OâÇÖSULLIVAN v IRISH PRISON SERVICE

• Jurisdiction: Ireland
• Judgment Date: 25 May 2010
• Date: 25 May 2010
• Docket Number: [2010 No. 323
• Court: High Court

[2010] IEHC 301,

High Court

[2010 No. 323 SS]

O'Sullivan v. Irish Prison Service

In the matter of an inquiry pursuant to Article 40.4.2ø of the Constitution of Ireland 1937: Stephen O'Sullivan

Applicant

and

The Chief Executive of the Irish Prison Service, Ireland and The Attorney General

Respondents

Cases mentioned in this report:-

Adebayo v. Commissioner of An Garda Síochána [2006] IESC 8, [2006] 2 I.R. 298.

The Adoption (No. 2) Bill, 1987 [1989] I.R. 656; [1989] I.L.R.M. 266.

Arklow Holidays Ltd. v. An Bord Pleanála [2006] IEHC 102, [2007] 4 I.R. 112; [2007] 1 I.L.R.M. 125.

Arklow Holidays Ltd. v. An Bord Pleanála [2008] IEHC 2, (Unreported, High Court, Clarke J., 11th January, 2008).

Arklow Holidays Ltd. v. Wicklow Coiunty Coiuncil[2004] IEHC 75, (Unreported, High Court, Murphy J., 4th February, 2004).

Bane v. Garda Representative Association [1997] 2 I.R. 449.

Bourke v. Attorney General [1972] I.R. 36; (1972) 107 I.L.T.R. 33.

Brady v. Donegal County Council [1989] I.L.R.M. 282.

Buckley and others (Sinn Féin) v. Attorney General and another[1950] I.R. 67.

Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412.

Cockle v. Isaksen [1957] HCA 85, (1957) 99 C.L.R. 155.

Controller of Patents v. Ireland [2001] 4 I.R. 229.

Crilly v. T. & J. Farrington Ltd. [2001] 3 I.R. 251; [2002] 1 I.L.R.M. 161.

D.D. v. Gibbons [2006] IEHC 33, [2006] 3 I.R. 17.

Dublin Wellwoman Centre Ltd. v. Ireland [1995] 1 I.L.R.M. 408.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

The Employment Equality Bill, 1996 [1997] 2 I.R. 321.

E.P.I. v. Minister for Justice [2008] IEHC 432, [2009] 2 I.R. 254.

Fallon v. An Bord Pleanála [1992] 2 I.R. 380; [1991] I.L.R.M. 799.

Horgan v. Ireland [2003] 2 I.R. 468; [2003] 2 I.L.R.M. 357.

Howard v. Commissioners of Public Works [1994] 1 I.R. 101; [1993] I.L.R.M. 665.

The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360.

Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R. 704; [2002] 1 I.L.R.M. 68.

Kenny v. Trinity College Dublin [2007] IESC 42, [2008] 2 I.R. 40; [2008] 1 I.L.R.M. 241.

Lancefort Ltd. v. An Bord Pleanála [1998] 2 I.R. 511.

Ex-parte McCardle (1868) 74 U.S. (7 Wall.) 506.

Minister for Justice v. Altaravicius [2006] IESC 23, [2006] 3 I.R. 148; [2006] 2 I.L.R.M. 241.

Minister for Justice v. Stapleton [2007] IESC 30, [2008] 1 I.R. 669; [2008] 1 I.L.R.M. 267.

O'Neill v. Beaumont Hospital Board [1990] I.L.R.M. 419.

O'Reilly v. Cassidy (No. 2) [1995] 1 I.L.R.M. 311.

Orange Ltd. v. Director of Telecoms (No. 2) [2000] 4 I.R. 159.

Parkin and Cowper v. James (1905) 2 C.L.R. 315.

R. v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256; [1923] All E.R. 233.

Radio Limerick One Ltd. v. Independent Radio and Television[1997] 2 I.R. 291; [1997] 2 I.L.R.M. 1.

Rooney v. Minister for Agriculture [2001] 2 I.L.R.M. 37.

Savill Brothers. Ltd. v. Bethell [1902] 2 Ch. 523.

Smith Kline & French Laboratories (Aust) Ltd. v. Commonwealth [1991] HCA 43, (1991) 173 C.L.R. 194.

Courts - Jurisdiction - Appeal from High Court - Restriction - Statute - Validity - Right to appeal - Access to courts - Restrictions on appeal - Point of law of exceptional public importance - Requirement of leave of court and certification of point of law - Whether restriction constitutional or conventional - Whether threshold of exceptional public importance too high in case of personal liberty - Whether threshold insurmountable - Whether high threshold unconstitutional interference with right to appeal - Bias - Objective bias - Fair procedures - Reasonable apprehension of bias in mind of reasonably informed person - Whether same judge making decision in relation to appeal contravenes fair procedures - Whether perception that decision maker protecting decision - European Arrest Warrant Act 2003 (No. 45), s. 16(12) - Constitution of Ireland 1937, Articles 34.4.3ø, 40.1 and 40.3 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, articles 6(1), 13 and 14 - European Union Charter on Fundamental Rights, article 47 - Treaty on European Union, Articles 19(1) and 35(2).

Statute - Interpretation - Parliamentary debates - Separation of powers - Legislative history - Traveaux preparatoires - Whether consideration of parliamentary debates permissible for interpreting legislation - Habeas corpus - Onus of proof - Whether onus of proof on respondent to prove constitutionality of statute - Whether onus shifting - Presumption of constitutionality.

Inquiry pursuant to Article 40.4.2ø of the Constitution

The facts have been summarised in the headnote and are more fully set out in the judgment of McKechnie J., infra.

On the 23rd February, 2010, an application was made to the High Court (Peart J.) on behalf of the applicant to challenge the legality of his detention pursuant to Article 40.4.2ø of the Consitution.

The inquiry was heard by the High Court (McKechnie J.) from the 5th to the 11th May, 2010.

Section 16(12) of the European Arrest Warrant Act 2003, as amended by s. 12(f) of the Criminal Justice (Miscellaneous Provisions) Act 2009, provides:-

"An appeal against an order under this section or a decision not to make such an order may be brought in the Supreme Court if, and only if, the High Court so certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court."

A European arrest warrant was issued in respect of the applicant. The applicant did not consent to his surrender and the trial judge ordered his surrender to the requesting State. The applicant applied for a certificate to allow for an appeal to the Supreme Court under s. 16(12) of the European Arrest Warrant Act 2003 but the trial judge refused to so certify. Immediately after such refusal, the applicant commenced proceedings under Article 40.4.2ø of the Constitution.

The applicant contended that s. 16(12), as amended, was unconstitutional and contrary to the European Convention on Human Rights 1950 and the European Charter on Fundamental Rights on the basis that, inter alia, the section restricted the applicant's right of appeal and right of access to the courts; be contended that the threshold was too high for cases involving personal liberty; that he was being unfairly discriminated against; and of the fact that the judge who made the s. 16 order was generally the same judge who made the decision on whether to grant the appeal procedure was contrary to fundamental fair procedures.

Held by the High Court (McKechnie J.), in dismissing the application and finding that s. 16(12) of the European Arrest Warrant Act 2003, as amended, was not repugnant to the provisions of the Constitution, 1, that, in a habeas corpus application, the onus of proof lay on the State to prove that the applicant was detained in accordance with law. This onus did not extend to proving the constitutionality of the laws under which an applicant was detained as these laws enjoyed the presumption of constitutionality.

2. That the right to appeal was a right which was subject to exceptions and restrictions under the Constitution. The right should not be viewed in isolation but should be viewed in light of the overall procedures and safeguards which surrounded the applicant's access to the courts in the particular case.

The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360 considered.

3. That the requirement of special leave was a regulation, rather than an exclusion, to appellate jurisdiction as understood by reference to Article 34.4.3ø of the Constitution.

Smith Kline & French Laboratories (Aust) Ltd. v. Commonwealth [1991] HCA 43, (1991) 173 C.L.R. considered.

4. That the threshold under s. 16(12) of the European Arrest Warrant Act 2003 of "exceptional public importance" and "in the public interest" was a substantial, but not insurmountable, threshold.

Arklow Holidays Ltd. v. An Bord Pleanála [2008] IEHC 2, (Unreported, High Court, Clarke J., 11th January, 2008) considered.

5. That the legislature had a wide discretion in the implementation of the Framework Decision and, provided the Oireachtas did not negate the objectives of the decision, there could be no complaint in relation to such implementation.

The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 followed.

6. That the principle of proportionality could have little role, if any, where the provisions in question breached no substantive rights.

7. That surrender under the European arrest warrant regime, which was based on a significant level of integration and reciprocity, must be considered as a regime different, separate and distinct from extradition, which rested on materially different principles.

Minister for Justice v. Altaravicius [2006] IESC 23,[2006] 3 I.R. 148 and Minister for Justice v. Stapleton[2007] IESC 30, [2008] 1 I.R. 669 considered.

8. That the legislation in question could only be considered discriminatory if it treated the applicant less favourably than another person in a suitably similar position, without justification. The applicant could not be said to be in a suitably similar position to somebody being extradited to a non-member state.

The Employment Equality Bill, 1996 [1997] 2 I.R. 321considered.

9. That the Oireachtas was entitled to introduce differing procedural legislative schemes to deal with different areas of law and litigation without taking into account how it had dealt with such schemes in these other areas.

10. That the fact that the right to appeal was limited in a different way to other member states in its implementation of the Framework Decision was not sufficient to ground a complaint of discrimination.

11. That the court could not inquire into the reasons for the State's decision not to make a declaration under Article 35(2) of the Treaty on European Union. This was a matter...