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.

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.

New Appeal: Can ESB Chief Executive authorise company officers to perform statutory functions?

In this determination, Electricity Supply Board and Anor v Killross Properties Limited, the Supreme Court granted the ESB leave to appeal from the Court of Appeal’s decision in this case. The CoA held that the ESB Board unlawfully delegated its authority under s 9 of the Electricity (Supply) Act 1927 to its Chief Executive.

 

Background

The Electricity (Supply) Act 1927 states:

9. The Board may exercise any of the powers and perform any of the functions and duties (other than the making of orders) conferred and imposed on the Board by this Act through or by any of its officers or servants authorised by the Board in that behalf.

In 2012 the ESB contacted Killross seeking permission to enter its land to perform survey work. In 2013, after extensive communications between the parties, when permission was not forthcoming, an officer authorised by the Chief Executive issued a notice under s 53(3) of the Electricity (Supply) Act 1927 of its intention to enter Killross’s land.

The ESB also issued High Court proceedings seeking an order permitting entry to the land. Killross counterclaimed on grounds, among others, that the Chief Executive did not have legal authority to authorise the officer to issued the notice: that s 9 only permits the Board to authorise officers to issue such notices.

The High Court rejected Killross’s argument on grounds that it was not properly before the court and on its merits.

The Court of Appeal (here) overturned that decision, holding that s 9 did not permit the Board to confer power on the Chief Executive to authorise officers to perform statutory functions. That only the Board can authorise officers to perform statutory functions.

The Supreme Court determined that the case raised any issue of general public interest which any affect how other public bodies perform their functions. The Court certified two questions:

(a) whether s.9 of the Electricity (Supply) Act, 1927 and/or that Act as a whole permits the authorisation of the board of its chief executive to exercise its power under that section; and

(b) whether the issue raised at (a) above was properly before the High Court and/or the Court of Appeal.

And in a second determination (here), the Court granted Killross leave for a cross appeal on:

whether, in all the circumstances of the case and having regard to the evidence, the Electricity Supply Board was precluded from exercising its power under s 53 of the Electricity (Supply) Act 1927 as amended as a result of an infrastructure agreement with Eirgrid and having regard to the respective licences granted to both the Electricity Supply Board and Eirgrid by the Commission for Energy Regulation under s 14(1)(f) of the Electricity Regulation Act, 1999 as introduced by Art. 32 of the European Communities (Internal Market in Electricity) Regulation 2000 transposing the internal market in electricity directives.

New Appeal: Must the Minister consider Art 8 ECHR rights in decision to allow non EEA student to remain in the State?

In this determination, Luximon v Minister for Justice & Equality, the Supreme Court granted the Minister leave to appeal the High Court’s and Court of Appeal’s decisions that the Minister must consider constitutional family rights or Article 8 ECHR rights when deciding whether to allow a non-European Economic Area student to remain in the State.

 

Background

Luximon is a native of Mauritius. She entered the State in 2006 as a student. She was later joined by her two daughters. Her permission to remain in the State was renewed a number of times but expired in June 2012. At that time her solicitor applied for permission for her to remain in the State under s 4(7) of the Immigration Act 2004, which provides:

A permission under this section may be renewed or varied by the Minister or any Immigration Officer on his or her behalf on application therefor by a non-national concerned.

The Minister refused that application under the “student immigration rules” which allow a maximum stay of seven years.

The High Court, Barr J, quashed the Minister’s decision on grounds that Luximon’s rights under Article 8 ECHR were “capable of being engaged”; and holding that the Minister breached fair procedure in not publishing the criteria for consideration in an application for a change of immigration status. The Court of Appeal dismissed the Minister’s appeal.

Granting the Minister leave to appeal, the Supreme Court determined that, as there are many similar cases for determination by the Minister, the case raised a point of law of general importance:

Whether, under s 4(7) of the Immigration Act 2004, the Minister was under a duty to consider constitutional family rights or Article 8 ECHR rights, either generally, or in the circumstances of this case, in deciding such application?

NVH v Minister for Justice & Equality: Absolute ban on asylum seekers working is unconstitutional

Here, NVH v Minister for Justice & Equality, the Supreme Court held, in principle, that:

in circumstances where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s.9(4) ( and re-enacted in s.16(3)(b) of the 2015 Act ) is contrary to the constitutional right to seek employment [21].

 

Background

*** The judgments of the High Court and the Court of Appeal refer to the plaintiff in this case as NHV, the Supreme Court as NVH.

S 9(4) of the Refugee Act 1996 prohibits an asylum applicant from seeking or entering employment (s 16(3)(b) of the International Protection Act 2015 contains an almost identical prohibition).

NVH arrived in Ireland in 2008, from his native Burma. He immediately applied for asylum. Twice, the deciding officer and the Refugee Appeals Tribunal rejected his applications. And both times those decisions were quashed, in 2013 by the High Court and in 2014 by consent.

In 2013, NVH applied to the Minister for permission to take up an offer of employment. The Minister refused permission on grounds that it was precluded by s 9(4). Thereafter, NVH instituted High Court proceedings seeking a declaration that s 9(4) is incompatible with the Constitution and the European Convention on Human Rights.

In the High Court, McDermott J (here) refused NVH’s application. The Court of Appeal (here) rejected his appeal, Ryan P and Finlay Geoghegan J, Hogan J dissenting.

The Supreme Court determined that this case raised questions of law of general interest and granted a further appeal on three questions:

Where a non-national comes to the State and seeks refugee status, or subsidiary protection status does section 9(4) of the Refugee Act 1996, or any other provision of law, prohibit the Minister for Justice and Equality from granting permission to the person to work?

If there is such prohibition, is it nonetheless within the scope of governmental power to nonetheless grant permission to work pending the resolution of such an application?

If there is not within the scope of governmental power to grant permission to work pending the resolution of such application and if section 9(4) of the Refugee Act 1996 prohibits the Minister for Justice and Equality from granting such permission, is that prohibition consistent with the Constitution?

 

Supreme Court

 

O’Donnell J, writing for a unanimous seven judge panel, distinguished between constitutional rights that are attached to citizenship, such as the right to vote, and rights that attach to people “as human persons”. He held that the unenumerated right to work was of the latter category and, therefore, could be enjoyed by non-citizens [11]. On the nature of that right, O’Donnell J stated that it “implies a negative obligation not to prevent the person from seeking or obtaining employment, at least without substantial justification” [12].

On s 9(4), O’Donnell J stated that it would be difficult, if not impossible, to justify the application of such restrictions to citizens [13].

On the value of employment, O’Donnell J acknowledged that often “work is drudgery, often the subject of complaint rather than celebration, and most often an economic necessity as a means to live a chosen life rather than an end in itself” [15]. But the “right to work at least in the sense of a freedom to work or seek employment is a part of the human personality and accordingly the Article 40.1 requirement that individuals as human persons are required be held equal before the law, means that those aspects of the right which are part of human personality cannot be withheld absolutely from non-citizens” [17].

The State argued that there were strong policy reasons why the Court should dismiss NVH’s appeal. Experience demonstrated that when asylum applicants had the right to work it lead to a significant upsurge in applicants for asylum. And the policy decisions around the regulation of asylum seekers right to work should be left to the Government and the Oireachtas, “even by reference to a proportionality standard” [18].

But the Court could not disregard the disproportionate nature of s 9(4):

In this case the applicant was in the system for more than eight years, and during that time was prohibited from seeking employment. In my view, the point has been reached when it cannot be said that the legitimate differences between an asylum seeker and a citizen can continue to justify the exclusion of an asylum seeker from the possibility of employment. The damage to the individual’s self worth, and sense of themselves, is exactly the damage which the constitutional right seeks to guard against. The affidavit evidence of depression, frustration and lack of self-belief bears that out [20].

In conclusion, the Court held that where there is no limit to the time an applicant can spend in the asylum process, s 9(4)’s absolute prohibition on seeking employment is contrary to the right to seek employment.

 

Meath Co Co v Murray: Article 40.5 does not preclude demolition order for illegally constructed private dwelling

Here, The County Council of Meath v Murray & Another, the Supreme Court held that Article 40.5 of the Constitution does not preclude a court from granting an order (under s 160, Planning and Development Act 2000) for the demolition of a private dwelling, where there had been two conflicting High Court decisions on that issue.

Background

In June 2006, Meath County Council refused Murray planning permission to build a residence on land in County Meath which was zoned for agricultural purposes. Within six months of refusal, Murray completed the construction of a residence approximately twice the size of the proposed development for which the Council had refused permission. Murray had moved into the property by December 2006 and still lives there with his wife and young children.

The Council became aware of the development and wrote to Murray seeking an assurance that the development would be demolished and threatening enforcement proceedings if that request was not complied with.

In 2007 the Council and An Bord Pleanála both refused applications for retention of the development. In 2008 and 2009, respectively, the Council and the Bord both refused permission for retention of a scaled down development.

In June 2009, the High Court (Edwards J) granted the Council an enforcement order under s 160 of the Planning and Development Act 2000 requiring the demolition of the development and the restoration of the land to its previous condition. Edwards J allowed 24 months for compliance with the order. Murray appealed to the Supreme Court (pre Court of Appeal).

Between the High Court decision and the appeal hearing, the High Court delivered two conflicting judgments concerning how the High Court should exercise its discretion under s 160 of the Planning and Development Act 2000 with reference to the protections provided by Article 40.5 of the Constitution: Wicklow County Council v Fortune, (No 1) & (No 2) (Hogan J); and Wicklow County Council v Kinsella (Kearns P).

Article 40.5:

The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.

S 106 of the Planning and Development Act 2000:

(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

(2) In making an order under subsection (1), where appropriate, the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.

Previous jurisprudence established how the courts should act in s 160 applications:

  1. Granting an enforcement order is a discretionary power, Stafford v Roadstone [1980] ILRM 71. [74].
  2.  The High Court should exercise that discretion as would a court of equity, Avenue Properties Limited v Farrell Homes Limited [1982] ILRM 21.
  3. Any discretionary powers must be found within the parameters of s 160 itself, Mahon v Butler [1997] 3 I.R. 369.
  4. “whilst the court has power to make both interim and interlocutory orders, that power is not intended to absorb within the section general equitable principles” [78].

In Morris v Garvey [1983] IR 319, Henchy J stated:

It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance) as is ‘necessary to ensure that the development is carried out in conformity with the permission.

In Fortune, Hogan J determined that the recent Supreme Court jurisprudence in Damache v DPP [2012] 2 IR 266 necessitated a reassessment of the test from Morris v Garvey:

Of course, the proportionality at issue here is not simply proportionality in the narrow sense understood by Henchy J in Morris v Garvey of whether the breach of the planning laws is so insignificant that the demolition of the property would represent an excessive response to such a technical infraction, but rather proportionality in a broader sense of that term, namely, whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection can be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling. Hogan J, Fortune.

In that case, Hogan J overturned a Circuit Court order for the demolition of a wooden chalet that Fortune had constructed without planning permission close to a special conservation area.

In Kinsella, Kearns P took an opposing view to Hogan J, stating:

I see no basis at all for adapting or transposing observations made in the context of Damache into the completely different legal and factual matrix of unauthorised planning developments. Still less do I see any basis for introducing a new test, based on some ‘free-standing’ obligation under Article 40.5, to effectively set aside the considerable body of jurisprudence which already exists in relation to the discretionary application by the courts of enforcement procedures under Part VIII of the Act.

Appeal

Murray appealed on a number of grounds, but McKechnie J (writing for a unanimous five judge panel) identified the significant issue as Murray’s reliance on the Fortune decision and the conflict between the High Court decisions in Fortune and Kinsella.

Addressing the Fortune judgment, McKechnie J stated, “I am readily prepared to accept that Article 40.5 of the Constitution is not confined to criminal law or its procedural surrounds. It must, at the level of principle, have an application in civil law” [118]. But he believed that Hogan J had read too much importance into Damache and recalibrated the test from Morris v Garvey in a way which gave too much weight to the development being a dwelling. Such considerations, however phrased, are part of every appeal against demolition, but cannot, however forceful, preclude a court from granting a demolition order [130]. That a structure is a dwelling is but one factor that a court must consider. And a court must also consider if a dwelling has been constructed in flagrant breach of planning law [129]. And where such is the case, the authorities show that a demolition order is within the range of available remedies [128].

The Court upheld the High Court order allowing 12 months for full compliance.

MJ&E v O’Connor: No breach of Art 40.1 that leagl aid in European Arrest Warrant cases is not provided for by statute

Here, the Supreme Court (O’Donnell J writing) rejected O’Connor’s argument that the State’s failure to provide legal aid on a statutory basis to the subjects of European arrest warrant applications would breach his rights under Article 40.1 of the Constitution.

 

Background

In December 2006, Blackfriars Crown Court convicted O’Connor on two counts of tax fraud. The court released O’Connor on bail pending sentencing. When he did not attend court on the sentencing date in January 2007, the court sentenced him, in his absence, to two concurrent sentences of four years and six months.

In June 2011 the UK issued a European arrest warrant seeking O’Connor’s surrender from this jurisdiction. The High Court endorsed that warrant. Gardai arrested O’Connor and brought him before the High Court.

At trial, O’Connor objected to his surrender on grounds that the provision of legal aid to EAW subjects breached Article 40.1’s guarantee of equality before the law. He argued that he would qualify for legal aid under the statutory legal aid scheme, but that scheme was not applicable in EAW cases. (The State does provide legal aid for EAW cases under the Attorney General’s Scheme, but O’Connor did not apply for aid under that scheme.) He argued that as the AG scheme is an administrative scheme which allowed the AG to refuse to honor the court’s recommendation, the scheme discriminated between persons subject to a warrant for surrender to the International Criminal Court (who would qualify under the statutory scheme) and persons subject to an EAW.

The Legal Aid Board gave evidence that it would consider itself bound by a recommendation by the High Court that legal aid be provided. The High Court (Edwards J here) rejected O’Connor’s argument but certified a question for the Court of Appeal:

Is it correct that Article 11.2 of the Framework Decision (on the European Arrest Warrant) in conjunction with Article 47 of the EU Charter and the general principles of EU law imposes no obligation to provide legal aid, whether as of right or otherwise for indigent respondents in EAW cases that do not have the skill to represent themselves?

 

Here, in a two/one split decision, the Court of Appeal dismissed O’Connor’s appeal. Ryan P and Irving J upheld both the High Court’s decision; Hogan J dissented in part. Hogan J stated the opinion that the distinction made by the State between the provision of legal aid on an administrative basis for EAW cases, and the provision of legal aid on a statutory basis under the International Criminal Court Act 2006, breached the right to equality before the law as guaranteed by Article 40.1 of the Constitution. He also stated “the failure on the part of the Oireachtas to ensure that persons facing surrender requests under the 2003 Act had the same rights by law to legal aid as they would if facing trial on indictment in this state for corresponding offences amounts to a breach of Art. 40.1”.

 

O’Connor applied to the Supreme Court for leave to appeal. In its determination (here), the Court certified two questions for appeal:

(a) Whether, in the plenary proceedings, the determination as to unconstitutional inequality suggested in the dissenting judgment of Hogan J. represents the law and, if so, whether any such inequality established would render an order of surrender in the EAW proceedings inconsistent with the Constitution; and

(b) Whether, in the EAW proceedings, it is necessary or appropriate to refer a question of European law to the Court of Justice concerning the fact that legal representation for the purposes of defending an application for surrender under the 2003 Act is provided by means of an administrative scheme rather than (as in, for example, the relevant provisions in respect of the International Criminal Court) a statutory scheme.

 

Supreme Court

O’Donnell J outlined that the Constitution requires a broader provision of legal aid than is provided by statute, Carmody v MJELR [2010] 1 IR 635, [16]. However, rejecting the constitutional challenge, he stated that “Article 40.1 requires equality, not identity, of treatment” [20]. Once equal standards of legal assistance is provided it does not breach Article 40.1 that it may be provided by different means in different circumstances.

Dismissing this appeal, O’Donnell J stated that “there may be merit in placing the entire area [provision of legal aid] on a comprehensive statutory footing” [25]. However, “[i]t has not been established that any issue of European law arises in the fine distinctions that exist between the provision of legal aid under the 2013 regulations and the 1962 Act [24].

Sunday Newspapers v Gilchrist & Rogers: Inherent jurisdiction for in camera hearing: interests are particularly important and necessity is truly compelling

Here, the Supreme Court held that:

Where the Oireachtas has not seen fit to legislate for the possibility of a hearing in camera, then the court should only exercise an inherent jurisdiction to depart from a full hearing in public where it is shown that the interests involved are particularly important, and the necessity is truly compelling.

 

Background

Rogers and Gilchrist issued High Court defamation proceedings against Sunday Newspapers. The articles complained of named one of the plaintiffs as a garda handler for the witness protection scheme and the other as a doctor who assessed witnesses for the scheme and alleged that they had an affair.

The Commissioner applied to be joined as notice party and sought that proceedings be conducted in camera. The Commissioner submitted that evidence may relate to “issues of public, national importance, and the protection of life and the interests of State security and public safety”, CoA [3]. The High Court joined the Commissioner and granted her orders restricting the reporting of evidence from the trial. The Commissioner and Sunday Newspapers both appealed that decision to the Court of Appeal.

Article 34.1 0f the Constitution states:

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

In In Re R Ltd [1989] IR 126 the Supreme Court interpreted Article 34.1 very narrowly. In the majority judgment, Walsh J held that “law” in Article 34.1 means legislation enacted since 1937.

In Irish Times & Ors v Ireland & Ors [1998] 1 IR 359, the Supreme Court recognised that the courts have jurisdiction in some exceptional circumstances to direct that criminal trials be conducted otherwise than in public, even in the absence of legislative provision.

Allowing the Commissioner’s appeal, the Court of Appeal (here) applied a balancing test between the rights protected by Article 34.1 and other rights protected by the Constitution, such as the right to life, State security and public safety.

The Supreme Court granted Sunday Newspapers leave to appeal that decision.

 

Supreme Court

O’Donnell J wrote the judgment for the Court. Dismissing Sunday Newspapers’ appeal, O’Donnell J found that “Irish Times v Ireland establishes that the courts retain power, not dependent on legislation, to limit the extent to which a case is heard in public” [25], and set out the criteria for exercising that jurisdiction:

(i) The Article 34.1 requirement of administration of justice in public is a fundamental constitutional value of great importance.

(ii) Article 34.1 itself recognises however that there may be exceptions to that fundamental rule;

(iii) Any such exception to the general rule must be strictly construed, both as to the subject matter, and the manner in which the procedures depart from the standard of a full hearing in public;

(iv) Any such exception may be provided for by statute but also under the common law power of the court to regulate its own proceedings;

(v) Where an exception from the principle of hearing in public is sought to be justified by reference only to the common law power and in the absence of legislation, then the interests involved must be very clear, and the circumstances pressing. Here that demanding test is capable of being met by the combination of the threat to the programme and the risk to lives of people in it or administering it. This is not a matter of speculation, but seems an unavoidable consequence of the existence of a witness protection programme.

(vi) While if it can be shown the justice cannot be done unless a hearing is conducted other than in public, that will plainly justify the exception from the rule established by Article 34.1, but that is not the only criterion. Where constitutional interests and values of considerable weight may be damaged or destroyed by a hearing in public, it may be appropriate for the legislature to provide for the possibility of the hearing other than in public, (as it has done) and for the court to exercise that power in a particular case if satisfied that it is a case which presents those features which justify a hearing other than in public.

(vii) The requirement of strict construction of any exception to the principle of trial in public means that a court must be satisfied that each departure from that general rule is no more than is required to protect the countervailing interest. It also means that court must be resolutely sceptical of any claim to depart from any aspect of a full hearing in public. Litigation is a robust business. The presence of the public is not just unavoidable, but is necessary and welcome. In particular this will mean that even after concluding that case warrants a departure from that constitutional standard, the court must consider if any lesser steps are possible such as providing for witnesses not to be identified by name, or otherwise identified or for the provision of a redacted transcript for any portion of the hearing conducted in camera.

Applying those principles to this case, O’Donnell J stated that “the public interest in the functioning of the Witness Protection Programme and the consequent protection of the lives of participants in it and officers and staff mean that the court’s power to control its own powers must extend to departing from a hearing in public in this case at least to some extent” [45].

 

Court’s conclusion

46 This appeal raised a single issue of principle. On that issue I would dismiss the newspaper’s appeal and would uphold the order of the Court of Appeal, but on substantially different and narrower grounds. However it remains open to the parties to address the trial court on these matters in the light of the development of the case and is a matter which in any event the trial judge should keep under review. I would therefore affirm the order of the Court of Appeal that the trial in this case may be heard otherwise than in public, with liberty to the parties and any other media organisation to apply to the trial judge to limit or vary that order either in general, or in relation to specific issues or aspects of the case. Finally I should say that the Court directed that this appeal be heard in public and this judgment has not been subject to redaction in any way.

New Appeal: Does the Constitution protect the mentally ill from extradiction?

In this determination, Attorney General v Davis, the Supreme Court granted Davis leave to appeal the Court of Appeal’s decision not to prohibit his extradition to the United States of America to stand trial on charges relating to narcotics trafficking, computer hacking and money-laundering.

Background

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.

CFA v McG: Habeas corpus can be an appropriate remedy in childcare proceedings where there has been a fundamental breach of justice

shutterstock-2918689-630x420Here, the Supreme Court upheld the High Court’s judgment granting McG a writ of habeas corpus against the District Court’s order placing her children in the CFA’s care. The Court held that an application under Article 40.4.2° of the Constitution (habeas corpus) was appropriate as the District Court had breached McG’s constitutional right to fair procedure in the custody hearing.

Background

This case began in the District Court, where the Child and Family Agency (CFA) was seeking an interim care order for two children. The children’s mother (McG) and father (JC) both suffered from drug addiction. Their relationship was chaotic and often violent. And McG and the children (14 and 5) had no settled home. But the children were in no immediate danger. Legal aid was provided to McG on the morning of the hearing. The solicitor provided only had a few minutes to meet the mother and did not have time to review the social worker reports on which the application was based. JC was awaiting legal aid. The parties agreed to seek a one week adjournment to allow the legal aid solicitors to prepare. However, the judge had read the CFA’s submission and refused the application for an adjournment. She made an order transferring custody of the children to the CFA.

McG brought a High Court habeas corpus application under Article 40.4.2º of the Constitution seeking an order that her children were unlawfully detained.

In the High Court, Baker J (here) ordered the release of the children, stating:

50. I am satisfied that the order was not lawfully made and was made without affording an opportunity to the applicants to fully engage with the evidence. Because the question before the District Court related to the day-to-day relationship and care of the children by their mother, and the ongoing contact between the children and their mother, the frailty in the making of the order impacts on its validity in a way that failed to engage the welfare of the children and their place in a family unit.

The CFA applied to the Supreme Court for a leapfrog appeal, bypassing the Court of Appeal. Granting leave to appeal, the Court determined that the CFA had met the applicable constitutional threshold. The Court certified one question:

Where children are made subject to an interim care order under section 17 of the Child Care Act 1991 requiring “that the child named in the order be placed or maintained in the care of” the applicant Child and Family Agency, are such children ever subject to a habeas corpus remedy under Article 40.4.2º of the Constitution as being “unlawfully detained”?

Supreme Court

MacMenamin J wrote the judgment for the majority of the seven judge Court; only Charleton J dissentedand only in part.

The CFA argued, among other things, that habeas corpus proceedings are ill-suited to childcare issues and transfer of custody is not detention. Such proceedings are limited to orders for detention issued without jurisdiction, and McG should have appealed the decision on merits.

MacMenamin dismissed those arguments. Firstly, there is long held Supreme Court authority permitting the use of Article 40 proceedings in child custody proceedings, most recently in N v HSE [2006] IESC 60. Secondly, the order was comparable to detention, as the children were placed under the complete control and supervision of the CFA and were not free to leave. And thirdly, this is a case where the order was issued in breach of a fundamental breach of fair procedure and was therefore without jurisdiction.

MacMenamin J stated in conclusion:

  1. In the instant case, the practical vindication of the rights of parents warranted an appropriate, proper and effective level of legal representation in the District Court proceedings permitting real engagement therein. The situation which arose in this case, although undoubtedly motivated by proper intentions, unfortunately amounted to a denial of the constitutional rights of the parents. As a matter of fair procedures, both respondents had the right to meaningfully engage in the proceedings. This necessitated effective legal representation for both parents. In the absence of such fair procedures and natural justice, the hearing was not in accordance with law.
  1. In holding that Article 40 is appropriate, in these exceptional circumstances, where there has been a denial of constitutional justice, I would not wish to be taken as, in any way, derogating from the clear observations of this Court made in Ryan or Roche (Dumbrell). I would hold that a constitutional application of s.23 requires that the orders of the Court be effected in a constitutionally compliant sequence, vindicating, where so required, in the first instance, the right to liberty by an order for release, and second, if necessary, by an ancillary order under s.23 of the Act, protecting the welfare of children. I would entirely deprecate the usage of Article 40 proceedings in routine inter-parental care disputes. Moreover, the duty of the court hearing such an application is always to have the welfare of children as the paramount consideration.

O’Donnell J issued a concurring judgment (here).

Charleton J dissented (here). He believed that the parents had not established that the District Court issued the order without jurisdiction, stating:

  1. Finally, and concurring with the majority, habeas corpus applications in child care and custody cases are not to be encouraged. In the event that matters are not ready to proceed and in the event that the applicant consents to an adjournment but the District Court having read all the papers considers that the children are in danger, then evidence can be called which may justify the making of an emergency care order on an application by the Child and Family Agency. It was the failure to prove that these children were not in such danger when the District Court made its determination that required this dissent, which is essentially one as to the failure of the mother and father to prove that the judge dealing with the case of these children at first instance was so much in error as to be a failure of jurisdiction.
%d bloggers like this: