Kavanagh v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 01 March 2002
• Neutral Citation: [2002] IESC 13
• Court: Supreme Court
• Docket Number: [2001 No. 840 SS; S.C. No.
• Date: 01 March 2002

KAVANAGH v. GOVERNOR OF MOUNT JOY PRISON & AG

BETWEEN

JOSEPH KAVANAGH

Appellant

-v-

THE GOVERNOR OF MOUNTJOY PRISON and THE ATTORNEYGENERAL

Respondents

[2002] IESC 13

Keane C.J.

Denham J.

Hardiman J.

Geoghegan J.

FennellyJ.

194/01

THE SUPREME COURT

Synopsis:

FAMILY LAW

Judicial review

Human rights - Constitutional law - International law - Detention - Legitimate expectation - Special Criminal Court - Right to trial by jury - Whether applicant's human rights violated - Whether International Covenant part of domestic law - Whether applicant had made out arguable case - Habeas Corpus Act, 1782 - Offences Against the State Act, 1939 - International Covenant On Civil And Political Rights - Bunreacht na hÉireann, 1937 articles 29.2, 29.3 and 40.4 (194/2001 - Supreme Court - 01/03/2002)

Kavanagh v Governor of Mountjoy Prison - [2002] 3 IR 112 - [2002] 2 ILRM 81

Facts: The applicant sought leave to apply for judicial review. The applicant was seeking an order of certiorari in respect of his conviction in the Special Criminal Court on foot of various offences. The applicant's case had been the subject of a communication from the Human Rights Committee established under the International Covenant On Civil And Political Rights which stated that the Irish State had failed to demonstrate that the decision to try the applicant in the Special Criminal Court was based on reasonable and objective grounds. In this application the applicant argued that Ireland was bound by the adjudication of the Human Rights Committee and that section 47(2) of the Offences Against the State Act, 1939 was incompatible with the United Nations Covenant On Civil And Political Rights and was unconstitutional. Mr. Justice Finnegan held that the views of the Human Rights Committee were not legally binding. The applicant had failed to demonstrate an arguable case and leave to apply for judicial review would be refused. The applicant appealed against the judgment.

Held by the Supreme Court (Fennelly J delivering judgment; Keane CJ, Denham J, Hardiman J and Geoghegan J agreeing) in dismissing the appeal. The obligation of Ireland to respect the invoked principles did not confer rights on individuals. The notion that the views of an International Committee could prevail over the concluded decision of a properly constituted court was patently unacceptable. To accept that the applicant had an arguable case under any heading of his claim would imply that the Court might be able to disregard the clear and unambiguous provisions of the Constitution in their relations with international agreements. No arguable case had been established and the application would be refused.

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S47

OFFENCES AGAINST THE STATE ACT 1939 S47(1)

OFFENCES AGAINST THE STATE ACT 1939 S47(2)

KAVANAGH V DPP 1996 IR 321

EUROPEAN CONVENTION ON THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

UN INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 3

UN INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 28

EUROPEAN CONVENTION ON HUMAN RIGHTS FIRST PROTOCOL ART 1

UN INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 14

UN INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 26

UN INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 3.A

UN INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 40.4

CONSTITUTION ART 29.2

CONSTITUTION ART 29.3

INTERNATIONAL COURT OF JUSTICE OF JUDGE TANAKA, SOUTH WEST AFRICA CASES 1966

O LAIGHLEIS, RE 1960 IR 93

CONSTITUTION ART 29.6

CONSTITUTION ART 34

TAVITA V MIN OF IMMIGRATION 1994 2 NZLR 257

UN INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 24

UN INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 23

MIN FOR STATE FOR IMMIGRATION AND ETHNIC AFFAIRS V TEOH 1994–1995 183 CLR 273

CONSTITUTION ART 26.6

FAKIH V MIN FOR JUSTICE 1993 2 IR 406

GUTRANI V MIN FOR JUSTICE 1993 2 IR 427

G V DPP 1994 1 IR 374

CONSTITUTION ART 15.2.1

SUMMERS JENNINGS, STATE V FURLONG 1966 IR 183

GILLILAND, STATE V GOVERNOR OF MOUNTJOY PRISON 1987 IR 201

CONSTITUTION ART 31.1

DALY V MIN FOR THE MARINE & AG UNREP SUPREME 4.10.2001

1 1st day of March, 2002by FENNELLY J.[nem diss]

2 This is an appeal from the refusal of the High Court (Finnegan J) to grant to the appellant leave to apply for judicial review related to his conviction by the Special Criminal Court. The appellant relies on Ireland's accession to the United Nations Covenant on Civil and Political Rights ("the Covenant") and particularly on the views expressed by a Human Rights Committee under the Covenant about hisconviction.

3 On 20th July 1994 the appellant was arrested and charged, by direction of the Director of Public Prosecutions, before the Special Criminal Court with seven offences relating to the kidnapping and imprisonment of a senior manager of a banking company. One of the offences, possession of a firearm with intent to commit an indictable offence, namely false imprisonment, was a scheduled offence for the purposes of the Offences against the State Act, 1939. The remainder, including false imprisonment, robbery, and demanding money with menaces were not scheduled offences.

4 Section 47 of the Offences against the State Act, 1939provides as follows:

"47(1) Whenever it is intended to charge a person with a scheduled offence, the Attorney General may, if he so thinks proper, direct that such person shall, in lieu of being charged with such offence before a justice of the District Court, be brought before a Special Criminal Court and there charged with such offence and, upon such direction being so given, such person shall be brought before a Special Criminal Court and shall be charged before that Court with such offence and shall be tried by such Court on such charge.

(2) Whenever it is intended to charge a person with an offence which is not a scheduled offence and the Attorney-General certifies that the ordinary Courts are, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, the foregoing sub-section of this section shall apply and have effect as if the offence with which such person is so intended to be charged were a scheduled offence.

(3)(not relevant)."

5 On 15th July 1994, before the appellant was arrested and charged, the Director of Public Prosecutions, exercising the powers of the Attorney General, had given the certificate required by section 47(2). The appellant was, consequently, charged and tried before that court.Thus the Director of Public Prosecutions by the exercise of his powers under both subsections of section 47 ensured that the appellant was tried before the Special Criminal Court instead of the ordinary courts. That fact, in particular that he was denied a trial by jury, is at the core of his subsequent complaints.

6 The appellant unsuccessfully sought judicial review of the decision of Director of Public Prosecutions (see Kavanagh v Director of PublicProsecutions [1996] IR. 321.) on a number of grounds including the failure of the state in the person of the Director of Public Prosecutions to respect his right of equal treatment before the law as guaranteed inter alia by the Constitution and the European Convention for the Protection of Human Rights and Fundamental Rights (hereafter "the European Convention"). His application for judicial review was rejected by Laffoy J in the High Court on6 ^th October 1995 and unanimously by this Court on18 ^th December 1996, principally on the ground that the decision of the Director of Public Prosecutions was not reviewable in the absence of mala fides.

7 The appellant was convicted by the Special Criminal Court on the 29th October 1997 of robbery, possession of a firearm with intent to commit an indictable offence (false imprisonment) and demanding money with menaces. He received concurrent sentences of 12, 12 and 5 years respectively to date from 20th July 1994.

8 On 27th August 1997, prior to the commencement of his trial, the appellant made a complaint to the Human Rights Committee ("the Committee") to the effect that his trial before the Special Criminal Court violated his rights under a number of articles of the Covenant. Ireland is a party to the Covenant. It is dated16 ^th December 1966. Article 3 obliges "each StateParty... (a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.."

9 Article 28, in Part IV of the Covenant, provides for the establishment of a Human Rights Committee, consisting of eighteen members, who are to be "persons of high moral character and recognised competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legalexperience."

10 Ireland has also ratified the Optional Protocol which enables the Human Rights Committee established under article 28 of the Covenant "to receive and consider ...communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant..." Article 1 of the Protocol provides that a "State Party that becomes a party tothe... Protocol recognises the competence of theCommittee..." in respect of such individual claims. Subject to the proviso that the individual complaining "hasexhausted all available domestic remedies," the Committee "shall consider communications received under the...Protocol in the light of all written information made available to it by the individual and by the State Partyconcerned."

11 The appellant's complaint to the Committee invoked two principal articles of the Covenant. Article 14 lists a number of the most basic procedural and substantive rules protecting the rights of accused persons in the...