Breathnach v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 23 June 2000
• Neutral Citation: [2000] IEHC 53
• Court: High Court
• Docket Number: No 1127 S.S./1999,[1999 No. 1127 S.S.]
• Date: 23 June 2000

[2000] IEHC 53

THE HIGH COURT

No 1127 S.S./1999

BREATHNACH v. IRELAND & AG

BETWEEN

STIOFAN BREATHNACH

APPLICANT

AND

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

CONSTITUTION ART 40.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

ELECTORAL ACT 1992 S11

ELECTORAL ACT 1992 S12

ELECTORAL ACT 1992 S14

ELECTORAL ACT 1992 S17

ELECTORAL ACT 1992 PART XIII

CONSTITUTION ART 16.1

CONSTITUTION ART 16.1.2.i

CONSTITUTION ART 16.1.2.ii

CONSTITUTION ART 16.1.3

FORFEITURE ACT 1870 S2

ELECTORAL ACT 1923 S1(9)

PREVENTION OF ELECTORAL ABUSES ACT 1923 S6(3)

ELECTORAL ACT 1992 S3

ELECTORAL ACT 1992 S5

ELECTORAL ACT 1963 S3

ELECTORAL ACT 1963 S5

ELECTORAL ACT 1992 S8(1)

ELECTORAL ACT 1992 S11(5)

ELECTORAL ACT 1963 S5(5)

CONSTITUTION ART 16

DRAPER V AG 1984 IR 277

MCDONAGH, STATE V FRAWLEY 1978 IR 131

FAGAN, STATE V GOV OF MOUNTJOY PRISON UNREP MCMAHON 6.3.1978 1978/4

MURRAY V IRELAND & AG 1991 ILRM 465

ELECTORAL ACT 1997 S63

HOWARD V COMMISSIONERS OF PUBLIC WORKS IN IRELAND 1993 ILRM 665

MCMAHON V LEAHY 1984 IR 525

REYNOLDS V AG UNREP KENNY IRISH TIMES 16.2.1973

Synopsis

Constitutional Law

Constitutional; judicial review; right to vote; applicant convicted by Special Criminal Court of criminal offences and sentenced to various terms of imprisonment; applicant sought to exercise his right to vote; acknowledged by respondents that he had been unable to exercise his right to vote at local and national elections and referenda; State had given effect to certain provisions of the Electoral Act, 1992 enabling certain citizens prescribed by law to vote in local and national elections and in referenda by way of postal ballot; applicant sought declaration against respondents that failure on the part of the State to provide for him, as a citizen of the State amongst the prison population, the necessary machinery to enable him to exercise his franchise to vote comprised a failure which unfairly discriminated against him and failed to vindicate the right conferred upon him by Article 40.1, Constitution of Ireland 1937 to be held equal before the law and failed to vindicate the right conferred upon him by article 14 of the European Convention on Human Rights to vote without discrimination by reason of his status; applicant sought further an order of mandamus directing respondents to provide appropriate legislative machinery to enable himself and others in lawful detention within the State and capable of voting to exercise their right to vote at both national and local elections and in national referenda; whether citizens who are lawfully detained within the prison population enjoy a constitutional right to vote at Dáil elections and whether any legislation enacted by the Legislature is currently in force which purports to remove or limit that right; whether legislative provision has been expressly made by the Oireachtas for the registration as "electors" of citizens who are in lawful detention within the prison population of the State; whether the State is acting lawfully in preventing the applicant from exercising his constitutional right to vote in elections or referenda; whether the constitutionally protected right claimed by the applicant depends on the continuance of his personal liberty and imposes unreasonable demands on the place where the applicant is imprisoned; whether the failure by the respondents to provide for the applicant a means of voting by post or by some other convenient means comprises a failure which unfairly discriminates against the applicant having regard to the provisions of Article 40.1 of the Constitution; Article 16.1, Article 40.1 Constitution of Ireland 1937; ss. 8, 11, 14, 17, Part XIII, Electoral Act, 1992.

Held: Declaration sought by applicant made.

Breathnach v. Ireland - High Court: Quirke J. - 23/06/00 - [2000] 3 IR 467

The applicant had been convicted of certain offences and imprisoned. The applicant brought proceedings claiming that the State was discriminating against him by failing to afford him an opportunity to vote. On behalf of the State it was argued that the exercise of the right to vote can be lawfully limited. Quirke J held that the right to vote was a constitutionally protected right. The extension of a postal voting system would not place undue administrative demands on the State. The applicant was therefore entitled to the declaration sought.

1 JUDGMENT of Mr. Justice Quirke delivered the 23rd day of JUNE 2000.

2 The Applicant is a citizen of this State who is in lawful detention within Wheatfield Prison which in turn is a lawful place of detention within the State.

3 The first named Respondent is the State and the second named Respondent is the Law Officer of the State.

4 By Order of the High Courts, (Barr J.) dated the 9th day of July, 1999 the Applicant was given liberty to seek declaratory relief against Respondents in the form of a declaration that the failure on the part of the State to provide for the Applicant, as a citizen of the State amongst the prison population, the necessary machinery to enable him to exercise his franchise to vote comprises a failure which unfairly discriminates against him and (a) fails to vindicate the right conferred upon him by Article 40.1 of the Constitution of Ireland to be held equal before the law and; (b) fails to vindicate the right conferred upon him by Article 14 of the European Convention on Human Rights to vote in national and local elections without discrimination by reason of his status.

5 By a Ruling of the High Court (Barr J.) made on the said 9th day of July, 1999 the Applicant was given liberty to seek relief by way of Judicial Review comprising an Order of Mandamus directing the Respondents to provide appropriate legislative machinery to enable the Applicant and others who are in lawful detention within the State and who are capable of voting, to exercise their right to vote at both national and local elections and in national referendums

THE FACTS

6 On or about the 9th day of November, 1993, the Applicant was lawfully convicted by the Special Criminal Court of certain criminal offences and was sentenced to various terms of imprisonment including two terms of 10 years' imprisonment each and one term of 15 years' imprisonment and the Applicant is currently serving those terms of imprisonment and is in detention on foot of lawful warrants relating to those and other criminal offences of which the Applicant has been convicted.

7 In an affidavit grounding these proceedings and prepared on his own behalf the Applicant states that he is registered to vote in his home constituency in the Dublin 4 area and wishes to exercise his right to vote. He states that he does not object to his registration as a voter in an area other than in his constituency and whilst his affidavit does not contain express averments that he has made application to the prison authorities seeking permission to exercise his right to vote and has been refused, it has not been denied by or on behalf of the Respondents that the Applicant wishes to exercise his right to vote and it has been expressly acknowledged by and on behalf of the Respondents that the Applicant has, throughout the duration of his detention by the State been unable to exercise his right to vote at local or national elections and referendums. It is further acknowledged by and on behalf of the State that the Respondents do not intend within the foreseeable future to permit the Applicant or any other citizen amongst the prison population to vote in either local or national elections or referendums and the Respondents have no plans to put in place arrangements which would enable the Applicant and other citizens within the prison population to exercise their right to vote in such elections and referendums.

8 The State has given effect to the provisions of the Electoral Act, 1992and in particular Sections 11, 12, 14, and 17 and Part XIII thereof so that effective arrangements have been made to enable certain citizens who are prescribed by law to vote in local and national elections and in referendums by way of a postal ballot.

THE LAW

9 Article 16.1 of the Constitution provides inter alia as follows;

10 2 "...2

11 (i) All citizens, and

12 (ii) such other persons in the State as may be determined by law, without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dail Eireann, shall have the right to vote at an election for members of Dail Eireann.

13 3. No law shall be enacted placing any citizen under disability or incapacity for membership of Dail Eireann on the ground of sex or disqualifying any citizen or other person from voting at an election for members of Dail Eireann on that ground."

14 The effect of this provision is to confer upon all citizens who have reached the age of eighteen years the right to vote at an election for members of Dail Eireann provided that they are not disqualified by law and that they comply with the provisions of the law relating to such elections.

15 The article expressly prohibits enactment of any law disqualifying any citizen from voting at such elections on the ground of sex. Accordingly the Constitution, by its terms, appears to contemplate the enactment by the Oireachtas of legislation whereby a citizen may be disqualified from voting in national elections on particular grounds other than sex. However no such disqualifying legislation has in fact been enacted by the Oireachtas between the date of the enactment of the Constitution and the date hereof and during that period the only legislative provisions which formerly had the effect of disqualifying citizens amongst the prison population from exercising their right to vote in parliamentary and other elections (Section 2 of the...