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Kerry Co Council express concerns over any delays to greenway plan

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Kerry County Council is concerned about potential tourism, health and funding implications of two separate legal challenges to planning approval for a proposed 32km cycle and pedestrian greenway in south Kerry, the High Court has been told.

Arising from those concerns, Esmonde Keane SC, for the council, applied on Thursday for the earliest possible hearing of the challenges over An Bord Pleanála’s approval of November last.

Despite objections from lawyers for the applicants in both actions, Mr Justice Richard Humphreys provisionally fixed March 9th for the hearing of both cases.

The judge had earlier fixed a date in late June for the hearing but, after Mr Keane’s intervention, he agreed to fix March 9th.

Due to pressures on the court’s strategic infrastructure list, no other hearing dates were available up to the end of June, he said. A March hearing required moving at “breakneck speed”, he added, fixing the cases for further case management next week.

Challenges

The judge fixed the March provisional hearing after formally granting permission to a local farmer, James Clifford, and environmental activist Peter Sweetman to bring judicial review proceedings with a view to quashing the board’s grant of permission to the council for the greenway development.

The applicants, represented by James Devlin SC, with Margaret Heavey BL, instructed by solicitor Brian Harrington, also obtained a stay on works concerning the greenway subject to the respondent having liberty to apply at 72-hours notice to lift or vary that.

The judge also granted leave to bring the second challenge, taken by a number of local landowners whose lands have been compulsorily acquired for the greenway.

Permission to bring that second challenge was granted without prejudice to the council’s entitlement to raise certain issues.

Landowners

Michael O’Donnell BL, for the landowners, argued their action is complex and he was very concerned there would be insufficient time to have it ready for hearing by March 9th. Given the Covid-19 emergency, he could not see how the council could be prejudiced by having the matter heard in June, he said.

Mr Devlin, for Mr Clifford and Mr Sweetman, also expressed concern about the logistics of being ready for a March hearing and said he was “at a loss” to understand how the challenges could have health or funding implications, as Mr Kean had argued.

Mr Devlin said the original proposal for the greenway was for a continuous 32km stretch but “chunks” had “somewhat surprisingly” been taken by the board out of that, resulting in a “different” project. That in turn lead to some of the grounds of his clients’ challenge, he said.

Environmental issues

While the council had said the cases were significant for it, the greenway was also significant for Mr Clifford, who lives locally, counsel said. While Mr Sweetman did not live in the area, his concern is about the significant environmental issues raised, counsel added.

Both actions concern the proposed greenway between Glenbeigh and Caherciveen, to run mainly along the disused route of the Southern and Western Railway which operated from 1892 to 1960. It will include a 3-metre-wide paved surface.

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Kerry Greenway faces court challenges over protect…

In their case, Mr Clifford and Mr Sweetman claim the board’s decision contravenes EU directives on Environmental Impact Assessment (EIA) and Habitats on grounds including it failed to ensure a system of strict protection for the Kerry slug and the Lesser Horseshoe bat in their natural range.

The core claim against the State parties is of failure to transpose into Irish law an obligation to determine if a road should be made subject of an EIA.

In their challenge, the local landowners raise issues about the process resulting in the confirmation of compulsory purchase orders for part of their lands.

Both actions are against the Board and State with Kerry County Council as a notice party.

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Covid-19 exposes failures in prison service – report

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The pandemic has exposed failings in Ireland’s prison service, including overrun capacity and a lack of access to technology for prisoners, a report has found.

Covid-19 measures were introduced in Irish prisons last year to prevent the spread of the virus, including a reduction in prisoner numbers and cell-sharing.

The Irish Penal Reform Trust (IPRT) said that addressing the overcrowding in prisons in a short period of time was an “extraordinary achievement”.

Before the outbreak of the pandemic, 75 prisoners were sleeping on mattresses on the floor because of a lack of space.

A report carried out by the IPRT found that coronavirus measures improved some standards within prisons.

The report – Progress in the Penal System: Assessing progress during a pandemic – is the fourth annual review of standards in Irish prisons.

It found that the Covid response revealed that the majority of closed prisons across the State were “overcrowded and unsafe”.

At the outset of Covid-19, there were more than 4,200 prisoners in custody in Ireland.

Following the outbreak of the pandemic, the Irish Prison Service and the Department of Justice reduced the prison population by 10% to 3,807.

Executive director of the IPRT, Fiona Ni Chinneide, said the physical improvements in the prison system are at risk of being reversed.

“We definitely don’t want to see a return to that when the courts return and deal with the backlog in cases,” she told PA news agency.

“There were sometimes two prisoners sleeping on beds and one on the floor.

“We don’t want to see a return to the high number of people who are committed to prison for very short sentences.

“Over three quarters of sentence committals in 2019 were for sentences of 12 months or less.

“This is the clearest demonstration of the over-reliance on prison as a response.”

She said an increasing number of prisoners’ families have contacted the charity about concerns for their loved ones in prison, particularly around isolation, mental health and welfare issues.

“(Prisoners) are confident they are protected against Covid-19 but the lack of in-person visits have been very difficult for families, particularly children,” Ms Ni Chinneide added.

“Covid-19 has exposed all the issues across the penal system, including running over-capacity and the lack of access to technology.

“Video calls were introduced but we would like to see every prisoner have a tablet so they can continue on with their remote education.

“The vast majority of people who were released were serving sentences of 12 months or less, and the fact they could be released into the community does beg the question: why were they in prison in the first place and not serving community service orders?”

She also said that a reduced prison population saw a near-end to prisoners sleeping on mattresses on floors and a move towards single-cell occupancy.

“Single-cell occupancy is a key measure in supporting men’s and women’s dignity in prisons,” Ms Ni Chinneide added.

“The Covid response demonstrates that the majority of closed prisons across the State were overcrowded and unsafe in the first instance. It also suggests that prison was not a necessary sanction for all of those imprisoned before the pandemic hit.”

The IPRT report also welcomed the introduction of video calls and in-cell phone provisions to enable prisoners to speak to their families.

A general view of Cloverhill court and prison (Brian Lawless/PA)

Ms Ni Chinneide said the changes are at risk of being reversed as the courts prepare to clear the backlog of cases.

“Furthermore, in recent years, the number of those held on remand in our prisons is rising at a concerning level. Imprisonment is not the only sentence option in the criminal justice system,” Ms Ni Chinneide added.

“It should not act as shelter for people charged with low level offences. It should not be a waiting room for those who need treatment in our Central Mental Hospital.

“Covid has offered us a brown-field site for a more humane penal system. There should be no reversal of that.”

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Office worker wins compensation after employer would not let her work from home

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An office-based worker had no option but to resign from her job during the first Covid-19 lockdown after her employer rejected her plea to work remotely from home, according to a ruling from the Workplace Relations Commission (WRC).

Adjudication officer Kevin Baneham ordered the employer pay the Operations Co-Ordinator €3,712 compensation for her unfair dismissal on May 12th last.

An employment law expert, Richard Grogan, described the WRC ruling as “a wake-up call’ for employers.

Mr Grogan – who wasn’t involved in the case – said: “The amount of compensation isn’t high as the worker got new a new job within a short space of time, but the findings are important as it is the first ruling that the WRC has made concerning a Covid-19 related unfair or constructive dismissal. I believe that we are going to see an awful lot more of such Covid-19 cases going through the WRC”.

Remote working proposal

In an email to her employer, a university-based Facilities Management Service Provider last April, the worker stated that her employer’s refusal to accept the remote working proposal “has increased the infection risk with COVID-19 for all three Operations Coordinators”.

She stated: “In the event one of us gets sick I will be putting at risk my husband who is an asthmatic patient.”

In his ruling, Mr Baneham found that the university-based Operations Co-ordinator had “no real option but to resign” after her employer failed to take reasonably practicable steps to mitigate risk posed by Covid 19 in the workplace.

Mr Baneham found that the employer failed to implement the proposals made by three office workers that would have eliminated the risk of transmission of Covid-19 in the workplace.

‘Repudiation of contract’

In his findings, Mr Baneham found that the requirement by the employer that the Operations Co-Ordinator attend the workplace without adequate consideration of the elimination of risk posed by Covid 19 “amounts to repudiation of contract”.

He said: “As an infectious disease, Covid-19 constitutes a biological hazard. In this context and at the centre of this case are the duties of both employer and employee arising from the Safety, Health and Welfare at Work Act and the underpinning health and safety principles.”

Some 1,000 students were stuck on the campus in March, some of whom were self-isolating and Mr Baneham stated that the worker and her colleagues dealt with the difficult task of managing thousands of students who vacated their accommodation at the start of the lockdown.

Mr Baneham stated that it was striking that the employer did not trial the “eminently sensible” suggestion by the three office based Operations Co-Ordinators that only one worker attend the office and the others work remotely at any one time.

Small office

The worker provided a ‘lock-down’ photo taken on April 17th last showing her and her colleagues working in close proximity in the small office.

In an email dated April 17th, the worker told her employer that she was not able to socially distance from her two colleagues in the workplace.

In a formal grievance lodged on April 30th, the three Operations Co-Ordinators stated: “All three of us have family members in the ‘at risk’ category, and we are concerned about the health of our family members as well as our own wellbeing.”

They stated that these concerns were brought to the employer’s line manager attention numerous times at the start and during the Covid-19 outbreak “but nothing was done about it and zero care and consideration was given back”.

They state: “Most of our work can be completed from home but if there are issues that require our presence there will be one coordinator in the office to address them. This measure will minimise the infection risk and will help us keep our family and ourselves protected.’

Employer response

However, in response the employer rejected the work from home proposal.

In a letter on May 4th, the employer stated: “Prior to Covid-19 there was never a suggestion that the roles could be performed remotely, and the same situation pertains in a post-Covid situation. “Each person may absent themselves from work and check if they are entitled to a state benefit. The position will be kept under review, but at present the employer’s position is that the three roles are not suitable for remote working.”

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The employer stated that it had taken Covid-19 workplace precautions, including PPE; changing the physical layout of the office; the installation of screens and warning tape and moving desks.

The managing director of the facilities management company told the hearing that the worker was of the opinion that she should work from home, but the company’s client would not have allowed this to happen. He stated that her job was essential, and the client would not have allowed her to work from home.

He outlined that it was the coordinators’ role to deal with the students and they were required to be on campus. He said no staff member, thankfully, contracted Covid-19, either in the university or elsewhere. In response to the proposal that some co-ordinators work from home, the managing director told the hearing that it was so busy at this time, so they all needed to be there.

 

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Six years for man who held up court with fake pistol and hoax bomb

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A man who held up a judge, a barrister and his estranged wife with a fake pistol and a hoax pipe bomb in a Dublin court siege has been jailed for six years.

Sentencing Edmund Dunican (47) today, Judge Patricia Ryan said this was a planned and premeditated offence which has ongoing adverse effects on the victims.

During a court hearing in December 2018, Dunican told the court he had a “problem” with an opposing barrister, Lisa Daly, before he drew a “realistic” firearm from his briefcase and threatened her with it, Dublin Circuit Criminal Court heard.

At the time, Dunican was wearing an elaborate device around his neck that resembled a pipe bomb. The court heard Dunican, a fitter by trade, made the fake bomb at home.

The judge in the court room refused to leave when Dunican told her she could go. Instead, she repeatedly appealed to him to drop the gun and attempted to defuse the situation.

Siege

The 17-minute siege ended after an armed garda negotiator persuaded Dunican to surrender the gun and let the women go. The court building was evacuated and surrounded by armed garda units during the incident, while an army unit was called in to assess the device.

Dunican of Stadium Business Park, Ballycoolin, Dublin, pleaded guilty to one count of carrying an imitation firearm with criminal intent at Smithfield on December 20th, 2018.

It is an offence that carries a maximum penalty of 14 years’ imprisonment and a mandatory minimum sentence of five years. Dunican has no previous convictions.
Judge Ryan reduced a sentence of eleven years to eight years after noting a number of mitigating factors including Dunican’s remorse and his state of mind at the time. Fiona Murphy SC, defending, had told the court that at the time he felt this was his only course of actions.

Judge Ryan backdated the sentence to the day of the offence, as Dunican has been in custody since then. She suspended the final two years on condition that he be of good behaviour and that he have no contact whatsoever with any of the three victims.

Detective Garda Shane Connolly previously told Anne-Marie Lawlor SC, prosecuting, that Ms Daly had had a number of dealings during court proceedings with Dunican, who was representing himself.

Last day

On the day in question, Ms Daly told the court that it was her last day as a barrister as she was going to become a solicitor.

When Dunican’s matter was called before the court, he drew the imitation firearm and told Ms Daly: “Did I hear you say today is your last day? You have no idea Lisa, you have no idea.”

As Ms Daly crouched in her chair, the judge repeatedly told Mr Dunican: “Put your weapon down sir, please.”

The court registrar pressed the panic alarm and gardaí were called to court over the tannoy system, while Dunican said: “It’s too late for the guards, judge.”

Dunican said the registrar and judicial assistant could leave the court and the judge too, telling her he didn’t mean her any harm, but the judge replied: “I’m not leaving.”

The judge continued to reason with Dunican until armed gardaí entered the court and a negotiator persuaded Dunican to surrender.

Terrifying experience

Ms Daly told gardaí it was a terrifying experience, and she believed Dunican was going to shoot her in the head or detonate a live bomb. Dunican’s wife said she was “petrified” and “frozen in fear” throughout the ordeal.

The court heard the bomb looked realistic and was fitted with a metal pipe and a functioning red and green light. The imitation firearm resembled a semi-automatic pistol.

The judge told gardaí that Dunican told her she could leave but that she remained “in order to defuse the situation as best she could”.

She told gardaí the incident was “surreal” and she had never experienced anything like it. She said that at no point did Dunican say why he was doing it or what he wanted to achieve.

Victim impact statements were handed into court from Ms Daly and Dunican’s wife, but the judge declined to make one.

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Ms Murphy said he “appreciates the serious nature of the matter before the court”. She handed up a detailed psychological report and a letter of apology from her client. The court heard Dunican previously ran a successful business but that his life “crumbled” in recent years.

Ms Murphy said Dunican had become increasingly stressed in the months before the offence, that he suffered from heart problems and was “at the end of his rope”.

“He was a man on the edge,” she said.

Judge Ryan said she was also taking into consideration Dunican’s serious medical conditions, as outlined in a psychological report.

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