GRA V Minister for Public Expenditure & Reform: Gardai had no entitlement to specific consultation process on terms of sick leave

In Garda Representative Association v Minister for Public Expenditure and Reform, the Supreme Court accepted, for the purposes of this case, that due to the statutory interference with the Gardai’s constitutional right join a union, it may be required as a matter of proportionality that they have a right to consultation with the Minister regarding their conditions of employment and remuneration. But there is no right to any specific form of consultative process. Given that, the Minister had not breached any entitlement to consultation in introducing regulations altering the sick pay entitlements of public servants, including Gardai.



Garda Síochána Act 2005

Section 122 of the 2005 Act provides:

(1) The Minister may, after consulting with the Garda Commissioner and with the approval of the Government, make regulations for the management of the Garda Síochána, including regulations relating to any or all of the following matters:

(g) the pay and allowances of members, including the conditions under which they are payable;


Section 122(6) provides:

Before making regulations under subsection (1)(g) or (i), the Minister shall—

(a) submit a draft of the regulations to the associations referred to in section 18 representing the ranks and grades in the Garda Síochána who would be affected by the regulations, and

(b) consider any representations made to him or her in respect of the draft regulations by any of those associations.


In response to budgetary constraints at the time, the Government introduced the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013.

Section 58B provides:

(1) Without prejudice to subsection (5) and subject to subsections (2) and (7), the Minister may make regulations providing for the payment of remuneration, in circumstances specified in the regulations and subject to such conditions as are specified therein, to a relevant person during a period of sick leave on his or her part, and that remuneration shall be (as the Minister determines and specifies in the regulations)—

(a) the whole amount of the remuneration that would otherwise accrue to the person,

(b) a percentage specified in the regulations of the whole amount referred to in paragraph (a), or …

Section 58C provides:

This Part has effect notwithstanding—

(a) any provision made by or under—

(i) any other Act,

(ii) any statute or other document to like effect of a university or other third level institution,

(iii) any circular or instrument or other document,

(iv) any written agreement or contractual arrangement,


(b) any verbal agreement, arrangement or understanding or any expectation.


Under the 2013 Act, the Minister introduced the Public Service Management (Sick Leave) Regulations 2014, reducing the entitlements of public service workers, including Gardai, to sick pay.

The GRA applied to the High Court for a declaration that the 2014 Regulations did not apply to its members. The High Court (Kearns P) rejected that application, as the relief sought would amount to an untenable limit on the power to legislate.

The Court of Appeal (Finlay Geoghegan J & Hogan J) rejected the GRA’s appeal, finding that that the High Court decision was correct.

The GRA applied to the Supreme Court for leave to appeal.


Supreme Court

The Court determined that the GRA had raised questions of general importance and granted leave. Those questions were defined during case management to:

(a) Whether decisions of Government which impact on existing entitlements of workers in the public service require, prior to being changed to the detriment of such workers, either consultation with those so affected or any other form of procedure, such as procedural fairness?

(b) Can the doctrine of legitimate expectation arise in the particular context at issue in this appeal?

(c) Where a representation is made, if, which is denied, any such was made here, which gives rise to a legitimate expectation that Government will be bound to a particular course of action, may this be resiled from or withdrawn without legal consequence?

(d) Whether the conditions for liability for legitimate expectation also require that the party or parties, to which a representation is held out, change their position to their detriment, or otherwise act on same so that it would be inequitable for the Government to go back on that representation?

Clarke CJ wrote the judgment for the unanimous five judge panel. He concluded:

10.1 In summary, therefore, for the reasons set out earlier in this judgment, I have first concluded that the relevant statutory regimes do not, of themselves, confer any right to be consulted prior to the making of regulations by the Minister for Public Expenditure and Reform under the measures introduced by the 2013 Act. The Regulations were introduced under that Act. That Act is, in its terms, stated to apply notwithstanding any other legislative provision.

10.2 I have, for the purposes of the argument, been prepared to accept that it is possible that the GRA was entitled to some engagement prior to the making of such Regulations on one or other or both of two bases. The first being the possibility that the restrictions placed on the ability of An Garda Síochána to conduct what for others might be considered to be ordinary industrial relations may give rise to an entitlement to be consulted. The second is that it may again be arguable that the history of the engagement between the parties is such as to give rise to a legitimate expectation that some form of consultation or the right to make representations would be afforded. However, I have also concluded that under neither of those headings is it arguable that there could be a right to any specific form of process. Rather the height of the argument could only extend to an entitlement to a generalised form of consultation or facility to make representations.

10.3 On that basis I have considered the facts and concluded that no breach of any such general entitlement has been established. There was a lengthy engagement between what might loosely be called the Government side and the GRA. On that basis I have come to the view that, even if any generalised right of the type which I have described could be said to arise on any of the legal bases put forward, no breach of any such entitlement has been established. For that reason I do not consider it necessary to finally determine whether any such rights exist in the first place for even if they do, such rights have not been breached.

10.4 For those reasons I would dismiss the appeal and affirm the orders of the Courts below.


Bates v Minister for Agriculture, Fisheries and Food: Minister has duty of care when providing advice outside of statutory duty

Here, Bates & Moore v Minister for Agriculture, Fisheries and Food, the Supreme Court upheld the High Court judgment that the Minister had assumed a duty of care towards Bates and Moore where the Department provided them with advice, where it was known that they were likely to rely upon it and where the provision of advice was outside of the Department’s statutory duty.



Bates and Moore operate fishing boats. In 2003 they were fishing for scallops in the Bay of Biscay, just outside of French territorial waters. A French fishing patrol informed them that it was illegal for them to fish for scallops in that area and advised them to move further north.

Bates contacted the Department with a query as to whether their fishing was legal. The Department informed him, based on an incorrectly translated Regulation, that it was legal for them to fish for scallops in that area. They returned to their previous fishing area. The French authorities arrested the boats and imposed fines and civil charges on Bates and Moore (the High Court and Supreme Court judgments give different amounts).

Bates and Moore issued High Court proceeding against the Minister seeking damages on the basis of legitimate expectation.

In the High Court, Laffoy J dismissed their claim under legitimate expectation but held that the Minister did have a duty of care when providing information outside of any statutory duty. And the Minister was vicariously liable for whichever official within the Department was responsible for not having a correct translation of the Regulation available. She awarded Bates and Moore damages that arose as a direct result of the misstatement.

The Minister appealed that decision to the Supreme Court.

Charleton J wrote the judgment for the three judge panel. He stated:

  1. The law remains as stated in Pine Valley Developments v The Minister for the Environment [1987] IR 23. Thus, while no duty of care may be owed in the exercise of public functions by a public body, nonetheless, there is not immunity from tort outside misfeasance in public office.

Rejecting the Minister’s appeal, Charleton J outlined how the Minister’s duty of care arose:

26. Mere reliance cannot be enough and nor is the knowledge that the person seeking the advice is likely to rely on it. That is to equate foreseeability of risk with the imposition of a duty of care. Since the primary question is whether there is a duty of care in the particular circumstances, the nature of what information is sought, the party from whom it is sought and the relationship between them are the points of focus. This was a classic case of the voluntary assumption of responsibility by the defendant Department in circumstances where it was likely that fishermen would rely on it. Here, the information sought by the plaintiff was in a situation of peril, that of imminent arrest. The guidance given was particular to that situation. It involved the consultation of documents that reposed within the expertise of the Department. While the relationship between the parties was not a professional one, or, to use the language from some of the older cases, one that would be regarded as equivalent to contract, in the situation from which advice was called for and the assumption of responsibility to provide accurate information which the Department assumed, this was what is now more commonly referred to as a special relationship giving rise to liability for negligent advice.

New Appeal: Can a court make a finding of fact contrary to testimony based on uncorroborated documents?

In this determination, RAS Medical Limited, t/a Park West Clinic v The Royal College of Surgeons Ireland, the Supreme Court granted the Royal College leave to appeal on the question:

is ever appropriate for a court, whether it be a court of first instance or an appellate court, to reach a finding of fact contrary to the testimony of a witness and based upon documents which have not been put to the witness in cross-examination?



RAS is a private health clinic specialising in cosmetic surgery. The Royal College is a postgraduate medical training body. The Medical Practitioners Act 2007 delegates responsibility to the Royal College for, among other things, “the ongoing maintenance of the professional competence of medical practitioners” s 91(1).

The RAS proposed to run an event titled “One Day Masterclass on Polyurethane Breast Implants and Cosmetic Surgery”. The Royal College refused to accredit the event for continuing professional development (CPD). The RAS sought judicial review of that decision seeking an order of certiorari quashing that decision. As there was a dispute as to a matter of fact, the trial judge ordered discovery of documents. The High Court refused the RAS application. RAS appealed to the Court of Appeal.

The Court of Appeal overturned the High Court decision based on acceptance of information in the discovered documents which conflicted with the sworn testimony of a Royal College witness.

The Royal College applied to the Supreme Court fro leave to appeal that decision.


Supreme Court

The Court determined that the Royal College had raised an issue of general importance and granted leave on the above question, stating:

  1. While it by no means arises in every case, there are certain judicial review proceedings, of which this is one, where discovery is ordered. It is well settled that discovered documents cannot be admitted in evidence unless the parties agree, or in plenary proceedings an appropriate witness is called to prove the document in question. Sometimes the parties may agree that documents can be admitted on the basis that their existence is accepted but without it being agreed that the documents in question can be taken to be evidence of the truth of their contents. Sometimes, on what is frequently referred to as the Bula/Fyffes basis, parties may go further and agree that documents discovered may be admitted as prima facie proof of the truth of their contents, at least insofar as such evidence may be tendered against the party producing the document in question and subject to the right of the party concerned to contest the accuracy of the facts set out in the documents in question. However, Courts have repeatedly emphasised the importance of there being clarity as to the basis on which documents are thus admitted. It is particularly important that discovered documents are not simply handed into court without there being a clear understanding as to the basis on which the judge is to consider the documents in question.


  1. Against that backdrop the Court is satisfied that the circumstances in which certain discovered documents came to be before the courts below, be considered by those courts and form the basis, at least in part, of the judgment, gives rise to an issue of general public importance not least because it is of some significance to bring further clarity to the way in which discovered documents can be deployed in all proceedings but in particular proceedings which are, prima facie, likely to be heard on affidavit.

New Appeal: Does Brexit prohibit surrender of an EU citizen to the UK under an EU arrest warrant?

In this judgment, Minister for Justice v O’Connor, the Supreme Court granted O’Connor leave for a leapfrog appeal from the High Court. As a preliminary issue, the Court decided to make a reference to the Court of Justice of the European Union. The Court proposed a draft question:


Having regard to:

(1) (a) The giving by the United Kingdom of notice under Article 50 of the TEU;

(b) The uncertainty as to the arrangements which will be put in place between the European Union and the United Kingdom to govern relations after the departure of the United Kingdom; and

(c) The consequential uncertainty as to the extent to which Mr. O’Connor would, in practice, be able to enjoy rights under the Treaties, the Charter or relevant legislation, should he be surrendered to the United Kingdom and remain incarcerated after the departure of the United Kingdom.

Is a requested state required to decline to surrender to the United Kingdom a person the subject of a European arrest warrant, whose surrender would otherwise be permitted, either

(i) in all cases?

(ii) having regard to the particular circumstances of the case? or

(iii) in no cases?

(2) If the answer to Q. 2 is that set out at (ii) what are the criteria or considerations which a court in the requested member state must assess to determine whether surrender is required?

(3) In the context of Q. 2, can the Court of a requested member state postpone the finalisation of a request for surrender to await greater clarity about the relevant legal regime which is to be put in place after the withdrawal of the relevant requesting member state from the Union?



In 2006 Blackfriars Crown Court convicted O’Connor on two counts of tax fraud and released him on bail pending sentencing. When he did not attend court for sentencing, the judge sentenced him, in his absence, to two concurrent sentences of four years and six months.

In 2011 the UK issued a European arrest warrant seeking O’Connor’s surrender from this jurisdiction. The High Court endorsed that warrant. Gardai arrested O’Connor, and the High Court granted the Minister an order for O’Connor’s surrender. The Supreme Court granted O’Connor leave to appeal on an issue of the provision of legal aid (post). When that appeal was unsuccessful, the case returned to the High Court.

O’Connor then objected to his surrender on grounds that, as the United Kingdom had triggered the Brexit process, his rights as an EU citizen could not be guaranteed after March 2019. The High Court rejected that argument (here) and refused to grant a certificate for an appeal to the Court of Appeal. O’Connor applied for leave to appeal to the Supreme Court.

Generally applications for leave to appeal to the Supreme Court are determined on written submissions by three judges. In this case, the Court convened an extended panel and heard oral submissions from the parties.

O’Connor opposed the Minister’s intention to surrender him to the United Kingdom in circumstances where it may not be within the jurisdiction of the CJEU post Brexit and where rights accruing to him under the Charter of Fundamental rights may not be capable of enforcement.

The Court accepted that this is an issue of general public importance (there are 20 similar cases pending). The Court also determined that the case met the constitutional threshold of involving exceptional circumstances for a leapfrog appeal, as the High Court had refused a certificate to appeal to the Court of Appeal.

Rowan v Kerry Co Co: Supreme Court has some discretion to refuse leave to appeal even where there is an important issue of law

In Rowan v Kerry County Council the Supreme Court clarified that:

The effect of the 33rd Amendment is to grant the Supreme Court jurisdiction in appeals meeting the constitutional threshold, but there remains a residual question of whether it is appropriate to exercise that jurisdiction in any case. The amendment limits those cases which may be appealed to this Court: it does not compel the Court to exercise the jurisdiction in every case which satisfies the test appeal.



In 2012 the High Court rejected Rowan’s application for judicial review of a planning decision and made an order for costs against him. Rowan did not apply to the High Court for a certificate to appeal that decision to the Supreme Court, as would have been required by s 50 of the Planning and Development Act 2000.

In Grace & Sweetman v An Bord Pleanála the Supreme Court determined that the 33rd Amendment to the Constitution removed the Óireachtas’s power to restrict appeals from the High Court to the Supreme Court.

In 2017 Rowan applied to the Supreme Court for leave to appeal the 2012 High Court decision, arguing that the 33rd Amendment had retrospective effect. The Court refused to extend time for leave to appeal but determined that Rowan had raised an issue of public importance: the extent to which the 33rd Amendment can act retrospectively.

Dunne J (here) wrote the judgment for the unanimous five judge panel. She held that in the absence of a certificate for leave to appeal from the High Court the proceedings were at an end and could not be “resurrected by the happenstance of a constitutional amendment”.

In a concurring judgment (here), O’Donnell J addressed another issue which arose, which the Court had not clarified before: whether the Court has discretion to refuse leave to appeal where an appellant has otherwise met the constitutional threshold. Finding that the Court does have some discretion, he presented an example:

A mundane example may arise where in a particular case it is apparent that there may be an important issue of law, but it is neither clearly presented nor precisely identified so as to permit to the Court to have a clear hearing and determination of the issue. In such a case, it may be that the Court would decline to grant leave.

Sweetman v An Bord Pleanála: collateral attack jurisprudence only applies where an earlier decision is intended to be final

In Sweetman v An Bord Pleanála & Ors the Supreme Court held that “collateral attack jurisprudence should only be deployed to prevent a substantive case being heard in circumstances where it is clear, on a proper analysis of the relevant scheme, that an earlier decision taken at some point in the process in question is intended to be final and definitive concerning the issue in question”.



In Commission v Ireland (Case C-215/06) the Court of Justice of the European Union held that the Irish system of granting retention of planning permission was not in compliance with the Environmental Impact Assessment Directive (Directive 85/337) as it permitted the granting of permission without a prior environmental impact assessment.

56 In addition, the grant of such a retention permission, use of which Ireland recognises to be common in planning matters lacking any exceptional circumstances, has the result, under Irish law, that the obligations imposed by Directive 85/337 as amended are considered to have in fact been satisfied.”

57 While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the conditions that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.


The Government amended the Planning and Development Act 2000 to provide for “gateways” through which developers could apply for substituted planning permission.

In this case, Donegal County Council identified a quarry operated by the notice party, Houston, as requiring substituted permission and issued a notice to that effect. Houston applied to An Bord Pleanála for substituted permission. The Bord granted permission.

Sweetman applied to the High Court for judicial review of that decision. He argued that the Bord did not consider if there were exceptional circumstances in the case to warrant a grant of substituted permission, and that such a consideration is required by the CJEU decision in Commission v Ireland. The State sought to have Sweetman’s application struck out on grounds that it was a collateral attack on the Council’s earlier decision.

The High Court dismissed the State’s application, holding that the Bord was only body that could consider the issue of exceptionality. The Court of Appeal upheld that decision on appeal. The Supreme Court granted the State leave to appeal.


Supreme Court

Clarke CJ wrote the judgment for a unanimous five judge panel. He concluded that it was not necessary to resolve whether the Bord is required to consider if there are exceptional circumstances. That is the substantive issue for the High Court should the judicial review proceed. The issue was whether the case should proceed. Clarke CJ reviewed the jurisprudence on collateral attack and concluded:

8.1 For the reasons set out in this judgment I would conclude that the collateral attack jurisprudence should only be deployed to prevent a substantive case being heard in circumstances where it is clear, on a proper analysis of the relevant scheme, that an earlier decision taken at some point in the process in question is intended to be final and definitive concerning the issue in question. In such a case it will follow that an attempt to challenge the validity of the earlier decision, as grounds against the validity of a subsequent decision in the same process, outside of the time limit for challenging the original decision, amounts to an impermissible out of time collateral challenge to the decision earlier made and is in breach of the principle of legal certainty.

8.2 However, for the reasons already noted, such a course of action is only appropriate in a clear case. For the reasons set out earlier in this judgment I am not satisfied that this is such a clear case. Rather it is a case where it is necessary to determine at least some of the substantive issues which would arise in these proceedings in order properly to analyse the scheme as a whole and determine at what point, if any, the question of individual exceptionality must be assessed. It follows that this is the kind of case where the answer to the question of whether a challenge such as that brought by Mr. Sweetman amounts to an impermissible collateral challenge requires a consideration of the substantive issues which arise in the proceedings in any event. For those reasons I would uphold the decision of both the High Court and the Court of Appeal to the effect that the substantive proceedings should go ahead.

New Appeal: Must a trial judge give an accomplice warning, even where that’s not requested by counsel for the defence?

In this determination, Director of Public Prosecutions v Fitzgerald, the Supreme Court granted Fitzgerald leave to appeal on the question:

Whether a trial judge is required to give an accomplice warning, even where the trial judge is not requested to do so by counsel for the defence.



A jury convicted Fitzgerald of murder. At trial, Kelly gave evidence for the prosecution that Fitzgerald had been in her home prior to the killing; that he was in possession of a shotgun; that he left her home with the shotgun; that she heard shots fired at a neighbouring house; and that Fitzgerald returned to her home with the shotgun claiming to have killed the victim.

Fitzgerald was represented at trial by a solicitor, barrister and Senior counsel. The trial judge inquired whether Fitzgerald wanted the jury to be given an accomplice warning. Fitzgerald’s legal team did not request a warning.

After his conviction, Fitzgerald changed solicitor and appealed his conviction to the Court of Appeal. Among other grounds, he claimed that his conviction was unsound due to the trial judge not giving the jury an accomplice warning on Kelly’s evidence. The Court of Appeal accepted that Kelly was an accomplice but dismissed his appeal on grounds that the trial judge was not required to give a warning where the defendant had not requested one. Fitzgerald applied to the Supreme Court for leave to appeal.


Supreme Court

The State objected to Fitzgerald’s application, arguing that the law in this area is clear and no issue of general importance arose. Also, it argued that Fitzgerald chose to undermine Kelly’s evidence by other means, and if the trial judge had done so it would have been an interference with Fitzgerald’s right to conduct his defence in the manner of his own choosing.

But the Court determined that:

In the circumstances of this case, it is clear that the Court of Appeal viewed Ms. Kelly as an accomplice; notwithstanding that view, having regard to the way in which the defence was conducted, it concluded that no corroboration warning was necessary in respect of her evidence. The question therefore arises as to whether such a warning is required or not. The Court is satisfied that the Applicant herein has raised an issue of general public importance, namely:

“Whether a trial judge is required to give an accomplice warning, even where the trial judge is not requested to do so by counsel for the defence.”

AAA v Minister for Justice: No right to an appeal, on merits, of Minister’s decision to refuse subsidiary protection

In AAA v Minister for Justice, the Supreme Court held that:

1. judicial review is an effective remedy providing “a thorough review” of the Minister’s decision to refuse subsidiary protection (NM v The Minister for Justice, Equality and Law Reform [2016] IECA 217, Hogan J); and,

2. “as a rule” there is no right to an oral hearing in an application for subsidiary protection where there has already been oral hearings in relation to an application for asylum (Case C-277/11, MM v Minister for Justice, Equality and Law Reform, 22 November 2012).



In 2007, A arrived in the State from Nigeria. She was pregnant and was accompanied by her two other children. The Applications Commissioner refused her application for asylum. And the Refugee Appeals Tribunal refused her appeal for lack of credibility of her evidence but advised her of her right to apply to the Minister for Justice to remain in the State on humanitarian grounds (subsidiary protection). The Minister refused A’s application.

A applied to the High Court to commence judicial review proceedings on grounds that, firstly, where the Minister refuses an application for subsidiary protection there should be a right to a full judicial appeal on merits and the law. And secondly, that there is no effective examination of an application where the Minister does not hold an oral interview. Cooke J granted leave on more limited grounds: that the Minister’s deportation order is invalid as he did not personally consider the application. McDermott J refused A’s application.

This appeal is against Cooke J’s decision not to grant leave on the broader grounds applied for. As the appeal was lodged in 2012 (prior to the creation of the Court of Appeal), it came direct from the High Court and was heard by a three judge panel.


Supreme Court

Charleton J wrote the judgment of the Court (Dunne J and Hogan J both concurred). He reviewed the case law on the limitations of the remedy of judicial review, and the recent developments of its application in asylum cases. He pointed out that since Meadows v Minister for Justice the Courts have applied a proportionality test when examining the reasonableness of the decision under challenge. Any decision which effects rights should be proportionate to the objective to be achieved. And he followed the analysis Hogan J in NM v The Minister for Justice, Equality and Law Reform where the Court of Appeal held that judicial review, post-Meadows, is sufficiently flexible to provide a thorough review as required by Article 39 of the Asylum Procedures Directive (2005/85/EC).

And on the right to be heard, the Supreme Court resolved that issue in the recent case of MM v Minister for Justice Equality and Law Reform, where the Court made a preliminary reference to the CJEU on:

1. Does the “right to be heard” in European Union law require that an applicant for subsidiary protection, made pursuant to Council Directive 2004/83/EC, be accorded an oral hearing of that application, including the right to call or cross-examine witnesses, when the application is made in circumstances where the Member State concerned operates two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection, respectively?

The CJEU answered:

The right to be heard, as applicable in the context of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, does not require, as a rule, that, where national legislation, such as that at issue in the main proceedings, provides for two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, the applicant for subsidiary protection is to have the right to an interview relating to his application and the right to call or cross-examine witnesses when that interview takes place.

An interview must nonetheless be arranged where specific circumstances, relating to the elements available to the competent authority or to the personal or general circumstances in which the application for subsidiary protection has been made, render it necessary in order to examine that application with full knowledge of the facts, a matter which is for the referring court to establish.

DPP v Rattigan: Statutory changes to rules of evidence can apply in any trial after commencement of Act

In Director of Public Prosecutions v Rattigan, the Supreme Court unanimously held that s 16 of the Criminal Justice Act 2006 “does not breach the principle against retrospectivity since it brought about a change in the rules of evidence that could only apply to trials taking place after the Act came into force”. The Court split 3/2 on the issue of whether the trial judge’s concluding remarks to the jury reflected his personal opinion and risked influenced the jury. The majority held that he did and allowed Rattigan’s appeal.


S s 16 of the Criminal Justice Act 2006

S 16 (here) permits a trial judge to admit statements made outside of court into evidence in defined circumstances; such as, where a witness’s evidence in court contradicts or differs from their statement made prior to trial.



Declan Gavin was stabbed to death in 2001. Witness statements identified Rattigan as the murderer. The investigating gardai sent their file to the DPP in March 2002. In September 2003, the DPP ordered that Rattigan be arrested and charged with Gavin’s murder. The District Court ordered his detention. But after seven appearances where the DPP failed to serve the book of evidence, the District Court struck out proceedings.

In 2005, the DPP again ordered that Rattigan be arrested and charged with the same offence. Rattigan brought judicial review proceedings seeking to prohibit his trial on grounds of delay. The High Court refused that application in 2006. In 2008, the Supreme Court held that there was culpable and unjustified delay by the DPP. But found that Rattigan had not demonstrated any real risk of an unfair trial and refused his appeal.

In early 2009, the first trial collapsed. In December that year a jury convicted Rattigan of murdering Declan Gavin. Rattigan appealed to the Court of Criminal Appeal, challenging the legality of the trial judge permitting the DPP to avail of s 16 of the 2006 Act and the legality of the judge’s concluding remarks to the jury. The Court of Criminal Appeal dismissed Rattigan’s appeal on both grounds but certified a question of law of exceptional public importance to the Spreme Court:

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?


Supreme Court

Rattigan argued that s 16 could not act retrospectively to statements made before the coming into force of the 2006 Act. But even if it could, the DPP should not be allowed in this case to benefit from that office’s culpable delay in prosecution by availing of a statutory development in the law on the admissibility of evidence which came into force during that unjustified period of delay. The Court also allowed argument on the issue of the trial judge’s direction to the jury.

O’Malley J wrote the majority judgment. She agreed with the Court of Criminal Appeal’s analysis that the law on retrospectivity applies to changes to substantive law and not to the rules of evidence; and its rejection of Rattigan’s argument that there is no clear distinction between substantive and procedural law. Rattigan had argued that that distinction is a matter of degree. The more serious the right affected, the more reluctant a trial judge should be to draw that distinction. The Court of Criminal Appeal rejected that test as vague and unpredictable. O’Malley J did also. And she rejected Rattigan’s grounds of unfairness due to delay, as he had not identified any right affected by the utilisation of s 16. But she gave this guidance:

45. However I think it worth noting here that the question of delay might well, in some circumstances, give good grounds for a refusal on the part of the trial judge. For example, in a case involving civilian witnesses it is always likely that oral evidence will differ to some degree from the statements of proposed evidence contained in the Book of Evidence. Because of the process by which they are taken, written statements may have a structure, coherence and attention to sequential detail that may be absent when the witness attempts to give a narrative in oral evidence. Any significant lapse of time between the making of the statement and the trial is capable of exacerbating this situation and of impairing the accuracy of a witness’s memory in any event. This is a normal feature of human life. In my view trial judges should be careful not to permit the prosecution, in cases where it has been responsible for delay, to “improve” its evidence by invoking the section in circumstances not within the intent of the legislature.

Dunne J agreed with the majority on the use of s 16, but dissented on the issue of the trial judge’s direction to the jury. Charleston J agreed with Dunne.

The trial judge gave the following conclusion to his summation:

“Essentially, the prosecution contend that Mr. Rattigan was the knife man. If they’re wrong about that, and the knife man was someone else, then there’s no doubt that Mr. Rattigan has been most unfortunate. He was unfortunate, in the first instance if he wasn’t the knife man, in leaving his finger marks in two places at the crime scene, and not just anywhere in the general vicinity of the crime scene, but on a door and window close to where a number of witnesses have put the knife man. It was unlucky that one of the marks was left in a red substance which had the appearance of blood, unlucky in that if the red substance was not blood at all or if it was blood, that it was blood from somebody else at the scene, that it should be located four inches away from a point where a swab was taken, which was established to match that – the DNA profile matched the blood of Mr. Gavin. He was unlucky that the knife man used a Nissan Micra motorcar similar to a Nissan Micra owned and driven by a friend of his, unlucky that the vehicle belonging to his friend was thought to have been seen outside the shopping centre and that the vehicle was burnt out a few hours later, unlucky that those involved in the incident happened to use the same term of abuse – “rats” – as a term of abuse that he used when interviewed by the gardaí, though you may take the view that it’s a term that probably isn’t confined to any one individual, and that there will be a particular section of the public for whom it is probably commonplace. Then, unlucky that he would compound his difficulties by telling lies and bringing even greater problems on himself, lies if you accept the fact that what he’s supposed to have said was in fact said, and that the prints on the window and the door are, in fact, his.

So, unlucky. However, there are people who are unlucky, and unusual coincidences do sometimes happen. Before you can convict in this case, you have to be satisfied beyond a reasonable doubt that the combination of these matters is not a coincidence. You have to be satisfied indeed that the suggestion of coincidence amounts to an affront or an insult to your intelligence.”

Dunne J and Charleton J agreed with O’Donnell J’s statement in the Court of Criminal Appeal:

At the end of this lengthy period there was however a large number of individual pieces of evidence which required to be gathered and synthesised. When that exercise was done certain observations might readily be made about the logical conclusions that were open if that evidence was accepted – and it was not seriously challenged. In this case the judge did not comment on the veracity of any witness, or express his own views on some contested issue of fact which lay readily and properly within the expertise of the jury. Instead he made certain observations on the logic of the existing evidence with which it must be said it is difficult to argue. The particular passage is, as the applicant submitted, both clearly and powerfully expressed, but clarity of expression and analysis is not necessarily a vice in a trial judge attempting to give assistance to the jury by way of an oral presentation which will be heard only once by the jury. Ultimately this is a matter for the judgment of this Court. Taken in the overall context of this case, the Court does not consider that the charge to the jury can be said to be unbalanced or that the trial judge commented in a fashion which was inappropriate for a trial judge. Accordingly, these grounds of appeal fail.

But the three judge majority of the Supreme Court found that the trial judge’s comments “went further than were desirable” and may have influenced members of the jury.

Quinn v Athlone Town Council: No breach of Convention rights as claimant did not object to impugned order

Here, Quinn v Athlone Town Council, the Supreme Court dismissed Quinn’s action seeking damages for breach of her rights under the European Convention on Human Rights as she had not objected to the Council’s application for the order of mandamus which she alleged had caused that breach.



Quinn was a tenant of Athlone Town Council. In 2008, the Council issued a summons under s 62 of the Housing Act 1966 seeking possession of the rented property from Quinn on grounds of antisocial behaviour. In 2009, the Council began legal proceedings in the District Court on foot of that ejectment summons. Quinn applied to the High Court for judicial review seeking a number of reliefs, including a declaration that s 62 is incompatible with the ECHR and that the Council didn’t perform its function in compliance with the State’s obligations under the ECHR. The case continued before the District Court, where Quinn was represented. The District Court adjourned the case on a number of occasions during 2009 on undertakings from Quinn that she would not engage in antisocial behaviour.

In frustration at the District Court’s adjournments, the Council applied to the High Court for an order of mandamus directing the District Court to grant the Council an order for possession. Quinn’s solicitor wrote to the Council advising that she would not be participating in these proceedings. The High Court granted the order sought, and the Council recovered possession of the property.

In 2010, the High Court delivered judgment dismissing Quinn’s application. The trial judge held that Quinn issued proceedings out of time: she should have done so when the Council issued the notice to quit. That Quinn had given no convincing reasons for the Court to extend time. And Quinn had acquiesced in the District Court proceedings.

Quinn appealed that decision to the Supreme Court. (That was pre-33rd Amendment, so there was a right of appeal).


Supreme Court

Although Quinn had lost possession of the property, she argued that the appeal was not moot, as her proceedings before the High Court included a claim for damages.

Dunne J wrote the judgment for a unanimous five judge panel. Dismissing Quinn’s appeal, she stated:

How can Ms. Quinn be entitled to damages for an alleged breach of her European Convention rights in circumstances where she did not oppose the making of that order in the related judicial review proceedings? What possible breach of her rights could have occurred in circumstances where she was ultimately evicted on foot of a valid court order made following an unopposed application for mandamus? Quite simply, it seems to me that there could be no breach of Ms. Quinn’s right under the European Convention where she was evicted on foot of a valid warrant of execution. Thus, it seems to me that the question of damages for an alleged breach of her rights under the European Convention simply cannot arise.

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