Dokie v DPP (Garda Morley) and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 25 March 2011
• Neutral Citation: [2011] IEHC 110
• Court: High Court
• Date: 25 March 2011

Dokie v DPP (Garda Morley) & Ors

JUDICIAL REVIEW

BETWEEN

EBERE DOKIE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA THOMAS MORLEY

RESPONDENT

AND

THE HUMAN RIGHTS COMMISSION, IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

[2011] IEHC 110

[No. 792 J.R./2008]

THE HIGH COURT

CONSTITUTION

Statute

Validity - Criminal offence - Non-national - Failure to produce passport or proof of identity - "satisfactory explanation" - Vagueness - Arbitrariness - Whether section of statute sufficiently precise to legitimately create criminal offence - Whether section of statute offended right against self-incrimination - Proportionality - Whether section of statute proportionate - Whether section of statute permitted abuse of process - King v Attorney General [1981] IR 233 considered - Vagrancy Act 1824 (5 Geo 4, c 83), s 4 - Refugee Act 1996 (No 17), s 9 - Immigration Act 2004 (No 1), ss 11, 12 & 13 - Constitution of Ireland 1937, Articles 38.1, 40.1, 40.3.1 , 40.3.2 & 40.4.1 - European Convention for the Protection of Human Rights and Fundamental Freedoms, articles 5, 6, 7 & 14 - Declaration & injunction granted (2008/792JR - Kearns P - 25/3/2011) [2011] IEHC 110

Dokie v Director of Public Prosecutions

Facts The applicant was granted leave to apply for judicial review and the reliefs sought included a permanent injunction restraining the respondent from taking any further steps in the prosecution of the applicant for an offence pursuant to section 12 of the Immigration Act, 2004. The applicant also sought a declaration that the aforementioned section 12 was inconsistent with the provisions of Bunreacht na hÉireann and in particular Articles 38.1, 40.1, 40.3.1, 40.3.2 and/or 40.4.1 thereof. The applicant was arrested upon her arrival in the State from Nigeria and was charged with an offence pursuant to s. 12 of the Act of 2004. The applicant did not have any identity documents with her. The applicant was remanded in custody but the District Court Judge later made no order in respect of that charge. The applicant was subsequently re-arrested and charged pursuant to section 12 with failing to produce the same documentation and she was remanded in custody. The applicant subsequently obtained bail and has yet to furnish a passport or proof of her identity to the authorities. It was submitted on behalf of the applicant that section 12 was objectionable on various grounds, including: (1) the words purporting to create a criminal offence were too vague and imprecise and in particular due to the uncertainty of the phrase "satisfactory explanation" in section 12 it could not properly form the basis of any criminal offence; (2) s. 12 was a disproportionate interference with the equality provisions in the Constitution as Irish nations were not required to carry identification; (3) the procedure provided for under s. 12 either constituted or permitted an abuse of process in that the applicant should have been either prosecuted under s. 11 of the Act or made the subject of civil detention under s. 9 of the Refugee Act 1996. It was argued that to prosecute the applicant repeatedly under s. 12 when, to the knowledge of the gardaí, she did not have a valid passport or proof of identity, was objectionable as an abuse of process.

Held by Kearns P. in granting an injunction and declaring that s. 12 of the Act of 2004 was inconsistent with the provisions of the Constitution: That the failure of the legislature to define the term "satisfactory explanation" within section 12 of the Immigration Act, 2004 gave rise to vagueness and uncertainty. The section as worded had considerable potential for arbitrariness in its application by any individual member of An Garda Siochana. The failure to provide a "satisfactory explanation" formed part of the actus reus of the offence and did not operate as a potential defence to the offence. The offence purportedly created by section 12 was ambiguous and imprecise and lacked the clarity necessary to legitimately create a criminal offence. Consequently, section 12 was unconstitutional. It was also acknowledged that s.12 had the potential to breach the applicant's constitutional rights in offending the right not to incriminate oneself as provided for both under Irish Law and by virtue of Article 6 of the European Convention on Human Rights. However, section 12 was not disproportionate and the equality provision contained in Article 40.1of the Constitution was not infringed having regard to the need in the public interest for the State to have suitably strict measures to deal with undocumented entrants in the State. The applicant could legitimately complain that section 11 and not section 12 should have been utilised in the circumstances of this case. Even if the court was wrong in holding that section 12 was unconstitutional, the deployment of that section in respect of the applicant herein was an unconstitutional use of a legislative provision, which was designed to be deployed in different circumstances.

Reporter: L.O'S.

IMMIGRATION ACT 2004 S12

CONSTITUTION ART 38.1

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

IMMIGRATION ACT 2004 S12(1)(A)

IMMIGRATION ACT 2004 S12(2)

IMMIGRATION ACT 2004 S13

REFUGEE ACT 1996 S9(3)

IMMIGRATION ACT 2004 S1(1)

IMMIGRATION ACT 2004 S11

REFUGEE ACT 1996 S9

STEEL & ORS v UNITED KINGDOM 1999 28 EHRR 603 5 BHRC 339 1998 ECHR 95

GILLAN & QUINTON v UNITED KINGDOM 2010 50 EHRR 45 28 BHRC 420 2010 ECHR 28

CONSTITUTION ART 40.3

ART 26 OF THE CONSTITUTION & EMPLOYMENT EQUALITY BILL 1996, IN RE 1997 2 IR 321 1998/18/6758

BELGIAN LINGUISTIC CASE, IN RE 1979-80 1 EHRR 252

REFUGEE ACT 1996 S9(8)

REFUGEE ACT 1996 S9(10)

REFUGEE ACT 1996 S10(4)

IMMIGRATION ACT 2004 S9

OLAFUSI v GOVERNOR OF CLOVERHILL PRISON & DPP 2010 1 ILRM 534 2009/43/10781 2009 IEHC 558

ART 26 OF THE CONSTITUTION & PART v OF PLANNING & DEVELOPMENT BILL 1999, IN RE 2000 2 IR 321 2001 1 ILRM 81 2000/16/5933

OSHEKU v IRELAND & ORS 1986 IR 733 1987 ILRM 330 1986/7/1474

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

BODE v MIN FOR JUSTICE 2008 3 IR 663 2007/6/1033 2007 IESC 62

VAGRANCY ACT 1824 S4

KING v AG & DPP 1981 IR 233

NICOLAOU, STATE v BORD UCHTALA 1966 IR 567 102 ILTR 1

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

IMMIGRATION ACT 2004 S12(1)(B)

ASYLUM & IMMIGRATION (TREATMENT OF CLAIMANTS ETC) ACT 2004 S2(1) (UK)

ASYLUM & IMMIGRATION (TREATMENT OF CLAIMANTS ETC) ACT 2004 S2(4) (UK)

LAURENTIU v MIN FOR JUSTICE & ORS 1999 4 IR 26

LEONTJAVA v DPP & ORS; CHANG v DPP & ORS 2004 1 IR 591

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

HEANEY & MCGUINNESS v IRELAND & AG 1994 3 IR 593 1994 2 ILRM 420 1994/10/3029B

1 JUDGMENT of Kearns P. delivered the 25th day of March, 2011

2 By order of the High Court (Peart J.) dated 7 ^th July, 2008, the applicant was granted leave to apply for judicial review. The reliefs sought by the applicant include the following:-

3 1. A permanent injunction by way of an application for judicial review restraining the respondent from taking any further steps in the prosecution entitled Director of Public Prosecutions at the suit of Garda Thomas Morley v. Ebere Dokie (Bridewell Charge Sheet No. 761009) at present pending before the Dublin Metropolitan District Court;

4 2. A declaration by way of an application for judicial review that s. 12 of the Immigration Act 2004 is inconsistent with the provisions of Bunreacht na hÉireann and in particular Articles 38.1, 40.1, 40.3.1,° 40.3.2,° and/or 40.4.1° thereof; and/or

5 3. If necessary, a declaration by way of an application for judicial review that s. 12 of the Immigration Act 2004 is incompatible with the State's obligations under the Convention and in particular Articles, 5, 6, 7 and/or 14 thereof.

6 4. Damages by way of an application for judicial review as against the respondent for false imprisonment.

7 5. Damages and/or compensation pursuant to s.3 of the European Convention on Human Rights Act 2003 for unlawful detention of the applicant contrary to Article 5 of the Convention.

8 6. An order providing for such further or other relief, including ad interim or interlocutory relief as to this Honourable Court shall seem meet.

9 7. An order providing for an award of the costs of these proceedings to the applicant.

FACTUAL BACKGROUND

10 The applicant in these proceedings is a non-national who is believed to be a national of Liberia. She entered the State on 3 ^rd April, 2008 via Dublin Airport. The applicant had traveled to Ireland from Nigeria transiting through a European airport with her daughter who is a national of Nigeria. It is stated that she paid an agent $5,000 to arrange her travel into this State and to secure passports for the applicant and her daughter. The applicant believed these passports to be false. It was claimed that she met a man and his two children, two young boys aged four and seven years old, at Lagos Airport who were also traveling with the same agent. As the group was preparing to leave Lagos, the father of the children said that he could not travel and asked the applicant to take the two young boys with her to Ireland. After initially refusing to bring the boys the applicant then later agreed. Upon her arrival at Dublin Airport with the three children, her...