Gilligan v Ireland

JurisdictionIreland
JudgeJustice Denham
Judgment Date24 October 2000
Neutral Citation[2000] IESC 25
Date24 October 2000
Docket Number[S.C. No. 258 of 2000]
CourtSupreme Court

[2000] IESC 25

THE SUPREME COURT

Denham, J.

Murphy, J.

Geoghegan, J.

No.258/00
GILLIGAN v. IRELAND & DPP

BETWEEN

JOHN GILLIGAN
APPLICANT/APPELLANT

AND

IRELAND, THE GOVERNMENT OF IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S35

OFFENCES AGAINST THE STATE ACT 1939 S47

OFFENCES AGAINST THE STATE ACT 1939 PART V

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 15

OFFENCES AGAINST THE STATE ACT 1939 S47(1)

OFFENCES AGAINST THE STATE ACT 1939 S47(2)

KAVANAGH V GOVT OF IRELAND 1996 1 IR 321

MACCURTAIN, IN RE 1941 IR 83

DPP V QUILLIGAN 1986 IR 495

BYRNE & DEMPSEY V IRELAND UNREP SUPREME 11.3.1999

OFFENCES AGAINST THE STATE ACT 1939 S35(2)

OFFENCES AGAINST THE STATE ACT 1939 S35(5)

Synopsis:

Criminal Law

Special Criminal Court; right to jury trial; certificate of D.P.P.; applicant seeking inter alia an order staying his prosecution on the grounds that the Offences Against the State legislation is unconstitutional and in violation of various articles of the European Convention of Human Rights and that the Proclamation by the Government of Ireland of 26th May, 1972 is no longer valid; whether the application for leave to apply for judicial review was brought promptly; whether the application raised issues which had already been determined by the Court; whether, having regard the nature of the argument made in relation to the continued existence of the Proclamation of 1972 and the reliefs sought, proceedings should be brought by way of plenary summons; whether, given that criminal trials should be heard with reasonable expedition, order should be granted staying trial; ss.35 & 47, Offences Against the State Act, 1939; Articles 6, 14 & 15, European Convention on Human Rights

Held: Appeal dismissed while recognising right of applicant to institute substantive proceedings for declaratory relief.

Gilligan v. Ireland - Supreme Court: Denham J., Murphy J., Geoghegan J. - 24/10/2000 - [2000] 4 IR 579 - [2001] 1 ILRM 473

The applicant faced criminal charges in a trial before the Special Criminal Court. The applicant initiated judicial review proceedings seeking inter alia an order staying the prosecution. In the High Court Butler J dismissed the proceedings and the applicant appealed. On behalf of the applicant it was argued that the Government proclamation of 1972 bringing certain sections of the Offences Against the State Act, 1939 ("the 1939 Act") into force was no longer valid. The respondents contended that the application was out of time. Denham J, delivering judgment, held that the application itself had been brought far too late. In addition the issues raised had already been decided in Kavanagh v Government of Ireland [1996] 1 IR 321. The decision as to whether Part V of the 1939 Act should remain in force was essentially political in nature. The appeal would accordingly be dismissed.

1

Justice Denham on the 24th day of October, 2000.

2

This is an appeal by John Gilligan, the applicant/appellant, hereinafter referred to as the Applicant, from a refusal on 28th September, 2000 of the High Court (Butler J.) to grant leave to apply for judicial review.

Relief Sought
3

The Applicant had sought leave to apply for judicial review for:

4

i (i)A declaration that the provisions of Sections 35 and 47 of the Offences Against the State Act, 1939are inconsistent with the Constitution;

5

ii (ii)A declaration that the Proclamation by the Government of Ireland of the 26th May, 1972, bringing Part V of the Offences Against the State Act, 1939, into force is no longer valid;

6

iii (iii)A declaration that the certificate and directions of the Respondent Director herein purporting to validate the Applicant's trial before the Special Criminal Court are null and void;

7

iv (iv)An Order in the nature of a stay on the prosecution of the Applicant herein;

8

v (v)A declaration that the prosecution of the Applicant herein is in breach of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which entitles the Applicant to a fair hearing of criminal charges laid against him by an independent and impartial tribunal;

9

vi (vi)A declaration that the prosecution of the Applicant herein is in breach of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides that the Applicant is entitled to enjoy his right to a fair trial without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status;

10

vii (vii)A declaration that the continuation in force of the Proclamation of the Irish Government of the 26th May, 1972 is a violation of Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides that measures may be taken by High Contracting Parties derogating from its from its obligations under that Convention in time of war or other public emergency, to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law;

11

viii (viii)Such further and other relief as may be appropriate;

12

ix (ix)An Order providing for the Costs herein.

13

Counsel for the applicant, Mr. Michael O'Higgins, S.C., informed the court that the declarations as set out in paragraphs (v), (vi) and (vii) were not now being sought.

Grounds for Relief
14

As set out in the formal statement of grounds the following grounds of relief were sought:

15

a (a)Section 35 of the Offences Against the State Act, 1939, is an unwarranted and irrational interference with the Applicant's right to a jury trial;

16

b (b)There is no longer any reasonable factual basis to support the Proclamation of the Government of Ireland of the 26th May, 1972, the reasons which supported it being the nature and extent of the conflict in Northern Ireland;

17

c (c)The arguments as to the constitutionality of the Offences Against the State Act, 1939are repeated here mutatis mutandi as challenges to the appropriate certificates and directions of the Respondent Director;

18

d (d)In the circumstances of the Applicant's case, there is no sufficient rational or legal connection between the Proclamation of the Government of Ireland of the 26th of May, 1972 and the relevant certificates and directions of the Respondent Director herein;

19

e (e)The procedure for certification and direction by the Respondent Director pursuant to Section 47 of the Offences Against the State Act, 1939is an unfair procedure in that:-

20

2 1.It is unreviewable;

21

3 2.It is irrevocable;

22

4 3.It constitutes a disproportionate incursion into the Applicant's presumptive right to jury trial;

23

5 4.It permits the moving party, i.e. the Respondent Director, to select the forum of trial and thereby deprive the Applicant of a presumed Constitutional right to jury trial;

24

6 5.The Respondent Director is not required to give reasons therefore, so that the same and/or the evidence underlying the same cannot be tested;

25

6. It invidiously discriminates between those charged before the Ordinary Courts with non-minor offences and...

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