23rd November 2023
As we head into the winter months, the hot legal topic being covered in the media was addressed by Seamus Gunn, with Donal Kavanagh, being the running sentencing hearing in a North Carolina Court of Molly Martens Corbett and Tom Martens following their Manslaughter Pleas in respect of the death of Jason Corbett in August 2015. It was remarked by Donal Kavanagh how the sentencing hearing is being approached in a different manner than would be in similar cases in this jurisdiction. To some degree the deceased’s character was being put on Trial. Our contributor Seamus Gunn raised the points being focused on by the Defence who have continued to put forward a self-defence theory in mitigation and in support of it, putting the spotlight on the deceased with the allegations of domestic violence, following statements from his 2 children Sarah and Jack days after the event and the fear that his wife Molly Martens Corbett claimed to have for her own life as she believed that he had killed his first wife as far back as 2006. It was explained how a top pathologist had reviewed the postmortem reports in respect of her death and concluded that they did not disclose any cause of death. He ruled out the asthma theory as the cause of death, being critical of the manner in which the postmortem was carried out and believed that it was possible that it could have been strangulation. It was stressed that he was not putting forward this proposition but agreeing as a possibility while at the same time discounting the theory that the deceased was attempting to strangle Molly Martens Corbett on the night in question, which gave rise to the attack on him with a baseball bat in respect of Tom Martens and a brick in respect of his daughter. Our contributor thought that it was a difficult case to assess, that the emphasis by way of mitigation was being put on the deceased and his history in the marriage which in the first instance was corroborated by his children who then rescinded their statements both in Ireland and in the US. The question of influence was also addressed, and Seamus Gunn was of the view that this cut both ways, that if there was a theory of coaching in respect of the aftermath of the crime in the USA then that could also apply to the situation when the statements were withdrawn in Ireland. He said that there may be evidence to come on the actual recanting of the Statements. Our contributor also highlighted the difficult position that the 2 children Sarah and Jack found themselves in and he had some concerns on the impact this may have on them going forward.
He pointed out that if aggravated circumstances were found which could be interpreted on the basis of the children being in the house at the time, then the sentencing could range from 6-9 years but that if this was not the case and the mitigation Pleas were accepted then the sentence could be as low as 3 years, but this was entirely up the to the Presiding Judge to decide based on the evidence which had not all yet been heard. He said that if it was on the low scale that as both of the accused had already served upwards of 3 and a half years, they could walk free after the sentencing hearing. As there is further evidence to follow, we wait to see how it plays out.
The Q&A followed as usual, spanning a number of topics, which can be listened to below.
16th October 2023
At the beginning of a new Legal term Donal Kavanagh presented the show am, opening with the suggestion that our contributor Seamus Gunn must be on a bus man’s holiday with the different suits being played out in the USA between Donald Trump and Joe Biden. The former was referenced in relation to the latest allegation in the press of sharing classified information on the US nuclear submarines with an Australian businessman following a week when he was very much to the fore in relation to his ongoing Civil Fraud Trial in which it is claimed that he exaggerated his own riches by more than 2 billion. Seamus Gunn said against this backdrop you had Republicans striking out against the Democrats with the allegations against Hunter Biden, the President’s son, to charges that he lied about his drug use while buying a handgun, charges which our contributor thought were not to the fore some weeks back when he was under investigation for tax irregularities. He said that coincidentally this was 2 days after his father Joe Biden was impeached by the House of Representatives, being the last act of Kevin McCarthy before he was removed midweek as speaker of the house.
Seamus Gunn was of the view that politically the government cases against Donald Trump had not harmed him and in fact he thought that it strengthened his position among his own Republican supporters by making him appear to be a martyr for the Democrats, using the court cases to prevent him from retaking the White House. He said against this you had Joe Biden coming out in Arizona with a very heavy, hard-hitting speech in which he was pitting Democracy on one side against Donald Trump on the other, referencing a quote that “Democracy does not have to die at the end of a rifle, it can die when people are silent, when they fail to stand up or condemn threats to Democracy”. Seamus Gunn said that he thought that this argument could hold sway with the middle ground and when those that are undecided come to vote in November 2024, but that at present the poll would indicate that it is a 50/50 race for the White House.
Many issues were referenced in the Q&A that followed and can be listed to online.
16th October 2023
In the first show after the summer recess at the start of Autumn, the woes of Donald Trump were discussed in the context of the impact or otherwise of the 91 charges pending against him in various jurisdictions in the USA; New York, Florida, Washington and Georgia. Seamus Gunn took the view this morning that Donald Trump’s agenda was not being hindered by his exposure to the charges pending. He said that the Trump cavalcade is the only media show running in the USA and that they have kept him very much to the fore while President Biden was left in the background. He said that while he did not agree with the tactics, he thought that it suited Trump’s narrative and that it certainly galvanized his support, but it was the middle ground that had to be won. He was not convinced that this would have any appeal to the undecided electorate in the US and this would be where the race would be won or lost. He said he thought that America at this juncture needed some new young and fresh blood in both camps. He referenced the Kamala Harris succession plan that he understood was in place prior to the last election for the democrats which does not seem to have materialized. He suggested that if Donald Trump would stand down and, in his place, bring in a younger candidate, they could maximize Trump’s support and appeal to the undecided. This may be the only option if the Republicans are to regain the White House. Greg Hughes raised the point of the charges being politically motivated, to which Seamus Gunn countered that the Washington conspiracy charges which resulted in the loss of 5 lives with multiple prosecutions and convictions to date, in his view could not be interpreted as political.
You can listen to the full interview here:
16th August 2023
The July Greg Hughes Show could not avoid the topic exercising many peoples’ minds being the ongoing controversy in RTE and how this has been played out on the airwaves. Seamus Gunn opened by making a point that he thought was not receiving the coverage it deserved, that being the different tier makeup of the responsibility for the statutory body. He said that while a lot of the media’s attention was focused on the leading personality and another one coming into the headlines in the last 24 hours, the structure within the setup laid responsibility with the board members appointed by government to oversee and to hold to account the executive board led by the director general who recently stood down. The presenter countered by highlighting that the board were kept in the dark by the executive board and therefore they were not in a position to oversee this aspect. While our contributor said he would accept this point for 1 and possibly with a stretch to 2 years, he emphasised that it was an ongoing “modus operandi” from 2017 to 2022. He was not for absolving the board of the responsibility to oversee that proper management, practices and processes were in place and being implemented by the executive board who were in charge of the day-to-day management of the station. This goes to the heart of corporate governance, and he did not accept that ignorance of the facts was an acceptable excuse in relation to discharging one’s obligations.
A second point that was alluded to was the circuitous method of payment of the 2 annual sums of € 75,000.00 which after intermediary fees were added, it is reported amounted to € 230,000.00 approx. He said that the convoluted method of making the payment would likely be the subject of further scrutiny in the coming week when both Noel Kelly and Ryan Tubridy are to appear before both the media committee and the public accounts committee. He expects that there will be further comment and explanations forthcoming. Greg Hughes made the point about the likely tax implications for the statutory body going forward and was not happy with moral ethics that were adopted by making payments and guaranteeing payments to an individual while at the same time expecting others to tighten their belt. Our contributor was of the view that contractual obligations had to be honoured, that it was the method in which they were discharged that was under scrutiny. No doubt more to follow on this one.
While the Q&A session is always varied, today’s programme was more varied than most and can be listed to below.
16th August 2023
The first summer show started with the developments in France, with new legislation being introduced to crack down on Influencers, to bring online personalities under the same advertising rules as traditional media which will result in a major crackdown on undeclared advertising and fraud, penalties of up to 300 K, fines and up to 2 years imprisonment being introduced. Seamus Gunn made the point that there was an estimated 150,000 Influencers in France, some with Millions of subscribers who would now have to make it clear in their poster blog that they were in fact advertising, or in a commercial arrangement with a view to promoting a product.
The further development of restricting influencers to prohibit promotion of cosmetic surgery and tobacco was welcomed, also with restrictions on promoting sports betting and lottery games. Seamus Gunn was of the view that a more uniform approach would be needed in the EU in general to hold Influencers more accountable. He made the parallel comparison to the Irish Jurisdiction where the Consumer Protection Commission recently published a report with a finding that failing to label adds was widespread within the industry with up to 48% not being identified as advertisements. This type of statistic shows that Ireland is not functioning to the level that the French would have it which is likely to be the subject of further review and debate in the ever-evolving Social Media Blogging world.
Everything from wildlife to property matters was touched upon in the Q&A that followed, which may be of interest and can be listened to below.
23rd May 2023
As we approach summer 2023, our contributor Seamus Gunn today highlighted the implementation of the Assisted Decision Making (Capacity) Act 2015 which came into effect on the 26th April last. He said that this could be a game changer for thousands of families throughout the country, mentioning that there are upwards of 2,150 individuals in Wardship at present and that there is a fund of approx. € 1.9 Billion to be administered under the new regime, whenever the review has taken place of all the current Wards. The Act has been a long time in gestation, requiring an amendment in 2022 to get to the stage today where the Decision Support Service (DSS) has been set up under the Mental Health Commission which dates back to the 2001 Legislation. For the first time, capacity has been recognised as a fundamental Human Right and there is now a presumption that everybody has capacity until proven otherwise. He referenced the different tiers of the new roles that have been introduced by the DSS.
He said at the lower level a decision-making assistant could be appointed for one who was in the early stages of a capacity issue and that while they would ultimately make the decision, they would have the help of the designated person and the DSS would be notified.
The next tier referred to was the co-decision maker arrangement, where the individual would appoint a person to make decisions in co with them. Again, as with all the roles, the DSS oversees. The agreement would be registered with them and no decision could be made without the involvement of the Relevant Person. He said that if one got to a stage of a more advanced capacity issue, while the old system of the Ward of Court has now been abolished, you would now have a role for a decision-making representative who would ultimately be appointed through the Circuit Court, rather than the High Court. The Enduring Power of Attorney would also come under his heading, which once again would be registered with the DSS pending it being triggered by the relevant person losing capacity.
Finally, he said that another major development was the use of health care directives and health care representatives where one wanted to make decisions in advance when they had capacity as to what types of treatment that they were to receive in the event that they lost capacity.
Our contributor noted that the old legislation referred back to the Lunacy Regulations Act of 1871 and that now finally we have got to a situation where for the first-time capacity was being acknowledged as a fundamental human right and protected under legislation now introduced. No doubt this topic/issue which has an impact on so many lives, shall be further debated in the future.
While the ascending or descending star of Donald Trump (depending on which side of the fence one is on) was also discussed, the following Q&A touched on a number of issues.
21st April 2023
In the week that was in it, with all eyes on the State visit of the US President Joe Biden, the show kicked off with Donal Kavanagh this morning with our contributor Seamus Gunn drawing comparisons between the current president’s stay in Ireland and that of his predecessor Donald Trump’s visit in June 2019. Seamus Gunn thought that Biden’s visit was very cleverly choreographed from touching down in Belfast on Tuesday to his joint houses of the Oireachtas address yesterday the 13th and the conclusion later today in his native Ballina in Mayo. He said that he had balanced the personal with the political and he carried a common theme throughout the 3 days, that of dignity, courage and possibilities. He said that in contrast Trump’s visit was on the backdrop of a 3 day State visit to the UK at the beginning of June 2019 and he touched down in Shannon for a one night stay at his Doonbeg Resort where he took in a round of golf, having met with the Taoiseach Leo Varadkar in Shannon, but his main concern at the time was China rather than Europe. This again was unlike President Biden, who’s emphasis was on the unity and partnership between Ireland, the USA and Europe and the endless possibilities going forward. He also commented on Biden’s speech in Belfast with the emphasis on encouragement for the executive to be got up and running again, stating that if nothing else was achieved as a result of his visit, this would be very positive, especially with the momentum it gave the 25th Anniversary celebrations, of the Good Friday Agreement, which are imminent.
Contrast this to Trump’s appearance on an indictment last week in New York on various criminal charges being linked to influence the outcome of the 2016 election. Our contributor Seamus Gunn said that he had some sympathy for him as he was the first president to be charged in such a manner and it could be claimed that the allegations amounted to misdemeanors while former holders of high office in the USA have faced much more serious allegations but never charged. He was of the opinion that this suited the democrats as it galvanized the baseline support for Trump to ensure that he would secure the Republican nomination and that the Democrats would be comfortable to have Biden run against Trump with Kamala Harris on the ticket. He thought that there was a lot more to be played out on this going into the back end of the year but said that he would not be surprised if the charges of last week went into the ether as they were not scheduled to come back to Court again until December next.
One of our most varied Q&As followed and can be listened to below.
21st April 2023
The March show kicked off highlighting the challenge against the Personal Injury Guidelines which opened in the Supreme Court earlier in the week and concluded with a reserve decision. Seamus Gunn outlined the background to the case and the Personal Injury claim by one Bridget Delaney of Dungarvan who had a trip and fall on a public footpath in April 2019 when she suffered a fracture to her right ankle. The matter was pursued through PIAB, with an award of € 3,000.00 for General Damages for the Injury sustained. He said that preceding the Personal Injury Guidelines, this type of injury would have attracted Damages of € 18,000.00 – € 20,000.00 or thereabouts. He explained that the result of the current challenge would have serious consequences for victims of accidents who are pursuing the matter through PIAB and the Courts, and also the Insurance industry while awards since the introduction of the Guidelines have been cut in some incidences by 40%, he said that the gains were not being passed on by way of premium reductions. He said that the matter came before the High Court in 2022 when Justice Meenan rejected Ms. Delaney’s claim that PIAB had acted in breach of fair procedures and that her assessment should not have been conducted under new guidelines. She also sought Declarations that they were in breach of her rights to Natural and Constitutional Justice and that the Judicial Council acted outside its powers in adopting the Guidelines. All arguments were rejected in the High Court and as there was a serious public interest point arising, the Appeal went straight to the Supreme Court. It was heard before a 7 Judge Court. Our contributor thought that the main pillar of the argument for the Appellant was that there was an overlap in relation to the Separation of powers in that the Judiciary who sat on the Judicial Council of which there was 146 to adopt the guidelines recommended by the committee which was set up as a result of the Judicial Council Act 2019, were now being requested to Adjudicate upon its Constitutionality. He said that he was somewhat uneasy about the manner in which the guidelines were introduced in the first place and that they were set by Judges who ultimately had to make decisions in relation to their implementation. The reserve decision is awaited with interest.
What followed in the Q&A touched on many wide and varied topics from Consumer Rights, the office of the DPP, Property Acquisitions and the Courts.
20th February 2023
Starting what developed into a diverse show this am, with a number of topics covered, the story on the denial of disability payments to those in full time care and payment for full time care in private care homes was referenced and discussed by Seamus Gunn and Greg Hughes this morning. The regulations of 1981 which introduced the policy of denying the disability payments to those in state care and the strategy adopted by the government in dealing with this matter over 3 successive governments was highlighted. Seamus Gunn also drew a distinction between the care for those in public care homes as opposed to those in private care homes and the fact that a redress scheme was introduced for the former in 2006. The Court of Public Opinion was mentioned, distinguishing it from 3 separate branches of the State, being the Legislature, the Executive and the Judiciary. He questioned governing retrospectively and historically, accounting for events long since passed. He was of the view that all systems evolve to include laws with amendments over decades. He highlighted the point that legal strategies are commonly adapted to reduce liability and that the government that were charged with maintaining the coffers of the state had a duty to the public to manage the finance in the interest of the State. He said in relation to the disability payments, that they got lucky in that the claims did not materialise as anticipated over the years and that it was not until this was recently brought to light that the matter came into the public domain again despite the fact that the strategy and policy had been in place for 30 years. He said that it was not at all clear as to who would now benefit if the redress scheme was put in place to reimburse those that were deprived their disability payment when in care. He said that this was entirely separate from those claiming to be reimbursed for fees for private nursing home care, which he was of the view had not been litigated or determined by a Court while cases may have been settled. No doubt this emotive and sensitive issue shall have to be further addressed by The Executive.
The Q&A that followed touched on consumer issues, succession and burdens on property.
12th January 2023
The year opened with a wide and varied Q&A this morning with our contributor Seamus Gunn dealing with medical negligence, explaining the steps involved in commencing such an action. Then moving on to a number of Succession questions including the 1965 Succession Act, the pros and cons of putting one’s arrangements in place, to property matters and title issues with the complications that can arise when mapping discrepancies are discovered between properties.
This followed an earlier discussion on the ongoing issues arising from the release of Enoch Burke from Mountjoy pre-Christmas to the latest developments in the story with likely more to follow.
With every good wish to all our clients and listeners for the New Year and going forward in 2023.