DPP v Solowiow: Trial judge must assess defendant’s lies in time, nature and circumstances of offence when directing jury

In this case, Director of Public Prosecutions v Solowiow, the Supreme Court held that the trial judge had given the jury adequate warning on the inferences they could draw from Solowiow’s original false accounts of events. That he did not direct the jury that Solowios’s lies were not evidence of guilt of murder rather than manslaughter did not cause an injustice.

 

Background

In May 2012, Solowiow murdered his girlfriend Mary Ryan by fracturing her larynx and causing her blunt force trauma. When first interviewed by gardai, Solowiow stated that Ryan’s injuries were caused by three men who assaulted her on the street. Later he admitted to causing Ryan’s death while in a fit of rage. But he alleged that he did not mean to harm her.

The DPP prosecuted Solowiow for murder; he argued a partial defence of provocation, which, if accepted by a jury, reduces the offence of murder to manslaughter. In October 2013, the Central Criminal Court convicted Solowiow of murder. Solowiow appealed that decision to the Court of Appeal on a number of grounds, all arguing that the trial judge failed to direct the jury correctly.

In April 2016, the Court of Appeal (here) dismissed Solowiow’s appeal. That judgment quotes extensively from the trial judge’s direction to the jury. [22 – 29] dealt with the trial judge’s direction to the jury on how they should consider Solowiow initially lying to gardai. Solowiow sought leave of the Supreme Court for a further appeal on that one issue.

In granting leave to appeal, the Supreme Court summarised Solowiow’s argument on the trial judge’s direction to the jury relating to his early denial of causing Ryan’s injuries:

It is said that it requires to be made clear to the jury in the judge’s charge that such evidence is not evidence of guilt of murder as such but rather is evidence which may go to the credibility of the accused and, to the extent that it may lead to a legitimate questioning of that credibility, may be taken into account by the jury in conjunction with all of the evidence on provocation which may be given at the trial. It is said that the charge in this case does not do so, that there is no Irish authority on the question and that the question of whether a charge should so do raised an issue which meets the constitutional threshold.

However, the Court also allowed the DPP to argue that it was not open to Solowiow to appeal on the grounds raised, as he did not make a requisition to the trial judge to amend his jury direction on that issue.

 

Supreme Court

MacMenamin J wrote the judgment for the unanimous five judge panel. He outlined the law in relation to direction of a jury where a defendant had given a false account of their involvement, known as the “Lucas Warning”:

35. Standing back from the facts of this case, it is clear that the core principle in R v Lucas [1981] QB 720, is that, where an accused’s lies are capable of constituting corroboration, the jury must be instructed that there are many possible reasons why people lie, and that, before relying on the lie in question, it must be satisfied that the motivation behind the lie was a realisation of guilt, and a fear of the truth.

 

That test was later refined in England and Wales for cases where the defence of provocation is raised: R v Richens [1994] 98 Cr App Rep 43. MacMenamin J outlined the relevant facts:

41. Richens was a case where the circumstances showed that not only could the partial defence of provocation arise, but have a close connection with the offence. The judgment concerned a 17 year old accused, who, the defence claimed, was enraged that the victim claimed that the defendant’s girlfriend, who he had raped, had actually consented to have sex. Both the defendant and the girl disposed of the body. The defendant maintained a false account of what occurred for a considerable period. Critically, the accused denied any involvement at all in the crime. He was arrested 17 days after the crime and on the following day admitted his involvement.

 

In this case, the trial judge had given a Lucas Warning, but Solowiow argued that the trial judge should have gone further and specifically directed the jury that his lies could not provide proof of his guilt of murder as opposed to manslaughter.

MacMenamin J approached this appeal from the question of the overall adequacy of the trial judge’s direction. Dismissing the appeal, he stated:

  1. The charge, as a whole, was detailed and fair. It is not to be parsed and analysed with a view to finding some small detail or omission which contains a flaw of no significance. One might rhetorically ask what more should the judge have said on the basis of the evidence before the jury? It is, theoretically, possible to criticise the charge on the basis that the omission of what I might characterise as a Richens warning. But this charge did contain a detailed warning in a case where the issue was entirely obvious: was the defendant guilty of murder or manslaughter? The judge took care to ensure that the jury were aware of the fact that the defendant accounted for his lies on the basis that he was afraid, and then “thought about telling the gardaí about the three guys.” He accounted for the fact that he told his friends the lies, on the basis that he did not know whether or not the deceased was going to die. The judge gave the essence of the Lucas warning. He gave illustrations of the application of the warning. And, by the time of the trial, what was in the lies was not in dispute, and was by then a secondary issue. It was clear that the defendant had committed a homicide, and did not dispute that. It was no longer the central issue.
  2. The question must be, how material was the omission of this one hypothetical sentence, which counsel for the defendant now suggests? Was the charge fundamentally flawed? In my view, it was not. No injustice was done in this case. One must assess the relationship of the lies both in time, and in their nature, to the circumstances of the offence. The jury might have paid regard to the lies, but this was not the central consideration when in the trial itself the vista had changed. This case does not concern theoretical possibilities. It must be anchored in its own facts. I do not consider the omission to be fatal to the charge or the subsequent conclusion.

 

On the second issue of whether Solowiow had a right to appeal at all, given that he had not made a requisition to the trial judge to amend his jury direction, MacMenamin J held for the DPP, citing Kearns J in Cronin (No 2) [2006] 4 IR 329:

Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. …

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Minister for Justice v Lipinski: “trial” within the Framework Decision on European Arrest Warrants does not include proceedings to revoke suspension of a sentence

In this case, Minister for Justice & Equality v Lipinski, the Supreme Court held, following Court of Justice of the European Union (CJEU) precedent, that “trial” within Article 4a of the Framework Decision on European Arrest Warrants does not include a hearing where suspension of a sentence is revoked, unless the decision changes the nature or the level of the sentence imposed.

 

Background

In 1998, a Polish court sentenced Lipinski to fifteen years imprisonment for offences comparable to the Irish offence of assault causing harm. That sentence was reduced on appeal to ten years. Lipinski was present at the trial and represented at the appeal.

In 2004, another court ordered the suspension of the remainder of Lipinski’s sentence on condition that he remain under the supervision of a probation officer.

In 2006, Lipinski moved to Ireland, breaching the terms of the suspension of his sentence. At a hearing later that year, a Polish court made an order quashing the suspension, making Lipinski liable to serve the rest of the sentence. The Polish authorities did not notify Lipinski of that hearing and he was not present.

In 2013 the State received a European Arrest warrant for Lipinski’s surrender to the Republic of Poland. That warrant was executed in 2014.

In the High Court, Lipinski argued that s 45 of the European Arrest Warrant Act 2003 (as amended) prohibited his surrender. S45 originally stated that a person should not be surrendered if they were not present at their trial, unless the issuing state guarantees a retrial. In 2012, s 45 was amended to state that a person should not be surrendered if they were not present at the “proceedings resulting in the sentence or detention order”. The High Court (here) ordered Lipinski’s surrender, but certified a question of law of exceptional public importance for determination by the Court of Appeal on whether s 45 as amended is engaged where the person was present at the trial for the offence but not present for the reactivation of the suspended sentence.

The Court of Appeal (here) held that the amendments were procedural rather than substantive, and if the legislature intended s 45 to extend to in absentia arrangements it would require clear wording. Lipinski sought leave of the Supreme Court to appeal that decision.

 

Supreme Court

Clarke J, writing for a five judge panel, held that s 45 must be interpreted in a manner consistent with the Framework Decision on European Arrest Warrants. Article 4a of the Framework Decision, the article which s 45 transposes into Irish law, provides for circumstances where an executing state will refuse surrender. That includes, where the subject of a warrant is sought to serve a sentence already imposed but was not present at the “trial”.

Clarke held that it is not acte clair whether trial in 4a must be interpreted narrowly to refer only to Lipinski’s original trial and sentencing (where Lipinski was present); or whether trial in 4a should be interpreted broadly to also include the proceedings where the suspension of the sentence was revoked (where Lipinski was not present).

The Supreme Court made a reference to the CJEU under Article 267 of the Treaty on the Functioning of the European Union on the correct interpretation of trial in Article 4a of the Framework Decision.

In December 2017, the CJEU issued judgment in another case which resolved the issue in his case: Samet Ardic (Case C-571/17 PPU). The CJEU held that:

Where a party has appeared in person in criminal proceedings that result in a judicial decision which definitively finds him guilty of an offence and, as a consequence, imposes a custodial sentence the execution of which is subsequently suspended in part, subject to certain conditions, the concept of ‘trial resulting in the decision’, as referred to in Article 4a(1) of Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as not including subsequent proceedings in which that suspension is revoked on grounds of infringement of those conditions during the probationary period, provided that the revocation decision adopted at the end of those proceedings does not change the nature or the level of the sentence initially imposed.

 

Applying that interpretation to the facts of this case, Clarke CJ held that, as the sole consequence of the 2004 hearing was to revoke the remaining period of Lipinski’s sentence without variation, the Court must dismiss the appeal.

MM v Minister for Justice: Applicant for subsidiary protection had no right to an oral hearing

Following the second decision of the Court of Justice of the European Union in this case, MM v Minister for Justice and Equality, the Supreme Court overturned the High Court order quashing the Minister’s decision to refuse MM subsidiary protection. The Court held that the High Court erred in finding that MM had a right to an oral hearing in his application for subsidiary protection: a procedure based on written submissions is sufficient for the purposes of Council Directive 2004/83/EC.

 

Background

MM made an unsuccessful application for refugee status. He then made an application for subsidiary protection as derived from EU law. The Minister refused that application also. MM sought judicial review of that decision on procedural grounds, claiming that the Minister ought to have informed him of the results of a negative assessment before a final decision, to allow him to make a submission on the negative findings. The High Court requested a preliminary ruling from the European Court of Justice (ECJ) on that issue. The ECJ held that there was no requirement on the Minister to inform an applicant of an adverse assessment and allow him to make a submission on that. However, the ECJ did state that an applicant for subsidiary protection has a right to be heard and make his views known as part of that application. The fact that he has been duly heard during the refugee application does not dispense with that procedural requirement.

On receipt of the ECJ decision, the High Court determined that the Minister failed to provide MM with an effective hearing, as he had relied completely on the Refugee Appeals Tribunal’s (Tribunal) findings and made no independent and separate adjudication on MM’s grounds for application. In its judgment, the High Court set the minimum criteria for MM’s subsidiary protection application: 1) MM to have an opportunity to comment on the Tribunal’s adverse findings; 2) to be given a fresh opportunity to revisit all matters relating to his claim for subsidiary protection; and, 3) to have a fresh assessment of his credibility.

The Minister appealed that decision to the Supreme Court claiming that the High Court erred in determining that his adjudication process was not compatible with the ECJ ruling. MM cross appealed claiming that the High Court erred in not finding that the right to be heard means a right to an oral hearing and to cross examine witnesses. The Court referred a question to the ECJ on that matter.

Question

1. Does the “right to be heard” in European Union law require that an applicant for subsidiary protection, made pursuant to Council Directive 2004/83/EC, be accorded an oral hearing of that application, including the right to call or cross-examine witnesses, when the application is made in circumstances where the Member State concerned operates two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection, respectively?

 

Decision

In its second decision, the CJEU held that:

The right to be heard, as applicable in the context of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, does not require, as a rule, that, where national legislation, such as that at issue in the main proceedings, provides for two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, the applicant for subsidiary protection is to have the right to an interview relating to his application and the right to call or cross-examine witnesses when that interview takes place.

An interview must nonetheless be arranged where specific circumstances, relating to the elements available to the competent authority or to the personal or general circumstances in which the application for subsidiary protection has been made, render it necessary in order to examine that application with full knowledge of the facts, a matter which is for the referring court to establish.

 

Supreme Court

O’Donnell J wrote the judgment for a unanimous five judge panel. In it he outlined how “the difficulties of communication between different legal systems” [15] caused Hogan J in the High Court to equate the right to be heard in EU law (the right to present your side of the case) with the right to be heard under the Irish administrative law system [18] (the right to an oral hearing, etc).

On applying the decision of the CJEU to the facts of this case, O’Donnell J concluded:

in my view the outcome of the case is clear and straightforward. The decision of the European Court of Justice makes it clear that it in the Irish context which existed at the time of the decision here, and where the decision on subsidiary protection was a separate decision taken after the determination of the asylum process, it was permissible to make that decision on the basis of a written procedure, so long as the procedures adopted were sufficiently flexible to allow the applicant to make his case. That was plainly the case here. Exceptionally, it may be necessary to permit an oral interview. It cannot be contended here however that such an exceptional situation arose: the submission seeking subsidiary protection identified only those matters which had already been relied on in the claim for asylum. The decision of the ECJ also makes it clear that it is permissible to have regard to the information obtained in the asylum process, and the assessment of the decision-maker. There is in this case no basis for contending for an oral hearing, still less for an adversarial hearing. It was argued, faintly, that Irish law might require more in that procedure, but at this stage of the proceedings that argument is in my view as forlorn as a matter of procedure, as it is of substance. The appeal must be allowed and the order of certiorari made by the High Court must be set aside, and the application for judicial review dismissed.

New Appeal: Can the High Court appoint a receiver in equity over salary payments?

In this determination, ACC Loan Management v Rickard, the Supreme Court granted Rickard leave to appeal to question “the ambit of power of a Receiver by way of equitable execution over both equitable and legal interests”.

 

Background

In 2011, on application from ACC, the High Court held that payments made under the Single Payment Scheme were not legally due but were payments which may become legally due in the future. As they were therefore not accessible under the legal process, Kelly J appointed a receiver in equity over future payments due to Rickard, for ACC’s benefit.

In 2015 the Department of Agriculture wrote to ACC to advise that the Single Payment Scheme was being replaced by the Basic Payment Scheme and an application to court was required to amend the ambit of the Receiver’s appointment, to continue in receipt of Rickard’s payments. ACC applied and the High Court granted the amendment.

Rickard appealed that decision to the Court of Appeal citing Flanagan v Crosby [2014] IEHC 59; [2014] 1 IR 576, where Hogan J held that he was constrained by law from appointing a receiver by way of equitable execution over salary payments. The Court of Appeal dismissed Rickard’s appeal citing MacLaine Watson & Company v ITC [1988] Ch 1. The Supreme Court summarised their findings as:

  • it is not part of the law that receivers could only be appointed over assets which were held on an equitable interest;
  • under the Supreme Court of Judicature Act 1877, there is no reason in principle why a receiver cannot be appointed over legal interests;
  • payments under the Basic Payment Scheme should not be equated with salaries; and,
  • there was no reason why the court should not appoint a receiver by way of equitable execution over future receipts from a defined asset.

 

Rickard applied to the Supreme Court for leave to appeal. Granting leave, the Court stated:

11. While the respondent contends that the question raised is a narrow issue of private contract only, the Court is of the view that, in fact, the issue which is raised here does involve a matter of wider and general public importance, that is to say, the proper identification of the law in the light of the fact that the question determined by the Court of Appeal had reversed prior authority on the question. While that is not, in itself, a matter of general public importance, the Court is of the view that the issues which are raised is the ambit of power of a Receiver by way of equitable execution over both equitable and legal interests is, in fact, a matter of general public importance which transcends the facts of this case, and requires determination. Further, the issue raised issues as to whether payments made under the Basic Payment Scheme, which is available to farmers, are in the nature of a salary. The decision of the Court of Appeal both reconsidered and distinguished principles which were established in the 19th and 20th Century.

 

Supreme Court refuses leave to appeal to set aside notice of discontinuance

In this determination, Allen v Minister for Education, the Supreme Court refused Allen leave to appeal against the High Court’s refusal to allow him withdraw his notice of discontinuance of proceedings against the State, as “having had the benefit of legal advice and representation, the applicant freely made a decision to discontinue his proceedings”.

 

Background

In 2003, Allen issued proceedings against the State for sexual abuse suffered in a primary school run by Christian Brothers. It was one of a number of similar cases before the courts at the time, the most prominent being, Louise O’Keeffe v Leo Hickey. In 2008 the Supreme Court refused to overturn the High Court’s refusal to award O’Keeffe damages against the State.

The State proposed to the plaintiffs in the remaining cases that it would not pursue them for costs if they filed notices of discontinuance. Allen was one of many plaintiffs to file such notices. O’Keeffe took a case against the State to the European Court of Human Rights. The ECHR found that the State had breached O’Keeffe’s Art 3 and Art 13 rights.

After that, Allen, and a number of others, applied to the High Court seeking a motion to have his notice set aside. The High Court refused. The Court of Appeal rejected his appeal.

Allen applied to the Supreme Court for leave to appeal, arguing that as there were a number of similar cases, he met the constitutional threshold of being a matter of public importance. And secondly, Allen argued that an appeal was necessary in the interests of justice as the Court of Appeal decision had denied him a domestic remedy where his case comes within the decision of  O’Keeffe in the ECtHR.

Refusing leave, the Court stated:

  1. The point is made by the respondent that the applicant voluntarily chose to discontinue proceedings which he had issued. It is undoubtedly the case that having had the benefit of legal advice and representation, the applicant freely made a decision to discontinue his proceedings. The fact that Ms. O’Keeffe brought proceedings to the European Court of Human Rights and obtained a decision to the effect that there had been a violation by Ireland of the Convention does not change that. In other words, the subsequent decision of the European Court of Human Rights does not affect the basis of the decision of the Court of Appeal in relation to the setting aside of or withdrawal of the notice of discontinuance. The applicant had a domestic remedy through his proceedings and chose to discontinue those proceedings. While the Court acknowledges the difficult situation in which the applicant now finds himself, the applicant has been unable to meet the Constitutional threshold necessary to allow an appeal to this Court.

Supreme Court refuses leave to appeal against Circuit Court injunction against entry of unrated property

In this determination, Costello v Carney, the Supreme Court refused Carney’s application for leave to appeal from the High Court’s affirmation of the Circuit Court injunction against him entering a mortgaged property.

Following its recent decision in Permanent TSB v Langan, the Court rejected Carney’s argument that the Circuit Court does not have jurisdiction over unrated properties.

GRA V Minister for Public Expenditure & Reform: Gardai had no entitlement to specific consultation process on terms of sick leave

In Garda Representative Association v Minister for Public Expenditure and Reform, the Supreme Court accepted, for the purposes of this case, that due to the statutory interference with the Gardai’s constitutional right join a union, it may be required as a matter of proportionality that they have a right to consultation with the Minister regarding their conditions of employment and remuneration. But there is no right to any specific form of consultative process. Given that, the Minister had not breached any entitlement to consultation in introducing regulations altering the sick pay entitlements of public servants, including Gardai.

 

Background

Garda Síochána Act 2005

Section 122 of the 2005 Act provides:

(1) The Minister may, after consulting with the Garda Commissioner and with the approval of the Government, make regulations for the management of the Garda Síochána, including regulations relating to any or all of the following matters:

(g) the pay and allowances of members, including the conditions under which they are payable;

 

Section 122(6) provides:

Before making regulations under subsection (1)(g) or (i), the Minister shall—

(a) submit a draft of the regulations to the associations referred to in section 18 representing the ranks and grades in the Garda Síochána who would be affected by the regulations, and

(b) consider any representations made to him or her in respect of the draft regulations by any of those associations.

 

In response to budgetary constraints at the time, the Government introduced the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013.

Section 58B provides:

(1) Without prejudice to subsection (5) and subject to subsections (2) and (7), the Minister may make regulations providing for the payment of remuneration, in circumstances specified in the regulations and subject to such conditions as are specified therein, to a relevant person during a period of sick leave on his or her part, and that remuneration shall be (as the Minister determines and specifies in the regulations)—

(a) the whole amount of the remuneration that would otherwise accrue to the person,

(b) a percentage specified in the regulations of the whole amount referred to in paragraph (a), or …

Section 58C provides:

This Part has effect notwithstanding—

(a) any provision made by or under—

(i) any other Act,

(ii) any statute or other document to like effect of a university or other third level institution,

(iii) any circular or instrument or other document,

(iv) any written agreement or contractual arrangement,

or

(b) any verbal agreement, arrangement or understanding or any expectation.

 

Under the 2013 Act, the Minister introduced the Public Service Management (Sick Leave) Regulations 2014, reducing the entitlements of public service workers, including Gardai, to sick pay.

The GRA applied to the High Court for a declaration that the 2014 Regulations did not apply to its members. The High Court (Kearns P) rejected that application, as the relief sought would amount to an untenable limit on the power to legislate.

The Court of Appeal (Finlay Geoghegan J & Hogan J) rejected the GRA’s appeal, finding that that the High Court decision was correct.

The GRA applied to the Supreme Court for leave to appeal.

 

Supreme Court

The Court determined that the GRA had raised questions of general importance and granted leave. Those questions were defined during case management to:

(a) Whether decisions of Government which impact on existing entitlements of workers in the public service require, prior to being changed to the detriment of such workers, either consultation with those so affected or any other form of procedure, such as procedural fairness?

(b) Can the doctrine of legitimate expectation arise in the particular context at issue in this appeal?

(c) Where a representation is made, if, which is denied, any such was made here, which gives rise to a legitimate expectation that Government will be bound to a particular course of action, may this be resiled from or withdrawn without legal consequence?

(d) Whether the conditions for liability for legitimate expectation also require that the party or parties, to which a representation is held out, change their position to their detriment, or otherwise act on same so that it would be inequitable for the Government to go back on that representation?

Clarke CJ wrote the judgment for the unanimous five judge panel. He concluded:

10.1 In summary, therefore, for the reasons set out earlier in this judgment, I have first concluded that the relevant statutory regimes do not, of themselves, confer any right to be consulted prior to the making of regulations by the Minister for Public Expenditure and Reform under the measures introduced by the 2013 Act. The Regulations were introduced under that Act. That Act is, in its terms, stated to apply notwithstanding any other legislative provision.

10.2 I have, for the purposes of the argument, been prepared to accept that it is possible that the GRA was entitled to some engagement prior to the making of such Regulations on one or other or both of two bases. The first being the possibility that the restrictions placed on the ability of An Garda Síochána to conduct what for others might be considered to be ordinary industrial relations may give rise to an entitlement to be consulted. The second is that it may again be arguable that the history of the engagement between the parties is such as to give rise to a legitimate expectation that some form of consultation or the right to make representations would be afforded. However, I have also concluded that under neither of those headings is it arguable that there could be a right to any specific form of process. Rather the height of the argument could only extend to an entitlement to a generalised form of consultation or facility to make representations.

10.3 On that basis I have considered the facts and concluded that no breach of any such general entitlement has been established. There was a lengthy engagement between what might loosely be called the Government side and the GRA. On that basis I have come to the view that, even if any generalised right of the type which I have described could be said to arise on any of the legal bases put forward, no breach of any such entitlement has been established. For that reason I do not consider it necessary to finally determine whether any such rights exist in the first place for even if they do, such rights have not been breached.

10.4 For those reasons I would dismiss the appeal and affirm the orders of the Courts below.

Bates v Minister for Agriculture, Fisheries and Food: Minister has duty of care when providing advice outside of statutory duty

Here, Bates & Moore v Minister for Agriculture, Fisheries and Food, the Supreme Court upheld the High Court judgment that the Minister had assumed a duty of care towards Bates and Moore where the Department provided them with advice, where it was known that they were likely to rely upon it and where the provision of advice was outside of the Department’s statutory duty.

 

Background

Bates and Moore operate fishing boats. In 2003 they were fishing for scallops in the Bay of Biscay, just outside of French territorial waters. A French fishing patrol informed them that it was illegal for them to fish for scallops in that area and advised them to move further north.

Bates contacted the Department with a query as to whether their fishing was legal. The Department informed him, based on an incorrectly translated Regulation, that it was legal for them to fish for scallops in that area. They returned to their previous fishing area. The French authorities arrested the boats and imposed fines and civil charges on Bates and Moore (the High Court and Supreme Court judgments give different amounts).

Bates and Moore issued High Court proceeding against the Minister seeking damages on the basis of legitimate expectation.

In the High Court, Laffoy J dismissed their claim under legitimate expectation but held that the Minister did have a duty of care when providing information outside of any statutory duty. And the Minister was vicariously liable for whichever official within the Department was responsible for not having a correct translation of the Regulation available. She awarded Bates and Moore damages that arose as a direct result of the misstatement.

The Minister appealed that decision to the Supreme Court.

Charleton J wrote the judgment for the three judge panel. He stated:

  1. The law remains as stated in Pine Valley Developments v The Minister for the Environment [1987] IR 23. Thus, while no duty of care may be owed in the exercise of public functions by a public body, nonetheless, there is not immunity from tort outside misfeasance in public office.

Rejecting the Minister’s appeal, Charleton J outlined how the Minister’s duty of care arose:

26. Mere reliance cannot be enough and nor is the knowledge that the person seeking the advice is likely to rely on it. That is to equate foreseeability of risk with the imposition of a duty of care. Since the primary question is whether there is a duty of care in the particular circumstances, the nature of what information is sought, the party from whom it is sought and the relationship between them are the points of focus. This was a classic case of the voluntary assumption of responsibility by the defendant Department in circumstances where it was likely that fishermen would rely on it. Here, the information sought by the plaintiff was in a situation of peril, that of imminent arrest. The guidance given was particular to that situation. It involved the consultation of documents that reposed within the expertise of the Department. While the relationship between the parties was not a professional one, or, to use the language from some of the older cases, one that would be regarded as equivalent to contract, in the situation from which advice was called for and the assumption of responsibility to provide accurate information which the Department assumed, this was what is now more commonly referred to as a special relationship giving rise to liability for negligent advice.

New Appeal: Can a court make a finding of fact contrary to testimony based on uncorroborated documents?

In this determination, RAS Medical Limited, t/a Park West Clinic v The Royal College of Surgeons Ireland, the Supreme Court granted the Royal College leave to appeal on the question:

is ever appropriate for a court, whether it be a court of first instance or an appellate court, to reach a finding of fact contrary to the testimony of a witness and based upon documents which have not been put to the witness in cross-examination?

 

Background

RAS is a private health clinic specialising in cosmetic surgery. The Royal College is a postgraduate medical training body. The Medical Practitioners Act 2007 delegates responsibility to the Royal College for, among other things, “the ongoing maintenance of the professional competence of medical practitioners” s 91(1).

The RAS proposed to run an event titled “One Day Masterclass on Polyurethane Breast Implants and Cosmetic Surgery”. The Royal College refused to accredit the event for continuing professional development (CPD). The RAS sought judicial review of that decision seeking an order of certiorari quashing that decision. As there was a dispute as to a matter of fact, the trial judge ordered discovery of documents. The High Court refused the RAS application. RAS appealed to the Court of Appeal.

The Court of Appeal overturned the High Court decision based on acceptance of information in the discovered documents which conflicted with the sworn testimony of a Royal College witness.

The Royal College applied to the Supreme Court fro leave to appeal that decision.

 

Supreme Court

The Court determined that the Royal College had raised an issue of general importance and granted leave on the above question, stating:

  1. While it by no means arises in every case, there are certain judicial review proceedings, of which this is one, where discovery is ordered. It is well settled that discovered documents cannot be admitted in evidence unless the parties agree, or in plenary proceedings an appropriate witness is called to prove the document in question. Sometimes the parties may agree that documents can be admitted on the basis that their existence is accepted but without it being agreed that the documents in question can be taken to be evidence of the truth of their contents. Sometimes, on what is frequently referred to as the Bula/Fyffes basis, parties may go further and agree that documents discovered may be admitted as prima facie proof of the truth of their contents, at least insofar as such evidence may be tendered against the party producing the document in question and subject to the right of the party concerned to contest the accuracy of the facts set out in the documents in question. However, Courts have repeatedly emphasised the importance of there being clarity as to the basis on which documents are thus admitted. It is particularly important that discovered documents are not simply handed into court without there being a clear understanding as to the basis on which the judge is to consider the documents in question.

 

  1. Against that backdrop the Court is satisfied that the circumstances in which certain discovered documents came to be before the courts below, be considered by those courts and form the basis, at least in part, of the judgment, gives rise to an issue of general public importance not least because it is of some significance to bring further clarity to the way in which discovered documents can be deployed in all proceedings but in particular proceedings which are, prima facie, likely to be heard on affidavit.

New Appeal: Does Brexit prohibit surrender of an EU citizen to the UK under an EU arrest warrant?

In this judgment, Minister for Justice v O’Connor, the Supreme Court granted O’Connor leave for a leapfrog appeal from the High Court. As a preliminary issue, the Court decided to make a reference to the Court of Justice of the European Union. The Court proposed a draft question:

 

Having regard to:

(1) (a) The giving by the United Kingdom of notice under Article 50 of the TEU;

(b) The uncertainty as to the arrangements which will be put in place between the European Union and the United Kingdom to govern relations after the departure of the United Kingdom; and

(c) The consequential uncertainty as to the extent to which Mr. O’Connor would, in practice, be able to enjoy rights under the Treaties, the Charter or relevant legislation, should he be surrendered to the United Kingdom and remain incarcerated after the departure of the United Kingdom.

Is a requested state required to decline to surrender to the United Kingdom a person the subject of a European arrest warrant, whose surrender would otherwise be permitted, either

(i) in all cases?

(ii) having regard to the particular circumstances of the case? or

(iii) in no cases?

(2) If the answer to Q. 2 is that set out at (ii) what are the criteria or considerations which a court in the requested member state must assess to determine whether surrender is required?

(3) In the context of Q. 2, can the Court of a requested member state postpone the finalisation of a request for surrender to await greater clarity about the relevant legal regime which is to be put in place after the withdrawal of the relevant requesting member state from the Union?

 

Background

In 2006 Blackfriars Crown Court convicted O’Connor on two counts of tax fraud and released him on bail pending sentencing. When he did not attend court for sentencing, the judge sentenced him, in his absence, to two concurrent sentences of four years and six months.

In 2011 the UK issued a European arrest warrant seeking O’Connor’s surrender from this jurisdiction. The High Court endorsed that warrant. Gardai arrested O’Connor, and the High Court granted the Minister an order for O’Connor’s surrender. The Supreme Court granted O’Connor leave to appeal on an issue of the provision of legal aid (post). When that appeal was unsuccessful, the case returned to the High Court.

O’Connor then objected to his surrender on grounds that, as the United Kingdom had triggered the Brexit process, his rights as an EU citizen could not be guaranteed after March 2019. The High Court rejected that argument (here) and refused to grant a certificate for an appeal to the Court of Appeal. O’Connor applied for leave to appeal to the Supreme Court.

Generally applications for leave to appeal to the Supreme Court are determined on written submissions by three judges. In this case, the Court convened an extended panel and heard oral submissions from the parties.

O’Connor opposed the Minister’s intention to surrender him to the United Kingdom in circumstances where it may not be within the jurisdiction of the CJEU post Brexit and where rights accruing to him under the Charter of Fundamental rights may not be capable of enforcement.

The Court accepted that this is an issue of general public importance (there are 20 similar cases pending). The Court also determined that the case met the constitutional threshold of involving exceptional circumstances for a leapfrog appeal, as the High Court had refused a certificate to appeal to the Court of Appeal.

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