ARCHIVED SITE

This site is no longer being updated (last updated 8 April 2010). 

To read and download court documents filed after 8 April 2010 in my case against University College Dublin please visit www.scribd.com/patrick_kelly

 

 

 

1.     SEX DISCRIMINATION AND UNIVERSITY COLLEGE DUBLIN (UCD)

2.     DUBLIN’S TRINITY COLLEGE AND THE “VISITORIAL SYSTEM” OF GOVERNANCE

 

 

This is a website about my sex discrimination case against University College Dublin (UCD) and the “visitorial system” at Dublin’s Trinity College.

 

 

Download key documents relating to both cases on Scribd

www.scribd.com/patrick_kelly

 

 

 

 

 

MY SEX DISCRIMINATION COMPLAINT AGAINST UNIVERSITY COLLEGE DUBLIN (UCD)

 

Patrick Kelly v. National University of Ireland, Dublin

Complaint under Equal Status Act 2000 to the Director of the Equality Tribunal

ES/2002/0314

 

In one sense all this began in March 2002, when UCD rejected my application to its postgraduate social work course.  In April 2002 I referred a sex discrimination complaint against UCD to the Director of the Equality Tribunal under the Equal Status Act 2000.  In November 2006 (i.e. 4 years 7 months later) I was notified that my complaint had been rejected.  I have appealed to the Circuit Court against that decision.

 

Circuit Court Case

Patrick Kelly v. National University of Ireland, Dublin AKA University College Dublin (UCD) (Defendant) and the Director of the Equality Tribunal (Notice Party)

Circuit Court 2006 Record Number 7275

 

MY NOTICE OF MOTION  (November 7, 2006) (PDF)                  MY NOTICE OF MOTION  (RTF)

 

MY AFFIDAVIT  (November 6, 2006) (PDF)                                   MY AFFIDAVIT  (RTF)

 

The case was listed ‘for mention’ at court 28, The Four Courts, Dublin on Wednesday, November 29, 2006 at 10.00am to “establish…duration”.  On that date I informed the Circuit Court that I would require 2 days to present my case.  Eugene O’Sullivan, the solicitor for UCD, said that he “expect[ed]” the case would take 1.5 days.  I then said that that 1.5 days would be in addition to the 2 days I need, meaning that the total duration will be 3.5 days. 

 

I wrote to Eugene O’Sullivan, the solicitor acting for UCD, on November 30, 2006.  I copied that letter to the Chief Executive Officer at UCD and to the Director of the Equality Tribunal.  A copy of my letter to Mr O’Sullivan is available by clicking here. 

 

On December 14, 2006 I received Mr O’Sullivan’s reply to my letter of November 14, 2006.  I sent a response that same day.  A copy of my responding letter (December 14, 2006) can be read by clicking here.  My response deals with the claims Mr O’Sullivan makes in his letter.   

 

Mr O’Sullivan replied with a letter dated December 21, 2006 but not received until December 23, 2006.  In it he reveals, I think, more than he perhaps intended.  The text of his letter can be read by clicking here. 

 

Obviously, in sending the letter he realized and intended that I would not receive it until after the notice of motion under Order 57A, Rule 6(6) of the Circuit Court Rules had been filed.  It was a crude, shameless and desperate attempt to sabotage the application.  Unfortunately for him – or, rather, unfortunately for his “clients” (he’ll get paid whether they win or lose) – I didn’t actually file the application on December 21.  I decided instead to file the application when the Civil Office of the Dublin Circuit Court re-opened in January.  Consequently, when I wrote the supporting affidavit I was able to incorporate the new information revealed in Mr O’Sullivan’s letter dated December 21, 2006. 

 

On December 1, 2006 I received a letter from the Courts Service informing me that the hearing for the appeal will take place on June 14, 2007 at Court 28, Four Courts, Dublin 7.  I photocopied this notification and sent it to Mr O’Sullivan, to the Chief Executive Officer of UCD, and to the Director of the Equality Tribunal.  A copy of the cover letter can be read by clicking here.

 

Application under Order 57A, Rule 6(6) of the Circuit Court Rules –

 

NOTICE OF MOTION (January 4, 2007)

 

AFFIDAVIT (January 4, 2007)

 

Order 57A of the Circuit Court Rules can be read by clicking here.

My application under Order 57A was filed at the Circuit Court Civil Office on January 4, 2007 and the supporting affidavit is also dated January 4, 2007. 

 

Order 57A, Rule 6(6) of the Circuit Court Rules states:

 

“Upon the application on notice of any party the Judge may order any other party to deliver full and better particulars of any matters stated in the appeal, or to deliver copies of any documents referred to therein” [emphasis added].

 

The Courts Service official with whom I spoke when filing the application said that this application would be assigned to the County Registrar’s list for hearing.  I strongly objected and wanted it assigned to the Judges list but the official insisted: “This type of motion goes to the County Registrar”. 

(I later learned that this application should never have been assigned to the County Registrar’s list.  Order 57A explicitly states that these applications should be heard by a “judge”.  The County Registrar is a Court Service official with limited statutory powers of a judicial nature but she is not a judge.  Section 34(1) of the Courts and Court Officers Act 1995 allows a County Registrar to “may make any of the orders mentioned in the Second Schedule to this Act”.  An order under Order 57A, Rule 6(6) of the Circuit Court Rules is not an order “mentioned in the Second Schedule to the Courts and Court Officers Act 1995.  Paragraph 1, sub-paragraph (iv) of the Second Schedule to the Courts and Court Officers Act 1995 does refer to “discovery” but this is “discovery” according to Order 32 of the Circuit Court Rules.  My application was an application under Order 57A, Rule of the Circuit Court Rules, which is very different to the “discovery” process set out in Order 32.  A copy of Order 32, provided for purposes of comparison, can be read by clicking here).        

 

As can be seen from the Notice of Motion, 3 categories of documents are sought.  By its own admission UCD deliberately destroyed 47 percent of these documents last August; this application is for the remaining 53 percent.

 

When I filed the Notice of Motion and supporting affidavit at the Circuit Court Civil Office on January 4, 2007 I asked for the application to not be placed on the County Registrar’s list and for it to instead be assigned to the Judges list. As I have said, the official to whom I was speaking was, however, adamant that the application would have to be made to the County Registrar and accordingly assigned the application to the County Registrar’s list.  The date I was given was January 24, 2007.  When I moved the application on that date, however, the County Registrar admitted that she had not read my supporting affidavit and she adjourned the application to January 31 “for decision”.  I returned to the County Registrar on January 31, 2007.  On this occasion the County Registrar said that she intended to make an order under Order 32, Rule 1 of the Circuit Court Rules, i.e. an order requiring the Defendant “to make discovery on oath of the documents which are or have been in his possession or power”.  Evidently wishing to appear charitable, she added: “There will be liberty to re-enter”.  I pointed out that I already knew what documents “are or have been” in the “possession or power” of the Defendant.

I also pointed out that this is an application under Order 57A, Rule 6(6) of the Circuit Court Rules and not an application under Order 32.

 

When I reminded the County Registrar that my application was for “copies” of specific documents the County Registrar became extremely agitated and said that she “didn’t realize” I wanted copies of the documents. I continued to dispute the validity of her intentions and her familiarity with the Notice of Motion until the County Registrar eventually – but reluctantly and ungraciously – agreed to my demand that she transfer the application as a whole to the Judges list.  The barrister for UCD was completely opposed to having the application transferred to the Judges list and instead expressed his wholehearted approval with the course the County Registrar had intended to pursue.

 

As UCD knows, and as the County Registrar knew, this case is scheduled for hearing in June 2007.  The Defendant wishes to waste as much time as possible in the hope that a decision on my application will not be reached by June and that in consequence of this I will be forced to either seek an adjournment of the appeal or present my case without having the relevant and necessary documents.

 

On January 24, 2007 I had the advantage of listening to and noting the claims advanced by the barrister for the Defendant in opposing this application. On that occasion the barrister claimed:

 

1. That the documents UCD destroyed last August were the documents relating to those applicants who did not accept (“declined”) the offer of a place on the postgraduate social work course in 2002;
2. That the remaining documents are “not relevant”;
3. That the remaining documents are “not necessary”;
4. That I “must identify the least qualified female applicant” who was offered a place on the course in March 2002 to prove my case;
5. That the remaining documents are “of a sensitive nature”;
6. That I “am trying to make a case, not advance the case already made”; and,
7. That the documents that were destroyed last August were destroyed “in accordance with “the school’s document disposal policy”.

 

I responded to each of these claims on January 24, 2007.  My response to each claim is provided below:

 

1. That the documents UCD destroyed last August were the documents relating to those applicants who did not accept (“declined”) the offer of a place on the postgraduate social work course in 2002.

UCD has not offered or provided any evidence or proof to substantiate this claim.  However, even if true, the documents relating to the applicants who accepted a place on a course in 2002 are still available and have not been destroyed - yet.

 

2. That the remaining documents are “not relevant”.

The remaining documents are “relevant” because they relate to the qualifications of the applicants who were offered and accepted a place on the postgraduate social work course in 2002 and how those applicants were assessed, ‘ranked’ and selected for the course.  Please see paragraph 53 of my supporting affidavit dated January 4, 2007 and Taylor v. Clonmel Healthcare Ltd [2004] IESC 13 (February 11, 2004).

 

3. That the remaining documents are “not necessary”.

Please see paragraph 47 of my supporting affidavit dated January 4, 2007 and Taylor v. Clonmel Healthcare Ltd [2004] IESC 13 (February 11, 2004).

 

4. That I “must identify the least qualified female applicant” who was offered a place on the course in March 2002 to prove my case.

I am not required to “identify” anyone to prove my case.  Please see paragraph 103 of the affidavit dated November 6, 2006 and Barton v. Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 EAT (April 3, 2003).

 

5. That the remaining documents are “of a sensitive nature”.

Please see paragraph 63 of my supporting affidavit dated January 4, 2007 and O’Callaghan v. Mahon [2005] IESC 9 (March 9, 2005).

 

6. That I am “trying to make a case, not advance the case already made”.

Please see paragraphs 49-54 of my supporting affidavit dated January 4, 2007 and Taylor v. Clonmel Healthcare Ltd [2004] IESC 13 (February 11, 2004).

 

7. That the documents that were destroyed last August were destroyed “in accordance with the school’s document disposal policy”.

That is an utter lie. The documents that were destroyed last August were not destroyed “in accordance with the school’s document disposal policy”.  Exhibit PK5 to my supporting affidavit of January 4, 2007 is a photocopy of a letter dated December 21, 2006.  It was written by Eugene O’Sullivan, the solicitor for the Defendant.  In this letter Mr O’Sullivan states that “the School’s Record Retention Policy…provides that ‘records of unsuccessful direct applicants for undergraduate and postgraduate courses’ be kept for two years and then shredded”.  According to “the School’s Record Retention Policy”, as described by the solicitor for the Defendant, the “records” of the “unsuccessful” applicants for the postgraduate social work course should have been destroyed in 2004.  But Mr O’Sullivan admitted, in this letter, that these particular “records” were not destroyed (“shredded”) until “August 2006”, i.e. when the Defendant and I were notified by the Director of the Equality Tribunal that she was proceeding with the hearing for the complaint and that she had “arranged” for the hearing to “take place” the following month, i.e. September 2006.  The notification from the Director of the Equality Tribunal is dated August 16, 2006.  It was at this point that the Defendant chose to destroy 47 percent of the relevant documents.  Please see paragraph 79 and Exhibit PK48 to the affidavit dated November 6, 2006.

 

The County Registrar transferred the application to Circuit Court Judge Jacqueline Linnane and I returned to the Four Courts on February 14, 2007 for this application.  Without even waiting to hear what I had to say about my application the Judge immediately said that she would allow the Defendant to submit an affidavit in response to my application.  I protested:  “They already had their chance to do that.  They could have filed a responding affidavit but did not.  They should not be afforded another opportunity now to write an affidavit regarding this application”.  The Judge refused to listen to any of my objections and merely asserted:  “I want to see an affidavit from the Defendant”.  I was constantly interrupted by the Judge and prevented from speaking.  The barrister for the Defendant, on the other hand, was allowed to hold forth at length about their opposition to the application and the time they would require to write the affidavit.  At the Defendant’s suggestion the Judge afforded the Defendant 2 weeks to file their belated affidavit opposing my application (i.e. until February 28, 2007) and rescheduled the hearing of the application to March 7, 2007 – when she will have “the benefit of the Defendant’s affidavit”. 

When I again tried speaking the Judge snapped:  “Behave yourself, Mr Kelly!”  Glaring at me, she said that she would order me to leave the courtroom if I persisted.  I merely shook my head in disgust.          

 

Of course, it had been clearly stated in my Notice of Motion under Order 57A, Rule 6(6):  “Any affidavit intended to be used in reply to this application should be filed and delivered before the hearing of this application”.  This sentence appears in all Notices of Motion.  This means that a replying affidavit “should” have been “filed and delivered” before January 24, 2007 (the date specified in the Notice of Motion).  Judge Linnane, in her conspicuous generosity toward and deference to the Defendant, chose to disregard this and the normal practices of the Circuit Court.

 

After the spectacle at the Circuit Court on February 14, 2007 I wrote another affidavit to supplement my affidavit dated January 4, 2006.  This new affidavit is dated February 27, 2007 and was filed at the Circuit Court that day.  

 

AFFIDAVIT OF FEBRUARY 27, 2007  (.PDF)

 

AFFIDAVIT OF FEBRUARY 27, 2007  (.rtf) 

 

On March 1, 2007 I received a copy of an affidavit dated February 28, 2007 sworn by Suzanne Quin and “on behalf of the Defendant”.  Suzanne Quin is, according to her affidavit, the “Head of the School of Applied Social Science at University College Dublin”, i.e. the ‘School’ responsible for the postgraduate social work course at UCD. 

I wrote, in less than a day, a replying affidavit and filed that replying affidavit at the Circuit Court on March 2, 2007 (for March 7, 2007).

 

AFFIDAVIT OF MARCH 2, 2007  (.PDF)

 

AFFIDAVIT OF MARCH 2, 2007  (.rtf)

 

If the disclosure application is refused I can, in accordance with Part IV of the Courts of Justice Act 1936 and Order 61, Rule 2 of the Rules of the Superior Courts, appeal to the High Court. 

 

When I went back to the Circuit Court on March 7, 2007 I requested that the case be assigned to another Circuit Court Judge.  UCD opposed this, of course.  Judge Linnane brusquely asked why I was requesting this.  I replied:  “I have doubts about your impartiality”.  Eventually, she agreed to transfer the application to the President of the Circuit Court and the Defendant and I moved across to Court 28 at the Four Courts.  In advance of addressing the President on my application I told him that I would need 1 hour.  The President of the Circuit Court listened to me for 10 minutes but then abruptly adjourned the application to March 12 at 10.30am.  He said he wanted to read the affidavits relating to the application.  I told him that that is reasonable but that I will still need (and expect to be allowed) an hour of his time on Monday.  The barrister representing UCD again averred to the Defendant’s “concerns” and emphasized its opposition to the disclosure application.  I said:  “Perhaps he should allow me to move the application first.  It might allay – or expose – those ‘concerns’ ”.  The discomfort and irritation of the solicitor for the Defendant, Eugene O’Sullivan, who sat scowling throughout the proceedings and stared intently at the floor when I referred to him and pointed to him when presenting my application to the Circuit Court, was unmistakable. 

 

 

March 12, 2007:         

The President of the Circuit Court dismisses my disclosure application and orders me to pay the Defendant’s costs relating to the application

 

On Monday, March 12, 2007 I returned to Court 28 at the Four Courts, where the President of the Circuit Court, Matthew Deery, is ‘based’.  I noticed that when my application came up the courtroom was practically empty. 

 

When I rose to speak in this almost empty courtroom the President of the Circuit Court, Mr Justice Deery, muttered bad-temperedly that he had read my affidavits and did “not see the need” for any further “delays”.  In other words, he was quite ready to pronounce judgement.  Indeed, he already had in front of him the notes he was later to read from in delivering his judgement (rejecting my application).  I insisted, however, on my right to address the Court on the application.  Actually, I had to explicitly invoke Article 34, section 1 of the Irish Constitution (“Justice…, save in such special and limited cases as may be prescribed by law, shall be administered in public”) and Article 6, paragraph 1 of the Convention (“…everyone is entitled to a…public hearing…”) – or, rather, I had to show Mr Justice Deery that I knew I have these rights – before he grudgingly relented. 

 

A copy of my prepared notes can be read by clicking here. 

 

I did not diverge from my prepared notes and indeed gave copies of my notes to the judge and to the Defendant’s lawyers when I finished speaking.   

 

When I finished speaking the judge turned to the Defendant’s barrister and told him that he was “familiar” with the Defendant’s “concerns” and had “studied” Professor Quin’s affidavit outlining those “concerns”.  The Defendant’s barrister mumbled that he was “obliged” to the Judge and said that because of those “concerns” my application should be refused.  The judge smiled benignly at the Defendant’s barrister and began reading his judgement from the notes he had in front of him.  His judgement principally consisted of a vague and misleading restatement of my gender discrimination case.  Finally coming to the disclosure application, he commented:  “I do not consider it appropriate at all”.  He spoke of the “sensitivity” of the information in the applications, “likewise the scoring sheets”.  My application, he repeated, was “inappropriate” and “should not have been made”.  He quoted paragraph 7 of Suzanne Quin’s affidavit, which related to the “personal statements” written by the course applicants and appended to their applications; Suzanne Quin had written:

 

“…the personal statements sought in the course of aforementioned application process elicited in many cases the furnishing of private, confidential and intimate details about the personal circumstances and background of many of the prospective applicants to the course.  In certain cases such disclosures included personal revelations about individuals’ personal family and background experiences of such sensitive and personal issues as, for example, sexual abuse, suicide, incest, substance abuse and traumatic family breakdown.  I say and believe that said occurrences of a deeply personal and intimate nature in many cases amounted to a catalyst for said candidates to pursue a career in social work and hence to apply for a place on the course the subject of the within proceedings.  I say and believe that the said applicants to the course completed said personal statements with a legitimate expectation of privacy and confidentiality inhering in the manner in which such statements would be received and stored.  I say and believe that to allow said personal statements to be the subject of an order of this Honorable Court for disclosure to the plaintiff would be utterly inconsistent with and inimical to the legitimate rights, interests and integrity of those other applicants to the course and that in such circumstances it would not be proper, meet or just for this Honorable Court to accede to the Plaintiff’s application to have sight of said personal statements” [emphasis added].

 

Insofar as any ‘reason’ is discernable in his judgement it is the ‘reason’ provided for him by Suzanne Quin at paragraph 7 of her affidavit.  Mr Justice Deery could come up with no other reason for refusing my disclosure application. 

 

When Mr Justice Deery finished delivering his judgement the Defendant’s barrister rose to press home his advantage by asking the judge to award costs against me (meaning that I would have to pay the Defendant’s legal bills).  I asked the judge to have regard to the “relative financial positions” of the Defendant and I and also to the conduct of the Defendant in relation to this application; the Defendant, I reminded him, is “the largest tertiary education provider in the Republic of Ireland”.  Mr Justice Deery was unmoved and told the Defendant’s barrister that he had “no hesitation” about ordering me to pay the Defendant’s legal costs. 

 

I told the judge that I intended to appeal to the High Court.  When he heard this his face grew bright red; it was quite an astonishing sight.  I actually wondered, for a brief moment, if he was about to have a heart attack.  “The judgement of the court has been given!”, he barked.  I responded:  “And I have told you that I’m going to appeal.  I’m entitled to do that”.  When he heard this he quickly retreated:  “You are entitled to, yes”.  I asked him for a copy of his judgement but he categorically refused.  “You have heard my judgement; it’s been read to you”, he said waspishly.  When I tried to argue that I should really be given a written copy of his judgement, he snapped: “I am not giving you a written copy of the judgement”.  The Registrar then whispered to him for a few moments, following which he told me:  “You’ll be sent a copy of the order”.  The “order” is not the judgement, of course.  The “order” merely states the order(s) made by the judge.  The judgement is supposed to explain the reasons for the “order”.  The judge did not want me to have a written copy of the ‘reasons’ he had used to refuse my application.  He does not seem to have wanted me to examine those ‘reasons’ too closely or to have had an official record of them.                  

    

I managed to ‘convince’ Mr Justice Deery to put a ‘stay’ on the costs order pending the appeal to the High Court.  In reality, he had little choice.  Had he not stayed the costs order I could have separately appealed to the High Court against his refusal to ‘stay’ the costs order.

Had the costs order not been ‘stayed’ – and if I did not appeal to the High Court against that – UCD would have been able to come after me immediately for legal “costs” of many thousands of euro. 

 

Isn’t it interesting that the President of the Circuit Court had, to use his words, “no hesitation” about ordering someone of limited means that is representing himself to pay the legal bills of the team of lawyers representing the largest tertiary education provider in the Republic of Ireland?   What purpose could be achieved or intended other than my neutralization and financial obliteration?  The objective is, of course, to punish me and make me incapable of ever again doing anything against UCD.    

 

 

March 15, 2007:

My Appeal to the High Court against Deery’s orders –

 

High Court Record Number 2007 52 CA

 

Click here to read a copy of my Notice of Appeal (March 14, 2007)

 

Click here to read a copy of the Index to my Book of Appeal (March 15, 2007)

 

My appeal was lodged at the Central Office of the High Court on March 15, 2007.

 

Part IV of the Courts of Justice Act 1936 gives you the right to appeal any order of the Circuit Court to the High Court.  In your appeal, however, you have to adhere to the terms of Order 61 of the Rules of the Superior Courts, as amended by Statutory Instrument 20 of 1989. 

 

Order 61 of the Rules of the Superior Courts can be read by clicking here.

Statutory Instrument 20 of 1989 can be read by clicking here.

 

My High Court appeal was listed for hearing on Monday, April 23, 2007.

 

Monday, April 23, 2007:  Mr Justice McKechnie at the High Court decided to “put back” the case “for mention only” to Monday, April 30 at 11am because the Defendant told the Judge that it wants to make me an “offer”.  It told the Judge that it would write to me about this “offer” by Wednesday (April 25).   I told the Defendant’s lead barrister:  “There is no offer you could make that I would accept.”     

 

 

Re Request for Reference to the European Court of Justice under Article 234(3) EC

On March 21, 2007 I sent a letter to UCD notifying them that I intend to request a reference from the Irish High Court to the European Court of Justice under Article 234(3) of the Treaty establishing the European Community.  That letter was copied to the College’s solicitors and to the Director of the Equality Tribunal as the Notice Party in the discrimination case proper.

Click here to read a copy of my letter of March 21, 2007.

 

THE GREEN FILE

I formally requested the ECJ reference on April 23, 2007 at the High Court.

In requesting the reference I gave the Judge, the Defendant and the Notice Party copies of what I call the Green File.  (As you may have guessed, I call it as the Green File because the copies of this set of documents were in cardboard files of that color). 

 

Documents comprising the Green File (April 23, 2007) –

1.         Order 57A of the Circuit Court Rules

2.         Article 234 of the Treaty establishing the European Community

3.         My March 21, 2007 letter to the Defendant

4.         Written Question E-1801/07 (European Parliament).  I co-wrote Written Question E-1801/07

5.         Council Directive 76/207/EEC, the Equal Treatment Directive

6.         Council Directive 2002/73/EC amending Council Directive 76/207/EC

7.         Council Directive 97/80/EC, the Burden of Proof Directive

8.         Information Note on References by National Courts for Preliminary Rulings (European Court of Justice)

9.         Deines v. Texas Department of Protective and Regulatory Services, 164 F.3d 277 (5^th Cir. 1999) (US Court of Appeals for the Fifth Circuit)

10.        Case 407/98 Abrahamsson and Anderson v. Fogelqvist (European Court of Justice)

11.        Case 158/97 Georg Badeck and Others v. Landesanwalt beim Staatsgerichtshof des Landes Hessen (European Court of Justice)

12.        Case 24/86 Blaizot v. University of Liège (European Court of Justice)

13.        Case 320/01 Busch v. Klinikum Neustadt GmbH & Co. Betriebs-KG (European Court of Justice)

14.        Case 6/64 Costa v. ENEL (European Court of Justice)

15.        Case 293/83 Gravier v. City of Liège (European Court of Justice)

16.        Case 99/00 Lyckeskog (European Court of Justice)

17.        Case 409/96 Marschall v. Land Nordrhein-Westfalen (European Court of Justice)

18.        Case 191/03 North Western Health Board v. McKenna (European Court of Justice)

19.        Case 166/73 Rheinmühlen-Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel (European Court of Justice)

20.        Case 107/98 Teckal Srl v. Comune di Viano and Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia (European Court of Justice)

21.        Equal Status Act 2000

 

 

The Defendant’s “Written Submissions” and “Book of Authorities” Re the ECJ reference request

At the High Court on April 23, 2007, when I requested the reference to the ECJ under Article 234(3) EC, the Defendant’s lawyers produced “Written Submissions” and a “Book of Authorities” on my reference request.  The Defendant’s lawyers said that they hadn’t filed these Written Submissions or their so-called Book of Authorities “earlier” (or given me copies of either or even let me know that they were going to produce “Written Submissions” and a “Book of Authorities”) because they had not been “ready”. 

The text of the Defendant’s “Written Submissions” on my reference request can be read by clicking here (.txt file). 

The cover page from the Defendant’s “Book of Authorities” on my reference request can be viewed by clicking here (PDF file). 

The cover page lists the judgements selected as “Authorities” by the Defendant in its “Written Submissions”.  The “Book of Authorities” consists of copies of those judgements.   

 

My legal submission (April 26) in reply to the “Written Submissions” of April 23, 2007 “on behalf of the Defendant” Re the ECJ reference request

Click here to read my replying legal submission (April 26) to the “Written Submissions” the Defendant’s lawyers produced at the High Court on April 23, 2007 to oppose my request for a reference to the ECJ under Article 234(3) EC.

My legal submission was filed at the Central Office of the High Court on April 26 along with a ‘Book of Authorities’.  Click here to read the index to the Book of Authorities; the index lists the case law, legislation and reports cited in my legal submission.  (The ‘Book of Authorities’ itself is simply a set of each of these documents.)

 

The Defendant’s “offer” and my response to that “offer” (April 27, 2007)

On April 27 I received a letter from the Defendant’s solicitors outlining the Defendant’s “offer”, i.e. the “offer” to which the Defendant’s lead barrister had alluded at the High Court on April 23.  Click here to read a scanned copy of the letter sent by the Defendant’s solicitors.

I collected the letter from the postal sorting office at Clondalkin on the afternoon of 1.30pm.  Realizing that the case was back at the High Court on Monday (April 30) – ostensibly “for mention only” – I quickly wrote a letter responding to the Defendant’s “offer”.  The letter was actually written in less than an hour and posted to the Chief Executive Officer of UCD, the Defendant’s solicitors and to the Director of the Equality Tribunal.  Because I wanted the Defendant to have my reply before Monday I also e-mailed my response to the Chief Executive Officer of UCD, the “Head of the School of Applied Social Science at University College Dublin”, the legal department of University College Dublin and the Equality Tribunal. 

Click here to read my response to the Defendant’s “offer”.   

 

New Affidavit – May 2, 2007

After being at the High Court on April 30, 2007 “for mention only” I decided to write an affidavit in relation to the Defendant’s “offer” and my request to the High Court on April 23, 2007 for a reference to the ECJ under Article 234(3) EC.  My decision was prompted by Judge McKechnie’s ‘advice’ to the Defendant on April 30, 2007; he advised the Defendant’s lawyers to file an affidavit about the Defendant’s “offer” and “exhibit” to that affidavit the letter sent to me on April 25 setting out that “offer”.  The Defendant’s lawyers were advised by McKechnie to do this in advance of the next “mention” date (May 14). 

My affidavit was written on May 1, affirmed on May 2 and filed at the Central Office of the High Court on May 2, 2007.

 

Click here to read a copy of my affidavit of May 2, 2007.

 

Reasoned Opinion 2003/2161, C(2004) 3899

In my first and second legal submissions I cited a Reasoned Opinion of the European Commission under Article 226(1) EC. 

Click here to read a copy of that Reasoned Opinion  (2003/2161, C(2004) 3899).

(The English translation begins after the Swedish translation.) 

 

Letter from the Defendant’s solicitors (May 9, 2007)

Click here to read a scanned copy of the letter I received on May 11, 2007 from the Defendant’s solicitors.

 

 

My fourth legal submission (May 29, 2007)

 

High Court hearing (June 12, 2007)

 

Re Cross-examining Suzanne Quin at the High Court

Click here to read a copy of my letter dated March 24, 2007 to the Chief Executive Officer of UCD requesting that UCD produce Suzanne Quin for cross-examination on her affidavit of February 28, 2007 “on behalf of the Defendant”.

[March 30:  I received a letter from the solicitors for UCD “to confirm that the University will accede to your request to cross-examine Professor Quin, and to confirm that Professor Quin will make herself available on 23 April 2007 for that purpose”.] 

[April 23:  I did not cross-examine Suzanne Quin but she did come to the High Court.  I did not cross-examine her because of the ECJ reference request and the difficulties I faced at the High Court.  I fully intend to cross-examine her before the High Court finally determines my appeal, however.]

 

The Defendant’s “additional questions”:

Click here to read my e-mail to the Defendant regarding the “additional questions” issue (June 24, 2007)

 

Legal submission in respect of the appeal proper (November 10, 2007)

 

My letter of May 15, 2008 to the Defendant’s solicitors on the deliberate destruction by the Defendant in 2006 of 43 of the 92 “evidential comparators”

 

Click here to read or save a copy of my letter of May 15, 2008 to “John J. McDonald & Co. Solicitors” of 13 Priory Hall, Stillorgan, County Dublin.

The letter is in the Microsoft Word file format.

 

Owing to its importance, I am also making it available in the PDF file format; click here to read or save the letter as a PDF file.

 

Copies (in the PDF file format) of the judgements cited in the letter are provided below:

 

Tullett & Tokyo International Securities Limited v. APC Securities Company Limited [2001] 2 HKLRD 356

O’Mahony v. Tyndale [2001] IESC 62

The Incorporated Owners of Million Fortune Industrial Centre v. Jikan Development Limited and Another [2003] 1 HKLRD 455

C v. C (1990) (Civil Appeal Number 88 of 1989)

Armory v. Delamirie (1722) 1 Strange 505

 

 

THE TRANSCRIPTS OF THE HEARING ON MAY 6, 2008 AND MAY 7, 2008

 

CLICK HERE TO READ THE TRANSCRIPT FOR MAY, 6, 2008  (WHICH INCLUDES THE CROSS-EXAMINATION OF SUZANNE QUIN) IN THE PDF FILE FORMAT.

IT IS ALSO AVAILABLE AS A PLAIN TEXT FILE (.TXT) BY CLICKING HERE.

 

 

November 6, 2008 - Transcript

Click here to view or save a copy of the transcript of the High Court proceedings on November 6, 2008.

 

 

Legal submission of November 9, 2008

Click here to download this legal submission as a PDF file or here to download it in the Microsoft Word file format.

 

 

Legal submission of December 4, 2008

Click here to read my legal submission dated December 4, 2008 as a PDF file or here to see it in the Microsoft Word file format.

 

 

Legal submission of December 17, 2008 (regarding the perjured evidence of Suzanne Quin)

My legal submission dated December 17, 2008 was filed at the High Court on December 17, 2008, for use in Court on December 18, 2008.

It is available by clicking here for the PDF file or here for document in the Microsoft Word file format.

 

 

Legal submission of December 24, 2008

Click here to read my legal submission dated December 24, 2008 on McKechnie’s “proposed…fifth question”.

It is available in the PDF file format and the RTF file format.

 

 

Legal submission of December 25, 2008

My legal submission dated December 25, 2008 on the judgement obtained by perjury can be read by clicking here.

Available in the PDF and RTF file formats.

 

 

Legal submission of January 17, 2009

My legal submission dated January 17, 2009, is available here in the PDF file format and here in the RTF file format.

 

 

Notion of motion and grounding affidavit – January 22, 2009

Click here to read or save a copy of the notice of motion I filed on January 2009.  It is available in the PDF and RTF file formats.

The grounding affidavit can be read by clicking here or here.

 

 

Legal submission of February 1, 2009

Click here to download a copy of my legal submission dated February 1, 2009.  This was filed at the Central Office on February 2, 2009.

 

 

 

Legal submission of August 21, 2009

Click here to download a copy of my legal submission dated August 21, 2009.

A copy in the RTF file format is available by clicking here.

 

 

 

Mr Justice McKechnie’s judgement of 4 November 2009

Click here for a scanned copy of the judgement Mr Justice McKechnie delivered on 4 November 2009

 

An “approved” version of his judgement was “uploaded” to the Courts Service website on 14 January 2010.  It states that that judgement was “delivered” on 5 May 2009.  (It was not.)

Click here for a copy of the judgement as “approved” by Mr Justice McKechnie.

 

 

 

[SECTION (724 WORDS) DELETED UNDER PROTEST BY PATRICK KELLY ON DECEMBER 8, 2009, IN COMPLIANCE WITH A COURT ORDER MADE BY MR JUSTICE McKECHNIE ON 8 DECEMBER 2009]

 

 

 

26 November 2009

[hearing]

 

8 December 2009

[hearing]

 

22 February 2010

[hearing]

 

 

 

 

24 February 2010

A copy of the affidavit I filed at the Central Office of the High Court on 24 February 2010 can be read by clicking here.

 

 

 

24 February 2010

Click here for a copy of the legal submission I filed at the Central Office of the High Court on 24 February 2010

 

 

Complaint to the Courts Service regarding the treatment of lay litigants in person at the Central Office of the High Court

 

 

Letter dated May 12, 2009, addressed to the Chief Registrar, Central Office, High Court, Four Courts, Dublin 7.

 

A list of the documents filed at the Central Office of the High Court in respect of my case against University College Dublin.  Taken from the Court Service website on May 12, 2009.

 

Letter dated May 18, 2009, from Nuala McLoughlin, the “Chief Registrar and Head of Supreme and High Court Operations”.

 

My reply to Ms McLoughlin’s letter.  Dated May 19, 2009.

 

 

 

 

Re UCD – The material released by the Equality Tribunal in June 2007 following a complaint I made to the Data Protection Commissioner in June 2006 (i.e. a full year earlier). 

 

Click here to read a scanned copy of the letter I received on June 27, 2007 from Sile Larkin, the Legal Advisor to the Director of the Equality Tribunal (June 22, 2007).

 

On June 27 I responded to Ms Larkin’s letter in an e-mail to the Office of the Data Protection Commissioner which I copied to the Equality Tribunal (June 27, 2007).  Click here to read my response. 

 

 

 

“History always emphasizes terminal events”, Albert Speer, the Minister for Armaments and War Production in Nazi Germany said in 1945.  No event in this appeal is “terminal” unless I decide that it is “terminal”.  It is almost impossible for UCD, its various lawyers or any one judge to make an event “terminal” against my wishes.  That is their Achilles’ heel.  And, as Speer indicated, the “terminal” events are the ones that count.     

 

“Every elevation of the type ‘man’ ”, the German philosopher Nietzsche wrote, “has hitherto been the work of an aristocratic society – and so will it always be – a society believing in a long scale of gradations of rank and differences of worth among human beings”.  Nietzsche adjudged “equal rights for all” to be a “poisonous doctrine” and insisted that “the inequality of rights is essential to the existence of any rights at all”:  “Wrong never lies in unequal rights; it lies in the assertion of ‘equal’ rights”.  People “are not equal”, Nietzsche insisted.

The only “morality” the Defendant evinces is Nietzschean “master morality”: it “honors” whatever it recognizes in itself and regards that which is “injurious” to it as “injurious in itself”.  Nietzsche praised the “exploitation” of “the ruled class, the slaves and dependents of all sorts” by the “ruling caste”:  “Life itself is essentially appropriation, injury, conquest of the strange and weak, suppression, severity, obtrusion of peculiar forms, incorporation, and at the least, putting it mildest, exploitation”.

 

The Defendant, UCD, is devoutly Nietzschean.  Like Nietzsche, the Defendant seems to also believe that “there are no facts, only interpretations”.  He contended that everything is “subject to interpretation; whichever interpretation prevails is a function of power and not truth”.  If this is so then I must lose and UCD must win; they are accustomed to winning and expect to win in this and in all else.  But facts do exist. And they tell against UCD.

 

 

The Equal Treatment Directive, Burden of Proof Directive and the UCD Case

Directive 76/207/EEC is also known as the Equal Treatment Directive.  The Equal Treatment Directive is a European law that introduced “the principle of equal treatment for men and women as regards access…to vocational training…” (Article 1) and defined the principle of equal treatment as meaning “that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly…” (Article 2). 

 

Article 4 of the Equal Treatment Directive states that “application of the principle of equal treatment with regard to access to all types and to all levels, of…vocational training, advanced vocational training and retraining, means that member states shall take all necessary measures to ensure that: (a) any laws , regulations and administrative provisions contrary to the principle of equal treatment shall be abolished”.  Article 4 also provides that “vocational training, advanced vocational training and retraining shall be accessible on the basis of the same criteria and at the same levels without any discrimination on grounds of sex”.

 

Directive 76/207EEC (The Equal Treatment Directive) can be read by clicking here.

 

 

Some of the material used in or related to the complaint to the Director of the Equality Tribunal against UCD is provided below –

 

·         Exposition of Complaint provided to the Equality Tribunal in advance of the hearing in September 2006

 

·         Index of Evidence provided to the Equality Tribunal in advance of the hearing in September 2006

 

·         Copies of my letters to the Equality Tribunal (August 25, 2006 – September 19, 2006) (Collated)

 

·         A copy of my request under Section 7 of the Freedom of Information Acts 1997 and 2003 to the Department for Justice on the appointment of Mr Hugh O’Neill to the “staff” of the Director of the Equality Tribunal (September 18, 2006)

 

·         A copy of a further letter to the Department for Justice regarding the request under the Freedom of Information Acts 1997 and 2003 (September 30, 2006)

 

·         A copy of my letter to the Equality Officer, Hugh O’Neill (October 21, 2006)

 

·         A copy of my letter to the Equality Officer, Hugh O’Neill (October 27, 2006)

 

·         My ‘letter campaign’ (October 29, 2006 – November 2, 2006)

 

·         A copy of my letter to the Equality Officer, Hugh O’Neill (November 3, 2006)

 

·         Barton v. Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332 EAT (April 3, 2003)

 

·         EOC report on segregated occupations (2004)

 

·         Kiely v. Minister for Social Welfare [1977] IR 267 (February 16, 1977)

 

 

Re The ‘temporary’ appointment to Hugh O’Neill to “the Director’s staff” and as an Equality Officer –

 

On November 15, 2006 I received the answer of the Department for Justice to my request under Section 7 of the Freedom of Information Acts 1997 and 2003 for copies of the records relating to Hugh O’Neill’s “appointment” to the Equality Tribunal.  The letter is from Maeve Hogan, the Department’s Freedom of Information Officer, and bears the reference number 156/379/2006.  It states:

 

“Your request spanned two Divisions of the Department, Human Resources Division and Diversity and Equality Law Division. 

Human Resources Division

A decision on your request was made by Mr James Moloney, Assistant Principal Officer who has decided to refuse your request.  The records requested by you relating to Mr O’Neil’s appointment are considered personal information, it has been decided to refuse to grant you access to the records concerned in accordance with section 28(1) of the Act which provides for the refusal to grant access to personal information to a third party.

…

Diversity and Equality Law Division

A decision on your request was made by Ms Deirdre Ni Neill, Assistant Principal Officer who has decided to refuse your request.  The schedule attached describes each record and provides brief reasons for the decision which are meant to supplement the fuller and more detailed explanation given below”.

 

The legislative “exemptions” cited to ‘support’ Ms Ni Neill’s decision were Section 28, Section 23 and Section 21 of the Freedom of Information Act 1997, as amended by the Freedom of Information (Amendment) Act 2003.

The “schedule” attached to the letter reveals that 7 records were “consider[ed] relevant to [my] request”; these records are:

 

1.  “11/05/2006.  E-mail from Director of the Equality Tribunal, to PO [Principal Officer], Diversity & Equality Law Division, requesting the appointment of a temporary equality officer to hear 3 cases.  Includes an attachment, letter dated 23/02/2006 to Personnel Officer, DoJELR [Department of Justice, Equality and Law Reform] seeking the appointment of a temporary equality officer to handle 3 cases”.  This record comprises 3 pages.

 

2.  “18/08/2006.  DRAFT NOT ISSUED.  Letter from AP [Assistant Principal Officer] Diversity & Equality Law Division to D/Finance [Department for Finance] concerning arrangements for the appointment of a temporary Equality Officer to the Equality Tribunal”.  This record comprises 1 page.

 

3.  “31/08/2006.  Copy of e-mail from HEO [Higher Executive Officer], Personnel, DoJELR, to the Equality Tribunal, inclosing proposed letter of appointment to Mr Hugh O’Neill (temporary Equality Officer), for observations”.  The number of pages constituting this record is not disclosed.

 

4.  “01/09/2006.  E-mail from AP [Assistant Principal Officer] DoJELR to HEO [Higher Executive Officer], Personnel, DoJELR concerning proposed letter of appointment to Mr Hugh O’Neill – no observations”.  This record comprises 1 page.

 

5.  “01/09/2006.  Copy of e-mail from the Equality Tribunal to HEO, Personnel, DoJELR with observations on the proposed letter of appointment to Mr Hugh O’Neill”.  This record comprises 2 pages.

 

6.  “16/8/2006.  Letter from the Director, Equality Tribunal to APO [Assistant Principal Officer], Diversity & Equality Division, DoJELR in relation to appointment of temporary equality officer”.  This record comprises 2 pages.

 

7.  “30/8/2006.  Note from APO, Diversity & Equality Law Division in relation to conversation with HEO, Personnel, DoJELR about contract of employment for temporary equality officer”.  This record comprises 2 pages.      

 

 

 

 

Dublin’s Trinity College and the “visitorial system”

 

 

CLICK HERE TO READ MY RESEARCH ON THE “VISITORIAL SYSTEM” OF GOVERNANCE IN HIGHER EDUCATION INSTITUTIONS.

ONE OF THE CHAPTERS FOCUSES THE “VISITORIAL SYSTEM” AT DUBLIN’S TRINITY COLLEGE.

 

 

THE BIBLIOGRAPHY IS AVAILABLE HERE.

 

 

 

 

 

 

 

Trinity College has two Visitors:  the “primary” Visitor is its Chancellor, Mary Robinson, and “the other Visitor” (the secondary Visitor) is Brian McCracken, who is a former Supreme Court judge (Chapter II, Section 2 of the College Statutes).  McCracken became the secondary Visitor in summer 2003 but did not retire as a Supreme Court judge until summer 2006 (my Supreme Court appeal against the Visitors was lodged in December 2005 and would have placed him in a rather embarrassing position had he remained sitting on the Supreme Court).  One of the five Pro-Chancellors of the College can act for the Chancellor as “the primary Visitor” if the Chancellor is “for any reason…unable to act” (Chapter III, Section 1 of the College Statutes).  The College’s Pro-Chancellors are Anthony O’Reilly, Mrs Justice Susan Denham, Eda Sagarra, Patrick Molloy and Dermot McAleese. 

 

According to the Explanatory Notes to the English Higher Education Act 2004:

 

“Those universities and colleges which were originally established by Royal Charter have Visitors who exercise a supervisory role over an institution's domestic affairs, including ruling on complaints by students which cannot be resolved through an institution's internal procedures”.

 

In England, the Higher Education Act 2004 abolished the jurisdiction of university visitors “in respect of any complaint… made by a person as a student or former student at the…institution” and “any complaint…made in respect of an application for admission to the…institution as a student” (Section 20).  In the House of Commons in 2004, Charles Clarke, the then Secretary of State for Education and Skills in England, said that “the often archaic arrangements with so-called visitors” were “more appropriate to the novels of C.P. Snow than to modern university life” [Official Report, House of Commons, January 27, 2004; Vol. 417, c. 167.].  The Higher Education Act 2004 replaced this system in English universities with “a transparent means of redress for student complaints” [Official Report, House of Commons, January 27, 2004; Vol. 417, c. 167.]; the Parliamentary Under-Secretary of State for Education and Skills, Ivan Lewis, referred to “the independent route that we are establishing for students” [Official Report, House of Commons Standing Committee H, February 12, 2004; c. 93.].  Unfortunately, in the Republic of Ireland this has yet to occur…   

 

A visitor is defined in the Oxford English Dictionary (2^nd edition, published in 1989) as “one who has a right or duty of supervision (usually exercised periodically) over a university, college, school, or similar institution”.  The word ‘visitorial’ is another word for ‘visitatorial’, which is defined in the Oxford English Dictionary (2^nd edition) as “pertaining to, connected with, involving or implying, official visitation”.  Click here to see the definitions as taken from the Oxford English Dictionary (2^nd edition).

 

As the Explanatory Notes to that Act confirm, Section 20 of the Higher Education Act 2004 ended in England “the jurisdiction of university Visitors over student complaints”.  Section 20 of the English Act and the Explanatory Notes to the Act can be read by clicking here.  In the Republic of Ireland a similar Act is long overdue.

 

Unless otherwise indicated, all documents are in rich text format (.rtf) or PDF, and should be compatible with most operating systems and software.  Click on the individual links to learn more about the “visitorial system”, Trinity College and my cases –

 

A note about Section 230 Immunity

 

This site is hosted by an American web hosting service and US law therefore applies.  Section 230 of Title 47 of the United States Code (47 USC §230) states:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.

 

I mention this because Trinity College has in the past threatened the web hosting service with “legal action”. 

 

As the College well knows, however, Irish law is not applicable and the Irish courts have no jurisdiction or authority over the web hosting service or this site.  Not that that stopped the College from issuing its threats... 

 

Section 230 of Title 47 gives the web hosting service what is known as “Section 230 immunity”. 

 

In Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) the US Court of Appeals for the Fourth Circuit held:

 

“By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.  Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role.  Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred.  The purpose of this statutory immunity is not difficult to discern.  Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.  The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech.  Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum”.

 

A copy of Zeran v. America Online, Inc. is available here.

 

So much for the College’s threats against the web hosting service…

 

THE JUDGEMENT OF THE HIGH COURT OF JUSTICE OF IRELAND IN THE REID CASE 

 

June 2, 1888

 

The Provost, Fellows and Scholars of Trinity College, Dublin v. the Attorney General, the Chancellor, Doctors and Masters of the University of Dublin, and the Trustees and Executors of the will of the late Richard Tuohill Reid

 

On June 2, 1888 the High Court of Justice of Ireland held that the “framers” of the Letters Patent of King James I in 1613, which the Master of the Rolls referred to as “the Charter of James”, “considered Trinity College and the University of Dublin as so inseparably connected that their titles are used throughout as synonymous terms”.  Considering the various Letters Patent up to and including the Letters Patent of King George III in 1794, the Master of the Rolls said that there “was no separate incorporation” of “the University of Dublin”:  “There was no express creation of it apart from the College”.  The Master of the Rolls said that the Letters Patent of Queen Victoria in 1857 (“21 Vict., July 24, 1857”) “and the incorporation therein contained…is not the incorporation of the University of Dublin but of its Senate merely”.  He said:  “The advisers of Queen Victoria knew how to incorporate a University when they meant to do so”.  The Masters of the Rolls concluded:  “Both phrases, Trinity College, Dublin and University of Dublin, are used interchangeably, as well in Acts of Parliament as in the Charters and Regulations”.  Trinity College and the University of Dublin, to quote the Master of the Rolls, Andrew Maxwell Porter, “are one body”.

 

There is a “reference” to the “Universities of Oxford and Cambridge” in the Letters Patent of King James I in 1613 but the Master of the Rolls, Andrew Maxwell Porter, said:  “I do not think that the reference to them in this Charter indicates an intention that Trinity College and the University of Dublin should be separate bodies”.  The Master of the Rolls noted that the “Universities of Oxford and Cambridge are in some respects anomalous bodies, differing in constitution from nearly all, if not all, other ancient Universities”.  According to the Master of the Rolls:   “Generally speaking, a University and College are one body”.  “Trinity College” he said, “appears to have resembled” the “Universities of Bologna and Paris”, which were “both teaching Universities”.  Trinity College did not resemble the “Universities of Oxford and Cambridge”.

 

The full text of the judgement appears below –

 

____________________

 

This case comes before the Court on a motion by the plaintiffs on admissions in the pleadings.  The plaintiffs are the Provost, Fellows, and Scholars, of Trinity College, Dublin, and the defendants are the Attorney-General, the Chancellor, Doctors, and Masters of the University of Dublin, and the Trustees and Executors of the will of the late Richard Touhill, Barrister-at-Law, formerly of Killarney, in the county of Kerry, and afterwards pf Bombay, in the East Indies. 

 

The will of Mr Reid is set out in extenso in the plaintiff’s statement of claim, except that in the will the testator describes himself as LL.D., without stating, however, of what University.  The will bears the date the 22nd of September, 1881.  It commences by appointing the defendants, Sir George Christopher Molesworth Birdwood, Knight, M.D., of the India Office, and James Cornelius O’Dowd, Deputy Judge Advocate-General, and Barrister-at-Law, of No. 35, Great George’s-street, Westminster, his executors. 

 

The statement of claim alleges that the testator died on the 11th day of February, 1883, at Rome, without having revoked or altered his will, which was duly proved in the Probate Division of Her Majesty’s High Court of Justice in England, by the defendants, George Christopher Molesworth Birdwood and James Cornelius O’Dowd, on the 25th day of April, 1883.  The testator had no assets in Ireland.

 

Hannah Reid, the sister of the testator in his will mentioned, died before him, on the 9th day of February, 1883; her life estate, therefore, never came into existence.  The ready money and cash at the testator’s bankers were sufficient for payment of his debts, funeral and testamentary expenses, and the other expenses connected with the administration of the estate.

 

The bequest in the will contained of all the testator’s shares or stock in the Great Indian Peninsula Railway Company, and in the Bombay, Baroda, and Central India Railway Company is, for the sake of convenience, referred to as the second bequest; and the bequest of all the testator’s funds in Three per Cent. Consolidated Bank Annuities is referred to as the third bequest.

 

The testator was, at the time of his death, possessed of the sums of £2800 Great Indian Peninsula Railway Company Guaranteed £5 per Cent. Stock, and £1904 Bombay, Baroda, and Central India Railway Company Stock; which sums became vested in his executors as trustees of his will, for the purposes of the second bequest; and he also died possessed of the sum of £6089 13s. 4d. Consolidated £3 per Cent. Bank Annuities, transferable at the Bank of England, which became vested for the purposes of the third bequest.

 

As to the second bequest, the plaintiffs say that there is no such body, strictly speaking, as the Board of the University.  The defendants, the Senate of the University, have been incorporated by Letters Patent, dated the 24th July, 1857, under the title of The Chancellor, Doctors, and Masters of the University of Dublin; and as such Corporation are, by the said Letters Patent, empowered to hold and acquire such property, real and personal, as may be given or bequeathed to them.  Up to the present the defendants have not acquired, nor do they now hold, any property.

 

As to the third bequest, the plaintiffs say “that Trinity College, Dublin is the only College in the University, and is incorporated by the Letters Patent or Charter of the 34^th  year of Queen Elizabeth, which was confirmed by the Letters Patent, or Charter of the 13^th Charles I., under the name of the Provost, Fellows, and Scholars, of the College of the Holy and Undivided Trinity of Queen Elizabeth, near Dublin, who are the plaintiffs in this action.  The Provost and senior Fellows of the said College are by the said Charter and the Statutes of the College constituted the Governing Body of the College, and are known as the Board of Trinity College, Dublin.  There is no other body called or known as the Board either in the College or University”.  That statement must be taken as uncontradicted.

 

The defendants, the executors, having been informed of the facts aforesaid, were advised that they could not safely give effect to the second and third bequests without the protection of the Court, and accordingly they lodged in the Chancery Division of the High Court of Justice in England, to the following credit:- “In the matter of the trusts of the bequests by the will of the late Richard Touhill Reid, in favour of the Corporation of the University of Dublin, in trust to found a Professorship of Penal Legislation” – the said sum of £1904, Bombay, Baroda, and Central India Railway Company Stock; and the sum of £2300, Great Indian Peninsula Railway Company Guaranteed £5 per Cent. Stock, part of the said sum of £2800 like stock; and £339 8s. 6d. cash, representing the said second bequest, and the dividends that had accrued in respect thereof up to the 1st July, 1884, less by a sum of £702 16s., paid by the same defendants in respect of duty on the capital of the second bequest; and £26 2s. for duty on the income thereof, and £27 10s., being a moiety of the costs of and incident to the lodgment in Court.

 

The defendants, the executors, also lodged in the Chancery Division of the said High Court of Justice in England, to the following credit: - “In the matter of the trusts of the bequest by the ‘Will of the late Richard Touhill Reid, in favour of the Corporation of the University of Dublin, in trust to found in Trinity College, Dublin, additional Sizarships, Exhibitions, and for other purposes’ – the sum of £5463 17s. 11d. Consolidated £3 per Cent. Bank Annuities, part of the said sum of £6089 13s. 4d., like annuities, and £217 4s. 8d. cash, representing the third bequest, and the dividends that had accrued in respect thereof, up to the 5th July, 1884, less by a sum of £616 11s. 6d., paid by the same defendants in respect of legacy duty on the capital of the third bequest; and £16 9s. for duty on the income thereof, and £27 10s. being the remaining moiety of the costs hereinbefore mentioned. 

 

The rest of this proceeding was the payment of 10 per cent. Legacy duty for both the second and third bequests, from which duty they would probably have been free if lodged in this Court, inasmuch as the law in England is different from that in this country.  Here no duty is payable on bequests for purposes merely charitable in Ireland.

 

The statement of claim then states that the testator, who was born in the County of Kerry, was educated in Trinity College, Dublin, where he took the degree of Master of Arts.  He was afterwards called to the Irish Bar, and went to Bombay in the year 1853, after which period he never returned to Ireland.

 

The statement of claim then avers that all the endowments, estates, and property by which the University of Dublin is sustained, including all endowments for special purposes, are vested in the plaintiffs, and managed by the Board of Trinity College.  The appointment and election of the professors in the University was also vested in the said Board up to the time when the Council was constituted by Letters Patent of the 4th day of November, 1874.  By these Letters Patent the nomination to all professorships, with certain specified exceptions, is now vested in the Council, subject to the approval of the Board; and since the constitution of the Council any proposed alterations in the rules and regulations respecting any studies, lectures, or examinations (not connected with the Divinity School), and also any proposed alterations in the rules and regulations respecting the qualifications, duties, and tenure of office of any professor (not connected with the Divinity School), require the approval both of the Board and of the Council.  No new professorship can now be created or founded by the Board without the consent of the Council. 

 

The Council consists of the Provost, or in his absence the Vice-Provost, of Trinity College, and sixteen other members elected out of the members of the Senate of the University.

 

The Board of Trinity College elect to all the existing sizarships, after the usual examination of candidates.

 

The statement of claim then states that the plaintiffs are desirous that a scheme or schemes may be settled and approved by the Court for the regulation and management of the said charitable bequests respectively, and for the application of the income of the said stocks and securities, pursuant to the trusts by the said will declared with respect to the same respectively, and that the plaintiffs may be at liberty to apply to the Chancery Division in the High Court of Justice in England for the transfer to the credit of this action of the several  securities and moneys standing to the credits respectively hereinbefore mentioned.

 

The plaintiffs claim

 

1.                    That the trusts of the will of the testator Richard Touhill Reid, with respect to the second and third bequests respectively, may be carried into execution under the direction of the Court.

 

2.                    That the plaintiffs may be at liberty to apply in the Chancery Division of the High Court of Justice in England in the said matter, under the Trustee Relief Act, for the transfer and payment into this Court, to the credit of this action, of the several securities and moneys which now are, or shall at any time hereafter be, standing to the said credits hereinbefore mentioned.

 

3.                    That a scheme or schemes may be approved by the Court, directing the regulation and management of the said charitable bequests respectively, and the application of the income of the said stocks and securities, pursuant to the trusts of the said will, declared with respect to the same respectively.

 

4.                    That for the purposes aforesaid all necessary accounts may be taken, inquiries made, and directions given and

 

Such further relief as the case may require.

 

The Chancellor, Doctors, and Masters of the University of Dublin have filed a statement of defence, by which they admit the making of the will as set forth in the statement of claim, and the statements of fact and the documents in the statement of claim mentioned, and submit that they are the body designated as the Corporation of the University of Dublin in the will; and that the stocks and funds which are in the statement of claim designated as the 2nd and 3rd legacy bequests respectively should be transferred and paid to them for the purposes of the will; and state that they are desirous that a scheme or schemes directing the regulation and management of the said charitable bequests respectively, and the application of the income of the same may be settled and approved of by the Court as in the statement of claim is prayed.

 

The Attorney-General has delivered a statement of defence, in which he states in substance that he has no knowledge of the several matters in dispute, but submits that the legacies are good charitable bequests.

 

The principal question for decision therefore is, What is the body which the testator designates as “the Corporation of the University of Dublin”?

 

Trinity College, Dublin, was founded by Queen Elizabeth, by a Charter dated A.D. 1592, in the 34th year of her reign.  That Charter is of great importance in determining the constitution of Trinity College, and of the University of Dublin.

 

That Charter recites:-

 

“Cum dilectus subditus noster Henricus Ussher Archidiaconus Dubliniensis nobis himiliter supplicavit, nominee civitatis Dubliniensis, pro eo quod nullum Collegium pro Scholaribus in bonis literis et artibus erudiendis infra regnum nostrum Hiberniae adhuc existit; ut unum Collegium matrem Universitatem juxta civitatem Dubliniensem ad meliorem educationem, institutionem, et instructionem Scholarium et studentium in regno nostro praedicto erigere, fundare, et stabilire dignaremur;” and goes on to provide:- “quod de caetero sit, et erit, unum Collegium mater Universitatis in quodam loco vocato Allhallowes juxta Dublin praedictum, pro educatione, institutione, et instructione juvenum, et studentium in artibus et facultatibus, perpetuis futuris temporibus duraturum, et quod erit, et vocabitur COLLEGIUM SANCTAE ET INDIVIDUAE TRINITATIS JUXTA DUBLIN A SERENISSIMA REGINA ELIZABETHA FUNDATUM.  Ac illud Collegium de uno Praeposito, et de tribus Sociis nomine plurium, et tribus Scholaribus nomine plurium, in perpetuum continuaturum erigimus, ordinamus, creamus, fundamus, et stabilimus firmitèr per praesentes.”

 

Then, after nominating the first Provost, the Fellows, and Scholars, the Charter proceeds to incorporate them:-

 

“Per nomen PRAEPOSITI, SOCIORUM, ET SCHOLARIUM COLLEGII SANCTAE TRINTATIS ELIZABETHAE REGINAE JUXTA DUBLIN”.  

 

Then follow directions as to the election in future of the Provost, Fellows, and Scholars who are empowered to acquire and hold manors, lands, tenements, and hereditaments for the maintenance of the College, and to sue and be sued by their corporate name; and the Charter continues in these most important words:-

 

“Et cum gradus quosdam in artibus et facultatibus constitui literis fuisse adumento compertum sit, ordinamus per praesentes, ut studiosi in hoc Collegio sanctae et individuae Trinitatis Elizabethae Reginae juxta Dublin, libertatem et facultatem habeant, gradus tum Baccalaureatus, Magisterii, et Doctoratûs, juxta tempus idoneum, in omnibus artibus et facultatibus obtinendi”.

 

The “tempus idoneum” here probably refers to the period at which the first Undergraduates would be ready to receive degrees.  The Charter proceeds:-

 

“Hoc semper iterum proviso, ut cum hujus Collegii Socii septum integros annos post gradum Magestrii ibi assumptum adimpleverint, tum è Sociorum numero amoveantur, ut alii in eorum locum suffecti, pro hujus Regni et Ecclesiae beneficio, emolumentum habeant; et ut INTRA SE pro hujusmodi gradibus assequendis habeant libertatem, omnia acta, et scholastica exercitia adimplendi, quemadmodum Praeposito, et majori parti Sociorum visum fuerit, ac ut omnes personas pro hujusmodi rebus melius promovendis, eligere, creare, nominare, et ordinare possint, sive sit Procancellarius, Procurator, aut Procuratores (nam Cancellarii dignitatem honoratissimo et fidelissimo Consiliario, nostro, Guilelmo Cecillio, Domino Baroni de Burghley, totius Angliae Thesaurario, delegatam approbamus), et ut posthac idoneam hujusmodi personam, cum defuerit, pro hujus Collegii Cancellario Praepositus, et major pars Sociorum eligant, ordinamus.”

 

This Charter was granted in 1592, and no other Charter or Letters Patent were granted during Elizabeth’s reign.  In 1613 further Letters Patent were granted by King James I.  An interval of twenty-one years therefore had elapsed between them and the Charter of Elizabeth; and that Degrees must during that interval have been conferred on Students of the College appears to me to be beyond doubt.  Therefore it must have been considered that the Charter of Elizabeth, proprio vigore, conferred upon the College power to grant degrees.  Some body, authorized by the Crown, must have conferred them: since the granting of degrees is a branch of the Royal prerogative, the Crown being the fountain of honour.  The Chancellor, Vice-Chancellor, and Proctors, were not incorporated; the Provost, Fellows, and Scholars were: and it follows that they must have conferred the degrees in the interval between the Charter of Elizabeth and that of James I., though, no doubt, in this the College acted through the Vice-Chancellor.

 

The Charter of James, after reciting the Charter of Elizabeth, proceeds:-

 

“CUMQUE DICTUM COLLEGIUM SIT ET HABEATUR UNIVERSITAS, AC HABEAT, GAUDEAT, ET UTATUR OMNIBUS ET SINGULIS LIBERTATIBUS, PRIVILEGIIS, ET IMMUNITATIBUSAD UNIVERSITATEM SIVE ACADEMIAM PERTINENTIBUS SIVE SPECTANTIBUS…idcerco operae pretium et necesarium videtur, quod DICTUM COLLEGIUM ET UNIVERSITAS habeant plenam et absolutam potestatem duos Burgenses de seipsis eligendi, eosque mittendiad supremam illam curiam Parliamenti, in hoc regno nostro Hiberniae, de tempore in tempus, tenendi: in quâ quidèm curiâ hujusmodi Burgenses sic electi et missi, juxta formam universitatis Oxoniensis et Cantabrigiensis in Angliâ usitatam, notum faciant verum statum dicti Collegii ac universitatis ibidem; ita ut nullum statutum aut actus generalis dicto Collegio ac universitati privatim, sine justâ ac debitâ notitiâ et informatione in eâ parte habitâ, praejudicit aut noceat; SCIATIS quod nos, de gratiâ nostrâ speciali,...Voluimus et concessimus, ac per prasentes pro nobis haeredibus, et successoribus nostris, voluimus et consedimus, praefatis Praepositio, Sociis, et Scholaribus dicti Collegii, et successoribus suis, necnon ordinamus et stabilimus per praesentes, perpetuis futuris temporibus quod sint et erunt in dicto Collegio ac universitate juxta Dublin duo Burgenses Parliamenti nostri haeredum et successorum nostrorum.”

    

The words just quoted, such as “Cumque dictum Collegium sit et habeatur universitas,” “et utatur omnibus et singulis libertatibus privilegiis et immunitatibus ad universitatem pertinentibus.”  “Collegii et universitatis praedictae,” “quod dictum collegium et universitas habeant”; again, the same words, “dicti Collegii ac universitatis,” “dicto Collegio ac universitate juxta Dublin,” show that the framers of the Charter considered Trinity College and the University of Dublin as so inseparably connected that their titles are used throughout as synonymous terms.  To whom is the power of electing two members given?  “Praefatis Praeposito , Sociis et Scholaribus dicti Collegii.”

 

The Charter recites that Trinity College was founded by Queen Elizabeth, “ad exemplum academiarum nostrarum Oxoniensis et Cantabrigiensis.”  Oxford and Cambridge are no doubt in some respects analogous Universities.  But they are essentially different in this that they each contain several Colleges; and I do not think the reference to them in this Charter indicates an intention that Trinity College and the University of Dublin should be separate bodies.

 

The next Charter is that of 13 Charles I., which bears date in 1637.  It recites the Charter of Elizabeth and states that by it she granted “quod deinceps esset unum Collegium mater Universitatis, in quodam loco vocato Allhallows juxta Dublin.”  It then recites the incorporation of the College; its power to acquire and hold lands for the maintenance of the College; its capacity of suing and being sued in actions, real, personal and mixed; of having a common seal; the power of the Provost and majority of the Fellows to make laws, statutes and ordinances, for the government of the College; and that “eadem nupur regina per easdam literas suas patentes ordinaverit, ut studiosi in dicto Collegio libertatem et facultatem haberent gradus tum Baccalaureatûs, Magisterii et Doctoratûs, juxta tempus idoneum, in cmnibus artibus et facultatibus obtinendi; et ut intra se, pro hujusmodi gradibus assequendis haberent libertatem omnia acta et scholastica exercitia adimplendi, quemadmodum Praeposito, et majori parti Sociorum usum foret.”  The Charter confirms the Charter of Elizabeth in respect of its above recited provisions, and provides, with the consent of the Provost, Fellows, and Scholars, that Fellows should not be removed at the end of seven years, as provided by the Charter of Elizabeth: recalls the power of the Provost and Fellows to make statutes and ordinances, and reserves that power to the Crown; repeals those already made, and substitutes an amended code.

 

In further Letters Patent of the same year (13 Charles I.), I find this recital (after referring to the great advantage of schools and universities in England):- “Quod et reipsậfecit regina Elizabetha celebris memoriae, Collegium Sanctae Trinitatis juxta urbem Dubliniensem extruendo; quod etiam annuis reditibus dotavit et ACADEMIAE PRIVILEGIIS ORNAVIT”.

 

The Letters Patent then proceed to establish certain laws for the government of the College.  The Provost and seven senior Fellows are to form a Board.  The Board are to have the government of the College, the election of the Fellows, officials, &c., and the conferring of degrees “GRADUUMQUE COLLATIONES DEFINIANT, ET CONCLUDANT.”  A more clear assertion that the College had the right of conferring degrees is not easy to imagine.

 

The next Letters Patent which I have to refer to are those of the 34 George III. (A.D. 1794).  They are addressed to the Provost and senior Fellows, and relate to the admission of Roman Catholic students to degrees, and announce:…“quod omnibus subditis nostris, qui religionem Pontificiam sive Romano-Catholicam profitentur, liceat et deinceps licebit in dictum Collegium admitti, atque gradus in dictâ academia obtinere, praestitisprius omnibus exercitiis per leges et consuetudines academiae requisites, aliquo statuto dicti Collegii, aut statuto, regulâ, aut consuetudine quâcunque dictae academiae in contrarium non obstante.”

 

Now, pausing here, if nothing else had happened, what was the position of the University of Dublin?  There was no separate incorporation of it.  If there had been it must have been by Royal Charter by virtue of the prerogative of the Crown.  There was no express creation of it apart from the College.  The College had the power of electing the Chancellor and the other officers, and of “defining and determining” the conferring of degrees.  The College was supreme; and the University was a branch or department of it, if indeed the College itself was not more accurately the University.  That it was so considered by the framers of the Charter of James I. appears from the expressions: “sit et habeateur universitas,” “academiae privilegiis ornavit,” and from the power of the College to confer degrees “intra se.”  It cannot therefore admit of doubt that prior to the Letters Patent of Queen Victoria a gift to the “Corporation of the University of Dublin” would have meant a gift to Trinity College, Dublin, and could have meant nothing else.

 

Both phrases, Trinity College, Dublin, and University of Dublin, are used interchangeably, as well in Acts of Parliament as in the Charters and Regulations.  The Fourth Article of the Act of Union of Great Britain and Ireland, 40 Geo. III. c. 38, is, “that four lords spiritual, by rotation of sessions, and twenty-eight lords temporal elected for life by the peers of Ireland shall be the number to sit and vote on the part of Ireland, in the House of Lords of the United Kingdom; and one hundred commoners (two for each county of Ireland, two for the city of Dublin, two for the city of Cork, one for the University of Trinity College, and one for each of the most considerable cities, towns and boroughs) be the number to sit and vote, on the part of Ireland, in the House of Commons of the Parliament of the United Kingdom”.

 

By the Reform Act of 1832, 2 & 3 Wm. IV. c. 88, section 11, it is (no doubt) enacted that “the city of Limerick, the city of Waterford, the borough of Belfast, and the University of Dublin shall each respectively return one member to serve in such future Parliament, in addition to the member which each of the said places is now by law entitled to return”.  But by sect. 70 it is provided “that in addition to the persons now qualified to vote at the election of a member to serve in Parliament for the University of Dublin,” “every person being of the age of twenty-one years, who has obtained, or hereafter shall obtain, the degree of Master of Arts, or any higher degree, &c., or a Scholarship or Fellowship in the said University, shall be entitled to vote for the election of a member or members to serve in any future Parliament for the said University,” &c.  By the University of Dublin in this context Trinity College must also be meant, since Scholarships and Fellowship belong to the College and not to the University proper.

 

The Act of Settlement, too, speaks of the lands of the University, meaning obviously the lands of Trinity College, Dublin.  The corporation of the College was at that time the corporation of the University.  There was no other corporation but that of the College which, in the words of the Letters Patent of James I., was declared, and was held to be, a University “sit et habeatur universitas.”

 

There is nothing in this view I think opposed to the opinion of the late Mr. Blackburne, Vice-Chancellor of the University.  He said:-

 

“It is now, for any practical purpose, not necessary to inquire whether the University was a corporate body before the late Charter.  But I may observe that through the agency of the Chancellor, or the Vice-Chancellor, and other proper officers, for whose perpetual appointment the Crown made ample provision, the power to grant degrees was insured to continue for all time.  So and in like manner, the succession of members of the Senate was to be ever supplied out of the members of another body expressly incorporated”.

      

Mr. Blackburn thus gives no positive opinion on the question.  Nor is the view I have expressed opposed, in my opinion, to the fundamental idea of College and University.  The Universities of Oxford and Cambridge are in some respects anomalous bodies, differing in constitution from nearly all, if not all, other ancient Universities.

 

In The Attorney-General v. Lady Downing and others (Wilmot’s Ca. and Op. 14), Lord Chief Justice Wilmot says:-

 

“And, indeed, I think Universities and Colleges are within the proper and genuine sense and meaning of the words ‘Schools of Learning’.  The places where the public exercises are performed are called the Schools.  An University is a great school, incorporated to instruct, by their Professors and regular exercises, all who come to study there, and by degrees to give their students rank and credit in the republic of letters, and which are qualifications for lucrative offices and employments in life.  It is a public school of divinity, physic, law, and all arts and sciences.  And colleges are schools of learning, furnishing scholars for the universal school, which is a combination of all those schools; and in any other view than as schools of learning they are as useless to societies as monasteries; and therefore, I think they are not only within the equity of the Act, but within the words of it.  And I consider this devise as made for the further augmenting of the University: and for that reason the University, in its corporate capacity, is very properly made a relator in this information being materially and essentially interested in the benefaction.  For though the University is not a corporation of colleges, but of matriculated members, and all colleges are separate corporations, yet these colleges attract and furnish the members to be matriculated, and every new college enlarges the universal school, and by increasing the number of scholars adds weight, dignity, and strength to the University.”

 

Generally speaking, a University and College are one body.  The Universities of Bologna and Paris are both teaching Universities, and Trinity College in this respect appears to have resembled them.

 

We now come to the Letters Patent of the Queen (21 Vict., July 24, 1857).  In them we find the following recitals:-

 

“Whereas we are informed that the senate or congregation of the University of Dublin, consisting of the Chancellor or Vice-Chancellor, Doctors in the several faculties, and Masters of Arts of the said University, has heretofore, for the last two hundred years and upwards, been governed by certain rules or statutes, entitled, “Regulae seu Consuetudines Universitatis Dubliniensis pro solenniore graduum collatione”.  And whereas our right trusty and right entirely beloved councillor, John George, Archbishop of Armagh, Primate of all Ireland, Chancellor of the said University; our right trusty and well-beloved councillor, Francis Blackburne, Doctor of Laws, Vice-Chancellor of the said University; and our trusty and well-beloved the Provost and senior Fellows of the College of the holy and undivided Trinity, near Dublin, have humbly represented unto us that the said rules or statutes have, by lapse of time, become in many respects obsolete, and unsuited to the present state of the said University and College, and doubts have been raised as to whether the Provost and senior Fellows of the said College have power to alter and amend the same; and the said Chancellor, Vice-Chancellor, Provost, and senior Fellows have therefore humbly supplicated us to remove the said doubts, and to grant unto the said Provost and senior Fellows of the said College, and also unto the senate or congregation of the said University, such further powers as will enable them to revise, alter or repeal the said rules and usages relating to the conferring of degrees by the said University, and to enact other rules or regulations for the same purpose, to be binding and obligatory on all members of the University”.

 

Then the granting part of the Letters Patent is as follows:-

 

“We are graciously pleased to accede to their request; Know ye, therefore, that we, of our special grace, certain knowledge, and mere motion, by and with the advice and consent of our right trusty and well-beloved cousin and councillor George William Frederick, Earl of Carlisle, our Lieutenant_General and General Governor of Ireland, do, by these presents, for us, our heirs and successors, enact and confirm to the Provost and senior Fellows of the College of the holy and undivided Trinity aforesaid, and unto the Chancellor or Vice-Chancellor, Doctors and Masters of the said University, all such powers, rights, and privileges as by the charters and statutes of our royal predecessors to the Provost, Fellows, and Scholars of the College of the holy and undivided Trinity aforesaid, or to the University of Dublin aforesaid, have heretofore been given, granted or by usage and prescription possessed, without any alteration or diminution whatsoever, save as herein provided.

And it is our will and pleasure that the Provost and senior Fellows of our said College of the holy and undivided Trinity shall have power, if they shall think fit, to alter, amend, and repeal all laws, rules, or bye-laws heretofore existing, for the more solemn conferring of degrees by the senate of the University aforesaid, and to make, enact, and enforce, from time to time, such additional laws, rules and bye-laws, and to alter or vary the same for the like purpose, as to them shall seem fit.  Provided always, that no such new laws, rules, or bye-laws, or emendations or alterations or such existing laws, rules, or bye-laws, shall be of force or binding upon the said University until they shall have received the sanction of the senate of the same in congregation lawfully assembled”.

 

No law is to be proposed except by the Board.  Then, the constitution, powers, and privileges of the Senate are defined and determined, and to carry out the object in view the Senate is incorporated in these words:-

 

“And our will and pleasure further is, that the senate of the said University shall be, and continue to be, a body corporate, and have a common seal, and shall have power under the said seal to do all such acts as may be lawful for them to do (in conformity with the laws and statutes of the realm, and with the charter and statutes of the College of the holy and undivided Trinity, and with the statutes, laws, and bye-laws made or to be made in pursuance of these our Royal Letters), under the name, style, and title of the Chancellor, Doctors, and Masters of the University of Dublin.

It shall be further lawful for the said Chancellor, Doctors, and Masters to apply the funds which may or shall belong to the said University senate, for the promotion of useful learning in the said University, subject to such regulations as the Provost and senior Fellows of our said College shall approve of or prescribe.

And it shall be lawful for the said Chancellor, Doctors, and Masters of the said University, in their corporate capacity as aforesaid, to have, hold, acquire, and receive such lands, manors, tenements, or other property, real or personal, as may, from the date of these presents, be given or bequeathed unto them, by any person whatsoever, for the encouragement of learning in the said University.  Provided also, that such gift or bequest does not impose any condition or obligation inconsistent with the statutes of the said University in force at the time of such gift or bequest, or inconsistent with the charters and statutes of the College of the holy and undivided Trinity, near Dublin”.

 

It is on these Letters Patent and the incorporation therein contained of the Chancellor, Doctors, and Masters, that the claim of the Senate, who are the defendants, depends.  In my opinion, this is not the incorporation of the University of Dublin, but of its Senate merely.

 

By another Charter of the same reign another University, the Queen’s University, has been incorporated.  The second Charter of the Queen’s University (I have not the first one at hand) is in these words:-

 

“We do will, order…and found a University, which shall be one body politic and corporate by the name of the Queen’s University in Ireland.”…“And we do further will and order that the said body politic and corporate shall consist of a Chancellor, Senators, Secretary, Professors, Graduates, and Students.”

 

Thus we find a Charter of the same reign, dated a few years after the Charter incorporating the Senate, by which a University was incorporated, consisting of a Chancellor, Senators, a Secretary, Graduates, and Students, and in it the persons precisely defined and described of which the University is to consist.  This is not an accidental circumstance.  The advisers of Queen Victoria knew how to incorporate a University when they meant to do so.

 

There is, however, another body, viz. the Council, which was established by Letters Patent of the 38 Vict. (November 4, 1874), and to which it is said the will of Mr. Reid refers when he speaks of the “Board.”  I need not allude in detail to its constitution: suffice to say, it is nowhere called the Board in any official instrument.  The contest here is between the College and the Senate. 

 

There are therefore two bodies in existence, to either of which the designation of corporation of the University of Dublin may refer, and to one or other to which it must refer: not with strict accuracy in either case, perhaps, but sufficiently clearly to enable a gift to take effect in favour of whichever is in fact meant.  If the gift had been to the “Senate” or to the Chancellors, Doctors, and Masters, there would have been no question, since whatever belief one might have had of the intention of the testator, the body would have been unmistakably defined.

 

There is of course no reported case in point: Mostyn v. Mostyn, 5 H.L.C. 155; Stringer v. Gardiner, 27 Beav. 35, 4 De Gex. & J. 468, are cases of gifts to known individuals where there is some inaccuracy in the name and the description connected with it.  Nor have Ellis v. Houstoun, 10 Ch. Div. 236, or Holmes v. Custance, 12 Ves. 279, any intimate bearing upon it.

 

Kilvert’s Trusts, L.R. 7 Ch. 171, comes perhaps nearer to the present case than any of those which were cited.  In that case a testatrix by a will made in 1868 gave a legacy to the “treasurer for the of the fund for the relief of widows and orphans of the clergy of the diocese of Worcester, to be applied by him in the benefit of the charity.”  Two societies made a claim – one had been founded in 1777 for the relief of the widows orphans of the clergy of the diocese, at which time the diocese comprised only the Archdeaconry of Worcester.  In 1837 the Archdeaconry of Coventry was added to the diocese, and in 1848 the Worcester Society altered its title, so as to show that its operations were restricted to the Archdeaconry of Worcester.  The other society had been founded in 1877 for the relief of the widows and orphans of the clergy in the Archdeaconry of Coventry.  The father of the testatrix had been a subscriber to the Worcester Society till his death in 1817.  His widow had continued the subscription till her death in 1860, and the testatrix had continued it from that time at an increased rate; but it did not appear that the testatrix or any of her family had subscribed to the Coventry Society; it was held by Vice-Chancellor Malins that the gift was to be treated as a gift to an object, not to a particular society, but must be apportioned between the two societies.  But the Court of Appeal held that the gift was a gift to a particular society, with a slight inaccuracy of description, and that the Worcester Society was solely entitled.  Lord Justice James said:-

 

“Parol evidence is admissible to show which of the two was meant.  Evidence has always been admitted show which of two societies the testator knew, and to which of them he subscribed.  Such evidence is admissible to remove an ambiguity, if there has been sufficient ground laid to raise an ambiguity, and I am assuming against the appellant that the Coventry Society have raised an ambiguity.  The fund must, in my opinion, be paid to the treasurer of the Worcester Society.”

LORD JUSTICE MELLISH: “I am of the same opinion.  The language of the bequest shows that the testatrix had some particular society in her mind, and the question is, What Society?  There is no difference between the course to be adopted here and in any other case of finding who answers the description given in a will of a legatee.  If there was no society answering the description sufficiently to enable it to claim the legacy, it might be that the Court would carry the gift into effect as a gift for the relief of the widows and orphans of the clergy of the diocese.  Here, however, I think it clear that the appellants come near enough to the description to be entitled to the legacy, if there was no other society to compete with them.  There is a description of the society by its old name; that name has been changed, but that object is precisely the same as at first, and the old name is wholly inapplicable to it.  Then, assuming another society to come near enough to the description to have ground for a claim, parol evidence is admissible to remove the ambiguity, and the evidence given is decisive.”

 

This, in short, is a case of latent ambiguity, and in such cases the rule is (when the fact of ambiguity is shown) first to see whether the other words of the will afford grounds sufficient to enable us to decide between the two conflicting bodies, and if not, then to admit extrinsic evidence.

 

The extrinsic evidence in the case, or rather the extrinsic facts admitted without proof, are all the one way.  The testator had left the College and University long before the Senate was incorporated or the Council heard of.  It was to Trinity College and its University of Dublin inseparably and undistinguishably blended with it, that he owed his training and his degree. 

 

But in the words of the will itself are to be found indications which leave to my mind no doubt as to what his intention was.  He uses the words University and College as loosely as the Legislature and the Crown use them.  First he bequeaths all the books which he may die possessed of “the Librarian for the time being of the University of Dublin.”  There is no Librarian of the University of Dublin or of the Senate of the University of Dublin.  There is a Librarian of Trinity College, Dublin.

 

Secondly, the testator bequeaths his shares or stock in the Great Indian Peninsula Railway Co. &c., to his trustees for the purpose of paying the same to the Corporation of the University of Dublin, to endow in the said University a Professorship of Penal Legislation, provided that it shall be lawful for the Board of the University to assign any other duties which they may consider proper to be performed by the said Professors so as to make the study of Penal Legislation a regular branch of instruction in the Law School of the University.  And I empower the said Board to award prizes annually for proficiency in the said branch of legal science, &c.  The word Board has a well-defined meaning in Trinity College.  It means the Provost and Senior Fellows.  It as contended by Mr. Twigg, on behalf of the defendants, that the word is synonymous with Council.  In my opinion the testator did not mean to designate a body which was not constituted till long after his connexion with Trinity College ceased, and his use of the words, “Board of the University,” affords a key to what he meant by the Corporation of the University of Dublin. 

 

Thirdly, the testator bequeaths his Three Per Cent. Consolidated Bank Annuities to the Corporation of the University of Dublin, “to found in Trinity College, Dublin, additional Sizarships, or Exhibitions in the nature of Sizarships, not to exceed five in number, open only to students of limited means, natives of the County of Kerry, who, having failed to obtain the ordinary Sizarship of the College, may be deemed to have shown sufficient merit: such Exhibitions to be held on conditions similar in all respects to those upon which ordinary Sizarships are held in the said College, and not to preclude such Exhibitioners from obtaining any other Exhibitions or Prizes to which an ordinary Sizar would be eligible; and the Board of the said University shall determine the annual stipend to be allowed to each such Exhibitioner, or the privileges in lieu of such stipend, in such a way as to place him with respect to exemption from fees, free commons, and free rooms, on a footing similar to that of ordinary Sizars.  What Board?  Plainly the Board of the same Body – the same Corporation to which he made the bequest, “and I empower the said Board to apply the residue of such income (if any) in such manner as they may think best calculated to encourage superior education in the said county, as, for instance, by assigning from time to time stipends, to such schoolmasters as may distinguish themselves in preparing students for the said University, such stipends to be given on condition that such master or masters shall undertake to prepare, free of expense, as day scholars, a certain number of boys of limited means for the Sizarships Examinations of the University, or in such other way as to the said Board may seem most effectual and expedient for the promotion of superior educationin the said county.”  There are no Sizarships in the University; they are in the College.   There are no such Examinations as Sizarship Examinations of the University.  They are held in and by Trinity College.  In my opinion, treating the question as one of intention, the testator has clearly shown on the face of the will itself that what he meant by the Corporation of the University of Dublin was the Corporation of Trinity College.  I am bound to give effect to that intention unless it is encountered by some rule of law.  I have already shown at, I fear, too great length, that the phrase “Corporation of the University of Dublin” has no such defined meaning as in a case like the present, excluding all inquiry as to particular intention; and I have therefore no hesitation in pronouncing a decree for the plaintiffs.

 

___________________

 

 

SCHEME SETTLED BY THE COURT

 

For the Regulation and Management of the Reid Professorship and

Sizarship Charities, and the Funds and Property thereof.

 

 

1. The Charity founded by the Will dated the 22nd September, 1881, of the late Richard Touhill Reid, Esq., Barrister-at-Law, formerly of Killarney, in the county of Kerry, and afterwards of Bombay, in the East Indies, and by the said Testator, endowed with all the shares and stock belonging to him in the Great Indian Peninsula Railway Company, or in the Bombay, Baroda and Central India Railway Company, shall be called “The Reid Professorship,” and the Charity founded by the same Will and by the same Testator, endowed with all funds belonging to him in the Three per Cent. Consolidated Bank annuities, shall be called “The Reid Sizarship.”

 

2. The Provost, Fellows and Scholars of the College of the Holy and Undivided Trinity of Queen Elizabeth, near Dublin, hereinafter called “the said College,” shall be the Trustees of the Endowments of the above-mentioned Charities, respectively.

 

3. The Endowment of the Reid Professorship shall consist of the sums of £2300, Great India Peninsula Railway Company Guaranteed £5 per Cent. Stock,, and £1904 Bombay, Baroda and Central India Railway Company Stock, and £1176 13s. 5d. Government Stock, representing the dividends that have accrued on the said Railway Stocks, respectively, subject to proportion of costs of suit, together with such sums (if any) as may be received for duty paid, and shall be held by the said College when the same shall have been transferred to them, upon trust, either to continue the said sums of Stock respectively, in their present state of investment, or to sell the same or any part thereof, respectively, and invest the proceeds of such sale or sales in or upon any investment in which trust funds or cash, under the control of the Chancery Division, may, for the time being, be authorized by law to be invested with power to vary such investments from time to time.

 

4. The said College shall stand possessed of the said Endowment of the Reid Professorship, and of the dividends and income thereof, upon trust, to endow thereout a Professorship to be called “The Reid Professorship of Penal Legislation, Constitutional and Criminal Law, and the Law of Evidence.”  There shall be paid out of the yearly income of the said Endowment a salary to such Professor not exceeding £200 per annum.  The College shall, after open competition and examination, appoint to such Professorship a member of the Irish Bar, who shall be a graduate in arts or in law (not honorary) of any university.  Such Professorship shall not be held for a longer period than five years by any one Professor.  Every such Professor shall deliver at least twelve lecturers every year, which shall be open to the general public, and shall publish, at his own risk and expense, at least six of such lectures every year.  And in case any Professor shall make default in delivering twelve such lecturers within the year, or in publishing at least six of such lectures within the year following, then the said Professorship shall be considered vacant and open to fresh competition.

 

5. It shall be lawful for the said College, upon providing such additional emoluments from Student’s fees or other sources, as the said College shall deem reasonable, from time to time to increase the minimum number of lectures to be delivered or published by the said Professor, and to assign any other duties which the said College may consider proper to be performed by such Professor, so as to make the study of Penal Legislation, Constitutional and Criminal Law, and the Law of Evidence a regular branch of instruction in the Law School of the University.

 

6. The said College may, out of the residue of the income of the said endowment (if any) pay reasonable fees to the Examiners at the competition for said Professorship, and other expenses attending same, and award prizes annually for proficiency in the said branches of legal science, and may also award a premium at every or any competition for such Professorship to the candidate who shall stand next in merit to the successful candidate, and who would, if he had stood first in merit, have been eligible for such Professorship.

 

7. The endowment of the Reid Sizarship shall consist of the sum of £6189 6s. 8d., Consolidated Bank annuities, subject to proportion of costs of suit, together with such sums (if any) as may be received for duty paid, and shall be held by the said College when same shall have been transferred and paid to them upon trust, either to continue the said Government Stock in its present state of investment, or to sell the same or any part thereof, and invest the proceeds of such sale or sales in or upon any such investment as hereinbefore authorized, with respect to the endowment of the Reid Professorship, with power to vary such investments from time to time.

 

8. The said College shall stand possessed of the endowment of the Reid Sizarship, and of the dividends and income thereof, upon trust, to found additional Sizarships in the said College, or Exhibitions in the nature of Sizarships, not to exceed five in number, open only to students of limited means, natives of the county of Kerry, who, having failed to obtain ordinary Sizarships, may be deemed to have shown sufficient merit.  Such Exhibitions to be held on conditions similar in all respects to those upon ordinary Sizarships are held in the said College, and not to preclude such Exhibitioners from obtaining any other exhibitions or prizes, for which an ordinary Sizar would be eligible, and the said College shall determine the annual stipend to be allowed to each such Exhibitioner, or the privileges in lieu of such stipend, in such way as to place him, with respect to exemption from fees, free commons and free rooms, on a footing similar to that of ordinary Sizars.

 

9. The said College may from time to time apply the residue (if any) of the income of such last-mentioned endowment, in paying the usual fees to the Examiners at the Examinations for such Sizarships, and in such manner as they may think best calculated to encourage superior education in the said County, as, for instance, by assigning from time to time stipends to such schoolmasters as may distinguish themselves in preparing students for Trinity College, Dublin, such stipends to be given on condition that such Master or Masters shall undertake to prepare free of expense, as Day-Scholars, a certain number of boys of limited means for the Sizarship Examination of the College, or in such other way as to the said College may seem most effectual and expedient for the promotion of superior education in the said County. 

 

10. If any difficulty shall at any time hereafter arise in the administration of the said Charity endowments, or either of them, the said College may, at any time, apply at Chambers, on summons, for directions in respect thereof.

 

A.M. PORTER, M.R.

   

The 1592 Letters Patent of Queen Elizabeth I establishing the College

(English translation provided by the College.  The Letters Patent were written in Latin) 

The College refers to these Letters Patent as its “Charter” (March 3, 1592)

 

Elizabeth by the Grace of God Queen of England, France and Ireland, Defender of the Faith, etc., to all to whom these letters come greeting.  Whereas our beloved subject Henry Ussher, archdeacon of Dublin, has humbly petitioned us in the name of the city of Dublin that since no College to instruct scholars in good letters and arts yet exists within our kingdom of Ireland we would deign to erect, found and establish a College, mother of a University, near the city of Dublin for the better education, training and instruction of scholars and students in our realm aforesaid, and also that provision should be made in a suitable manner for the relief and support of a provost and some fellows and scholars, KNOW that we, since we have a singular care for the training of the youth of our kingdom of Ireland piously and liberally, and for the benevolence that we have towards studies and students (that they the better be of service to learn good arts and practise virtue and religion), graciously granting this pious petition, of our special grace, and of certain knowledge, and of our mere will, will, grant and ordain, for us, our heirs and successors, that there shall be a College, the mother of a University, in a certain place called Allhallowes near Dublin aforesaid, for the education, training and instruction of youths and students in arts and faculties, to last for all future times, and that it shall be called THE COLLEGE OF THE HOLY AND UNDIVIDED TRINITY NEAR DUBLIN FOUNDED BY THE MOST SERENE QUEEN ELIZABETH.  And by these presents we erect, ordain, create, found and firmly establish that College with a provost, three fellows in the name of many, and three scholars in the name of many, to continue for ever.

 

And further we make, ordain, constitute and licence Adam Loftus, D.D., archbishop of Dublin, chancellor of our kingdom of Ireland, the first and present provost of the aforesaid College of the holy and undivided Trinity of Queen Elizabeth near Dublin aforesaid.  And we make, licence, constitute and ordain by these presents Henry Ussher, M.A., Luke Challoner, M.A., Lancellot Moine, B.A., the first and present fellows there in the name of many.  And we make, licence, constitute and ordain by these presents Henry Lee, William Daniell, and Stephen White the first and present scholars in the name of many.

 

And further, of our more ample special grace, certain knowledge and mere will, we will, ordain, grant and establish by these presents, for us, our heirs and successors, that the aforesaid provost, fellows and scholars of Trinity College aforesaid and their successors in matter, fact and name in future are and shall be a body corporate and politic, for ever incorporated and erected, by the name of THE PROVOST, FELLOWS AND SCHOLARS OF THE COLLEGE OF THE HOLY AND UNDIVIDED TRINITY OF QUEEN ELIZABETH NEAR DUBLIN, and that in all future times they shall be known, called and named by that name, and shall have perpetual succession, and we incorporate the provost, fellows, scholars, and successors, or provosts, fellows, scholars of the College of the holy and undivided Trinity of Queen Elizabeth near Dublin, and we really and completely create, erect, ordain, make constitute and firmly establish them by these presents a body corporate and politic, to endure for ever by that name.

 

And that the aforesaid intention may have better effect, and that they may for ever possess goods, chattels, lands, tenements, hereditaments, rents, renders, services and all other and singular profits, for the support and relief of the provost, fellows and scholars of that College, and that they may be better governed, and for the continuation of that College, we will, grant, ordain, and decree for us, our heirs and successors, by the presents, that whenever and as often as it shall happen that any provost in any manner be removed or cease to be, by death, decease, resignation, deprivation, or in any other manner (then and successively the aforesaid fellows and their successors then surviving or the majority of them may elect and name a suitable provost within three months next following.) And in the same way, if it happen that any of the aforesaid fellows and scholars in any manner cease to be, or be removed, by death, decease, resignation, deprivation, or in any other manner, then and successively (the provost and the other fellows or their successors then surviving) or the majority of them may well elect, name and constitute another suitable person or persons in the place or places of the aforesaid fellow or scholar, fellows or scholars (within two months next following, and so from time to time,) as often as death, decease, resignation or deprivation shall occur.  And that each of them, so from time to time elected, shall have and enjoy, and shall be able to have and enjoy as full and free power and authority in all things, and to do, implement and execute all and singular, as any other of the fellows of the aforesaid College have in any manner, or can or ought to enjoy.  And that they and their successors by the name of the provost, fellows and scholars of the College of the holy and undivided Trinity of Queen Elizabeth near Dublin may and shall be persons able, apt, and capable in law of acquiring, having, taking possession of, receiving and possessing manors, lands, tenements and hereditaments whatsoever to them and their successors for ever) so that they be not held of us, our heirs and successors, immediately in chief, in demesne or service) as well from us, our heirs and successors, as from any other person or person whatsoever, for the support and maintenance of the aforesaid College, and for the relief and maintenance of the provost, fellows and scholars of the aforesaid College.

 

And further, of our more abundant grace, certain knowledge, and mere will, we grant and give licence for us, our heirs and successors, to the aforesaid provost, fellows and scholars and their successors, that they and their successors may and shall be able to acquire, have, receive, take possession of and possess, by the name of the provost, fellows and scholars of the College of the holy and undivided Trinity of Queen Elizabeth near Dublin, manors, lands, tenements and hereditaments whatsoever, and whatever be their nature, kind and species, (to the annual value of forty pounds current money of England,) beyond all burdens and reprises, to the proper business and use of the aforesaid provost, fellows and scholars, and their successors, notwithstanding in any manner the statutes of not putting lands and tenements in mortmain.  And that they can and shall be able to prosecute, plead and be impleaded, defend and be defended, answer and be answered by that name in all and singular causes, plaints, and actions, real, personal and mixed, in all courts, as well temporal as spiritual, within our kingdom of Ireland or elsewhere; and to do, set in motion, and take possession of these and all singular other things as, and in the same manner as, our other lieges, persons able and capable in law, do and can do within our same kingdom of Ireland or elsewhere, in all places and courts aforesaid, and before all our justices and judges, or any of them.

 

And further we will and ordain for us, our heirs and successors grant to the aforesaid provost, fellows and their successors by the presents, that in future they shall have for ever a common seal to be devoted to their business according to the tenor and true intention of these our letters patents, as shall seem fit to the provost and the majority of the fellows.  In addition we grant and give licence to the provost and fellows of that College that they may from time to time for ever make, constitute and confirm laws, statutes and ordinances for governing their College piously and faithfully, and that they may establish among themselves whatsoever laws they consider well constituted in our Academies of Cambridge or Oxford, as they shall judge them apt and fitted to themselves.  (And especially that no one shall publicly profess or teach the liberal arts to any others in places within the limits of our kingdom of Ireland without our special licence.)

 

And whereas it appears that certain degrees have been of assistance in the arts and faculties, we ordain by these presents that the students in this College of the holy and undivided Trinity of Queen Elizabeth near Dublin shall have liberty and power to obtain degrees of Bachelor, Master, and Doctor, at a suitable time, in all arts and faculties.  (This always provided that when the fellows in this College have completed seven whole years after assuming the degree of Master there, then they shall be removed from the number of the fellows so that others chosen in their place shall have the emolument for the benefit of this kingdom and of the church;) and that they shall have liberty to perform among themselves all acts and scholastic exercises for gaining such degrees, as shall seem fit to the provost and the majority of the fellows, (and that they may elect, create, name and ordain all persons for better promoting such things, whether Vice-Chancellor, Proctor or Proctors), (for we have approved assignment of the dignity of Chancellor to our most honoured and faithful councillor, William Cecil, Baron Burghley, treasurer of all England): (and afterwards, when he shall cease to be chancellor, we ordain that the provost and the majority of the fellows shall elect a suitable person of this sort as chancellor of the College. And the chancellor, or his vice-chancellor, with the archbishop of Dublin, the Bishop of Meath, the vice treasurer, the treasurer for war, and the chief justice of our chief place within this our kingdom of Ireland, the mayor of the city of Dublin for the time being, or the majority of them who shall be called visitors, shall break off and limit all contentions, actions and controversies (which the provost and the majority of the fellows cannot settle), and that they shall punish all the graver faults not amended by the provost and fellows.)

 

Finally we establish and ordain to encourage studies and students, so that our subjects and officers may be encouraged to assist in the best establishment and conservation of this College, that they may supply and administer those goods with our grace and authority: and that all goods, chattels, things, lands, tenements, hereditaments pertaining to the provost, fellows and scholars of the said College, shall be from time to time in all future times, free and exempt from all burdens, taxes, tallages, cesses, subsidies, exactions, compositions or demands whatsoever, due or demanded to us, our heirs and successors, in any manner, by reason of our prerogative or otherwise, as well in time of war as in time of peace, notwithstanding any statute, act, ordinance, proclamation, restriction, custom, use, law, prescription, or any other thing, cause or matter whatsoever to the contrary of the premises in anything.  In testimony whereof we have made these our letters patents.  Witness our beloved and faithful councillor, William FitzWilliam, knight, our deputy general of our kingdom of Ireland.

Dublin, March 3, the 34th year of our reign.

[March 3, 1592]

 

PHILLIPS

 

Enrolled in the patent roll of the chancery of Ireland November 14, the 37th year of the reign of our lady Elizabeth, by the grace of God Queen of England, France and Ireland, Defender of the Faith, etc, by me, James Newman, clerk to Anthony Sent Leger, knight, master of the rolls of the court of chancery aforesaid.

 

The 1637 Letters Patent of King Charles I

(English translation provided by the College.  The Letters Patent were written in Latin)    

(May 25, 1637)

 

Charles by the Grace of God King of England, Scotland, France and Ireland, Defender of the Faith, etc.  To all to whom these our letters come, greeting.  Whereas the Lady Elizabeth, formerly Queen of England, by her letters patent under her great seal of Ireland, dated at Dublin the third day of March in the 34th year of her reign (recites those Clauses of the charter of Elizabeth founding the College and creating the body corporate with a common seal and the power of making statutes and conferring degrees).

 

We approving all and singular recited above, with the alterations, additions and declarations expressed later in these presents, and having goodwill in all things, ratify and fully confirm them by the presents for us, our heirs and successors, to the aforesaid provost, fellows and scholars and their successors.

 

Whereas the said late Queen by her letters patent ordained that the students in the said college should have liberty and power to obtain degrees as well of bachelor as master and doctor at suitable times in all arts and faculties, this however always provided, that when the fellows of the college had completed seven whole years after taking the degree of master, then they should be removed from the number of fellows, so that others substituted in their place might have the emoluments for the benefit of that kingdom and the church:  We, wishing with the agreement of the said provost, fellows and scholars to remove the said provision seeing that it is harmful not only to the students and the college, but also indeed to the kingdom, confirm by these presents for us, our heirs and successors, to the provost, fellows and scholars, and their successors, the aforesaid liberty of obtaining degrees in all faculties by our royal authority to the students of the aforesaid college for the time being, absolutely, without this provision.

 

And whereas the same late Queen by the same letters patent granted and gave licence to the aforesaid provost and fellows of that college that they might from time to time for ever make, constitute and confirm laws, statutes and ordinances to govern their college piously and faithfully:  and that they might establish among themselves whatever laws they thought well constituted to the universities of Cambridge or Oxford and judged apt and suited to themselves:  (we now wish to reserve and continue to ourselves our heirs and successors for ever, with the assent and consent of the provost, fellows and scholars, this power of establishing and constituting statutes and ordinances previously granted to the aforesaid provost and fellows of the said college as aforesaid).

 

And whereas the provost and fellows then existing according to the power granted to them by the late Queen Elizabeth made and established among themselves a body of statutes for the government of the college which statutes now hold force in the college; and it now appears that the aforesaid statutes were not and are not sufficiently adapted to the good government of the said college; we therefore, by the assent of the aforesaid provost, fellows and scholars of the said college, will and declare by these presents that the same statutes are annulled in all things; except that we ratify and confirm by the presents, for us, our heirs and successors to the aforesaid provost, fellows and scholars of the said college and their successors the augmentation made of the fellows of the college from three to sixteen, and of the scholars of the college from three to seventy, and the division of the aforesaid sixteen fellows into seven senior fellows and nine junior fellows, and the commitment of the government of the college to the provost and the majority of the senior fellows for the time being by virtue of the same statutes.

 

And since no society can long exist without statutes for its pious and faithful government:  therefore we of our special grace have commanded the aforesaid statutes to be reviewed, and have secured them thus corrected and given form, as can now be seen, and signed by our royal hand, by the royal authority:  commanding the aforesaid provost, fellows and scholars of the said college and their successors to obey these our statutes and not others for ever, unless we, our heirs or successors, shall see fit to add, remove, or change, or dispense with anything, notwithstanding these our statutes.  And therefore we will and further command that immediately after the receipt of these our statutes the provost and all the fellows and scholars of the said college shall engage to observe these our statutes; and each of them shall solemnly in the chapel before the visitors of the college named by us in our statutes and below take the oath which we have prescribed for his rank in our statutes; except that in the fellows’ oath we grant, for this time only, to the fellows now existing, beneficed according to the statutes which have obtained in the college up to this time, that this clause may be omitted, ‘moreover I declare that I now possess no ecclesiastical benefice’.  We grant power and licence to the visitors of the college to administer the oath on this occasion, and after this occasion we grant to the provost and vice provost of the college for the time being (when the provost shall have taken the oath himself) power by these presents to administer all and singular oaths required and prescribed in our statutes.

 

And because various cases may arise all of which human prudence cannot foresee; we will, and grant by the presents for us, our heirs and successors, to the aforesaid provost, fellows and scholars of the said college and their successors; that the provost and the majority of the (senior fellows) for the time being in matters omitted (where nothing certain has been determined in our statutes) may make new decrees and (ordinances), which are not repugnant to our statutes, and have the consent of the visitors to the college, (who are named below); we will and grant that they shall have binding force, under the penalties prescribed in them; until (the occasion ceasing) it shall seem fit to the provost and (senior fellows) or the majority of them, to rescind these decrees (and ordinances) with the consent of the visitors.

 

And whereas the aforesaid late queen by her said letters patent willed, granted, ordained and decreed, for herself, her heirs and successors, that whenever and as often as it happened that any provost was removed in any manner, whether by death, resignation, deprivation, or in any other manner; that then and successively the aforesaid fellows then surviving, or the majority of them, might elect and name a suitable provost within three months next following:  we, for the singular care which we have towards the whole kingdom of Ireland, and especially towards the aforesaid college, will and declare by the presents that this power, previously granted to the fellows of the aforesaid college for the time being and their successors, shall for ever, with the assent and consent of the same provost, fellows and scholars, be reserved to us, our heirs and successors.  And therefore we command that whenever and in whatsoever manner the provostship of the said college shall happen to be vacant, the vice provost for the time being, (or in his absence the most senior fellow who shall be in the house) shall immediately notify the vacancy to the chancellor of the aforesaid academy or university for the time being, and the chancellor, without delay, shall announce it to us.  During the vacancy, and until a new provost be named by us, our heirs and successors, and admitted to the provostship in the said college, we will that the vice provost for the time being shall undertake the care of the government of the college, and shall take the place of the provost in all things; (except in the distribution of chambers, all elections, demises of the lands and tenements of the college to farm, and the making of whatsoever instruments which are accustomed to be sealed with the college seal).

 

And whereas the aforesaid late queen by her letters patent willed, granted and ordained for herself, her heirs and successors, that if it happen that any of the aforesaid fellows and scholars in any manner be removed, by death, resignation, deprivation or in any other manner, then and successively the provost and the other fellows or their successors then surviving, or the majority of them, might elect, name and constitute another suitable person or persons, in the place or places of the said fellow or scholar, fellows and scholars, within two months next following; and so from time to time, as often as such death, resignation, or deprivation should happen and that each of them, so from time to time elected, should have and enjoy, and might and could have and enjoy, as full and free power and authority in all things, and to do, implement and complete all and singular, as any other of the fellows and scholars of the aforesaid college in any manner ought to or could have or enjoy:  we, wishing for certain causes to change the aforesaid time of nomination, election and constitution of any fellow or scholar of the aforesaid college t be nominated, elected and constituted in future; of our special grace, certain knowledge and pure will, we will and ordain and grant by the presents, for us, our heirs and successors, to the aforesaid provost, fellows and scholars, and their successors:  that whenever and as often as in future it shall happen that any senior fellow shall cease to be of the number in any manner, and be removed from it by death, resignation, deprivation or in any other manner, then and successively the provost and the rest of the senior fellows then surviving, or the majority, or an equal part of them for the time being, together with the provost, may elect, name and constitute a suitable person or persons in the place or places of the aforesaid senior fellow or fellows within (a space of three days) from the vacancy’s being known.  Likewise, if it happen that any of the junior fellows or scholars in any manner be removed, by death, resignation, deprivation, or in any other manner, then and successively (the provost and senior fellows,) or the majority of them for the time being, together with the provost, may elect, name and constitute another suitable person or persons in the place or places of the aforesaid junior fellow or fellows, scholars and scholars, on Monday after Trinity Sunday (next following,) according to our statutes aforesaid provided in this case, and so from time to time whenever death, resignation or deprivation shall happen; and that each of them so as aforesaid elected to such place or places or provost, senior fellow, junior fellow or scholar shall have and enjoy, and may have and enjoy as full and free power and authority in all things, and to do, implement and complete all and singular as the provost or any other senior fellow, junior fellow or scholar of the said college for the time being now ought to or can have and enjoy, according to the tenor of our aforesaid statutes in this case.

 

And whereas the same late queen by her same letters patent, for herself, her heirs and successors, for the support and maintenance of the aforesaid college, and for the relief and support of the provost, fellows and scholars of the aforesaid college, granted and gave licence to the aforesaid provost, fellows and scholars, and their successors, that they and their successors might acquire, have, receive and possess, by the name of the provost, fellows and scholars of the college of the holy and undivided Trinity of Queen Elizabeth near Dublin, manors, lands, tenements and hereditaments whatsoever, whatsoever might be their kind, nature or species, to the annual value of £40 current money of England beyond burdens and payments, to the proper use of the aforesaid provost, fellows and scholars and their successors, the statutes of not putting lands and tenements in mortmain notwithstanding.

 

Know that we, wishing to provide for the improvement and enlargement of the college, and at the humble petition of our beloved and faithful councillor Thomas Viscount Wentworth, our deputy general of our kingdom of Ireland, of our special grace and certain knowledge and pure will, will and for us, our heirs and successors, by the presents give leave to the provost, fellows and scholars and their successors:  that they, the provost, fellows and scholars and their successors, may acquire, take and receive manors, lands, tenements and hereditaments whatsoever, of whatever kind, nature or species, as well from us, our heirs and successors, as from any other person or persons whatsoever, to the provost, fellows and scholars and their successors for ever to the support and maintenance of the aforesaid college, and to the relief and support of the provost, fellows and scholars of the same college and their successors (in addition to the aforesaid manors, lands, tenements and hereditaments to the annual value of £40 mentioned in the letters patent of the aforesaid late queen as aforesaid).  So however that the manors, lands, tenements and hereditaments acquired by virtue of the presents be not held of us, our heirs and successors, immediately in chief, in demesne, or in service, or of us, our heirs and successors, or of any other person, by knight service.  (And also that they do not exceed in total annual value £200 current money of England beyond all burdens and payments,) the statutes of not putting lands and tenements in mortmain, or any other statute, act, ordinance or provision to the contrary thereof notwithstanding.

 

We grant further, and give special licence by the presents, for us, our heirs and successors, to all and singular persons whatsoever, that they, or any of them, may freely and lawfully give, sell, alienate, bequeath, or grant to the aforesaid provost, fellows and scholars, and their successors, manors, lands, tenements, and hereditaments whatsoever (in addition to the aforesaid manors, lands, tenements and hereditaments mentioned in the aforesaid letters patent of the said late queen as aforesaid), as well of their own fee as of another, whether held of us, our heirs or successors, or of any other person whatsoever, provided that they be not held of us, our heirs and successors, immediately in chief, in demesne or in service, or of us, our heirs or successors, or of any other person by knight service:  the aforesaid statutes of not putting lands and tenements in mortmain, or any other statute, act, ordinance, or provision to the contrary thereof notwithstanding.  And this, without making, performing or taking any inquisition, or inquisitions thereon returnable in our chancery by pretext of any writ or command of us, our heirs and successors, of ad quod damnum or any other writ, grant, command or precept.  (So, however, that those manors, lands, tenements and hereditaments do not exceed the annual value of £200 current money of England (beyond all burdens and payments as aforesaid).  Willing and firmly commanding for us, our heirs and successors, that the aforesaid provost, fellows and scholars, and their successors shall not by occasion of the premises, or any of them, be impeached, disquieted, molested, or troubled in anything by us, our heirs and successors, justices, escheators, sheriffs, or other bailiffs or ministers of us, our heirs and successors.

 

(And we will, and forbid by the presents, that anyone should publicly profess or teach the liberal arts in other places within our kingdom of Ireland, without the special licence of us, our heirs and successors, first had and obtained in that behalf)

 

And that all and singular the premises may be better cared for, of our special grace towards the aforesaid college, we grant by the presents for us, our heirs and successors, to the aforesaid provost, fellows and scholars:  that (the provost and senior fellows) of the aforesaid college for the time being, or the majority of them together with the provost, shall in future for ever have licence and power to name, elect and admit (a chancellor), proctors, and all other officers pertaining to the aforementioned academy, but by this rule, that each of them so (as aforesaid) elected together with the vice-chancellor of the aforesaid academy (to whom we wish always to be chosen by the chancellor of the academy, whose place he holds) shall engage under oath to exercise faithfully the office entrusted to him.  (The chancellor of the aforesaid academy shall take the aforesaid oath before the chancellor or keeper of our great seal of England, or before the chancellor of Ireland;) the vice-chancellor before the chancellor of the academy, or in his absence (before the chancellor of our kingdom of Ireland).  The proctors and the remaining officers of the academy aforesaid shall bind themselves as above before the chancellor, or in his absence the vice-chancellor, of that academy.  All of whom, namely (the chancellor or keeper of our great seal of England, the chancellor of our kingdom of Ireland), the chancellor and vice-chancellor of the aforesaid academy near Dublin for the time being, we strengthen with our royal authority so that in the aforesaid cases they can and may lawfully administer the oath to persons so (as aforesaid) elected.

 

And whereas the aforesaid late queen by her said letters patent willed and ordained that the chancellor of the aforesaid academy for the time being or his vice-chancellor, with the archbishop of Dublin, the bishop of Meath, the vice-treasurer, the treasurer at war, the chief justice of her chief place within her kingdom of Ireland, and that mayor of the city of Dublin, for the time being, or the majority of them, who shall be called visitors, should break off and determine all quarrels, actions and controversies which the provost and the majority of fellows could not settle:  and should punish all graver faults not corrected by the provost and fellows:  we, for certain causes specially moving us in this matter, will, and by the presents ordain, for us, our heirs and successors, with the assent of the provost, fellows and scholars:  that the chancellor of the aforesaid academy, or in his absence his vice-chancellor for the time being, (with the archbishop of Dublin for the time being), shall in future for ever be the visitors of the aforesaid college, whom we fortify with our authority to break off and determine all quarrels, actions and controversies which (for provost and the majority of the senior fellows) for the time being cannot settle:  and that they may punish all faults not corrected by the provost and senior fellows of the aforesaid college:  and this according to our statutes for the government of that college.  Except that should the vice-chancellor of the academy and (the archbishop of Dublin) disagree among themselves upon any matter in controversy, or in any graver business whatsoever, we will that nothing shall be done at any time without the approval of the chancellor of the aforesaid academy, or if it be done, it shall be held invalid.

 

Finally, we establish and command, for us, our heirs and successors, of our same grace, that whatsoever assistance to the better constitution and conservation of the college, as to the prosecution of studies, can be given by our deputy general of our kingdom of Ireland, and all other subjects and officers for the time being of us, our heirs or successors, shall be give and administered with our good grace and authority.  And that all goods, chattels, things, lands, tenements and hereditaments pertaining to the provost, fellows and scholars of the said college and their successors shall be from time to time in all future times free and exempt from all burdens, taxes, tallages, cesses, subsidies, exactions, compositions or demands whatsoever, as well in time of war as in time of peace, due to or to be demanded by us, our heirs and successors, by reason of our prerogative or otherwise; any statute, act, ordinance, proclamation, restriction, custom, use, law, prescription, or any other thing, causes or matter to the contrary of the premises in anything notwithstanding; and notwithstanding that express mention of the true annual value or of the particular premises or any of them, or of other gifts or grants made by us or by any of our progenitors to the said provost, fellows and scholars of the said college before this is not made in the presents: any statute, act, ordinance, or provision, or any other thing, cause or matter whatsoever to the contrary of the premises notwithstanding.

 

In testimony whereof we have made these our letters patent, witness our aforesaid deputy general of our kingdom of Ireland.  At Dublin, the 25th day of May, the 13th year of our reign [May 25, 1637].

 

CARLETON

 

Enrolled in the patent roll of the chancery of Ireland, the 13^th year of Charles. 

Examined by me,

Chr. Wandesforde, Master of the Rolls

 

The 1857 Letters Patent of Queen Victoria 

(July 24, 1857)

 

 

LETTERS PATENT,

 

CONCERNING

 

THE CHANCELLOR, DOCTORS, AND MASTERS

 

OF

 

THE UNIVERSITY OF DUBLIN.

 

(21 VICT. – July 24, 1857)

 

__________

 

 

VICTORIA, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, and soforth: - To all unto whom these presents shall come, greeting.

 

Whereas we are informed that the senate or congregation of the University of Dublin, consisting of the Chancellor or Vice-Chancellor, Doctors in the several faculties, and Masters of Arts of the said University, has heretofore, for the last two hundred years and upwards, been governed by certain rules or statutes, entitled, “Regulae seu Consuetudines Universitatis Dubliniensis pro solenniore graduum collatione”.  And whereas our right trusty and right entirely beloved councillor, John George, Archbishop of Armagh, Primate of all Ireland, Chancellor of the said University; our right trusty and well-beloved councillor, Francis Blackburne, Doctor of Laws, Vice-Chancellor of the said University; and our trusty and well-beloved the Provost and senior Fellows of the College of the holy and undivided Trinity, near Dublin, have humbly represented unto us that the said rules or statutes have, by lapse of time, become in many respects obsolete, and unsuited to the present state of the said University and College, and doubts have been raised as to whether the Provost and senior Fellows of the said College have power to alter and amend the same; and the said Chancellor, Vice-Chancellor, Provost, and senior Fellows have therefore humbly supplicated us to remove the said doubts, and to grant unto the said Provost and senior Fellows of the said College, and also unto the senate or congregation of the said University, such further powers as will enable them to revise, alter or repeal the said rules and usages relating to the conferring of degrees by the said University, and to enact other rules or regulations for the same purpose, to be binding and obligatory on all members of the University: We are graciously pleased to accede to their request; Know ye, therefore, that we, of our special grace, certain knowledge, and mere motion, by and with the advice and consent of our right trusty and well-beloved cousin and councillor George William Frederick, Earl of Carlisle, our Lieutenant_General and General Governor of Ireland, do, by these presents, for us, our heirs and successors, enact and confirm to the Provost and senior Fellows of the College of the holy and undivided Trinity aforesaid, and unto the Chancellor or Vice-Chancellor, Doctors and Masters of the said University, all such powers, rights, and privileges as by the charters and statutes of our royal predecessors to the Provost, Fellows, and Scholars of the College of the holy and undivided Trinity aforesaid, or to the University of Dublin aforesaid, have heretofore been given, granted or by usage and prescription possessed, without any alteration or diminution whatsoever, save as herein provided.

 

And it is our will and pleasure that the Provost and senior Fellows of our said College of the holy and undivided Trinity shall have power, if they shall think fit, to alter, amend, and repeal all laws, rules, or bye-laws heretofore existing, for the more solemn conferring of degrees by the senate of the University aforesaid, and to make, enact, and enforce, from time to time, such additional laws, rules and bye-laws, and to alter or vary the same for the like purpose, as to them shall seem fit.  Provided always, that no such new laws, rules, or bye-laws, or emendations or alterations or such existing laws, rules, or bye-laws, shall be of force or binding upon the said University until they shall have received the sanction of the senate of the same in congregation lawfully assembled.

 

And our further will and pleasure is, that no law, rule or bye-law, or grace whatsoever, for the conferring of degrees, or any other purpose, shall be proposed to the senate, which has not been first proposed to and adopted by the said Provost and senior Fellows of our said College.  Provided, however, that it shall be in the power of the Chancellor, or, in his absence, the Vice-Chancellor or Pro-Vice-Chancellor (to be appointed as hereinafter mentioned) of the University to prohibit any such intended law, rule, bye-law, or grace, from being proposed to the senate. 

 

And our further will and pleasure is, that in case the Vice-Chancellor of the University shall be unable, from any cause, to attend any meeting of the senate, he shall have power, by any writing under his hand and seal, to appoint a person to act as Pro-Vice-Chancellor for the time being; and such person so appointed shall, for such time, possess all the authority of the Vice-Chancellor.

 

And our further will and pleasure is, that the senate of the said University shall, as heretofore, be constituted and consist of the Chancellor, or, in his absence, of the Vice-Chancellor, or Pro-Vice-Chancellor for the time being, and such Doctors and Masters of the University as shall have and keep their names on the books of the College of the holy and undivided Trinity, in accordance with such regulations and conditions as the Provost and senior Fellows of the said College shall enact.

 

And our further will and pleasure is, that the caput of the said senate shall consist, as heretofore, of the Chancellor, or, in his absence, of the Vice-Chancellor, or Pro-Vice-Chancellor as aforesaid, the Provost of the said College, or, in his absence, the Vice-Provost, and the senior Master non-regent elected by the senate.

 

And our further will and pleasure is, that the said senate shall be convened only by the Chancellor of the said University, or in his absence, by the Vice-Chancellor, or Pro-Vice-Chancellor as aforesaid, each of whom, when presiding therein, shall have power also, at his pleasure, to adjourn or dissolve all meetings of the senate.  Provided only that on a requisition presented to him by the Provost and senior Fellows, the Chancellor, or, in his absence, the Vice-Chancellor, or Pro-Vice-Chancellor as aforesaid, shall be bound to convene the senate, to meet at such time, and for such purpose, as shall be stated in such requisition, and the said Chancellor, Vice-Chancellor, or Pro-Vice-Chancellor, as the case may be, shall preside therein.  And in case, at any meeting whatsoever of the senate, there shall be an equality of lawful votes upon any question proposed therein, such Chancellor, Vice-Chancellor, or Pro-Vice-Chancellor so presiding therein shall have a casting vote, and the side to which such casting shall be given shall be deemed to have the majority of votes.

 

And whereas the Provost and senior Fellows of the said College have heretofore, under and by virtue of the statutes of our royal predecessors, possessed the exclusive right and power of electing the Chancellor of the said University, but said Provost and senior Fellows are willing that said power should in future be under the control of the senate of the said University, as hereinafter provided: We therefore, by and with the consent of the said Provost and senior Fellows, for ourselves, our heirs and successors, enact, that in the event of a vacancy in the office of Chancellor of said University by death, resignation, or deprivation, it shall be lawful for the said Provost and senior Fellows, and they are hereby directed, within one calendar month after such vacancy, to propose to the senate of the said University the names of three persons from amongst whom the said senate are to elect a successor to the office of Chancellor; and the said senate shall, within one calendar month from the day of such proposal, and at such time and place within said period, and in the said College, as shall be appointed by the said Provost and senior Fellows, proceed to elect a Chancellor from amongst the persons so proposed to them as aforesaid, and such of said persons as, upon a scrutiny, shall have the majority of lawful votes of the members of the senate then present shall be declared to be the Chancellor of the said University.  Provided, however, that in computing any of said periods the interval between the 1^st of July and 1^st of October shall not be reckoned or taken into account, nor shall any name be proposed as aforesaid, or any such election take place or be held during said interval.  And in the event of the senate of the said University declining or omitting to elect a Chancellor within such period as aforesaid, then our will and pleasure is, that the election and nomination of the Chancellor of the University shall, for that time only, devolve upon us, our heirs and successors.         

    

And our further will and pleasure is, that during the vacancy of the office of Chancellor the Vice-Chancellor shall continue to hold his office, and shall have power to convene the senate for the purpose of electing a Chancellor, and shall, by himself, or the Pro-Vice-Chancellor as aforesaid, preside at the election, and shall have authority to exercise all the functions and duties of the Chancellor, until the election of the Chancellor.  And immediately after such election the office of Vice-Chancellor shall become ipso facto void until and fit and proper person be appointed thereto by the Chancellor.

 

And our will and pleasure further is, that the senate of the said University shall be, and continue to be, a body corporate, and have a common seal, and shall have power under the said seal to do all such acts as may be lawful for them to do (in conformity with the laws and statutes of the realm, and with the charter and statutes of the College of the holy and undivided Trinity, and with the statutes, laws, and bye-laws made or to be made in pursuance of these our Royal Letters), under the name, style, and title of the Chancellor, Doctors, and Masters of the University of Dublin.

 

It shall be further lawful for the said Chancellor, Doctors, and Masters to apply the funds which may or shall belong to the said University senate, for the promotion of useful learning in the said University, subject to such regulations as the Provost and senior Fellows of our said College shall approve of or prescribe.

 

And it shall be lawful for the said Chancellor, Doctors, and Masters of the said University, in their corporate capacity as aforesaid, to have, hold, acquire, and receive such lands, manors, tenements, or other property, real or personal, as may, from the date of these presents, be given or bequeathed unto them, by any person whatsoever, for the encouragement of learning in the said University.  Provided also, that such gift or bequest does not impose any condition or obligation inconsistent with the statutes of the said University in force at the time of such gift or bequest, or inconsistent with the charters and statutes of the College of the holy and undivided Trinity, near Dublin.

 

And we do hereby, for us, our heirs and successors, grant and declare that these our Letters Patent, or the enrolment or exemplification hereof, shall be in all things good, firm, valid and effectual in the law, according to the true intent and meaning of the same, and shall be taken, construed, and adjudged in all our courts or elsewhere in the most favourable and beneficial sense, and for the best advantage of the said College, any mis-recital, non-recital, omission, defect, imperfection, matter or thing whatsoever, to the contrary thereof in anywise notwithstanding.  Provided always that these our Letters Patent be enrolled in the rolls of our High Court of Chancery in that part of our said United Kingdom called Ireland, within the space of six months next ensuing the date of these presents.  In witness whereof we have caused these our Letters to be made Patent.

 

Witness George WILLIAM FREDERICK, Earl of Carlisle, our Lieutenant-General and General Governor of Ireland, at Dublin, the twenty-fourth day of July, in the twenty-first year of our reign.

 

                                                                                                [Locus Sigilli]

 

                                                                                                                JOHN O’ CONNELL,

                                                                                                                Clerk of the Crown and Hanaper.

 

Enrolled in the office of the rolls of her Majesty’s High Court of Chancery in Ireland, the eighth day of August, one thousand eight hundred and fifty-seven.

 

                                                                                                                JOHN REILLY.

 

MY APPLICATION TO THE EUROPEAN COURT OF HUMAN RIGHTS UNDER ARTICLE 34 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

(December 2007)

 

On December 18, 2007 I sent to the European Court of Human Rights in Strasbourg, by courier post, an application under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

Parts II, III, IV and V of my Application to the European Court of Human Rights are available for viewing/downloading.  Click on the name of the Part to open or save that Part of my Application.

 

Part II

Part III

Part IV

Part V

 

Articles 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms gives “any person…claiming to be the victim of a violation by one of the High Contracting Parties [i.e. one of the signatory States] of the rights set forth in the Convention” the right to apply to the European Court of Human Rights.  Article 34 also prevents the Republic of Ireland and the other signatory States from “hinder[ing] in any way the effective exercise of this right”.  According to Article 35 of the Convention “all domestic [i.e. state-level] remedies” must be “exhausted” before the applicant can apply to the European Court of Human Rights and the application must be made “within a period of six months from the date on which the final decision was taken”.

 

The Convention for the Protection of Human Rights and Fundamental Freedoms can be read by clicking here.

 

The Irish Act supposedly ‘incorporating’ the Convention into domestic lawis irrelevant because Section 1(1) of that Act specifically excludes the Irish courts and the extent of the ‘incorporation’ is, moreover, “subject to [i.e. limited by] any [i.e. every] statutory provision…or rule of law” (Section 3(1) of the European Convention of Human Rights Act 2003).   

If an Irish Court has violated a person’s Convention rights this Irish Act does not provide (and was obviously never intended to provide) a domestic remedy.

 

MY COMPLAINT AGAINST MS ENDA FULHAM UNDER TRINITY COLLEGE’S POLICY ON BULLYING

 

 

On November 18, 2007 I wrote a note listing the “specific instances” of bullying by Ms Enda Fulham, a Practice Teacher with the social work department at Trinity College and the then Director of the HSE Risk Assessment & Consultation Service, Palmerstown, Dublin 20.  (Ms Fulham is, I understand, now the Director of the Ballydowd Special Care Unit, Palmerstown, Dublin 20.)  This note was written as an aide mémoire for my Supreme Court hearing.

Click here to read a copy of my note on the “specific instances” of bullying by Ms Enda Fulham.

 

 

• The Working Agreement for my practice placement at the Risk Assessment & Consultation Service, Palmerstown, Dublin.  Agreed between Ms Enda Fulham, Dr Shane Butler and Patrick Kelly  (February 13, 2003)

 

• One of the Practice Teacher’s criticisms was that my skills were “poor”.  I have therefore decided to include copies of some of the records I wrote while a social work student on placement at the Risk Assessment & Consultation Service:

 

A.      My notes on the Pre Assessment Meeting with S.C.  (April 1, 2003)

B.       My notes, as a Project Worker to S.C., of my first session with S.C.  (April 2, 2003)

C.       My notes of my second session with S.C.  (April 8, 2003)

D.      The transcript of my third session with S.C., which was recorded on audiotape  (April 11, 2003)

E.       Points “For Discussion at Supervision”  (April 8, 2003)

F.       Reflective learning exercise completed for Practice Teacher  (March 20, 2003)

G.       Note written at the request of the Practice Teacher on “INTER-PROFESSIONAL ASPECT OF SERVICE”  (March 3, 2003)

H.      An “outline plan” for interviewing the mother of one of the young people (“J.K.”) referred to the Service  (April 3, 2003)

I.         My notes on the interview with the mother of J.K.  (April 3, 2003)

J.        A “process recording exercise” completed for the Practice Teacher  (April 3, 2003)

K.      My notes of my discussion on A.K. with the social worker at the Service  (April 7, 2003)

L.       My notes on the Pre Assessment Meeting with A.D.  (February 24, 2003)

M.     Notes of my first session, in the role of Project Worker, with A.D.  (March 7, 2003)

N.      My second session with A.D.  (March 11, 2003)

O.      The third session with A.D.  (March 14, 2003)

P.       My fourth session with A.D.  (March 19, 2003)

Q.      The first version of the Project Worker Report I wrote on A.D. for the Assessment Review Meeting.  This was rejected by the Practice Teacher and I was told to rewrite the Project Worker Report to reflect the Practice Teacher’s views and ‘prior experience’ at the Service  (March 24, 2003)

R.      The second version of the Project Worker Report I wrote on A.D. for the Assessment Review Meeting  (March 25, 2003)

 

• My Practice Project on the Risk Assessment & Consultation Service of the then South Western Area Health Board, of which Ms Enda Fulham was the Director and my “Practice Teacher” for the duration of the practice placement.  Ms Fulham read my Practice Project before sending her Evaluation Report to Trinity College.  Although the Course Handbook states that the Practice Project should be graded – even if the Practice Teacher’s recommendation is that the placement has been failed – the Course Director refused to allow my Practice Project to be graded – because of the Practice Teacher’s recommendation that I had failed the placement.  I protested, but to no avail  (May 10, 2003)

 

• My e-mail to the College’s Freedom of Information Officer requesting, under Section 7 of the Freedom of Information Act 1997, copies of the records the College had on “the relationship in 2002 between Ms Amanda Fox, a then fourth year undergraduate student on the BSS [undergraduate] course and Ms Enda Fulham…”  (May 16, 2003)

 

• A copy of my comments on the Practice Teacher’s Evaluation Report (the “Comments on PTER” document), which was originally a Microsoft Word attachment to an e-mail sent on May 22, 2003 to the Course Director for the Masters in Social Work, Patricia (‘Trish’) Walsh, the Head of the Department of Social Studies at Trinity College, Robert (‘Robbie’) Gilligan and my then Social Work Tutor, Shane Butler  (May 22, 2003)

 

• The e-mail I sent Patricia Walsh attaching the “Comments on PTER” document  (May 22, 2003)

 

• Professor Dermot McAleese’s decision on my request under Section 7 of the Freedom of Information Act 1997 for copies of the records the College had on “the relationship in 2002 between Ms Amanda Fox, a then fourth year undergraduate student on the BSS [undergraduate] course and Ms Enda Fulham…”  (June 3, 2003)

 

• My e-mail to the College’s Freedom of Information Officer, copied to Professor McAleese, responding to Professor McAleese’s decision under the Freedom of Information Acts 1997 and 2003.  The College is still, years later, refusing to give me copies of the two reports  (June 7, 2003)

 

• A copy of my e-mail to the Course Director for the Masters in Social Work course at Trinity College, Patricia (‘Trish’) Walsh making a formal bullying complaint against my Practice Teacher, Ms Enda Fulham  (June 21, 2003)

 

• Patricia Walsh’s letter “to formally acknowledge receipt of your complaint of June 21 against your former Practice Teacher, Ms Enda Fulham”  (July 17, 2003)

 

• I made a series of right of access requests under the Freedom of Information Acts 1997 and 2003, most of which the College refused as “frivolous or vexatious”.  When I applied for review to the Information Commissioner the College claimed that my right of access requests were “an abuse of the right of access”.  The Information Commissioner, predictably, agreed with everything the College said and “discontinued” the reviews.  In her published decision she deleted or altered any information that could have identified Trinity College, including my name:  Trinity College, for example, is referred to as “an Institute” and I am referred to as “Mr X”.  I wrote to the Information Commissioner objecting to this, and asking that the identifying information not be concealed in this way, but my correspondence to the Information Commissioner was ignored.  I have included here a copy of the Information Commissioner’s published decision  (October 10, 2003)

 

• Letter from Michael Gleeson, the Secretary to the Board, enclosing “ a copy of the report of the investigation conducted by the Pro-Dean”, Professor John Murray  (November 27, 2003)

 

• Letter from Michael Gleeson, the Secretary to the Board, enclosing Professor John Murray’s ‘review’ of my bullying complaint “in the light of policy changes to College regulations in this regard”  (July 6, 2004)

 

• Letter sent by Ms Annette Slater, Anti-Bullying Response Unit, Health and Safety Authority, to Mr Michael Gleeson, Secretary to the Board of Trinity College  (September 6, 2004)

 

• Letter from Michael Gleeson to Ms Annette Slater, Anti-Bullying Response Unit, Health and Safety Authority  (September 22, 2004)

 

• Trinity College’s “upgraded” policy on bullying  (2004)

 

• Irish Health and Safety Authority, Code of Practice on the Prevention of Workplace Bullying  (2002)

 

• Letter from Michael Gleeson, the Secretary to the Board, informing me that “the College” (actually, the Board of the College) had “appointed Professor John McGilp to reconsider” my complaint against Ms Enda Fulham “in the context of the current guidelines”  (October 5, 2004)

 

• The “notes taken” by Lorraine Shiels, Staff Relations Officer at Trinity College, at the “meeting” between Professor McGilp and I in Trinity College on December 2, 2004.  These “notes” were “completed” by Ms Shiels on December 7, 2004.

 

• Professor John McGilp’s “internal memorandum” to the Board of Trinity College on his “investigation” of my bullying complaint  (February 11, 2005)

 

• Letter from Ms Lorraine Sheils, Staff Relations Officer at Trinity College on Professor McGilp’s “internal memorandum”  (February 14, 2005)

 

• Letter from Colm Kearney, Dean of the Faculty of Business, Economic and Social Studies at Trinity College  (March 15, 2005) enclosing, in response to a request under the Freedom of Information Acts 1997 and 2003, a copy of my comments on the Practice Teacher’s Evaluation Report

 

• Michael Gleeson’s letter “in relation to the investigation which was conducted by Professor McGilp into your complaint of bullying by Ms Enda Fulham”  (March 18, 2005)

 

• Michael Gleeson’s letter on the “role” of the Board of the College “in considering the outcome of any investigation into a complaint made”  (March 29, 2005)

 

• The “final version” of the Course Handbook for the Masters in Social Work Course at Trinity College  (October 2002)

 

• The Course Accreditation Standards and Procedures Handbook published by the National Social Work Qualifications Board  (2003)  

 

 

THE “VISITORIAL SYSTEM” AT DUBLIN’S TRINITY COLLEGE AND MY APPEAL TO THE VISITORS OF TRINITY COLLEGE

 

• The College Statutes of Trinity College  (as in force in 2005)

 

• Copies of my letters to the Office of the Secretary to the Board  (February 19, 2005 to March 21, 2005)

 

• Copies of the e-mails to the Secretary to the Board (Michael Gleeson) and the Board of Trinity College  (March 20, 2005 to May 20, 2005)

 

• Copies of the e-mails sent by Trinity College, primarily the Secretary to the Board/College, Michael Gleeson  (March 21, 2005 to May 27, 2005)

 

• My e-mail to the Secretary to the Board and the Board of Trinity College  (May 29, 2005)

 

• Copies of the e-mails to the Secretary to the Board (Michael Gleeson) and the Board of Trinity College  (May 29, 2005 to June 17, 2005)

 

• Michael Gleeson’s private letter to Brian McCracken, the secondary Visitor of Trinity College, on my appeal (dated July 5, 2005), only released on October 17, 2005 in response to a request under Section 7 of the Freedom of Information Acts 1997 and 2003 for copies of College records on the appeal  (July 5, 2005)

 

• A letter to Brian McCracken  (July 31, 2005)

 

• My letter to Michael Gleeson on the “College’s [i.e. the Board’s] response” to my appeal  (September 8, 2005)

 

• Letter from Michael Gleeson enclosing “the College’s [sic!] views [on my appeal], as sent to the Visitors” (September 16, 2005)  

 

• A letter to Brian McCracken  (September 18, 2005)

 

• Copies of my letters to Brian McCracken  (September 20, 2005 to November 11, 2005)

 

• McCracken’s letter on the “jurisdiction” of the Visitors of Trinity College (September 22, 2005)

 

• Michael Gleeson’s letter on “the qualifications and experience” of Dr Eda Sagarra  (October 21, 2005)

 

• Michael Gleeson’s letter on “the most senior Pro-Chancellor available”  (October 27, 2005)

 

• Copies of the letters I received from Mr Justice McCracken on my appeal  (July 29, 2005 to October 28, 2005)

 

• Michael Gleeson’s letter on Dr Eda Sagarra and “how the Visitorial system operates”  (November 3, 2005)

 

• Letter from the Secretary to the Board of Trinity College, Michael Gleeson, enclosing “the decision of the Visitors”  (November 9, 2005)

 

• My letter to Brian McCracken and Eda Sagarra on “the decision of the Visitors”  (November 15, 2005)

 

 

MY WORK AS A SOCIAL WORK STUDENT AT TRINITY COLLEGE

 

I have decided to include the assignments I wrote when I was a social work student at Trinity College –

 

A.                  My Social Policy assignment

 

B.                   My Family and Child Law assignment

 

C.                   My Equality Studies assignment

 

D.                  My Dissertation Proposal

 

E.                   My Child Observation Study

 

F.                   My Social Policy Presentation (Handout for Students)

 

G.                   My Social Policy Presentation (OHP Slides)

 

 

JUDICIAL REVIEW APPLICATION

 

Patrick Kelly v. the Visitors of the College of the Holy and Undivided Trinity of Queen Elizabeth near Dublin

High Court Record Number  2005/1311 JR

 

• According to Order 84, Rule 20(1) of the Rules of the Superior Courts:

 

“No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule”.

 

• Under Order 84, Rule 20(2) of the Rules of the Superior Courts an application for leave to apply for judicial review “shall be made by motion ex parte grounded upon—

(a) a notice in Form No. 13 in Appendix T containing a statement of:
(i) the name, address and description of the applicant,
(ii) the relief sought and the grounds upon which it is sought,
(iii) the name and registered place of business of the applicant's solicitors (if any), and
(iv) the applicant's address for service within the jurisdiction (if acting in person); and
(b) an affidavit which verifies the facts relied on”.

 

• My statement under Order 84, Rule 20(2) is included on this website  (November 29, 2005)

 

• My affidavit under Order 84, Rule 20(2) is also included  (November 29, 2005)

 

• A copy of my e-mail to the College’s Freedom of Information Officer, copied to Mr Gleeson and the Board of the College  (November 30, 2005)

 

• Mr Gleeson’s e-mail reacting to the e-mail I had sent Mr Turpin the previous day  (December 1, 2005)

 

• My reply to Mr Gleeson’s e-mail of December 1, 2005  (December 1, 2005)

 

• An addition to my reply to Mr Gleeson’s e-mail of December 1, 2005  (December 1, 2005)

 

• My e-mail to Mr Gleeson, Secretary to the Board of the College responding to a letter I received from Mr Gleeson dated December 5, 2005  (December 7, 2005)

 

On December 15, 2005 High Court judge Henry Abbott refused my application for Judicial Review.  I appealed to the Supreme Court against this refusal and the case was mentioned at the Supreme Court on December 16, 2005 in accordance with what is called the ‘4-day rule’.  As required by the Rules of the Superior Courts I lodged 5 copies of my “Books of Appeal” at the Supreme Court Office on December 19, 2005. 

 

I have included:

 

1. A copy of the High Court order refusing my application for leave to apply for judicial review  (December 15, 2005)

 

2. Henry Abbott’s “Note of judgement”  (December 15, 2005)

 

4. A copy of Order 58 of the Rules of the Superior Courts  (Appeals to the Supreme Court)     

 

 

APPEALING TO THE SUPREME COURT  (EX PARTE APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW)

 

Patrick Kelly v. the Visitors of the College of the Holy and Undivided Trinity of Queen Elizabeth near Dublin

 

 

Legal Submission to the Supreme Court – First Supplement

IN JULY 2007 I LODGED A SUPPLEMENT TO MY LEGAL SUBMISSION TO THE SUPREME COURT OFFICE AND APPLIED TO THE CHIEF JUSTICE FOR PRIORITY STATUS FOR MY APPEAL.  ON JULY 31, 2007 I WAS NOTIFIED THAT THE APPEAL HEARING WOULD TAKE PLACE ON WEDNESDAY, DECEMBER 12, 2007. 

 

Legal Submission to the Supreme Court – Second Supplement

I WROTE A SECOND SUPPLEMENT TO MY LEGAL SUBMISSION ON OCTOBER 14, 2007. 

CLICK HERE TO READ THAT SECOND SUPPLEMENT (PDF).  IT IS ALSO AVAILABLE AS AN RTF FILE BY CLICKING HERE.

THE INDEX TO THE BOOK OF AUTHORITIES FOR MY SECOND SUPPLEMENT CAN BE READ BY CLICKING HERE.  CLICK HERE FOR THE INDEX AS AN RTF FILE.

 

Legal Submission to the Supreme Court – Third Supplement

CLICK HERE TO READ MY THIRD SUPPLEMENT (OCTOBER 16, 2007) AS A PDF FILE.  THE VERSION IN THE RTF FILE FORMAT CAN BE READ BY CLICKING HERE.

THE INDEX TO THE BOOK OF AUTHORITIES FOR MY THIRD SUPPLEMENT IS AVAILABLE AS BOTH A PDF FILE AND AN RTF FILE.

 

Legal Submission to the Supreme Court – Fourth Supplement

MY FOURTH SUPPLEMENT TO MY LEGAL SUBMISSION (OCTOBER 21, 2007) CAN BE READ BY CLICKING HERE (PDF).  IT IS ALSO PROVIDED IN THE RTF FILE FORMAT.

FOR THE INDEX TO THE BOOK OF AUTHORITIES FOR THE FOURTH SUPPLEMENT CLICK HERE (PDF) OR HERE (RTF).

 

Legal Submission to the Supreme Court – Fifth Supplement

CLICK HERE FOR MY FIFTH SUPPLEMENT TO MY LEGAL SUBMISSION (DATED NOVEMBER 3, 2007) AS A PDF FILE AND HERE FOR IT IN THE RTF FILE FORMAT.

FOR THE INDEX TO THE BOOK OF AUTHORITIES FOR THIS FIFTH SUPPLEMENT CLICK HERE (PDF) OR HERE (RTF).

 

Legal Submission to the Supreme Court – Sixth Supplement

FOR THE PDF FILE, PLEASE CLICK HERE.  FOR THE RTF FILE, CLICK HERE.

THE INDEX TO THE BOOK OF AUTHORITIES CAN BE VIEWED BY CLICKING HERE (PDF) OR HERE (RTF).

 

DECEMBER 12, 2007

SUPREME COURT HEARING

 

My appeal against the order dated December 15, 2005 of the High Court judge, Henry Abbott, refusing me leave to apply for judicial review was listed “For Hearing” at the Supreme Court on Wednesday, December 12, 2007.  The hearing took place in the Hugh Kennedy Courtroom in the Four Courts.  Mr Justice Fennelly, Mrs Justice Macken and Mr Justice Finnegan were the judges of the Supreme Court assigned my case.

 

A copy of my speaking notes for December 12, 2007 are available in the PDF file format by clicking here and in the Microsoft Word format by clicking here.

 

 

 

 

AT THE DATE OF MY ENROLLMENT AS A POSTGRADUATE SOCIAL WORK STUDENT AT TRINITY COLLEGE THE COURSE DID NOT HOLD “THE STATUS OF ACCREDITED OR PRELIMINARY ACCREDITED COURSE” IN SOCIAL WORK

 

According to Section D10 of the Handbook of Accreditation Standards and Procedures for Courses Leading to the National Qualification in Social Work (NQSW) Award, published by the National Social Work Qualifications Board:  “The status of NQSW shall apply to all students who earned their qualification on a course which held at the date of the student’s enrollment the status of accredited or preliminary accredited course”. 

 

The students who enrolled on the postgraduate social work course at Trinity College in 2002, of which I was one, were enrolling on a new course.  At “the date” of our “enrollment” the course did not, however, hold “the status of accredited or preliminary accredited course”.  The course did not obtain this “status” until several months later.  And yet the students who completed the course were put forward for, and received “the status of NQSW”. 

 

On February 27, 2006 I wrote to the Freedom of Information Officer at Trinity College about this  (February 27, 2006).

 

I also wrote to the Director and the Chairperson of the National Social Work Qualifications Board  (February 27, 2006); why, I asked, “were the students on the postgraduate social work course at Trinity College whose date of ‘enrollment’ preceded the preliminary accreditation of the course – i.e. the students who enrolled in September/October 2002 – awarded the National Qualification in Social Work (NQSW) in 2004?” 

 

THE “DIFFERENCE OR DISTINCTION” BETWEEN THE UNIVERSITY OF DUBLIN AND TRINITY COLLEGE DUBLIN

 

• Irish Senate, Official Report of the Senate Debates, Volume 163, Number 1 (April 18, 2000) (.pdf file)

 

Columns 18 to 21:                 Senator Norris, a Senator representing the Trinity College constituency in the Irish Senate and an employee of Trinity College, comments on “the relationship between the University of Dublin and Trinity College”.  He quotes a judgement of the High Court of Justice of Ireland, which he describes as “the only reserved judgment of the Irish Superior Courts dealing with the relationship between Trinity College Dublin, the University of Dublin and the Senate of the University of Dublin”, i.e. that there is “no difference or distinction between the University of Dublin and Trinity College Dublin”.

 

Columns 31 to 34:                 The Irish Senate votes to suspend Senator Norris for “disorderly” conduct.  Senator Norris was attempting to prevent another Senator, Senator Dardis, from speaking on the amendment Senator Dardis moved regarding Trinity College’s Private Bill.  The amendment was:  “In page 3, lines 8 and 9, to delete ‘‘AND THE UNIVERSITY OF DUBLIN ARE’’ and substitute ‘‘IS’’ ”.  The word “ARE” in the Bill implied that Trinity College and the University of Dublin are separate and distinct (they are, in fact, the same thing).  The Senators representing the Trinity College constituency (David Norris, Mary Henry and Shane Ross) did not want the amendment passed; Mary Henry, for example, described the amendment as “humiliating” to the College (column 24).  The College likes to maintain the fiction of a “difference or distinction” between the University of Dublin and Trinity College because this has proved to be quite useful and continues to be quite useful to the College.      

 

• Transcript of the Proceedings of the Joint Committee of the Irish Parliament on Trinity College’s Private Bill  (July 6, 1999) (.pdf file)

 

Columns 9 to 11:                   The senior counsel for the College refers to the Trinity College Visitors

 

Columns 14 to 34:                 The evidence of the Provost of the College.

 

Column 32 and 33:                A very important exchange between the Provost and a member of the Committee, Deputy O’Malley, on the visitorial system at Trinity College.  For instance:

Deputy O’Malley:  “The process is not sufficiently independent that one should rely on it so heavily as the Provost does”.

Dr Mitchell:  “It has served the college well”.

Deputy O’Malley:  “I am sure it has. Has it served the public interest which is what it is intended to serve?”

 

Column 33:                            The Provost states:

“…the Chancellor has no connection with Trinity College because it is a separate entity from the University of Dublin and he is associated with the University of Dublin. This is an argument into which we should not get too deeply because it tends to be complicated and confusing”. 

The Provost was, of course, misleading the Committee.

 

                                Column 34:                            The Provost contradicts what he said at column 33:

                                                                                “…Trinity College and the University of Dublin are one and the same”.

 

• Transcript of the Proceedings of the Joint Committee of the Irish Parliament on Trinity College’s Private Bill  (February 15, 2000) (.pdf file)

 

                        Column 19:                            Trinity College’s senior counsel ‘snows’ the Committee:

“It is almost as if we have a Trinity of two beings.  Since Trinity was incorporated in 1592 there also has been a University of Dublin.  There is almost a form of symbiotic mystical relationship between them.  It has puzzled commentators for centuries”.

[To ‘snow’ is to “mislead…with elaborate and insincere words”, according to the Concise Oxford English Dictionary]

 

                                Column 30:                            Regarding the relationship between the University of Dublin and Trinity College Dublin, Deputy O’Malley observes:

“Listening to what was said about the relationship it occurred to me that the relationship between the University of Dublin and Trinity College is something akin to the relationship between the IRA and Sinn Fein.  They are all the one on the days that it suits them.  They are quite different on other days when it suits them”.

 

• Transcript of the Proceedings of the Joint Committee of the Irish Parliament on Trinity College’s Private Bill  (December 7, 1999) (.pdf file)

 

Column 3:                              Michael Gleeson confirms, in his sworn evidence to the Committee, that he is “Secretary to the Board” of Trinity College.

 

It is also worth reading the transcript to see what the College, and the senior counsel for the College, say about the relationship between Trinity College and the University of Dublin

 

• Irish Senate, Official Report of the Senate Debates, Volume 162, Number 14  (March 9, 2000) (.pdf file)

 

Column 931:                          Senator Ryan points out:  “The merest criticism of Trinity College provokes its Senators beyond endurance.  We are not allowed to criticise Trinity College – it is above criticism.  It is anachronistic and as long as 80 percent of its funds comes from the taxpayers, the Houses of the Oireachtas [Parliament] are entitled to talk about it in whatever language we wish”.

                                                                               

Senator Norris revealingly replies:  “As long as it is complimentary”. 

 

• The Trinity College, Dublin (Charters and Letters Patent Amendment) Act 2000  (2000) (.pdf file)

 

The short title of this Private Act of the Irish Parliament, in itself, reveals the nature of the changes the College had to make to its original Bill.  The Private Bill, when first introduced by the College in 1997, had the following short title: “The Trinity College, Dublin and the University of Dublin (Charters and Letters Patent Amendment) Bill”.  The reference to “the University of Dublin” is absent from the short title of the Act.  

 

INSTRUMENTAL CONFUSION

 

In 1991 Trinity College published Trinity College Dublin and the Idea of a University, a book edited by C.H. Holland, Professor of Geology and Mineralogy at Trinity College; in chapter 4, ‘Responsibility: the administrative framework’. Aidan Clarke, Professor of Modern History at Trinity College, referred to the “relationship” between the University of Dublin and Trinity College:

 

“The precise nature of the relationship between the two has long served as an intellectual pleasure garden for the legalistically inclined, but the insolubility of the problem and the innocent amusement it affords should not be allowed to disguise the fact that the confusion has been instrumental in fashioning the way in which Trinity is presently governed” (p.90).

 

The “confusion” is indeed “instrumental” to the present governance of the College.

Click here to read the excerpt as scanned from the book.

 

J.V. LUCE’S BOOK ON TRINITY COLLEGE

 

In 1992 Trinity College published a book written by Professor J.V. Luce, Trinity College Dublin:  The First 400 Years.  According to the then Provost’s [T.N. Mitchell’s] foreword, Luce is a “Scholar and Fellow” of the College and has “long and distinguished service in a variety of posts [in the College], including those of Senior Tutor, Public Orator, Senior Dean, and Vice-Provost” (p.vii). 

 

Luce points out that in 1613 King James I “allowed” Trinity College “parliamentary representation on the grounds that [quoting James I] ‘it is called a College and considered to be a University’ ” (p.4). 

 

Luce notes that that Letters Patent of Queen Elizabeth I establishing the College in 1592 provided for “a Court of seven Visitors” (p.4) but that the Letters Patent of King Charles I in 1637 “reduced [this] to two – the Chancellor and the [Church of Ireland] Archbishop of Dublin”.

 

The Irish patriot Robert Emmet was expelled as a student of Trinity College in 1798 by the Visitors of the College in a “purge…of United Ireland sympathizers” (p.67), a “visitation” that even Luce describes as “notorious”. 

 

In 1843 a student of the College, Denis Caulfield Heron, “appealed to the Visitors, who at first refused to hear his appeal, but were later directed to do so by the High Court” (p.94).  This demonstrates that the Visitors, as a quasi-judicial tribunal created by public law, are subject to judicial review. 

 

THE RESPECTIVE ROLES OF CHANCELLOR AND PROVOST      

     

Trinity College has both a Chancellor and a Provost.  Mary Robinson is the Chancellor and John Hegarty is the current Provost. 

 

The Chancellor “acts as head of the university on ceremonial occasions” (Chapter II, Section 1 of the College Statutes) and is the “primary” Visitor (Chapter II, Section 2 of the College Statutes). 

 

The Provost, according to the College Statutes, is “the Head of the College, and shall be entitled to the authority and respect appropriate to that position” (Chapter IV, Section 1 of the College Statutes).        

 

The College describes its Chancellor as “Chancellor of the University of Dublin”.  As the Reid case shows, however, there is no “difference or distinction” between the University of Dublin and Trinity College:  the “Chancellor of the University of Dublin” is the Chancellor of Trinity College. 

 

The role of the Chancellor of the College does not overlap with the role of the Provost of the College.  In an article in the Irish Times newspaper on March 10, 2001 David Norris, one of the three senators representing the Trinity College constituency in the Irish Senate and an employee of the College (he is a lecturer), wrote that the Provost of Trinity College is “the equivalent of the chief executive of a small corporation” (p.9).  To use Norris’s “corporation” analogy, the Chancellor is the chairperson of the corporation. 

 

The Chancellor is the chairperson of the “corporation” (Trinity College) and the Provost is its “chief executive”.   

 

THE VISITORIAL SYSTEM AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS

 

In 1999 the then Education Secretary in England “was warned the visitor system [in English universities] would not survive” a challenge under “the Human Rights Act”, i.e. the Act incorporating into English domestic law the Convention for the Protection of Human Rights and Fundamental Freedoms (‘Visiting time’, an article by Donald MacLeod in the Guardian newspaper dated May 14, 2003).  The Parliamentary Under-Secretary of State for Education and Skills, Ivan Lewis, admitted:  "there is a problem with the role of visitors and whether that prevents people's ability ultimately to go to court…” [Official Report, House of Commons Standing Committee H, February 12, 2004; col. 93.].  This led to the removal in England of the jurisdiction of university visitors over student complaints. 

 

In the Republic of Ireland, entrenched constitutional rights mean that the decisions of university visitors in respect of student complaints are subject to judicial review. 

 

Nevertheless, Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms would be relevant in the event of an appeal to the European Court of Human Rights in Strasbourg.  I intend to appeal to the European Court of Human Rights if the Irish Supreme Court does not give me leave to apply for judicial review in the Irish Courts or if the Irish Courts dismiss the application.  According to Article 6.1 of the Convention:

 

“In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

 

The Trinity College Visitors are obviously not “an independent and impartial tribunal”. 

 

C.P. SNOW

 

Charles Clarke, the then Secretary of State for Education and Skills in England, told the House of Commons in 2004 that “the often archaic arrangements with so-called visitors” were “more appropriate to the novels of C.P. Snow than to modern university life” [Official Report, House of Commons, January 27, 2004; Vol. 417, c. 167.].  The “university life” depicted in the novels of C.P. Snow, or Charles Percy Snow (1905-1972), is the opposite of “modern”; it is the type of “university life” aped at Trinity College, Dublin.      

 

Click here to read some pertinent excerpts from “the novels of C.P. Snow”.

  

MY ACCESS REQUEST IN JANUARY 2006 UNDER SECTION 4 OF THE DATA PROTECTION ACTS 1988 AND 2003

 

In January 2006 I made an access request to Trinity College for “personal data” covering the period March 2005 to January 2006. 

 

 

Another the items released is a computer printout of a letter dated December 2, 2005 from the Assistant Secretary to the Board of the College, Ms Anne Fitzgerald, to both the President of the Students Union and the President of the Graduate Students Union. 

 

Ms Fitzgerald asks the President of the Students Union and the President of the Graduate Students Union “to be vigilant in ensuring that Mr Kelly does not use your bulletin boards again to advertise the web address of the new site”. 

Click here to read a printout of that e-mail.

 

Another of the items released is a computer printout of an e-mail dated May 5, 2005 from Mr Daithi MacSithigh, a member of the Board of Trinity College, to Mr Michael Gleeson, Secretary to the Board of Trinity College.

In this e-mail Mr MacSithigh accuses me of ‘misrepresenting’ the “European Convention on Human Rights”, the “Freedom of Information Act”, the “Equal Status Act”, “the [Irish] Constitution”, the “College Statutes” and the “Data Protection Act”.

 

Click here to read a printout of Mr McSithigh’s e-mail to Mr Gleeson (May 5, 2005)

 

Another of the items released is a computer printout of an e-mail dated December 2, 2005 from the Assistant Secretary to the Board of the College, Ms Anne Fitzgerald, to FortuneCity, the web hosting service for my website (members.fortunecity.com/trinitycollegevisitors). 

This e-mail represents an attempt by the College to compel the web hosting service to “remove” my website from its “server”. 

The College was successful in its efforts to compel FortuneCity to “remove” the website.

 

Another of the items released is a computer printout of an email dated December 2, 2005 from me to Mr Michael Gleeson, the Secretary to the Board of the College.  There is a handwritten note on the printout; this handwritten note states:  “The site [my website] is still up and he appears to have 2 on the go”.  This handwritten note was written by an unidentified employee of Trinity College. 

Click here to read a copy of that handwritten note.

 

One of the items released is a printout of an e-mail dated April 4, 2005 from Patricia Callaghan, an employee of Trinity College, to the Secretary to the Board of Trinity College, Michael Gleeson.  In the e-mail Ms Callaghan informs Mr Gleeson that she has attached to the e-mail “some notes on the issues raised by Mr Kelly’s recent e-mail correspondence”.  I possess a printout of the e-mail attachment, which was sent in Microsoft Word format. 

 

The attachment to the e-mail is titled: “Notes for College Secretary on e-mail correspondence from Mr Patrick Kelly”.  The attachment was written by Ms Callaghan and “E. Hayes” and is dated April 4, 2005. 

 

Regarding my e-mail “of 20^th March 2005 21.28” Ms Callaghan and “E. Hayes” claim that “it has been confirmed that the Masters in Social Work examinations are marked anonymously, and that this practice was in place in 2003/04”.  I was a student at Trinity College in the 2002/03 academic year. 

 

Regarding my e-mail “of 20^th March 2005 21.28” Ms Callaghan and “E. Hayes” go on to claim that “it is not appropriate to confirm the statements in the [Trinity College] Calendar and on the [Trinity College] website as they stand on their own merits and do not require further confirmation”. 

 

Regarding my e-mail “of 20^th March 2005 22.42” Ms Callaghan and “E. Hayes” claim that “it would not be appropriate to respond to Mr Kelly by analyzing…in the way he is suggesting” the “regulations regarding plagiarism”. 

 

One of the items released is a computer printout of an e-mail dated May 4, 2005 from Patrick Kelly to Michael Gleeson, Secretary to the Board of Trinity College.

 

There is a handwritten note on this printout.  The handwritten note is a draft of an e-mail subsequently sent to me by Mr Gleeson. 

 

In the handwritten note, the following words appear in brackets after the word “University”: “a separate legal entity”.  A line was later drawn through the words “a separate legal entity”, so that, in context, they now appear in the handwritten note as follows: 

 

                “..the University (a separate legal entity)…”.

 

In its original form this part of the handwritten note would have read:

 

                “…the University (a separate legal entity)…”.

 

The “University” is not “a separate legal entity”, however.  Perhaps that it why Mr Gleeson had second thoughts about including these words in the e-mail he sent to me. 

 

The words “a separate legal entity” were removed from the version sent to me. 

 

A scanned copy of Mr Gleeson’s handwritten draft can be read by clicking here.

.

 

One of the items released is a computer printout of an e-mail dated December 5, 2005 from the Assistant Secretary to the Board of the College, Ms Anne Fitzgerald, to Pro Hosting, the web hosting service for my website (tcdv.white.prohosting.com). 

 

This e-mail represents an attempt by the College to compel the web hosting service to “remove” my website from its “server”. 

 

The College was successful in its efforts to compel Pro Hosting to “remove” the website.

 

One of the items released is a computer printout of an e-mail dated December 5, 2005 from the Assistant Secretary to the Board of the College, Ms Anne Fitzgerald, to Zero Catch, the web hosting service for my website (www.trinitycollegevisitors.0catch.com). 

 

This e-mail represents an attempt by the College to compel the web hosting service to “remove” my website from its “server”. 

 

Ms Fitzgerald sent Zero Catch a further e-mail on December 12, 2005; in this e-mail she complains that “the site is still live” and states that if my website is not removed from the “server” the College “will be forced to consider taking legal action”.

 

One of the items released is a computer printout of an e-mail dated November 24, 2005 from the Assistant Secretary to the Board of the College, Ms Anne Fitzgerald, to the President of the Students Union at Trinity College. 

 

In this e-mail Ms Fitzgerald asks the President of the Students Union “to remove the message” I had placed on the message board “from your website without delay”. 

In this e-mail Ms Fitzgerald refers to “the risk of legal liability to you [the President of the Students Union]…”. 

Mr Fitzgerald refers to “the risk of legal liability…to the College…”. 

Ms Fitzgerald refers to “the risk of legal liability…to Netsoc [one of the student societies at Trinity College]…”. 

Ms Fitzgerald, in her e-mail, adds that “Ryan Sheridan in the GSU [Graduate Students Union] is fully conversant with the situation”. 

Ms Fitzgerald copied to the President of the Students Union “the justification sent to geocities by the College for the removal of this website”, i.e. my website. 

 

Click here to read a printout of that e-mail.

 

One of the items released is a computer printout of an e-mail dated April 25, 2005 from Mr Shane Allwright, a member of the Board of Trinity College and an employee of the College, to Mr Michael Gleeson, the Secretary to the Board of Trinity College.

 

Mr Allwright describes my e-mails to members of the Board of Trinity College as “SPAM”, says that I am “harassing the Board” of the College, that I am “harassing” the Secretary to the Board of Trinity College, that my e-mails constitute “an abuse of the medium”, that I have “clearly rejected” the “instruction” I received “to stop harassing the Board” of the College and:  “I now intend to try to block all his [Patrick Kelly’s] emails at my end in the same way that other SPAM is blocked.  If it works, I will email the other Board members and tell them how to do it”. 

Mr Allwright concludes his e-mail by stating that “the utmost caution is required”. 

 

One of the items released is a copy of a letter dated September 22, 2006 from Cyril J. Smyth, the Senior Dean at Trinity College, to Patrick Kelly.  I never received this letter, however.  Apparently, it was written but never sent. 

 

In this letter the Senior Dean asserts that “exploitation did not occur even by” my “definition” of “exploitation”. 

He asserts that “abuse of power” and “abuse of authority” are “single terms well understood in common parlance…”. 

He states that I “completed misrepresented” what he said. 

He insists that “abuse of power or abuse of authority did not occur even by” my “definition”. 

He insists that “abuse of the disciplinary code did not occur, even by” my “definition”. 

He claims that it is not possible for “human error or mistake” to “constitute an ‘abuse of power’ or ‘abuse of authority’ ”. 

He claims that he acted “impartially, critically, fairly and judgmentally in relation to” my “complaints”. 

He states:  “I reject completely that I have acted as Senior Dean either manifestly unfairly or capriciously or partially or arbitrarily…”. 

He says that all my “arguments are purely semantic in nature…”. 

He claims:  “I have tried to engage with you positively and constructively and to justify my decisions to you”.

He declares that “nothing positive would be gained” by any further communication between us. 

 

One of the items released is a computer printout of an e-mail dated November 30, 2005 from the Assistant Secretary to the Board of Trinity College, Ms Anne Fitzgerald, to Yahoo Geocities, the web hosting service for my website (www.geocities.com/trinitycollegevisitors).

 

In this e-mail Ms Fitzgerald protests that my Geocities website “is still accessible” and she informs Yahoo Geocities:  “We will have to consider legal action if the site is not removed without delay”. 

 

The College was successful in its efforts to have my Geocities website “removed”.

 

 

MY REQUESTS TO BE ALLOWED TO USE TRINITY COLLEGE’S LIBRARY

 

Although I regret it profoundly, I was once student of Dublin’s Trinity College.  In March 2005 I requested “access” to the Library of Trinity College.  In a letter dated March 29, 2005 Michael Gleeson, the Secretary to the Board of Trinity College, informed me that “the College is not in a position, at this stage, to provide you with access to our Library”.

Click here to read Mr Gleeson’s letter.

 

In January 2006 I applied directly to the Librarian of Trinity College, Robin Adams, “for temporary membership…as an external reader”.  In a letter dated February 1, 2006 Mr Adams told that me:  “…I cannot give approval for your application on this occasion”.

Click here to read Mr Adams’ letter.

 

Under Section 18 of the Freedom of Information Act 1997, as amended by the Freedom of Information (Amendment) Act 2003, I sought an explanation for Mr Adams’ decision.

On February 14, 2006 Michael Gleeson, the Secretary to the Board of Trinity College, wrote a formal letter to Mr Adams asking that I “not be admitted as a reader”.

Mr Gleeson’s letter can be read by clicking here.

 

Mr Adams then sent an e-mail to Ms Anne Fitzgerald, Assistant Secretary to the Board of Trinity College, giving his reason for refusing my application to be “admitted an a reader”.  That was the reason intended to be used in answering my Section 18 application. 

Click here to read a printout of Mr Adam’s e-mail to Ms Fitzgerald.

 

 

THE RELATED CIRCUIT COURT CASE UNDER THE EQUAL STATUS ACT 2000

 

This Circuit Court case was heard at Court 32 in the Circuit Family Court building in Smithfield, normally reserved for Family Law cases where the in camera rule applies.  The case lasted for three days (June 27, 28 and 29, 2005).  The Senior Counsel for Trinity College, Senan Allen, informed the Court on June 29, 2005 that the facts were “uncontested”.  The Circuit Court judge who heard the case was Judge Delahunt and on July 15, 2005 she dismissed the appeal; the ostensible reason for dismissing the appeal was that the facts referred to did not amount to victimization under the Equal Status Act 2000.  Read the material on the case and see if you agree with the judge’s view.  The list below represents material used in, or written for, the Circuit Court case  –

 

• My basic submission to the Circuit Court, which was entered as an exhibit to an affidavit  (January 2005)

 

• A collection of my prepared notes for court, letters, affidavits, etc. in or for the Circuit Court case.  Although presented in a completely unedited form and not appearing in chronological order, I felt that, as the material is provided for information purposes and the Circuit Court case ended in July 2005, the order in which the notes, letters, affidavits, etc. appear in this collection is unimportant.  Click here for the collected material

 

• My prepared notes for the Equality Tribunal’s motion.  Ms Mary Honan, barrister, and Ms Madeline Reid, solicitor, represented the Tribunal for this  (June 27, 2005)

 

• An aide-memoire about Dr Walsh’s knowledge of the gender discrimination complaint against UCD  (June 25, 2005)

 

• The decision of the Equality Officer, Ms Bernadette Treanor, against which I appealed to the Circuit Court  (November 5, 2004) (.pdf file)

 

• The Equal Status Act  (2000) (.pdf file)

 

• The Equality Act  (2004) (.pdf file)

 

• Order 63 D of the Circuit Court Rules  (2004) (.pdf file)   [Note: the rules governing this type of appeal were changed in June 2006.]   

 

 

 

TRINITY COLLEGE’S EFFORTS TO SHUT DOWN THIS WEBSITE

 

On December 5, 2005 Ms Anne Fitzgerald, Assistant Secretary to the Board of Trinity College, sent the following e-mail to Zero Catch, the web hosting service:

 

“The following site is hosted by you http://www.trinitycollegevisitors.0catch.com and Trinity College contends that the website contains content which is abusive, harassing, defamatory, and otherwise objectionable of and to members of staff and officers of Trinity College Dublin.  The material on the site seeks to revive and to give wider and undeserved publicity to a number of complaints and disputes between the member (Patrick Kelly) and various members of staff and officers of Trinity College Dublin.  None of the disputes were resolved in Mr Kelly’s favour either by the Circuit Court, the Equality Tribunal (which is the Tribunal officially empowered to adjudicate on cases of prohibited discrimination) or by the officers of the College having jurisdiction to determine the disputes including the Pro Senior Dean and the Visitors of the University of Dublin on appeal.

Some of the material apart from being offensive to named members of staff of the College in its tone and content is also defamatory of them.  The following are indicative examples from the large set of e-mails in the section named ‘the visitorial system and my appeal’ by Mr Kelly:- 

Professor John McGilp.  Mr Kelly’s email to the office of the Secretary dated 19th February, 2005 ‘Professor McGilp imposed a retrospective requirement that he knew was both inapplicable and insurmountable’.  This is a clear inference that Professor McGilp, who was Pro Senior Dean in charge of investigating Mr Kelly’s complaint, acted dishonestly and in bad faith.

Dr Butler.  The same email alleges that he failed to fulfill the prime duty of a College tutor to be supportive of a student.

Dr Enda Fulham.  In the same email there is a quotation from an earlier email which Mr Kelly sent to the Freedom of Information Office of Trinity College dated 7th June, 2003 and this quotation contains the following passage:-

‘I have been informed by members of staff at the risk assessment and consultation service and social work students at Trinity College that Ms Fox was subjected to an appalling catalogue of intimidation, harassment and emotional abuse from Ms Fulham when Ms Fulham acted as practice teacher for Ms Fox in 2002.  Ms Fox was my immediate predecessor at this particular practice placement.  Ms Fulham sought to subject me to similar intimidation, harassment and emotional abuse.  In my experience Ms Fulham is not a competent practice teacher and her level of incompetence is a danger to the health and welfare of social work students for whom she has been or will be a practice teacher’.

This constitutes a deliberate repetition of a very serious attack on Dr Enda Fulham and the defamatory nature of the attack is obvious.  Similar charges against Dr Fulham are made in Patrick Kelly’s email to Michael Gleeson of April 23rd and in his email to Michael Gleeson of May 7^th he alleges that she subjected him to degrading treatment. 

Dr Patricia Walsh and Dr Robbie Gilligan.  In his email of March 20th to Michael Gleeson Mr Kelly claims that Dr Walsh (as his course director) ignored plagiarism of other students and that she and the Head of Department (Professor Gilligan) had ‘turned a blind eye to plagiarism’.  These are extremely serious charges against academic staff in positions of responsibility. 

Apart from the above, Mr Kelly has seen fit to attack the integrity of the Visitors of Trinity College in claiming, in a number of emails, that as the Board of Trinity College was largely responsible for their appointment, they would be unlikely to act in a manner contrary to the wishes of the Board.  This, and the attempt to involve the legislature in a debate or investigation of the visitorial system in Trinity College, is an unjustifiable attempt to undermine the institution of the Visitors, which has been a respected and important part of the Constitution of the College since the College was founded in 1592.  An obvious analogy would be to claim that a High Court judge would be unlikely to give judicial decisions adverse to the wishes of the Government because the Government had appointed him”.

 

A copy of the e-mail sent by the College is included here  (December 5, 2005)

 

On December 12, 2005 Ms Fitzgerald sent another e-mail to Zero Catch, this time threatening the web hosting service with legal action:

 

“….the site is still live.  I would be grateful if you would take the appropriate action and remove it from your server.  Otherwise we will be forced to consider taking legal action”.

 

I obtained printouts of the above e-mails following an access request under Section 4 of the Data Protection Acts 1988 and 2003.

 

The College has yet to follow up on this threat to take “legal action”.  If Trinity College wished to take “legal action” against the web hosting service and I it would have to do so through the Courts of the United States of America.  The web hosting service is an American company and the website is covered by US law.  Under US law the truth of a published statement creates a valid defense to an action of libel.  In other words, the truth is essentially an absolute defense.  Everything published on this website is true.  And that is why Trinity College blusters and threatens but has not acted on its threats to take “legal action”.

 

In the United States of America freedom of speech is a right guaranteed by the First Amendment. 

 

 

EARLIER VERSIONS OF THIS WEBSITE

 

The first version of this website appeared on the Yahoo Geocities web hosting service.  On November 24, 2005 Ms Anne Fitzgerald, the Assistant Secretary to the Board of the College, sent an e-mail to Yahoo Geocities.  This e-mail was identical to the e-mail the College later sent Zero Catch, which is quoted above, except that the website address cited is, of course, different.  On November 30, 2005 Ms Fitzgerald sent a further e-mail to Yahoo Geocities:

 

                                “…I have heard nothing from you and the site is still accessible.  We will have to consider legal action if the site is not removed without delay”.

 

The threat of “legal action” prompted a reply from Yahoo Customer Care on December 1, 2005 and the website was “removed”. 

 

The material was then placed on a FortuneCity website.  Ms Fitzgerald sent an e-mail to FortuneCity on December 2, 2005; this was the same e-mail she had used with Geocities and was elsewhere described by Ms Fitzgerald as “the justification”.       

 

The website content was then moved to a website on the Pro Hosting web hosting service.  Ms Fitzgerald sent “the justification” to ProHosting on December 5, 2005.  In fact, Pro Hosting “removed” the website without even waiting for the follow-up e-mail threatening “legal action”!

 

 

PATRICK KELLY v. DIRECTOR OF THE EQUALITY TRIBUNAL

High Court Record Number 2005 1219 P

 

Click here to read my affidavit of September 24, 2007 as a PDF file.  It is also available in the RTF file format by clicking here.

 

My legal submission dated October 30, 2007 in this case can be read/downloaded by clicking here (PDF) or here (RTF). 

Click here (PDF) or here (RTF) for the index to the “book of authorities” for that legal submission.

 

Click here for my legal submission dated February 7, 2008.  The index to the “book of authorities” for that legal submission is available here.

 

My speaking notes for the High Court hearing on February 8, 2008 are available here. 

The hearing resumed (and concluded) with Mr Justice Gilligan on Tuesday, February 12, 2008.

 

My notes for my closing statement on February 12, 2008 are available here in the PDF format and here in the RTF file format.

 

TYRREL AND HAWKINS

 

In reading William Godwin’s 1794 novel Caleb Williams I was struck by how similar Trinity College is to the landlord Mr Tyrrel, especially in regard to this character’s treatment of one of his tenants, a man named Hawkins.  As Godwin wrote:

 

“It was a fawn contending with a lion.  Nothing could have been more easy to predict, than that it was no avail for him [Hawkins] to have right on his side when his adversary had influence and wealth, and therefore could so victoriously justify any extravagancies that he might think proper to commit”. 

 

Tyrell, “bent upon Hawkins’s destruction…left no means employed that could either harass or injure the object of his persecution”.  Eventually, Hawkins attempts to “right himself by legal process”.  Tyrrel is delighted:

 

“This was the very point to which Mr Tyrrel wanted to bring him, and he [Tyrrel] could scarcely credit his good fortune when he was told that Hawkins had entered an action.  His congratulation was immoderate, as he now conceived that the ruin of his late favorite [Hawkins] was irretrievable.  He consulted his attorney, and urged him by every motive he could devise, to employ the whole series of his subterfuges in the present affair.  The direct repelling of the charge exhibited against him was the least part of his care; the business was, by affidavits, motions, pleas, demurrers, flaws, and appeals, to protract the question from term to term, and from court to court.  It would, as Mr Tyrrel argued, be the disgrace of a civilized country if a gentleman when insolently attacked in law by the scum of the earth, could not convert the cause into a question of the longest purse, and stick in the skirts of his adversary till he had reduced him to beggary”.

 

When my case at the Circuit Court ended Trinity College sought to have me made liable for its costs.  Given the fact that Trinity College fielded two barristers (one of whom was a senior counsel), two solicitors and a legal executive for each of the 3 days of the hearing, and given also that there had been a number of court appearances regarding motions and applications preliminary to the hearing, the College’s legal costs must have been quite considerable.  Fortunately – and notwithstanding the best efforts of the College’s lawyers – the judge at the Circuit Court directed that Trinity College was responsible for its own costs. 

 

Trinity College, to quote William Godwin, is “accustomed to deference and submission”.

 

APPLICATIONS UNDER SECTION 18 AND SECTION 17 OF THE FREEDOM OF INFORMATION ACT 1997

 

You can read copies of my letters to the Freedom of Information Officer at Trinity College from January 2006 to February 2006.  These are primarily applications under Sections 18(1) and 17(1) of the Freedom of Information Act 1997. 

 

I have collected the letters in the following file, which you can read by clicking here  (January to February 2006).

 

SELECTED CORRESPONDENCE – LATE JANUARY TO EARLY FEBRUARY 2006

 

 

Text of Letter to Mr Justice McCracken 

(January 28, 2006)

 

Dear Mr Justice McCracken,

 

In your letter dated October 28, 2006 you acknowledged having received “the submissions made in relation to your second appeal” to the Visitors of the College and you wrote that “the Visitors would hope to deal with this [i.e. the “second appeal”] immediately after having dealt with your first appeal”.

 

The Visitors “dealt with” the first appeal on November 9, 2005.  You said, in your letter dated October 28, 2005 that “the Visitors would hope to deal with” the second appeal “immediately after having dealt with” the first appeal.  Why, then, has the second appeal not been “dealt with”?  Can you explain this, Mr Justice McCracken?      

 

My “second appeal” is dated October 5, 2005.  That was almost four months ago.  What have you done, since then, to “deal with” the second appeal aside from express the anodyne and insubstantial “hope”, not borne out, that the Visitors “would…deal with” the second appeal “immediately after having dealt with” the first appeal? 

 

According to Chapter III, Section 1 of the College Statutes you were “appointed by the Government from a panel of two persons nominated by the senate of the university”.  As no one can be appointed except on the nomination of the university senate, there is, to quote Alexander Hamilton, “no difference between nominating and appointing”.  The “primary” Visitor is of course the Chancellor.  The university senate, which consists of “the Chancellor, the Pro-Chancellors, and such Doctors and Masters of the university as shall be members of the senate in accordance with such regulations and conditions as the Board [of Trinity College] shall enact”, selects “the other Visitor”.  As a Supreme Court judge, don’t you see anything wrong with that, sir?  Don’t you see anything wrong with the College having its Chancellor as the “primary” Visitor and having control over the selection of “the other Visitor”?  Is this not a “parody of justice”, to quote the South American writer Mario Vargas Llosa?  If you don’t see anything wrong with it, you really ought not to be a Supreme Court judge.   

 

Why, I wonder, were you chosen as “the other Visitor”, Mr Justice McCracken?  Is it because you were a student at Trinity College and have a certain ‘allegiance’ to, or affinity for, the College?  Were there other reasons?  What did they find ‘appealing’ about you?  Why did they choose you, I wonder? 

 

In 1788 Alexander Hamilton wrote:

 

“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them”.

 

Where are the “strict rules and precedents” that bind the Trinity College Visitors?  There are none.  Your every act is arbitrary.  When I tried to use my right of access under the Freedom of Information Acts 1997 and 2003 to obtain copies of decisions of the Visitors my request under Section 7 of the Acts was refused by Ms Anne Fitzgerald, Assistant Secretary to the Board of the College, on December 2, 2006 because she said that “releasing these records” would:

 

A.                  “prejudice future Visitors hearings and have a significant adverse effect on the management of the College and could disclose positions or plans, procedures and instructions which might be adopted in future hearings”;

B.                   “result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his/her profession or could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates”; and,

C.                   “be deemed to be personal information of the person(s) named in the reports”. 

 

In other words, the College does not want the decisions of the Visitors published or examined.  As a Lord Chief Justice in England once remarked:

 

                “It is a queer sort of justice that will not bear the light of publicity”. 

 

Your “queer sort of justice” will not long endure, however. 

 

 

 

TRINITY COLLEGE AND SECTION 15 OF THE FREEDOM OF INFORMATION ACT 1997

 

On February 9, 2006 I wrote to the Office of the Information Commissioner requesting that the Commissioner “carry out an investigation” under Section 36(1) of the Freedom of Information Act 1997 “into the practices and procedures adopted by” Trinity College, Dublin, “for the purposes of compliance with” Section 15 of the Freedom of Information Act 1997, as amended by the Freedom of Information (Amendment) Act 2003 

 

Text of Letter to Office of the Information Commissioner

(February 9, 2006)

 

Dear Sir/Madam,

 

I am writing to the request that the Office of the Information Commissioner “carry out an investigation” under Section 36(1) of the Freedom of Information Act 1997 “into the practices and procedures adopted by” Trinity College, Dublin, “for the purposes of compliance with” Section 15 of the Freedom of Information Act 1997, as amended by the Freedom of Information (Amendment) Act 2003.

 

In the College’s Section 15 reference book the ““general description of its structure and organization” (Section 15(1)(a)) is incorrect and misleading.  I refer you to my letter to the Freedom of Information Officer at Trinity College dated February 9, 2006 – a copy of which is enclosed.

 

I look forward to receiving confirmation that the Commissioner’s office will investigate this matter.

 

 

On February 20, 2006 I received a letter from Ms Mary Byrne, a Higher Executive Officer at the Office of the Information Commissioner, informing me that the Office of the Information Commissioner does “not consider that the carrying out of a review into the matter” I “raised” would be “a good use” of the “resources” available to the Office of the Information Commissioner.  I responded by sending a letter to Ms Byrne, copied to Information Commissioner (Emily O’Reilly), that same day. 

 

In my letter to Ms Byrne dated February 20, 2006 I applied, under Section 18(1) of the Freedom of Information Act 1997 for a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act”, i.e. the refusal to investigate. 

 

 

Text of Letter to Mary Byrne, Office of the Information Commissioner 

(February 20, 2006)

 

Dear Sir/Madam,

 

I received today your letter dated February 17, 2006.

 

You wrote, in your letter, that the Office of the Information Commissioner does “not consider that the carrying out of a review into the matter” I “raised” would be “a good use” of the “resources” available to the Office of the Information Commissioner.

 

As a person affected by this act and because I have “a material interest in a matter affected by the act or to which it relates” I wish to apply, under Section 18(1) of the Freedom of Information Acts 1997 and 2003, for a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act”. 

 

Why would it not be “a good use” of “resources” to investigate whether or not Trinity College is complying with Section 15 of the Freedom of Information Act 1997?

 

Indeed, I have already done much of the ‘investigating’ for you and have proven to you beyond any doubt that Trinity College is not complying with Section 15 of the Information Act 1997.  In this regard I provided you with a copy of relevant judgement of the Irish High Court and an extract from the Official Report of the Senate Debates.  And yet, you maintain that investigating this “matter” would not be “a good use” of “resources”?  If this is not “a good use” of “resources” I would love to know what is. 

 

Section 36(1) of the Freedom of Information Act 1997 gives the Information Commissioner the power to “carry out an investigation at any time into the practices and procedures adopted by public bodies generally or any particular public body or public bodies for the purposes of compliance with – (a) the provisions of this Act generally, (b) any particular provisions of this Act”.  Why is the Commissioner’s Office so loath to “carry out an investigation” of Trinity College? 

 

I may have to ask one of the TDs for my constituency to table a series of questions in the Dail regarding this reluctance to investigate violations of the Freedom of Information Act 1997.  If Trinity College, which is one of the largest public bodies covered by the Act, can flout its provisions with impunity, why should anyone feel that this law or any other ought to be complied with?

 

It seems to me that it is not a “good use” of “resources”, by which I mean taxpayer’s money, to fund an Office that does not, or rather will not, do what it is supposed to do. 

 

I have copied this letter to the Information Commissioner.  I look forward to hearing from you.

 

 

On February 28, 2006 I received a letter from a Mr Dave Nutley, an Investigator at the Officer of the Information Commissioner, responding to my Section 18(1) application.  Mr Nutley refused my Section 18(1) application because, he said, I “do not” have “a material interest” in the “matter”, i.e. the refusal to investigate.  My response to this was written and sent to the Office of the Information Commissioner later that day

 

 

Text of Letter to Office of the Information Commissioner

(February 28, 2006)    

 

Your Reference Number:     FOI/2006/008

 

Dear Ms Byrne,

 

I refer to the letter I received today dated February 27, 2006 from Mr Dave Nutley, an Investigator at the Office of the Information Commissioner.  The purpose of this letter was to notify me of Mr Nutley’s decision on my application under Section 18(1) of the Freedom of Information Act 1997.

 

You, Ms Byrne, in your letter dated February 17, 2006 said that the Office of the Information Commissioner does “not consider that the carrying out of a review into the matter” I “raised” would be “a good use” of the “resources” available to the Office of the Information Commissioner.

 

I applied, under Section 18(1) of the Freedom of Information Acts 1997 and 2003, for a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act”. 

As I said in my letter dated February 20, 2006:

 

“Why would it not be “a good use” of “resources” to investigate whether or not Trinity College is complying with Section 15 of the Freedom of Information Act 1997?”

 

Mr Nutley informs me, however, that I am “not personally affected by the ‘act’ ” and, in consequence, “do not” have “a material interest” in the “matter”.  He continues:  “…therefore, you are not entitled to a statement of reasons for this particular ‘act’ ”, i.e. the Commissioner’s refusal to investigate Trinity College.

 

As Mr Nutley refused my application I am now applying, under Section 14(2) of the Freedom of Information Act 1997, for a review of his decision. 

 

I am “personally affected” by the “act” and I have “a material interest in the matter”. 

 

I am “personally affected” by the “act” because I wrote to the Office Information Commissioner on February 9, 2006 requesting:

 

“…that the Office of the Information Commissioner ‘carry out an investigation’ under Section 36(1) of the Freedom of Information Act 1997 ‘into the practices and procedures adopted by’ Trinity College, Dublin, ‘for the purposes of compliance with’ Section 15 of the Freedom of Information Act 1997, as amended by the Freedom of Information (Amendment) Act 2003”.

 

I drew attention to the fact that Trinity College was contravening Section 15 of the Freedom of Information Act 1997:

 

“In the College’s Section 15 reference book the ‘general description of its structure and organization’ (Section 15(1)(a)) is incorrect and misleading”.

 

I provided the Office of the Information Commissioner with a copy of my letter to the Freedom of information Officer at Trinity College dated February 9, 2006.

 

I furnished the Office of the Information Commissioner with a photocopy of the relevant judgement of the Irish High Court.

 

I also supplied the Office of the Information with a copy of the Official Report of the Debates of the Irish Senate for April 18, 2000. 

 

The item, supplied by me to the Office of the Information Commissioner, established that Trinity College is blatantly contravening Section 15 of the Freedom of Information Act 1997.

 

As I said to you in my letter dated February 20, 2006:

 

“Indeed, I have already done much of the ‘investigating’ for you and have proven to you beyond any doubt that Trinity College is not complying with Section 15 of the Information Act 1997”. 

 

All of the above means I am “personally affected” by the “act”, i.e. the Information Commissioner’s refusal to investigate.  Using Mr Nutley’s own line of reasoning, as I am “personally affected” by the “act” I have “a material interest” in the “matter”.

 

Mr Nutley went on to quote Section 18(5) of the Freedom of Information Act 1997, which states:

 

“…a person has a material interest in a matter affected by an act of a public body or to which such an act relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member”.

 

I have “a material interest in a matter affected by” the “act”, i.e. the Information Commissioner’s refusal to investigate.

 

I am “a person…to which” the “act” relates, in that my request that the Commissioner “carry out an investigation” was peremptorily refused.

 

The “consequence or effect of the act” was to “withhold from” me “a benefit…without also…withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member”.

 

As I said in my letter dated February 20, 2006:

 

“Section 36(1) of the Freedom of Information Act 1997 gives the Information Commissioner the power to ‘carry out an investigation at any time into the practices and procedures adopted by public bodies generally or any particular public body or public bodies for the purposes of compliance with – (a) the provisions of this Act generally, (b) any particular provisions of this Act’ ”. 

 

This function of the Information Commissioner is not a “benefit” that has been or is withheld “from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which” I am “a member”.  This is a benefit that was withheld from me:  I asked the Commissioner to investigate and she refused.  That refusal was sent to me in writing by you, Ms Byrne, on February 17, 2006.  To quote Section 18(5), “the consequence or effect of the act” was to withhold from me “a benefit” that has not also been withheld “from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which” I am “a member”. 

 

I am, then, a person affected by the act and I have “a material interest in a matter affected by the act or to which it relates”.

 

I have copied this letter to Mr Nutley, in order that he may not continue to labor under any misapprehensions of Section 18(5) of the Freedom of Information Act 1997.,

 

I have also copied this letter to the Information Commissioner.

 

I have also copied this letter to the Freedom of Information Central Policy Unit, 73-79 Lower Mount Street, Dublin 2.

 

 

On March 3, 2006 I received the decision of the Office of the Information Commissioner oner on my application for a review under Section 14(2) of the Freedom of Information Act 1997.  Predictably, the decision on the review was the same as the original decision.  My response appears below –

 

 

Text of Letter dated to Sean Garvey, Senior Investigator, Office of the Information Commissioner

(March 3, 2006)

 

Dear Mr Garvey,

 

I received today your letter dated March 2, 2006 regarding my application under Section 14(2) of the Freedom of Information Act 1997 for a review of the decision of Mr Dave Nutley, an Investigator with the Office of the Information Commissioner, on my application under Section 18(1) of the Freedom of Information Act 1997 for a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act”, i.e. the Information Commissioner’s refusal to investigate Trinity College’s infringement of Section 15 of the Freedom of Information Act 1997.  Mr Nutley denied that I was entitled to a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act”, i.e. the Information Commissioner refusal to investigate. 

 

Your decision, which I received today, was to uphold “the decision made and the reasoning provided by Mr Nutley that the FOI Acts do not entitle you to a statement of reasons in this particular case”.  You asserted that I “do not have a material interest in the issue as provided for in section 18(5) of the FOI Act as amended”.  You concluded:  “…in accordance with section 18(5) you do not ‘have a material interest in a matter affected by the act or to which it relates’ and therefore you are not entitled to a statement of reasons in this case”. 

 

Of course I have “a material interest”:  I had requested that the College be investigated and the Commissioner refused my request.  I was notified, in writing, of her refusal to investigate.  The phrase “material interest” is defined in Section 18(5) of the Act:

 

“For the purposes of this section a person has a material interest in a matter affected by an act of a public body or to which such an act relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member”.

 

As I said in my letter dated February 28, 2006:

 

“I have “a material interest in a matter affected by” the “act”, i.e. the Information Commissioner’s refusal to investigate.

 

I am “a person…to which” the “act” relates, in that my request that the Commissioner “carry out an investigation” was peremptorily refused.

 

The “consequence or effect of the act” was to “withhold from” me “a benefit…without also…withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member”.

 

As I said in my letter dated February 20, 2006:

 

“Section 36(1) of the Freedom of Information Act 1997 gives the Information Commissioner the power to ‘carry out an investigation at any time into the practices and procedures adopted by public bodies generally or any particular public body or public bodies for the purposes of compliance with – (a) the provisions of this Act generally, (b) any particular provisions of this Act’ ”. 

 

This function of the Information Commissioner is not a “benefit” that has been or is withheld “from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which” I am “a member”.  This is a benefit that was withheld from me:  I asked the Commissioner to investigate and she refused.  That refusal was sent to me in writing by you, Ms Byrne, on February 17, 2006.  To quote Section 18(5), “the consequence or effect of the act” was to withhold from me “a benefit” that has not also been withheld “from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which” I am “a member” ”. 

 

You said that I can “appeal this decision to the High Court” if I want to; in this regard you cited “section 42(3)” of the Act.  According to “section 42(3)” of the Freedom of Information Act 1997:

 

                                “A person may appeal to the High Court from—

(a) a decision under section 14, or

(b) a decision specified in paragraph (a), (b), (c), (d), (e), (f) or (g) of subsection (1) of that section (other than such a decision made by a person to whom the function stood delegated under section 4 at the time of the making of the decision),

made by the Commissioner in respect of a record held by the Office of the Commissioner or (in a case where the same person holds the office of Ombudsman and the office of Commissioner) made by the Ombudsman in respect of a record held by the Office of the Ombudsman”.

                   

Flannery v. Halifax Estate Agencies Ltd [2000] confirmed that procedural fairness dictates “a general duty” to “give reasons” for decisions.  Commenting on this “general duty”, Henry LJ said that “a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is more likely to be soundly based on the evidence than if it is not”. 

 

Procedural fairness is a constitutional right in the Republic of Ireland and procedural fairness required that the Commissioner give me reasons for her decision, i.e. her refusal to investigate.

 

The Information Commissioner has ignored and disregarded her duty to give reasons for this decision. 

 

This right to be given reasons for decisions is unrelated to Section 18 of the Freedom of Information Act 2005.

 

If I do not receive, within one week of the date of this letter, the reasons for the Commissioner’s refusal to investigate Trinity College I will appeal to the High Court. 

 

I have enclosed copies of my previous correspondence with the Office of the Information Commissioner in relation to my request for an investigation and the Commissioner’s refusal to investigate.

 

I have copied this letter to the following:

 

1.                    Emily O’Reilly, Information Commissioner, 18 Lower Leeson Street, Dublin 2;

 

2.                    Mary Byrne, Higher Executive Officer, Office of the Information Commissioner, 18 Lower Leeson Street, Dublin 2;

 

3.                    Dave Nutley, Investigator, Office of the Information Commissioner, 18 Lower Leeson Street, Dublin 2; and,

 

4.                    The Freedom of Information Central Policy Unit, 73-79 Lower Mount Street, Dublin 2.

 

The Commissioner is supposed to ensure that the prescribed public bodies comply with the Freedom of Information Act 1997.  But who ensures that the Commissioner herself complies with the Act?  Who watches the watchers? 

 

As William Blake once wrote, “laws were made to keep fair play”. 

 

 

Text of Letter to Freedom of Information Officer at Trinity College

(March 2, 2006)

 

Dear Mr Turpin,

 

I received today a letter dated February 24, 2006 from Ms Anne Fitzgerald, Assistant Secretary to the Board of the College; this letter relates to what Ms Fitzgerald describes as a “series of 17 letters encompass[ing] 228 occasions when applications are made [by me] citing either section 17 or 18 of the Freedom of Information Acts”.  These 17 letters were given the following reference numbers by Trinity College:

 

TCD/0312/FOI,     TCD/0313/FOI,     TCD/0314/FOI,     TCD/0315/FOI,     TCD/0316/FOI,

TCD/0317/FOI,     TCD/0318/FOI,     TCD/0319/FOI,     TCD/0320/FOI,     TCD/0321/FOI,

TCD/0322/FOI,     TCD/0324/FOI,     TCD/0325/FOI,     TCD/0326/FOI,     TCD/0327/FOI,

TCD/0328/FOI,     TCD/0329/FOI

 

All but 4 of the applications under Section 18(1) were refused.  In accordance with Section 14(2) of the Act I wish to apply for a review of Ms Fitzgerald’s ‘decision’ to refuse these applications. 

 

Ms Fitzgerald refused all but 5 of the total of 228 applications.  Of the 5 she accepts as “fall[ing] within the scope of” the Act, 4 were applications under Section 18(1) of the Freedom of Information Act 1997 and one was a query concerning Section 17(4) of the Act.  Of the 4 “statements” provided pursuant to applications under Section 18, 2 are not the statements required by the Act.  These 2 “statements” were written by Ms Fitzgerald and form part of her letter; the 2 “statements” relate to the applications referenced in her letters as ‘A’ and ‘C’.  Each of my applications under Section 18(1) was an application for a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act”. 

 

Application ‘A’ appeared in a letter dated January 31, 2006:

 

“In a letter dated October 28, 2005 Mr Justice Brian McCracken, as a Visitor of the College, wrote that “the Visitors would hope to deal with” the second appeal “immediately after having dealt with” the first appeal.  The “second appeal” to the Visitors has not, however, been “dealt with”.  The Visitors “dealt with” the first appeal on November 9, 2005.  As a person “affected by” this “act” of Trinity College and because I have “a material interest in a matter affected by the act or to which it relates” I wish to apply, under Section 18(1) of the Freedom of Information Act 1997, for a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act” ”.

 

Ms Fitzgerald’s “statement” under Section 18 of the Act is:

 

“In accordance with the [College] Statutes, the Visitors have discretion as to the timing and conduct of appeals referred to them”.

 

This is not a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act”. 

 

In accordance with Section 14(2) of the Act I wish to apply for a review regarding Ms Fitzgerald’s “statement” in respect of application ‘A’.

 

Why did Ms Fitzgerald not provide me with a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act”?  I want this question to be interpreted as an application under Section 18(1) of the Freedom of Information Act 1997 for a statement “of the reasons for the act”.

 

Application ‘C’ appeared in a letter dated February 8, 2006:

 

“The Church of Ireland Archbishop of Dublin, by virtue of the various Letters Patent, is a Visitor of the College.  To my knowledge, this provision in the various Letters Patent has never been repealed.  It could only have been repealed by subsequent Letters Patent or an Act of the Irish legislature.  The provisions in the Letters Patent that were not repealed by subsequent Letters Patent or an Act of the Irish legislature have full legislative force in the Republic of Ireland in 2006…

Given that the Church of Ireland Archbishop of Dublin was excluded from the deliberations of Dr Sagarra and Mr Justice McCracken on my appeal to the Visitors, how can a decision of Dr Sagarra and Mr Justice McCracken be “the decision of the Visitors”?  As a person affected by this act and because I have “a material interest in a matter affected by the act or to which it relates” I wish to apply, under Section 18(1) of the Freedom of Information Acts 1997 and 2003, for a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act” ”.   

 

Ms Fitzgerald’s “statement” under Section 18 of the Act is:

 

“The Visitor process currently operational is that set out in the 1966 Consolidated [College] Statutes and does not [provide for] any role for the Archbishop of Dublin”.

 

This is not a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act”. 

 

In accordance with Section 14(2) of the Act I wish to apply for a review regarding Ms Fitzgerald’s “statement” in respect of application ‘C’.

 

Why did Ms Fitzgerald not provide me with a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act”?  I want this question to be interpreted as an application under Section 18(1) of the Freedom of Information Act 1997 for a statement “of the reasons for the act”.

 

Aside from applications ‘A’, ‘B’, ‘C’ and G’, Ms Fitzgerald refused all of my applications under Section 18(1) of the Act; she wrote that she was doing so “under section 18(4)” of the Act.  Section 18(4) of the Freedom of Information Act 1997 states:

 

“If, pursuant to subsection (2) or (3), the head of a public body decides not to cause a statement to be given under subsection (1) to a person, the head shall, not later than 4 weeks after the receipt of the application concerned under subsection (1), cause notice, In writing or in such other form as may be determined, of the decision to be given to the person”.

 

In other words, an application under Section 18(1) can only be refused “pursuant to” either Section 18(2) or Section 18(3) of the Freedom of Information Act 1997:

 

Section 18(2) of the Act states:

 

“Nothing in this section shall be construed as requiring – (a) the giving to a person of information contained in an exempt record, or (b) the disclosure of the existence or non-existence of a record if the non-disclosure of its existence or non-existence is required by this Act”.

 

Section 18(3) of the Act states:

 

“Subsection (1) shall not apply to – (a) a decision of the Civil Service Commissioners pursuant to subparagraph (d) or (e) of section 17 (1) of the Civil Service Commissioners Act, 1956, not to accept a person as qualified for a position referred to in that section, or (b) a decision of the Local Appointments Commissioners made by virtue of section 7 (3) of the Local Authorities (Officers and Employees) Act, 1926, not to recommend a person to a local authority for appointment to an office referred to in that section, if, in the opinion of the head concerned, the giving of a statement under subsection (1) in relation to the decision would be likely to prejudice the effectiveness of the process for selecting a person for appointment to the position or office”.

 

Section 18(3) is clearly irrelevant.  Trinity College can only, then, rely on Section 18(2) to justify a refusal under Section 18(4) of the Act.  As the Act does not require the “non-disclosure” of any of the College records relating to the applications the College cannot use Section 18(2)(b) of the Act.  The College must, therefore, only be relying on Section 18(2)(a) of the Act; the College considers the records “exempt”.  Section 2(1) of the Act defines an “exempt record”.  An exempt record is:

 

(a)     “a record in relation to which the grant of a request under section 7 would be refused pursuant to Part III or by virtue of section 46, or

(b)     “a record that is created for or held by an office holder and relates to the functions or activities of – (i) the office holder as a member of the Oireachtas or a political party, or (ii) a political party”.

 

None of the relevant College records are “exempt” records.  None of the relevant College records are records “in relation to which the grant of a request under section 7 would be refused pursuant to Part III or by virtue of section 46” or records relating “to the functions or activities of – (i) the office holder as a member of the Oireachtas or a political party, or (ii) a political party”.  In consequence, Section 18(2)(a) is also irrelevant. 

 

Ms Fitzgerald refused, “under section 18(4)”, my applications under Section 18(1) of the Freedom of Information Act 1997.  But Section 18(4) is inapplicable.  Ms Fitzgerald had no basis for refusing the applications.

 

Ms Fitzgerald, in her letter, wrote that some of my applications under Section 18(1) of the Freedom of Information Act 1997 “are of a speculative nature, depending on unestablished hypotheses”.  She cites, as an “example” the following application in a letter dated February 20, 2006:

 

“Has any servant or agent of the College ever contacted or attempted to contact Amanda Fox to discuss the allegations I made against Ms Fulham?  If so, as a person affected by this act of Trinity College and because I have “a material interest in a matter affected by the act or to which it relates” I wish to apply, under Section 18(1) of the Freedom of Information Act 1997, for a statement “of the reasons for the act” and a statement “of any findings on any material issues of fact made for the purposes of the act” ”.

 

In response to this Ms Fitzgerald wrote: 

 

“I do not consider hypothetical requests of this nature to be within the scope of section 18(1) which clearly envisages an applicant ‘who is affected by an act’.  That is to say that the act is an existing fact”. 

 

If the act occurred it is “an existing fact” and the act occurred I would be “affected” by the act.  The application is based on the premise that there was such an “act”, i.e. that a servant or agent of the College had contracted or attempted to contact Amanda “to discuss the allegations I made against Ms Fulham”.  If the premise is correct the application is a valid application.  If, however, the premise is false the application is invalid.  Stating that the premise is false would invalidate the application. 

 

These applications are based on premises; they are not “hypothetical requests”, as Ms Fitzgerald terms them.

 

Ms Fitzgerald asserts that an act “must materially affect the requester [sic]”;her understanding of the 1997 Act is not quite correct.  According to Section 18(1) of the Freedom of Information Act 1887, a person “affected by” an act and with “a material interest in a matter affected by the act or to which it relates” can make an application under Section 18(1).   The phrase “material interest” is defined in Section 18(5) of the Freedom of Information Act 1997:

 

“For the purposes of this section a person has a material interest in a matter affected by an act of a public body or to which such an act relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member”.

 

I have a “material interest” in all of the “acts” of the College cited in my applications.

 

Ms Fitzgerald asserts that Section 18(1) does not “provide an opportunity” to “query the many small acts…involved in reaching a decision….”.  She implies that Section 18(1) applies only to “decisions”.  Section 18(1) applies to the “acts” of prescribed public bodies, not merely to “decisions” of the prescribed public bodies.  According to Section 18(6) of the Freedom of Information Act 1997, an “act…includes a decision…” [emphasis added].

 

I would also argue that each application should have been considered separately and not lumped together in order to be refused en masse.  

 

In relation to the c.100 applications under Section 17 of the Freedom of Information Act 1997, Mr Fitzgerald wrote:

 

“I have decided to refuse these in accordance with section 17(3) of the Freedom of Information Acts and to exercise the provision of section 17(4)(b) to refuse to attach your applications on the grounds that it would be unnecessarily voluminous”.

 

Ms Fitzgerald based her refusal of all of the Section 17(1) applications on Section 17(3) of the Act.  According to 17(3):

 

“The head concerned shall, as soon as may be, but not later than 4 weeks, after the receipt by him or her of an application under subsection (1), decide whether to grant or refuse to grant the application and shall cause notice, in writing or in such other form as may be determined, of his or her decision and, if the decision is to grant it, of the manner of such grant to be given to the person concerned”.

 

Ms Fitzgerald offers no reason whatsoever for her ‘decision’ (singular) to refuse all of the Section 17(1) applications.  Notwithstanding this, I have a common law right to reasons for decisions affecting me and I now wish to invoke that common law right to obtain from Ms Fitzgerald the reason(s) for her ‘decision’ to refuse each and every application I made under Section 17 of the Freedom of Information Act 1997.

 

Flannery v. Halifax Estate Agencies Ltd [2000] confirmed that procedural fairness dictates “a general duty” to “give reasons” for decisions.  Commenting on this “general duty”, Henry LJ said that “a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is more likely to be soundly based on the evidence than if it is not”. 

 

Ms Fitzgerald’s ‘decision’ to refuse all of my Section 17(1) is not “soundly based on the evidence”.  The lack of any reason(s) for the ‘decision’ tends only to support my absolute conviction that the decision is not “soundly based on the evidence”.

 

In accordance with Section 14(2) of the Freedom of Information Act 1997 I therefore wish to apply for a review of Ms Fitzgerald’s ‘decision’ to refuse all of my Section 17(1) applications.

 

I want also to apply for a review of her ‘decision’ to “exercise the provision of section 17(4)(b) to refuse to attach” the “applications [to the records] on the grounds that it would be unnecessarily voluminous”.

 

Attaching the applications to the records would not be “unnecessarily voluminous”, as Ms Fitzgerald claims.

 

The “provision” she chose to “exercise” is Section 17(4)(b).  In full, Section 17(4) reads:

 

“(a)         If the grant of an application under subsection (1) is refused, the head concerned shall –

(i) attach to the record concerned the application or a copy of it or, if that is not practicable, a notation indicating that the application has been made, and

(ii) include in the notification under subsection (3) particulars of –

(I) rights of review and appeal under this Act in relation to the decision to refuse to grant the application, and

(II) the procedure governing the exercise of those rights and any time limits governing such exercise.

(b)           Paragraph (a)(i) does not apply in relation to a case in which the head concerned is of opinion that the application concerned is defamatory or the alterations or additions to which it relates to the record concerned would be unnecessarily voluminous”.

 

If the “additions” to the records would be “voluminous” it is because Ms Fitzgerald chose to lump all the applications together.  Section 17(4) implies that applications should be separately considered.  In any event, the “additions” to the records would not be “unnecessarily voluminous”.  

 

I have copied this letter to the following:

 

1.        Ms Anne Fitzgerald, Assistant Secretary to the Board of the College;

2.        Mr Michael Gleeson, Secretary to the Board of the College;

3.        The Provost of Trinity College;

4.        Emily O’Reilly, Information Commissioner, 18 Lower Leeson Street, Dublin 2;

5.        The Freedom of Information Central Policy Unit, 73-79 Lower Mount Street, Dublin 2;

6.        Senator Feargal Quinn, Irish Senate, Leinster House, Kildare Street, Dublin 2;

7.        The Secretary-General’s Office, Department for Education, Marlborough Street, Dublin 1;  and,

8.        The Minister for Education, Marlborough Street, Dublin 1.

 

I will also be adding a copy of this letter to the material on my website –

www.trinitycollegevisitors.0catch.com

 

Text of Letter to Freedom of Information Officer at Trinity College

(March 3, 2006)

 

Dear Mr Turpin,

 

I refer to the letter I received dated February 24, 2006 from Ms Anne Fitzgerald, Assistant Secretary to the Board of the College; specifically, I refer to Appendix 3 of that letter.  Appendix 3 was a printout of an e-mail dated February 24, 2006 from Robin Adams, the Librarian at Trinity College, to Ms Fitzgerald.

 

In this e-mail the Librarian states:

 

“I was aware that Mr Kelly has made allegations against a number of College Staff…” 

 

As a person affected by this act and because I have “a material interest in a matter affected by the act or to which it relates” I wish to apply, under Section 18(1) of the Freedom of Information Acts 1997 and 2003, for a statement “of any findings on any material issues of fact made for the purposes of the act”. 

 

In the e-mail the Librarian said:

 

“I was aware that Mr Kelly….has raised a very large number of requests under Freedom of Information legislation, resulting in significant disruption to a number of College departments”.

 

As a person affected by this act and because I have “a material interest in a matter affected by the act or to which it relates” I wish to apply, under Section 18(1) of the Freedom of Information Acts 1997 and 2003, for a statement “of any findings on any material issues of fact made for the purposes of the act”. 

 

I want to know what he knows and how he came to know it; it evidently influenced his decision to deny me access to the Trinity College Library so I have a “material interest”. 

 

The Librarian states, in the e-mail:

 

“I considered that it was not appropriate that he [Patrick Kelly] be given access to the Library at this time”.

 

As a person affected by this act and because I have “a material interest in a matter affected by the act or to which it relates” I wish to apply, under Section 18(1) of the Freedom of Information Acts 1997 and 2003, for a statement “of the reasons for the act”.

 

I have copied this letter to the Librarian and to the Secretary to the Board of the College.

 

 

HIGH COURT APPEAL UNDER SECTION 42(1) OF THE FREEDOM OF THE FREEDOM OF INFORMATION ACT 1997

 

Patrick Kelly v. the Information Commissioner

High Court Record Number 2006 40 MCA

 

Originating Notice of Motion  (May 22, 2006)

 

Grounding Affidavit  (May 22, 2006)

 

Letter to Information Commissioner, Emily O’Reilly  (May 23, 2006)

 

The date I was given by the High Court Central Office is Monday, June 19, 2006 at 11am.  This is a ‘mention’ date rather than a ‘hearing’ date.  

 

These are my prepared notes for Monday, June 19, 2006 (June 19, 2006).   

 

At 11.30am on Monday, June 19, 2006 I was arrested in the courtroom by a police officer for “refusing to be silent”.  I had been trying to read my prepared notes to the court; I had just reached the end when I was arrested and removed from the courtroom.  I was taken to The Bridewell Police Station in handcuffs and put in a cell.  At 2.30pm two police officers brought me back before Mr Justice Quirke, who said:  “Are you prepared to comply with the orders of the court?”  I replied:  “I will comply with the lawful orders of the court”.  I was again physically removed from the courtroom, placed in handcuffs and returned by the two police officers to a cell at The Bridewell.  At 7.30pm I was taken to Mountjoy Prison for contempt of court.  The ‘committal’ order stated that I was to remain in Mountjoy Prison indefinitely or until I ‘purged’ my contempt.  On Wednesday morning, after protesting to a senior prison officer, I was permitted to phone a solicitor.  At 3.30pm on Wednesday, in handcuffs and escorted by two prison officers, I was brought back to Court 14 and Mr Justice Quirke for the purpose of ‘purging’ my contempt.  I was released at approximately 4pm.

Click here to read a copy of the “committal” order (June 19, 2006).

 

My case against the Information Commissioner, I learned, had been adjourned to July 10, 2006.

 

Once released I had a chance to read the replying affidavit of the respondent (it had been handed to me at 10.58am on June 19).  I proceeded to write a supplementary affidavit in order to respond to the respondent’s affidavit.  My supplementary affidavit was affirmed on June 26, 2006, filed at the High Court Central Office on June 27, 2006 and copies were sent by registered mail to the solicitors for the respondent and to the notice party.

 

Supplementary Affidavit (June 26, 2006)

 

On Friday, July 7, at 6pm a courier for the respondent’s solicitors left a copy of the respondent’s “second affidavit” at my home.  We were to be back in court on Monday morning at 11am.  By not giving me this “second” affidavit until Friday evening the respondent was clearly hoping to deny me any opportunity to reply to this second affidavit.  I decided not to oblige them.  I stayed up for most of Friday night writing a replying affidavit and I traveled into Dublin city center on Saturday to affirm the affidavit with a Peace Commissioner.  On Monday morning I went to the Stamp Office at the Four Courts and paid the stamp duty of 15 euro at 9.30am.  I then waited outside the High Court Central Office until it opened at 10.30am and ‘filed’ the affidavit and had the copies stamped.  In the courtroom I gave the respondent’s solicitors and the notice party’s solicitors their copies of this replying affidavit, my third affidavit.  You can read the third affidavit by clicking on the following link –

 

My third affidavit (July 8, 2007)

 

July 10, 2006 was a ‘mention’ date.  The case was adjourned for a further week, to be ‘mentioned’ again on July 17, 2006.

 

At the July ‘mention’ date I pressed for the case to be put forward for a hearing date.  More adjournments – and more ‘mentions’ – would, I argued, be pointless.  The judge agreed to allow the case to go forward for hearing.  As of August 2007, however, it has STILL not been given a date for hearing…

 

 

FOURTH AFFIDAVIT (RE CROSS-EXAMINATION OF THE DEPONENT ANNE MORAN)

 

On July 31, 2007 I lodged a new affidavit at the Central Office of the High Court; click here to read a copy of my fourth affidavit.

 

LEGAL SUBMISSION

 

On July 31, 2007 I also filed a legal submission and ‘Book of Authorities’ at the Central Office of the High Court concerning my right to cross-examine Anne Moran.

Click here to read a copy of the legal submission and click here to read the Index to the Book of Authorities.

 

 

FIFTH AFFIDAVIT

 

On September 14, 2007 I lodged a new affidavit, my fifth in this appeal, at the Central Office of the High Court; a copy of my fifth affidavit can be viewed by clicking here.

 

LEGAL SUBMISSION OF SEPTEMBER 13, 2007

 

I wrote a legal submission on September 13, 2007 to go with my fifth affidavit.  Click here to view a copy of that legal submission.

 

 

LEGAL SUBMISSION OF SEPTEMBER 19, 2007

 

I wrote another legal submission on September 19, 2007.  That legal submission can be viewed by clicking here.

 

 

LEGAL SUBMISSION OF NOVEMBER 13, 2007

 

Click here to read my legal submission of November 13, 2007.  For the index to the Book of Authorities please click here.

 

 

LEGAL SUBMISSION OF NOVEMBER 14, 2007

 

Click here to view my legal submission of November 14, 2007.  The index to the Book of Authorities is available by clicking here.

 

 

LEGAL SUBMISSION OF JANUARY 9, 2008

 

Click here for my legal submission of January 9, 2008.  For the index to the Book of Authorities please click here.

 

 

SIXTH AFFIDAVIT

 

My sixth affidavit was affirmed and lodged at the Central Office of the High Court on January 18, 2008.  Click here to read a copy of the affidavit.

 

 

LEGAL SUBMISSION OF MARCH 24, 2008

 

My legal submission of March 24, 2008 can be read by clicking here.  Click here for the index to the “book of authorities”.

 

 

MY NOTES FOR CROSS-EXAMINING ANNE MORAN

 

Click here to see my notes for cross-examining Anne Moran. 

I sent the notes to the Information Commissioner’s solicitors (“Mason Hayes + Curran”), the Information Commissioner and the Notice Party (i.e. Trinity College, Dublin) by e-mail on April 1, 2008.  The e-mail itself can be read by clicking here. 

 

 

MY SEVENTH AFFIDAVIT

 

My seventh affidavit was written in the early hours of April 2, 2008.  I will be affirming and filing it at the Central Office on Thursday, April 3.

Click here to read it as a PDF file and here to see or save it as an RTF file. 

 

 

CORRESPONDENCE OF APRIL 4 AND APRIL 5, 2008

 

My reply to a letter I received on April 4, 2008 from the Defendant’s solicitors (“Mason Hayes + Curran”) can be read by clicking here (April 4, 2008).

It is also available as an RTF file.

 

Click here to open a single PDF file of my e-mail correspondence with the Defendant’s solicitors on April 4 and April 5, 2008.

 

I sent them a List of Appeal Documents.  That list is available here.

 

 

CORRESPONDENCE OF APRIL 7, 2008

 

The e-mail correspondence I had with the Respondent’s solicitors on April 7, 2008 is available here in a single PDF file.

 

A copy of the “Subject Index” I sent the Respondent’s solicitors (among others) on April 7, 2008 is available here. 

“This Subject Index identifies the different ‘legal issues’ addressed in [my] ‘Written Submissions’…and where each is located in the various documents comprising [my] ‘Written Submissions’ ”.

 

 

LEGAL SUBMISSION OF APRIL 9, 2008

 

Click here for a copy of my legal submission of April 9, 2008.

 

 

LEGAL SUBMISSION OF APRIL 11, 2008

 

Click here for a copy of my legal submission of April 11, 2008.

 

 

UPDATED SUBJECT INDEX

 

Click here for a copy of the updated “Subject Index”, which was e-mailed to the Respondent and the Notice Party on April 12, 2008.

 

 

ON APRIL 16, 2008 THE HIGH COURT (Mr Justice Daniel Herbert) MADE THE FOLLOWING ORDER:

 

“BY CONSENT THE COURT DOTH DECLARE THAT THE PROCEDURE ADOPTED IS INVALID AS THE PROCEDURE USED WAS AN UNFAIR PROCEDURE.

 

BY CONSENT IT IS ORDERED THAT THE DECISION OF THE RESPONDENT MADE ON THE 16TH DAY OF MAY 2006 BE AND THE SAME IS HEREBY SET ASIDE.

 

AND IT IS ORDERED THAT THE MATTER BE REMITTED TO THE RESPONDENT HEREIN TO BE RECONSIDERED BY HER OR TO BE CONSIDERED BY AN OFFICER OR OFFICERS NOMINATED BY HER OTHER THAN ANNE MORAN AND/OR SEAN GARVEY.

 

AND IT IS ORDERED THAT THE RESPONDENT DO PAY TO THE APPLICANT HIS EXPENSES ON THE BASIS OF A ONE DAY HEARING WHEN TAXED AND ASCERTAINED IN DEFAULT OF AGREEMENT.

 

AND THE COURT DOTH MAKE NO ORDER IN RESPECT OF THE NOTICE PARTY”.

 

 

I won, in other words.  The “procedure” the Information Commissioner used was declared “an unfair procedure”.  The Information Commissioner was ordered to pay my “expenses” – which are to be “taxed” (i.e. assessed by a Court official called the “Taxing Master”) if not agreed.

 

CLICK HERE TO READ OR DOWNLOAD A SCANNED COPY OF THE HIGH COURT ORDER.

 

 

On April 27, 2008 I e-mailed a letter to the Information Commissioner’s solicitors (“Mason Hayes + Curran”).  A copy of that letter can be read by clicking here.

 

 

 

TAXATION HEARING AND REVIEW

 

Because the Respondent and I could not reach an “agreement” on my “expenses” I issued a Summons to Tax on May 8, 2008. 

The taxation hearing before Taxing Master James Flynn is to take place on June 25, 2008 at the Office of the Taxing Masters, Merchants House, 27/30 Merchants Quay, Dublin 8.

On June 9, 2008 I filed an affidavit and legal submission at the Office of the Taxing Masters.

 

Click here to read a copy of the affidavit. 

 

The legal submission can be read by clicking here.

 

 

 

RE ‘PURGING’ CONTEMPT AND INDEFINITE DETENTION

 

The issue of compulsion was considered by the Supreme Court of the United States in the classic case of Bram v. United States, 168 U.S. 532 (1897):

 

“In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the fifth amendment to the constitution of the United States commanding that no person ‘shall be compelled in any criminal case to be a witness against himself’. The legal principle by which the admissibility of the confession of an accused person is to be determined is expressed in the text-books”.

 

“In 3 Russ. Crimes (6th Ed.) 478, it is stated as follows: ‘But a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence…

A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted’ ”.

 

“Gilbert, in his treatise on Evidence (2d Ed., published in 1760), says, at page 139: ‘…the…confession must be voluntary, and without compulsion; for our law...will not force any man to accuse himself; and in this we do certainly follow the law of nature, which commands every man to endeavor his own preservation; and therefore pain and force may compel men to confess what is not the truth of facts, and consequently such extorted confessions are not to be depended on’ ”.

 

“In Hawkins’ Pleas of the Crown (6th Ed., by Leach, published in 1787, bk. 2, c. 31) it is said: ‘Sec. 2…And where a person upon his arraignment actually confesses he is guilty, or unadvisedly discloses the special manner of the fact, supposing that it doth not amount to felony where it doth, yet the judges, upon probable circumstances, that such confession may proceed from fear, menace, or duress, or from weakness or ignorance, may refuse to record such confession, and suffer the party to plead not guilty’ ”.

 

The Supreme Court then quoted with approval a note (2) to section 3, c. 46 of Hawkins’ Pleas of the Crown (6th Ed., by Leach, published in 1787):

 

“The human mind, under the pressure of calamity, is easily seduced, and is liable, in the alarm of danger, to acknowledge indiscriminately a falsehood or a truth, as different agitations may prevail.  A confession, therefore, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant, either by the flattery of hope, or by the impressions of fear, however slightly the emotions may be implanted is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction”.

 

The Supreme Court concluded:

 

“...it would seem plainly to be deducible that as the principle from which, under the law of nature, it was held that one accused could not be compelled to testify against himself, was in its essence comprehensive enough to exclude all manifestations of compulsion, whether arising from torture or from moral causes, the rule formulating the principle with logical accuracy came to be so stated as to embrace all cases of compulsion which were covered by the doctrine.  As the facts by which compulsion might manifest itself, whether physical or moral, would be necessarily ever different, the measure by which the involuntary nature of the confession was to be ascertained was stated in the rule, not by the changing causes, but by their resultant effect upon the mind – that is, hope or fear – so that, however diverse might be the facts, the test of whether the confession as voluntary would be uniform –

that is, would be ascertained by the condition of mind which the causes ordinarily operated to create”.

 

Applying this to the case then before the Court, the Supreme Court held:

 

“In the case before us we find that an influence was exerted, and, as any doubt as to whether the confession was voluntary must be determined in favor of the accused, we cannot escape the conclusion that error was committed by the trial court in admitting the confession under the circumstances disclosed by the record”.

 

It is important to remember that I was in prison when I submitted to ‘purging’ my contempt.  I can perhaps best explain the ‘effectiveness’ of this by quoting from the decision of the Supreme Court of the United States in Culombe v. Connecticut, 367 U.S. 568 (1961):

 

“In the police station a prisoner is surrounded by known hostile forces.  He is disoriented from the world he knows and in which he finds support.  He is subject to coercing impingements, undermining even if not obvious pressures of every variety”.

 

In prison this also applies – albeit much more acutely.

 

The Supreme Court continued:

 

“The ultimate test remains that which has been the only clearly established test…for two hundred years; the test of voluntariness.  Is the confession he product of an essentially free and unconstrained choice by its maker?  If it is, if he has willed to confess, it may be used against him.  If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.  The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession”.

 

“…where, on the uncontested external happenings, coercive forces set in motion by state law enforcement officials are unmistakably in action; where these forces, under all the prevailing states of stress, are powerful enough to draw forth a confession; where, in fact, the confession does come forth and is claimed by the defendant to have been extorted from him; and where he has acted as a man would act who is subjected to such an extracting process - where this is all that appears in the record - a State's judgment that the confession was voluntary cannot stand”.

 

An earlier case, Watts v. Indiana, 338 U.S. 49 (1949), was quoted:

 

“If force has been applied, this Court does not leave to local determination whether or not the confession was voluntary.  There is torture of mind as well as body; the will is as much affected by fear as by force.  And there comes a point where this Court should not be ignorant as judges of what we know as men”.

 

Text of Letter to Sean Garvey, “Senior Investigator” at the Office of the Information Commissioner 

(October 24, 2006)

 

 

Your Ref:               060110, 060157, 060172, 060111 to 060129 and 060131 to 060138

 

BY REGISTERED POST

 

Dear Mr Garvey,

 

I have received your letter of October 20, 2006 referring to my “applications of various dates in April and May 2006”.

 

Firstly, considering that it is now the end of October, a vague allusion to “applications of various dates in April and May” is of little assistance to me.  Were you, in fact, referring to my letters of April 21, May 16 and May 17?  Were you referring to other correspondence?  I would appreciate it greatly if you would do me the basic courtesy of clarifying this.   

 

Secondly, you mentioned my “High Court appeal”.  You are implicated in that “High Court appeal”, Mr Garvey.  You made the decision against which I have appealed to the High Court!

 

Did you actually expect that I would consent to your involvement in the “applications of various dates in April and May 2006” or not raise any objection?  Procedural fairness requires that you should have nothing to do with these “applications”, Mr Garvey.  But you already knew that, didn’t you?  Did you think I would not know? 

 

I want the “applications of various dates in April and May” dealt with by someone else at the Office of the Information Commissioner and I am copying this letter to the Information Commissioner so that she will be cognizant of my request and cannot claim later that she had no knowledge of it.  If my request is rejected I would like to have that rejection in writing and be provided with the reasons for her decision to reject my request.

 

As I have said, procedural fairness requires that you not be involved with my “applications of various dates in April and May 2006”.  For that reason I consider the ‘propositions’ you set forth in your letter to be both invalid and irrelevant.

 

If the Information Commissioner does not immediately bring to an end your involvement with my “applications of various dates in April and May 2006” I will respond in the appropriate manner.  If the Information Commissioner ignores this letter I will draw the obvious inference and proceed accordingly. 

 

I can only conclude that you are either a fool or seem to think me one.  Perhaps you are ‘only following orders’; this is what the surviving Nazi leaders said at the Nuremberg Trial to ‘excuse’ their crimes.  Perhaps you are familiar with the following sentences from the judgement in the Eichmann Trial in 1961: 

 

“The Accused’s principal defence is that everything he did was in accordance with orders from his superiors.  This he regards as full justification for all his deeds.

Did these orders disturb his conscience, so that he acted under compulsion from which he saw no escape; or did he act with inner indifference like an obedient automaton; or perhaps, in his heart, he identified with the contents of the order.

Although this makes no difference as regards the conviction of the Accused, yet it is important to examine these questions, in order to define the measure of the Accused’s moral responsibility for his acts”.

 

If I were you, Mr Garvey, I would reflect on the measure of my moral responsibility for my acts. 

 

To be perfectly honest, I would prefer not to hear from you again Mr Garvey.  I do, however, expect to hear from the Information Commissioner without delay.  She should not think that it has escaped my attention that she assigned responsibility for my “applications of various dates in April and May 2006” to you. 

 

 

Text of Letter to Emily O’Reilly, Information Commissioner 

(November 1, 2006)

 

Your Ref: 060110, 060157, 060172, 060111 to 060129, 060131 to 060138

 

BY REGISTERED MAIL

 

Dear Ms O’Reilly,

 

I received today your letter dated October 31, 2006.

 

The first thing I noticed, when I read your letter, is that you have not explained what specific “applications” Mr Garvey, your “Senior Investigator”, had in mind when he referred to “applications of various dates in April and May 2006” in his letter of October 20, 2006.  And so I again ask: to what “applications” was he referring, Ms O’Reilly?

 

In your letter you “bring [my] attention to section 37(6) of the Freedom of Information Act 1997”.  I would like to “bring your attention to” the fact that no Act of the legislature can override my constitutional rights, Ms O’Reilly.  My constitutional right to procedural fairness, for example.  No provision in any Act of the legislature can be misused to circumvent or override my constitutional right to procedural fairness.  I see through your deception; shame on you, Ms O’Reilly.

 

You say, Ms O’Reilly, that you are “completely satisfied” that the “procedures” you are using to “conduct” my “applications” are “appropriate” and “fair”.  Those “procedures” are not “fair” or “appropriate”.  

 

In Tolstoy’s novel Resurrection the main character Nekhlyudov experiences a sensation of “moral nausea” at several points in the novel; that is precisely the sensation you inspire in me, Ms O’Reilly.  Tolstoy describes it as “like sea-sickness on board ship”. 

 

I take it from your letter that you are allowing Mr Garvey to retain the responsibilities you have assigned to him regarding my “applications of various dates in April and May 2006”.  I do not accept this.

 

I want copies of Trinity College’s “submissions” and other correspondence to your Office regarding these unspecified “applications of various dates in April and May 2006”. 

 

I want you to understand that your actions will have consequences.  You bear the responsibility for what follows.

 

 

E-mail to Emily O’Reilly, Information Commissioner 

(November 1, 2006)

 

Dear Ms O'Reilly,

 

Further to your letter of October 31, 2006 I would like to “bring your attention to” ‘Principles of War’ (1812) by Clausewitz.  Clausewitz wrote:

 

“...even when the likelihood of success is against us, we must not think of our undertaking as unreasonable or impossible; for it is always reasonable, if we do not know of anything better to do, and if we make the best use of the few means at our disposal”.

 

“For great aims we must dare great things. When we are engaged in a daring enterprise, the right caution consists in not neglecting...those measures which help us to gain our aim”.

 

“Any moderation shown would leave us short of our aim.  Even with everything in our favor, we should be unwise not to make the greatest effort in order to make the result perfectly certain.  For such effort can never produce negative results”.

 

Clausewitz describes “passive defense” as “nothing more than a means by which to attack the enemy most advantageously, in a terrain chosen in advance, where we...have arranged things to our advantage”. 

 

I would also “bring your attention to” ‘On War’ (1832) by Clausewitz.  “War”, he explained, “is nothing but a duel on an extensive scale”; its “ultimate object” is “the compulsory submission of the enemy to our will”.

 

“If our opponent is to be made to comply with our will, we must place him in a situation which is more oppressive to him than the sacrifice which we demand; but the disadvantages of this position must naturally not be of a transitory nature, at least in appearance, otherwise the enemy, instead of yielding, will hold out, in the prospect of a change for the better.  Every change in this position which is produced by a continuation of the war should therefore be a change for the worse, at least, in idea”.

 

“If we desire to defeat the enemy, we must proportion our efforts to his powers of resistance.  This is expressed by the product of two factors which cannot be separated, namely, the sum of available means and the strength of the will.  The sum of the available means may be estimated in a measure, as it depends (although not entirely) upon numbers; but the strength of volition, is more difficult to determine, and can only be estimated to a certain extent by the strength of the motives.  Granted we have obtained in this way an approximation to the strength of the power to be contended with, we can then take a review of our own means, and either increase them so as to obtain a preponderance, or in case we have not the resources to effect this, then do our best by increasing our means as far as possible.  But the adversary does the same; therefore there is a new mutual enhancement, which in pure conception must create a fresh effort towards an extreme”.

 

The trend, should you continue to fight me, will therefore inevitably be one of resorting to progressively greater extremes.  My experiences with Trinity College bears this out. 

 

“…the absolute, the mathematical as it is called, nowhere finds any sure basis in the calculations in the art of war; and…from the outset there is a play of possibilities, probabilities, good and bad luck, which spreads about with all the coarse and fine threads of its web, and makes war of all branches of human activity the most like a game of cards”.

 

Has Mr Michel explained this to you, I wonder?  Or has he glibly assured you of ‘success’?  Has he told you what could prevent your ‘success’?  

 

“There are two considerations, which as motives, may practically take the place of inability to continue the contest.  The first is the improbability, the second is the excessive price of success”. 

 

“As war is no act of blind passion, but is dominated over by the political object, therefore the value of that object determines the measure of the sacrifices by which it is to be purchased.  This will be the case, not only as regards extent, but also as regards duration.  As soon, therefore, as the required outlay becomes so great that the political object is no longer equal in value, the object must be given up, and peace will be the result”.

 

“If there are any enterprises which are particularly likely to break up the enemy’s alliances or make them inoperative, to gain new alliances for ourselves, to raise political powers in our own favor, etc., etc., then it is easy to conceive how much these may increase the probability of success, and become a shorter way towards our aim than the routing of the enemy’s army.  The second question is how to act upon the enemy’s expenditure in strength, that is, to raise the price of success”.

 

You have the ability to “continue the contest”, i.e. prolong the High Court case and, if you lose, appeal to the Supreme Court.  You have the ability because you are spending taxpayers’ money and not your own.  Mr Michel is undoubtedly delighted; he and his firm (‘Mason Hayes + Curran’) ‘win’ even if you do not.  From their perspective, the more protracted, fragmented and seemingly complicated this case becomes the better.  But what is the probability of success?  And what is your definition of success?  Is it the same as my definition?  Will the price be excessive? 

 

To paraphrase Joschka Fischer, the former German Foreign Minister:

What do you do when loyalty to a relationship and the substance of that relationship contradict each other?

(Interview in Der Spiegel, 24 March 2003)

 

I asked Patricia (‘Trish’) Walsh, the Course Director for the Masters in Social Work at Trinity College, this question when she was on the witness stand at the Circuit Court on June 28, 2005; Trinity College’s lawyers objected to the question and she did not have to answer.  I could not help thinking that the spectacle was quite revealing.  As we were in a courtroom at the Circuit Family Court building in Smithfield there was no one to see it, unfortunately; except, of course, the counsel, senior counsel, two solicitors and the legal executive that the College fielded (as well as the numerous interested employees of the College who turned up at various stages).  Journalists are not present for cases at the Circuit Family Court building in Smithfield because the building is normally used for Family Law cases, which are heard ‘in camera’, i.e. the general public and the media are not permitted to be present.  I was representing myself:  I am not a lawyer and I have never had any legal training.

 

RESOURCES

 

• Logo (.jpg)
• Logo with caption (.jpg)
• A4 Poster – Version 1  (.png file)
• A4 Poster – Version 2  (.png file)
• A5 Flyers – Version 1
• A5 Flyers – Version 2  [printed on yellow paper]
• First A5 Flyer

 

 

VIDEO

Video of Senator David Norris, one of the three senators representing the Trinity College constituency in the Irish Senate, telling the Senate that there is “no difference or distinction” between the University of Dublin and Trinity College (April 18, 2000).  For a CD-R containing the video footage in MPG format and a copy of the Official Report of the Senate debates for that day send me an e-mail with a postal address and I’ll drop the CD-R in the post to you (at no charge).  The video reveals a great deal that is not reflected in the Official Report, e.g. his demeanour, tone of voice and the fact that he was reading from notes when ‘explaining’ the 1888 High Court judgement to the other senators, etc.  Not everything Norris said was included in the Official Report, e.g. when he remarked “What is truth?”

My e-mail address is patrick.kelly@student.anglia.ac.uk

 

 

Patrick Kelly

 

patrick.kelly@student.anglia.ac.uk

 

11 Deansrath Avenue, Clondalkin, Dublin 22, Republic of Ireland