Riordan v Government of Ireland

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 27 May 2009
• Neutral Citation: [2009] IESC 44
• Court: Supreme Court
• Docket Number: [S.C. No.
• Date: 27 May 2009

Riordan v Government of Ireland & Ors

DENIS RIORDAN

APPELLANT

AND

THE GOVERNMENT OF IRELAND, OIREACHTAS NA hEIREANN, THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

[2009] IESC 44

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

411/06

THE SUPREME COURT

CONSTITUTION ART 34

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S1(2)(B)

COURTS & COURT OFFICERS ACT 1995 S6(1)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S3(2)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S7(3)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S7(4)

COURTS & COURT OFFICERS ACT 1995 S7

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S7(5)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S1(3)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S1(4)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2(3)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2(4)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2(5)

CONSTITUTION ART 34.5

CONSTITUTION ART 34.2

CONSTITUTION ART 34.4

CONSTITUTION ART 35

CONSTITUTION ART 36

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S4(1)

CURTIN v CLERK OF DAIL EIREANN & ORS 2006 2 IR 556 2006 2 ILRM 99 2006/13/2692 2006 IESC 14

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S7

CONSTITUTION ART 12.3.1

CONSTITUTION ART 26

RIORDAN v AN TAOISEACH (AHERN) & ORS 2001 3 IR 365 2001/21/5707

STATE (WILLIAMS) v KELLY 1970 IR 259

CONSTITUTION ART 34.4.3

CONSTITUTION ART 34.4.4

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2

CONSTITUTION ART 35.1

CONSTITUTION ART 34.5.1

ART 26 OF THE CONSTITUTION & OFFENCES AGAINST THE STATE (AMDT) BILL 1940, IN RE 1940 IR 470

COURTS OF JUSTICE ACT 1924 S6

COURTS OF JUSTICE ACT 1924 S7

COURTS OF JUSTICE ACT 1924 S8

COURTS OF JUSTICE ACT 1936 S35(2)

RIORDAN v AN TAOISEACH (BRUTON) 1999 4 IR 321 1998/37/13947

CAHILL v SUTTON 1980 IR 269

1 JUDGMENT of the Court delivered by Murray C.J. on the 27th day of May, 2009.

2 Judgment of the court delivered by Murray CJ

3 This is the appellant's appeal against the judgment of the High Court (Smyth J.) delivered on the 6 ^th October, 2006, and the consequential order made the 13 ^th October, 2006. The appellant's claims which are set out at some length in his twenty page notice of appeal and his thirty-nine page submissions to this Court, relate in the main to the Constitutional provisions and the statute law regarding the constitution and composition of the Supreme Court.

4 The appellant has been a frequent litigant with numerous appearances in this Court and has on more than one occasion objected to the fact that his appeals were heard by the Supreme Court consisting of less than its full quota of judges; that is to say that they were heard by divisions of three or five judges. This, he says in the present proceedings, is unlawful and indeed unconstitutional. He also objects to the provisions whereby a judge of the High Court may be invited to sit on the Supreme Court in certain circumstances and, by parity of reasoning, to the provision whereby a judge of the Supreme Court may be invited to sit as an additional judge of the High Court in certain circumstances.

5 All of these points are agitated in the present proceedings. The appellant also advances certain submissions in relation to the Court of Criminal Appeal although he has never been a litigant before that Court. This is because he has, of course, never been charged with or convicted of an indictable offence triable in either the Circuit Court, the Central Criminal Court or the Special Criminal Court, and has therefore never required to invoke the jurisdiction of that Court or have had it invoked against him in the limited circumstances where this is possible at the suit of the Director of Public Prosecutions. He says that the only person entitled to appoint judges to the Court of Criminal Appeal is the President of Ireland, who has not done so; that no delegation of this power is possible; and that a person who is a judge of the Supreme Court or the High Court must function only as such judge and is not entitled to sit in another court, such as the Court of Criminal Appeal, whether at the request or on the appointment of the Chief Justice, or otherwise. Such judges he says have not made or subscribed the declaration required by Article 34 of the Constitution as a judge of the Court of Criminal Appeal.

6 In making these and the other points to be set out below the appellant faces the difficulty that the practices to which he takes great objection appear to be mandated by statute. Accordingly, on the hearing of this appeal the primary relief he seeks are declarations of repugnancy to the Constitution as follows:

7 (1) Section 1(2)(b) of the Courts, (Establishment and Constitution) Act 1961 as inserted by s.6(1) of the Courts and Courts Officers Act, 1995, is repugnant to the Constitution. This relates to the statutory constitution of the Supreme Court.

8 (2) Section 3(2) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution. This relates to the composition of the Court of Criminal Appeal.

9 (3) Section 7(3) of the Courts (Supplemental Provisions) Act, 1961 is repugnant to the Constitution. This and the next two grounds relate to the ability of the Supreme Court to sit in divisions.

10 (4) Section 7(4) of the Courts (Supplemental Provisions) Act, 1961 as inserted by s.7 of the Courts and Courts Officers Act, 1995 is repugnant to the Constitution.

11 (5) Section 7(5) of the Courts (Supplemental Provisions) Act, 1961 as inserted by s.7 of the Courts and Courts Officers Act, 1995 is repugnant to the Constitution.

12 (6) Sections 1(3) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution. This and all remaining grounds relate to additional and ex officio judges of the Supreme and High Courts.

13 (7) Section 1(4) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution.

14 (8) Section 2(3) of the Courts (Establishment and Constitution) Act is repugnant to the Constitution.

15 (9) Section 2(4) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution.

16 (10) Section 2(5) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution.

17 The last sentence of paragraphs 1, 2, 3 and 6 above have been added for ease of exposition.

18 It is proposed in this judgment to deal first with the first of these claims, relating to the constitution of the Supreme Court itself. The exposition necessary to deal with this claim will involve a number of points of wider application in the plaintiff's appeal and may thus shorten the judgment at other points.

19 Before addressing this claim, however, it seems appropriate to deal with two points made throughout his argument by Mr. Riordan. The first of these relates to the declaration a judge is required by the Constitution to make on his or her appointment. The second relates to his characterisation of the Supreme Court as "the (Full) Supreme Court".

20 Article 34.5 of the Constitution requires that every person appointed a judge under the Constitution shall make and subscribe the declaration. This must be done before the new judge enters on his or her duties as such judge and in any event not later than ten days after the date of his or her appointment or such later date as may be determined by the President. Any judge who declines or neglects to make the declaration shall be deemed to have vacated his or her office. The form of declaration is the following:

"In the presence of Almighty God I, ,do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice and ( or as the case may be) without fear or favour affection or ill will towards any man and that I will uphold the Constitution and the laws. May God direct and sustain me."

21 In the case of a person appointed an ordinary judge of one of the Courts the office is invariably described as "Judge of the High Court" or of whatever court is in question.

22 This declaration relates to the manner in which a judge will discharge his or her judicial functions in the office which he holds, but not in any specified court. More to the point, the declaration has nothing to do with the jurisdiction which is conferred on the judge: that derives from his appointment as a judge of a particular court and from the jurisdiction which is intrinsic to, or conferred on, that Court by the successive Courts Acts. As will be seen, these Acts, even before the passage of the Constitution, specifically envisaged that a judge appointed for example, to be a judge of the Supreme Court would nonetheless sit on occasion in the Court of Criminal Appeal and as an additional judge of the High Court. But the essential point is that the declaration relates to the manner in which a judge will carry out his duties, and does not in itself confer any specific jurisdiction on him.

23 It is also important to bear in mind that the Constitution speaks of "the Supreme Court" and not of "the (Full) Supreme Court". On the contrary, as will be seen below, the Constitution specifically envisages that the Supreme Court may sit in a division less numerous than the number of judges in that Court and Statute specifically envisages that the Court may sit in divisions. Mr. Riordan's phrase is apt to express his view that the Supreme Court should always sit en banc, with all its members, but it is not a legal or constitutional phrase.

24 Article 34.2 of the Constitution provides " The Courts shall comprise Courts of First Instance and a Court of Final Appeal". And at Article 34.4. it is provided that:

25 (1) "The Court of Final Appeal shall be called the...