The Gazette 1993

JULY/AUGUST 1993

GAZETTE

Recent Irish Cases Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer in Law, Dublin City University. The following case summaries have been reprinted from the Irish Law Times and Solicitors Journal w i th the kind permission of the publishers.

O'Callaghan v Attorney General High Court, 22 May 1992; Supreme Court, 25 February 1993 CONSTITUTION - TRIAL OF OFFENCES - MAJORITY JURY VERDICT - WHETHER CONSISTENT WITH TRIAL IN DUE COURSE OF LAW - WHETHER TIME LIMIT ON MAJORITY VERDICT CONSTITUTING INTERFERENCE WITH DECISION-MAKING PROCESS OF JURY - WHETHER JURY DECISIONS ENJOY ABSOLUTE CON- FIDENTIALITY - Criminal Justice Act 1984, s.25 - Consti- tution, Article 38.5 The plaintiff had been tried in the Circuit Criminal Court on charges of larceny and robbery and was convicted by a 10 to 2 majority of the jury. His appeal to the Court of Criminal Appeal was unsuccessful: The People v O'Callaghan (Court of Criminal Appeal, 30 July 1990). He then instituted the present proceedings claiming that s.25 of the 1984 Act, which permits majority jury verdicts provided that at least 10 members of the jury are agreed on the verdict, was repugnant to Article 38.5 of the Constitu- tion. In the High Court HELD by Blayney J dismissing the claim: (1) as s.25 of the 1984 Act had been enacted since the adoption of the Constitution, the plaintiff undertook a heavy burden of establishing that it was clearly repugnant to the Constitution. Dicta in Pigs Marketing Board v Donnelly Ltd [1939] IR 413 and In re the Offences against the State (Amendment) Bill 1940 [1940] IR 470 applied; (2) the essence of trial by jury was that a decision as to the guilt or inno- cence of the accused is made by a group of fellow citizens and not by a judge or judges; but unanimity was not an essential feature of trial by jury under Article 38.5 and a verdict was no less one of the jury where arrived at by a substantial majority of the jurors; how- ever, the extent of the majority was impor- tant and if it was substantially lowered it might lose the character of being a decision of the jury, but s.25 of the 1984 Act, which required a decision by at least 10 jurors maintained the substantial majority required by the Constitution. Dicta in de Burca v Attorney General (1976] IR 38 and Apodaca v Oregon, 506 US 404 (1972) applied; (3) the requirement in s.25 of the 1984 Act that the jury must have deliberated for 2 hours before reaching a majority verdict did not constitute an interference with jury delib- erations, the basis for its decision continu- ing to be the evidence given at the trial. On appeal HELD by the Supreme Court (Finlay CJ, Hederman, O'Flaherty, Egan and Costello JJ) dismissing the appeal and the plaintiff's claim: (1) the essential feature of a jury trial was to interpose between the accused and the prosecution a reasonable cross-section of people acting under the guidance of a judge, who would bring their experience and common sense to bear on resolving the issue of the guilt or innocence of the ac- cused, and a requirement of unanimity was not essential to this purpose. Dicta in de Burca v Attorney General [1976] IR 38 and The People v O'Shea [1983] ILRM 549;

[1982] IR 384 applied; (2) the provision of majority verdicts had the advantage for both the accused and the prosecution of reduc- ing the chances of disagreement; and suffi- cient time was provided in the 1984 Act for a minority to win others over to their point of view, and indeed this constituted a pro- tection and could not be regarded as an i nterference with the decision-making proc- ess of the jury; (3) the trial judge had also been correct in stating that a decision might lose its character of being a decision of the jury if the majority required was substan- tially reduced, but s.25 of the 1984 Act could not be impugned on this ground; (4) jury deliberations should always be regarded as completely confidential and should not be published after the trial, but s.25 did not breach this requirement since it was con- cerned only with the verdict and not with the deliberations of the jury. Dicta in The People v Longe 11967] IR 369 approved. Attorney General v Mr Justice Hamilton [1993] ILRM 81 referred to. Phonographic Performance (Irl) Ltd v Chariot Inns Ltd High Court 7 October 1992 COPYRIGHT - LICENCE SCHEME - DISPUTE BETWEEN PARTIES TO LICENCE SCHEME - REFERENCE TO CON- TROLLER OF INDUSTRIAL AND COMMERCIAL PROP- ERTY - WHETHER LICENSOR ENTITLED TO REMU- NERATION PENDING RESOLUTION OF DISPUTE - INJUNCTION - INTERLOCUTORY - WHETHER STATEABLE CASE MADE OUT - WHETHER MORE DAMAGE LIKELY BY REFUSAL THAN BY GRANTING RELIEF - BALANCE OF CONVENIENCE - Copyright Act 1963, ss.17, 31, 32 The plaintiff company, PPI, was incorpo- rated by Irish recording companies in order to protect the copyright in connection with the public performance and broadcasting of the recording companies' records, tapes and CDs. S. 17 of the 1963 Act provides that the playing in public of any recording con- stitutes a copyright infringement where this is done without the payment of 'equitable remuneration' to the copyright owner. In accordance with s.29 of the 1963 Act, PPI had published a 'licence scheme' setting down a schedule of payments for various types of public broadcast of Irish recordings. The defendant company operated a large licensed premises which included a disco, and agreed that some payment was due to PPI under s.17 of the 1963 Act. It was in d ispute, however, as to the amou nt i nvolved and referred the dispute to the Controller of Industrial and Commercial Property pursu- ant to s.31 of the 1963 Act. Where a dispute is thus referred under s.31, persons broad- casting or otherwise using the copyright material will not be deemed to infringe the copyright provided they give an undertak- ing to pay the amount determined by the Controller. Such an undertaking had been given by the defendant. PPI argued that only a reference under s.32 of the 1963 Act could be made, since s.31 was limited to disputes

concerning 'published' material, whereas the defendant company also wished to dis- pute the rate of equitable remuneration on future recordings. PPI instituted proceed- ings seeking to prevent the defendant from broadcasting material in breach of copy- right, and then applied for interlocutory relief. The defendants pointed out that simi- lar disputes on remuneration had also been referred to the Controller by other parties and the Controller had decided that he had jurisdiction to hear the references under s.31 of the 1963 Act. PPI had sought judicial review of this decision (see Phonographic Performance (Irl) Ltd v Controller of Indus- trial and Commercial Property, High Court, 19 October 1992, below) but, at the time of the instant application, judgment in the judicial review proceedings had not been delivered. HELD by Keane J granting the interlocutory relief sought: (1) it would not be appropriate to adjourn the instant appli- cation until judgment had been delivered in the judicial review proceedings; (2) it was clear that the issues at stake between the parties involved difficult questions of law; (3) the balance of hardship between grant- ing or refusing the relief sought lay in favour of the plaintiff, since it was likely that if the relief sought was refused other disco opera- tors would be advised to take the same course as the defendant in the instant case, and the plaintiff would therefore be unable to recover all sums due to it having regard to the changing nature of the disco business; whereas if the defendant was ultimately successful it would be able to enforce the plaintiff's undertaking to pay damages; and wh i le the defendant wou Id be al most whol ly inhibited from operating its disco, it would still be able to operate its licensed premises. Per Keane J: if the question of the balance of convenience had arisen for decision, it would lay in favour of granting the interlocutory relief also. Phonographic Performance (Irl) Ltd v Con- troller of Industrial and Commercial Prop- erty and Ors High Court 19 October 1992 COPYRIGHT - LICENCE SCHEME - DISPUTE BETWEEN PARTIES TO LICENCE SCHEME - REFERENCE TO CON- TROLLER OF INDUSTRIAL AND COMMERCIAL PROP- ERTY - WHETHER LICENSOR ENTITLED TO REMU- NERATION PENDING RESOLUTION OF DISPUTE - Copyright Act 1963, ss.17, 29, 31, 32 The applicant company, PPI, was incorpo- rated by Irish recording companies in order to protect the copyright in connection with the public performance and broadcasting of the recording companies' records, tapes and CDs. S.17 of the 1963 Act provides that the playing in public of any recording con- stitutes a copyright infringement where this is done without the payment of 'equitable remuneration' to the copyright owner. In accordance with s.29 of the 1963 Act, PPI had published a 'licence scheme' setting down a schedule of payments for various

1