Rgg v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Gilligan
• Judgment Date: 15 February 2008
• Neutral Citation: [2008] IEHC 30
• Docket Number: [2006 No. 128 JR]
• Court: High Court
• Date: 15 February 2008

[2008] IEHC 30

THE HIGH COURT

[2006/128 JR]

Grierosu v DPP

BETWEEN

RUXANDRA GABRIELA GRIEROSU

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S29(2)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S26

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

SOFINETI v JUDGE DAVID ANDERSON & ORS UNREP HIGH 18.11.2004

SIRITANU v DPP & JUDGE COUGHLAN UNREP DUNNE 2.2.2006 2005 55 11472 2006 IEHC 26

CONSTITUTION ART 30

KHAIRANDISH v SSHD 2003 SLT 1358 2003 SCOTCS 116

EVISTON v DPP 2002 3 IR 260 2002 1 ILRM 134

AG HONG KONG v NG YUEN SHIU 1983 2 AC 629FAKIH v MIN FOR JUSTICE 1993 2 IR 406 1993 ILRM 274

CONSTITUTION ART 29(6)

KAVANAGH v GOVERNOR OF MOUNTJOY PRISON 2002 3 IR 97

CONSTITUTION ART 30(3)

O'CALLAGHAN, STATE v O HUADHAIGH 1977 IR 42

PROSECUTION OF OFFENCES ACT 1974 S2(5)

MCCORMACK, STATE v CURRAN 1987 ILRM 225

H v DPP 1994 2 IR 589

CRIMINAL LAW

Possession and use of false passport

Asylum - Legitimate expectation - Judicial review - Whether respondent under duty to consider withdrawal of prosecution having regard to article 31(1) of United Nations Convention Relating to the Status of Refugees 1951 - Whether applicant entitled to legitimate expectation that respondent would consider request for withdrawal of prosecution - Kavanagh v Governor of Mountjoy Prison [2002] 3 IR 97, Khairandish v Home Secretary [2003] SLT 1358, The State (McCormack) v Curran [1987] ILRM 225 and H v DPP [1994] 2 IR 589 applied - Prosecution of Offences Act 1974 (No 22), ss 2(5) and 3(1) - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), ss 26 and 29(2) - Constitution of Ireland 1937, Articles 29.6 and 30.3 - United Nations Convention Relating to the Status of Refugees 1951, article 31(1) - Claim dismissed (2006/128JR - Gilligan J - 15/2/2008) [2008] IEHC 30

G(RG) v DPP

: The applicant Romanian national presented in Ireland with false documentation and was refused entry. She in fact had legitimate documentation on her also. She was arrested, detained and admitted to the State and failed to turn up for the asylum process. She alleged that her prosecution as to the false documentation should have been withdrawn on the basis that she had a legitimate expectation to obtain benefits from the UN Convention Relating to the Status of Refugees 1951 that the Minister should have considered.

Held by Gilligan J., that it was not for the Court to fetter the discretion of the Minister in this regard. The reviewability of Ministerial action was limited to mala fides or improper motive or policy. The reliefs sought would be refused.

Reporter: E.F.

1 1. The applicant in these proceedings is a Romanian national who upon her arrival in Ireland in February, 2005 presented at Dublin Airport with a false Lithuanian passport. When challenged she was advised that she was being refused entry to the State whereupon she immediately sought asylum. She did actually have on her person a valid Romanian passport and an identity card. She was then admitted to the State, arrested, and detained on charges relating to her possession, and use, of a false passport, contrary respectively to s.29(2) and s.26 of the Criminal Justice (Theft and Fraud Offences) Act 2001. A charge under section 29(2) is punishable on conviction on indictment by a fine or imprisonment for up to five years or both andunder s.26 on conviction on indictment by a fine and/or imprisonment for up to ten years. The applicant spent five days in detention before being conditionally released.

2 2. Subsequently, the applicant failed to turn up for an interview within the asylum process and her application was deemed to have been withdrawn. She has subsequently been served with a deportation order. In the background the prosecution against her proceeded in the District Court. The applicant sought a number of adjournments and wrote a number of letters to the Director of Public Prosecutions, being the respondent herein, relying on Article 31(1) of the 1951 Geneva Convention under the heading "Refugees Unlawfully in the Country of Refuge."

3 3. Article 31(1) of the 1951 Geneva Convention states:-

2 "1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

4 4. The relevant letters requesting the respondent to give consideration to withdrawing the charges against the applicant are dated respectively the 15 ^th day of November, 2005, and the 9 ^th day of January, 2006.

5 5. No reply was received to these letters and the District Court hearing that the prosecuting member of An Garda Síochána had no power to withdraw the charges, fixed a hearing date for the 10 ^th February, 2006.

6 6. An application for leave to apply for judicial review was granted by this Court (Peart J.) on the 6 ^th day of March, 2006, but the only ground that is being pursued before this Court is that at paragraph D seeking;

"(D) In the alternative an order of mandamus by way of application for judicial review directing the respondent to consider the request of the applicant, that the said prosecution be withdrawn on the grounds that the applicant is entitled to the benefit of Article 31 of the United Nations Convention Relating to the Status of Refugees 1951."

7 7. The case is made on the applicant's behalf that she is a person who, in good faith, claimed asylum notwithstanding that by reason of her failure to turn up for interview her application for asylum was deemed to be withdrawn. It is submitted that she presented herself to the Irish authorities without delay and sought asylum in this jurisdiction in good faith.

8 8. As is set out by the applicant the core issue in this application is whether or not the respondent has a duty to consider requests by persons, in the position of the applicant, that a prosecution brought in the name of the respondent be withdrawn on the ground that it is inconsistent with the State's international obligations pursuant to Article 31(1) of the 1951 Convention. Further, it is alleged on the applicant's behalf that the applicant has a legitimate expectation that the respondent consider her request.

9 9. For the purpose of these proceedings the applicant accepts that the 1951 Convention does not form part of Irish law.

10 10. Counsel for the applicant, Mr. Dillion Malone, emphasises that the case being made is that the respondent has, at a minimum, an obligation to consider a request that a prosecution be withdrawn because it is in breach of Ireland's internationalobligations pursuant to Article 31(1) of the 1951 Convention. This, in effect, is the crux of the case and he accepts that he cannot actually either seek to, or, stop the respondent proceeding ahead with the prosecution. Counsel for the applicant refers to the fact that no reply was received to the letters forwarded on the behalf of the applicant and that the applicant has a legitimate expectation to, at least, having her application considered by the respondent.

11 11. Counsel for the respondent, Mr. O'Malley, submits that the issues raised in this application have already been considered by this Court on at least two previous occasions, in the case of Sofineti v. Judge Anderson and D.P.P. (Unreported, High Court, O'Higgins J., November 18 ^th, 2004) and that of Siritanu v. D.P.P. [2006] IEHC 26 (Dunne J.).

12 12. The central thrust of counsel's submission, on the respondent's behalf, is that by virtue of the terms of Article 30 of the Constitution of Ireland and the Prosecution of Offences Act 1974, the powers and the duties of the respondent cannot be affected by any claimed legitimate expectation based on an international treaty.

13 13. Further, it is submitted on the respondent's behalf that there was no precedent for this application to the extent that no court has previously given a direction to the respondent on the basis of legitimate expectation.

14 14. Counsel for the respondent submits that legitimate expectation must be founded on either an express promise by a public officer to the applicant, or a consistent course of practice where people have been treated in a particular manner and the applicant could reasonably be expected to be treated in the same way.

15 15. Mr. Dillon-Malone, on the applicant's behalf, submits that the 'correct approach' to adopt when a court must decide if entering into an international treatymay give rise to legitimate expectations is that as stated in Re Khairandish [2003] ScotCS 116, 23rd April 2003, at paras.10 - 12, per Lord Drummond;

"I accept that, when the United Kingdom enters into an international treaty, that may give rise to a legitimate expectation on the part of individuals that the executive will act in accordance with the terms of the treaty. The reasons for that conclusion are set out by the High Court of Australia in Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 CLR 273, a case in which it was claimed that the United Nations Convention on the Rights of the Child gave rise to legitimate expectations. In that case, Mason C.J. and Deane J. stated, at p.291:

'Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act ... particularly when the instrument evidences internationally accepted standards to be applied by the courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a...