New Appeal: Must a valid committal order record that the judge considered the option of community service?

In this determination, Maguire v Governor of Mountjoy Prison, the Supreme Court granted Maguire (and others) leave to appeal from the Court of Appeal on two issues: “the obligations of a judge of the Circuit Court dealing with a District Court appeal in a criminal case where the appellant does not appear, and the question whether a valid committal warrant must record consideration by the judge of the option of community service”.

 

Background

Maguire is one of five plaintiffs in joined cases being appealed from the Court of Appeal. What the cases have in common is that the plaintiffs were sentenced at district court level to terms of imprisonment of less than 12 months. They each lodged appeals to the Circuit Court. But none of the plaintiffs turned up to court on the dates of their appeals. In each case, the Circuit Court struck out the appeal and affirmed the order of the District Court.

The plaintiffs appealed separately to the High Court. They argued that their committal orders were invalid as the orders did not record that the Circuit Court judges gave consideration to substituting the term of imprisonment imposed for community service. The plaintiffs relied on s 3 of the Criminal Justice (Community Service) (Amendment) Act 2011, which provides:

3. Section 3 of the Principal Act is amended:-

(a) by the substitution of the following subsection for subsection (1):-
(1)(a) Where a court by or before which an offender stands convicted, is of opinion that the appropriate sentence in respect of the offence of which the offender is convicted would but for this Act, be one of imprisonment for a period of 12 months or less, the court shall, as an alternative to that sentence, consider whether to make an order (in this Act referred to as a ‘community service order’) in respect of the offender and the court may, if satisfied in relation to the offender, that the provisions of section 4 have been complied with, make a community service order in accordance with this section.

The High Court dismissed four of the appeals and allowed one, Brennan, distinguishing the case on facts (the order stated that an appeal was heard). All four unsuccessful appellants lodged appeals to the Court of Appeal. The Governor of Castlerea Prison appealed the decision in Brennan.

The Court of Appeal (here) dismissed the four appeals, and allowed the appeal in Brennan. Mahon J stated that it must be presumed that judges of the District Court and Circuit Court are aware of their obligations to consider community service instead of prison without the need to openly articulate or record that they have done so [55].

 

Supreme Court

Applications for leave to appeal to the Supreme Court were lodged in the five cases. Granting leave, the Court determined that the issues raised by these cases meet the constitutional threshold of having general public importance.

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New Appeal: Must a deportation order state the date by which the subject must leave the State?

In this determination, Khan v Minister for Justice and Equality, the Supreme Court granted Khan leave for a leapfrog appeal from the High Court on the question:

Is a deportation order valid when it fails to specify on its face the date by which the subject must leave the State, and remain thereafter out of the State?

 

Background

The determination gives little background to this case, and there is no published High Court judgment. The information that is available is that the Minister issued an order for Khan’s deportation. The order did not state a date before which he must leave the State. Khan applied to the High Court for certification of a case on the question approved here. His argument is that the Minister’s order was invalid as it did not meet the requirements of s 3 of the Immigration Act 1999. The 1999 Act states:

 

3.—(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.

 

The High Court refused to certify the question Khan raised, holding that there is no conflict between the authorities on the issue.

Khan applied to the Supreme Court for leave to appeal that decision on grounds that the Court had granted leave to appeal in another case on the same question. The determination names that case as SE v Minister for Justice and Equality [2017] IESCDET 02. (But the Courts Services’ website lists no determination in that name, and a determination in a different case carries that citation).

Granting leave, the Court determined that Khan had raised an issue which has application beyond this case. The Court left open for case management the issue of whether this case should proceed along with SE or be adjourned until SE is resolved.

New Appeal: What is the correct test for lawful comparative advertisement?

In this determination, Aldi Stores (Ireland) Ltd v Dunnes Stores, the Supreme Court granted Aldi leave to appeal on the question: what is the correct test for lawful comparative advertisement under the European Communities (Misleading and Comparative Advertising) Regulations 2007?

 

Background

In 2013, Aldi applied to the High Court for an injunction prohibiting Dunnes Stores from continuing with a comparative advertisement campaign which compared various Dunnes and Aldi products. Aldi alleged, among other things, that Dunnes’ campaign did not use comparable products and was unlawful under the European Communities (Misleading and Comparative Advertising) Regulations 2007.

In the High Court, Dunnes argued that food products are comparable if they have a comparable nutritional value, and cosmetic products are comparable if they fulfill the same need. But Cregan J (here) was persuaded by the test proposed by Aldi’s expert witness who introduced his five cornerstones of comparison test: comparisons on quantity, provenance, nature, substance and quality. For example, Dunnes compared its own 23 meter long toilet roles to Aldi’s 29 meter rolls; Aldi’s pork sausages carried the Bord Bia symbol but Dunnes’ didn’t; Aldi’s anti-wrinkle cream contained sun protection, but Dunnes’ didn’t; and Aldi’s ketchup contained over 70% more tomatoes than the ketchup that Dunnes compared it to for price. Dunnes compared those products on price alone.

Cregan J held in Aldi’s favour.

The Court of Appeal (here) overturned that decision (in part), holding that the High Court had applied the wrong test.

 

Supreme Court

Aldi applied to the Supreme Court for leave to appeal. One of the grounds Aldi argued was that the Court of Appeal dismissed the High Court’s test but did not define what the correct test is.

Granting leave, the Court determined that Aldi had, on that ground, raised an issue of general importance and granted leave on that issue only.

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.

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.

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