Whatever you think of the original RTÉ news report, and the subsequent apology (note RTÉ’s first bit of grovelling to the Government – let’s not forget the Máire Hoctor interview and the withdrawl of Professor John Crown from the Late Late Show), it’s the Garda actions that really annoy me.  As far as can be determined from all the information floating around, the original “crime” was reported to the Gardaí by one of the galleries on 7th March.  The Gardaí, however, didn’t investigate until the 23rd of March, when the Taoiseach’s office got involved (through their complaint to RTÉ).  Then, they turned up flashing badges and officially interviewing Today FM staff and subsequently (although not on foot of information from Today FM, I should add) formally questioning under caution a suspect, and sending a file to the DPP.

The Portrait (still on RTÉ website)

Who Called the Cops?

Now, presuming that there was some crime to be investigated (more on that below), why did the Gardaí not investigate it at all for more than two weeks?  Why was it that the investigation only started when the Government Information Service (Taoiseach’s Spokesperson) started kicking over tables?  Was a directive issued or implied from anyone in Government to the Gardaí?

The Legal Basis

Eoin over at Cearta.ie has an excellent rundown of the law here, and it’s pretty clear from what he says that there was no justification for Garda involvement in the matter.  The only legal precedent that might apply is 140 years old, and was last used 50 years ago in a nice old-fashioned Irish case of Church censorship:

The first question relates to the artist’s freedom of expression. Is it illegal to paint nude caricatures of the Taoiseach, or is this protected by the constitutional right to freedom of expression? I just don’t see how it can amount to incitement to hatred against a group of persons; nor are the censorship regimes for films or publications engaged. All that’s left is the (still extant) common law crime of obscene libel, which criminalises publication of matter with a tendency to deprave and corrupt (R v Hicklin (1868) LR 3 QB 360). [I leave aside questions of civil defamation or other similar claims, as they would not implicate criminal investigation and/or prosecution]. The last time the criminal libel ‘tendency to deprave or corrupt’ test was implicated in an Irish case was 1959 (see AG v Simpson (1959) 93 ILTR 33, discussed in Gerard Whelan and Carolyn Swift’s palpably angry Spiked: Church-State Intrigue and the Rose Tattoo (Dublin: New Ireland Books, 2002) (summary review here); it concerned a production of the wonderful Tennessee Williams play The Rose Tattoo featuring Anna Manahan); its vagueness must be seriously open to constitutional challenge; and anyway, it is hard to see how the Cowen caricatures satisfy even this nebulous standard. In the circumstances, I find it difficult to see what crime the artist committed.

Deaglán is the latest to comment, and makes some particuarly good points about Vincent Browne, who’s reaction to this has been bizarre to say the least.

The Ironing is Delicious

An interesting aside to finish.  Last night, RTÉ showed the Simpsons episode where Marge paints Mr Burns nude, and a documentary called “Bloody Cartoons“, which covers the furore that followed the publication of cartoons depicting the Prophet Mohammed.