoint a commissioner (who is usually a barrister) to take his evidence there. The Commission concluded that the Convention was likely to be most useful in cases where a witness abroad is unwilling to give evidence voluntarily to a commissioner appointed by an Irish Court. Moreover, it believed that it represented a form of international co-operation which was conducive to the just resolution of litigation and was worthy of support on this ground. Since effect is now given to letters of request from other States under the Foreign Tribunals Evidence Act, 1856, the Commission concluded that no significant additional obligations would result from adherence to the Convention. For these reasons the Report recommended that Ireland should sign and ratify it. The Report also recommended that certain reservations and declarations should be made by Ireland at the time of ratification.
Adherence to the Convention would necessitate the amendment of the Foreign Tribunals Evidence Act, 1856 governing the execution of letters of request in Ireland for
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The Report on the Liability in Tort of Minors and the Liability of Parents for Damage Caused by Minors began by noting the mental ingredients of different classes of torts. Some torts, such as a breach of the rule in Rylands v Fletcher or the obligations imposed by section 3 of the Animals Act, 1985, involve strict liability. The minority of the tortfeasor does not afford a defence in such cases and the Report made no recommendation that there should be any alteration in this position. To establish other torts such as defamation or malicious prosecution, proof of malice on the part of the wrongdoer must be established. The Report did not recommend any amendment of the law as it affects minors in such cases. In the case of torts where the negligence of the wrongdoer or the contributory negligence of the person injured is an issue, the Report recommended that the standard for determining whether a child is guilty of contributory negligence should be that appropriate to a reasonable child of the same age, mental development and experience as the child whose conduct is in issue in the case. This would not involve any amendment of the existing law. However, the Report went on to recommend that the legislation should specify that the special standard proposed in respect of children should not apply to persons over 16 years. The Commission considered that this offered the courts a clear and workable rule and avoided anomalies which might be involved in the application of a subjective standard of negligence for all minors. Under the present law there is no such clear dividing line based on a fixed age. In the Report, detailed consideration was given to whether, as an exception to the general rule, the standard of care required of a minor should be that of an adult when the minor performs adult activities such as driving a car, using a gun or playing sports normally played
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The Report contained a statement of the present law relating to the liability of parents and other persons for the wrongful act of a minor. According to decided cases,
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The Report on the Liability in Tort of Mentally Disabled Persons dealt with the legal responsibility of mentally ill persons and of those affected by mental handicap and other disabling mental conditions. There has been virtually no case law on this subject in Ireland and the case law is scanty in other common law countries; consequently, many of the Commission's recommendations related to matters upon which the present law is unsettled. The general thrust of the recommendations in the Report was to make allowance for the mental condition of parties to litigation in determining their liabilities and rights.
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The Report recommended that, where it is a necessary ingredient for establishing a tort that the defendant should have acted voluntarily, the defendant should be relieved of liability if it is shown (a) that he was so affected by mental disability as substantially to lack the capacity to act freely, and (b) that as a result of this substantial lack of capacity he did the act complained of. Where, as in the case of trespass, it is necessary to show that the defendant intended to do the act complained of, the Report recommended that he should be relieved of liability if he suffers from such mental disability as to prevent him from acting with the purpose of bringing about the effect in question. Where, under the present law, a reasonable mistake relieves the defendant of liability (as may be the case where there is an assault), the Report recommended that it should be an effective defence to establish that the defendant did the act complained of as a result of a mistake brought about by a mental disability. Where a tort requires proof of a specific intention on the part of the defendant, the Report proposed that if the defendant suffers from a mental disability which is such as to prevent him or her from acting with the specific purpose of bringing about the effect in question the defendant should be relieved of liability; similarly where the tort requires some other other specific state of mind, such as malice, it was recommended that the defendant should escape liability if he suffers from a mental disability which is such as to prevent him having that state of mind.
In cases where it is relevant to establish whether a person was guilty of negligence or contributory negligence, the Report recommended that the law should apply the objective test of “the reasonable man” when determining the question, unless the person whose conduct is in issue establishes (i) that, at the time of the act in question, he or she was suffering from serious mental disability which
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The Report recommended that an employer or principal who is vicariously liable for a tort should be held liable notwithstanding the fact that the person guilty of the tort is entitled to escape liability by reason of his or her mental disability.
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The Report on Private International Law Aspects of Capacity to Marry and Choice of Law in Proceedings for Nullity of Marriage is concerned with the choice of law rules which should govern the question of the validity of a marriage which has some foreign aspect. The Commission recommended that as a general principle the law of the place of celebration of a marriage (lex loci celebrationis) should continue to govern the formal validity of a marriage. In applying the law of the place of celebration, it was recommended that account should be taken of the choice of law rules of that legal system even if this results in the application of the law of another country; this is a matter upon which the present law is not settled. In cases where parties are unable for good reasons to comply with the law of the place of celebration, the Report recommended that a marriage should be formally valid where each party undertakes thereupon to become man and wife. No special legislative provision was recommended in the Report for consular marriages or for marriages by members of the Defence Forces abroad.
As far as matters of substantial or essential validity are concerned, the Report recommended that a marriage should be valid when each of the parties has the capacity to marry the other according to the law of that party's habitual residence, including any relevant conflict of laws rules. Under the present law it is necessary that each spouse should have the capacity to marry the other according to the law of his or her domicile at the time of marriage. This recommendation made by the Commission for an alteration of the law is consistent with its preference for habitual residence over domicile as a connecting factor in private
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The Report considered the position where the parties to a marriage have capacity under the law of their habitual residence, but where the dissolution of a previous marriage of one or other party is not recognised under Irish law. In such cases it was recommended that the subsequent marriage should not be recognised under Irish law whether or not it complies with the requirements of capacity to marry according to the law of the parties' habitual residence. Conversely, where a marriage fails to satisfy the
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Where the validity of a marriage is questioned on account of lack of the necessary consent, the Report recommended that the question of the validity of a party's consent should be determined by the law of the country of that party's habitual residence; if the parties do not share the same habitual residence, the marriage should be invalid for lack of consent only when according to the law applying to the party in question that party did not provide the requisite consent. At present, it seems that the reality of a party's consent is determined by the law of the domicile, but it is not settled whether the consent must be valid by the law of both parties' domicile or merely by the law of the domicile of the party whose consent is questioned. As regards impotence as a ground of annulment, the Report recommended that a petitioner should be entitled to a decree of nullity on this ground if he or she is so entitled according to the law of the habitual residence of either party to the marriage. This position was adopted because impotence represents a failure going to the root of the marriage relationship rather than a defect in one of the parties. This is a matter upon which the existing law has not been clearly settled. It was also recommended that the ground of impotence should be determined by the law of the parties' habitual residence at the time of the marriage, rather than by the law of the parties' habitual residence at the time of the nullity proceedings. The Report envisaged that there might be circumstances in which the Courts of Ireland would grant a nullity decree on grounds of public policy where the law of the parties' habitual residence does not so provide. Thus, for example, if a foreign law failed to include as a ground for annulment one which appeared to
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It was recommended in the Report that such issues as the entitlement to petition after the other party to a marriage has died, the bars to the granting of a nullity decree, including approbation and ratification, and the issue of retrospection as regards the operation of a nullity decree, should be determined by the law of the parties' habitual residence subject to the application of the public policy proviso.
Finally, the Report recommended that where a decree for nullity is sought or obtained before an Irish court, any ancilliary financial matters relating to maintenance and property should be governed by Irish law, irrespective of whether other laws are applied to questions arising in the proceedings.
In approaching the rules on jurisdiction the Commission took the view that the Courts of Ireland should have jurisdiction in nullity proceedings when, in broad terms, the parties have a reasonable connection with the State.
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At present it is uncertain how far jurisdiction extends beyond cases where both parties are domiciled in the State at the time of the petition.
As regards the recognition of nullity decrees handed down in other jurisdictions, the Report noted that there have been no Irish decisions and that no clear principles have emerged from the decisions in other common law jurisdictions. The Commission decided that the best approach would be for our law to recognise such nullity decrees when the parties would reasonably expect that they would be recognised. Translating this broad and general criterion into specific terms, the Report recommended that a nullity decree obtained outside the State should be
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Regarding the withholding of recognition from foreign nullity decrees on grounds such as public policy, natural and constitutional justice and res judicata, the Report recommended that the courts should be allowed to develop the law because these questions are more easily considered in the context of a general judicial discretion than in terms of detailed statutory provisions which could not hope to anticipate in specific terms the wide variety of factual circumstances with which the courts may have to deal. Where a foreign nullity decree is obtained by fraud, whether as to the foreign court's jurisdiction or as to the actual merits of the petition, the Report recommended that the decree should not be recognised here. Where a party's predominant purpose in seeking to establish an habitual residence in, or a real and substantial connection with, a particular country was to obtain a nullity decree there, which would not otherwise be recognised, it was recommended that the decree should not in such circumstances be recognised. The object of this recommendation is to discourage “forum shopping”.
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The Report recommended that Ireland should not accede to the Hague Convention on the Celebration and Recognition of the Validity of Marriages (1978). According to the Convention rules in chapter I (an optional part of the Convention), a marriage would have to be permitted in a State party to the Convention when the future spouses meet the essential requirements of the law of the State, even if they do not meet the essential requirements of the law of their habitual residence. This would run contrary to the recommendations made by the Commission in the Report on Private International Law Aspects of the Capacity to Marry and Choice of Law in Proceedings for Nullity of Marriage (LRC 19–1985). The Convention also provides that, where a marriage complies with the law of the place of celebration, it has to be recognised as valid by other Contracting States, save in certain exceptional circumstances. The Report noted that this concentration on the law of the place where the marriage is celebrated represents a compromise between those States which at present refer to the law of the domicile of the parties to determine the essential validity of the marriage and those States which refer to the law of their nationality. In settling for the law of the place of celebration of the marriage the Convention favours a rule long since abandoned in most countries and under attack in the United States and some other countries where it was formerly adopted. The Commission felt that it was not desirable that the Irish courts should be compelled to recognise the validity of a marriage which failed to comply with the law of the parties' habitual residence. The Report concluded that the effect of the rules in the Convention would be to increase rather than reduce the present complexity of the international dimensions on the subject.
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The First Report on Family Law was submitted to the Taoiseach on 19 September 1980. In the Family Law Act, 1981 effect was given to the Commission's recommendations that the actions for criminal conversation and harbouring of a spouse should be abolished. However, the Commission's proposals that there should be a family action for adultery and for the enticement of a spouse were not accepted. The Act also gave effect to the Commission's proposals for the abolition of the action for breach of promise of marriage and for the determination of questions relating to the property of engaged couples and gifts obtained by them. No action has been taken on the other recommendations in the Report but the Taoiseach told the Dáil on 6 November 1984 that legislation arising from them is in the course of preparation. The Commission's recommendations included the replacement of the actions for loss of consortium, for loss of services of a child, for seduction of a child and for enticement and harbouring of a child by a single action for the benefit of members of the family. There were also recommendations relating to the determination of questions as to property between spouses, the effect of which would be that a spouse who directly or indirectly makes a contribution in money or money's worth to the acquisition, improvement or maintenance of the family home would be entitled to such share in the family home as appears to the Court just and equitable in the circumstances. In April 1983 the Minister for Justice announced that the Government had decided in principle that legislation would be
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The Report on Civil Liability for Animals was submitted to the Taoiseach on 5 April 1982. The Animals Act, 1985, which came into operation on 28 September 1985, was prepared following consideration by the Government of the Report. It follows the recommendation of the Commission in repealing the existing rule of law under which an occupier of land is not liable in negligence if an animal strays from his land onto the adjoining public road and causes injury or damage. The legislation also follows the recommendation of the Commission in providing that the person placing animals on unfenced land in an area where fencing is not customary is not to be regarded as having committed a breach of duty to take care. In imposing strict liability on the owners of dogs for damage caused by an attack on a person and in providing that an owner of a dog may be liable in negligence to a trespasser injured by it, the legislation also follows the Commission's recommendations. But the legislation does not give effect to the Commission's general proposal that the keeper of any animal should be strictly liable for any damage caused by it. The Commission's Report had also contained proposals for the impounding of animals wandering on any public road whose owner was unknown. The
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The Report on Defective Premises was submitted to the Taoiseach on 5 April 1982. The Taoiseach informed the Dáil on 6 November 1984 that it was being considered in the light of the passage through the Dáil of the Building Control Bill 1984, and the introduction of building regulations. No further action was reported by the Taoiseach replying to a question in the Dáil on 10 December 1985.
It should be noted that the judgment of the High Court in Ward and Ward v McMaster, Louth Country Council and Hardy & Co. Ltd., (1983 No. 4978P.) on 26 April 1985 brought the law into line with some of the recommendations in the
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The Report on Illegitimacy was submitted to the Taoiseach on 24 August 1982. On 24 October 1983 Mrs Nuala Fennell, Minister of State at the Department of Justice, announced that following consideration of the Report, the
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The proposals of the Government were embodied in a Memorandum entitled The Status of Children (P1. 3145) laid by the Minister for Justice before each House of the Oireachtas in May 1985. A draft Status of Children Bill was annexed to the Memorandum. Under the terms of this draft Bill children born outside marriage – described as non-marital children – would continue to have a separate status in law but most of the differences that now exist in the way in which the law treats persons born outside marriage and those born within marriage would be abolished. It is proposed to amend the Guardianship of Infants Act,
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The Report on the Age of Majority, the Age for Marriage and some Connected Subjects was submitted to the Taoiseach on 15 March 1983. On the 1 March 1985 the Age of Majority Act, 1985 became law. The Act adopts, with minor modifications, the central recommendation of the Report that the age of majority should be reduced from 21 to 18, or the age at which the person concerned marries, and that a person who has not attained that age should be described as a minor. The Act provides for the continuation of the existing statutory powers of the courts to make maintenance orders in respect of children up to 21 years of age. The Commission, having proposed a provision to this effect in its Working Paper on the subject (No. 2–1977), had concluded in its final Report that it would not be desirable to impose continuing maintenance obligations on parents of children (other than those who are mentally or physically disabled) who had reached the age of majority even if they were receiving full time education. The Act does not provide for the implementation of the recommendations of the Commission in relation to the minimum age for marriage or the effect on the validity of a marriage of the failure to obtain the consent of parents or guardians of a party who is below a certain age. The Minister for Justice stated that the Government considered that it was better to deal with this as a separate issue after having taken account of the Report of the Oireachtas Committee on Marital Breakdown. Other recommendations in the Report which the Minister stated were “being left over for another day” are those relating to the increase from 16 to 18 of the age up to which parents can be obliged to maintain a child under the Illegitimate Children (Affiliation Orders) Act, 1930 and the Family Law (Maintenance of Spouses and Children) Act, 1976, and those relating to the age at which a parent ceases to be
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The Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters was submitted to the Taoiseach on 7 November 1983. On 6 November 1984 he informed the Dáil that the general scheme of a Bill arising from matters in the Report was in course of preparation. No further action was reported by the Taoiseach replying to a question in the Dáil on 10 December 1985.
The Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws was submitted to the Taoiseach on 14 December 1983. On the 10 December 1985 the Minister for Justice told the Dáil that the general question of replacing domicile by habitual residence as a general connecting factor in our rules of private international law was being left for another day and would be taken up when the policy on whether divorce should be made available was settled one way or the other. Meanwhile, he said, it was proposed to abolish the domicile of dependency of married women under which they
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The Report on Divorce a Mensa et Thoro and Related Matters was submitted to the Taoiseach on 16 December 1983. He told the Dáil on 6 November 1984 that the general scheme of a Bill in relation to the recommendations in it was in the course of preparation. No further action was reported by the Taoiseach when replying to a question in the Dáil on 10 December 1985.
The Report on Nullity of Marriage was submitted to the Attorney General on 30 July 1984. On 6 November 1984 the Taoiseach informed the Dáil that its recommendations would be considered as soon as possible. No further action was reported by the Taoiseach when replying to a question in the Dáil on 10 December 1985.
On 2 October 1985, in P.C. (or. D'B) v D.'B., Carroll, J. rejected a petition for nullity based on duress and lack of mental capacity to form and sustain a normal marriage relationship. On the former, she held that on the state of the law at present, the mere fact that a marriage was entered into because of pregnancy is not a ground for annulment. On the latter, she found that at the time of the marriage, the petitioner did have an inadequate or
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“which to me is a mental condition rather than a mental illness. On one view, anyone who is immature is unsuited for marriage. But as long as the law permits people as young as the Petitioner [she was eighteen] to marry it cannot be a ground for nullity unless it exists to an abnormal degree.”
On 15 November 1985, in N (or. K) v K., the Supreme Court had to consider duress as a ground of annulment. This was a petition for nullity in which the petitioner was a girl who had been persuaded by her parents to marry the father of a child she was expecting. The Court approved McC v McC,  ILRM 277, noted in the Report on Nullity of Marriage (LRC 9–1984), in which O'Hanlon, J. had rejected the earlier decisions which restricted the concept of duress in nullity to threats of physical harm or threats falsely based, or other harmful consequences. “If,” said Finlay, C.J. “the apparent decision to marry has been caused to such an extent by external pressure or influence, whether falsely or honestly applied, as to lose the character of a full free act of that person's will, no valid marriage has occurred.”
The Report on Recognition of Foreign Divorces and Legal Separations was submitted to the Taoiseach on 17 April 1985. On the 10 December 1985 the Minister for Justice told the Dáil that the Government did not regard the present time opportune or appropriate to undertake a wide-ranging review of the rules of recognition of foreign divorces. It was, in their view, necessary that the internal law as regards divorce should first be settled. On 11 December 1985 the
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On 13 December 1985, in K.E.D. (or. K.C.) v M.C., Finlay C.J. delivering the majority judgment of the Supreme Court, made reference to the Report of the Commission:
“It may well be, as was urged upon the Court, that anomalies exist in the law of domicile when applied to the recognition of foreign divorces. It may well be that this area of the law, the reform of which has been recommended by the Law Reform Commission, should receive statutory attention, but that is not a reason in itself for considering a test of domicile which was the only test put forward in the High Court and the only test which arises on the facts of this case.”
Accordingly the Court declined to consider the recognition of a divorce obtained in England on the basis that the parties had a real and substantial connection with England.
As regards the other ten Reports submitted by the Commission in 1985 and summarised in Part I of this Report, the Taoiseach told the Dáil on 10 December that they would be considered as soon as possible. In relation to the Report on Offences under the Dublin Police Acts and Related Offences (LRC 14–1985) he stated that the recommendations therein relating to road traffic offences were being examined in the context of the preparation of a Road Traffic Bill which the Minister for the Environment was expecting to bring before the Dáil in 1986.
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During 1985, Mr Joseph Brosnan, who had been a Research Counsellor at the Commission since 1983, took up an appointment as Assistant Secretary in the Department of Justice. The Commission expressed its appreciation of his valuable contribution to its work and wished him well in his new post.
On the nomination of the Minister for Justice, the Minister for Foreign Affairs accredited Mr Justice Walsh, the President of the Law Reform Commission, and Mr Charles Lysaght, Research Counsellor at the Commission as Chef de Mission and Delegate respectively to represent Ireland at the Extraordinary Session of the Hague Conference on Private Internation Law held in October. This Session, at which States who were not members of the Hague Conference were represented as well as Member States, adopted a Convention on the Law Applicable to Contracts for the International Sale of Goods. This Convention deals with such matters as freedom of the parties to choose the applicable law, applicable law in the absence of choice, essential and formal validity of a Contract of Sale and the scope of the applicable law. The draft Convention submitted to the Conference and substantially adopted by it had been drawn up
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