Kavanagh v Ireland

CourtSupreme Court
Docket Number[1994 No. 409 J.R.; S.C. No. 369 of 1995], Record No. 369/1995
JudgeBarrington, J., Keane J.
Judgment Date01 Jan 1997
JurisdictionIreland
Neutral Citation1997 WJSC-SC 1268

1997 WJSC-SC 1268

THE SUPREME COURT

Hamilton, C.J.

O'Flaherty, J.

Blayney, J.

Barrington, J.

Keane, J.

Record No. 369/1995
KAVANAGH v. GOVERNMENT OF IRELAND
Between/-
JOSEPH KAVANAGH
APPELLANT

and

THE GOVERNMENT OF IRELAND, THE DIRECTOR OF PUBLICPROSECUTIONS, THE ATTORNEY GENERAL

and

THE SPECIAL CRIMINAL COURT,
RESPONDENTS

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S47(2)

OFFENCES AGAINST THE STATE ACT 1939 PART V

OFFENCES AGAINST THE STATE ACT 1939 S35(2)

CONSTITUTION ART 40.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

REPORT OF THE HUMAN RIGHTS COMMITTEE (1993) PARA 575

O'BRIEN, STATE V MILITARY GOVERNOR OF THE MILITARY INTERMENT CAMP 19241 IR 32

CONSTITUTION ART 38

CONSTITUTION ART 38.5

CONSTITUTION ART 38.3

CONSTITUTION ART 15.2

OFFENCES AGAINST THE STATE ACT 1939 S35(4)

OFFENCES AGAINST THE STATE ACT 1939 S35(5)

BURKE, STATE V LENNON 1940 IR 136

BUCKLEY V AG 1950 IR 67

ECCLES & ORS V IRELAND & ORS 1986 ILRM 343

OFFENCES AGAINST THE STATE ACT 1939 S36

DPP, PEOPLE V QUILLIGAN 1986 IR 495

OFFENCES AGAINST THE STATE ACT 1939 PART II

OFFENCES AGAINST THE STATE ACT 1939 PART III

OFFENCES AGAINST THE STATE ACT 1939 PART IV

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S47

EAST DONEGAL CO-OP V AG 1970 IR 317

CONSTITUTION ART 38.3.1

CONSTITUTION ART 28.2

CONSTITUTION ART 6

BUCKLEY & ORS (SINN FEIN) V AG 1950 IR 67

BOLAND V AN TAOISEACH 1974 IR 338

CROTTY V AN TAOISEACH 1987 IR 713

OFFENCES AGAINST THE STATE ACT 1939 S46

Synopsis:

JUDICIAL REVIEW

Certiorari - declaration - accused sent for trial in Special Criminal Court - whether court jurisdiction restricted to "subversive" offences - whether government duty to keep under review question of whether ordinary courts adequate to secure effective administration of justice - Held: Special Criminal Court jurisdiction not limited to subversive offences - question of whether ordinary courts adequate to secure effective administration of justice primarily a political question, in which courts should be extremely reluctant to interfere - appellant failed to displace presumption of constitutionality of government actions - (Supreme Court: Hamilton C.J., O'Flaherty J., Blayney J., Barrington J., Keane J. - 16/12/1996) - [1996] 1 I.R. 348 - [1997] 1 ILRM 321

|Kavanagh v. Government of Ireland & Ors.|

1

JUDGMENT of Barrington, J.delivered on the 18th day of December, 1996. [HAMILTON O'FLAHERTY BLAYNEY CONC]

2

On the 19th day of July, 1994 the Appellant was arrested on several charges in connection with the alleged false imprisonment of James Lacey and other persons on the 2nd day of November, 1993, with robbery, demanding monies with menaces and possession of a firearm. On the 20th day of July, 1994 the Appellant was charged directly before the Special Criminal Court with those offences, six of which are not scheduled offences. In respect of the non-scheduled offences, on the 15th day of July 1994 the Director of Public Prosecutions had certified under Section 47.2 of the Offences against the State Act, 1939that the ordinary Courts were, 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 the Appellant on those charges and directed that the Appellant be broughtbefore the Special Criminal Court and there charged with thoseoffences.

3

By Order of the High Court made by Mr. Justice Lavan on the 14th day of November, 1994 the Appellant was given leave to apply by way of application for judicial review for the following reliefs.

4

(1) A declaration that there is no reasonable plausible factual basis any longer for the first named Respondent being satisfied that the ordinary Criminal Courts are inadequate to secure the effective administration of Justice and the preservation of public peace and order and that it is therefore necessary to have the Special Criminal Court with jurisdiction to try persons accused of offences where there is no serious allegation that the offences were committed by or on behalf of or to further the interest of an unlawful or subversive organisation orothersubversive body or association.

5

(2) A declaration that accordingly the first named Respondents proclamation of the 26th day of May, 1972 bringing part V of the 1939 Act in to force is no longer effective and valid and that part V is not presently enforced at least in respect of alleged common criminals who are not accused of acting for or in the interest of an unlawful organisation or subversive association.

6

(3) In the alternative a declaration that Section 35 (2) of the 1939 Act is invalid and unconstitutional because it makes no provision at all for and/or prevents judicial review of the basis for any Government proclamation made under that section ofthe 1939 Act either at the time of it's making or at any timesubsequently.

7

(4) A declaration that in the circumstances directly relating to the prosecution of the Applicant:-

8

(i) There is no reasonable plausible factual basis for the Director being of the opinion that the ordinary Criminal Courts are inadequate to secure the effective administration of Justice and the preservation of public peace and order.

9

(ii) To prosecute the Applicant before the third-named Respondent unfairly discriminates against him in contravention of Article 40.1 of the Constitution andArticle 6.1 coupled with Article 14 of the European Convention on HumanRights and Fundamental Freedoms.

10

(iii) The Director is acting mala fide.

11

(iv) Orders quashing and setting aside the aforesaid proclamation of the Government made on the 26th day of May, 1972 and/or the Certificate of the Director issued under Section 47.2 of the 1939 Act in relation to the prosecution of the Applicant.

12

(5) Orders:-

13

(i) Orders quashing and setting aside the aforesaid proclamation of the Government made on the 26th day ofMay, 1972 and/or the Certificate of the Director issued under Section 47.2 of the 1939 Act in relation to the prosecution of theApplicant.

14

(6) Orders:-

15

(i) Prohibiting the Director from prosecuting the Applicant before the third-named Respondent in relation to the charges preferred against him in connection with the alleged false imprisonment of James Lacey on the 2nd day of November, 1993.

16

(ii) Prohibiting the third-named Respondent from entertaining the said application.

17

In the course of the High Court proceedings the Applicant abandonedthe plea set out at paragraph 3 above that Section 35.2 of the 1939 Act was invalid having regard to the provisions of the Constitution and, in the course of the hearing, also abandoned the plea set out at paragraph 4 sub-paragraph (iii) above that the Director of Public Prosecutions was acting mala fide. In a wide ranging and careful Judgment dated the 6th day of October, 1995 Miss Justice Laffoy rejected all of the Applicant's other grounds and made an Order refusing him any relief.

18

Against that Judgment and Order the Applicant appealed to this Court. The submissions of the Applicant/Appellant in this Court were less wide ranging than in the Court below and may be summarised under fourheads.

19

First, the Appellant submitted that the Government's proclamation ofthe 26th May, 1972 was meant to deal with subversive offences arising out of the crisis in the North of Ireland and it was never intended that the Special Criminal Court should deal with what could be referred to as "ordinary crime". If the Special Criminal Court could be used for the trial of ordinary offences then the Government could subvert the constitutional right to trial by jury.

20

Secondly, the Appellant's Counsel, Mr. Forde, submitted that the Government, having once made the proclamation of the 26th May, 1972 bringing part V of the Offences against the State Act, 1939into force, had a duty to keep the situation under review and to revoke the proclamation as soon as it was satisfied that the ordinary Courts were adequate to secure the effective administration of justice and the preservation of public peace and order.

21

Thirdly, the Appellant agreed that he could not prove that the Director had acted mala fide in issuing the said Certificate under Section 47.2 of the Offences against the State Act, 1939but he submitted that if he succeeded on either of his first two submissions this certificate must also fall.

22

Fourthly, the Appellant relied upon a representation alleged to have been made by the Irish Attorney General to the Human Rights Committee of the General Assembly of the United Nations and referred to in a paragraph from the Report of The Human Rights Committee dated the 7th day of October, 1993. The paragraph in question is paragraph 575 and reads as follows:-

"With respect to the Special Criminal Court, the representative stressed that the Court was needed to ensure the fundamentalrights of citizens and protect democracy and the rule of law from the ongoing campaign related to the problem of Northern Ireland. The Special Criminal Court differed from ordinary Courts in only two respects: that there was no jury and that instead of one judge there were three judges. Otherwise the same rules of evidence applied and the decisions of the Court were subject to review by the Court of Criminal Appeal".

CONSTITUTIONAL AND STATUTORY PROVISIONS
23

In the course of developing his first two submissions - that the Special Criminal Court was established for the purpose of trying subversive crimes arising out of the Northern crisis and that the Government had a duty to keep under review the question of whether the ordinary Courts were adequate to secure the effective administration of justice in relation to suchoffences, the Appellant's Counsel Mr. Forde suggested that the High Court should have launched its own enquiry into these matters...

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