Ó Cadhla v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní
• Judgment Date: 20 June 2019
• Neutral Citation: [2019] IEHC 503
• Docket Number: [RECORD NO. 2018/36JR]
• Court: High Court
• Date: 20 June 2019

[2019] IEHC 503

THE HIGH COURT

Ní Raifeartaigh J.

[RECORD NO. 2018/36JR]

BETWEEN

DIARMAID Ó CADHLA

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Criminal trial – Irish language rights – Article 8 of the Constitution – Applicant seeking declaratory relief – Whether the respondents had a duty to make reasonable efforts to assign a bilingual (Irish-English) District Judge for the criminal trial of the applicant in the District Court

Facts: The applicant, Mr Ó Cadhla, applied to the High Court seeking the following reliefs: (i) a declaration that there is a constitutional duty and/or a duty pursuant to s. 8 of the Official Languages Act 2003 on each of the respondents, the Minister for Justice and Equality, Ireland, the Attorney General and the Director of Public Prosecutions, to nominate a judge with Irish for the purposes of the applicant’s hearing in the District Court; (ii) a declaration that the District Judge acted ultra vires in refusing to assign the summary criminal proceedings for hearing to a judge with Irish; (iii) an order of mandamus directing the respondents to nominate a judge with Irish for the purposes of the applicant’s hearing in the District Court; (iv) a prohibition order preventing the fourth respondent, its servants and agents, from taking any steps in the summary criminal proceedings in the District Court until a judge with Irish has be nominated to hear the proceedings against the applicant; (v) a prohibition order preventing the fourth respondent, its servants and agents, from taking any steps in the summary criminal proceedings in the District Court until the applicant has entered a plea of guilty or not guilty; (vi) an order of certiorari quashing the decision of the District Judge of 18th December, 2017 in which he refused the applicant’s request to have a judge with Irish made available so that he may defend against the summary criminal proceedings in the District Court, completely through Irish, his native language, the national language and the first official language of the State, without disadvantage and on equal footing with the person who is happy to always use English; (vii) a ban preventing the fourth respondent, its servants and agents, from taking any steps in the summary criminal proceedings in the District Court until these judicial review proceedings have been heard and judgment has been delivered; (viii) any other such order as necessary; (ix) the costs of these proceedings.

Held the Court that there must be some duty on the part of the State to make at least some effort to assign a bilingual judge. To refuse the application for a bilingual District Judge simply because the applicant spoke English appeared to the Court to run contrary to the whole spirit of Article 8 of the Constitution together with the jurisprudence on it. This conclusion was sufficient to lead the Court to grant the relief of certiorari sought by the applicant.

The Court held that, while open to hearing further argument on the precise declaration to be granted, its inclination was to grant a declaration that the first respondent had a duty to make reasonable efforts to assign a bilingual (Irish-English) District Judge for the criminal trial of the applicant in the District Court.

Relief granted.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 20th day of June, 2019

Nature of the Case

1 This case concerns the interaction between Irish language rights and the conduct of a summary criminal trial in the District Court. The net question raised is this: Does the State have a duty of any kind under Article 8 of the Constitution to provide a bilingual District Judge in circumstances where an accused person has chosen to exercise his (now well-established) constitutional right to present his side of the case in the Irish language? If so, what is the extent or scope of that duty; is it, for example, a duty to make ‘reasonable efforts’ to provide a bilingual judge? Or a duty to provide a bilingual District Judge ‘as far as is reasonably practicable’? Or a more absolute duty? One could also pose the question in terms of the rights of the accused person: has he or she a right of any kind to have a bilingual District Judge assigned, or at least to have the State make reasonable efforts in that regard? Or do the relevant duties and rights arising under Article 8 of the Constitution amount to no more than a duty on the State to provide and pay for an interpreter to translate the Irish parts of the case into English?

2 The present judicial review is the latest in a long line of cases in which a person accused of a criminal offence seeks to assert rights in connection with the Irish language. The issue raised must be addressed in the context of a weighty body of authority, including pronouncements of the Supreme Court in cases such as Ó Monacháin v. An Taoiseach [1980-1998] TÉTS 1, [1986] ILRM 660; MacCárthaigh v. Éire [1999] 1 IR 186; Ó Beoláin v. Fahy [2001] 2 IR 279; and Ó Maicín v. Éire [2014] 4 IR 477, which jurisprudence emphatically upholds the need for a practical implementation of the status of the Irish language as the first official language. The net issue raised in the present case arises with regard only to the particular case of an accused facing a criminal trial in the District Court and the decision is not intended to be of any wider application than in that specific context.

3 My conclusion, having regard to the authorities discussed below, is that the State does have a duty either to make reasonable efforts to assign a bilingual District Judge or to assign such a Judge as far as is reasonably practicable. The reasons for this conclusion are set out at some length in the judgment. Although the identification of a constitutional basis for this duty is novel, the practical effects of this conclusion seem likely to be very limited, as the practice of the State to date has in any event been to assign a bilingual judge in most of the very small number of cases in which the issue has arisen over the years. This decision merely reaches the conclusion that this practice is underpinned by a constitutional duty on the part of the State. It does not imply any further rights or duties in relation to other types of criminal trial, or legal proceedings, or non-legal proceeding of any kind, nor does it propose in any fundamental way to impact upon the selection or assignment of judges.

Some general comments about the relationship between the constitutional status of the Irish language and the lived reality of the language

4 Ireland today has a peculiar and complex relationship with the Irish language. Attitudes among Irish people towards the language range across a wide spectrum from passionate support through indifference to outright contempt and hostility. Fluency levels are similarly spread across a wide spectrum. There are small geographic pockets in the country where Irish is the native language of the people and where children continue to be raised in the Irish language; these are the Gaeltacht areas. There is also a small but significant proportion of people who, while not strictly speaking “native speakers”, are fluent in the language, deeply committed to it, and wish to use it as much as possible in their daily lives and in their interactions with State authorities. There is a vibrant and expanding sector within the education system consisting of schooling through the Irish language (the Gaelscoileanna). On the other hand, there are substantial numbers of people within the population who, while favourably disposed towards the language in a general sort of a way, have little fluency and no commitment to speaking it in their daily lives. There are also many people who are either indifferent to whether or not the language survives or, in some instances, (whether due to its compulsory educational status or, more likely, for other more complex reasons) are actually hostile to the language. The Irish-speaking minority in society sometimes faces surprising intolerance towards its rights from quarters usually more respectful of minority rights.

5 So much for the practical reality on the ground – the legal theory is utterly different. Floating at an abstract level above the complex sociological reality mentioned above is Ireland's constitutional commitment to the Irish language. The Constitution of Ireland designates the Irish language as the first official language; not merely one of two official languages, but the first official language. Further, one cannot simply view this official position of the language as a quaint and aspirational relic of the thinking and culture of 1937; more recently, Ireland took active steps to elevate the status of the Irish language within the European Union. Final agreement by the EU Council of Ministers to Ireland's application for a grant of full official working status to Irish occurred on 13th June, 2005 and Council Regulation (EC) 920/2005 amended Council Regulation 1/1958 to include Irish as an official working language of the EU. Interestingly, the recitals to the Regulation include the fact that Ireland in its application had ‘stressed’ that Irish was the first official language of Ireland. It is also noteworthy that Article 8.3 of the Constitution itself expressly allows legislation which would designate either English or Irish as the official language for one or more purposes. This could of course include the administration of justice; the Oireachtas could have chosen at any time to designate English as the official working language of the courts. No such legislation has ever been enacted.

6 This lofty ideological commitment to the Irish language in the Constitution sits uneasily not only with the mixed feelings of Irish people towards the language in society at large, but also with the practical...