NS v Judge Anderson and Others

• Jurisdiction: Ireland
• Judge: O'Higgins J.
• Judgment Date: 18 November 2004
• Neutral Citation: [2004] IEHC 440
• Court: High Court
• Docket Number: [2002 No. 546 JR]
• Date: 18 November 2004

Sofineti v Judge Anderson & Ors

JUDICIAL REVIEW

BETWEEN

NICOLETA SOFINETI

APPLICANT

AND

JUDGE DAVID ANDERSON, DIRECTOR OF PUBLIC PROSECUTIONS AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENTS

[2004] IEHC 440

[546JR/2002]

THE HIGH COURT

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S26

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S18

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 31

REFUGEE ACT 19961996 S 8

REFUGEE ACT 19961996 S 9

CONSTITUTION ART 40.3

REFUGEE ACT 1996 S10

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 31(1)

BENNION STATUTORY INTERPRETATION 3ED 1997 554 - 555 PARA 241

AG GV LAMPLOUGH 1878 3 EX D 214

EUROPOL ACT 1997 S2

MERCHANT SHIPPING (LIABILITY OF SHIP OWNERS & ORS) ACT 1996 S7

MERCHANT SHIPPING (LIABILITY OF SHIP OWNERS & ORS) ACT 1996 S19

EUROPEAN COMMUNITIES (AMDT) ACT 1993

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S6

CONTRACTUAL OBLIGATIONS (APPLICABLE LAW) ACT 1991 S2

INTERNATIONAL CARRIAGE OF GOODS BY ROAD ACT 1990 S2

JURISDICTION OF COURTS (MARITIME CONVENTIONS) ACT 1989 S4

AIR NAVIGATION & TRANSPORT (INTERNATIONAL CONVENTIONS) ACT 2004 S4

DIPLOMATIC RELATIONS & IMMUNITIES ACT 1967 S5

DIPLOMATIC RELATIONS & IMMUNITIES ACT 1967 S6

AIR NAVIGATION & TRANSPORT ACT 1965 S2

Z v MIN FOR JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215 2003/49/12190

PROTOCOL TO THE UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1967

PROTECTION OF CHILDREN (HAGUE CONVENTION) ACT 2000 S2

R v UXBRIDGE MAGISTRATES COURT EX PARTE ADIMI 2001 QB 667 2000 3 WLR 434

NWOLE v MIN JUSTICE UNREP FINLAY GEOGHEGAN 31.10.2003 2003/42/10103

MIN FOR STATE FOR IMMIGRATION AND ETHNIC AFFAIRS v TEOH 1994-1995 183 CLR 273

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1989

KAVANAGH v GOVERNOR OF MOUNTJOY PRISON & SPECIAL CRIMINAL COURT & ORS 2002 3 IR 97 2001 13 3618

CONSTITUTION ART 29.6

R (EUROPEAN ROMA RIGHTS) v IMMIGRATION OFFICER AT PRAGUE AIRPORT (CA) 2004 2 WLR 147 2004 QB 811

CONSTITUTION ART 29

O LAIGHLEIS, IN RE 1960 IR 93

CONSTITUTION ART 30.3

EVISTON v DPP 2002 3 IR 260

DOHERTY v GOVERNOR OF PORTLAOISE PRISON & ORS 2002 2 IR 252 2002/7/1474

CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT 1998

R (PEPUSHI) v CROWN PROSECUTION SERVICE TLR 21.5.2004 2004 EWHC 798

REFUGEE ACT 19961996 S 9(8)

REFUGEE ACT 19961996 S 9(8)(f)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S18(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S26(1)

K (M) v GROARKE & DPP UNREP SUPREME 25.6.2002 2002/14/3322

PROSECUTION OF OFFENCES ACT 1974 S2(5)

H v DPP 1994 2 IR 589

CONSTITUTION ART 38

1 O'Higgins J. delivered on the 18th day of November 2004.

2 On the 30 ^th August, 2002, by order of the High Court (McKechnie J.) the applicant was given leave to seek by way of judicial review certain orders set out in the statement dated the 30 ^th August, on the grounds set out in paragraph 5 of the said statement. Subsequently, an application was made to amend the grounds which now read as follows:-

3 a A) An order for prohibition and/or injunction (including an interim injunction) restraining the 1 ^st named respondent from hearing or proceeding with a prosecution pursuant to s. 26 and s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

4 b B) An order for prohibition and/or injunction (including an interim injunction) restraining the 2nd named respondent from prosecuting or proceeding with a prosecution of the applicant under s.26 and s.18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, or any further or other prosecution of charges pursuant to the said Act arising out of or in connection with the applicant's arrival in this State seeking asylum and a declaration of refugee status and her entry into this State for that purpose.

5 c C) An order of certiorari quashing the decision of the 2nd named respondent to prosecute the applicant as aforesaid.

6 d D) In the alternative an order directing a permanent stay on any such prosecutions as aforesaid.

7 e E) In the further alternative, an order quashing the charges in charge sheet No.'s 103820 and 103989, Garda Station, Dublin Airport.

8 f F) A declaration that the decision of the 2nd named respondent to prosecute the applicant as aforesaid and in particular the use of s.26 and s.18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, is ultra vires the Refugee Act 1996, (Article 31 of the Geneva Convention 1951) and an abuse of process.

9 g G) A declaration that the treatment of the applicant by the 3rd named respondent was an infringement of the applicant's right to bodily integrity and that of her unborn child and in breach of her right to fair procedures and constitutional justice.

10 h H) An order of mandamus directing the 3rd named respondent to process the applicant's application for a declaration of refugee status in accordance with the Refugee Act 1996.

11 i I) An order pursuant to Order of the Rules of the Superior Courts O.84, r.20 (7) staying proceedings in the District Court pursuant to the charges under s.26 and s.18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, until the determination of this application.

12 The grounds on which relief is sought are as follows:

13 1) The decision to prosecute under the ordinary criminal law and in particular the use of s.26 and s.18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, is contrary to the provisions of Article 31 of the Geneva Convention 1951.

14 2) The decision to prosecute as aforesaid is an abuse of process.

15 3) The applicant is entitled to immunity from prosecution under the ordinary criminal law as an applicant for a declaration of refugee status arriving at the frontier of the State.

16 4) The decision to prosecute as aforesaid will prejudice the applicant's application for a declaration of refugee status in that any such prosecution will damage the applicant's credibility.

17 5) The applicant has a legitimate expectation that the 3rd named respondent will apply the provisions of Article 31 of the Geneva Convention 1951 and ss. 8 and 9 of the Refugee Act 1996 only. (Section 9 of the Act was relied on in argument).

18 6) That since the applicant presented at Dublin Airport, a passport which the Immigration Officer knew was not genuine, the ingredients for an offence under s.26 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, did not exist and there was no basis on which to ground a charge.

19 7) The ingredients for an offence under s.18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, did not exist and there is no basis on which to ground such a charge. Grounds 6 and 7 were not pursued in court.

20 8) That the 3rd named respondent is obliged to accept and process the applicant's application for refugee status and the presentation of a false passport does not obviate this obligation.

21 9) Any decision to prosecute in these circumstances should be taken by the Minister for Justice, Equality and Law Reform rather than the Director of Public Prosecutions.

22 10) The applicant is entitled to the relief sought under Article 31 of the Geneva Convention 1951.

23 11) The detention and treatment of the applicant is inconsistent with the State's obligations under the Refugee Act 1996.

24 12) The treatment of the applicant while in custody was contrary to her right to bodily integrity and that of her unborn child and contrary to fair procedures and constitutional justice, as required by Article 40.3 of the Constitution of Ireland. This ground was not pursued in court.

25 13) The decision of the 2nd named respondent to prosecute on a further charge under s.18 Criminal Justice (Theft and Fraud Offences) Act 2001, is a further abuse of process compounding the earlier abuse of process.

26 14) The decision of the 2 ^nd named respondent to prosecute pursuant to s.18 and s.26 Criminal Justice (Theft and Fraud Offences) Act 2001, is an unlawful interference with the applicant's right to make an application for refugee status.

27 The order for mandamus is not being pursued because the case of the applicant is being processed. The grounds, based on the treatment of the applicant, have not been pursued in this court.

The Facts

28 On the 25 ^th April, 2002, a flight arrived from Milan at pier C in Dublin Airport. The authorities became concerned in relation to an Irish passport which was presented on behalf of the applicant. The Irish passport was in the name of Adele Kerr with the date of birth given as the 15 ^th April, 1980. The authorities believed that the passport was a photo substitute and made enquires of the applicant. She stated that she was Romanian and she was refused leave to land as she was not in possession of any passport or travel documents which established her identity and nationality. Following the applicant being refused leave to land, arrangements were made to return her to Milan. Two efforts were made to return her to Milan by airplane. These were unsuccessful. The captain of the aircraft refused to allow her to journey back to Milan. There is disagreement as to the circumstances in which the refusal took place. The applicant was brought to Santry Garda Station and was charged with an offence under s. 26 of the Criminal Justice (Theft and Fraud Offences) Act 2001. That case appeared before the District Court on a number of occasions and she was remanded on a number of occasions. On the 26 ^th November, she was charged with a further offence contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and further remanded.

29 On the 26 ^th August, the day after her arrival, the applicant completed an application form pursuant to s. 8 of the Refugee Act 1996, for a...