Quinn v O'Leary

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 23 April 2004
• Neutral Citation: [2004] IEHC 103
• Date: 23 April 2004
• Docket Number: [2001 No. 342 J.R.]
• Court: High Court

[2004] IEHC 103

THE HIGH COURT

HC 232/04

[No. 342J.R./2001]

QUINN v. JUDGE O'LEARY & ORS

JUDICIAL REVIEW

BETWEEN

PAUL QUINN

APPLICANT

AND

HIS HONOUR JUDGE SEAN O'LEARY, JUDGE MICHAEL C. REILLY, IRELAND, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE ATTORNEY GENERAL AND THE GOVERNMENT OF IRELAND

RESPONDENTS

Citations:

RSC O.84 r26(4)

OFFENCES AGAINST THE STATE ACT 1939 S52

OFFENCES AGAINST THE STATE ACT 1939 PART V

OFFENCES AGAINST THE STATE ACT 1939 S35

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 46

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 29.3

PEOPLE V MCGOWAN 1979 IR 45

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 10

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(2)

RSC O.84 r21

RSC O.84 r18

RSC O.84 r19

RSC O.84 r24

CONSTITUTION ART 29.3

DCR 1948 r85

KAVANAGH V GOVERNMENT OF IRELAND 1996 1 IR 348 1997 1 ILRM 321 1997/4/1268

HEANEY V IRELAND 1996 1 IR 580

COX V IRELAND 1992 2 IR 503

ROCK V IRELAND 1997 3 IR 484

SAUNDERS V UK 1997 23 EHRR 313

MURRAY V UK 1996 22 EHR 29

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(3)(C)

CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1989 SI 1989/1341

QUINN V IRELAND 2000 ECHR 681

NATIONAL IRISH BANKS LTD, RE 1999 3 IR 145 1999 1 ILRM 321

R V SAUNDERS TLR 1/2/2002

COMPANIES ACT 1990 S18

CONSTITUTION ART 38

DPP V FINNERTY 1999 4 IR 364

CRIMINAL JUSTICE ACT 1984

MCCARTHY, STATE V LENNON & ORS 1936 IR 485

CONSTITUTION ART 40.3

OFFENCES AGAINST THE STATE ACT 1939 S15

CONSTITUTION ART 2A

PEOPLE, AG V CUMMINS 1972 IR 312

COMPANIES ACT 1990 S10

AG, PEOPLE V O'BRIEN 1965 IR 142

VOZZA, STATE V O FLOINN 1957 IR 227

CONSTITUTION ART 29.6

O LAIGHLEIS, RE 1960 IR 93

KAVANAGH V GOVERNOR OF MOUNTJOY PRISON 2002 3 IR 97

O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 ILRM 301

DE ROISTE V MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

SOLAND V DPP 198 ILRM 491

FLYNN V MID WESTERN HEALTH BOARD 1991 2 IR 223

MURPHY V IRELAND 1996 3 IR 307

OFFENCES AGAINST THE STATE ACT 1939 S4

CAHILL V SUTTON 1980 IR 269

MCSWIGGAN, REX V JUSTICES OF LONDONDERRY 1905 2 IR 318

CONSTITUTION ART 40.3.2

KELLY, STATE V DISTRICT JUSTICE FOR BANDON & ANOR 1947 IR 258

CUSSEN, STATE V BRENNAN 1981 IR 181

Synopsis:

- [2004] 3 IR 128

Facts: The applicant had been convicted in the District Court of an offence contrary to section 52 of the Offences Against the State Act, 1939. Section 52 provided that a person could be asked to account for their movements. The applicant initiated judicial review proceedings claiming that the section 52 contravened his constitutional rights, his rights under the European Convention on Human Rights, the right to silence and the right against self-incrimination. In the European Court on Human Rights judgment was given in his favour and found that there had been a violation of his right to silence and the right against self-incrimination contrary to Article 6 of the Convention and ordered £4,000 in compensation to be paid. The applicant asserted that the conviction was still recorded and could prejudice efforts to find employment and obtain visas to work in foreign jurisdictions. The applicant sought an order of certiorari to quash the said conviction. The application was opposed by the State which rebutted the arguments of the applicant and contended that the European Convention on Human Rights did not form part of the domestic law of the State. In addition it was submitted that relief should be denied given the delay on the part of the applicant initiating proceedings.

Held by Mr. Justice Ó Caoimh J in granting the relief sought. While the applicant had been guilty of some delay in moving his application it would not act as a bar to deny the relief sought. Given the circumstances of the case it was in the interests of justice that an order of certiorari would issue in respect of the conviction entered against the applicant. However the applicant was not entitled to the declaratory relief sought nor damages.

Reporter: R.F.

1 Mr. Justice Aindrias Ó Caoimh delivered the 23rd of April, 2004

2 By order of this Court dated 28 ^th May, 2001, the applicant was given leave to apply for the relief of:-

• 1. An order of certiorari by way o f judicial review removing for the purpose of being quashed the order of the first named respondent made on 20 ^th January, 1998 and also if necessary removing for the purpose of being quashed the order of the second named respondent made on 15 ^th May, 1997.

• 2. Alternatively an order pursuant to O. 84, r. 26 (4) of the Rules of the Superior Courts, 1986 and/or the inherent jurisdiction of this Court remitting the said proceedings to the first named respondent.

• 3. A declaration that s. 52 of the Offences against the State Act, 1939is unconstitutional and void.

• 4. A declaration as to the statutory and constitutional rights of the applicant and as to his rights and legitimate expectations under the European Convention on Human Rights.

• 5. Damages for breach of duty including statutory and constitutional duty.

3 The grounds upon which this relief is sought are as follows:-

• 1. Section 52 of the Offences against the State Act, 1939contravenes the constitutional rights of the applicant and his rights under the European Convention on Human Rights, and is unconstitutional and void, on the ground that it infringes the right to fair procedures, the right against self-incrimination, the right to silence, the right to freedom of expression, the presumption of innocence and the right to trial in due course of law and on the ground that the section lacks a sufficient relationship to the rest of Part V of the said Offences against the State Act, 1939, and the application of the section in conjunction with s. 35 of the said Act is arbitrary and irrational. Alternatively, the sixth named respondent had erroneously failed to reconsider the need for the continued application of the order made under the said s. 35 on the date of the offence alleged against the applicant.

• 2. The respondents and each of them are bound by the judgment of the European Court of Human Rights in favour of the applicant herein, which judgment became final on the 21st day of March, 2001. In particular the respondents and each of them are obliged to abide by the judgment of the Court pursuant to Article 46 of the Convention and to secure to the applicant the rights and freedoms guaranteed by the Convention as interpreted by the Court pursuant to Article 1 of the Convention. In the premises, s. 52 of the Offences against the State Act, 1939contravenes Article 29.3 of the Constitution in as much as the principle of international law "pacta sunt servanda" requires the State to repeal or otherwise nullify legislation (including the said s. 52) which has been authoritatively determined to contravene an international treaty, in this instance the European Convention on Human Rights.

• 3. The decision of the first named respondent herein and/or the decision of the second named respondent failed to give any or any sufficient weight to the rights of the applicant under the Constitution and/or the European Convention on Human Rights. Further or in the alternative the said decisions were bad in law by reason of the fact that at the time of the alleged offence the applicant was liable to have any statements made by him in response to demands made under Section 52 of the Offences against the State Act, 1939adduced against him in evidence by virtue of the state of the law then existing ( People v. McGowan [1979] I.R. 45). The understanding of the law then prevailing has since been determined to be wrong in law and in breach of the constitutional rights of the applicant.

• 4. The decision of the first named respondent herein was infected by error and/or shows error on its face and/or is bad for uncertainty in that it purports to affirm "the Orders of the District Court" herein notwithstanding that the applicant sought to appeal against the single order whereby he was convicted and sentenced, whereas two orders of the District Court imposing a conviction were drawn up erroneously purporting to show that the applicant was convicted for different offences.

4 The application is grounded upon an affidavit of the applicant who described himself as a computer technical support analyst and resides in the County of Limerick. He states that on 15 ^th May, 1997, he was brought before the District Court in the City of Limerick on charges preferred against him by the Director of Public Prosecutions. He states that he was charged with three counts of failing on 20 ^th and 21 ^st July, 1996, to account for his movements on the 6 ^th and the 7 ^th June, 1996, pursuant to s. 52 of the Offences against the State Act, 1939. He states that the District Court dismissed one charge, made no order on another, and convicted him on the third charge and imposed a sentence of six months imprisonment. He states that there appears to have been error or confusion on the part of the District Court as to which charge he was convicted of, in that two sets of orders were drawn up which do not correspond. He points out that one of these orders purported to show that he was convicted of failing to respond to a request made under s. 52 on the 20 ^th July, 1996, while another purports to record that he was convicted of failing to respond to a similar request on the 21 ^st July, 1996. He states that he appealed the order of conviction, but following the rejection of submissions on his behalf as to overlap of charges, he applied to withdraw his appeal and on the 20 ^th January, 1998, the first respondent made an order striking out his appeal and purporting to affirm the orders of the District Court. He states that he was immediately taken into...