Mulreaney v Director of Public Prosecutions and Others, McGrath v Director of Public Prosecutions and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 11 November 2024
• Neutral Citation: [2024] IESC 50
• Court: Supreme Court
• Docket Number: Record No. S:AP:IE:2023:000104

Between/

Niamh Mulreany

Appellant

and

The Director of Public Prosecutions, The Minister for Foreign Affairs, The Minister for Health, Ireland & The Attorney General

Respondents

and

The Irish Human Rights & Equality Commission

Amicus Curiæ

Between/

Kirstie McGrath

Appellant

and

The Director of Public Prosecutions, The Minister for Foreign Affairs, The Minister for Health, Ireland & The Attorney General

Respondents

[2024] IESC 50

O'Donnell CJ.

Dunne J.

Murray J.

Collins J.

Donnelly J.

Record No. S:AP:IE:2023:000104

Record No. S:AP:IE:2023:000105

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Criminal law – Judicial review – Fairness of actions – Applicant seeks judicial review of decisions made by the Director of Public Prosecutions (DPP) challenging the legality and fairness of actions related to criminal proceedings – Whether the Director of Public Prosecutions' decisions in criminal proceedings were lawful and fair

Facts: In this case Mulreaney challenged the Director of Public Prosecutions' (DPP) decision to initiate criminal proceedings, asserting that the Director of Public Prosecutions' (DPP’s) actions were unlawful. They sought three main reliefs: a quashing order to annul the decision, an injunction to prevent further prosecution, and a declaratory judgment stating that the Director of Public Prosecutions' (DPP's) actions were outside its legal authority. In response, the Director of Public Prosecutions (DPP) argued that it had exercised its lawful discretion in line with established legal precedents, which affirmed the Director of Public Prosecutions (DPP's) exclusive authority to decide whether to prosecute and contended that judicial review was not the appropriate remedy in this case.

Held by Ms. Justice Donnelly that the Director of Public Prosecutions (DPP) actions were lawful and dismissed the applicant's challenge. The judgment emphasized the constitutional and statutory right of the DPP to exercise discretion in prosecutorial decisions. Reliance was placed on NECI v Labour Court [2021] IESC 336 and Ryanair v An Taoiseach [2020] IEHC 461, which reinforced the principle that judicial review should not interfere with the DPP’s prosecutorial discretion unless there is evidence of illegality or irrationality. The court concluded that there was no such evidence in this case, and the application was rejected.

Donnelly J, concluded that the Director of Public Prosecutions (DPP's) actions were lawful. The DPP's decision-making process in the criminal proceedings was upheld as legitimate.

Application dismissed

JUDGMENT ofMs. Justice Donnellydelivered this 11 ^th day of November, 2024

Introduction

1 . These appeals raise two separate issues regarding the regime of mandatory quarantine in a designated facility, colloquially called mandatory hotel quarantine, which was introduced in response to the global Covid-19 pandemic. It is important to state at the outset that the appellants did not dispute the seriousness of the Covid-19 pandemic or challenge the entitlement of the Oireachtas in principle to make provision for mandatory quarantine for those entering the State from certain countries where there was a high risk of importation of Covid-19. Furthermore, there was no specific challenge mounted to the effect that the state at issue in these proceedings – the United Arab Emirates (“UAE”) – was a state which ought not to have been designated as such a high-risk state. Instead, the challenge brought by Ms Mulreany and Ms McGrath (“the appellants”) is based on the procedures through which the UAE was so designated and, separately, upon an issue about the legality of the ‘review’ mechanism in respect of the continued quarantine. Thus, this appeal raises issues about whether there has been an unconstitutional delegation by the Oireachtas of its legislative function contrary to Article 15.2.1° of the Constitution and whether there has been an unconstitutional delegation of judicial power to an administrative ‘reviewer’.

2 . The quarantine provisions were introduced by the Health (Amendment) Act, 2021 (“the 2021 Act”) to reduce the risk of importation of Covid-19 and any other variants of concern from other jurisdictions. On 22 March 2021, the Minister for Health (“the Minister”) designated the UAE and 32 other states as areas travel from which presented a high risk of importation of Covid-19. This designation was made under s. 38E(1) of the Health Act, 1947 (“the 1947 Act”) as inserted by the 2021 Act. This section made provision for mandatory quarantine in a designated facility for those arriving from such states. The designation was published online via the government's website.

3 . Two days after the designation was made by the Minister, the appellants travelled on holiday to the UAE. Upon their return, which was delayed as they had not pre-paid the mandated quarantine costs, it is alleged that they were required to quarantine in a designated hotel facility, but that they refused to go there. The appellants were arrested and charged with the offence of resisting being brought to a designated facility under s. 38B(7) and in breach of s. 38D(1)(c) of the 1947 Act as inserted by s. 7 of the 2021 Act. They were remanded in custody and after a night in prison, they were released on bail and they subsequently completed the mandatory quarantine. That charge remains extant against each appellant and the appellants have applied for prohibition of their trials. The appellants applied to the Designated Appeals Officer for a review, in accordance with subss. 38B(16) and (17) of the 1947 Act, of their quarantine confinement, but this was refused. They made no further requests to review. They were released from mandatory quarantine on 13 April 2021 in accordance with statutory provisions.

The Statutory Scheme

4 . The mandatory quarantine scheme and the arguments in this case can only be understood having regard to relevant provisions in the 1947 Health Act, as enacted and as amended. Section 5 of the 1947 Act provides that the Minister for Health can make regulations under the Act in relation to anything referred to in the Act. Any regulation made under the Act, is, pursuant to s. 5(5), required to be laid before each House of the Oireachtas as soon as may be after it is made and either House may pass a resolution annulling it within 21 days. Section 31 of the original 1947 Act provided for the making of regulations for preventing the spread of infectious disease.

5 . Section 10 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act, 2020 (“the 2020 Act”) inserted into the 1947 Act a new section, s. 31A, which provides a specific power to make regulations for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19. The powers in s. 31A remain subject to the requirement that they be laid before the Houses of the Oireachtas pursuant to s. 5(5) of the 1947 Act. The power to make regulations was based on “the immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19” and required the Minister to have regard to a number of factors as set out in s. 31A(2), including: the existence of a national emergency, the risk to health, medical advice, and the public resources of the State. This power to make regulations included the power to make provision for restrictions to be imposed upon travel to or from the State.

6 . The scheme of mandatory quarantine in a designated facility for those arriving into this jurisdiction from certain other countries was introduced by s. 7 of the 2021 Act, through the insertion of sections 38B, 38C, 38D, 38E, 38F, 38G, 38H, 38I, 38J, 38K, 38L and 38M into the 1947 Act. Section 38(E)(1) gave power to the Minister ‘to designate’ certain states for the purpose of mandatory quarantine in a designated facility. The Minster was required to have regard to the list of matters in s. 31A(2) (e.g. that a national emergency has arisen and the international nature of the global pandemic), to consult with the Minister for Foreign Affairs, and to regularly review the situation in a designated state.

7 . Section 38D creates various offences related to the quarantine provisions such as, failure to comply with the requirement to present for quarantine, resisting being detained in or brought to a designated facility, leaving the designated facility for a purpose other than a statutory one, or refusing to take a RT-PCR test. Section 38G gave power to the Minister to make regulations for the purposes of “giving further effect to sections 38B to 38L” and, without prejudice to that generality, set out a list of matters that may be provided for.

8 . The entire system of mandatory quarantine in a designated facility was subject to what is described as a “sunset clause”. Pursuant to s. 9 of the 2021 Act, the provisions related to mandatory quarantine would expire after three months unless the period was extended by a resolution passed by each House of the Oireachtas. The individual designation of a state for the purpose of mandatory quarantine was not subject to any specific overview by the Houses of the Oireachtas.

9 . In accordance with the provisions of s. 38B(1), a person who had been in a designated state at any time during a 14 day period prior to the arrival into this State, was required to quarantine in a designated facility for a period which could not be less than 10 days (if a clear RT-PCR test was given on day 10) and up to 14 days, but that time could be extended for further periods of up to 14 days depending on whether a test was taken, whether a test was positive and if positive, whether the person had been symptomatic or asymptomatic at the time of taking the test. Thus, the usual time for mandatory quarantine was between 10 and 14 days, but it could have been for longer if a positive RT-PCR test was...