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.

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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: On An Bord Pleanala’s duty to give reasons for its decisions

In this determination, Connolly v An Bord Pleanala, the Supreme Court granted the Bord leave for a leapfrog appeal from a decision of the High Court. In November 2016, Barrett J quashed a decision of the Bord to grant planning permission for a wind farm in County Clare for not providing sufficient reasons for its decision. Later, the High Court refused to grant the Bord certification to appeal that decision to the Court of Appeal.

 

Background

In 2011, Clare County Council refused McMahon Finn (notice party) permission for the development of a wind farm. McMahon Finn appealed that decision to An Bord Pleanala. After considering the appeal at a number of meetings, and after receiving additional information from the developer, the Bord granted permission for the development.

Kathleen Connelly, a homeowner close to the proposed development applied to the High Court for any order of certiorari quashing the Bord’s decision. She argued that the Bord did not provide adequate reasons for its decision to allow an objective observer to establish whether the decision met the requirements of law.

The High Court, Barrett J (here) reviewed the case law, determining that the applicable authorities are:

– the Court of Justice in Mellor, para. 59, “[I]nterested parties must…have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts”,

– Clarke J. in Christian, para. 78, “In order to assess whether a relevant decision is lawful, a party considering a challenge…must have access to a sufficient amount of information to enable an assessment as to lawfulness to be made”, and

– Finlay Geoghegan J. in Kelly, para.48, “[T]he essential principle is that the reasons must be such as to enable an interested party assess the lawfulness of the decision…”.

21. These obligations appear heightened in importance when one has regard to the tight time constraints that apply to seeking judicial review.

 

Quashing the Bord’s decision, Barrett J held that the Bord had not provided sufficient reasons in compliance with the quoted authorities.

 

Supreme Court

The Bord applied for leave for a leapfrog appeal to the Supreme Court arguing that the standard for leave to the Supreme Court of “general public importance” is lower than the “exceptional public importance” standard necessary for an appeal to the Court of Appeal under s 50 of the Planning and Development Act 2000.

The Bord argued that the High Court decision sets a new, higher threshold of reasoning for decision-makers, contrary to long-settled lines of authority.

Granting leave, the Court stated:

21. It is self-evident from the description of the issues and background circumstances that this is a matter of general public importance which warrants a leapfrog appeal to this Court. The issues in question concern not only this decision of the Board, but many other decisions of the Board. The question, simply put, is as to the degree of particularity and specificity necessary in the Board’s decision.

New Appeal: Can placing a letter on file constitute service under the Illegal Immigrants Act 1999?

In this determination, SE v Minister for Justice and Equality, the Supreme Court granted SE leave to appeal from the High Court’s decision that the placing of a letter in SE’s file constituted service for the purposes of s 6(1) of the Illegal Immigrants Act 1999 (as amended by s 10(c) of the Illegal Immigrants (Trafficking) Act 2000).

 

Background

SE arrived in the State in 2015 and immediately applied to ORAC (Office of the Refugees Application Commission) for asylum. ORAC accepted SE’s application and placed him in accommodation for asylum seekers. SE left that accommodation the same day. He did not return or leave a forwarding address. After SE missed any appointment with ORAC, it recommended to the Minister that SE’s application be refused.

As ORAC had no address for SE to send communications to, it placed a letter in his file inviting him to apply for subsidiary protection. ORAC later placed a letter in SE’s file proposing his deportation.

At a later stage, SE applied to the High Court for judicial review of the Minister’s decision to deport him on grounds that the Minister did not serve the letters in compliance with s 6(1) of the Illegal Immigrants Act 1999 (as amended by s 10(c) of the Illegal Immigrants (Trafficking) Act 2000). That provides that notice “shall be addressed to him or her”, and be “served or given” on one of two methods, either (a) “by delivering it to him”, or (b) “by sending it by post” [Det 8].

The High Court dismissed SE’s application. It held that the departure from the statutory requirements on service was justified where SE had not provided an address. The High Court refused to certify an appeal to the Court of Appeal.

 

Supreme Court

Granting leave to appeal, the Court determined that whether the High Court’s interpretation of the law was correct is a matter of general public importance.

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?

New Appeal: Re s 4 of the Prevention of Corruption Act 1906 to 2001

In this determination, DPP v Forsey, the Supreme Court granted Forsey leave to appeal against his conviction for corruption while he was an elected member of Dungarvan UDC. The Court determined that it is necessary in the public interest to clarify two points of law:

 

1. Is the burden of proof against the presumption of corruption contained in s 4 of the Prevention of Corruption Act 1906 to 2001 a reasonable doubt or the balance of probabilities?

2. Should the jury consider the scope of the accused’s position or office (their pull) in considering if corruption took place?

 

Law

S 4 of the Prevention of Corruption Act 1906 to 2001 (here) creates a presumption of corruption by a public office holder who receives a gift, consideration or advantage from someone with an interest in the discharge of the office holder’s function.

 

Background

In 2006, Forsey lobbied members of Waterford County Council to have land close to Dungarvan, belonging to a property developer (Ryan), rezoned for development. When he was unsuccessful, he sought to have that land brought under the control of Dungarvan UDC. During the same period Ryan made three payments to Forsey totaling €80,000. The two men made a written loan agreement relating to that money.

 

In 2012, a jury in Waterford Circuit Court found Forsey guilty of corruption for receiving the €80,000 in return for his endeavours to have Ryan’s land rezoned. Forsey appealed his conviction to the Court of Appeal. His main grounds was that the trial judge misdirected the jury that the burden lay with him to show that Ryan’s payment was not corrupt and that the standard of proof was on the balance of probability. Secondly, Forsey questioned whether the presumption of corruption imposed conflicted with the Constitution or the European Convention on Human Rights. And thirdly, Forsey argued that the trial judge should have directed the jury to consider the scope of his office and the extent of the influence that it is alleged that Ryan sought to purchase (whether Forsey had the pull to secure rezoning was an essential element of the crime).

 

In 2016 the Court of Appeal (here) dismissed Forsey’s appeal on all grounds. He applied to the Supreme Court for one further appeal. The Court determined that Forsey had raised issues of general interest and it is in the public interest that those issues be resolved. The Court certified three questions:

1. Whether, in light of the facts, including that there was no requisition, the applicant is now entitled to revisit the points sought to be argued?

2. What is the scope of a person’s office or position in the consideration of the correct interpretation of the offence of corruption?

3. Are the presumptions contained in s 4 of the Act legal, as opposed to evidential burdens.

Supreme Court refuses to grant appeal of joint enterprise murder conviction

In this determination (DPP v Martin Kelly), the Supreme Court refused Kelly leave to appeal against his conviction, under joint enterprise, for the murder of Andrew Burns in Donegal in February 2008. Dismissing his application, the Court determined that Kelly had not met the constitutional threshold for an appeal, as the law on joint enterprise is clear:

A person embarking on a joint enterprise and realising that a co-conspirator, meaning in this instance someone whom he is assisting, is armed with a deadly weapon may reasonably, depending on the circumstances, have an inference raised against that person that he knew that if necessary that deadly weapon would be used against a victim.

Background

On the 12th of February 2008, Kelly brought Andrew Burns to a location in County Donegal where he knew others intended to shoot Burns in the knee as a punishment. Once there, Burns tried to escape and was shot twice, in the shoulder and back. Burns died from those wounds. Kelly then drove the others involved away from the scene, and he assisted with the disposal of the weapon.

In December 2011, the Special Criminal Court convicted Kelly of the murder of Andrew Burns under joint enterprise. In 2016, the Court of Appeal (here) dismissed an appeal of that conviction. Kelly applied to the Supreme Court for leave to appeal to that court.

In his application for leave (here), Kelly claimed three grounds:

1. The Court of Appeal erred in law in failing to apply the legal principle in joint enterprise law that where death results from an action that “goes beyond what has been tacitly agreed as part of the joint enterprise, the other is not liable for the consequences of the unauthorised act.”; and in appearing to hold instead that “a murder conviction is recorded if there was an intention to cause at least serious harm and death results” – even if the action causing death went beyond specific agreement of the accused.

2. The Court of Appeal erred in law in upholding the Appellant’s conviction for murder having regard to the fundamental difference between the act which caused death and the act contemplated and agreed to by the Appellant.

3. The Court of Appeal erred in law in appearing to hold that it was not necessary for the trial Court to address whether the act of shooting into the chest deliberately to kill was fundamentally different to the act of shooting into the knee deliberately to cause serious injury but specifically not to kill; and in appearing to hold instead that the question for the Court of Appeal was whether the deliberate assassination “was so fundamental a departure as to absolve Mr. Kelly from responsibility for the murder.”

Refusing grant to appeal, the Court stated:

12. The situation with regard to this case is that the law under section 4 of the Criminal Justice Act 1964 is clear. The decision of the Supreme Court of the United Kingdom did not influence the law in this country because the law in this country has always been that there is no constructive liability in relation to murder. A person embarking on a joint enterprise and realising that a co-conspirator, meaning in this instance someone whom he is assisting, is armed with a deadly weapon may reasonably, depending on the circumstances, have an inference raised against that person that he knew that if necessary that deadly weapon would be used against a victim. The classic case of this is a bank robbery where someone waits in a car while his companions, armed with guns or a gun, go to hold up if a bank. It is knowledge of the presence of the weapons from which an inference may be made that the person in the car intended that anyone opposing the enterprise is to be met with deadly force. It is not, however, necessary to make that inference: it is one which may arise and not one which the court is in anyway obliged to make. It is all dependent on the evidence. Each person accused of murder must have intended to kill or cause serious injury for a murder conviction to result. This, however, was not a case where it was intended to shoot off the tip of someone’s finger, as the argument made on behalf of Martin Kelly has developed. Instead, it was a case where a group of people decided to cause someone a serious injury. When that person ran away and the gun jammed, the victim was shot twice, once to the shoulder and then in the back, perhaps as he fell or stumbled or was bent forward in running in terror. That is the same, as a matter of law, as a serious injury which leads to the death of someone by, for instance, blood loss.

13. There is therefore no lack of clarity in the law and it is not necessary to have a further consideration of this area through a further appeal.

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: In the Matter of s 49(2) of the Adoption Act 2010

In this determination, In the Matter of s 49(2) of the Adoption Act 2010, the Supreme Court granted the Adoption Authority leave for a leapfrog appeal from the High Court. The High Court held that the Authority has jurisdiction to make an adoption order for two Thai children to the Irish respondents where there has already been a Thai adoption which was not carried out in accordance with the Hague Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption 1993. The Authority is challenging that decision.

 

Background

CBB and PB are living in Ireland since 2007, were married in the UK in 2008 and have been Irish citizens since 2013. JB and KB are siblings and were born in Thailand in 2006 and 2008. The childrens’ natural parents are not married; their natural father is PB’s brother.

In 2012, the the Child Committee of Prachuabkhirikhan province (a Thai regional authority) granted PB an adoption order for the children. Since then the children have lived with CBB and PB in Ireland. The Prachuabkhirikhan province cannot authorise inter-country adoptions in compliance with the Hague Convention.

In 2013 CBB and PB commenced an application for a domestic adoption of the children. The Authority referred questions of law to the High Court:

(a) Is the Thai Adoption recognisable in Ireland under Part 8 of the 2010 Act or common law?

(b) On the facts disclosed in this Case Stated, does the Authority have jurisdiction to make an adoption order in respect of the children, having regard to the pre-existing Thai adoption, section 45 of the Adoption Act 2010 and any other relevant provision?

(c) Does MF v An Bord Uchtála [1991] ILRM 399 remain good law following the passing of the 2010 Act and, specifically, the incorporation of the Hague Convention into Irish law (section 9)?

(d) If so, and on the facts disclosed in this Case Stated, and assuming the Thai Adoption is not recognised in Ireland, does the original status of the children remain (per MF v An Bord Uchtála [1991] ILRM 399 at 402 (MacKenzie J))?

(e) On the facts disclosed in this Case Stated, are the children eligible for adoption under section 23 of the 2010 Act, having regard to sections 9 and 45 of the 2010 Act?

 

In the High Court (here), O’Hanlon J held that the Thai adoption was not recognisable in Ireland but that the Authority has jurisdiction to make an adoption order and ancillary orders in the circumstances of this case.

The Authority applied to the Supreme Court for leave for a leapfrog appeal.

Granting leave, the Court determined that the legal issue is one which will have application to other cases and it is in the childrens’ best interest that their status is resolved quickly.

New Appeal: Must Bord Pleanála consult public before designating a proposed development as strategic infrastructure?

In this determination, Callaghan v An Bord Pleanála & Ors, the Supreme Court granted Callaghan leave to appeal on whether members of the public are entitled to be consulted before the Bord designates a proposed development as a strategic infrastructure development.

Background

Element Power Ireland (EPI) proposed to develop a wind farm in County Meath, five kilometers from Callaghan’s home. After an inspector’s report, the Bord determined that the proposed development would be a strategic infrastructural development for the purposes of 37A(2) of the Planning and Development Act 2000. That means that the application for planning permission should be submitted to the Bord instead of to Meath County Council. EPI submitted its planning application to the Bord. Callaghan applied to the High Court for judicial review of the Bord’s determination on grounds that he was entitled to be heard prior to the determination.

In the High Court, Costello J refused Callaghan’s application. But she certified a point of law of exceptional public importance for appeal to the Court of Appeal:

Is the Statutory Scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006 when construed in the light of Sections 50(2) and 143 of the [Act of 2000] such that it is necessary to read into the Scheme a right for interested members of the public to be heard prior to [the Board] reaching an opinion pursuant to Section 37A of the [Act of 2000]?

The Court of Appeal answered that question in the negative. Callaghan applied for leave to appeal that decision to the Supreme Court.

Supreme Court

In his application, Callaghan argued that he met the constitutional threshold for leave to appeal: the issue was of general public importance.

The Bord argued that the fact that the High Court certified the question cannot inevitably mean that there is a right of a second appeal to the Supreme Court in all such cases.

The State opposed Callaghan’s application on grounds that he is not challenging the constitutionality of the underlying legislation or asking the Court to depart from or distinguish one of its previous decisions, and he has already had two full hearings.

Granting leave, the Court determined that the respondents had not shown that the question is not one of general public importance. And the fact that the CoA had already addressed the question did not change that it is.

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