Doolan v Ireland and The Attorney General

JurisdictionIreland
CourtSupreme Court
JudgeO'Donnell J.,McKechnie J.,Dunne J.
Judgment Date03 August 2016
Neutral Citation[2016] IESCDET 110
Date03 August 2016

[2016] IESCDET 110

THE SUPREME COURT

DETERMINATION

O'Donnell J.

McKechnie J.

Dunne J.

BETWEEN:
BRIAN DOOLAN
PLAINTIFF/APPLICANT
AND
IRELAND

AND

THE ATTORNEY GENERAL
DEFENDANTS/RESPONDENTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Plaintiff/Applicant to appeal to this Court from the Court of Appeal
REASONS GIVEN:
1

This determination relates to an application by Mr. Brian Doolan (‘the applicant’), who seeks leave to appeal to this Court from a judgment of the Court of Appeal (Birmingham J., Mahon and Edwards JJ.) delivered on the 5th April, 2016, and from the resulting Order made on the 5th April, 2016, and perfected on the 9th May, 2016.

2

Ireland and the Attorney General are the respondents, and are so referred to in this Determination.

3

This application arises out of a refusal to grant bail to the applicant, after his conviction in 2013 for serious sexual offences, pending the determination of a challenge he has made to the constitutionality of certain sections of the Juries Act 1976. He claims that the impugned provisions have the effect of excluding large sections of the population from being eligible, thus resulting in juries which are not representative of a cross section of society as a whole. His application for bail was refused by both the High Court and the Court of Appeal (see paras. 17-25 infra). The applicant submits that those courts erred in applying the principles applicable to an application for bail made after conviction and pending appeal, rather than applying distinct principles which take account of his constitutional challenge to a law upon which the fundamental nature of the trial itself rests.

Jurisdiction
4

The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.

5

Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; confers full original jurisdiction on the High Court; establishes the Court of Appeal under Article 34.2; and sets out its appellate jurisdiction under Article 34.4.1°. This states that:-

‘1° The Court of Appeal shall—

i save as otherwise provided by this Article, and

ii with such exceptions and subject to such regulations as may be prescribed by law,

have appellate jurisdiction from all decisions of the High Court, and also shall have appellate jurisdiction from such decisions of other courts as may be prescribed by law.’

6

Article 34.4.3° of the Constitution provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from its decisions under Article 34.5.3°.

7

Under Article 34.5.4° it is possible for a decision of the High Court to be directly appealed to the Supreme Court, bypassing the Court of Appeal. This type of appeal is sometimes referred to colloquially as a ‘leap-frog’ appeal. It does not feature on this application.

8

The Article relevant to this appeal, where the Court of Appeal has already given judgment in a matter, is Article 34.5.3°, which states:-

‘3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—

i the decision involves a matter of general public importance, or

ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.’

9

Article 34.5.6° states that the decision of the Supreme Court shall in all cases be ‘final and conclusive’.

10

Primarily, this Court is now, ‘subject to such regulations as may be prescribed by law’, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied either that the relevant decision of the Court of Appeal ‘involves a matter of general public importance’, or, alternatively, that ‘in the interests of justice’ it is necessary that there be an appeal to this Court. Thus, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, it must demonstrate that either or both of these pre-conditions exist.

11

The statutory framework for the moving of an application seeking leave to appeal to this Court is to be found in the Court of Appeal Act 2014, and, in particular, the provisions of s. 44 of that Act, which amends, by insertion, s.7 of the Courts (Supplemental Provisions) Act 1961.

12

The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.

Background
13

In March, 2013, Mr. Doolan was convicted in the Central Criminal Court of offences of rape, sexual assault and indecent assault. In April, 2013, he was sentenced to twelve years of imprisonment with two years suspended to commence as and from 27th January, 2012. Between conviction and sentence the Law Reform Commission published its “Report on Jury Service”, which according to the applicant was the first indication he had that there were serious constitutional issues relating to the Juries Act 1976 (‘the 1976 Act’).

14

The applicant appealed against his conviction and sentence to the Court of Criminal Appeal, inter alia on the ground that the jury system and the manner of jury selection provided for by the 1976 Act is unconstitutional insofar as it operates an exclusionary policy in respect of a large section of the population: on that basis the present system does not provide for juries that are representative of a cross section of society. However, he failed to lodge his Notice of Appeal in time, with the Court of Appeal refusing to enlarge the period as that court was not the correct forum in which to litigate the issue.

15

On the 15th May, 2015, he issued a Plenary Summons and Statement of Claim against Ireland and the Attorney General seeking declarations that certain sections of the 1976 Act were repugnant to the Constitution, were contrary to EU law and were in contravention of the European Convention on Human Rights (‘the constitutional challenge’). He states that despite an appearance being entered, no defence has yet been filed by the respondents. A similar challenge was brought by another person, Mr. Liam Brien, who had also been convicted of sexual assault.

16

On 29th July, 2015, Mr. Doolan instituted habeus corpus proceedings seeking his release on the basis that his then pending bail application had not been listed. The High Court (Haughton J.), on the 8th August, 2015, refused to order his release. He made a further application of a similar nature, but on this occasion on the basis, inter alia, that his detention was unlawful because the unconstitutionality of the 1976 Act. Once again, the High Court (Mac Eochaidh J., 1st December, 2015) declined to grant the relief sought.

High Court Proceedings
17

The applicant's next move and that of Mr. Brien was to apply for bail pending the determination of their constitutional challenge to the 1976 Act. Kearns P. refused that application in an ex tempore judgment delivered on the 26th August, 2015.

18

This Court has not been furnished with a copy of that ex tempore judgment. Correspondence between the applicant and the Courts Service indicates that the applicant wrote to the President of the High Court on the 10th June, 2016, requesting a copy of that judgment.

19

From the judgment of the Court of Appeal which is next referred to, it appears that in refusing his bail application, the learned President referred to the decision in DPP v. Corbally [2001] 1 I.R. 180 (‘ Corbally’), and spoke of the wider disquieting implications which would arise if other convicted persons were entitled to bail while they sought to engage in litigation of this type, which could potentially be both lengthy and complex.

The Court of Appeal
20

The applicant and Mr. Brien (together ‘the appellants’) appealed that decision to the Court of Appeal, which technically took the form of an application for an enlargement of time to appeal the High Court order. Birmingham J., giving judgment for the Court on the 5th April, 2016, was satisfied that time should be extended but only if arguable grounds could be established, which in the respondents' submission could not be. Thus, the real issue before the court was whether or not the High Court was correct in refusing bail.

21

Birmingham J. referred to the Corbally decision, which held that bail should be granted where, notwithstanding the recorded conviction, the interests of justice required it, either because of the apparent strength of the appellant's grounds of appeal or the impending expiry of the sentence or for some other special circumstances. The Supreme Court in that case also noted that the discretion to grant bail to a convicted person should be...

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