Minister for Justice and Equality v Lanigan

• Jurisdiction: Ireland
• Judge: Clarke J.,MacMenamin J.,Laffoy J.
• Judgment Date: 27 June 2016
• Neutral Citation: [2016] IESCDET 85
• Court: Supreme Court
• Date: 27 June 2016

[2016] IESCDET 85

THE SUPREME COURT

DETERMINATION

Clarke J.

MacMenamin J.

Laffoy J.

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPELLANT/RESPONDENT

AND

FRANCIS LANIGAN

RESPONDENT/APPELLANT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES.

RESULT: The Court does not grant leave to Francis Lanigan (hereafter referred to as ‘the Applicant’) to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. Jurisdiction

1.1 This determination relates to an application by the Applicant, who was the respondent in the underlying proceedings in the High Court and the appellant on the uncertified appeal to the Court of Appeal, for leave to appeal to this Court under Article 34.5.3° of the Constitution from a judgment of the Court of Appeal (Peart J., Irvine J. and Mahon J.) delivered by Peart J. on 16th March, 2016 and an order of the Court of Appeal made on 16th March, 2016 and perfected on 21st March, 2016.

1.2 The Applicant also seeks an extension of time to apply for leave to appeal.

1.3 As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.

1.4 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The proceedings and the order appealed against

2.1 The proceedings before the High Court were proceedings in the matter of the European Arrest Warrant Act 2003 (as amended) (the Act of 2003) between the Minister for Justice and Equality (hereafter referred to as the Respondent), as applicant, and the Applicant, as respondent (Record No. 2013 No. 1 EXT). Judgment was delivered in the High Court by Murphy J. on 2nd September, 2015 and the order of the High Court made on foot of that judgment was made on 4th September, 2015 and perfected on the same day. In the curial part of the order it was ordered under the Act of 2003 that the Applicant be surrendered to such person duly authorised to receive the Applicant on behalf of the United Kingdom of Great Britain and Northern Ireland and certain ancillary orders were made.

2.2 Following the making of the said order on 4th September, 2015 (hereafter referred to as ‘the Substantive Order’), on 4th September, 2015 the Applicant applied to the High Court for an order pursuant to section 16(11) of the Act of 2003 that the Substantive Order of the High Court involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken from it to the Court of Appeal. By order of the High Court (Murphy J.) made on 4th September, 2015 and perfected on the same day, the Court refused to certify that the Substantive Order involved any points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal. It is recorded in that order of the High Court that the application was advanced on the basis of seven points of law of exceptional public importance as set out in the schedule annexed to that order.

2.3 Notwithstanding that the High Court refused to certify that the Substantive Order involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal, as required by section 16(11) of the Act of 2003 as a pre-condition to bringing an appeal against an order under section 16(1) of the Act of 2003, the Applicant issued a notice of appeal to the Court of Appeal on 11th September, 2015 against the Substantive Order of the High Court, not the order of the High Court refusing leave.

2.4 The Respondent issued a notice of motion in the Court of Appeal on 29th September, 2015 seeking an order striking out the appeal issued by the Applicant. That motion having come on for hearing before the Court of Appeal (Peart J., Irvine J. and Mahon J.), judgment was delivered by Peart J. on 16th March, 2016, which is the judgment appealed against. The order of the Court of Appeal made on foot of the said judgment, being the order of 16th March, 2016 which was perfected on 21st March, 2016, ordered that the Respondent's motion be granted and that the Applicant's uncertified appeal be struck out. It was also ordered that an application by the Applicant that the Court make a reference to the Court of Justice of the European Union be refused. It is that order in respect of which the Applicant seeks leave to appeal under Article 34.5.3°.

2.5 It is now necessary to consider the respective positions of the Applicant and the Respondent on the application for leave. The Applicant's notice of application for leave to appeal together with the Respondent's notice of response is published along with this determination. It is not, in those circumstances, necessary to set out the full details of the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the Applicant suggests that the constitutional threshold for leave to appeal has been met. However, due to some unusual features of the application, the judgment of the Court of Appeal delivered by Peart J. will be considered in more detail than would normally be the case. That judgment is published under Neutral Citation [2016] IECA 91.

3. The reasons advanced by the Applicant in support of the application

3.1 In his application for leave, the Applicant outlines three reasons why this Court should grant leave to appeal.

3.2 It is contended that the principal issue is a question as to what involves ‘questions as to the validity of’ a law envisaged by Article 34.4.4° of the Constitution (that reference to Article 34.4.4° obviously being a typographical error, it being presumed that the reference should be to Article 34.4.2°) and, in particular, whether it includes a contention that an interpretation placed on a law would render that law invalid so that such interpretation is not permissible. It is contended that the other main issue ‘is whether ordering a surrender under a [European Arrest Warrant] at a time when proceedings contending that the process that led to such...