Sinnott v Minister for The Environment
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 30 March 2017 |
| Neutral Citation | [2017] IEHC 214 |
| Court | High Court |
| Docket Number | [2014 No. 3353 P],[No. 2014 No. 3353 P] |
| Date | 30 March 2017 |
[2017] IEHC 214
THE HIGH COURT
O'Connor Tony J.
[No. 2014 No. 3353 P]
AND
Representation of people – Elections – Electoral Regulations 2016 – The Electoral Act 1992 – Right to cast vote for blind person – Fair and impartial voting.
Facts: The plaintiff sought certain declarations against the defendants. The plaintiff, who was a visually impaired person (VIP), sought a declaration that the first defendant should provide an arrangement to facilitate the blind to vote by secret ballot. The plaintiff contended that since he had been left virtually impaired, he was unable to cast his vote secretly and he had to seek help of the person in-charge of the polling station who had casted votes contrary to the plaintiff's choices.
Mr. Justice Tony O'Connor granted the declaration that the first defendant had a duty to outline publicly the details of the planned studies and the regulations for making arrangements in order to facilitate the voting of the visually impaired person without assistance under s. 94(5) (i) of the Electoral Act 1992. The Court also granted a declaration that the first defendant had a duty to provide such arrangements where there were no disclosed reasonable economic or effective reasons not to vindicate the right to mark ballot papers without assistance. The Court held that it could not, however, direct the first defendant to adopt the Tactile Voting Device (TVD) as it was a matter of executive decision-making. The Court observed that art. 16 of the Constitution provided for voting by secret ballot, and thus, the Court could determine whether the appropriate mechanisms were in place to ensure secret voting.
This judgment concerns the assessment of rights in the conduct of elections and referenda not only for an individual citizen but also for this Court in its role under the Constitution to vindicate those rights which are asserted. The plaintiff, who is a visually impaired person (‘ VIP’), claims that the executive arm of government has failed and will continue to fail to vindicate his right to vote secretly unless this Court grants the reliefs now sought in an Amended Statement of Claim for which leave to deliver has been sought following quite a saga in the course of concluding these proceedings.
The plaintiff was born with nanophtalmia in his left eye and microphtalmia in his right eye. He explained that he had at best two percent or three percent of a young person's normal vision when growing. The plaintiff has an inspiring desire to learn and to participate. This is shown not least by having graduated with an honours degree in politics and sociology from University College Dublin (UCD) in 2000 in addition to other noteworthy academic achievements resting to date with his pursuit of a PhD in Irish from Trinity College Dublin (TCD) concerning Irish in Leinster. The plaintiff also said that he was proud, happy and lucky to be an active father of two young children.
The elections for local authorities and for the European Parliament on 5th June, 2009 were the last elections during which the Plaintiff was able to vote without assistance and without having to disclose his choice of candidates to another individual. Following the dislocation of the lens in his right eye subsequent to 2009, it was discovered that his retina was degenerating quickly. In short, the plaintiff expects to lose all of his remaining limited sight within the next few years.
At the general election held on 25th February, 2011, the plaintiff voted in the Dublin South Central Constituency. He was at pains to describe the well intentioned help given by the polling clerk while the clerk did not realise the plaintiff's embarrassment when his preference of candidates was read aloud by the clerk initially and then after the ballot paper was completed by the clerk according to the plaintiff's instructions.
At the election for the President of Ireland and two other referenda held on 27th October, 2011, the plaintiff was again assisted by a clerk who recited his choices less loudly. The plaintiff availed of similar facilities for the referenda held on 31st May, 2012. The plaintiff was unable to vote in the referenda concerning the Seanad and a Court of Appeal on 4th October, 2013 due to the change of his polling station, access to which he regarded as difficult and unsafe due to his visual impairment.
In a four page letter dated 7th March, 2014 from the plaintiff's solicitors, the defendant Minister was advised about the plaintiff's earlier representations to the franchise section of the Minister's department (‘ the franchise section’) concerning the absence of a mechanism for independent voting and other details available to the franchise section including the discussion about tactile templates considered by the National Council for the Blind in Ireland (‘ NCBI’) before requesting an undertaking that there would be a mechanism to allow the plaintiff to vote secretly in the elections due to be held on 23rd May, 2014 for his local authority and for the European Parliament.
Despite the delivery of the Plenary Summons and Statement of Claim on 26th March, 2014, with a Defence delivered on 9th April, 2014 in these proceedings, the plaintiff had the unhappy experience of wondering whether his choices in the elections held in May, 2014 were actually followed by the polling clerk because the numbering of his choices as recited at a particular stage of marking the ballot paper identified a preference which he had not by then identified.
The plaintiff for the referendum on the Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015 to allow for same sex marriage on 22nd May, 2015 worked around the necessity to disclose his choice of ‘yes’ or ‘no’ by asking the polling clerk to put the plaintiff's thumb on one box and his index finger on the other. When the clerk moved away, the plaintiff marked the paper selecting the ‘yes’ or ‘no’ box by reference to where his fingers had been pointed by the clerk. The plaintiff then moved and placed the paper in the ballot box himself. The plaintiff's delight at finding this solution was tempered by his realisation that the ballot paper could have been facing out to disclose his choices as he moved to drop it in the ballot box.
This prompted the plaintiff to question the apparent acceptance that he could rely on the integrity of polling clerks or some other official to present or mark ballot papers correctly. He rhetorically asked whether it would be acceptable to provide that a sighted person cast a vote by relying on a member of An Garda Síochána to carry out all or part of the secret ballot procedure.
Notwithstanding the efforts made, the trial of these proceedings did not commence until 12th July, 2016. At that stage the plaintiff had been given liberty on 3rd February, 2015 to amend the Statement of Claim in order to incorporate references to referenda and further elections while the Defence (delivered on 18th March, 2015) introduced a plea about trials conducted by the National Disability Authority (‘ NDA’) in June, 2014 of three methods to assist VIP voters in voting independently and with minimal physical assistance from third parties.
Following the completion of oral evidence on 20th July, 2016, and the exchange of written legal submissions over the long vacation, the Court reconvened to hear closing oral submissions on 1st November, 2016. Without any advance notice, counsel for the defendants interjected while counsel for the plaintiff was making a submission about referenda to advise that the defendant Minister had made on 20th October, 2016 regulations entitled Electoral Regulations 2016 [S.I. 537 of 2016] (‘ the 2016 regulations’) which provide for a ballot paper template and thereby allowing VIPs to vote independently at referenda. Official notice of those regulations was published in Iris Oifigiúil on Friday, 28th October 2016. There was no reference to the prospect of the 2016 regulations in the defendants' written submissions dated 14th October, 2016. Counsel for the defendants maintained that the making of the 2016 regulations should not alter the plaintiff's stance and final oral submissions.
Suffice to say that I agreed that the plaintiff's legal team should have an opportunity to recast their submissions for economy of time and ultimate effectiveness of the reliefs which might be granted by this Court in light of this development.
Towards the end of the reconvened oral submissions on Tuesday, 20th December, 2016, counsel for the plaintiff put forward the following declarations to meet the plaintiff's concerns about the defendant Minister's position:-
‘A declaration that the defendants were and are under a duty to:-
(i) provide by regulation made under s. 94(5)(j) of the Electoral Act 1992, as amended by the Electoral (Amendment) Act 1996 for arrangements to facilitate blind and visually impaired persons to vote by secret ballot in general, local, European elections and in referendums where it is reasonably practicable, economical and effective to do so;
(ii) facilitate the right of blind and visually impaired voters pursuant to declaration (i) in order to vindicate their constitutional right to vote by secret ballot’.
I allowed counsel for the defendants to obtain instructions over night while further oral submissions by counsel for the plaintiff were completed. This elongated story needed to evolve because it is important that the Court is directed to the real gravaman as it exists at the...
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A.v The Minister for Justice and Equality No.2; S. v The Minister for Justice and Equality No.2
...(i) the court enjoys a discretion to fashion the appropriate remedy in light of the outcome of its judgment (see e.g., Sinnott v. Minister for the Environment, etc. [2017] 2 IR 570 and Walker v. Leonach [2018] IECA 132). (ii) it is useful also to recall in this regard Article 15.4.2° of t......