Kershaw v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 21 June 2016
• Neutral Citation: [2016] IESC 35
• Docket Number: Appeal No: 2009/080
• Court: Supreme Court
• Date: 21 June 2016

[2016] IESC 35

THE SUPREME COURT

McKechnie J.

Appeal No: 2009/080

McKechnie J.

MacMenamin J.

Charleton J.

BETWEEN

EDDIE KERSHAW

APPLICANT/APPELLANT

AND

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

JUDGE JOHN LINDSAY, JUDGE JOHN COUGHLAN

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTIES

Practice & procedure – Judicial review – Leave to seek – Set aside of order granting leave on scandalous/vexatious nature of proceedings

Facts: The appellant had been convicted of driving offences relating to the failure to wear a seat belt. He claimed he needed to avoid using seat belts so he could defend himself against ?abusive Gardaí?. An initial High Court hearing had resulted in a grant of leave to seek judicial review in respect of the convictions and related other proceedings, but this grant had been set aside at a further hearing on the basis that the proceedings were scandalous and/or vexatious in nature.

Held by Mr Justice McKechnie, the other Justices concurring, that the appeal would be dismissed. The Court reviewed the jurisprudence on set aside applications and stated that the superior courts had jurisdiction to set side applications if it was apparent that the grant of leave should not have been made at first instance. The appellant?s submissions on natural law, delay and the Constitution amongst others, were not sufficient to justify allowing the appeal.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 21st day of June, 2016

Introduction:

1 This is the appeal from a High Court judgment and Order of Hedigan J. in which the learned judge set aside an earlier Order of Peart J. granting Mr Kershaw (?the Applicant? or ?the Appellant?) leave to apply by way of judicial review for certain reliefs. Hedigan J. set aside the Order granting leave on the bases that the proceedings were scandalous and vexatious in a legal sense and that they failed to disclose a reasonable cause of action; as a result they were, in his opinion, bound to fail.

2 The background to the substantive judicial review application relates to certain convictions of and other pending prosecutions against the Applicant: all on the same type of charge save as to date, namely that whilst driving a mechanically propelled vehicle he failed to wear a seatbelt, contrary to certain regulations made under road traffic legislation. These failures are admitted on the factual side, with the reasons given and the justification offered on all occasions being identically expressed, to wit:-

?I do not wear my safety belt because I need to be able to get out of my car quick enough to defend myself against abusive [gardaí] or get away from them.?

So founded he seeks to mount a constitutional challenge to the relevant pieces of legislation which criminalise such conduct and which provide for mandatory disqualification on the accumulation of twelve penalty points: he does so on the basis that these provisions interfere with his right to life and his right to bodily integrity, and to a lesser extent his right to liberty.

Procedural History:

3 As stated, Mr. Kershaw, who describes himself as an artist and human rights defender, instituted judicial review proceedings by way of an originating Statement of Grounds filed on the 7th July, 2008, in which the following reliefs were sought:

(i) A declaration that section 3 of the Road Traffic Act 2002 (relating to disqualification by reason of the accumulation of 12 penalty points) is unconstitutional and contrary to the European Convention on Human Rights;

(ii) Orders of prohibition restraining District Judge John Lindsay and the Director of Public Prosecutions from proceedings with prosecutions against him on certain ?failure to wear a safety belt? charges until his constitutional challenge had been decided;

(iii) A declaration that natural law is the supreme law under the Irish Constitution and that the natural law provisions of the Constitution are superior to the positive law provisions therein; and

(iv) An Order of certiorari quashing certain prior convictions of the Appellant on similar charges.

By way of an amended Statement of Grounds dated the 8th July, 2008, the Appellant sought a further declaration that Article 6(2) of the Road Traffic (Construction, Equipment and Use of Vehicles) (Amendment) (No. 3) Regulations 1991 ( S.I. No. 359/1991) is unconstitutional.

4 On the 14th July, 2008, following the making of an ex parte application, Peart J., by Order of that date, granted leave to the Applicant to apply by way of an application for judicial review for all of the reliefs set out above, save that relating to the declaration set out at subpara. (iii) above, in respect of which leave to apply was refused. The perfected order of the 21st July, 2008, also provided that the further prosecution of the pending summonses and any attempted execution of the convictions by then so recorded be stayed until after the determination of the judicial review proceedings. The required motion grounding the application issued on the 23rd July, 2008 and shortly thereafter was duly filed and served.

5 By Notice of Motion dated the 14th October, 2008, the Respondents applied to the High Court to have the Order of Peart J. set aside pursuant to the inherent jurisdiction of that Court. Hedigan J., by judgment and Order dated the 9th February, 2009, acceded to that application on the basis that for the reasons set forth in para. 1 above, the proceedings were bound to fail. The Order of Hedigan J. was perfected on the 17th February, 2009.

6 In his judgment, Hedigan J. stated that the law on seatbelts and the penalty points system is there for the protection of the public, and that although it does constitute an infringement on personal liberty, the same is a necessary and proportionate one, and it is made for a legitimate purpose and clearly provided by law. He observed that the jurisdiction to set aside ?a leave Order? is to be exercised sparingly, but that this case was an illustration of why such jurisdiction existed in the first place. The learned judge went on to say that in his view there was no possibility whatsoever that the Applicant could succeed in the core argument grounding his case, namely, that he should be exempted from the requirement to wear a seatbelt ??because of his need to escape quickly when stopped by the Gardaí. Nobody, in my view, could succeed upon the basis of such a bizarre proposition?.

7 By Notice of Appeal dated the 9th March, 2009, the Appellant applied to this Court seeking an Order discharging the said judgment and Order of Hedigan J. and in lieu thereof seeking an Order granting the reliefs as originally sought in the High Court, save that he did not pursue the declaration that natural law is the supreme law under the Constitution.

8 On the 26th April, 2013, Mr. Kershaw applied to the Supreme Court by way of Notice of Motion dated the 8th April, 2013, seeking a stay on certain prosecutions and summonses for failure to wear a safety belt, as well as a stay on the execution of certain convictions, until the determination of the appeal against the Order of Hedigan J. of the 9th February, 2009. In effect, he was looking for a continuation of the stay as granted by Peart J. In addition, he further sought liberty to amend his Grounds of Appeal so as to seek a declaration that natural law is the supreme law under the Irish Constitution or, in the alternative, to seek a declaration that the natural law provisions in the Constitution are superior to the positive law provisions thereof.

9 The Order of the court (O'Donnell, Clarke and MacMenamin JJ), dated the 26th April, 2013, reads as follows:-

?The motion on the part of the applicant in person pursuant to Notice of Motion herein dated 8th April, 2013, for a stay pending appeal on the judgment and order of the High Court (Mr. Justice Hedigan) given in mail on 9th February, 2009, coming on for hearing this day and upon reading said motion and the affidavit of Eddie Kershaw filed on 9th April, 2013, and upon hearing the applicant in person and counsel for the respondents

IT IS ORDERED that the said application be refused

Reserving the question of costs.?

Submissions:

Submissions on behalf of the Appellant:

10 The Appellant's dense 34-page outline written submissions before this Court traverse a considerable amount of terrain. Much of it is a reiteration of or an elaboration upon points previously made in his various grounding affidavits and in other documents filed as part of the High Court proceedings; however, some arguments are broached for the first time on appeal.

11 Mr. Kershaw's core reason for not wearing a seatbelt is that he needs to be able to get out of his car quickly enough to defend himself against abusive gardaí or to get away from them. He takes issue with the conclusion of Hedigan J. that ?there is ? no possibility whatever that the [Appellant] could succeed in the central core argument grounding his case? and the further statement of the judge that he could not succeed ?upon the basis of such a bizarre proposition.? He points out that prior to the making of the Road Traffic (Removal of Exemption From Wearing Seat Belts by Taxi Drivers) Regulations 2004 ( S.I. No. 402/2004), the drivers of taxis, hackneys and limousines were exempted by Article 8(1)(g) of the Road Traffic (Construction, Equipment and Use of Vehicles) (Amendment) (No. 3) Regulations 1991 ( S.I. No. 359 of 1991) (?the 1991 Regulations?) from wearing a seat belt while driving such a vehicle. He submits that the rationale for such an exemption was the acknowledgment that taxi drivers may need to get out of their vehicles quickly enough to defend themselves or escape from abusive persons or dangerous situations within their taxicabs. In light of this former...