ESB v Killross: ESB Chief Executive can authorise company officers to perform statutory functions

In this judgment, Electricity Supply Board & Eirgrid Plc v Killross Properties Ltd, the Supreme Court held that “through or by any of its officers” in s 9 of the Electricity (Supply) Act 1927 permits the ESB Board to authorise its Chief Executive to exercise any of the Board’s powers.

 

S 9 of the 1927 Act:

The Board may exercise any of the powers and perform any of the functions and duties (other than the making of orders) conferred and imposed on the Board by this Act through or by any of its officers or servants authorised by the Board in that behalf.

 

Background

S 53 of the 1927 Act permits the ESB Board or any authorised undertaker to “place any electric line above or below ground across any land not being a street, road, railway, or tramway”. S 53(3) requires that the Board or authorised undertaker issue a written notice to the landowner of the works to be carried out, before commencement.

A Board decision of November 1973 authorised the Chief Executive to delegate the authority to sign s 53(3) notices to nominated officers. In 2012, the Chief Executive authorised Mr Waldron, an ESB employee, to sign s 53(3) notices.

In 2013, the ESB issued an s 53 notice informing Killross that it intended to carry out works to lines across Killross’s land. Waldron signed the notice. After objections, the High Court granted the ESB injunctions and restraining orders against Killross. Killross appealed to the Court of Appeal.

The Court of Appeal alowed Killross’s appeal, finding that the Chief Executive’s authorisation of Waldron to sign the s 53(3) notice was a sub-delegation of powers which was not permitted by the 1927 Act.

The ESB applied to the Supreme Court for leave to appeal. The Court (post) determined that the ESB had raised an issue of general public importance and granted leave on the questions:

(a) whether s.9 of the Electricity (Supply) Act, 1927 and/or that Act as a whole permits the authorisation of the board of its chief executive to exercise its power under that section; and

(b) whether the issue raised at (a) above was properly before the High Court and/or the Court of Appeal.

 

Supreme Court

Finlay Geoghegan J wrote the judgment for a unanimous five judge panel. She summarised the ESB’s argument:

27. The appellants also submit that the power of the Board pursuant to s 9 of the 1927 Act must be construed in the context of the wide ranging powers, functions and duties in nature, range and geographical scope conferred on the Board by the 1927 Act. They argue that s 9 in that context could not have been intended to mean that the Board in the sense of its members (Chairman and a limited number of persons) would have to authorise every individual officer or servant through or by whom any of the powers, functions or duties imposed by the Act on the Board were to be exercised.

Allowing the ESB’s appeal, Finlay Geoghegan J cited David Dodd, Statutory Interpretation in Ireland (Tottel Publishing, 2008) [5.25]:

It follows from the pre-eminence of the text, that it is presumed that words are not used in a statute without a meaning and are not tautologous or superfluous and that effect must be given, if possible to all the words used. The legislature must be deemed not to waste its words or say anything in vain.

 

Finlay Geoghegan J stated that the words through or by in s 9 of the 1927 Act permits the ESB to exercise its powers through the Chief Executive. Therefore, in authorising Waldron to issue s 53(3) notices, the Chief Executive was exercising the ESB’s statutory power not sub-delegating his own.

Given her finding on that question, Finlay Geoghegan J stated that it was not necessary to determine whether that issue was properly before the High Court.

 

 

 

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Rosbeg Partners v LK Shields: “the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act are not congruent”

In Rosbeg Partners v LK Shields Solicitors, the Supreme Court allowed LK Shields appeal against the High Court’s calculation of damages for its professional negligence in failing to register Rosbeg’s ownership of a site. The Court stated that;

where the negligence is in failing to do something which can yet be done, then, at least prima facie, the measure of damages, is first, the cost of substitute performance of the duty, and second, any foreseeable loss in value caused by the delay in doing so [34].

 

Background

In 1994, LK Shields acted as solicitors for Rosbeg in its purchase of a number of parcels of land. LK Shields does not dispute that it failed to have Rosbeg registered as owner of one of those parcels of land, nor that it was negligent in that failing. In 2008, Rosbeg agreed to sell that parcel of land to a third party for €10 million. But due to delay caused by Rosbeg not being registered as owner the purchaser refused to proceed with the sale. By the time that the registration of ownership was resolved, in October 2018, the the prospective purchaser had reduced its offer to €8 million. Rosbeg refused to sell for that price, believing the value of the property to be higher.

Rosbeg issued High Court proceedings against LK Shields seeking damages for loss suffered due to professional negligence. By the time of trial, the High Court accepted that the property had a value of €1.5 million. The trial judge (Peart J) found that Rosbeg was not foolhardy or irresponsible in its negotiations to mitigate its losses and awarded Rosbeg €11 million in damages (including consequential losses). LK Shields appealed that judgment to the Court of Appeal.

Dismissing the appeal, the Court of Appeal accepted that the trial judge’s finding that Rosbeg had an agreement to sell the property for €10 million was an inference of fact, but it determined that it was prevented by Hay v O’Grady from interfering with those findings, CoA [41]. LK Shields applied to the Supreme Court for leave to appeal that judgment.

The Supreme Court held that LK Shields had raised questions of general importance and granted leave on four questions:

(i) Whether the Court of Appeal in reviewing the decision of the High Court, and in particular in considering that the test for reviewing inferences drawn by a trial court, from oral evidence or otherwise, is to consider whether there was evidence from which those inferences could be drawn, (paragraphs 41 and 52,53 judgment CA) applied a standard of appellate review which was too low;

(ii) Whether the concept of a completed transaction as discussed in Kelleher v O’Connor [2010] IEHC 313 is applicable in a case such as this, and if so whether it was properly applied;

(iii) Whether the High Court was correct in the manner it assessed the damages where the negligence involved a failure to do something within a reasonable time, but which remained capable of being done, and was done;

(iv) Whether the application of an objective standard to the question of causation and/or mitigation of damages required anything more than the conclusions of the High Court in this case.

 

Supreme Court

O’Donnell J wrote the judgment for a unanimous five judge panel. On the four questions, it held:

(i) Hay v O’Grady [1992] 1 IR 210

23 The Court of Appeal, while acknowledging the force of the defendant’s arguments nevertheless considered that on a faithful application of the well known principles of Hay v O’Grady [1992] 1 IR 210, that on balance, and not without some doubt, there was sufficient evidence before the High Court to justify the conclusions of that court in fact. I respectfully agree. The division of functions between appellate courts and trial courts means that appellate courts must respect and give due deference to a trial court’s fact finding function. The corollary of this of course, which is perhaps less often adverted to, is the importance of the trial court approaching that task rigorously, conscientiously, and testing its preliminary conclusions, with an appropriate degree of scepticism, and thereafter setting out the facts found and the inferences drawn in a way which permits review. However, in this case, I agree that the conclusions on issues of fact made in the High Court judgment are beyond challenge at an appellate level. There was evidence upon which the trial judge could arrive at the critical conclusion that Rosbeg intended to sell at a price of €10 million in late 2007, and some evidence, that it would have been able to do so. The question however remains whether on such facts the defendant’s admitted negligence gave rise to a loss in excess of €11 million.

 

(ii) Kelleher & Anor v O’Connor [2010] IEHC 313

I do not think that that case is directly relevant to this case. It distinguishes between different situations where solicitors are negligent in conveyancing matters. The court must consider [in this case] the position which would arise if the solicitor had not been negligent [29].

 

(iii) Was the High Court correct in the manner it assessed damages?

On legal causation, O’Donnell J stated:

The butterfly may beat its wings and cause an earthquake on the other side of the world, but this is not the principle on which loss is to be recoverable in law [31].

 

O’Donnell J cited a passage from Lord Sumpiton in Hughes-Holland v BPE 3 All ER 969, a case with similar circumstances, which he said neatly expressed the correct general approach:

Courts of law, said Lord Asquith in Stapley v Gypsum Mines Ltd [1953] 2 All ER 478, 489, ‘must accept the fact that the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act are not congruent’. What Lord Asquith meant by the philosophic doctrine of causation, as he went on to explain, was the proposition that any event that would have not have occurred but for the act of the defendant must be regarded as the consequence of that act. In the law of damages, this has never been enough. It is generally a necessary condition for the recovery of a loss that it would not have been suffered but for the breach of duty. But it is not always a sufficient condition. The reason, as Lord Asquith pointed out, is that the law is concerned with assigning responsibility for the consequences of the breach, and a defendant is not necessarily responsible in law for everything that follows from his act, even if it is wrongful. A variety of legal concepts serves to limit the matters for which a wrongdoer is legally responsible. Thus the law distinguishes between a mere precondition or occasion for a loss and an act which gives rise to a liability to make it good by way of damages: Galoo Ltd (in liquidation) v Bright Grahame Murray (a firm) [1995] 1 All ER 16. Effective or substantial causation is a familiar example of a legal filter which serves to eliminate certain losses from the scope of a defendant’s responsibility. It is an aspect of legal causation. So too is the rule that the defendant cannot be held liable for losses that the claimant could reasonably have been expected to avoid: Koch Marine Inc v d’Amica Societa di Navigazione arL (“The Elena d’Amico”) [1980] 1 Lloyd’s Rep 75. But the relevant filters are not limited to those which can be analysed in terms of causation. Ultimately, all of them depend on a developed judicial instinct about the nature or extent of the duty which the wrongdoer has broken.

 

(iv) Whether the application of an objective standard to the question of causation and/or mitigation of damages required anything more than the conclusions of the High Court in this case.

On this question, O’Donnell J distinguished between negligence in failure to perform a duty which can be performed at a later date and negligence which leads to damage which cannot be remedied [34]. The circumstances of this case falls into the former, but the High Court calculated damages as though it fell into the latter. Therefore O’Donnell J found that it would have been permissible for the Court of Appeal to reexamine at the High Court’s calculation of damages.

Applying the principles identified in answering those questions, O’Donnell J stated that the correct measure of damages is the difference between the High Court’s findings on the value of the site when the sale was agreed in 2007 and the date at which the issue of registration was resolved, October 2008 [36].

O’Donnell reduced the award of damages to €5,246,500, while allowing the parties liberty to make submissions on the calculation of interest and Capital Gains Tax.

New Appeal: Does the Constitution guarantee a citizen the right to reside in the State with their non-EU spouse?

In these determinations, Gorry v Minister for Justice and Equality and Ford v Minister for Justice and Equality, the Supreme Court granted the Minister for Justice leave to appeal on the question:

What is the the correct approach required of a decision-maker in relation to an immigration decision concerning a non-national spouse of an Irish citizen where the Irish citizen is relying upon rights conferred or protected by the Constitution (and in particular Article 41) and both spouses are relying on rights under Article 8 of the European Convention on Human Rights?

 

Background

This appeal joins four cases with similar circumstances, the other two being ABM & Anor v Minister for Justice and Equality and Hussain & Anor v Minister for Justice and Equality. Each of the cases involves an Irish citizen who is married to a non-EU citizen. There is no question relating to the validity of the marriages.

Mr Gorry is an Irish citizen. Mrs Gorry is a Nigerian citizen who arrived in Ireland in 2005. She applied for asylum in her own name. That application was refused and an order for her deportation was issued in 2005. She remained in the State illegally. She met Mr Gorry in 2006. In 2009 they traveled to Nigeria to marry. Mrs Gorry applied for revocation of her deportation order based on the changes to her circumstances. That application was refused in February 2010. In 2010 Mr Gorry traveled to Nigeria to visit his wife, but he found the humidity difficult and had to return home. On return home, he suffered a heart attack, which required insertion of a coronary stent.

In November 2010, Mrs Gorry applied again for revocation of her deportation order on grounds of her husband’s health, which included a heart and a kidney condition. The Minister refused that application.

Among the reasons cited for the Minister’s decision were:

… it is not accepted that it has been shown that there are any insurmountable obstacles for Mr. Gorry to settle in Nigeria, or that treatment for his medical conditions would not be available there. In this regard, however, it is entirely Mr. Gorry’s decision whether he wishes to remain in the State and it is beyond question that this is a decision he is entitled to make. …

Having considered all the facts in this case, it is submitted that no exceptional circumstances arise in the case such that a decision to re-affirm the deportation order in respect of [Mrs. Gorry] would constitute a violation of Article 8. …

With regards to the rights of a non-national married to an Irish citizen or a person entitled to reside in the State, it is accepted that family rights under Article 41 of the Constitution arise. However, these rights are not absolute and may be restricted. As found by the Courts, there appears to be no authority which supports the proposition that an Irish citizen or a person entitled to reside in the State may have a right under Article 41 of the Constitution to reside with his or her spouse in this jurisdiction. Reference is made to the consideration of the position of the couple, as well as the rights of the State under Article 8 consideration above and the conclusions reached therein.

Mrs Gorry sought judicial review of the Minister’s decision.

In the High Court, Mac Eochaidh J granted Mrs Gorry an order of certiori quashing the Minister’s decision, finding, among other things:

Having reviewed all of these decisions, my view is that an Irish national married to a non-Irish national has a constitutional right to reside in Ireland with that other person, subject to lawful regulation. …

The starting point in any consideration where a mixed Irish and non-Irish nationality couple seeks to live in Ireland is that they have a prima facie right to do so by virtue of Article 41 of the Constitution. It is recalled that Article 41.3 pledges the State to guard with special care the institution of marriage. …

I fully agree with the decisions of the House of Lords and the Court of Appeal of England and Wales that the proper test to decide the contest between State rights and family rights, and in particular, to decide whether a national of a deporting or excluding State should join his or her partner in a third country is not assessed by reference to an insurmountable obstacles standard, but rather by applying the age-old and most reliable of legal standards in administrative law: is it reasonable to expect a spouse to join the removed or excluded spouse in his or her country of residence? Thus the respondent erred in law because he refused to revoke the Deportation Order on the basis of the failure to demonstrate the existence of an insurmountable obstacle to the second named applicant’s emigration to Nigeria to take up his family life with his wife. There is no such test. …

 

 

Court of Appeal

Upholding the High Court’s order, the Court of Appeal a different conclusion on the rights guaranteed under Article 41. Its judgment concluded:

(1) The Minister did not consider the constitutional rights of the applicants, Mr. and Mrs. Gorry, in accordance with law.

(2) Mr. Gorry as an Irish citizen does not have an automatic right pursuant to the Constitution to cohabit with his non-national spouse in Ireland. Such a constitutional right would appear to be contrary to the inherent power of the State to control immigration subject to international obligations. This is so even if one considers that any such constitutional right is a prima facie right or is not an absolute right and may be limited.

(3)However Mr. and Mrs. Gorry, as a lawfully married couple and a family within the meaning of Article 41, and Mr. Gorry as an Irish citizen, have constitutionally protected rights to have the Minister consider and decide their application with due regard to:

(i) the guarantee given by the State in Article 41.1.2 to protect the family in its constitution and authority;

(ii) a recognition that Mr. and Mrs. Gorry are a family, a fundamental unit group of our society possessing inalienable and imprescriptible rights which rights include a right to cohabit which is also an individual right of the citizen spouse which the State must, as far as practicable, defend and vindicate (Article 41.1 and Article 40.3.1)

(iii) a recognition that the decision that the family should live in Ireland is a decision which they have a right to take and which the State has guaranteed in Article 41.1 to protect; and

(iv) a recognition of the right of the Irish citizen to live at all times in Ireland as part of what Article 2 refers to as his “birth right . . . to be part of the Irish Nation” and the absence of any right of the State (absent international obligations which do not apply) to limit that right.

(4)The Constitution places corresponding obligations on the Minister to take the decision as to whether or not to permit the non-national spouse of an Irish citizen reside in Ireland with due regard to each of the above constitutional rights of the applicants. However, the Minister, in taking the decision, may also take into account other relevant considerations in accordance with the State’s interests in the common good.

(5) The “insurmountable obstacles” test set out by the European Court of Human Rights remains applicable to a consideration by the Minister (if necessary) of the application pursuant to his obligations under s. 3 of the European Convention on Human Rights Act 2003 having regard to Article 8 of the European Convention on Human Rights relating to deportation of the non-national spouse of an Irish citizen.

 

Supreme Court

Although Mr and Mrs Gorry have since separated and do not want to take part in further proceedings, the Supreme Court granted leave for a further appeal stating:

 

  1. It is the view of the Court that this is an appropriate case in which to grant leave to appeal. The proper approach of the Minister to be taken on an application for revocation or for a visa to enter the country in respect of a non-citizen married to an Irish citizen spouse is one which has resulted in inconsistent decisions in a number of High Court decisions. The High Court, in two of the cases referred to above, quashed the decision of the Minister and the Court of Appeal likewise concluded that the decisions of the Minister should be quashed in those two cases and in the third case, the Court of Appeal took a different view to the High Court leading also to a quashing of the Minister’s decision in that case. In the two cases where the appeal by the Minister was refused, the view taken by the Court of Appeal in regard to how the Minister should consider these issues was itself significantly different. In those circumstances, the Court is satisfied that this is an issue of public importance that requires to be clarified.
  2. The Court notes that there is an issue as to the mootness of this case. Given that the legal principles at issue on this appeal are identical to those raised in the Ford and A.B.M. appeals and in another appeal in a case, Hussain and Anor. v. The Minister for Justice and Equality, it is proposed to list the four cases together for case management. It would appear appropriate to deal with the four cases on the basis that one or possibly two of the appeals would be listed together for hearing whilst the remaining cases would be left to await the decision in the case or cases permitted to proceed. The question of which of the cases should proceed in the first instance will be a matter to be considered and determined at case management.

New Appeal: Should fines imposed before commencement of the Fines (Payments and Recovery) Act 2014 be dealt with under that Act or the law at the time?

In this determination in two joined cases, Owens v Director of Public Prosecutions & Ors and Dooley v Director of Public Prosecutions & Ors, the Supreme Court granted the DPP leave to appeal on the question:

Whether unpaid fines that had been imposed by way of sentence before the coming into force of the Fines (Payments and Recovery) Act 2014 should, after that date, be dealt with under that measure or under the law as it stood at the time of sentence.

 

Background

Prior to the commencement date of the Fines (Payments and Recovery) Act 2014 (January 2016), both respondents were convicted at district court level and issued with fines of €500. Both failed to pay the fines and were, subsequent to the commencement of the 2014 Act, sentenced to terms of imprisonment for that failure to pay.

Both respondents challenged the lawfulness of the warrants on the basis that they were deprived to the protections of s 7 of the 2014 Act.

Quashing both warrants, the High Court (Eagar J) stated that if the 2014 Act was only to act prospectively it would create a two tier system, that the DPP failed to show that this would not lead to unfairness and injustice, and that it would deprive the respondents and society of the protections of the 2014 Act. Eagar J directed that the DPP initiate proceedings under s 7 of the 2014 Act.

The DPP appealed that decision to the Court of Appeal, arguing that if the Óireachtas had intended the 2014 Act to act retrospectively it would have expressly stated so.

The Court of Appeal (here) dismissed the DPP’s appeal, distinguishing between a statute that creates a new offence (which cannot apply retrospectively) and a statute such as the 2014 Act, which creates a new mechanism of collecting unpaid fines.

The Supreme Court determined that the case raised an issue of general public importance and granted the DPP leave to appeal.

M v Minister for Justice & Equality: Unborn’s constitutional rights limited to Article 40.3.3°

In this judgment, M v Minister for Justice & Equality, a unanimous seven judge panel of the Supreme Court held that the Constitution does not guarantee any rights to the unborn other than as expressly guaranteed by Article 40.3.3°:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

The Court was assured that it is correct in that interpretation by reference to the qualifications to Article 40.3.3° inserted by the Thirteenth and Fourteenth Amendments:

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

The Court stated:

10.57 Given this clear objective, the terms of the two amendments are particularly revealing in the present context. It is stated in each case merely that “this subsection shall not limit” travel or the provision of information as the case may be. It is clear therefore that the constitutional text considered that the only relevant possible restraint on the provision of information in relation to termination of pregnancy or travel for such purpose was to be found in the terms of Article 40.3.3 and in particular the subsection introduced by the Eighth Amendment. This interpretation of the Constitution adopted by the People is inconsistent with the possibility of the existence of any constitutionally protected pre-existing right whether to life generally, or to any other possible natural rights of the unborn. If such rights were considered to exist prior to 1983 (and 1992) then in theory they could have been invoked and asserted to prevent the provision of information in relation to, or travel for the purposes of, termination. The conclusion must be that the only relevant right of the unborn in contemplation at the time of the Thirteenth and Fourteenth Amendments was that contained in Article 40.3.3 and accordingly it was only necessary to qualify that right to ensure freedom to travel or receive information. Even if, therefore, at some abstract level it was possible to argue that the Constitution may have been interpreted more broadly, the terms of the Thirteenth and Fourteenth Amendments make it clear that the Constitution must now be understood as guaranteeing the rights of the unborn in terms of Article 40.3.3 and not otherwise.

 

Background

M is a Nigerian national who entered the State in 2007 and sought asylum. In 2008 his asylum application was rejected, as was his application for subsidiary protection. In October 2008 the Minister issued an order for M’s deportation. He remained in the State illegally. In 2015 M applied to the Minister to have the order revoked. One of the grounds stated was that M was the father of an unborn child who would be an Irish citizen. M argued that the Minister was obliged to consider the rights that the Constitution guaranteed to the unborn, such as the right to have its father present in the State. The Minister rejected that application. M applied to the High Court  for judicial review of the Minister’s decision. Humphreys J granted the orders:

(i) that leave be granted in accordance with the latest amended statement of grounds;
(ii) that there be a declaration that the Minister, in considering an application under s. 3(11) of the Immigration Act 1999, is required to consider the current and prospective situation of the applicant concerned insofar as relevant to that application, including the prospective position, likely to arise on birth, of any child of the applicant unborn at the time of the application;

(iii) that the remaining reliefs sought be refused; and

(iv) that the respondents’ undertaking not to deport the first named applicant continue until withdrawn in accordance with its terms, and that there be liberty to apply in the event that the respondents seeks to so withdraw it.

Although the child was born beforehand, in the course of his judgment, Humphreys J also held that the Constitution guaranteed rights to the unborn other than the right to life. He interpreted child within Article 42A to include the unborn. He stated:

In addition to these rights, other significant rights of the unborn child are recognised, acknowledged or created by common law or statute, in turn reflecting inherent natural and constitutional rights of the unborn which are implied by the constitutional order.

The State lodged an appeal of that decision with the Court of Appeal, while also applying to the Supreme Court for a leapfrog appeal. The Court granted that application as it determined that it was an issue of general public importance to clarify the extent of the rights that the Constitution guarantees to the unborn. And the exceptional circumstances criteria was established given that the Government was proposing to hold a referendum on whether to repeal Article 40.3.3° and there is an urgent need for clarity on whether the Constitution guarantees rights to the unborn other than in Article 40.3.3°.

 

Supreme Court 

 

In a single judgment issued by the seven judge panel, the Court allowed the State’s appeal in part, finding that the Constitution does not guarantee any rights to the unborn other than as expressly provided for in Article 40.3.3°. The Court rejected the proposition that the Constitution guaranteed the unborn natural law rights, citing the judgment in Information (Termination of Pregnancies) Bill 1995:

The Court does not accept this argument. By virtue of the provisions of Article 5 of the Constitution, Ireland is a sovereign, independent, democratic state.

The Court also rejected the argument that the right to life of the unborn was recognised in case law prior to the Eighth Amendment ( Magee v Attorney General, Norris v Ireland), holding, in line with authority, that any judicial statements to that effect were obiter.

 

On the broader issues relating to the facts of this case, the Court held:

(i) The Minister is obliged to consider the fact of pregnancy of the partner of a proposed deportee as a relevant factor in any decision to revoke a deportation order and is obliged to give separate consideration to the likely birth in Ireland of a child of the potential deportee.
(ii) Moreover the Minister is obliged to take account of the fact that an Irish citizen child will acquire on birth constitutional rights which may be affected by deportation.

(iii) The weight that the Minister must accord to these factors is not an issue in this case. It is not the case that the Minister, having considered these matters, is precluded from refusing to revoke the deportation order.

(iv) Accordingly the decision of the High Court on this aspect of the case was correct and the declaration made is upheld. It follows that the Minister’s appeal against that declaration will be dismissed.

(v) However, neither the common law cases and statutory provisions, nor the pre and post Eighth Amendment cases relied on, when analysed and understood, support the High Court’s conclusions that the unborn possesses inherent constitutionally protected rights other than those expressly provided for in Article 40.3.3.

(vi) The most plausible view of the pre Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was designed to remove. In addition the provisions of the two subparagraphs to Article 40.3.3 introduced by the Thirteenth and Fourteenth Amendments support the Court’s view that the present constitutional rights of the unborn are confined to the right to life guaranteed in Article 40.3.3 with due regard to the equal right to life of the mother.

(vii) While it does not alter the outcome of this case, the Minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3. It is accepted that the right to life is not implicated in the deportation (or revocation) decision in this case. The High Court determination in this regard is reversed.

(viii) The High Court determination that the unborn is a child for the purposes of Article 42A is also reversed.

(ix) The Court is satisfied that it is not necessary to address on this appeal any argument in relation to the status of the Family, which it was accepted was not part of the High Court reasoning in coming to its conclusion.

(x) Accordingly, the formal order of this Court will be to dismiss the Minister’s appeal and affirm the declaration made by the High Court.

 

New Appeal: Is there a presumption that the issuing authority of an EU arrest warrant is a valid issuing authority?

In these determinations, Minister for Justice and Equality v Dunauskis and Minister for Justice and Equality v Lisauskas, the Supreme Court granted the Defendants leave to appeal against High Court orders for their surrender to the Federal Republic of Germany and to the Republic of Lithuania under European Arrested Warrants. The Court of Appeal dismissed both appeals, answering in the affirmative to the questions certified by the High Court:

Dunauskis:

1. In determining whether a prosecuting authority is a valid issuing judicial authority for the purposes of the European Arrest Warrant Act 2003 (as amended);

(a) is the High Court entitled to rely on a presumption that the issuing judicial authority is a valid issuing judicial authority within the meaning of the European Arrest Warrant Act 2003 (as amended);
(b) is the correct test that the prosecuting authority be independent from the executive and participate in the administration of justice?

2. Was the High Court correct in finding that the Chief Public Prosecutor in Lubeck is independent of the executive branch of the government?
3. Was the High Court correct in finding that the Chief Public Prosecutor in Lubeck is an issuing judicial authority within the meaning of the European Arrest Warrant Act 2003 (as amended)?

 

Lisauskas:

1. In determining whether a prosecuting authority is a valid issuing judicial authority for the purposes of the European Arrest Warrant Act 2003 (as amended)?

(a) is the High Court entitled to rely on a presumption that the issuing judicial authority is a valid issuing judicial authority within the meaning of the European Arrest Warrant Act 2003 (as amended);
(b) is the correct test that the prosecuting authority be independent from the executive and participate in the administration of justice?

2. Was the High Court correct in finding that the Prosecutor General of Lithuania is an issuing judicial authority within the meaning of the European Arrest Warrant Act 2003 (as amended)?

 

The Supreme Court determined that the question of what is the correct test for the High Court to apply in deciding whether an issuing authority is a valid issuing authority for the purposes of the 2003 Act is a matter of general public importance that meets the constitutional threshold for an appeal to the Supreme Court. The Court will manage both cases together.

 

 

DPP v M: Accused’s constitutional right to silence cannot be held to be waived by ambiguous words

In this case,  Director of Public Prosecutions v M, the Supreme Court held that “the constitutional protection afforded to the right to silence is such that waiver cannot be held to be implied by ambiguous words”.

 

Background

Gardai investigated an allegation of indecent assault made against KM. KM produced a prepared written statement at his interrogation, in which he claimed the allegation was “blatantly false”. He responded to all questions put to him by stating he had nothing to say other than what was in the written statement.

At trial, KM objected to the prosecution introducing the transcript of the interview into evidence. KM argued that that would interfere with his right to silence. The Circuit Court trial judge allowed the prosecution to introduce the evidence. The court convicted KM of indecent assault.

KM appealed that decision to the Court of Appeal

 

Case Law

In People (Director of Public Prosecutions) v Finnerty [1999] 4 I.R. 364 the Supreme Court held that the right to silence would be significantly eroded if a jury was invited to draw adverse inferences from an accused’s refusal to answer questions during investigation. In that case, Finnerty had refused to answer all questions put to him. The Court set out principles for future cases:

(1) Where nothing of probative value has emerged as a result of such a detention, but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained, but that nothing of probative value emerged.

(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant, during the course of his detention, to answer any questions, be permitted.

(3) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.

 

Court of Appeal

The Court of Appeal (here) dismissed KM’s appeal. The CoA distinguished this case from Finnerty, stating:

There is a great deal of difference between saying “No comment” or “I don’t wish to say anything”, on the one hand, and saying, having already in fact commented, that “I have nothing to add to what I have said already”, on the other hand [25].

 

Supreme Court 

The Supreme Court granted KM leave on the question:

Where a person has volunteered an exculpatory statement and thereafter responds to questions by referring to the statement and saying that he or she has nothing further to say, should such responses be seen as:

a) an exercise of the right to silence, or

b) relevant and probative evidence in the trial?

 

O’Malley Iseult J wrote the judgment for a five judge panel of the Court.

In brief, the State argued that KM had not exercised his right to silence. He volunteered a statement and referred to it in answer to questions put to him. O’Malley J summarised the KM submission as,

24. The appellant submits that the trial judge and the Court of Appeal erred in their interpretation of what had occurred in the interview. That interpretation is summarised as being that the appellant said, in effect “I have nothing to say in response to this particular question other than what is written in my statement”, whereas the appellant’s contention is that he was saying “I have nothing to say in this interview other than what is written in my statement.”

 

O’Malley J noted a fact from Finnerty that is seemingly overlooked in later case law: Finnerty stated that he was innocent after he was cautioned by the arresting Garda. After advice from counsel, he later exercised his right to silence.

After extensive examination of the case law on the right to silence, and how that applies to the facts in this case, O’Malley J concluded:

66. Furthermore, it has always been accepted that a suspect is entitled to elect to answer some questions and to refuse to answer others. That is why practitioners and trial judges are used to the concept of editing interview memoranda. The making of a voluntary statement, as in this case, amounts to a clear waiver of the right to silence to that extent, but it does not follow that the suspect thereby waives the right in respect of either a prior or subsequent refusal to answer questions. I consider that the constitutional protection afforded to the right to silence is such that waiver cannot be held to be implied by ambiguous words. Moreover, it is not appropriate to parse the words used as if they were the words of a parliamentary draughtsman. A consideration of the context is essential. I would therefore hold that it was incorrect for the trial judge to distinguish Finnerty simply on the ground that the appellant had not employed the “no comment” formula.

 

As the trial judge had not outlined why he considered that the probative value of the evidence outweighed its prejudicial effect, O’Malley J held that it should not have been admitted, allowed the appeal and quashed KM’s conviction.

Ben Clarke BL explains the developing jurisprudence on leave to appeal to the Supreme Court

113087-Ben-Clarke

Ben Clarke BL

Access to the Supreme Court under the New(ish) Constitutional Architecture

In the November 2015 edition of the The Bar Reviewi I examined some of the first Determinations delivered by the Supreme Court under the new constitutional architecture, which has been in place since the 33rd Amendment. In the article I considered what indications these Determinations provided regarding how both on-going and future appeals would be dealt with. In June 2016 I self-published a brief updateii regarding cross appeals in circumstances where the issues raised would not, on a stand alone basis, meet the constitutional threshold, were that party the appellant. In this article, three years into Ireland’s new appellate regime, I consider two further Determinations and one Judgment which add clarity to the following issues:

  1. What constitutes General Public Importance;

  1. What constitutes the Interests of Justice;

  1. Leave to appeal in the context of interlocutory matters, and;

  1. The relevant and / or applicable criteria when applying for leave for a Leapfrog appeal.

Each of these rulings represents the unanimous decision of a full seven judge Supreme Court. As such, each decision can be regarded as the definitive authority on the discreet procedural issues addressed therein.

General Public Importance

In BS v Director of Public Prosecutionsiii, by way of Determination dated 12th November 2017, the Supreme Court ruled on an application under Article 34.5.3° of the Constitution for leave to appeal to the Supreme Court form a Judgment of the Court of Appeal.

The Respondent, Mr. S, had been charged with a count of rape allegedly committed in 1970. Mr. S applied to the High Court for an order prohibiting his trial on the grounds of delay. This application was heard and refused by McDermott J. and thereafter was appealed by Mr. S. The majority decision of the Court of Appeal was delivered by Sheehan J. and held that Mr. S had established sufficient prejudice so as to give rise to a real risk of an unfair trial which could not be overcome by a delay warning, and that the case came within what he described as the “wholly exceptional circumstances category” identified in S.H. v DPPiv. On that basis the appeal was allowed and the trial was prohibited.

The DPP appealed claiming that the constitutional threshold was met by virtue of what was said to be a departure on the part of the Court of Appeal from the established jurisprudence in respect of delay in the criminal context. It was further claimed that some of the issues on which the Court of Appeal based its Judgment had not been the subject of the grant of leave to appeal. Furthermore, the Supreme Court noted that it was suggested, implicitly, that, having regard to the fact that the DPP is charged by law to bring prosecutions, an issue of general public importance arises where the Courts are called on to determine the circumstances in which the DPP is not to be permitted to proceed with a criminal prosecution.

The Supreme Court’s determination in BS provides valuable insight into when a prospective appeal can truly be said to concern the application of well established principles to the particular facts of the relevant proceedings. This is significant as such circumstances will rarely give rise to an issue of general public importance.

The Court noted that general principles operate at a range of levels. On one level there are matters at the highest level of generality which can be described as the fundamental principles applying to the area of law in question. In contrast, the Court noted, at a lower level there may well be established jurisprudence on the proper approach of a Court to the application of such general principles in particular types of circumstances which are likely to occur on a regular basis. The Court clarified the position, stating that:

The mere fact that, at a high level of generality, it may be said that the general principles are well established does not, in and of itself, mean that the way in which such principles may be properly applied in different types of circumstances may not itself potentially give rise to an issue which would meet the constitutional threshold”.

O’Donnell J. echoed this view in a later Judgment, which is considered in more detail below:

A principle may be generally accepted but stated at such a level of generality that the application of the principle in a particular type of case may itself be a matter of general public importance”v.

However, in BS, the Court clearly stated that this was subject to the general caveat that:

[T]he more the questions which might arise on appeal approach the end of the spectrum where they include the application of any principles which might be described as having any general application to the facts of an individual case, the less it will be possible to say that any issue of general public importance arises”.

The Court stated that the overall approach to leave is clear:

Unless it can be said that the case has the potential to influence true matters of principle rather than the application of those matters of principle to the specific facts of the case in question then the constitutional threshold will not be met”.

Interests of Justice

In Price Waterhouse Cooper (A Firm) v Quinn Insurance Limited (Under Administration)vi, by way of Judgment dated 12th December 2017, the Supreme Court provided significant clarity regarding the application of Article 34.5.3°(ii). The Court’s Judgment was written and delivered by O’Donnell J.

The Judgment was given in the context of an application for leave to appeal from a Judgment of the Court of Appeal made by the Defendants in the proceedings, PWCvii. The Court of Appeal had reversed the decision of the High Court in which Costello J. directed that the plaintiff, Quinn Insurance Limited, provide full and better particulars. Although, when delivered, the decision of the Supreme Court could constitute a significant authority regarding further and better particulars, the background details are not relevant for the purposes of this article.

O’Donnell J. noted that the parties had differed sharply in their interpretation of “the interests of justice” as referred to in Article 34.5.3°(ii). The Judgment goes on to provide a summary of the submissions made on behalf of PWC:

“…[I]t was contended that these were broad words of general application. They were words of indeterminate reference such as those often used in statutes or decisions like “fairness”, “reasonableness”, “non arbitrariness”, “clean hands” etc. It was argued that it was not possible to logically deduce from such terms what they were intended to cover, and it was a matter for the court in the light of their experience to interpret and apply the provisions”.

It was noted that the relatively broad terms of the constitutional amendment were contrasted with other possible limitations… to be found elsewhere. By contrast it was said that the wording of the Irish Constitution was much more permissive. Finally it was submitted on behalf of PWC that:

[I]t was necessary simply for the court to form an initial prima facie view as to the possibility of error in the court below, and that… would satisfy the interests of justice. While this might lead to much greater numbers of appeals than might have been anticipated, it was an inevitable consequence of the broad language employed in the Article”.

The Court roundly rejected the broad interpretation proffered by PWC. O’Donnell J. stated that such an interpretation ignored the fact that under the new constitutional architecture it is clear that the default position is that all appeals will be determined finally by the decision of the Court of Appeal… and that a further appeal to the Supreme Court will be exceptional. Under the broad interpretation argued for by PWC O’ Donnell J. noted that it would be pointless to require the court itself to grant leave for appeal since a court would in reality be limited to a consideration of whether an appeal could be said to be unstatable.

The Judge went on to state:

Furthermore, to afford an interpretation of this breadth to Article 34.5.3 (ii) would have the effect of rendering Article 34.5.3 (i) redundant. The argument also erodes any conceptual distinction between error and injustice. The fact that a court might make a decision which a further court might consider to be an error, does not itself establish injustice. Indeed, if there were no limit to the appeals which could be taken, that in itself might be considered an injustice”.

As with the approach adopted by the Court when defining other elements of the constitutional threshold within the new appellate regime, O’Donnell J. indicated that it was neither necessary nor possible at this stage to outline all the circumstances in which the court might consider that leave should be granted in the interests of justice. The Court did however make some broad observations, which are summarised below:

  1. Article 34.5.3°(ii) is best viewed as a “residual category”. If a decision does not involve a matter of general public importance, it may still be contended that it is in the interests of justice that it is necessary that there be an appeal to the Supreme Court. “[I]t is in the nature of the interests of justice criterion that it is sufficiently flexible to respond to the demands of the individual case”.

  1. Cross-appeals – “a point may be made by way of cross-appeal, which itself cannot amount to a matter of general public importance. Nevertheless it would be unjust to permit one party to appeal to the Supreme Court and restrict another party from cross-appeal because the respondent’s appeal point was not itself of general public importance”viii.

  1. Ancillary points – “a point may be raised in a case which itself may not be of general public importance but which is necessary to permit an appellant to argue, since otherwise determination of the issue of general public importance may not resolve the case”ix.

  1. New issues arising in the Court of Appeal – “A further example may be where the point the applicant seeks to advance relates to something which occurred for the first time in the Court of Appeal. It might be said in such circumstances that the interests of justice would be served by permitting an appeal to the Supreme Court even though the matter itself was not itself of general public importance”.

Leave to appeal in the context of interlocutory matters

In PWC v Quinn O’Donnell J. also made observations regarding applications for leave to appeal in the context of decisions arising in interlocutory matters.

The Court noted that the Constitution does not differentiate between an appeal after a full hearing and an appeal arising out of an interlocutory matter. As such the same test is to be applied in either case.

O’Donnell J. noted that:

Some interlocutory appeals may themselves raise classic issues of general public importance such as the appropriate test for the grant of an interlocutory injunction which will be applicable in every application for such an injunction”.

However, while acknowledging that there may be exceptions, the Court stated that it would normally be the case that it would be more difficult to establish that an interlocutory appeal contains an issue of general public importance or that the interests of justice are otherwise engaged. O’Donnell J. explained the reasoning behind this position:

[I]t is in the nature of interlocutory orders that they rarely set a course irrevocably and dictate the outcome of the case. Appeals in interlocutory matters inevitably delay trial, and accordingly appellate courts are reluctant to interfere with the management of a trial, preferring to see a trial concluded and if necessary appealed, unless it is clear that a distinct and critical issue has arisen that requires to be addressed in advance of the trial. It is to be expected that it will be relatively rare that this Court will consider that the constitutional threshold has been met in an interlocutory appeal”.

Leapfrog leave

In Wansboro v Director of Public Prosecutions and anorx, by way of Determination dated 20th November 2017, the Supreme Court ruled on an application under Article 34.5.4° of the Constitution for leave to appeal directly to the Supreme Court from the High Court Judgment of Faherty J.

At the High Court Mr. Wansboro claimed that by virtue of the Judgment of Moriarty J. in Moore & Ors v DPPxi, which found sections 99(9) and 99(10) of the Criminal Justice Act 2016 to be unconstitutional, a Circuit Court Order requiring him to serve reactivated sentences, or portions thereof, was invalid. In his application Mr. Wansboro claimed that an issue of general public importance arose in circumstances where the statutory provision upon which his sentence was reactivated was subsequently found to be unconstitutional. It was claimed that this gave rise to important questions regarding the extent to which previous orders made pursuant to those provisions could remain in force. Mr. Wansboro further claimed that in circumstances where there were extant two decisions of the Court of Appeal following the same reasoning as that adopted by Faherty J., there would be no useful purpose served by requiring that the default procedure of a first appeal to the Court of Appeal be followed. The State, the respondents in the application, argued that the matter involved the application of settled legal principles.

At the outset the Court reiterated what I have previously referred to as the Barlow Principlesxii:

  1. It is a precondition of Article 34.5.4° that the criteria applicable in an ordinary leave application must be satisfied in a leapfrog application, before any additional factors are considered. Therefore the court must be satisfied that the case involves a matter of general public importance or that there is some other reason requiring that the interests of justice be met by such an appeal, and;

  1. If the basic constitutional threshold of public importance or public interest is satisfied the Court must then consider the additional requirement that, in the words of Article 34.5.4°, there are exceptional circumstances warranting a direct appeal to the Supreme Court.

As with the Barlow Determination the Court stated that it was not possible to provide an exhaustive list of what might be considered exceptional circumstances, and restated the point that even in cases where it is likely that there will ultimately be an appeal to the Supreme Court, there will often be advantages to be gained from the filtering process of an intermediate appeal. Again the Court emphasised that the weight to be attached in this regard would vary depending on where a case fell on the spectrum from broad multi-issue appeals to single-issue appeals involving a legal issue clearly meeting the constitutional threshold.

In Wansboro the Court did however go further than it had in Barlow in providing examples of particular factors which point sufficiently strongly in favour of allowing a direct appeal to counterbalance the presumption in favour and advantages of an appeal to the Court of Appeal. In addition to reiterating the second example flagged in Barlowxiii, that notwithstanding the benefit of an initial appeal to the Court of Appeal, the element of temporal urgency could render a matter one appropriate for a leapfrog appeal, the court flagged two additional potentially exceptional circumstances:

  1. While it could not be a decisive factor in and of itself, in applications where the perceived advantages of an intermediate appeal to the Court of Appeal are not particularly strong in the circumstances of the case in question, then the fact that the hearing of two appeals might place a significant, or perhaps a more significant financial burden on one or both of the parties, may carry some weight.

  1. In addition to the general urgency that might arise when, as it was put in Barlow, a clock in the real world is ticking, the Court indicated that it may in certain circumstances, be appropriate to have regard to the need for a speedy determination of a legal issue which has the potential to affect many other cases and where uncertainty as to the law may be causing difficulties for other Courts.

Against these issues the Court once again stressed that notwithstanding the presence of an issue of general public importance, the filtering process of an intermediate appeal may in some circumstances lead to that issue falling away as a result of decisions reached in other elements of a case by the Court of Appeal.

The determination in Wansboro is also of interest due to the fact that the Court took the opportunity to draw attention to what it described as “certificate cases”, being cases where an appeal from the High Court to the Court of Appeal cannot be pursued unless the High Court has issued a certificate permitting such an appealxiv. It is notable that the Court considered this issue not withstanding the fact that Wansboro was not such a case. The Court referred to its Judgment in Gracexv, wherein the Court addressed the implications of the new constitutional architecture for such cases. As has previously been noted in The Bar Review, under the new constitutional framework the Supreme Court’s jurisdiction can be regulated, but it cannot be excludedxvi.

The question raised by the Court in Wansboro was the extent to which the fact that a party may not be able to appeal to the Court of Appeal by reason of the absence of a relevant certificate may provide the “exceptional” circumstances justifying a leapfrog appeal to… the Supreme Court. While the court expressly stated that this was an issue which it would deal with if and when the issue arises, it stated that its Determination in Grace could be regarded as an indication that the impossibility of pursuing an appeal to the Court of Appeal in a case where this Court was satisfied that the general constitutional threshold had been met may, at least in some cases, provide the appropriate exceptional circumstances justifying a leapfrog appeal.

The final point which can be derived from Wansboro is that in circumstances whereby previous and recent Court of Appeal decisions could reasonably be taken as suggesting an inevitable outcome for a prospective intermediary appeal, the Supreme Court may take the view that what is ordinarily gained by an intermediate appeal would be much less likely to arise in the circumstances of… such a case.

Conclusion

The decisions discussed above are indicative of the on-going growth of the new procedural jurisprudence that is quickly developing under Ireland’s new(ish) appellate regime.

i Appeals to the Supreme Court and the new Appellate Regime, The Bar Review, November 2015.

ii The New Appellate Regime – A brief update, McEnery -v- Commissioner of An Garda Síochána, https://www.linkedin.com/pulse/new-appellate-regime-brief-update-mcenery-v-garda-ben-clarke/

iii [2017] IESCDET 134.

iv [2006] 3 IR 575.

v Price Waterhouse Cooper (A Firm) v Quinn Insurance Limited (Under Administration) [2017] IESC 73. O’Donnell J. also noted that; “where an appeal seeks to challenge the application of the High Court or Court of Appeal of well established principles of law which are not themselves the subject of challenge… it will…be rare that this Court could be persuaded to grant leave to appeal”.

vi [2017] IESC 73.

vii It would appear to be the case that a Judgment, rather than a Determination, was delivered on the basis that there had been an oral hearing.

viii Also see McEnery -v- Commissioner of An Garda Síochána [2016] IESC 26 and The New Appellate Regime – A brief update, McEnery -v- Commissioner of An Garda Síochána, https://www.linkedin.com/pulse/new-appellate-regime-brief-update-mcenery-v-garda-ben-clarke/

ix This possibility had been flagged in the early Barlow Determination

x [2017] IESCDET 115.

xi [2006] IEHC 434.

xii Barlow & ors v Minister for Agriculture Food and Marine & ors [2015] IESCDET 8.

xiii The first was that the Court indicated that it was prepared to accept, at the level of principle, that there may be cases which solely due to the issues or questions involved would be rendered exceptional.

xiv The Court offered the example of appeals under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000.

xv Grace & anor v. An Bord Pleanala & ors [2017] IESC 10, see also the Determination in Grace & anor v. An Bórd Pleanála [2016] IESCDET 29.

xvi Shannon Michael Haynes BL, The impressive reach of a ‘leapfrog’ appeal, The Bar Review, June 2017.

DPP v O’Sullivan: Constitutional right to advance notice of DPP’s case is not displaced by s 20 of Criminal Justice Act 1984

In this case Director of Public Prosecutions v O’Sullivan, the Supreme Court held that:

The constitutional right to know in advance the case to be made by the prosecution is not [] displaced in the operation of s.20 of the Criminal Justice Act 1984.

 

Section 20(4) provides:

Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi.

 

Background

The DPP prosecuted O’Sullivan for burglary. Prior to trial, O’Sullivan gave the DPP notice that he would give evidence of an alibi, that he was at the home of his girlfriend (over 20 miles from the burgled premises) on the night previous to and at the time the burglary was committed. At trial, the DPP sought to introduce rebuttal evidence, that a garda had seen O’Sullivan at his mother’s home (close to the burgled premises) on the night previous to the burglary, as required by a curfew order. O’Sullivan objected to that evidence being admitted, as he was not put on notice by the DPP. He argued that it would render the trial unfair, as he would be deprived of the benefit of appropriate legal advice on how to conduct his defence. The trial judge allowed the evidence, and the jury found O’Sullivan guilty.

The Court of Appeal dismissed O’Sullivan’s appeal. It held that, as he had “dropped his shield”, there was no obligation on the DPP to give prior notice that it intended to introduce evidence that could impact on his character.

O’Sullivan sought leave of the Supreme Court for a further appeal. The DPP argued that the case did not meet the constitutional test for an appeal to the Supreme Court, that the facts were case specific and did not raise an issue of general importance. But the Court accepted that the case did raise an issue of general importance and granted O’Sullivan leave to appeal on the question:

What is the extent of the duty (if any) of the prosecution to disclose material in rebuttal of an alibi notice? If there is such a duty, when must disclosure be made?

 

Supreme Court

O’Malley Iseult J wrote the judgment for a unanimous five judge panel. She extensively discussed the history of the development through the common law and statute of the law on the disclosure of evidence. She cited Keane CJ from McKevitt v DPP (unreported, SC, 2003) on how disclosure in Ireland is a constitutional duty:

[T]he prosecution are under a duty to disclose to the defence any material which may be relevant to the case which could either help the defence or damage the prosecution, and if there is such material which is in their possession they are under a constitutional duty to make that available to the defence.

 

O’Malley J stated that, for the purposes of this case, she was prepared to accept the proposition from R v Brown (Winston) [1998] AC 367 that the prosecution could introduce evidence rebutting an alibi without notice where that evidence only goes to the credibility of the witness [78].

But she made a distinction:

There is a significant difference between saying “You should not believe this person because we have shown that he is not a credible person” and saying “You should not believe what this person says about X fact, because we have evidence that contradicts him”. The second goes to proof of a substantive issue in the case [80].

 

Allowing O’Sullivan’s appeal, OMalley J stated:

82. However, the evidence of Garda O’Driscoll could not be seen as simply aimed at establishing that the appellant should not be believed. The alibi notice made the location of the accused an issue in the case, since alibi evidence, as defined in the Act of 1984, evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission. Garda O’Driscoll’s evidence purported to place the appellant at a particular location, proximate to the scene of the offence, at a time when, according to his own evidence, he was not there. In my view it must be seen primarily as evidence relating to a disputed factual issue, the issue being the location of the appellant during the night and early morning in question. The added description of the evidence as “formal” is not of assistance in the circumstances.

83. There is the further consideration that, even if the analysis of the evidence as going only to credibility was correct in this particular case, it remains a disputed piece of evidence. To say that the defence should have known about it and anticipated it is to assume its truth, but that is not a permissible approach in terms of logic.

K v Minister for Justice: Minister not required to state the date by which the recipient must leave the State on face of deportation order

In this case, K v Minister for Justice & Equality, the Supreme Court held, in line with precedent, that s 3 of the Immigration Act 1999 does not require that the Minister specify on the face of a deportation order the date by which the recipient must leave the State. The Minister’s practice of notifying the recipient of that date by letter served with the order is sufficient.

 

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.

 

Background

K is a Pakistani national. He entered the State in 2012 and sought asylum status. That application was refused, as was his application for subsidiary protection. In January 2017 the Minister issued a deportation order in the manner prescribed in the underlying regulation. The order was served along with a registered letter stating that K was required to leave the State by 3rd March 2017.

K sought judicial review seeking an order quashing the Minister’s order. He argued that s 3 of the 1999 Act required that the Minister state on the face of the order the date by which he was required to leave the State. The High Court refused K’s application, stating that the authorities on this issue are clear, and refused certification for an appeal to the Court of Appeal.

K applied to the Supreme Court for leave for a leapfrog appeal. He argued that the Supreme Court case that is accepted authority did not directly address the issue and should be reviewed. The Court granted K leave 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?

O’Donnell J, writing for a unanimous five judge panel dismissed K’s appeal on two grounds: the Mogul principle and the Barras principle.

Mogul principle

In Mogul of Ireland v Tipperary (NR) County Council [1976] 1 IR 260 the Supreme Court held that it would not overturn an earlier judgment just because a different Court would have reached a different decision It would only do so where the decision was clearly wrong or where justice required it.

Barras principle

This stems from a House of Lords decision that where a court has interpreted a section of a statute as having a specific meaning and the legislature re-enacts the same words in a similar context, it is presumed that the legislature has endorsed that interpretation.

The authority that K argued needed to be reviewed was FP v The Minister for Justice [2002] 1 IR 164 where Hardiman J rejected an argument that a deportation order should state the date of the effect of the order.

O’Donnell J noted that K’s strongest argument is that s 3 of the 1999 Act is open to two interpretations. But in FP the Court rejected the interpretation that K is proposing. And s 3 has been re-enacted in “essentially identical terms” by statutory instruments in 2005 and 2017. Therefore, under the Barras principle, there is a legal presumption that the legislature approved of the Court’s interpretation. And the Mogul principle prohibits the Court from overturning FP, as K had not shown that the decision in that case was clearly wrong or that justice required that it should be overturned.

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