New Appeals: Supreme Court grants leave to appeal in three cases under the interests of justice criterion

In these determinations, ML v Minister for Justice and Equality & Ors, JCM v The Minister for Justice Equality and Law Reform & Ors and VJ v The Minister for Justice and Equality & Ors, the Supreme Court granted the Minister an extension of time and leave to appeal in these three cases. Although the Court determined that the Minister had not raised an issue of general public importance, it determined that the cases met the constitutional threshold for leave to appeal under the interests of justice criterion, Article 34.5.3° (ii). The Court stated:

Given the length of time that these proceedings have been in being, there is in the Court’s view a strong interest in having all the issues in these proceedings determined and brought to finality in one court if possible.

 

Background

The Respondents in these cases entered the State seeking asylum (in ML’s case, that was 2008). The Minister refused in all three cases and also refused their applications for subsidiary protection. All three sought judicial review of the Minister’s decisions on numerous grounds.

In a separate case, MM v Minister for Justice & Equality & Ors, the High Court (Hogan J) made a reference to the CJEU on whether the Minister was obliged to provide the applicant with a draft of the decision to refuse subsidiary protection so that the applicant could comment on it prior to conclusion of the process. The CJEU answered that question in the negative but made other observations on the subsidiary protection regime. Based on those additional observations, Hogan J granted MM an order of certiori quashing the Minister’s decision on grounds that the Minister had not granted MM an oral hearing in relation to the application for subsidiary protection. The Minister appealed that decision to the Supreme Court. The Supreme Court found it necessary to make a further reference to the CJEU for clarification. Following the CJEUs decision, the Court allowed the Minister’s appeal (judgment).

In the period between the High Court’s and the Supreme Court’s decisions in MM, the High Court (McDermott J) dismissed the grounds of appeal argued by the Respondents in this case. But, following Hogan’s precedent, he granted them orders of certiori quashing the Minister’s decisions on the ground that the Minister had not granted them an oral hearing. The Minister appealed those decisions to the Supreme Court. The Respondents lodged appeals against some of McDermott’s findings. Following the 33rd amendment to the Constitution those cases were transferred to the Court of Appeal.

After the Supreme Court’s decision in MM, the Minister applied for leave to appeal direct form the High Court in these cases. The Respondents argued that the Minister had not raised an issue of general public importance, that these cases involve the application of the Court’s decision to the facts of these cases.

Granting leave to appeal in the interests of justice, the Court stated:

These proceedings which when commenced sought relief on 14 grounds have now splintered into separate cases at different stages in different courts. Given the length of time that these proceedings have been in being, there is in the Court’s view a strong interest in having all the issues in these proceedings determined and brought to finality in one court if possible. Accordingly all the cases should be heard together. If this appeal was to proceed in the Court of Appeal, there is a possibility that the proceedings could become further fragmented and their prosecution increasingly complex and tortuous. Accordingly, the Court has concluded that it is in principle desirable to grant to the Minister leave to appeal to this Court … the Court considers in such circumstances, it is appropriate to indicate that the respondent should be entitled to cross appeal against all or some of the decision of the High Court insomuch as the learned High Court judge dismissed the other grounds upon which leave had been granted [10].

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Sweetman v An Bord Pleanála: collateral attack jurisprudence only applies where an earlier decision is intended to be final

In Sweetman v An Bord Pleanála & Ors the Supreme Court held that “collateral attack jurisprudence should only be deployed to prevent a substantive case being heard in circumstances where it is clear, on a proper analysis of the relevant scheme, that an earlier decision taken at some point in the process in question is intended to be final and definitive concerning the issue in question”.

 

Background

In Commission v Ireland (Case C-215/06) the Court of Justice of the European Union held that the Irish system of granting retention of planning permission was not in compliance with the Environmental Impact Assessment Directive (Directive 85/337) as it permitted the granting of permission without a prior environmental impact assessment.

56 In addition, the grant of such a retention permission, use of which Ireland recognises to be common in planning matters lacking any exceptional circumstances, has the result, under Irish law, that the obligations imposed by Directive 85/337 as amended are considered to have in fact been satisfied.”

57 While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the conditions that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.

 

The Government amended the Planning and Development Act 2000 to provide for “gateways” through which developers could apply for substituted planning permission.

In this case, Donegal County Council identified a quarry operated by the notice party, Houston, as requiring substituted permission and issued a notice to that effect. Houston applied to An Bord Pleanála for substituted permission. The Bord granted permission.

Sweetman applied to the High Court for judicial review of that decision. He argued that the Bord did not consider if there were exceptional circumstances in the case to warrant a grant of substituted permission, and that such a consideration is required by the CJEU decision in Commission v Ireland. The State sought to have Sweetman’s application struck out on grounds that it was a collateral attack on the Council’s earlier decision.

The High Court dismissed the State’s application, holding that the Bord was only body that could consider the issue of exceptionality. The Court of Appeal upheld that decision on appeal. The Supreme Court granted the State leave to appeal.

 

Supreme Court

Clarke CJ wrote the judgment for a unanimous five judge panel. He concluded that it was not necessary to resolve whether the Bord is required to consider if there are exceptional circumstances. That is the substantive issue for the High Court should the judicial review proceed. The issue was whether the case should proceed. Clarke CJ reviewed the jurisprudence on collateral attack and concluded:

8.1 For the reasons set out in this judgment I would conclude that the collateral attack jurisprudence should only be deployed to prevent a substantive case being heard in circumstances where it is clear, on a proper analysis of the relevant scheme, that an earlier decision taken at some point in the process in question is intended to be final and definitive concerning the issue in question. In such a case it will follow that an attempt to challenge the validity of the earlier decision, as grounds against the validity of a subsequent decision in the same process, outside of the time limit for challenging the original decision, amounts to an impermissible out of time collateral challenge to the decision earlier made and is in breach of the principle of legal certainty.

8.2 However, for the reasons already noted, such a course of action is only appropriate in a clear case. For the reasons set out earlier in this judgment I am not satisfied that this is such a clear case. Rather it is a case where it is necessary to determine at least some of the substantive issues which would arise in these proceedings in order properly to analyse the scheme as a whole and determine at what point, if any, the question of individual exceptionality must be assessed. It follows that this is the kind of case where the answer to the question of whether a challenge such as that brought by Mr. Sweetman amounts to an impermissible collateral challenge requires a consideration of the substantive issues which arise in the proceedings in any event. For those reasons I would uphold the decision of both the High Court and the Court of Appeal to the effect that the substantive proceedings should go ahead.

AAA v Minister for Justice: No right to an appeal, on merits, of Minister’s decision to refuse subsidiary protection

In AAA v Minister for Justice, the Supreme Court held that:

1. judicial review is an effective remedy providing “a thorough review” of the Minister’s decision to refuse subsidiary protection (NM v The Minister for Justice, Equality and Law Reform [2016] IECA 217, Hogan J); and,

2. “as a rule” there is no right to an oral hearing in an application for subsidiary protection where there has already been oral hearings in relation to an application for asylum (Case C-277/11, MM v Minister for Justice, Equality and Law Reform, 22 November 2012).

 

Background

In 2007, A arrived in the State from Nigeria. She was pregnant and was accompanied by her two other children. The Applications Commissioner refused her application for asylum. And the Refugee Appeals Tribunal refused her appeal for lack of credibility of her evidence but advised her of her right to apply to the Minister for Justice to remain in the State on humanitarian grounds (subsidiary protection). The Minister refused A’s application.

A applied to the High Court to commence judicial review proceedings on grounds that, firstly, where the Minister refuses an application for subsidiary protection there should be a right to a full judicial appeal on merits and the law. And secondly, that there is no effective examination of an application where the Minister does not hold an oral interview. Cooke J granted leave on more limited grounds: that the Minister’s deportation order is invalid as he did not personally consider the application. McDermott J refused A’s application.

This appeal is against Cooke J’s decision not to grant leave on the broader grounds applied for. As the appeal was lodged in 2012 (prior to the creation of the Court of Appeal), it came direct from the High Court and was heard by a three judge panel.

 

Supreme Court

Charleton J wrote the judgment of the Court (Dunne J and Hogan J both concurred). He reviewed the case law on the limitations of the remedy of judicial review, and the recent developments of its application in asylum cases. He pointed out that since Meadows v Minister for Justice the Courts have applied a proportionality test when examining the reasonableness of the decision under challenge. Any decision which effects rights should be proportionate to the objective to be achieved. And he followed the analysis Hogan J in NM v The Minister for Justice, Equality and Law Reform where the Court of Appeal held that judicial review, post-Meadows, is sufficiently flexible to provide a thorough review as required by Article 39 of the Asylum Procedures Directive (2005/85/EC).

And on the right to be heard, the Supreme Court resolved that issue in the recent case of MM v Minister for Justice Equality and Law Reform, where the Court made a preliminary reference to the CJEU on:

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

The CJEU answered:

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

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

New Appeal: Did the Superior Court Rules Committee act ultra vires in restricting time to apply for certiorari?

In this determination, O’S v Residential Institutions Redress Board & Ors, the Supreme Court granted O’S an extension of time to apply for leave and granted leave for a leapfrog appeal direct from the High Court. The two questions for appeal are:

1. Can a change in jurisprudence on s 8(2) of the Residential Institutions Redress Act 2002 (extending time to apply for redress) be grounds for an extension of time for leave to appeal?

2. Did the Superior Court Rules Committee act ultra vires, creating an impermissible restriction on the right of access to the Courts, by restricting the High Court’s discretion to extend time to apply for certiorari under Order 84 Rule 21(3)(b)(i) and (ii)?

 

Background

In 2008, O’S made an application to the Redress Board for treatment he received in an industrial school. Under s 8(1) of the 2002 Act, the statutory period to apply for redress expired in 2005. In 2012, the Board refused O’S’s application for an extension of time under s 8(2) of the 2002 Act. In 2014, O’S requested a consideration of that decision. Later that year, the Board replied that it had exhausted its statutory function. In 2015, O’S requested that the Board reconsider its decision in light of a Supreme Court decision on the Board’s overly narrow interpretation of s 8(2) of the 2002 Act.

In 2016, O’S applied to the High Court for judicial review of the Board’s 2012 decision to refuse an extension of time. In that application, O’S also sought a declaration against the Superior Courts Rules Committee and the Minister for Justice that Order 84 Rule 21(3)(b)(i) and (ii) are an impermissible restriction on the right of access to the Courts.

Order 84 Rule 21 states:

 

Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:—
(3) (a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either—
(i) were outside the control of, or
(ii) could not reasonably have been anticipated by the applicant for such extension.
In 2017, the High Court (McDermott J) dismissed O’S’s application. O’S applied to the Supreme Court for leave for a leapfrog appeal.
Supreme Court
As there are ten similar cases which stand adjourned before the High Court, and as Order 84 has general application, the Court determined that O’S had met the constitutional requirement that an appeal raises a legal issue of general importance. And as the Redress Board is required to be dissolved once this case is finalised (plus the ten similar cases), and as an appeal to the Court of Appeal will not narrow the issues to be resolved, the case met the constitutional requirement of presenting exceptional circumstances warranting a leapfrog appeal from the High Court.

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.

YY v Minister for Justice & Equality: Supreme Court will review Minister’s decision to deport convicted terrorist

In this determination (YY v Minister for Justice & Equality), the Supreme Court granted YY leave for a leapfrog appeal from the High Court decision to allow his deportation to proceed, due to the exceptional circumstances of the case. YY was previously imprisoned for planning terrorist actsincluding in Ireland. But, if deported to his home state, he faces the risk of treatment contrary to Article 3 of the European Convention on Human Rights (prohibition of torture).

 

Background

YY is a native of “Country X”, which sentenced him, in his absence, to three life sentences and two death sentences for serious terrorist offences. In 1997, YY arrived in Ireland and applied for asylum under a false name. The Refugee Appeal Tribunal (RAT) granted him refugee status and travel documents.

In 2005, a French court sentenced YY to eight years imprisonment for preparing terrorist acts in Ireland, England, France, Spain and Andorra. France also refused to grant him refugee status. In light of this, the State revoked YY’s refugee status in 2011.

YY re-entered Ireland and applied again for refugee status or subsidiary protection. The Commissioner refused. On appeal, the RAT stated that “there was a personal, present, foreseeable and substantial risk of serious harm by the [Country X] authorities”, but rejected YY’s appeal on grounds of his offending behaviour.

In a 2009 case, the ECtHR prohibited the deportation of a Country X citizen on grounds that there was a real risk that that state’s authorities would breach his Article 3 rights. But, ordering YY’s deportation, the Minister cited up to date material showing that conditions in Country X have evolved.

In he High Court, Humphries J (here) held that that decision was within the range reasonably open to the Minister. Humphries dismissed YY’s judicial review challenge and refused to certify an appeal to the Court of Appeal.

YY applied to the Supreme Court for leave for a leapfrog appeal.

The Court determined that this case did raise issues of general interest and that the High Court refusal of an appeal to the CoA provided the exceptional circumstances to meet the constitutional threshold for a leapfrog appeal.

The Court approved the following questions for appeal:

(i) Where a Minister orders deportation of an individual and relies on country of origin material which is generally available to conclude that return of an applicant to a country would not be a breach of s.5 of the Refugee Act 1996, and/or that there are no substantial grounds for considering that there is a real risk that the applicant will be subjected to treatment contrary to Article 3 of the Convention, is the Minister required to notify the applicant of the said material and invite submissions upon it?;

(ii) If the Minister is under such an obligation, is it satisfied, or otherwise affected, by the fact that an applicant was provided with the reasons for the making of a deportation order, including the reference to the said material, and is entitled to apply for a revocation of that order (and did so)?;

(iii) Given that in comparable cases the ECtHR or other reputable national immigration authorities, or in the particular case, the Refugee Appeals Tribunal, have made findings that there is a real risk on substantial grounds, if a person in a comparable circumstance or the applicant in this case are returned to Country X that they will suffer a treatment which is a breach of Article 3 of the Convention, did the reasons provided by the Minister for (i) making the deportation order under s.3(1) and (ii), refusing to revoke the deportation order under s.3(11) of the 1999 Act, provide a sufficient lawful basis for the said decision?

New Appeal: Court grants “interests of justice” appeal from a High Court decision

In this determination (FG v The Child and Family Agency), the Supreme Court granted FG leave to appeal directly from the High Court, as the Court determined that the constitutional interests at stake and the interests of justice raised in the case met the constitutional threshold for an appeal. (This may be the first such appeal since the 33rd Amendment).

 

Background

The preliminary proceedings which led to this appeal are complex. In October 2014, the District Court placed FG’s three children in the CFA’s care and ordered that the CFA will determine FG’s access to her children. In February 2015, the Circuit Court rejected an appeal to those orders. The CFA decided to allow FG supervised access for a brief period on Christmas Day, Easter and on each child’s birthday.

In July 2015, FG applied for judicial review of the Circuit Court decision. By this stage she was representing herself. The High Court, Noonan J, dismissed that application, as it was not within the time period allowed for a judicial review application. FG did not apply to the court for an extension of time.

In January 2016, FG applied again to the High Court for judicial review. She informed the court that her solicitor and barrister had advised her, at the time of the Circuit Court decision, that she had six months to seek judicial review of the decision. Humphreys J adjourned the proceedings to allow FG to notify the CFA of the application and to apply again to the CFA for increased access.

In February 2016, the CFA notified FG by letter of its decision not to increase her access to her children.

At the adjourned date, Humphreys J granted FG an extension of time to appeal the care orders and leave to appeal the 2016 letter refusing increased access. Humphreys held that, as FG did not apply to Noonan J to extend the time for an application, it was open to him to grant an extension. And as FG was introducing new evidence (legal advice on time) and seeking other reliefs (review of letter) it was open to him to grant leave for a full hearing of the issues.

Humphreys held that FG had raised an arguable case that the Circuit Court order leaving access entirely at the CFA’s discretion was unlawful and that the 2016 letter was amenable to judicial review.

Humphreys also held that his decision on the extension of time was a final order which could not be challenged. The CFA appealed that decision to the Court of Appeal. The CoA allowed that appeal and amended Humphreys’ order so that all issues could be argued at trial.

The Court’s determination outlines the issues raised at the full hearing:

  1. It is clear from the judgment that counsel for the CFA made submissions on a broad range of issues, including an assertion that where a care order is in place, the court has no further function in regulating access. At the same time it was argued that the letter of the 27th February was not amenable to judicial review, and that the applicant had failed to exhaust her remedies in that she had not availed of the right to apply in the District Court for a variation of the care orders or variation of access. It was also argued that, having regard to the ruling of Noonan J. in refusing leave, the matter was res judicata and/or an abuse of process.

  1. In dismissing the application, Heneghan J. ruled that the applicant had not utilised the provisions of the Childcare Act which permit the District Court to review access. She agreed with the submission that the refusal to extend the access arrangement conveyed by the letter of the 27th February, 2016, did not constitute a decision amenable to judicial review. She also accepted the res judicata argument and held that the decision of Noonan J. was final.

 

The Supreme Court determined that the case met the constitutional threshold for an appeal under the interests of justice provision introduced under the 33rd Amendment to the Constitution. The issues certified are:

  1. whether Humphreys J was entitled to grant an extension of time and leave to seek judicial review, or whether the refusal by Noonan J to grant leave to seek judicial review rendered the matters raised by the applicant res judicata;
  2.  whether the letter of the 27th February, 2016, contained a decision amenable to judicial review; and,
  3. whether this Court should remit the matter for full hearing on the substantive issues identified by Humphreys J [FG had raised an arguable case that the Circuit Court order leaving access entirely at the CFA’s discretion was unlawful and that the 2016 letter was amenable to judicial review].

 

ED (Education) v Refugee Appeals Tribunal: Complete denial of education is persecution, but …

In this case, the Supreme Court held that “a complete denial of education” could constitute persecution for the purposes of s 2 of the Refugee Act 1996. However (here), Clarke J, writing for the five justices, allowed the State’s appeal against the High Court judgment by Hogan J (ED v The Refugee Appeals Tribunal [2011] 3 IR 736) that the Refugee Appeals Tribunal (RAT) “erred in law in its construction of what constitutes persecution” in the circumstances of this case.

In the High Court, Hogan J allowed ED’s appeal against the RAT’s refusal to grant refugee status. Hogan J held that as the RAT had found that there was a real risk that ED (a minor) would not receive even a basic education if deported to Serbia, it was bound by that evidence to find that that represented persecution under s 2 of the 1996 Act.

In the Supreme Court, Clarke J set out the grounds for allowing the State’s appeal:

1. Although the RAT found that there was some risk that ED “would not receive even a basic education, that risk was multi-factorial and could not be either exclusively or predominantly regarded as being due to state action” [6.17];
2. that the RAT’s finding was not unreasonable (judicial review standard) on the information available to it [6.20]; and,
3. on that basis, the trial judge was incorrect in his conclusions [6.21].

Denham CJ, O’Donnell, Laffoy and Charleton JJ concurred. Charleton J issued a concurring judgment (here) with observations relating, among other things, to whether denial of education can amount to persecution. Denham CJ, O’Donnell and Laffoy JJ concurred.

 

Background

In 2006, ED was born within the State to parents of Serbian Askhali ethnicity. The Askhali are regarded as Roma in Serbia. In 2009, the RAT refused ED’s application for refugee status. That decision was appealed by way of judicial review to the High Court. There it was claimed that ED would suffer persecution on a number of grounds if deported to Serbia. In 2011, Hogan J delivered judgment in the High Court allowing ED’s appeal on the sole ground that, as the RAT had found that there was a real risk that ED would not receive basic education if deported to Serbia, it was bound to find that this amounted to persecution or the purposes of s 2 of the 1996 Act. The State sought leave to appeal to the Supreme Court.

 

Appeal

The High Court certified a point of law of exceptional public importance for appeal to the Supreme Court (pre-33rd Amendment). The questions certified were:

(a) Whether discrimination against the group to which a child belongs giving rise to a risk that the child would not get a basic education if returned to his country of origin must be found to amount to persecution within the meaning of Section 2 of the Refugee Act, 1996?

(b) Whether the High Court on an application for judicial review can substitute its own assessment of whether the contended for infringements of basic civil liberties amounted to “persecution” within the meaning of Section 2 of the 1996 Act for that of the Tribunal Member?

(c) Whether the potential denial of a basic education is capable of constituting its sufficiently severe violation of basic human rights so as to amount in law to persecution?

On (a), Clarke distinguished between laws that directly prevented persons of a defined ethnicity from obtaining an education and circumstances which cold contribute to a person not obtaining an education. The first could constitute a denial of rights so fundamental as to meet the threshold of persecution [6.12].

On (b), Clarke J stated “a court’s function is to determine whether the facts, as found by the administrative body, can be sustained on judicial review principles. It is not normally the function of a court to make its own findings of fact except, …” [6.3].

On (c), Charleton J cautioned that a compete denial of education must be shown before it could be capable of constituting persecution [4, 5]. And, as Clarke J stated, it would also be necessary to show that the laws of the state in question directly (and solely) prevented that denial of education.

 

Court’s Observations

Both judgments pointed out that the Court’s jurisdiction was restricted to the legal issues of the case. But the Court expressed its concern that ED is a 10 year old child who was born and has lived his entire life within the State, and there are very real humanitarian concerns which the justices, speaking personally, wished that the relevant authorities would take into account.

McEnery v Garda Commissioner: Garda’s conviction for assault is not a self-evident reason for summary dismissal

In this judgment (here), the Supreme Court unanimously held that, for the purposes of Regulation 39 of the Garda Síochána (Discipline) Regulations 2007 (here), the fact that Garda Sergeant McEnery had been convicted of assault under s 2(1) of the Non-Fatal Offences Against the Person Act 1997 (here) was not a self-evident reason for the Commissioner to summarily dismiss her from the force. Natural and constitutional justice requires that the Commissioner give adequate reasons for decisions of that nature, which would enable the High Court to review the legality of such decisions.

Background

In 2011, Waterford Circuit Court convicted McEnery of assault contrary to s 2 of the 1997 Act. The trial judge sentenced her to four months imprisonment, suspended for six months. The Court of Criminal Appeal upheld that conviction.

Although McEnery had a clear disciplinary record otherwise and had received commendations on a number of occasions, the Garda Commissioner served her with notice of his intention to summarily dismiss her pursuant to Regulation 39 of the 2007 Regulations, on grounds that she was unfit for retention in the force. In accordance with Regulation 39, the Commissioner allowed McEnery the opportunity to submit reasons why she should not be dismissed.

McEnery submitted that other gardai had been convicted of assault but were allowed to remain in the force; that the Commissioner had not considered the full facts but had relied on the fact of conviction; and that if the Commissioner held an inquiry into her case, she could provide evidence that would affect the decision relating to her dismissal.

Subsequent to McEnery’s submission, the Commissioner informed her that he was not prepared to alter his decision and was proceeding to seek the Minister for Justice’s permission to dismiss her from the force.

McEnery issued judicial review proceedings seeking an order of certiorari quashing the Commissioner’s decision. She argued that the Circuit Court conviction did not absolve the Commissioner from conducting his own inquiry.

 

High Court

Kearns P (here) dismissed McEnery’s application. He held that, although summary dismissal power was unusual and exceptional, it is not for the courts to decide what behaviour warrants dismissal of a garda: that is a matter for the Commissioner and the Minister. McEnery appealed that decision to the Court of Appeal.

 

Court of Appeal

Overturning the High Court decision, the Court of Appeal (here) held that the plain wording of Regulation 39 require that the material facts and the breach of discipline both merit dismissal. The Supreme Court granted the Commissioner permission to appeal that decision (here).

 

Supreme Court

Laffoy J summarised the issues as:

(a) Whether the decision of the Commissioner as proposed in the Regulation 39 Notice of 24th December, 2012 and confirmed in the letter of 25th March, 2013 is ultra vires Regulation 39 by being in breach of the requirements of Regulation 39(2)(a) by reason of the reliance by the Commissioner solely on the conviction of Sgt. McEnery in the Circuit Court and the sentence imposed on her as material to the breach of discipline and of the failure of the Commissioner to consider any other facts which it is contended on behalf of Sgt. McEnery are material facts for the purpose of the proper application of Regulation 39(2)(a).

(b) Whether the decision of the Commissioner should be quashed on the ground that the Commissioner failed to give adequate reasons for his decision in accordance with either –

(i) the requirements of Regulation 39, or

(ii) the principles of natural and constitutional justice.

(c) Whether Sgt. McEnery has established that the decision of the Commissioner contravened natural and constitutional justice in treating Sgt. McEnery in a manner which is discriminatory and disproportionate in comparison to the treatment of other members of An Garda Síochána who have been convicted of assault.

On issue (a), Laffoy J rejected the Court of Appeal finding that the Commissioner must consider the material facts relating to the conviction and could not rely solely on the fact that McEnery was convicted of the offence. But she qualified that by stating:

it must not be overlooked that on an objective analysis of the gravity of the breach of discipline based on the nature of the offence which was the subject of the conviction, a relevant factor may be a comparison with the nature of a more or less serious offence of which the member might be charged and convicted or acquitted [44].

On issue (b), Laffoy J held that it would be utterly meaningless to provide a mechanism for an affected garda to make a submission if the Commissioner was not required to give consideration to any submission made and to give reasons for rejecting such submissions [62].

Allowing McEnery’s appeal, Laffoy J stated:

it cannot be said that the issue involved in this case is so self-evident and narrow that the mere fact of the decision discloses the reason. Accordingly, I consider that the decision of the Commissioner to dismiss Sgt. McEnery should be quashed on the ground of failure to give adequate reasons for the decision [65].

On issue (c), Laffoy J held that, on the facts presented, McEnery had not established that the Commissioner had treated her in a manner which was discriminatory in comparison to other cases.

 

Buckley v District Judge Hamill: Gardai have no discretionary power to postpone execution of a warrant where the whereabouts of the person is known

Here, the Supreme Court held that, it is a prerequisite of Order 26 rule 11 of the District Court Rules (re-issue of a warrant for the non-payment of a fine) that the warrant was not executed because the person could not be found. And the onus is on gardai to prove that the person could not be found. Aside from where an appeal has been lodged, and except in only limited circumstances, gardai have no discretionary power to postpone execution of a warrant if the whereabouts of the person is known; although a garda may make appropriate arrangements to execute a warrant at an arranged time. The power to imprison for non-payment of a fine lapses if the fine is paid.

Background

Bucley was the subject of 12 committal warrants for non-payment of fines relating to road traffic offences committed in 2007. The District Court Judge re-issued the warrants on two occasions, in 2008 and 2009.

Order 26 rule 11 of the District Court Rules (mirroring the language of s 33 of the Petty Sessions (Ireland) Act 1851) provides that where the person charged with executing the warrant:

is unable to find the person against whom the warrant has been issued or to discover where that person is or where he or she has goods, such person having the execution of the warrant shall return the warrant to the Court which issued the same (within such time as is fixed by the warrant or within a reasonable time, not exceeding six months where no time is so fixed) with a certificate (Form 26.4, Schedule B) endorsed thereon stating the reason why it has not been executed, and the Court may re-issue the said warrant, after examining any person on oath if the Court thinks fit so to do concerning the non-execution of the warrant, or may issue any other warrant for the same purpose from time to time as shall seem expedient.

On the first occasion of re-issue, Garda O’Keeffe certified that he did not execute the warrants as Buckley lodged an appeal, but he was seeking re-issue as she did not proceed. On the second occasion, Garda Rowland certified Buckley’s address, that she was aware of the existence of warrants and that her solicitor had given assurance of her surrender if the warrants were re-issued.

In January 2010, Buckley issued judicial review proceedings seeking an order of cetiorari against the District Judge’s decision to re-issue the warrants. The High Court refused Buckley’s application; she appealed to the Supreme Court.

Buckley argued that there is no discretion to postpone the execution of a warrant and no general power to re-issue a warrant. The Petty Sessions Act and Order 26 provide the only grounds for re-issue: the person could not be found. There is no record of any evidence before the District Court that Gardai made any enquiries about Buckley’s whereabouts. And as a matter of fair procedures, she should have been put on notice of the application for re-issue.

O’Malley J wrote the judgment for the three judge panel and followed the Supreme Court decision in Brennan v Windle [2003] 3 IR 494. In that case, Brennan was arrested for committal on foot of a re-issued warrant. In subsequent judicial review proceedings, the Court ordered his release as there was no record (or secondary evidence) that gardai certified that they were unable execute the first warrant. Hardiman J held that “[a] person who holds a warrant which has expired is not entitled, as of right, to have it reissued, but only on proof of particular matters”. Geoghegan J held that:

If the certificate, contrary to what is asserted, never existed, then the reissue of the warrant was invalid and the order should clearly be quashed. There is a clear requirement under the rules that there be a certificate before the judge, to whom the application for reissue is made, certifying the reasons.

Allowing Buckley’s appeal in this case, O’Malley J held:

  1. Apart from a case where an appeal has been lodged there is no statutory discretion to postpone execution where the whereabouts of the person are known, at the request of that person or otherwise (save perhaps for a limited period in exceptional circumstances). This does not, of course, mean that such warrants may not be executed by appropriate arrangement between the garda and the person concerned.
  2. It is, therefore, a prerequisite to the renewal of a warrant that it has not been executed because the person cannot be found. If the Court is not satisfied of that fact it should refuse to renew the warrants. Since that criterion was manifestly not satisfied in this case, it follows that the renewals were invalid.

MacMenamin J and Laffoy J concurred.

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