Supreme Court to deliver judgment in five cases on Tuesday, 12th December

The Supreme Court diary lists five cases for judgment on Tuesday, 12th December.  The Court granted leave to appeal under the new constitutional regime in three of those cases. I have previously written posts previewing those three cases and provide links to those posts below. The other two cases are appeals predating the 33rd Amendment and the creation of the Court of Appeal. In the fourth case, I provide a link to the Court of Criminal Appeal judgment certifying a question of law of exceptional public importance (DPP v Rattigan). The fifth case is likely an appeal from a 2011 High Court decision relating to the Hepatitis C Compensation Tribunal (M v Minister for Health and Children).

O’Sullivan v The Sea-Fishiries Protection Authority concerns the restrictions Article 15 of the Constitution places on ministers when transposing EU regulations into Irish law: can a minister introduce measures that go further than is required by the EU Regulation? The High Court held that the removal of a right to appeal from a decision of the High Court created under the EU (Common Fisheries Policy) (Points System) Regulation 2014 was ultra vires. The Authority is appealing that decision.

Crayden Fishiries v The Sea-Fishiries Protection Authority is an appeal by the Authority against the High Court judgment that the procedure for placing points on a fishing vessel’s licence under the EU (Common Fisheries Policy) (Points System) Regulation 2014 are contrary to fair procedures.

Permanent TSB v Langan concerns whether the Circuit Court has jurisdiction to hear repossession proceedings for un-ratable properties. The Court of Appeal held that, as s 22 of the Courts (Supplemental Provisions) Act 1961 limits Circuit Court jurisdiction to properties below a defined rateable charge (currently €235.95), and as the properties in question are un-rateable, the Circuit Court did not have jurisdiction to hear Permanent’s application for possession. Permanent is appealing that decision.

DPP v Rattigan concerns the interpretation of s 16 of the Criminal Justice Act 2006, which provides an exception to the hearsay rule of evidence. S 16 allows the admission of out of court statements where the witness refuses to give evidence, denies making the statement, or gave evidence in court which is inconsistent with the statement sought to be admitted.

The Court of Criminal Appeal (O’Donnell J) certified a question of law of exceptional public importance:

Does s 16 of the Criminal Justice Act 2006 apply to statements of evidence made prior to the coming into force of the said Act?

M v Minister for Health and ChildrenI can find only one 2011 High Court judgment which may relate to this case. In that judgment, M was appealing an award made by the Hepatitis C Compensation Tribunal, and, as a preliminary issue, the High Court held that the Minister could not cross-appeal on the issue of causation.

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New Appeal: Can a sentenced person, whose case is not finalised, rely on a Declaration of Unconstitutionality from another case?

Can a person sentenced under a procedure, subsequently found to be unconstitutional, and whose proceedings have not been finalised, challenge the lawfulness of his detention?

In this determination (Wansboro v DPP), the Supreme Court granted Wansboro leave for a leapfrog appeal from a decision of the High Court on that question.

 

Background

In 2013, Dublin Circuit Court sentenced Wansboro to three years imprisonment, suspended for three years. In 2015, Wansboro pleaded guilty to an offence of dangerous driving causing death at a date in 2014, also before the Dublin Circuit Court. The trial judge sentenced Wansboro to five years imprisonment for the dangerous driving offence. Also, on an application under s 99(9) and (10) of  the Criminal Justice Act 2006, the trial judge ordered that Wansboro serve the previously suspended sentence prior to commencement of the five year sentence. Wansboro lodged an appeal against both of those orders.

Subsequently, in 2016 (Moore v DPP), the High Court held that s 99(9) and (10) of the 2006 Act was unconstitutional.

When his appeal came before the High Court, Wansboro sought to rely on Moore, arguing that the Declaration of Unconstitutionality had a blanket effect. However, in the intervening period, the High Court had dismissed cases similar to Wansboro’s. And the Court of Appeal has upheld two such decisions on appeal.

The High Court (Faherty J) followed precedent and dismissed Wansboro’s appeal on grounds that, as he had not challenged the constitutionality of s 99(9) and (10) before sentencing, he had acquiesced in the Circuit Court’s exercise of a non-existent jurisdiction. Therefore there was no breach of fair procedure or due process of law.

 

Supreme Court

Wansboro argued that, as his proceedings had not been concluded at the time the High Court (in Moore) made its Declaration of Unconstitutionality of s 99(9) and (10), the High Court erred in its holding that the Declaration did not have a blanket effect and that he could not rely on that Declaration to challenge the lawfulness of the re-activation of the suspended sentence.

The Court determined that Wansboro had met the constitutional threshold for a leapfrog appeal. Firstly, as there are numerous similar cases, he raised a point of law of general importance. And secondly, given that the Court of Appeal would be bound to follow its precedents in the two similar appeals, an intermediate appeal to that court would be futile and a waste of resources.

New Appeal: is s 11 of Criminal Law Amendment Act 1888 (upheld in Norris v Ireland) incompatible with the Constitution?

In this determination, PP v Judges of Dublin Circuit Court, the Supreme Court granted PP leave to appeal on three questions:

(i) Is the consent of both parties an essential ingredient of the offence of gross indecency under s 11 of the Criminal Law Amendment Act 1885?

(ii) Having regard to the answer to the first question, does the applicant have locus standi to challenge the compatibility of the section with the Constitution?

(iii) Having regard to the answers to the foregoing questions, is s 11 of the Act compatible with the Constitution?

 

Background

The DPP prosecuted PP before Dublin Circuit Court on a number of counts under s 11 of the Criminal Law Amendment Act 1888. The DPP alleges that PP committed the offences between 1978 and 1980 when he was a school teacher and the complaint was aged between 15 and 17 years. PP denies the charges.

The 1888 Act states:

11. Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour.

The Supreme Court upheld s 11 in Norris v Ireland 1984 IR 36. The European Court of Human Rights later held that s 11 breached the European Convention on Human Rights. The Oireachtas repealed s 11 in 1993. The DPP is prosecuting these offences under s 27 of the Interpretation act 1995.

PP has challenged the compatibility of s 11 with the Constitution. The High Court dismissed PP’s challenge. The Court of Appeal upheld that decision. The Supreme Court determined that the case raises questions of general public importance, as the DPP asserts an entitlement to use s 11 to prosecute historical offences committed before 1993.

JGH v Residential Institutions Review Committee: foreseeability is within the definition of abuse in the Residential Institutions Redress Act 2002,

In JGH v Residential Institutions Review Committee & anor the majority of the Supreme Court held that the common law principles of negligence, including foreseeability, apply to the interpretation of “the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child” in the Residential Institutions Redress Act 2002.

 

Background

As a child, during the 1960s, H was a patient and resident of  a hospital. In 1962, the Hospital made a misdiagnosis that H had rheumatic fever and transferred him to a nursing home (a private, voluntary institution). A consultant at the Hospital was a director of the Nursing Home. H was in the Nursing Home for a period of approximately two years on the first occasion and again for a period of one year in 1965. The Nursing Home applied treatments that had no scientific justification and that were seen as heterodox even by the standards of that time. That included keeping children in a sedated state for long periods.

It is not contested that the treatment that H received in the Nursing Home constituted abuse within the meaning provided under the 2002 Act. Nor is it contested that he could recover compensation in a tort action against the Hospital for negligence in transferring him to the Nursing Home. But there is no finding of negligence against the Hospital. The Act provides for compensation without a finding of negligence. An applicant need only show that they were a resident of a scheduled institution and suffered an injury consistent with abuse.

The issue on appeal is whether H is entitled to compensation under the Residential Institutions Redress Act 2002, as the Hospital is one of the scheduled institutions under the 2002 Act, but the Nursing Home isn’t.

The questions certified by the Court were:

 

1. Could a decision by a scheduled institution as prescribed by the 2002 Act to transfer a child to a non-scheduled institution constitute abuse within the meaning of the Residential Institutions Redress Act 2002?

2. In making a determination that such a decision constituted abuse within the meaning of the Act, was the Respondent entitled to apply common law principles of negligence including the principle of foreseeability, having regard to

(a) the definition of abuse in s. 1 of the Act, which includes “the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child”, and
(b) the prohibition on addressing or making findings relating to any issue of fault or negligence set out in s.5 of the Act?

 

Residential Institutions Redress Act 2002

S 7 of the Act provides:

(1) Where a person who makes an application (an “applicant”) for an award to the Board establishes to the satisfaction of the Board—

(a) proof of his or her identity,

(b) that he or she was resident in an institution during his or her childhood, and

(c) that he or she was injured while so resident and that injury is consistent with any abuse that is alleged to have occurred while so resident,

the Board shall make an award to that person in accordance with section 13 (1).

 

Judgments

Writing for the majority of the Court, Clarke CJ held, in line with precedent, that:

The legislation should be given a generous interpretation in favour of affording compensation because that was the clear intent of the Oireachtas. However, in so doing the Court can only adopt an interpretation which can be said fairly to arise on the wording of the legislation itself. To go beyond a meaning which can fairly be attributed would be to impose a liability on the State which it could not properly be said that the Oireachtas intended to accept [4.2].

Under the principle of foreseeability for recovery in tort, Clarke CJ believed that H would be entitled to recover damages for the abuse he suffered in the Nursing Home if he established that the Hospital was negligent in transferring him there. Pointing to s 10 of the Act, which allowed for recovery where injury was the result of abuse within a scheduled institution, Clarke CJ held that the Act was sufficiently ambiguous so as not to prohibit H recovering compensation for his injury suffered in the Nursing Home. Given that ambiguity, applying a generous interpretation towards the awarding of compensation, and because H’s injuries were foreseeable, Clarke CJ proposed allowing H’s appeal and returning the case to the Review Committee for assessment of damages. MacMenamin, Dunne and O’Malley JJ concurred.

 

O’Donnell J dissented. He agreed with the majority that the Act must be interpreted broadly. However, he interpreted s 7 as limiting compensation to applicants who could demonstrate injury consistent with abuse while resident in a scheduled institution. If H’s claim was to succeed, his transfer to the Nursing Home must be defined as abuse. But that would be inconsistent with s 1 of the Act, which provides for redress for residents of scheduled institutions transferred to laundries. Such claimants must show injuries consistent with abuse while at the laundries. The act of transfer is not considered abuse in itself. Although H’s treatment in the Nursing Home may be abuse as defined in the Act, it did not occur while he was resident in the Hospital. O’Donnell J did not accept that H’s transfer to the Nursing Home was abuse as defined in the Act, and stated: It is simply inappropriate to introduce part only of the reasoning process in private law claims when addressing a question of the interpretation of a statutory scheme [59].

 

Two judgments listed for this week: On the Extradition Act 1965 and the Residential Institutions Redress Act 2002

The Supreme Court diary has two judgments listed for this week, both on Tuesday, 24th of  October. Both cases are appeals from the Court of Appeal and both were heard by a panel of five judges.

 

H v The Residential Institutions Redress Review Committee & anor

As a child, during the 1960s, H was a patient and resident of  the National Children’s Hospital. In 1962, the Children’s Hospital suspected H had rheumatic fever and transferred him to St Gabriel’s Hospital (a private, voluntary institution). H was in St Gabriel’s for a period of approximately two years on the first occasion and again for a period of one year in 1965. St Gabriel’s applied treatments  that had no scientific justification and that were seen as heterodox even by the standards of that time. That included keeping children in a sedated state for long periods. It is not contested that H suffered abuse in St Gabriel’s. The issue is whether H is entitled to compensation under the Residential Institutions Redress Act 2002, as the Children’s Hospital is one of the institutions covered under that legislation, but St Gabriel’s isn’t. The Court certified the following questions:

1. Could a decision by a scheduled institution as prescribed by the 2002 Act to transfer a child to a non-scheduled institution constitute abuse within the meaning of the Residential Institutions Redress Act 2002?

2. In making a determination that such a decision constituted abuse within the meaning of the Act, was the Respondent entitled to apply common law principles of negligence including the principle of foreseeability, having regard to

(a) the definition of abuse in s. 1 of the Act, which includes “the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child”, and
(b) the prohibition on addressing or making findings relating to any issue of fault or negligence set out in s.5 of the Act?

 

Attorney General v Lee

In 2011, the United States of America applied to have Lee extradited from Ireland to stand trial for 51 offences, including unlawful money transactions, wire fraud and aggravated identity theft. The US alleges that all of the offences took place within the US, and no part of the offences took place within this state. S 15 of the Extradition Act 1965 (amended since the commencement of this case) states:

Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State as having been committed in the State.

Lee has established that he was outside of the US at the time that some of the offences took place, and that it is likely that he was within the jurisdiction of the State. Granting leave, the Court’s determination concludes:

19. In the view of this Court, the following points only properly arise. These are, whether the Court of Appeal erred in deciding that:

(a) there was a distinction to be made between an offence which was regarded as having been committed within the State, and an offence committed in another state, over which extraterritorial jurisdiction is claimed under Irish Law?
(b) in determining that, in the latter case, such an offence could not be said to be an offence which “is regarded under the law of the State as having been committed in the State”, for the purposes of s.15 of the Extradition Act, 1965?

This Court will also consider whether:
(c) the judgment of this Court in Attorney General v. Pocevicius [2015] IESC was correctly decided?
20. The appeal is, therefore, confined to determining whether, in the event that any of the matters specified at (a), (b), (c) above are resolved in favour of the applicant, such finding would result in a reversal of the decision of the Court of Appeal.

 

Hanrahan v Minister for Agriculture: Plaintiff can recover for both capital loss and loss of profit for breach of contract

In this judgment (here), the Supreme Court upheld the High Court’s award to Hanrahan for capital loss as well as for loss of profit, for the Minister’s breach of contract.

 

Background

Hanrahan is a farmer and was the plaintiff in the case of Hanrahan v Merck, Sharp and Dohme (Ireland) Limited [1988] I.L.R.M. 629, where he successfully recovered for loss due to nuisance and and wrongful discharge of noxious fumes by the defendant firm. Due to the harm that those discharges caused to Hanrahan’s herd, the Minister suspended his milk quota for a time; illegally, Hanrahan claimed. Hanrahan issued proceedings against the Ministwr for loss resulting from the suspension (in a separate case from this). Hanrahan claims that the non-payment of compensation from that case caused him financial difficulty, resulting in an inability to purchase feed for his herd.

In late 2005 Hanrahan made representations seeking payments from the Minister to enable him to purchase livestock feed. The Minister arranged for Department of Agriculture vets to visit Hanrahan’s farm on a number of occasions. In early 2006 Department Officials seized most of Hanrahan’s herd on welfare grounds. After Hanrahan issued court proceedings, the Minister agreed to return the herd. But the Minister ordered the sale of the herd, instead. Hanrahan issued High Court proceedings seeking damages.

In the High Court, McMahon J (here) held that the Minister did cause damage to Hanrahan through breach of contract. The Minister’s expert witness calculated damages at €1,979. Hanrahan’s expert calculated damages at €834,000. McMahon J disregarded both and assessed damages at €141,000 for the replacement of the herd; €145,000 for loss of profit from the date of breach to the date of judgment; and awarded €25,000 for stress, upset and inconvenience.

 

Supreme Court

The Minister appealed on grounds that Hanrahan could not recover for both capital loss and loss of profit and on grounds that he could not recover for stress, upset and inconvenience resulting from breach of contract. Hanrahan cross appealed.

The Minister’s appeal relied on Cullinane v British Rema Manufacturing Co Ltd [1954] 1 Q B 292; and Addis v Gramophone Company Ltd [1909] A C 488, which established that, in general, damages for breach of contract do not include damages for distress, upset and inconvenience.

The judgment in Cullinane contained an analogy of a cow that was purchased for £100 and was to produce four gallons of milk a day. But the cow only produced one gallon a day and was consequently only worth £10. The judge stated that, in such a case, a plaintiff could only recover the difference in value or the loss of profit from the low yield. But not both.

Writing for the three judge panel in this case, O’Donnell J distinguished the facts of this case from that analogy. In this case, Hanrahan was not left with an inferior herd, but with no herd. And given the outlay of capital that would be required to replace the herd, no possibility of replacing it to mitigate his losses. And that was known by the Minister. Therefore Hanrahan was entitled to the replacement cost for his herd and the profit he would have earned from the herd until the date of judgment.

O’Donnell J allowed the Minister’s appeal on the issue of damages for stress, upset and inconvenience, which is not recoverable for breach of contract (Addis). He dismissed Hanrahan’s cross appeals under the rule that an appellate court will not overturn the decisions of a trial judge which are supported by evidence.

O’Donnell J discussed a number of circumstances where awards for capital loss will differ. Assets can depreciate or appreciate over time. For example, a fleet of vehicles can depreciate, whereas a rental property could appreciate. Awards that a court should make will vary accordingly.

O’Donnell J was critical of the seeming lack of impartiality by expert witnesses, stating:

4. … Experts are permitted to give evidence of their opinion, while lay people are not. This is because experts are understood to have professional expertise, and to owe an obligation to the Court to give their own expert opinion to the Court. I do not wish to criticize the individuals who gave evidence in this case, since this was a difficult case and in any event the “high ball – low ball” approach which occurred here is only an example of a more widespread phenomenon. … An expert who merely advances a party’s case rather than his or her own independent opinion may, and perhaps should, be criticised, sometimes severely.

New Appeal: Supreme Court grants second appeal on An Bórd Pleanála’s duty to give reasons for its decisions

In this determination (North Kerry Wind Turbine Awareness Group v An Bórd Pleanála ), the Supreme Court granted the North Kerry Group leave to appeal against the High Court’s (McGovern J) refusal to overturn An Bórd Pleanála’s grant of planning permission for a wind farm.

 

Background

In 2014, Kerry County Council refused the Notice Party planning permission to construct a wind farm. The Notice Party lodged an appeal with An Bórd Pleanála. Although the proposed development breached the county development plan, in 2016, the Bórd granted permission for the wind farm, stating reasons. The North Kerry Group issued judicial review proceedings in the High Court seeking to have the Bórd’s decision quashed. McGovern J (here) rejected that application and later refused the North Kerry Group’s application for leave to appeal under s 50 of the Planning and Development Act.

The North Kerry Group applied to the Supreme Court for leave for a leapfrog appeal. One of the grounds of appeal was that the Bórd failed to give adequate reasons for its decision. In Connelly v An Bórd Pleanála (post) the Court granted the Bórd leave to appeal against the High Court’s (Barrett J) quashing of its decision to grant planning permission for a wind farm, for failure to give adequate reasons for the decision. And in Holohan v An Bórd Pleanála, the High Court (Humphrey J) made a reference to the Court of Justice of the European Union on, among other issues, the duty of  a competent authority to give reasons for its decisions, subject to the Council Directive 92/43/EEC (Habitats Directive).

Granting leave, the Court stated:

9. … having regard to the decision of the Court to grant leave in the case of Connelly v An Bórd Pleanála (see [2017] IESCDET 57), and to the reference to the Court of Justice of the European Union in Holohan, the Court will grant leave to this applicant on the question whether in all the circumstances of the case the reasoning and analysis of the Board was sufficient.

New Chief Justice lays out important priorities for the coming Legal Year.

Today, Ireland’s new Chief Justice, the Hon Mr Justice Frank Clarke, addressed an audience of senior judges, lawyers, the AG and representatives of the legal professions and the Courts Services. And he has called for the voice of the judiciary to be heard in the ongoing debates about Judicial appointments and a Judicial Council.

The full text of the Chief Justice’s speech is available here: 2017 New Legal Year Statement. The Courts Services’ press release highlighted a number of topics that the Chief Justice addressed:

 

Judicial Council and Appointments – wholly appropriate that judges make their views known

He said that, “the Judicial Appointments Commission Bill will undoubtedly bring about significant reform in the way in which judges are appointed. The Judicial Council Bill will, for the first time, provide a proper framework for judicial training and ethics. The judiciary has long supported the principle of both of those measures – recognising the need for reform”.

The Chief Justice stated, “ I know of no jurisdiction in the world where it is not considered reasonable and appropriate for judges to make their views known in an appropriate way, in relation to proposed legislation which actually affects the judiciary itself. Obviously this legislation has the potential to affect the judiciary in a very significant way and it is, in my view, wholly appropriate that judges make their views known while recognising, of course, that legislation is ultimately a matter for the Oireachtas”.

 

Access to Justice – certain types of litigation are beyond the resources of many …….. requires a radical reappraisal to identify better ways of doing things

In his statement for the coming new legal year, the Chief Justice outlined his and the judiciary’s priorities for the coming twelve months. Addressing an audience of senior judges, lawyers, the AG, and representatives of the legal professions and the Courts Service, Chief Justice Clarke said that,

“ there is little point in having a good court system, likely to produce fair results in accordance with law, if a great many people find it difficult or even impossible to access that system for practical reasons. I emphasise the practical because there are few formal legal barriers to access to justice in the Irish legal system. But it has increasingly become the case that certain types of litigation are beyond the resources of many”.

He in particular welcomed the thorough review of the Courts Civil Procedures – being overseen by a committee chaired by the President of the High Court – as some court rules go back as far as 1870. He said that “ of course the fact that rules are somewhat venerable does not mean that they are necessarily no longer fit for purpose, but the experience of new experiments, such as the commercial court, has demonstrated that it often requires a radical reappraisal to identify better ways of doing things”.

 

Funding our Courts System: more investment and better use of resources needed

The Chief Justice noted the significant cuts to court funding during the recession – a cut much deeper than that experienced by other areas of public service and more severe than of the justice agencies. He emphasised that any new funding sought needed to go hand in hand with the proposed review of procedures and any changes recommended by that review, and also that the €44 million generated in court fees, accounts for 58% of total current spending.

He said, “my second priority is to engage with government with a view, hopefully, to persuading those concerned that there is a need for a significant increase in the back-up facilities available to judges – but in doing so to make it clear that I do not see increased back-up as operating in isolation from the need for better use of resources as part of an integrated plan”.

“In the overall context of resources I hope to continue to explore means whereby the case for resources for the Courts, which are after all the third arm of Government established by the Constitution, can be put more directly to the final decision makers. We cannot expect to write our own cheque but we can seek the most effective way to have our case heard”.

 

Review of Supreme Court procedures – following three years of the reformed court…

The Chief Justice announced that the Supreme Court has established a small group consisting of himself, and two other judges – in conjunction with the registrar of the Supreme Court – to conduct a thorough review of the new procedures adopted by the court three years ago, and make recommendations for any changes. The group will consult with the practising professions, and hopes to conclude the process in time that any changes can be implemented with effect from 1st January next. The completion and implementation of this review represents his third important priority for the coming year.

 

Paperless Courts: Realising the use of Technology in the Courts …… Recovering from under-investment … Plan this year to have Supreme Court online filing:

The Chief Justice said that “where a body such as the Courts Service has to operate on significantly reduced financial resources, it is unfortunate, but inevitable, that areas which can be cut will be cut. I.T. suffered particularly harshly in that way. All judges know that we operated for a time with software which was so out of date that it was not even tech supported”

“However we are now slowly returning to a situation where it will be possible to plan for the greater deployment of IT in the years to come…. It is important that the Supreme Court shows some leadership in this regard. With that in mind, I and my colleagues have agreed to a pilot project in which it is hoped that all applications for leave to appeal to the Supreme Court will be capable of being made and considered online”.

A working group consisting of judicial, administrative and IT personnel has been established to bring this project forward as a matter of some urgency. It will be one year before the project can be expected to go live – as a first step.

The Chief Justice said that “if it is seen to work, I can see no reason why all further stages of the appellate process could not be facilitated by online filing and, indeed, the use of IT to support oral hearings. In that latter regard it is worth mentioning that there was a successful experiment conducted in the recent past where an appeal was conducted entirely on the basis of all legal personnel and judges using only tablets. It is hoped to continue with the experimental use of paperless hearings”.

 

Accessing Judicial Resources for the Court of Appeal: clearly more appellate judges needed … as a matter of particular urgency.

The Chief Justice pointed out that “the Court of Appeal has put in place new and innovative procedures which do make the system more efficient. It is also abundantly clear that the workload of the individual judges of the Court of Appeal is, if anything, beyond what can reasonably be expected.”

He said there was “a need to secure an increase in the number of judges for the Court of Appeal”. In the some short term he has agreed with the court’s President, measures which may be able to be put in place which would have the effect of allowing the Supreme Court to assist with the current acute problem which the Court of Appeal faces.

“However, there is no doubt that the long term solution requires more judges. There are a number of reasons for this. First, there are more appeals today to the Court of Appeal than there were to the Supreme Court under the previous regime.

The criminal side of the work of the Court of Appeal is up to date. However, this achievement requires the allocation, typically, of four judges.

The six remaining judges have to deal with an increased civil appeal burden….. it is not difficult to see why there is a problem”.

“I would like to emphasise here my complete commitment to supporting that case for extra judges for the Court of Appeal, and also the commitment of my colleagues and I to assist in any exceptional, interim, short term measures which may be required.

Leaving aside altogether issues concerning the method of judicial appointment there is an urgent need to address at least some aspects of the shortfall in numbers in the appellate courts as a matter of particular urgency”.

 

Brexit:

A final point on BREXIT. “The Irish Supreme Court plays its role in many Europe wide judicial bodies which are frequently consulted by the Commission and by European legislators. It is always necessary to ensure that the common law position is understood to minimise the risk of unintended consequences. In the past we have, to an extent, been able to rely on the well resourced United Kingdom to take the lead. Post BREXIT Ireland will become the biggest common law jurisdiction and a much greater burden will fall on us to ensure that European measures proposed fit well into a common law system”.

Courts Services issued a media notice on Justice Frank Clarke’s nomination as the next Chief Justice

Congratulations to The Hon. Mr. Justice Frank Clarke on his Government nomination as the next Chief Justice of the Supreme Court of Ireland.

 

 

The Courts Services issued the attached notice outlining the constitutional role of the Chief Justice, other responsibilities and Justice Clarke’s CV.

New Appeal: Do family rights arise for non-EEA students?

In this determination, Balchand & Ors v Minister for Justice and Equality, the Supreme Court granted the Minister leave to appeal on:

Whether, under s 4(7) of the Immigration Act, 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?

 

Background

This case is similar but not identical to Luximon (previous post). Balchand is a native of Mauritius. He entered the State as a student in 2006. His wife joined him in 2008. They had a child born within the State in 2009. In 2011 the Minister adopted a new policy which limited the stay within the State of non-EEA students to seven years.

In 2014 Balchand’s permission to remain in the State expired. The Minister refused his application for long term residency under s 4(7) of the Immigration Act 2004:

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

Balchand challenged that decision on grounds that the Minister did not consider constitutional family rights or Article 8 ECHR rights in reaching that decision.

The determination outlines the High Court’s rational in dismissing Balchand’s challenge:

11. The High Court judge concluded at para. 21 that the respondents fell into the same “precarious” category, and that, in general, their private and family rights to remain in the State were minimal or non-existent, and did not need to be considered by the Minister at any stage of the process, because they simply did not reach the level of significance required to engage such consideration. He held that repatriation to their country of nationality was not impossible; that the family would not be split up on repatriation; that there was nothing to prevent them enjoying a private and family life in Mauritius; nor was there anything which would prevent them from making an application for permission to return to this State from Mauritius. He held at para. 23 the whole thrust and basis of the student scheme was such that students should honour their part of the bargain and leave the State at the end of the 7 year period. He concluded at para. 24 that there was no obligation on the Ministerto consider whether exceptional circumstances exist in every case. He referred to, and distinguished, a number of U.K. authorities (at paras. 26 to 27), and also referred to decisions of the Court of Human Rights (at paras. 28 to 35) in that regard. (HC judgment).

 

Court of Appeal

The CoA (judgment) overturned the High Court decision holding that the Minister should have considered Balchand’s constitutional and ECHR rights.

The Supreme Court granted the Minister leave to appeal as the case raises an issue of general public importance.

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