Anthony Kelly v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Kearns P.
• Judgment Date: 27 March 2015
• Neutral Citation: [2015] IEHC 218
• Docket Number: [No. 9446P/2008]
• Date: 27 March 2015

Kelly v Min for Justice & Ors

BETWEEN

ANTHONY KELLY

PLAINTIFF

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2015] IEHC 218

[No. 9446P/2008]

THE HIGH COURT

Equality - Plaintiff”s costs - Appeal against refusal of costs order - Equal access to courts - Equality of arms - Constitutional validity of legislation - Article 40.1 of Constitution - S. 24 of the Criminal Justice Act 2006

Facts The plaintiff was charged with murder on the 17th October 2006. He subsequently stood trial and was acquitted by a jury. The defence of the plaintiff had been funded personally and at the conclusion of the trial he indicated his intention to recover the costs for his defence. By written judgment the learned trial judge refused the application for the plaintiff”s costs. Following said refusal, appeals were lodged in both the Supreme Court and the Court of Criminal Appeal for leave to appeal said decision. However, the plaintiff had no right of appeal before either the Court of Appeal or the Supreme Court. Section 11 of the Criminal Procedure Act 1993 removed the general right of appeal from the Central Criminal Court to the Supreme Court; and section 31 of the Courts of Justice Act 1924 confers only a right of appeal to the Court of Appeal on a person who has been convicted. A right of appeal from an order for costs made against the DPP is provided for by s.24 of the Criminal Justice Act 2006. The plaintiff maintained that s.24 of the Criminal Justice Act 2006 was contrary to the concept of equal access to the courts and the principle of equality of arms.

Held The judge commented that a plaintiff seeking to impugn the constitutional validity of legislation must do so based on his own facts and circumstances. He referred to A. v. Governor of Arbour Hill Prison [2006] 4. I.R. 88; and to the leading case of Cahill v. Sutton [1980] I.R. 269. The judge said this jurisdiction is somewhat unusual as it permits a single judge of the High Court to declare an Act, or a section of an Act, unconstitutional. The judge acknowledged that neither party could appeal an order refusing costs, yet said the order was made and given in a careful and well-reasoned judgment delivered by the trial judge. The judge determined the case on the threshold issue in favour of the defendants.

Kearns P.

1 The plaintiff in these proceedings was charged with the offence of murder on the 17^th October, 2006. He subsequently stood trial for that offence before the Central Criminal Court sitting at Cloverhill Courthouse in 2007, which said trial concluded on the 19^th November, 2007 when he was acquitted by a jury on the single count which was before them.

2 The defence of the plaintiff had been funded from the plaintiff's own resources and at the conclusion of the trial the plaintiff, through his counsel, indicated his intention to make an application to recover the costs of such defence. A hearing for that purpose was heard by the learned trial judge (Charleton J.) who, by written judgment delivered on the 19^th December, 2007 refused the application for the plaintiff's costs. Subsequent to that refusal, appeals were lodged in both the Supreme Court and the Court of Criminal Appeal for leave to appeal the said decision.

3 However, no such appeal was possible. In the first instance, s.11 of the Criminal Procedure Act1993 removed the general right of appeal from the Central Criminal Court to the Supreme Court. Secondly, s.31 of the Courts of Justice Act 1924 confers only a right of appeal to the Court of Appeal on a person who has been convicted. Thus, in circumstances such as those obtaining in the instant case, the plaintiff has no right of appeal before either the Court of Appeal or the Supreme Court.

4 While obviously no order for costs was made against the plaintiff, a right of appeal from an order for costs madeagainst the DPP is provided for by s.24 of the Criminal Justice Act 2006 which provides as follows:-

5 2 "(1) Where a person tried on indictment is acquitted (whether in respect of the whole or part of the indictment) the Attorney General or the Director of Public Prosecutions, as may be appropriate, may appeal against an order for costs made by the trial court against the Attorney General or the Director of Public Prosecutions in favour of the accused person to the Court of Criminal Appeal.

6 (2) An appeal under this section shall be made, on notice given to the accused person, within 28 days, or such longer period not exceeding 56 days as the trial court may, on application to it in that behalf, determine, from the day on which the order is made."

7 In these circumstances the plaintiff claims that s.24 is unconstitutional. His claim is formulated as follows in the statement of claim:-

8 2 "9. The plaintiff contends that the failure of the first named defendant herein to provide him with parity of access to the courts and more particularly its appellate jurisdiction is:

9 (a) Inconsistent with Bunreacht na hÉireann and in particular with Articles 38.1, 40.1, 40.3.2, 40.4.1 in that the Act fails to comply with the constitutional imperative to provide an indigenous accused with adequate access to the appellate jurisdictions of the Courts of Justice;

10 (b) It is a breach of the right to be treated equally before the law;

11 (c) The failure to provide equal access to the appellate jurisdictions in such circumstances and distinguishing between that access afforded to the DPP is a distinction which is not justified on the basis of social exigencies or the common good;

12 (d) The said distinction between the plaintiff herein and the DPP is irrational and offends against the concept of equal access to the courts to include the appellate jurisdictions and the principle of equality of arms;

13 (e) The section places an accused person or a defendant such as the plaintiff herein at a disadvantage vis-à-vis the DPP;

14 (f) This section does not ensure that the plaintiff would receive fair and equal access to the appellate jurisdictions of the courts;

15 (g) The distinction in the section between the DPP and the plaintiff herein is not justified on any capacity of social functions ground;

16 (h) The section fails to defend and vindicate the personal rights of the citizens as far as practicable;

17 (i) The section fails to protect from unjust attack the good name and property rights of the plaintiff;

18 (j) The section fails to ensure that the plaintiff will not be deprived of his right to a good name and associated rights in accordance with the law."

19 While the plaintiff also seeks a declaration that s.24 of the Criminal Justice Act 2006 is incompatible with the State's obligations under the European Convention on Human Rights, this claim was not argued or pursued in any way in the hearing before this Court.

20 The defence of the defendants contends that the plaintiff is not entitled to the relief sought for reasons which,inter alia, are set out in the defence as follows:-

21 2 "2) The plaintiff only has standing to litigate based on his own facts and circumstances and is not entitled to invoke a jus tertii. The plaintiff was refused an application for his costs. Section 24 of the Criminal Justice Act 2006 does not deal with the situation where a party is refused costs but merely provides that where a costs order is made against the Attorney General or the Director of Public Prosecutions then they have a right of appeal against such an order. In the present case no costs order was made against the plaintiff. Thus insofar as the said s.24 does draw a distinction between an accused person and the Attorney General/Director of Public Prosecutions, it is not a distinction that affects the facts and circumstances of the plaintiff's case and the plaintiff is not entitled to rely on it so as to challenge the legislation.

22 3) The plaintiff is not entitled to the relief sought on the basis of standing and/or the principle of futility. Even if the plaintiff succeeded in striking s.24 down that would not affect his position since s.24 only deals with the situation where a costs order is made against a party and so it has nothing to do with the situation that the plaintiff finds himself in which is that he has been refused an application for his costs.

23 4) The plaintiff has been refused an application for his costs. Were the prosecution to have made an application for its costs and been refused it, it would have had no right to appeal that order pursuant to s.24 of the Criminal Justice Act 2006. Thus there is no inequality of position between the defence and the prosecution.

24 5) Without prejudice to all of the above, it is denied that s.24 of the Criminal Justice Act 2006 is inconsistent with the provisions of Bunreacht na hÉireann. In this regard the defendants rely on, inter alia, the presumption of constitutionality.

25 6) It is denied that the plaintiff paid for his defence and proof of same is awaited.

26 7) It is denied that there has been a failure to provide the plaintiff with parity of access to the courts.

27 8) There is no principle that requires there to be exact identity of procedures open to the defence and to the prosecution in criminal law. The defence and the prosecution are not similarly situated.

28 9) It denied that the failure to provide the plaintiff with parity of access to the courts...