New Appeal: Supreme Court grants second appeal on An Bórd Pleanála’s duty to give reasons for its decisions

In this determination (North Kerry Wind Turbine Awareness Group v An Bórd Pleanála ), the Supreme Court granted the North Kerry Group leave to appeal against the High Court’s (McGovern J) refusal to overturn An Bórd Pleanála’s grant of planning permission for a wind farm.

 

Background

In 2014, Kerry County Council refused the Notice Party planning permission to construct a wind farm. The Notice Party lodged an appeal with An Bórd Pleanála. Although the proposed development breached the county development plan, in 2016, the Bórd granted permission for the wind farm, stating reasons. The North Kerry Group issued judicial review proceedings in the High Court seeking to have the Bórd’s decision quashed. McGovern J (here) rejected that application and later refused the North Kerry Group’s application for leave to appeal under s 50 of the Planning and Development Act.

The North Kerry Group applied to the Supreme Court for leave for a leapfrog appeal. One of the grounds of appeal was that the Bórd failed to give adequate reasons for its decision. In Connelly v An Bórd Pleanála (post) the Court granted the Bórd leave to appeal against the High Court’s (Barrett J) quashing of its decision to grant planning permission for a wind farm, for failure to give adequate reasons for the decision. And in Holohan v An Bórd Pleanála, the High Court (Humphrey J) made a reference to the Court of Justice of the European Union on, among other issues, the duty of  a competent authority to give reasons for its decisions, subject to the Council Directive 92/43/EEC (Habitats Directive).

Granting leave, the Court stated:

9. … having regard to the decision of the Court to grant leave in the case of Connelly v An Bórd Pleanála (see [2017] IESCDET 57), and to the reference to the Court of Justice of the European Union in Holohan, the Court will grant leave to this applicant on the question whether in all the circumstances of the case the reasoning and analysis of the Board was sufficient.

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New Appeal: are decisions of the Dáil Committee on Procedure and Privileges justiciable?

In this determination (O’Brien v The Clerk of Dáil Éireann), the Supreme Court granted O’Brien leave for a leapfrog appeal from the High Court decision that decisions of the Dáil Committee on Procedure and Privileges are not justiciable.

 

Background

In April 2015, the High Court granted O’Brien an interlocutory injunction against RTE revealing details of his banking information in a documentary on the Irish Bank Resolution Corporation. Subsequently, two TDs, Paul Murphy and Catherine Murphy, revealed in the chamber of Dáil Éireann the information which was the subject of the injunction.

O’Brien made a complaint regarding the two TDs to the Dáil Committee on Procedure and Privileges. The Committee determined that the TDs had not breached the relevant Dáil Standing Order. O’Brien issued High Court proceedings seeking judicial review of the Committee’s decision.

In the High Court (here),  Ní Raifeartaigh J found that:

… the utterances rendered the court proceedings almost entirely moot; that damage was undoubtedly done to the plaintiff; and that the release of the information appears to have been done in a deliberate and considered manner by the Deputies in question. This was as far from an accidental slip of the tongue on the floor of the House as one could imagine.

However, Ní Raifeartaigh J held that the Committee’s decision was not justiciable and dismissed proceedings. Ní Raifeartaigh J also held that the legal issue was not sufficiently novel to warrant a departure from the general rule that costs follow the event and awarded the State its costs against O’Brien.

O’Brien applied to the Supreme Court for leave to appeal directly to that court. The Court determined that:

… the case meets the criteria of general public importance and/or the interests of justice. … the matter is suitable for a direct appeal in that any clarification of the existing authorities (if clarification is required) should come from this Court. Further, it seems that the case concerns a single issue of law and its parameters would therefore be unlikely to be reduced by further analysis in the Court of Appeal.

The Court granted leave on the issues O’Brien raised: justiciability and costs. The Court stated that the case would be mentioned next along with Kerins v McGuiness (post) to determine whether the two cases should be heard together.

Supreme Court to revisit Gardaí’s power to handcuff suspected drink drivers

In these three determinations, DPP v Corrigan, Gannon and Pires, the Supreme Court granted the three appellants leave to appeal on two questions:

(a) Did the High Court and Court of Appeal correctly apply the scope and principles contained in s 2 of the Summary Jurisdiction Act 1851, as amended?

(b) Did the High Court and court of Appeal correctly apply the law as decided in DPP v Cullen?

 

Background

In DPP v Cullen (post) a three judge panel of the Supreme Court allowed Cullen’s appeal against his conviction for drink driving. The arresting garda had a policy of handcuffing all suspected drink drivers. Fennelly J held that the arresting garda acted unlawfully in handcuffing Cullen where he had not first formed the opinion that Cullen might resist arrest; therefore the evidence of intoxication retrieved afterwards was inadmissible (Hardiman J concurred and Clarke J dissented).

In these three cases the appellants raised the argument in the District Court that the arresting garda in each case had acted unlawfully in handcuffing them on arrest where they did not show signs of resisting arrest. In all three cases the arresting garda testified that the appellants were not agressive. But in the circumstances of the arrests they believed that handcuffing the appellants was necessary.

The District Court interpreted DPP v Cullen as authority that it is illegal to handcuff a suspected drink driver who did not resist arrest. And where that did occur the evidence recovered was inadmissible.

On appeal, the High Court reversed the trial judge’s decision on admissibility. Barrett J held that the trial judge had given insufficient latitude to the garda’s assessment of the necessity to use handcuffs in the circumstances of each case. The Court of Appeal upheld the High Court’s decision.

In seeking leave of the Supreme Court, the appellants argued that it was open to the trial judge to inquire into the objective reasonableness of the use of handcuffs. That the trial judge’s decisions were findings of fact, not a point of law. And an appeal from the District Court could only be made on a point of law. The Court determined that the appellants raised two issues of general public importance: the scope of an appeal under s 2 of the Summary Jurisdiction Act 1851, as amended; and the correct interpretation of DPP v Cullen—is the garda’s assessment of the necessity to use handcuffs an objective or subjective test?

New Chief Justice lays out important priorities for the coming Legal Year.

Today, Ireland’s new Chief Justice, the Hon Mr Justice Frank Clarke, addressed an audience of senior judges, lawyers, the AG and representatives of the legal professions and the Courts Services. And he has called for the voice of the judiciary to be heard in the ongoing debates about Judicial appointments and a Judicial Council.

The full text of the Chief Justice’s speech is available here: 2017 New Legal Year Statement. The Courts Services’ press release highlighted a number of topics that the Chief Justice addressed:

 

Judicial Council and Appointments – wholly appropriate that judges make their views known

He said that, “the Judicial Appointments Commission Bill will undoubtedly bring about significant reform in the way in which judges are appointed. The Judicial Council Bill will, for the first time, provide a proper framework for judicial training and ethics. The judiciary has long supported the principle of both of those measures – recognising the need for reform”.

The Chief Justice stated, “ I know of no jurisdiction in the world where it is not considered reasonable and appropriate for judges to make their views known in an appropriate way, in relation to proposed legislation which actually affects the judiciary itself. Obviously this legislation has the potential to affect the judiciary in a very significant way and it is, in my view, wholly appropriate that judges make their views known while recognising, of course, that legislation is ultimately a matter for the Oireachtas”.

 

Access to Justice – certain types of litigation are beyond the resources of many …….. requires a radical reappraisal to identify better ways of doing things

In his statement for the coming new legal year, the Chief Justice outlined his and the judiciary’s priorities for the coming twelve months. Addressing an audience of senior judges, lawyers, the AG, and representatives of the legal professions and the Courts Service, Chief Justice Clarke said that,

“ there is little point in having a good court system, likely to produce fair results in accordance with law, if a great many people find it difficult or even impossible to access that system for practical reasons. I emphasise the practical because there are few formal legal barriers to access to justice in the Irish legal system. But it has increasingly become the case that certain types of litigation are beyond the resources of many”.

He in particular welcomed the thorough review of the Courts Civil Procedures – being overseen by a committee chaired by the President of the High Court – as some court rules go back as far as 1870. He said that “ of course the fact that rules are somewhat venerable does not mean that they are necessarily no longer fit for purpose, but the experience of new experiments, such as the commercial court, has demonstrated that it often requires a radical reappraisal to identify better ways of doing things”.

 

Funding our Courts System: more investment and better use of resources needed

The Chief Justice noted the significant cuts to court funding during the recession – a cut much deeper than that experienced by other areas of public service and more severe than of the justice agencies. He emphasised that any new funding sought needed to go hand in hand with the proposed review of procedures and any changes recommended by that review, and also that the €44 million generated in court fees, accounts for 58% of total current spending.

He said, “my second priority is to engage with government with a view, hopefully, to persuading those concerned that there is a need for a significant increase in the back-up facilities available to judges – but in doing so to make it clear that I do not see increased back-up as operating in isolation from the need for better use of resources as part of an integrated plan”.

“In the overall context of resources I hope to continue to explore means whereby the case for resources for the Courts, which are after all the third arm of Government established by the Constitution, can be put more directly to the final decision makers. We cannot expect to write our own cheque but we can seek the most effective way to have our case heard”.

 

Review of Supreme Court procedures – following three years of the reformed court…

The Chief Justice announced that the Supreme Court has established a small group consisting of himself, and two other judges – in conjunction with the registrar of the Supreme Court – to conduct a thorough review of the new procedures adopted by the court three years ago, and make recommendations for any changes. The group will consult with the practising professions, and hopes to conclude the process in time that any changes can be implemented with effect from 1st January next. The completion and implementation of this review represents his third important priority for the coming year.

 

Paperless Courts: Realising the use of Technology in the Courts …… Recovering from under-investment … Plan this year to have Supreme Court online filing:

The Chief Justice said that “where a body such as the Courts Service has to operate on significantly reduced financial resources, it is unfortunate, but inevitable, that areas which can be cut will be cut. I.T. suffered particularly harshly in that way. All judges know that we operated for a time with software which was so out of date that it was not even tech supported”

“However we are now slowly returning to a situation where it will be possible to plan for the greater deployment of IT in the years to come…. It is important that the Supreme Court shows some leadership in this regard. With that in mind, I and my colleagues have agreed to a pilot project in which it is hoped that all applications for leave to appeal to the Supreme Court will be capable of being made and considered online”.

A working group consisting of judicial, administrative and IT personnel has been established to bring this project forward as a matter of some urgency. It will be one year before the project can be expected to go live – as a first step.

The Chief Justice said that “if it is seen to work, I can see no reason why all further stages of the appellate process could not be facilitated by online filing and, indeed, the use of IT to support oral hearings. In that latter regard it is worth mentioning that there was a successful experiment conducted in the recent past where an appeal was conducted entirely on the basis of all legal personnel and judges using only tablets. It is hoped to continue with the experimental use of paperless hearings”.

 

Accessing Judicial Resources for the Court of Appeal: clearly more appellate judges needed … as a matter of particular urgency.

The Chief Justice pointed out that “the Court of Appeal has put in place new and innovative procedures which do make the system more efficient. It is also abundantly clear that the workload of the individual judges of the Court of Appeal is, if anything, beyond what can reasonably be expected.”

He said there was “a need to secure an increase in the number of judges for the Court of Appeal”. In the some short term he has agreed with the court’s President, measures which may be able to be put in place which would have the effect of allowing the Supreme Court to assist with the current acute problem which the Court of Appeal faces.

“However, there is no doubt that the long term solution requires more judges. There are a number of reasons for this. First, there are more appeals today to the Court of Appeal than there were to the Supreme Court under the previous regime.

The criminal side of the work of the Court of Appeal is up to date. However, this achievement requires the allocation, typically, of four judges.

The six remaining judges have to deal with an increased civil appeal burden….. it is not difficult to see why there is a problem”.

“I would like to emphasise here my complete commitment to supporting that case for extra judges for the Court of Appeal, and also the commitment of my colleagues and I to assist in any exceptional, interim, short term measures which may be required.

Leaving aside altogether issues concerning the method of judicial appointment there is an urgent need to address at least some aspects of the shortfall in numbers in the appellate courts as a matter of particular urgency”.

 

Brexit:

A final point on BREXIT. “The Irish Supreme Court plays its role in many Europe wide judicial bodies which are frequently consulted by the Commission and by European legislators. It is always necessary to ensure that the common law position is understood to minimise the risk of unintended consequences. In the past we have, to an extent, been able to rely on the well resourced United Kingdom to take the lead. Post BREXIT Ireland will become the biggest common law jurisdiction and a much greater burden will fall on us to ensure that European measures proposed fit well into a common law system”.

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”.

 

Background

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.

Background

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.

 

Admissibility

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.

 

Background

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.

 

Background

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].

 

Background

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.

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