AG v Davis: Article 40.3 of the Constitution does not prevent extradition of sufferer of Asperger’s Syndrome

In this case, Attorney General v Davis, the Supreme Court found that the courts must consider the effect that incarceration in another jurisdiction will have on the psychological wellbeing of persons who are subject to an extradition request. But in this case Davis did not establish that the fact that he suffered from Asperger’s Syndrome should prevent the High Court from ordering his extradition to the US to stand trial on charges relating to narcotics trafficking, computer hacking and money-laundering.



Davis suffers from Asperger’s Syndrome and argues that, if extradited to the US, the conditions of his detention there would breach his rights under Article 40.3 of the Constitution and Article 3 of the ECHR.

In the High Court (here), McDermott J rejected that argument, stating:

145. I am not satisfied that the respondent has established that there are substantial grounds for believing that if extradited to the United States he will be exposed to a real risk of being subjected to treatment of an inhuman or degrading nature by reason of the conditions of confinement to which he will be subject and/or the fact that he has AS and suffers from depression and generalised anxiety with thoughts of self-harm and suicide prompted and exacerbated by a fear of isolation and separation if imprisoned in the United States.

Davis appealed the High Court’s extradition order to the Court of Appeal under s 29 of the Extradition Act 1965. S 29 limits an appeal from the High Court to a point of law. Davis argued that:

(i) The learned trial judge erred in deciding that surrender of the appellant for extradition did not give rise to a real risk of a violation of his Article 40.3 rights under the Constitution and of his rights under Article 3 ECHR.

(ii) The learned trial judge erred in deciding that the surrender of the appellant for extradition did not give rise to a real risk of a violation of his rights under Article 8 ECHR and his rights under Article 40.3.2 of the Constitution to the integrity of the human mind and personality.

The Court of Appeal (here) dismissed Davis’s appeal on grounds that his arguments challenged the trial judge’s finding of fact and did not involve a point of law, as required by s 29 of the 1965 Act.

Davis applied to the Supreme Court for leave to appeal the Court of Appeal’s decision.

Granting leave to appeal, the Supreme Court determined that Davis did raise a point of law of general public importance:

16. The situation with regard to this case is that there is a serious diagnosis. There is also a factual analysis in the High Court. An error of fact may in exceptional cases become an error of law. Constitutional protection may extend to stopping an extradition on medical or psychiatric grounds but, while many cases have been cited, there is not yet a definitive pronouncement on the particular circumstances.

The Court granted leave on the following issues (subject to possible modification during case management):

(a) whether issues of fact can ever be regarded as issues of law pursuant to s. 29 of the Extradition Act 1965, and in what circumstances such an issue of law might arise out of fact;

(b) whether the State is obliged to protect vulnerable persons suffering from mental illness under the Constitution within the context of an extradition application and the circumstances under which that duty is engaged so that an extradition request should not be granted;

(c) whether in this case the condition of Gary Davis is so severe in fact that, as a matter of law, he may not be extradited to the United States of America.


McKechnie J wrote the judgment for the Court. On the three questions approved by the Court for appeal, he stated:

123. In answer to the questions posed, it may be said, first, that issues of fact can sometimes be regarded as issues of law for the purposes of an appeal under section 29(5) of the 1965 Act, as amended. Such will occur in the circumstances set out earlier in this judgment, which has in effect reiterated well-known principles regarding the manner in which issues of fact may give rise to issues of law generally.

124. Second, the State is obliged under the Constitution to protect vulnerable persons suffering from mental illness within the context of an extradition application; indeed such duty extends to all persons, not just those suffering from mental illness. It is for the proposed extraditee to establish by evidence that there are substantial grounds for believing that if he were extradited to the requesting country he would be exposed to a real risk of being subjected to treatment contrary to Article 3 ECHR or equivalent fundamental rights under the Constitution.

125. Finally, having reviewed the evidence in its entirety, I am satisfied that McDermott J. was entirely justified in reaching the conclusion that Mr. Davis has not demonstrated such a risk, a conclusion which is objectively justified on the facts of this case. Accordingly, I would dismiss his appeal.


New Appeal: Did prison practice of slopping out amount to inhuman and degrading treatment?

In this determination, Simpson v Governor of Mountjoy Prison & Ors, the Supreme Court granted Simpson leave for a leapfrog appeal from the High Court:

  1. against the High Court’s refusal to make a declaration that the conditions of his detention in Mountjoy Prison amounted to inhuman and degrading treatment; and,
  2. against the High Court’s refusal to grant him an order for damages even though it made a finding that there had been a breach of his constitutional right to privacy and personal dignity.



Simpson was an inmate in Mountjoy Prison from February to September 2013. In July 2014 he issued High Court proceedings alleging that the condition of his detention amounted to inhuman and degrading treatment, that the practice of slopping out using a chamber pot in a multi-occupancy cell amounted to a breach of his right to privacy and dignity for his private life as guaranteed by Article 40.3.1 and 40.3.2 of the Constitution and Article 3 of the ECHR, and that the conditions of his detention amounted to a breach of his right to bodily integrity.

The High Court judgment (here) gives a summary of Simpson’s allegations, including:

(7) Due to double cell occupancy the dimensions of the cell breached the recommended minimum of 11sq. meters.

(8) There was no in cell toilet and running water in the cell.

(9) The chamber pot was too small to be used more than twice without being emptied. The Plaintiff had to urinate into empty milk cartons for this reason. He was obliged to defecate into a refuse bag because the chamber pot was too small for defecation. Urine would splash onto his feet and legs and onto the cell floor while urinating and defecating. He had to defecate on a newspaper placed on the floor of the cell.

(10) He had to plead with staff to let him out and was also denied access to the slopping out area as other inmates were using it. He did not have a set time when he was allowed out of his cell and he did not know in advance when he would be released and that he experienced stomach cramps while waiting.

(11) On occasion the Plaintiff was confined in a cell for 30 hours without being let out to the landing or yard. Exercise could be from 9am to 10am, one day, but the Plaintiff would not be released then to the following evening. On some occasions he was only let out for ten minutes to use the toilet. Sometimes he did not have time to slop out when released from lockup so bags and bins would be left in the cell for longer than a day.

(12) The Plaintiff would have to run to and from the toilets and slop out area as prison officers were anxious to speed up the process. The toilets were sometimes filthy and they were frequently blocked. There was usually urine on the ground in the cubicles and the whole toilet area stank terribly. The toilets and urinals were meant to be cleaned by inmates from D2 and D3 but this service was not reliable as the cleaners were usually heavy drug users. Sometimes the toilet area was so dirty that they refused to clean it.

(13) Showering was unpleasant due to atrocious conditions in the toilet and shower area. In June/July 13 the Plaintiff was twelve days without a shower. He could not walk in bare feet in the shower. Wash towels and bed sheets were not changed frequently enough and the Plaintiff used the same towel for a period of weeks for all purposes.

(14) the slopping out regime was very chaotic and the process itself was extremely unhygienic. The Slop hoppers were frequently blocked or were broken and urine and faeces spilled onto the floor. Disinfectant sprays were rarely provided and the Plaintiff had no time to clean pots and buckets properly.

(15) Inmates would on occasion empty chamber pots into sinks or down the shower.

(16) There was bad lighting in the shower and an atrocious smell and green mould in the ceiling. Water leaked from the roof and razor blades could sometimes be found sticking up. Walls were covered in dust and dirt. There were plastic bags and boxer shorts strewn on the floor and the downstairs shower area was filthy.

(17) the ventilation was completely inadequate and there was no air conditioning and little air circulating. It was freezing in winter time and stiflingly hot in summer and there was no window pane in some of the cells and inmates would use cardboard and duvets to block holes. The smell was overpowering when someone defecated and urinated in the cell.

(18) The washing facilities were inadequate, the water was easily contaminated and had to be filled from taps located directly over the slop hopper.

White J refused to make a declaration of inhuman and degrading treatment. He did make a declaration that slopping out in multi-occupancy cells breached Simpson’s right to privacy and personal dignity, but refused to make an award of damages, stating:

456. While the court sympathised with the Plaintiff in his distress about the conditions of his imprisonment which were unacceptable in many respects, he exaggerated the harshness of his conditions of imprisonment and frequently gave untruthful evidence. His credibility was seriously damaged in a fair, methodical cross examination.

457. The Court could not contemplate awarding the Plaintiff damages because of his untruthful and exaggerated evidence.

Simpson applied to the Supreme Court for leave to appeal directly from the High Court. The Court found that Simpson had raised three issues of general public importance:

  1. What are the overall arching principles by which it must be determined whether treatment of a prisoner amounts to inhuman and degrading treatment?
  2. What is the proper approach to weighing the positive and negative factors in reaching that conclusion?
  3. In what circumstances is it appropriate for a court to refuse an order for damages notwithstanding a finding that there has been a breach of constitutional rights?


The Court found that it was appropriate to approve a leapfrog appeal as there are potentially 1,600 similar cases, with proceedings commenced in approximately 1,000.


New Appeal: When can the Oireachtas provide for mandatory prison terms without trespassing on the judicial function?

In this determination, Ellis v Minister for Justice and Equality & Ors, the Supreme Court granted Ellis leave to appeal challenging the constitutionality of s 27A(8) of the Firearms Act 1964. The Court determined that the case raised the following questions of general public importance:


i) Whether, and in what circumstances, the Oireachtas can provide for mandatory terms of imprisonment without trespassing on the judicial function of administering justice in individual cases;

ii) Whether the ability of the Oireachtas to legislate for fixed penalties is only in breach of the separation of powers where the sentence fixed is disproportionately heavy;

iii) Whether a mandatory term of five years imprisonment in all cases of a second of subsequent offence under Section 27A of the Act is disproportionately heavy.



In the Circuit Court, Ellis pleaded guilty to possession of a firearm contrary to s 27A(1) of the Firearms Act 1964:

27A. — (1) It is an offence for a person to possess or control a firearm F27 [ or ammunition ] in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose, unless the person possesses or controls it for such a purpose.

Although Ellis had two previous convictions for carrying a firearm, the Circuit Court imposed a five year prison term, suspended in its entirety.

The DPP appealed the sentence to the Court of Appeal. Imposing a five year custodial sentence, the CoA held that the trial judge was bound by s 27A(8) of the 1964 Act:

(8) Where a person (except a person under the age of 18 years) —

( a ) is convicted of a second or subsequent offence under this section,

( b ) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,

the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.

In 2016, Ellis issued plenary proceedings in the High Court challenging the constitutionality of s. 27A(8). Twomey J dismissed those proceedings.

Following Deaton v The Attorney General and the Revenue Commissioners [1963] IR 170 and Lynch and Whelan v Minister for Justice [2012] 1 IR 1, the CoA upheld the High Court decision.

Ellis applied to the Supreme Court for leave to appeal under Article 34.5.3° of the Constitution.

New Appeal: Does the Constitution guarantee a citizen the right to reside in the State with their non-EU spouse?

In these determinations, Gorry v Minister for Justice and Equality and Ford v Minister for Justice and Equality, the Supreme Court granted the Minister for Justice leave to appeal on the question:

What is the the correct approach required of a decision-maker in relation to an immigration decision concerning a non-national spouse of an Irish citizen where the Irish citizen is relying upon rights conferred or protected by the Constitution (and in particular Article 41) and both spouses are relying on rights under Article 8 of the European Convention on Human Rights?



This appeal joins four cases with similar circumstances, the other two being ABM & Anor v Minister for Justice and Equality and Hussain & Anor v Minister for Justice and Equality. Each of the cases involves an Irish citizen who is married to a non-EU citizen. There is no question relating to the validity of the marriages.

Mr Gorry is an Irish citizen. Mrs Gorry is a Nigerian citizen who arrived in Ireland in 2005. She applied for asylum in her own name. That application was refused and an order for her deportation was issued in 2005. She remained in the State illegally. She met Mr Gorry in 2006. In 2009 they traveled to Nigeria to marry. Mrs Gorry applied for revocation of her deportation order based on the changes to her circumstances. That application was refused in February 2010. In 2010 Mr Gorry traveled to Nigeria to visit his wife, but he found the humidity difficult and had to return home. On return home, he suffered a heart attack, which required insertion of a coronary stent.

In November 2010, Mrs Gorry applied again for revocation of her deportation order on grounds of her husband’s health, which included a heart and a kidney condition. The Minister refused that application.

Among the reasons cited for the Minister’s decision were:

… it is not accepted that it has been shown that there are any insurmountable obstacles for Mr. Gorry to settle in Nigeria, or that treatment for his medical conditions would not be available there. In this regard, however, it is entirely Mr. Gorry’s decision whether he wishes to remain in the State and it is beyond question that this is a decision he is entitled to make. …

Having considered all the facts in this case, it is submitted that no exceptional circumstances arise in the case such that a decision to re-affirm the deportation order in respect of [Mrs. Gorry] would constitute a violation of Article 8. …

With regards to the rights of a non-national married to an Irish citizen or a person entitled to reside in the State, it is accepted that family rights under Article 41 of the Constitution arise. However, these rights are not absolute and may be restricted. As found by the Courts, there appears to be no authority which supports the proposition that an Irish citizen or a person entitled to reside in the State may have a right under Article 41 of the Constitution to reside with his or her spouse in this jurisdiction. Reference is made to the consideration of the position of the couple, as well as the rights of the State under Article 8 consideration above and the conclusions reached therein.

Mrs Gorry sought judicial review of the Minister’s decision.

In the High Court, Mac Eochaidh J granted Mrs Gorry an order of certiori quashing the Minister’s decision, finding, among other things:

Having reviewed all of these decisions, my view is that an Irish national married to a non-Irish national has a constitutional right to reside in Ireland with that other person, subject to lawful regulation. …

The starting point in any consideration where a mixed Irish and non-Irish nationality couple seeks to live in Ireland is that they have a prima facie right to do so by virtue of Article 41 of the Constitution. It is recalled that Article 41.3 pledges the State to guard with special care the institution of marriage. …

I fully agree with the decisions of the House of Lords and the Court of Appeal of England and Wales that the proper test to decide the contest between State rights and family rights, and in particular, to decide whether a national of a deporting or excluding State should join his or her partner in a third country is not assessed by reference to an insurmountable obstacles standard, but rather by applying the age-old and most reliable of legal standards in administrative law: is it reasonable to expect a spouse to join the removed or excluded spouse in his or her country of residence? Thus the respondent erred in law because he refused to revoke the Deportation Order on the basis of the failure to demonstrate the existence of an insurmountable obstacle to the second named applicant’s emigration to Nigeria to take up his family life with his wife. There is no such test. …



Court of Appeal

Upholding the High Court’s order, the Court of Appeal a different conclusion on the rights guaranteed under Article 41. Its judgment concluded:

(1) The Minister did not consider the constitutional rights of the applicants, Mr. and Mrs. Gorry, in accordance with law.

(2) Mr. Gorry as an Irish citizen does not have an automatic right pursuant to the Constitution to cohabit with his non-national spouse in Ireland. Such a constitutional right would appear to be contrary to the inherent power of the State to control immigration subject to international obligations. This is so even if one considers that any such constitutional right is a prima facie right or is not an absolute right and may be limited.

(3)However Mr. and Mrs. Gorry, as a lawfully married couple and a family within the meaning of Article 41, and Mr. Gorry as an Irish citizen, have constitutionally protected rights to have the Minister consider and decide their application with due regard to:

(i) the guarantee given by the State in Article 41.1.2 to protect the family in its constitution and authority;

(ii) a recognition that Mr. and Mrs. Gorry are a family, a fundamental unit group of our society possessing inalienable and imprescriptible rights which rights include a right to cohabit which is also an individual right of the citizen spouse which the State must, as far as practicable, defend and vindicate (Article 41.1 and Article 40.3.1)

(iii) a recognition that the decision that the family should live in Ireland is a decision which they have a right to take and which the State has guaranteed in Article 41.1 to protect; and

(iv) a recognition of the right of the Irish citizen to live at all times in Ireland as part of what Article 2 refers to as his “birth right . . . to be part of the Irish Nation” and the absence of any right of the State (absent international obligations which do not apply) to limit that right.

(4)The Constitution places corresponding obligations on the Minister to take the decision as to whether or not to permit the non-national spouse of an Irish citizen reside in Ireland with due regard to each of the above constitutional rights of the applicants. However, the Minister, in taking the decision, may also take into account other relevant considerations in accordance with the State’s interests in the common good.

(5) The “insurmountable obstacles” test set out by the European Court of Human Rights remains applicable to a consideration by the Minister (if necessary) of the application pursuant to his obligations under s. 3 of the European Convention on Human Rights Act 2003 having regard to Article 8 of the European Convention on Human Rights relating to deportation of the non-national spouse of an Irish citizen.


Supreme Court

Although Mr and Mrs Gorry have since separated and do not want to take part in further proceedings, the Supreme Court granted leave for a further appeal stating:


  1. It is the view of the Court that this is an appropriate case in which to grant leave to appeal. The proper approach of the Minister to be taken on an application for revocation or for a visa to enter the country in respect of a non-citizen married to an Irish citizen spouse is one which has resulted in inconsistent decisions in a number of High Court decisions. The High Court, in two of the cases referred to above, quashed the decision of the Minister and the Court of Appeal likewise concluded that the decisions of the Minister should be quashed in those two cases and in the third case, the Court of Appeal took a different view to the High Court leading also to a quashing of the Minister’s decision in that case. In the two cases where the appeal by the Minister was refused, the view taken by the Court of Appeal in regard to how the Minister should consider these issues was itself significantly different. In those circumstances, the Court is satisfied that this is an issue of public importance that requires to be clarified.
  2. The Court notes that there is an issue as to the mootness of this case. Given that the legal principles at issue on this appeal are identical to those raised in the Ford and A.B.M. appeals and in another appeal in a case, Hussain and Anor. v. The Minister for Justice and Equality, it is proposed to list the four cases together for case management. It would appear appropriate to deal with the four cases on the basis that one or possibly two of the appeals would be listed together for hearing whilst the remaining cases would be left to await the decision in the case or cases permitted to proceed. The question of which of the cases should proceed in the first instance will be a matter to be considered and determined at case management.

M v Minister for Justice & Equality: Unborn’s constitutional rights limited to Article 40.3.3°

In this judgment, M v Minister for Justice & Equality, a unanimous seven judge panel of the Supreme Court held that the Constitution does not guarantee any rights to the unborn other than as expressly guaranteed by Article 40.3.3°:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

The Court was assured that it is correct in that interpretation by reference to the qualifications to Article 40.3.3° inserted by the Thirteenth and Fourteenth Amendments:

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

The Court stated:

10.57 Given this clear objective, the terms of the two amendments are particularly revealing in the present context. It is stated in each case merely that “this subsection shall not limit” travel or the provision of information as the case may be. It is clear therefore that the constitutional text considered that the only relevant possible restraint on the provision of information in relation to termination of pregnancy or travel for such purpose was to be found in the terms of Article 40.3.3 and in particular the subsection introduced by the Eighth Amendment. This interpretation of the Constitution adopted by the People is inconsistent with the possibility of the existence of any constitutionally protected pre-existing right whether to life generally, or to any other possible natural rights of the unborn. If such rights were considered to exist prior to 1983 (and 1992) then in theory they could have been invoked and asserted to prevent the provision of information in relation to, or travel for the purposes of, termination. The conclusion must be that the only relevant right of the unborn in contemplation at the time of the Thirteenth and Fourteenth Amendments was that contained in Article 40.3.3 and accordingly it was only necessary to qualify that right to ensure freedom to travel or receive information. Even if, therefore, at some abstract level it was possible to argue that the Constitution may have been interpreted more broadly, the terms of the Thirteenth and Fourteenth Amendments make it clear that the Constitution must now be understood as guaranteeing the rights of the unborn in terms of Article 40.3.3 and not otherwise.



M is a Nigerian national who entered the State in 2007 and sought asylum. In 2008 his asylum application was rejected, as was his application for subsidiary protection. In October 2008 the Minister issued an order for M’s deportation. He remained in the State illegally. In 2015 M applied to the Minister to have the order revoked. One of the grounds stated was that M was the father of an unborn child who would be an Irish citizen. M argued that the Minister was obliged to consider the rights that the Constitution guaranteed to the unborn, such as the right to have its father present in the State. The Minister rejected that application. M applied to the High Court  for judicial review of the Minister’s decision. Humphreys J granted the orders:

(i) that leave be granted in accordance with the latest amended statement of grounds;
(ii) that there be a declaration that the Minister, in considering an application under s. 3(11) of the Immigration Act 1999, is required to consider the current and prospective situation of the applicant concerned insofar as relevant to that application, including the prospective position, likely to arise on birth, of any child of the applicant unborn at the time of the application;

(iii) that the remaining reliefs sought be refused; and

(iv) that the respondents’ undertaking not to deport the first named applicant continue until withdrawn in accordance with its terms, and that there be liberty to apply in the event that the respondents seeks to so withdraw it.

Although the child was born beforehand, in the course of his judgment, Humphreys J also held that the Constitution guaranteed rights to the unborn other than the right to life. He interpreted child within Article 42A to include the unborn. He stated:

In addition to these rights, other significant rights of the unborn child are recognised, acknowledged or created by common law or statute, in turn reflecting inherent natural and constitutional rights of the unborn which are implied by the constitutional order.

The State lodged an appeal of that decision with the Court of Appeal, while also applying to the Supreme Court for a leapfrog appeal. The Court granted that application as it determined that it was an issue of general public importance to clarify the extent of the rights that the Constitution guarantees to the unborn. And the exceptional circumstances criteria was established given that the Government was proposing to hold a referendum on whether to repeal Article 40.3.3° and there is an urgent need for clarity on whether the Constitution guarantees rights to the unborn other than in Article 40.3.3°.


Supreme Court 


In a single judgment issued by the seven judge panel, the Court allowed the State’s appeal in part, finding that the Constitution does not guarantee any rights to the unborn other than as expressly provided for in Article 40.3.3°. The Court rejected the proposition that the Constitution guaranteed the unborn natural law rights, citing the judgment in Information (Termination of Pregnancies) Bill 1995:

The Court does not accept this argument. By virtue of the provisions of Article 5 of the Constitution, Ireland is a sovereign, independent, democratic state.

The Court also rejected the argument that the right to life of the unborn was recognised in case law prior to the Eighth Amendment ( Magee v Attorney General, Norris v Ireland), holding, in line with authority, that any judicial statements to that effect were obiter.


On the broader issues relating to the facts of this case, the Court held:

(i) The Minister is obliged to consider the fact of pregnancy of the partner of a proposed deportee as a relevant factor in any decision to revoke a deportation order and is obliged to give separate consideration to the likely birth in Ireland of a child of the potential deportee.
(ii) Moreover the Minister is obliged to take account of the fact that an Irish citizen child will acquire on birth constitutional rights which may be affected by deportation.

(iii) The weight that the Minister must accord to these factors is not an issue in this case. It is not the case that the Minister, having considered these matters, is precluded from refusing to revoke the deportation order.

(iv) Accordingly the decision of the High Court on this aspect of the case was correct and the declaration made is upheld. It follows that the Minister’s appeal against that declaration will be dismissed.

(v) However, neither the common law cases and statutory provisions, nor the pre and post Eighth Amendment cases relied on, when analysed and understood, support the High Court’s conclusions that the unborn possesses inherent constitutionally protected rights other than those expressly provided for in Article 40.3.3.

(vi) The most plausible view of the pre Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was designed to remove. In addition the provisions of the two subparagraphs to Article 40.3.3 introduced by the Thirteenth and Fourteenth Amendments support the Court’s view that the present constitutional rights of the unborn are confined to the right to life guaranteed in Article 40.3.3 with due regard to the equal right to life of the mother.

(vii) While it does not alter the outcome of this case, the Minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3. It is accepted that the right to life is not implicated in the deportation (or revocation) decision in this case. The High Court determination in this regard is reversed.

(viii) The High Court determination that the unborn is a child for the purposes of Article 42A is also reversed.

(ix) The Court is satisfied that it is not necessary to address on this appeal any argument in relation to the status of the Family, which it was accepted was not part of the High Court reasoning in coming to its conclusion.

(x) Accordingly, the formal order of this Court will be to dismiss the Minister’s appeal and affirm the declaration made by the High Court.


Ben Clarke BL explains the developing jurisprudence on leave to appeal to the Supreme Court


Ben Clarke BL

Access to the Supreme Court under the New(ish) Constitutional Architecture

In the November 2015 edition of the The Bar Reviewi I examined some of the first Determinations delivered by the Supreme Court under the new constitutional architecture, which has been in place since the 33rd Amendment. In the article I considered what indications these Determinations provided regarding how both on-going and future appeals would be dealt with. In June 2016 I self-published a brief updateii regarding cross appeals in circumstances where the issues raised would not, on a stand alone basis, meet the constitutional threshold, were that party the appellant. In this article, three years into Ireland’s new appellate regime, I consider two further Determinations and one Judgment which add clarity to the following issues:

  1. What constitutes General Public Importance;

  1. What constitutes the Interests of Justice;

  1. Leave to appeal in the context of interlocutory matters, and;

  1. The relevant and / or applicable criteria when applying for leave for a Leapfrog appeal.

Each of these rulings represents the unanimous decision of a full seven judge Supreme Court. As such, each decision can be regarded as the definitive authority on the discreet procedural issues addressed therein.

General Public Importance

In BS v Director of Public Prosecutionsiii, by way of Determination dated 12th November 2017, the Supreme Court ruled on an application under Article 34.5.3° of the Constitution for leave to appeal to the Supreme Court form a Judgment of the Court of Appeal.

The Respondent, Mr. S, had been charged with a count of rape allegedly committed in 1970. Mr. S applied to the High Court for an order prohibiting his trial on the grounds of delay. This application was heard and refused by McDermott J. and thereafter was appealed by Mr. S. The majority decision of the Court of Appeal was delivered by Sheehan J. and held that Mr. S had established sufficient prejudice so as to give rise to a real risk of an unfair trial which could not be overcome by a delay warning, and that the case came within what he described as the “wholly exceptional circumstances category” identified in S.H. v DPPiv. On that basis the appeal was allowed and the trial was prohibited.

The DPP appealed claiming that the constitutional threshold was met by virtue of what was said to be a departure on the part of the Court of Appeal from the established jurisprudence in respect of delay in the criminal context. It was further claimed that some of the issues on which the Court of Appeal based its Judgment had not been the subject of the grant of leave to appeal. Furthermore, the Supreme Court noted that it was suggested, implicitly, that, having regard to the fact that the DPP is charged by law to bring prosecutions, an issue of general public importance arises where the Courts are called on to determine the circumstances in which the DPP is not to be permitted to proceed with a criminal prosecution.

The Supreme Court’s determination in BS provides valuable insight into when a prospective appeal can truly be said to concern the application of well established principles to the particular facts of the relevant proceedings. This is significant as such circumstances will rarely give rise to an issue of general public importance.

The Court noted that general principles operate at a range of levels. On one level there are matters at the highest level of generality which can be described as the fundamental principles applying to the area of law in question. In contrast, the Court noted, at a lower level there may well be established jurisprudence on the proper approach of a Court to the application of such general principles in particular types of circumstances which are likely to occur on a regular basis. The Court clarified the position, stating that:

The mere fact that, at a high level of generality, it may be said that the general principles are well established does not, in and of itself, mean that the way in which such principles may be properly applied in different types of circumstances may not itself potentially give rise to an issue which would meet the constitutional threshold”.

O’Donnell J. echoed this view in a later Judgment, which is considered in more detail below:

A principle may be generally accepted but stated at such a level of generality that the application of the principle in a particular type of case may itself be a matter of general public importance”v.

However, in BS, the Court clearly stated that this was subject to the general caveat that:

[T]he more the questions which might arise on appeal approach the end of the spectrum where they include the application of any principles which might be described as having any general application to the facts of an individual case, the less it will be possible to say that any issue of general public importance arises”.

The Court stated that the overall approach to leave is clear:

Unless it can be said that the case has the potential to influence true matters of principle rather than the application of those matters of principle to the specific facts of the case in question then the constitutional threshold will not be met”.

Interests of Justice

In Price Waterhouse Cooper (A Firm) v Quinn Insurance Limited (Under Administration)vi, by way of Judgment dated 12th December 2017, the Supreme Court provided significant clarity regarding the application of Article 34.5.3°(ii). The Court’s Judgment was written and delivered by O’Donnell J.

The Judgment was given in the context of an application for leave to appeal from a Judgment of the Court of Appeal made by the Defendants in the proceedings, PWCvii. The Court of Appeal had reversed the decision of the High Court in which Costello J. directed that the plaintiff, Quinn Insurance Limited, provide full and better particulars. Although, when delivered, the decision of the Supreme Court could constitute a significant authority regarding further and better particulars, the background details are not relevant for the purposes of this article.

O’Donnell J. noted that the parties had differed sharply in their interpretation of “the interests of justice” as referred to in Article 34.5.3°(ii). The Judgment goes on to provide a summary of the submissions made on behalf of PWC:

“…[I]t was contended that these were broad words of general application. They were words of indeterminate reference such as those often used in statutes or decisions like “fairness”, “reasonableness”, “non arbitrariness”, “clean hands” etc. It was argued that it was not possible to logically deduce from such terms what they were intended to cover, and it was a matter for the court in the light of their experience to interpret and apply the provisions”.

It was noted that the relatively broad terms of the constitutional amendment were contrasted with other possible limitations… to be found elsewhere. By contrast it was said that the wording of the Irish Constitution was much more permissive. Finally it was submitted on behalf of PWC that:

[I]t was necessary simply for the court to form an initial prima facie view as to the possibility of error in the court below, and that… would satisfy the interests of justice. While this might lead to much greater numbers of appeals than might have been anticipated, it was an inevitable consequence of the broad language employed in the Article”.

The Court roundly rejected the broad interpretation proffered by PWC. O’Donnell J. stated that such an interpretation ignored the fact that under the new constitutional architecture it is clear that the default position is that all appeals will be determined finally by the decision of the Court of Appeal… and that a further appeal to the Supreme Court will be exceptional. Under the broad interpretation argued for by PWC O’ Donnell J. noted that it would be pointless to require the court itself to grant leave for appeal since a court would in reality be limited to a consideration of whether an appeal could be said to be unstatable.

The Judge went on to state:

Furthermore, to afford an interpretation of this breadth to Article 34.5.3 (ii) would have the effect of rendering Article 34.5.3 (i) redundant. The argument also erodes any conceptual distinction between error and injustice. The fact that a court might make a decision which a further court might consider to be an error, does not itself establish injustice. Indeed, if there were no limit to the appeals which could be taken, that in itself might be considered an injustice”.

As with the approach adopted by the Court when defining other elements of the constitutional threshold within the new appellate regime, O’Donnell J. indicated that it was neither necessary nor possible at this stage to outline all the circumstances in which the court might consider that leave should be granted in the interests of justice. The Court did however make some broad observations, which are summarised below:

  1. Article 34.5.3°(ii) is best viewed as a “residual category”. If a decision does not involve a matter of general public importance, it may still be contended that it is in the interests of justice that it is necessary that there be an appeal to the Supreme Court. “[I]t is in the nature of the interests of justice criterion that it is sufficiently flexible to respond to the demands of the individual case”.

  1. Cross-appeals – “a point may be made by way of cross-appeal, which itself cannot amount to a matter of general public importance. Nevertheless it would be unjust to permit one party to appeal to the Supreme Court and restrict another party from cross-appeal because the respondent’s appeal point was not itself of general public importance”viii.

  1. Ancillary points – “a point may be raised in a case which itself may not be of general public importance but which is necessary to permit an appellant to argue, since otherwise determination of the issue of general public importance may not resolve the case”ix.

  1. New issues arising in the Court of Appeal – “A further example may be where the point the applicant seeks to advance relates to something which occurred for the first time in the Court of Appeal. It might be said in such circumstances that the interests of justice would be served by permitting an appeal to the Supreme Court even though the matter itself was not itself of general public importance”.

Leave to appeal in the context of interlocutory matters

In PWC v Quinn O’Donnell J. also made observations regarding applications for leave to appeal in the context of decisions arising in interlocutory matters.

The Court noted that the Constitution does not differentiate between an appeal after a full hearing and an appeal arising out of an interlocutory matter. As such the same test is to be applied in either case.

O’Donnell J. noted that:

Some interlocutory appeals may themselves raise classic issues of general public importance such as the appropriate test for the grant of an interlocutory injunction which will be applicable in every application for such an injunction”.

However, while acknowledging that there may be exceptions, the Court stated that it would normally be the case that it would be more difficult to establish that an interlocutory appeal contains an issue of general public importance or that the interests of justice are otherwise engaged. O’Donnell J. explained the reasoning behind this position:

[I]t is in the nature of interlocutory orders that they rarely set a course irrevocably and dictate the outcome of the case. Appeals in interlocutory matters inevitably delay trial, and accordingly appellate courts are reluctant to interfere with the management of a trial, preferring to see a trial concluded and if necessary appealed, unless it is clear that a distinct and critical issue has arisen that requires to be addressed in advance of the trial. It is to be expected that it will be relatively rare that this Court will consider that the constitutional threshold has been met in an interlocutory appeal”.

Leapfrog leave

In Wansboro v Director of Public Prosecutions and anorx, by way of Determination dated 20th November 2017, the Supreme Court ruled on an application under Article 34.5.4° of the Constitution for leave to appeal directly to the Supreme Court from the High Court Judgment of Faherty J.

At the High Court Mr. Wansboro claimed that by virtue of the Judgment of Moriarty J. in Moore & Ors v DPPxi, which found sections 99(9) and 99(10) of the Criminal Justice Act 2016 to be unconstitutional, a Circuit Court Order requiring him to serve reactivated sentences, or portions thereof, was invalid. In his application Mr. Wansboro claimed that an issue of general public importance arose in circumstances where the statutory provision upon which his sentence was reactivated was subsequently found to be unconstitutional. It was claimed that this gave rise to important questions regarding the extent to which previous orders made pursuant to those provisions could remain in force. Mr. Wansboro further claimed that in circumstances where there were extant two decisions of the Court of Appeal following the same reasoning as that adopted by Faherty J., there would be no useful purpose served by requiring that the default procedure of a first appeal to the Court of Appeal be followed. The State, the respondents in the application, argued that the matter involved the application of settled legal principles.

At the outset the Court reiterated what I have previously referred to as the Barlow Principlesxii:

  1. It is a precondition of Article 34.5.4° that the criteria applicable in an ordinary leave application must be satisfied in a leapfrog application, before any additional factors are considered. Therefore the court must be satisfied that the case involves a matter of general public importance or that there is some other reason requiring that the interests of justice be met by such an appeal, and;

  1. If the basic constitutional threshold of public importance or public interest is satisfied the Court must then consider the additional requirement that, in the words of Article 34.5.4°, there are exceptional circumstances warranting a direct appeal to the Supreme Court.

As with the Barlow Determination the Court stated that it was not possible to provide an exhaustive list of what might be considered exceptional circumstances, and restated the point that even in cases where it is likely that there will ultimately be an appeal to the Supreme Court, there will often be advantages to be gained from the filtering process of an intermediate appeal. Again the Court emphasised that the weight to be attached in this regard would vary depending on where a case fell on the spectrum from broad multi-issue appeals to single-issue appeals involving a legal issue clearly meeting the constitutional threshold.

In Wansboro the Court did however go further than it had in Barlow in providing examples of particular factors which point sufficiently strongly in favour of allowing a direct appeal to counterbalance the presumption in favour and advantages of an appeal to the Court of Appeal. In addition to reiterating the second example flagged in Barlowxiii, that notwithstanding the benefit of an initial appeal to the Court of Appeal, the element of temporal urgency could render a matter one appropriate for a leapfrog appeal, the court flagged two additional potentially exceptional circumstances:

  1. While it could not be a decisive factor in and of itself, in applications where the perceived advantages of an intermediate appeal to the Court of Appeal are not particularly strong in the circumstances of the case in question, then the fact that the hearing of two appeals might place a significant, or perhaps a more significant financial burden on one or both of the parties, may carry some weight.

  1. In addition to the general urgency that might arise when, as it was put in Barlow, a clock in the real world is ticking, the Court indicated that it may in certain circumstances, be appropriate to have regard to the need for a speedy determination of a legal issue which has the potential to affect many other cases and where uncertainty as to the law may be causing difficulties for other Courts.

Against these issues the Court once again stressed that notwithstanding the presence of an issue of general public importance, the filtering process of an intermediate appeal may in some circumstances lead to that issue falling away as a result of decisions reached in other elements of a case by the Court of Appeal.

The determination in Wansboro is also of interest due to the fact that the Court took the opportunity to draw attention to what it described as “certificate cases”, being cases where an appeal from the High Court to the Court of Appeal cannot be pursued unless the High Court has issued a certificate permitting such an appealxiv. It is notable that the Court considered this issue not withstanding the fact that Wansboro was not such a case. The Court referred to its Judgment in Gracexv, wherein the Court addressed the implications of the new constitutional architecture for such cases. As has previously been noted in The Bar Review, under the new constitutional framework the Supreme Court’s jurisdiction can be regulated, but it cannot be excludedxvi.

The question raised by the Court in Wansboro was the extent to which the fact that a party may not be able to appeal to the Court of Appeal by reason of the absence of a relevant certificate may provide the “exceptional” circumstances justifying a leapfrog appeal to… the Supreme Court. While the court expressly stated that this was an issue which it would deal with if and when the issue arises, it stated that its Determination in Grace could be regarded as an indication that the impossibility of pursuing an appeal to the Court of Appeal in a case where this Court was satisfied that the general constitutional threshold had been met may, at least in some cases, provide the appropriate exceptional circumstances justifying a leapfrog appeal.

The final point which can be derived from Wansboro is that in circumstances whereby previous and recent Court of Appeal decisions could reasonably be taken as suggesting an inevitable outcome for a prospective intermediary appeal, the Supreme Court may take the view that what is ordinarily gained by an intermediate appeal would be much less likely to arise in the circumstances of… such a case.


The decisions discussed above are indicative of the on-going growth of the new procedural jurisprudence that is quickly developing under Ireland’s new(ish) appellate regime.

i Appeals to the Supreme Court and the new Appellate Regime, The Bar Review, November 2015.

ii The New Appellate Regime – A brief update, McEnery -v- Commissioner of An Garda Síochána,

iii [2017] IESCDET 134.

iv [2006] 3 IR 575.

v Price Waterhouse Cooper (A Firm) v Quinn Insurance Limited (Under Administration) [2017] IESC 73. O’Donnell J. also noted that; “where an appeal seeks to challenge the application of the High Court or Court of Appeal of well established principles of law which are not themselves the subject of challenge… it will…be rare that this Court could be persuaded to grant leave to appeal”.

vi [2017] IESC 73.

vii It would appear to be the case that a Judgment, rather than a Determination, was delivered on the basis that there had been an oral hearing.

viii Also see McEnery -v- Commissioner of An Garda Síochána [2016] IESC 26 and The New Appellate Regime – A brief update, McEnery -v- Commissioner of An Garda Síochána,

ix This possibility had been flagged in the early Barlow Determination

x [2017] IESCDET 115.

xi [2006] IEHC 434.

xii Barlow & ors v Minister for Agriculture Food and Marine & ors [2015] IESCDET 8.

xiii The first was that the Court indicated that it was prepared to accept, at the level of principle, that there may be cases which solely due to the issues or questions involved would be rendered exceptional.

xiv The Court offered the example of appeals under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000.

xv Grace & anor v. An Bord Pleanala & ors [2017] IESC 10, see also the Determination in Grace & anor v. An Bórd Pleanála [2016] IESCDET 29.

xvi Shannon Michael Haynes BL, The impressive reach of a ‘leapfrog’ appeal, The Bar Review, June 2017.

What role do the courts have where a member of the Oireachtas breaches a citizen’s constitutional rights?

The Supreme Court will hear oral submissions this week (Thursday, 8th March) in two appeals relating to the remedies available through the courts–if any–to a private citizen, where a member of the Oireachtas has breached their constitutional rights.

The cases are Kerins v Deputy McGuinness & Ors and O’Brien v Clerk of Dáil Éireann. Both cases come direct from the High Court. The High Court held that both Kerins and O’Brien had suffered damage as a result of utterances by members of the Oireachtas. And although the Constitution guarantees to vindicate the personal rights of every person, the High Court held that the Constitution’s provision of privilege to the utterances made within the Houses of the Oireachtas and the constitutional principle of the separation of powers meant that it could not offer either claimant a legal remedy.

Article 15.12

All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.

Article 40.3

1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.


Kerins v Deputy McGuinness & Ors

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 (3 judges) 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.


O’Brien v Clerk of Dáil Éireann

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, Ní Raifeartaigh J held 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. She 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 for a leapfrog appeal. 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: the justiciability of decisions by the Dáil Committee on Procedure and Privileges; and costs.

CAB v Murphy: Proceedings under Proceeds of Crime Act 1996 cannot correctly be defined as in rem

In this judgment, Criminal Assets Bureau v Murphy, the Supreme Court held that assets seized under the Proceeds of Crime Act 1996 cannot correctly be defined as evidence; and proceedings for the seizure of such property cannot correctly be defined as in rem (against property).

Where an asset is seized for forfeiture under the 1996 Act in a manner alleged to be in breach of an individual’s constitutional rights, the issue for the court is not exclusion under the exclusionary rule. The question is whether a breach of rights has occurred which warrants that the court refuse an order for forfeiture.

133. Where the issue is raised, the Bureau must bear the burden of establishing on the balance of probabilities that (i) the asset was not seized in circumstances of unconstitutionality, or (ii) that, if it was, it is appropriate nonetheless to make the order sought. In the latter case it is for the Bureau to explain the basis upon which it contends that the order should be made, and to establish any facts necessary to justify such conclusion.



In 2009, Gardai searched Murphy’s home on foot of a warrant issued by a Garda Chief Superintendent under s 29 of the Offences Against the State Act 1939. £6,625 Sterling and €9,000 cash was recovered. CAB claims the cash is the proceeds of crime and sought an order for forfeiture under the 1996 Act. Murphy’s father, Murphy Snr, claims ownership of the Sterling.

In 2011, the Supreme Court held that s 29 of the 1939 Act was unconstitutional as it provided for the issuance of warrants without judicial oversight.

In the High Court Murphy Snr argued that, as the warrant was legally defective, CAB’s application should be dismissed under the exclusionary rule (evidence recovered in breach of constitutional rights is inadmissible in court). Granting CAB’s order, the trial judge rejected that argument holding that the proceedings were in rem, relating to the legal status of property rather than the guilt of an accused, and the exclusionary rule does not apply to proceedings in rem.

The Court of Appeal rejected Murphy Snr’s appeal on grounds that the exclusionary rule is not relevant where the cash is not being deployed as evidence in a criminal trial.


Supreme Court

The Supreme Court granted Murphy Snr leave to appeal on three questions:

Where a dwelling is entered other than in accordance with law, and that dwelling is not that of a person seeking to assert a constitutional right to the inviolability thereof, may evidence be excluded in proceedings concerning a person not dwelling therein?

Is there any rule of law requiring that evidence obtained in consequence of illegal entry into a dwelling should be excluded from civil proceedings, including proceedings in rem under the Proceeds of Crime Act 1996, as amended?

Is there any rule of law requiring the exclusion of evidence in civil proceedings obtained in consequence of a deliberate illegality, or a mistake amounting to an illegality, or in consequence of the deliberate and conscious violation of the rights of one of the parties?


Murphy Snr argued that the distinction between proceedings in rem and in personam provided no basis for different rules of evidence, and that the Court’s decision in DPP v JC is authority that the exclusionary rule is applicable to both criminal and civil cases.

CAB submitted that the exclusionary rule has no application to proceedings under the 1996 Act which are civil, in rem and sui generis; and that the cash is not evidence.

O’Malley J wrote the judgment for a unanimous five judge panel. She completed an extensive review of the case law on the development and application of the exclusionary rule. She concluded that its purpose is to protect important constitutional rights and values: the integrity of the administration of justice; to encourage State organs to comply with the law; and to protect and vindicate personal rights.

O’Malley J concluded that the exclusionary rule is not applicable to these proceedings under the 1996 Act, but the courts must protect the same constitutional values identified. And in some cases the breach of a third party’s rights may be so egregious as to justify the dismissal of proceedings under the 1996 Act.

O’Malley J outlined the applicable test where it is alleged that an asset was seized in unconstitutional circumstances:

133. Where the issue is raised, the Bureau must bear the burden of establishing on the balance of probabilities that (i) the asset was not seized in circumstances of unconstitutionality, or (ii) that, if it was, it is appropriate nonetheless to make the order sought. In the latter case it is for the Bureau to explain the basis upon which it contends that the order should be made, and to establish any facts necessary to justify such conclusion.


In the circumstances, O’Malley J allowed Murphy Snr’s appeal and remitted the case for rehearing in the High Court in light of the judgment in this case.


Rowan v Kerry Co Co: Supreme Court has some discretion to refuse leave to appeal even where there is an important issue of law

In Rowan v Kerry County Council the Supreme Court clarified that:

The effect of the 33rd Amendment is to grant the Supreme Court jurisdiction in appeals meeting the constitutional threshold, but there remains a residual question of whether it is appropriate to exercise that jurisdiction in any case. The amendment limits those cases which may be appealed to this Court: it does not compel the Court to exercise the jurisdiction in every case which satisfies the test appeal.



In 2012 the High Court rejected Rowan’s application for judicial review of a planning decision and made an order for costs against him. Rowan did not apply to the High Court for a certificate to appeal that decision to the Supreme Court, as would have been required by s 50 of the Planning and Development Act 2000.

In Grace & Sweetman v An Bord Pleanála the Supreme Court determined that the 33rd Amendment to the Constitution removed the Óireachtas’s power to restrict appeals from the High Court to the Supreme Court.

In 2017 Rowan applied to the Supreme Court for leave to appeal the 2012 High Court decision, arguing that the 33rd Amendment had retrospective effect. The Court refused to extend time for leave to appeal but determined that Rowan had raised an issue of public importance: the extent to which the 33rd Amendment can act retrospectively.

Dunne J (here) wrote the judgment for the unanimous five judge panel. She held that in the absence of a certificate for leave to appeal from the High Court the proceedings were at an end and could not be “resurrected by the happenstance of a constitutional amendment”.

In a concurring judgment (here), O’Donnell J addressed another issue which arose, which the Court had not clarified before: whether the Court has discretion to refuse leave to appeal where an appellant has otherwise met the constitutional threshold. Finding that the Court does have some discretion, he presented an example:

A mundane example may arise where in a particular case it is apparent that there may be an important issue of law, but it is neither clearly presented nor precisely identified so as to permit to the Court to have a clear hearing and determination of the issue. In such a case, it may be that the Court would decline to grant leave.

POI v Governor of Cloverhill Prison: Not necessary that detention order be headed “Warrant”

Here, POI v Governor of Cloverhill Prison, the Supreme Court held that:

1. It is not necessary for the document directing the detention of an individual pending deportation to have the word “Warrant” in its heading in order to be valid.

2. A certificate provided in an Article 40.4 enquiry may be amended, as can a warrant where there is an underlying valid basis such as a court order which would justify the detention of an individual. Where there is no other underlying valid basis for the detention other than the document relied on, as in this case, amendments should be confined to trivial errors or mistakes which could not cause any confusion as to the basis for the detention of the individual concerned. The warrant or other document justifying a detention cannot be corrected or amended if the ambiguity on its face reflects a more deep-seated confusion in the proceedings, such as where the true state of affairs is not reliably ascertainable from any source.

3. Consideration should be given to the possibility of a short stay or injunction to restrain deportation to enable the making of an application for leave to appeal to this court, where appropriate, on strict terms to ensure that any such application takes place within an appropriate time frame to facilitate all concerned.



The Governor of Cloverhill Prison was holding P pending deportation on a valid, unchallenged order for deportation. P issued Article 40.4.2° (habeas corpus) proceedings in the High Court. He alleged that the order for his detention was invalid, as it was headed “Notification of arrest and detention” instead of “Warrant of arrest and detention”. The High Court (Humphreys J) held that the warrant was defective but that the court had an inherent jurisdiction to permit the amendment of the document. The Governor amended the document heading to “Warrant of arrest and detention”, and Humphreys J held that P’s detention was legal.

The Court of Appeal dismissed P’s appeal and upheld the Governor’s cross appeal. It held that the original document was sufficient to justify P’s detention. It also upheld the High Court’s finding on its inherent jurisdiction to amend.

The Supreme Court determined that P had raised issues of general public importance which met the constitutional threshold for a further appeal to the Supreme Court and certified a number of questions:

1. Must the document required to justify the detention of an individual be headed as a “Warrant of Detention” in order to be valid ?

2. What is the nature of the power to amend a document providing for the detention of an individual relied on in answer to an enquiry under Article 40.4.2° of the Constitution and can a new warrant be provided in place of the original document relied on to justify the detention?

3. Can such new document be backdated to the date of the original detention of the individual or should it be regarded as being in addition to the original documentation provided by way of certificate rather than a substitution thereof?

4. What effect, if any, does backdating have on the validity of the documentation relied on and the steps taken to detain the applicant?

5. Finally, what is the jurisdiction of any Court to grant a stay or an injunction to restrain the deportation of an individual pending appeal when the underlying deportation order has never been challenged?

Dunne J wrote the judgment for a unanimous five judge panel.

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