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

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


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

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

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



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

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

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

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

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

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

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

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

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

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

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


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

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

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

Article 15.12

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

Article 40.3

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

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


Kerins v Deputy McGuinness & Ors

Ms Kerins voluntarily attended a hearing of the Public Accounts Committee in the Dail. She was not accompanied by lawyers and was given no notification of the nature of much of the questioning. Much that the deputies put to her and said about her was damaging to her reputation, both personally and professionally.

The Divisional High Court (3 judges) accepted that Kerins had suffered damage due to the PAC’s actions. But the court held that it was powerless to intervene.

Granting leave for a leapfrog appeal, the Court stated:

28. The issues raised include, as a matter of general public importance, the legal safeguards available to witnesses who appear before PAC in a voluntary capacity. The role, if any, which the Court has in protecting such witnesses, in circumstances where there are the important issues of freedom of speech in the Legislature, the separation of powers, and the extent to which the Court may intervene in the affairs of the Legislature. Inter related is the issue as to whether or not the Divisional Court overruled In Re Haughey and Ardagh v Maguire.

29. The interests of justice are engaged also as the Divisional Court ruled against the applicant, while finding that she had been damaged professionally and personally by the actions of the PAC, but that there was no legal remedy for the wrongs perpetuated.

30. The Constitution guarantees to vindicate the personal rights of citizens, and to protect citizens against unjust attack. In the circumstances, the issue of safeguarding such rights meets the criteria of the interests of justice in this application.


O’Brien v Clerk of Dáil Éireann

In April 2015, the High Court granted O’Brien an interlocutory injunction against RTE revealing details of his banking information in a documentary on the Irish Bank Resolution Corporation. Subsequently, two TDs, Paul Murphy and Catherine Murphy, revealed in the chamber of Dáil Éireann the information which was the subject of the injunction.

O’Brien made a complaint regarding the two TDs to the Dáil Committee on Procedure and Privileges. The Committee determined that the TDs had not breached the relevant Dáil Standing Order. O’Brien issued High Court proceedings seeking judicial review of the Committee’s decision.

In the High Court, Ní Raifeartaigh J held that:

… the utterances rendered the court proceedings almost entirely moot; that damage was undoubtedly done to the plaintiff; and that the release of the information appears to have been done in a deliberate and considered manner by the Deputies in question. This was as far from an accidental slip of the tongue on the floor of the House as one could imagine.

However, Ní Raifeartaigh J held that the Committee’s decision was not justiciable and dismissed proceedings. She also held that the legal issue was not sufficiently novel to warrant a departure from the general rule that costs follow the event and awarded the State its costs against O’Brien.

O’Brien applied to the Supreme Court for leave for a leapfrog appeal. The Court determined that:

… the case meets the criteria of general public importance and/or the interests of justice. … the matter is suitable for a direct appeal in that any clarification of the existing authorities (if clarification is required) should come from this Court. Further, it seems that the case concerns a single issue of law and its parameters would therefore be unlikely to be reduced by further analysis in the Court of Appeal.

The Court granted leave on the issues O’Brien raised: the justiciability of decisions by the Dáil Committee on Procedure and Privileges; and costs.

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”.



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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