E.P.I. and Others v Minister for Justice Equality and Law Reform

• Jurisdiction: Ireland
• Judge: MR JUSTICE HEDIGAN,
• Judgment Date: 16 December 2008
• Neutral Citation: [2008] IEHC 432
• Date: 16 December 2008
• Court: High Court
• Docket Number: [2008 No. 303

I (E P) (A Minor) & Ors v Min for Justice

BETWEEN

E. P. I., N. A. I. (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND, E. P. I.) AND J. T. I. (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND, E. P. I.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2008] IEHC 432

[303 JR/2008]

THE HIGH COURT

INJUNCTIONS

Interlocutory injunctions

Deportation order - Applicant to raise fair question to be tried - Balance of convenience - Whether fair question to be tried flows from grant of leave to apply for judicial review - Whether evidence of irreparable loss - Whether balance of convenience favoured enforcement of deportation order - Subsidiary protection application - Additional evidence submitted after order made - Respondent failing to give undertaking not to deport pending determination of proceedings - Whether interlocutory injunction should be granted when valid deportation order in existence - Campus Oil v Minister for Industry (No 2) [1983] 1 IR 88 applied and G v DPP [1994] 1 IR 374 considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 4(2) - Injunction refused (2008/303JR - Hedigan J - 18/11/2008) [2008] IEHC 358

I(EP) v Minister for Justice

COURTS

Judiciary

Fair procedures - Natural justice - Bias - Objective bias - Principles to be applied where application made to judge to recuse himself on grounds of objective bias - Whether previous interlocutory decision by judge in matter between parties can ground objective bias claim against judge - Application granted (2008/303JR - Hedigan J - 16/12/2008) [2008] IEHC 432

I(EP) v Minister for Justice, Equality and Law Reform

R v SUSSEX JUSTICES EX PARTE MCCARTHY 1924 1 KB 256

DUBLIN WELL WOMAN CENTRE LTD & ORS v IRELAND & ORS 1995 1 ILRM 408

O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419 1989/8/2153

O'REILLY v CASSIDY & ORS (NO 2) 1995 1 ILRM 311 1995/4/1437

BANE v GARDA REPRESENTATIVE ASSOCIATION 1997 2 IR 449

RADIO LIMERICK ONE LTD v INDEPENDENT RADIO & TELEVISION CMSN 1997 2 IR 291 1997 2 ILRM 1 1997/6/2117

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION & METEOR MOBILE COMMUNICATIONS LTD 2000 4 IR 159 2000/15/5538

BULA LTD & ORS v TARA MINES & ORS (NO 6) 2000 4 IR 412 2000/3/925

ROONEY v MIN FOR AGRICULTURE & ORS 2001 2 ILRM 37 2000/16/6128

D (D) v GIBBONS 2006 3 IR 17 2006 IEHC 33

KENNY v TRINITY COLLEGE & DUBLIN CITY COUNCIL UNREP SUPREME 15.10.2007 2007/32/6662 2007 IESC 42

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

SIGURDSSON v ICELAND 2005 40 EHRR 15

BLEHEIN v ST JOHN OF GOD HOSPITAL UNREP SUPREME 31.7.2001 2001/2/319

CAMPUS OIL LTD v MIN FOR INDUSTRY (NO 2) 1983 IR 88

1 The substantive hearing of the application herein was listed before this Court on 16 ^th December, 2008. Before the proceedings commenced, an application was made by Senior Counsel for the applicants, requesting this Court to recuse itself and to abstain from hearing and determining the substantive application. The basis for that application was that there existed a risk of a reasonable apprehension or perception of bias on the part of the Court. This, it was submitted, was because a person in the position of the applicant might reasonably fear that determinations made previously by this Court in the course of the proceedings herein would prevent a completely fair and independent hearing of the issues that arise.

2 Those determinations were made in the following circumstances. Leave to seek judicial review of the Minister's decision was granted by Edwards J. on 20 ^th March, 2008. As a result of a series of further events, an application for interlocutory relief came before this Court in November, 2008: the applicants sought an interlocutory injunction restraining their deportation pending the determination of the within proceedings. By decision dated 18 ^th November, 2008, this Court refused to grant the interlocutory relief sought, finding that there was no fair question to be tried, that damages would be an adequate remedy, and that the balance of convenience favoured the enforcement of the extant deportation orders. At paragraph 51 of that decision I wrote as follows:-

"Bearing in mind that it is not the role of this Court to make a determination on the substantive matters, nonetheless I am of the view that there is no fair question to be tried. Since, however, the other issues have been argued before me with considerable vigour, I propose to go on to address the other Campus Oil questions."

3 I gave my decision in this matter in an ex tempore judgment on 16 ^th December, 2008, but indicated that I would give fuller reasons in a written judgment.

The Relevant Law

4 The fundamental principle underlying the consideration of a request for recusal was set out by Lord Hewart CJ in R v Sussex Justices ex parte McCarthy [1924] 1 KB 256, at p.259: "it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done". On the subject of that fundamental principle in Dublin Wellwoman Centre Ltd & Ors v Ireland & Ors [1995] 1 ILRM 408, Denham J. in the Supreme Court held:-

"The concept of the perception of the administration of justice, as well as the content of justice, is as important today, as in years gone by. The statement of Lord Hewart C.J. is as relevant today as when it was made in 1923. With the development of the modern communications media and an increasingly educated and enquiring society the public perception of the impartiality of the courts is a cornerstone of the administration of justice in our constitutional democracy."

5 The duty of a judge to recuse himself or herself arises where it becomes clear that there exists a real possibility of either subjective or objective bias. The nature of bias has been considered by the Irish Courts on many occasions, and is now well settled (see, among others, O'Neill v Beaumont Hospital Board [1990] ILRM 419, O'Reilly v His Honor Judge Cassidy (No. 2) & Anor [1995] 1 ILRM 311, Bane v Garda Representative Association [1997] 2 IR 449, Radio One Limerick v Independent Radio and Television [1997] 2 IR 291, Orange Communications Ltd v Director of Telecommunications Regulation & Anor [2000] IESC 22, Bula Ltd (In Receivership) & Ors v Tara Mines Ltd & Ors (No. 6) [2000] 4 IR 412, Rooney v Minister for Agriculture [2001] 2 ILRM 37, D.D. v District Judge Conal Gibbons [2006] 3 IR 17, Kenny v Trinity College & Dublin City Council [2007] IESC 42). The evolution of the law relating to bias was set out further by Denham J. in Dublin Wellwoman Centre Ltd & Ors v Ireland & Ors [1995] 1 ILRM 408:-

"The concept of bias developed through cases considering material interest. It also arose in cases on prejudgment, prior involvement, and personal attitudes and beliefs. There are two fundamental streams of thought within this wider concept. Firstly, that there should be no actual bias i.e. a subjective test. And secondly, that there should be no reasonable apprehension that there is bias, i.e. the objective test. Both of these streams of thought are equally important in the broad river of justice."

6 These principles are reflected in the jurisprudence of the European Court of Human Rights as to the entitlement to a fair hearing by "an independent and impartial tribunal" under Article 6 §1 of the European Convention on Human Rights. A neat...