Wednesday 27 April 2016

de minimis

. . . non curat lex. 'tis the Latin, usually translated as The law does not concern itself with trifles. It is the very old (common law) idea that law-time should not be taken up with tupenny-ha'penny supposed injuries. Some idea of the breadth (or indeed narrowness) of its application is given here. We'll get the schoolboy hilarity out the way first:
There was a law student called Rex,
Who had very small organs of sex.
When charged with exposure,
He said with composure:
De minimis non curat lex 
Now to the serious.  We were last weekend in the ninth week of being without a government because the people elected a clatter of demogogues without party affiliation or legislative policy beyond the fact that clean, chlorinated, cholera-free water supplied ad lib and costless from the kitchen tap is some sort of right.  In normal circumstances it is not much loss to have such a long holiday from further legislation to curtail our freedom to do daft and destructive things.  Look at the Belgians, they spent 20 months under a care-taker government because their elected representatives preferred to posture over immemorial rights and privileges rather than talk turkey / dindon / kalkoen with someone whose native language was different from theirs. We could have a government tomorrow if the two largest parties FG & FF, both right of centre christian democrat CD in flavour, were prepared to look to the future rather than continuing to re-hash disagreements that their grandfathers had in the internecine Civil War that helped birth the nation 100 years ago.

Well last week we needed some law because previous parliaments had drafted legislation that is so internally inconsistent and poorly thought out that serial perps are being let out on the streets to re-offend because judges are unable to keep them banged up in chokey. Justice accords rights of appeal even to those whom everyone knows to be a bad hat.  And proper order too: what everyone knows is all too often wrong.  Everyone knows that water comes from the sky, for starters. You can read the full text of Section 99 of the 2006 Criminal Justice Act, and see what you can make of it.  If it's easier <not!> you can read it in Irish because that's your constitutional right. The section allows judges to suspend all or part of a custodial sentence a) to keep minimise over-crowding in jails and b) to provide a bit of a carrot towards rehabilitation. That's fair enough.

The idea with suspended sentences is that they hang over you: if you come before the courts again, you can get sent back to the original court for committal to jail because you are already under sentence. It is typical of the lumbering law that even this summary justice is a two step process.  It's very difficult to get access to the law if you are in jail: your solicitor and barrister has to come to you for starters. And it is unconstitutional to deprive anyone, even perps citizens known to the gardai, of access to the law and if your first sentence is vindicated by a trip to jail, then you cannot easily appeal the second sentence which triggered that vindication. Mr Justice Michael Moriarty, who set the constitutional hare running would rather have a mugger out on the streets mugging some other innocent than deprive said mugger of his right of appeal.  The provisional Minister of Justice sees no problem in rushing some legislation through the Dáil to patch yet another hole in the teetering edifice of Irish law.

Just last September, a handful of drunk drivers had their convictions thrown out because the docket printed out by the breathalyser, which was the primary source of their conviction, was not issued in both Irish and English. The Irish language is a beautiful vehicle for poetry and a key aspect of national identity, but is it really more important than stopping drunkards careering about the roads? The fact that the person de-convicted by that loophole was a Romanian national, who would be about as fluent in Irish as one of our sheep, merely adds irony to absurdity. As a naive utilitarian, I have to ask if the greatest good has been served to the greatest number if a grossly irresponsible, not to say murderous act, has been allowed to pass unpunished to preserve the fig-leaf of national pride in a moribund language.

No harm in giving Anatole France another canter round the conscience of those who work in law:
"La majestueuse égalité des lois, qui interdit au 
riche comme au pauvre de coucher sous les ponts, 
de mendier dans les rues et de voler du pain."
In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread. Vive l'égalité! . . . mort aux innocents.

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