Courts Services issued a media notice on Justice Frank Clarke’s nomination as the next Chief Justice

Congratulations to The Hon. Mr. Justice Frank Clarke on his Government nomination as the next Chief Justice of the Supreme Court of Ireland.



The Courts Services issued the attached notice outlining the constitutional role of the Chief Justice, other responsibilities and Justice Clarke’s CV.

New Appeal: Does the duty to make full disclosure when seeking leave for judicial review continue to have force as a legal principle?

In this determination, Shatter v Guerin, the Supreme Court granted Guerin leave to appeal the judgment of the Court of Appeal that he, Mr Seán Guerin SC, breached the then Minister Shatter’s right to fair procedure in the compilation of a report into handling of “allegations of grave deficiencies in the investigation and prosecution of crimes, in the County of Cavan and elsewhere, made by Sergeant Maurice McCabe”.



In February 2014 the Government appointed Guerin to examine the handling of complaints by the Garda authorities and other public bodies, including the Department of Justice and Equality, of which Shatter was the minister. In May that year Guerin presented his report to the Taoiseach.

The report stated:

It is important to emphasise before embarking upon the review of individual incidents, that it is understood that the purpose of this review is not to make findings of fact or to determine any disputed question either of fact or law. Insofar as any views are expressed on factual matters, these are only facts as they appear from a review of the files that I have received. Any such expression is not an adjudication on any matter affecting the persons named or referred to in this report. It is possible that, with the benefit of an opportunity to interview or hear evidence from the individual members and officers of An Garda Síochána and civilians, including victims of crime, involved in these matters, a different view of the facts would emerge.


Later in the report, Guerin was critical of Shatter’s handling of Sergeant McCabe’s complaints.

On reading the report, the Taoiseach informed Shatter that he could no longer express confidence in him as minister. Shatter resigned.

In the High Court, Shatter instigated judicial review proceedings seeking any order of certiorari quashing Guerin’s findings relating to Shatter. One of Shatter’s grounds was a reasonable apprehension of bias: that Guerin “was a member of Professional Practice Committee which engaged in criticism of the applicant as Minister in respect of the Legal Services (Regulation) Bill 2011, which bill the applicant [Shatter] was centrally involved in promoting through the legislature”.

Dismissing Shatter’s application, Noonan J (here) stated:

158. It is clear from the evidence that the principle focus of these proceedings following their commencement was an attempt by the applicant to prevent the Commission investigating his role in relation to Sergeant McCabe’s complaints. That is now a fait accompli yet the applicant still seeks to curtail the statutory investigation by undermining the conclusions on which he says it is based. In that respect, I am of the view that the applicant seeks to mount a collateral attack on the Commission where a conscious decision was made not to join either the Commission or the Government in these proceedings. That cannot be permitted. It is a matter that goes to discretion as does the totally unwarranted allegation of bias publicly made against the respondent at the ex parte stage. Thus, even in the absence of the foregoing conclusions, I would exercise my discretion against granting relief.


The Court of Appeal agreed with the High Court’s finding that Shatter’s allegation of bias was unacceptable behaviour. But it allowed Shatter’s appeal (here, Ryan P) and upheld his complaint, stating:

103. My view, in summary, is that the appellant has established that he was a person whose constitutional rights were in jeopardy by reason of the conclusions that Mr. Guerin was proposing to include in his report, that the author was obliged to observe the rules of natural justice and in particular audi alteram partem, that there was in the circumstances breach of those rights because of the defective procedure that was adopted and that he is entitled to a declaration accordingly. I would therefore allow the appeal.


Supreme Court

Granting Guerin leave to appeal, the Supreme Court determined that he raised a point of law of public importance and that an appeal is in the public interest. The Court certified three questions:

a. Whether Mr. Shatter’s claim is justiciable in the circumstances in which and/or at the point in time at which, it was initiated.

b. The applicability and scope of fair procedures and constitutional issues to a task of the kind undertaken by Mr. Guerin, and the nature of requirements imposed thereby. Whether or not the judicial review amounted to a collateral attack on the decision to establish a Commission of Investigation, and, in particular, an attempt to have Mr. Shatter excluded from the Terms of Reference of such Commission.

c. Whether or not the duty to make full disclosure when seeking leave for judicial review continues to have force as a legal principle, and if so was it breached in this case by the allegation of bias against Mr Guerin.

DPP v Wilson: DNA evidence on its own is sufficient, in principle, to prove guilt to the criminal standard

Here, The Supreme Court held that:

Gardaí did not breach Wilson’s constitutional right to privacy by collecting his discarded cigarette butts to extract a DNA sample.

“There is no reason in principle why a jury may not be satisfied to the criminal standard of the identity of the perpetrator of a crime where the only evidence of such identity derives from DNA profiling” [9].

The trial judge was not obliged to warn the jury of  a danger in convicting an accused based solely on DNA evidence.


In 2010, Wilson, the appellant, shot and killed Daniel Gaynor on a public road in Dublin. As he ran away from the scene, Wilson discarded a revolver, a cotton glove, a peak cap and a hoodie. On forensic analysis, firearm residue was found on the glove, the sleeve of the hoodie and on the cap. And a DNA sample was also recovered. Gardai suspected Wilson, based on confidential information, and arrested him for questioning. Wilson refused to provide a DNA sample voluntarily. The detectives in charge of the investigation swept any area of the yard, photographed it and allowed Wilson outside to smoke a number of cigarettes. Wilson discarded the cigarette butts on the yard.  The detectives then collected those cigarette butts for DNA analysis. Wilson’s DNA from the cigarette butts matched the sample from the clothing recovered from the scene of the murder.


A jury convicted Wilson of murder based solely on the DNA evidence. The Court of Criminal Appeal upheld that conviction but certified a question for appeal to the Supreme Court:

Is evidence of DNA samples taken from cigarette butts used and discarded by the detained person whilst in custody admissible evidence at his trial?

During case management, the Court granted leave on two additional questions:

When the sole evidence against an accused person is DNA evidence, is such sufficient to convict an accused or upon the prosecution case being closed, should a judge withdraw a case from the jury upon an application of the defence that there was no case to answer?

Should it be mandatory for a trial judge to warn a jury of the dangers of convicting an accused in circumstances where the sole evidence against the accused is DNA evidence alone?


Supreme Court

A three judge panel heard the case and issued a joint judgment.



The Court acknowledged that any accused in custody is in a vulnerable position and dependent on the Gardaí for the provision of facilities. “It is partly for that reason that the courts will give extra scrutiny to events occurring during detention, to ensure that the rights of a vulnerable person are not breached” [4.30] . But that does not cause the substantive content of a person’s rights in custody to rise above the rights of a person at liberty [4.31].

Finding that the Gardaí could collect the cigarette butts, the Court stated:

4.35 Where the detained person indicated an intention to resist the taking of the sample, and the Gardaí had an alternative source lawfully in their hands, it would not accord with principle to elevate the privacy rights of the person in custody – the whole purpose of which is investigatory – beyond those of either a person who complied with the statutory regime or a person at liberty. Since it is accepted that the latter would have no cause for complaint if his cigarette butts were picked up in a public place, or in an authorised search of his premises, it is impossible to hold that the rights of the detained person are breached by the same procedure in respect of things that he discards. Equally, it would clearly be contrary to public policy to hold that the Gardaí were in the circumstances constrained to use force, thereby risking injury to both the suspect and themselves, and that a failure to use force rendered the picking up of the discarded items unlawful.


Probity of the evidence

Dr O’Sullivan, the expert witness, stated that, without testing every human alive, it is not possible to rule out that any two humans could share the same DNA profile. But the likelihood of any two people having a DNA match is one in a thousand billion. That reduces to one in 27,400 in the case of siblings.


Prosecutor’s fallacy

The prosecutor’s fallacy is the confusion of two different concepts: the likelihood that two randomly chosen individuals could share a set of genetic characteristics and the likelihood that any other person shares the genetic characteristics as an accused person.

To demonstrate the issues this raises, the judgment gives an example involving a crime committed by a male with a genetic characteristic shared by one in every one thousand people. That would mean that there would only be approximately 400 males in the Dublin area who share that genetic characteristic. But a suspect with that characteristic would not be any more likely to be guilty than the other 399. And guilt beyond a reasonable doubt could not be sustained on evidence that an accused held that genetic characteristic.

In this case, though, the trial court was dealing with much larger figures than one in one thousand. And the Court compared DNA evidence to fingerprint evidence, on which a conviction can be solely based, but on which no statistical evidence as to reliability compared to DNA evidence is considered [5.48]. The Court also considered comparisons to witness testimony which can be fallible, or even false, and for which no consideration as to statistical reliability is given [5.52].

Advising that a jury should consider the manner of the collection and analysis of DNA evidence, the Court stated:

5.59 We would wish to emphasise, therefore, that there are a whole range of factors which need to be assessed before determining whether a so-called “cold hit” DNA case, where there is no other evidence of identity beyond the DNA profiling evidence, can properly provide sufficient evidence to prove identity to the criminal standard. However, where the other elements of the equation are robust, it does not seem to us that the fact that there may be a highly theoretical and tiny mathematical possibility of a false positive can, in and of itself, require that the case be withdrawn from the jury. To take that view would be to suggest that we should be happy to take remote risks with evidence which is not capable of detailed statistical analysis but not happy to take potentially even more remote risks with evidence which may, in fact, be a lot more probative but is capable of statistical analysis to demonstrate an extremely small and very remote possibility of a false positive.


Direction to Jury

While providing general guidelines on directions, the Court rejected Wilson’s claim that the trial judge should have warned the jury about convicting solely on the DNA evidence. The Court held:

For the reasons set out earlier, we do not consider that this ground is well made out for we do not consider, having regard to the general principles by reference to which it has been determined that warnings are required in other cases, that a warning is required in a case where the only evidence of identity is confined to DNA profiling [9.4].

New Appeal: Did the High Court reverse In Re Haughey and Maguire v Ardagh?

In this determination (Kerins v Deputy McGuinness & Ors), the Supreme Court granted Kerins leave to appeal directly from the decision of the Divisional High Court. Kerins argues that:

the Divisional Court in its decision, effectively reversed In Re Haughey and Maguire v Ardagh, holding that Article 15.13 extends to utterances in Committee as well as in the chambers of the Legislature.



Ms Kerins voluntarily attended a hearing of the Public Accounts Committee in the Dail. She was not accompanied by lawyers and was given no notification of the nature of much of the questioning. Much that the deputies put to her and said about her was damaging to her reputation, both personally and professionally.

The Divisional High Court accepted that Kerins had suffered damage due to the PAC’s actions. But the court held that it was powerless to intervene.

Granting leave for a leapfrog appeal, the Court stated:

28. The issues raised include, as a matter of general public importance, the legal safeguards available to witnesses who appear before PAC in a voluntary capacity. The role, if any, which the Court has in protecting such witnesses, in circumstances where there are the important issues of freedom of speech in the Legislature, the separation of powers, and the extent to which the Court may intervene in the affairs of the Legislature. Inter related is the issue as to whether or not the Divisional Court overruled In Re Haughey and Ardagh v Maguire.

29. The interests of justice are engaged also as the Divisional Court ruled against the applicant, while finding that she had been damaged professionally and personally by the actions of the PAC, but that there was no legal remedy for the wrongs perpetuated.

30. The Constitution guarantees to vindicate the personal rights of citizens, and to protect citizens against unjust attack. In the circumstances, the issue of safeguarding such rights meets the criteria of the interests of justice in this application.

Ogieriakhi v Minister for Justice: No right to damages where mistaken interpretation of EU law was not inexcusable

Here, dismissing Ogieriakhi’s appeal, the Supreme Court held:

113. In summary, the appellant has undoubtedly been injured by the mistaken interpretation of the relevant EU law on the part of the Minister. He lost his employment and was threatened with deportation. Both of these events are likely to have caused him distress. However, the right to damages as a remedy for breach of European Union law requires him to demonstrate, not just that an error of law caused his loss, but that the error of law concerned was inexcusable. In the circumstances of this case I consider that it was not, and that no right of his under the national legal order has been infringed such as to give rise to a right to damages. I would dismiss the appeal.



Ogieriakhi, a Nigerian national, entered the State in 1998 seeking asylum. In 1999, he married a French national who was working in the State. The State granted Ogieriakhi a permit to reside in the State until 2004. In 2001 he began working for An Post. That same year, his marriage broke up. In 2003. Ogieriakhi had a daughter, born to a new partner, Ms Madden.

In 2004, the Minster refused to renew Qgieriakhi’s permission to remain in the State. Unknown to An Post, he continued to work without a permit. In 2005, the High Court quashed the Minister’s decision.

In April 2006, the State transposed Directive 2004/38/EC (right of EU citizens and their families to move freely) into Irish law. The Directive provided EU citizens and their family members with the right to permanent residence in another Member State where they have resided legally for five years.

In 2007, Ogieriakhi applied for permanent residency under the Directive, on the basis that he resided here legally from 1999 to 2004. However, the Irish legislation interpreted the Directive as providing the right to remain where the EU citizen member was legally residing in the State for five years after the Directive came into effect in 2006. The Minister refused his application.

In October 2007, An Post dismissed Ogieriakhi from his job, as he had no valid permit to work. In 2008, the Minister granted him permission to remain in the State for three years, as he was the father of an Irish citizen and in a stable relationship, In 2008, An Post offered Ogieriakhi his job back. He declined, as he had started his own business.

In October 2010, the ECJ released its decision in Secretary of State for Work and Pensions v. Lassal C – 162/09. The ECJ held that, for the purposes of the Directive, Member States must grant residency where an EU citizen or a family member resided in that state legally for a period of five years prior to 2006. In 2011, the Minister granted Ogieriakhi permanent residency.

In 2012, Ogieriakhi issued proceedings against the State for damages for loss of income caused by the loss of his job, which was caused by the State’s failure to correctly apply the Directive. In the High Court, Hogan J made a reference to the ECJ, which delivered its judgment in 2014. Hogan J awarded Ogieriakhi €108,000 in damages.

In February 2016, the Court of Appeal (here) overturned that High Court decision. The COA held that Hogan J had misapplied ECJ jurisprudence, specifically the rule from Brasserie du Pêcheur on when Member States are liable in damages for breach of EU law:

the decisive test for liability is manifest and grave disregard by the Member State of the limits on its discretion. Secondly, if the State persists in its refusal to implement the Directive, notwithstanding a specific ruling of the Court of Justice that the State’s conduct is an infringement, that is sufficient. Similarly, if the court’s established case law is clear on the infringement but the State fails to comply, the court may take into consideration:

(a) The clarity and precision of the rule breached;

(b) the measure of discretion left by that rule to the national authorities;

(c) whether the infringement and the damage caused was intentional or involuntary;

(d) whether any error of law was excusable or inexcusable;

(e) the fact that the position taken by a Community institution may have contributed towards the omission, and

(f) the adoption or retention of national measures or practices contrary to Community law.

17. To address these issues in turn, beginning with the criteria of clarity and precision, the respondents submit that there was substantial uncertainty until the Court of Justice disposed of the matter in its decision in Lassal. The detailed reasoning in that judgment, with its analysis of previous decisions and of the overall purpose of the Directive, demonstrates the complexity of the matter. It is also relevant that Ireland was not alone in its interpretation of the Directive among Member States that were genuinely endeavouring to bring the new regime into domestic law. It is difficult to understand how there could be a finding that the State manifestly and gravely disregarded the limits on its discretion when all the relevant personnel were working honestly to implement the Directive, which is precisely what the court found. The most that can be said, and the worst that can be said, is that the State made a mistake.

Ogieriakhi applied to the Supreme Court for leave to appeal the COA decision. In this determination (Ogieriakhi v Minister for Justice), the Court granted leave on five questions:

a. Whether an honest and excusable misunderstanding on the part of the State officials as to the requirements of a Directive is a significant factor in considering whether or not the breach of the Directive was serious.

b. Whether a person who has suffered damage as a result of the incorrect transposition of a Directive in this State is entitled to claim damages under domestic law, or is confined to the criteria established by the Court of Justice of the European Union in Francovic and Brasserie du Pecheur.

c. Whether the finding that the failure of the State to implement the Directive correctly did not give rise to damages under the principles set out in Francovic and Brasserie du Pecheur necessarily entailed a finding that the applicant had no right to damages under domestic law, including under the Constitution.

d. Whether the applicant, as a person who was dismissed because of the application to him of regulations which failed to properly implement the Directive, had any remedy under domestic law.

e. Whether the obligation to mitigate loss can require a person in the applicant’s position to accept an unwritten offer of employment.


Supreme Court

O’Malley Iseult J wrote the judgment for a unanimous five judge panel of the Court.

On the first question, O’Malley J states that “good faith and honest misapprehension cannot be sufficient to excuse the State from liability in an appropriate case”[101]. On whether the Minister’s breaches of EU law give rise to a remedy under domestic law, she states:

  1. As already stated, the sole reason for the loss of the appellant’s employment was the incorrect interpretation of EU law by the Minister. Domestic law undoubtedly gives an individual in this position a right to apply to the courts for enforcement of the correct interpretation of that law. The national courts also have jurisdiction to determine whether, as a matter of EU law, damages can be awarded under EU law criteria. What cannot be done is to find a free-standing right to damages under national law where the Francovich criteria are not satisfied, if the wrong done is a wrong under EU law. The latter is a separate legal order, with autonomous concepts that must be applied uniformly throughout the Union (see Dias and Ziolkowski, referred to above, on the question whether rights of residence conferred by national law could confer rights under EU law). In the circumstances of this case it was the sole source of the rights claimed by the appellant. It does not give rise to separate rights under domestic law.

And on the question of mitigation of loss she states:

106. … In my view the date of that refusal was the cut-off point for the assessment of loss – to rule otherwise was, in effect, to hold the State liable for the financial failure of the business, since it is inconceivable that a court could have awarded six years loss of earnings if in fact he had earned a larger income during that time.

DPP v Wilson: Re s 19 of the Criminal Justice Act 1984 (admission of adverse inference evidence)

Here, the Supreme Court held that s 19 of the Criminal Justice Act 1984 (admission of adverse inference evidence) “may not be utilised in a trial for an offence other than the offence in respect of which the inference caution was expressly invoked” [50].



S 19 of the 1984 Act (as amended by s 29 of the Criminal Justice Act 2007) (here) allows for an inference to be drawn from a suspect’s failure to account for their presence at a place when an offence was committed.

In 2009, two men entered a house in Blanchardstown, one armed with a meat cleaver and the other with a gun. Two shots were fired. Witnesses at the scene identified Wilson as the one in possession of the meat cleaver.

Gardai arrested Wilson on suspicion of having been involved in the unlawful discharge of a firearm. During questioning, gardai invoked the adverse inferences provision of s 19 of the 1984 Act.

The DPP charged Wilson under s 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001. It is alleged that he entered the building as a trespasser and committed an assault causing harm.

At trial before the Dublin Circuit Criminal Court, the DPP proposed to rely on s 19 of the 1984 Act. Wilson objected on grounds that he was questioned in relation to the unlawful discharge of a firearm, not assault, and that s 19 cannot be invoked in relation to an offence for which he was not questioned. The trial judge ruled in favour of the DPP. On appeal, the Court of Appeal upheld the trial judges decision on grounds that the offences for which Wilson was questioned and charged were inextricably linked. Wilson sought leave to appeal that decision to the Supreme Court.

In this determination (DPP v Wilson), the Supreme Court granted Wilson leave to appeal on “whether the section [s 19 of the Criminal Justice Act 1984] may be utilised in a trial for an offence other than the offence about which the accused was questioned when the section was invoked”.


Supreme Court

Chief Justice Denham wrote the main judgment for a unanimous five judge panel; McKechnie J wrote a concurring judgment.

The case raised only an issue of statutory interpretation.

Denham CJ set out An Garda Síochána’s obligations under s 19 and the operation of the adverse inference thereafter:

31. … First, the member concerned must reasonably believe that the presence of the accused at a relevant place and time may be attributable to participation in the commission of “the offence”. Second, the member concerned must inform the accused that he or she is of that belief being a belief that the presence of the accused may be attributable to participation in the commission of “the offence”. Third, the member concerned must, in accordance with s 19(3)(a), tell the accused in ordinary language what the effects of failure or refusal to account may be. However, that effect may be that an inference might be drawn in relation to guilt of “the offence charged”. It is clear, therefore, that the inferences caution must relate to “the offence” which obviously relates back to the offence in respect of which, in the words of the first phrase of s 19 itself, there are “proceedings against a person”.

32. There is no ambiguity in that aspect of the section. The inferences caution must relate to the same offence as is involved in the proceedings ultimately brought and thus the same offence as that with which the accused is charged.

33. Then, if the accused failed or refused to give an account explaining his presence, the Court, in determining whether the accused is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may draw such inferences as appear proper, and the failure or refusal may on the basis of such inferences, be treated as, or capable of amounting to, corroboration of any evidence in which the failure or refusal is material.


Allowing Wilson’s appeal, Denham CJ held:

50. Section 19 may not be utilised in a trial for an offence other then the offence in respect of which the inference caution was expressly invoked. Any other approach would require further legislation.

Leopardstown Club v Templeville Developments: Court of Appeal exceeded its jurisdiction in overturning High Court’s finding of fact

Here, the Supreme Court overturned the decision of the Court of Appeal in this case and affirmed the judgment of the High Court (Charleton J). Answering the questions certified, the Court held:

(i) First, in essence, did the Court of Appeal exceed its jurisdiction by misapplying Hay v O’Grady? I would answer this in the affirmative, for the reasons given.

(ii) Second, the issue of misrepresentation and the application of the correct law. The Court was not asked to overrule Gahan v Boland. Once there was evidence to support the learned High Court judge’s finding, as to the credibility of Mr Smyth, this was a finding of primary fact which should not be set aside by an appellate court as it was supported by credible evidence. Further aspects of the law on misrepresentation did not arise.



In 1998 Leopardstown granted Templeville a 35 year lease over land at Leopardstown race course. Templeville constructed a sports club including indoor and outdoor tennis courts. However, the relationship between the parties has been fractious and has resulted in many legal disputes. In 2011 there were nine separate disputes between the parties. The parties entered into a complex mediation process which led to a Mediated Settlement Agreement to resolve all of the outstanding disputes. The Agreement was made a rule of court.

That did not resolve the disputes, though. In 2012 Leopardstown issued High Court proceedings seeking a declaration that the Agreement was still in force and seeking money owed, damages and other reliefs. Templeville counterclaimed that Leopardstown induced it into the Agreement by misrepresentation regarding two ESB cables which run under the property.

In the High Court (here), Charleton J granted Leopardstown the orders sought, stating:

70. It is impossible not to be satisfied that Templeville had knowledge of the transverse ESB cable. I am satisfied that Philip Smyth [Templeville director], in claiming no knowledge of the cable is giving evidence that, in these circumstances, a court could not accept.

Templeville appealed that decision.


Hay v O’Grady [1992] 1 IR 210


The rule from Hay v O’Grady was stated by by McCarthy J at 217:

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority. …


Court of Appeal


Allowing Templeville’s appeal, the Court of Appeal issued two judgments. Hogan J (here) stated:

123. Third, the findings made by the High Court to the effect that Templeville had such knowledge cannot be sustained. Specifically, the trial judge did not apply the correct legal test in assessing this question, since he should have considered whether Leopardstown had established on the balance of probabilities that Templeville had actual and complete knowledge of the existence of the traversing cable in the manner required by the Supreme Court in Gahan. It was not enough, for example, to point to the existence of ESB manholes on the tennis court site in order to fix Templeville with knowledge, as this would go constructive rather than actual knowledge only.

Finlay Geoghegan J (here) wrote a concurring judgment finding that the evidence before the trial judge did not establish that Templeville had complete knowledge of the existence of the two cables at the time it entered the Agreement. She stated at [31]:

The onus on this issue of actual and complete knowledge is on Leopardstown and it does not appear that it can be considered as discharged by such credibility findings of the trial judge.


Leopardstown sought leave to appeal to the Supreme Court. The Court granted leave on two issues of general public importance:

(a) The principle and application of the rule in Hay v O’Grady [1992] I.R. 210 and the jurisprudence derived therefrom. The legal status of explicit or implicit findings of fact, and inferences by a trial judge, are fundamental to the role of appeal courts and a matter of general public importance. In essence did the Court of Appeal exceed its jurisdiction by misapplying Hay v O’Grady?

(b) The test and criteria to establish misrepresentation are matters of law which were addressed by this Court in Gahan v Boland [1985] ILRM 218. The Court was not asked to overrule Gahan v Boland. An issue was raised as to the nature of what should be proved in order to show misrepresentation, and, in particular, whether it must be shown that the representee was actually induced to enter into the transaction by reason of misrepresentation. Can constructive knowledge be a defence? (It was noted that since s. 86 of the Land and Conveyancing Law Reform Act, 2009, there are new rules regarding constructive knowledge. The Act of 2009 is not in issue on this appeal).


Supreme Court

Chief Justice Denham wrote the judgment for the five judge panel.  MacMenamin J wrote a concurring judgment. Allowing Leopardstown’s appeal, Denham CJ held that Gahan v Boland did not create an onus on Leopardstown to establish that Mr Smyth had conscious knowledge of the two cables on the day he entered the Agreement [97]. There was ample evidence to support the trial judge’s finding that Mr Smyth had knowledge of the cables, and that was sufficient to defeat Templeville’s claim of misrepresentation [98]. And Hay v O’Grady establishes that an appeal court should not set aside a trial judge’s finding of fact which is supported by credible evidence.

The Court overturned the decision of the Court of Appeal and affirmed the High Court orders.

DPP v Wharrie: Not a mitigating factor that accused did not give false evidence at trial

Here, in answer to a case stated from the Court of Criminal Appeal, the Supreme Court held that:

it is not a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give false evidence at his trial.



In 2007 Perrie Wharrie and three accomplices were arrested in County Cork when their rib sunk as they attempted to bring 1.5 tonnes of cocaine ashore. One of the men pleaded guilty to offences under the Misuse of Drugs Acts. The three others were convicted before a judge and jury. At trial, Wharrie did not give evidence. His accomplices, however, gave evidence which the judge described at sentencing as an “insult to the intelligence of the jury”. The trial judge determined that it was a mitigating factor that Wharrie did not give false evidence, but sentenced him to 30 years imprisonment.

The Court of Criminal Appeal upheld the trial judge’s finding that it was a mitigating factor that Wharrie did not give false evidence. But it found that the trial judge did not give Wharrie credit for that. The Court of Criminal Appeal reduced Wharrie’s sentence to 22 years and allowed a further five years reduction in mitigation.

The DPP certified a question for appeal to the Supreme Court:

Is it a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give evidence at his trial?


Supreme Court

Charleton J wrote the judgment for a five judge panel. Overruling the statements on mitigation by the trial judge and the Court of Criminal Appeal, he stated:

30. … An accused person is entitled to contest a case. While he or she may be given credit appropriate to an early admission of guilt, a plea of guilty, or, to a lesser extent, an approach to the trial process which saves time and money, no trial judge is entitled to aggravate the appropriate sentence because the accused gave perjured evidence in his own defence or in defence of others. Perjury is a separate crime and it is not a factor of aggravation of an existing offence. Finally, as a matter of principle, since perjury is a criminal offence as well as a grave moral wrong, it defies logic to conclude that failing to tell deliberate lies under oath or affirmation somehow mitigates the seriousness of an offence.

New Appeal: Re force majeure under s 16 of the European Arrest Warrant Act 2003

In this determination, Minister for Justice & Equality v Skiba, the Supreme Court granted Skiba leave to appeal against the Court of Appeal’s decision to allow his surrender (already completed) to the Republic of Poland. Although the Court determined that an appeal would be largely moot, it allowed an appeal on the question:

was the Court of Appeal correct in its determination of the law applicable in the case of the applicant, in light of the subsequent decision of the Court of Justice in Vilken Case 640/15?



The Polish authorities requested Skiba’s surrender under a European arrest warrant to serve a sentence of imprisonment. The High Court granted the order. The Irish and Polish authorities arranged for Skiba’s transfer on a commercial flight. Skiba’s solicitor informed the State authorities by phone that Skiba had a fear of flying. At the airport, Skiba refused to pass the departure gate. Due to the commotion, the captain of the plane refused to allow Skiba to board.

Afterwards, the Minister applied to the High Court under s 16(5) of the European Arrest Warrant Act 2003 for a second order for transfer, on grounds that the first was not executed because of circumstances beyond the State’s control. S 16(5) provides:

Where a person is brought before the High Court subject to ss. (4)(c) the High Court shall:

(a) if satisfied because of circumstances beyond the control of the State, or the issuing state concerned, the person was not surrendered within the time for surrender under ss. (3)(A), or, as the case may be, will not be so surrendered:
(i) with the agreement of the issuing judicial authority, fix a new date for the surrender of the person, and

(ii) order that the person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution), for a period not exceeding 10 days after the date fixed under sub-paragraph (1) pending the surrender, and
(b) in any other case order that the person be discharged.


The High Court granted the Minister’s request. And the Court of Appeal (here) dismissed Skiba’s appeal. The CoA held that the solicitor’s phone call was not sufficient to make it reasonably foreseeable, for the purposes of the 2003 Act, that Skiba would refuse to board the flight.

The State executed Skiba’s surrender to Poland in January 2017. Since then the Court of Justice of the European Union responded to a reference by the High Court in a case with comparable facts. (The CJEU named the case Vilkas, the Supreme Court names the case Vilken). Here, the CJEU held that:

55.  Therefore, so far as concerns the concept of force majeure as provided for in Article 23(3) of the Framework Decision, it is necessary to take account of the general scheme and the purpose of the Framework Decision in order to interpret and apply the constituent elements of force majeure, as derived from the Court’s case-law (see, by analogy, judgment of 18 December 2007, Société Pipeline Méditerranée et Rhône, C‑314/06, EU:C:2007:817, paragraph 26).

56.  In that regard, it is to be recalled that Article 23(3) of the Framework Decision constitutes an exception to the rule laid down in Article 23(2). Accordingly, the concept of force majeure as provided for in Article 23(3) must be interpreted strictly (see, by analogy, judgments of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraphs 24 and 25, and of 18 July 2013, Eurofit, C‑99/12, EU:C:2013:487, paragraph 37).

57.  Furthermore, it is apparent from the wording of Article 23(3) of the Framework Decision that the occurrence of a case of force majeure can justify extending the period for surrendering the requested person only in so far as that case of force majeure means that his surrender within the period laid down is ‘prevented’. The mere fact that his surrender is simply made more difficult cannot therefore justify application of the rule set out in the first sentence of that provision.


The Supreme Court determined that, although Skiba had already been surrendered to Poland, any even though he has not challenged the legality of his detention there, the CJEU decision in Vilkas warrants any appeal on the question:

was the Court of Appeal correct in its determination of the law applicable in the case of the applicant, in light of the subsequent decision of the Court of Justice in Vilken Case 640/15?

New Appeal: On An Bord Pleanala’s duty to give reasons for its decisions

In this determination, Connolly v An Bord Pleanala, the Supreme Court granted the Bord leave for a leapfrog appeal from a decision of the High Court. In November 2016, Barrett J quashed a decision of the Bord to grant planning permission for a wind farm in County Clare for not providing sufficient reasons for its decision. Later, the High Court refused to grant the Bord certification to appeal that decision to the Court of Appeal.



In 2011, Clare County Council refused McMahon Finn (notice party) permission for the development of a wind farm. McMahon Finn appealed that decision to An Bord Pleanala. After considering the appeal at a number of meetings, and after receiving additional information from the developer, the Bord granted permission for the development.

Kathleen Connelly, a homeowner close to the proposed development applied to the High Court for any order of certiorari quashing the Bord’s decision. She argued that the Bord did not provide adequate reasons for its decision to allow an objective observer to establish whether the decision met the requirements of law.

The High Court, Barrett J (here) reviewed the case law, determining that the applicable authorities are:

– the Court of Justice in Mellor, para. 59, “[I]nterested parties must…have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts”,

– Clarke J. in Christian, para. 78, “In order to assess whether a relevant decision is lawful, a party considering a challenge…must have access to a sufficient amount of information to enable an assessment as to lawfulness to be made”, and

– Finlay Geoghegan J. in Kelly, para.48, “[T]he essential principle is that the reasons must be such as to enable an interested party assess the lawfulness of the decision…”.

21. These obligations appear heightened in importance when one has regard to the tight time constraints that apply to seeking judicial review.


Quashing the Bord’s decision, Barrett J held that the Bord had not provided sufficient reasons in compliance with the quoted authorities.


Supreme Court

The Bord applied for leave for a leapfrog appeal to the Supreme Court arguing that the standard for leave to the Supreme Court of “general public importance” is lower than the “exceptional public importance” standard necessary for an appeal to the Court of Appeal under s 50 of the Planning and Development Act 2000.

The Bord argued that the High Court decision sets a new, higher threshold of reasoning for decision-makers, contrary to long-settled lines of authority.

Granting leave, the Court stated:

21. It is self-evident from the description of the issues and background circumstances that this is a matter of general public importance which warrants a leapfrog appeal to this Court. The issues in question concern not only this decision of the Board, but many other decisions of the Board. The question, simply put, is as to the degree of particularity and specificity necessary in the Board’s decision.

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