The Attorney General v Marques

CourtSupreme Court
JudgeDenham C.J.,Charleton J.,O'Malley J.
Date03 May 2016

[2016] IESCDET 58



Denham C.J.

Charleton J.

O'Malley J.

RESULT: The Court does not grant leave to the applicant to appeal to the Supreme Court from the High Court.

This determination relates to an application made on behalf of Eric Eoin Marques, the applicant, who is referred to as ‘the applicant’, who is seeking leave to appeal directly to the Supreme Court under Article 34.5.4 of the Constitution of Ireland. from a decision of the High Court delivered on the 16th December, 2015.


This application was received in the Supreme Court office on the 22nd February, 2016. The Attorney General, the respondent, and referred to as ‘the respondent’, filed the respondent's notice on the 18th March, 2016.


As a result of the amendments to the Constitution, brought about by the 33rd Amendment, the previous position, under which a party unhappy with a decision of the High Court had an entitlement to appeal to this Court (save with limited statutory exceptions), was replaced by two provisions: Article 34.5.3 now provides for the same right of appeal from the High Court, as previously existed in respect of an appeal to this Court, except that the appeal is now transferred to an entitlement to appeal to the Court of Appeal. However, a further appeal from the decision of the Court of Appeal is available, with leave, to this Court. Alternatively, under Article 34.5.4, it is possible to seek leave to appeal directly from the High Court to this Court. It involves by-passing the normal appellate structure involving an appeal to the Court of Appeal with the possibility of a second appeal to this Court. It should also be noted that the leave required in either case is the leave of this Court.


The starting point for a consideration of this form of appeal, one directly from the High Court to the Supreme Court, is to consider the wording of the relevant provisions of the Constitution itself. Article 34.5.3 provides as follows:

The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decision of the Court of Appeal, if the Supreme Court is satisfied that:

(i) the decision involves a matter of general public importance, or

(ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.

Article 34.5.4 provides:

Notwithstanding section 4.1 hereof, the Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the High Court, if the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal to it, and a precondition for the Supreme Court being so satisfied is the presence of either or both of the following factors:

(i) the decision involves a matter of general public importance;

(ii) the interests of justice.


The criteria, under Article 34.5.4 for a direct appeal from the High Court to the Supreme Court include, but are not confined to, both of the latter criteria, or one of same. It is specified that it is a pre-condition for this Court to grant direct leave either because the relevant decision of the High Court involves a matter of general public importance or that the interests of justice require such an appeal. Therefore, the basic constitutional threshold of public importance or the interests of justice must first be engaged. The additional requirement which must be present, in order that leave be given for a direct appeal is in accordance with the words of Article 34.5.4. ‘that there are exceptional circumstances warranting a direct appeal to’ the Supreme Court.


This Court has already given some consideration to the new constitutional appellate regime in a series of determinations arising from applications made under Article 64.3.3 of the Constitution, in which it was sought to cancel, so far as the relevant cases were concerned, the direction given by the Chief Justice under Article 64.3.1 specifying classes of appeals which were to be heard in the Court of Appeal. While the issue under consideration by this Court in those cases was not exactly the same as the issue with which this Court is now faced, there are some significant similarities between the issues which arise, not least the proper analysis of the fundamental principles behind the new constitutional appellate regime.


In that context, it is appropriate to reiterate some of the points made in the determinations in respect of applications under Article 64.3.3. One of the first such determinations was made in Fox v. Mahon & Others [2015] IESCDET 2. Fox is of particular relevance to this case for, as appears from the relevant determination, the basis on which the appellant sought that his appeal should remain in the Supreme Court was that the appeal was said to involve a legal issue of sufficient general public importance that it would warrant leave under the new regime. The case made on behalf of the proposed appellant was that his appeal was likely to come back to the Supreme Court anyway, even if it were first heard in the Court of Appeal. On that basis it was said that this Court should keep the appeal, rather than send it to the Court of Appeal only to have it return.


The analysis of this Court on the interaction between appeals to the Court of Appeal and appeals to this Court is to be found between paragraphs 11 and 20 of the determination in Fox. That analysis may be summarised as follows. First, the default position is that an appeal from any decision of the High Court should be brought first to the Court of Appeal. Second, the new constitutional regime presumes that appeals to this Court should ordinarily, and in the absence of the type of exceptional circumstances which would warrant a direct appeal, come from the Court of Appeal. A number of reasons for taking that view are advanced. It is pointed out that, even if there may be reason to believe that a case would come to this Court in any event, account has to be taken of the possibility, at least in some cases, that the result of an appeal to the Court of Appeal may resolve the proceedings. Next, even if there is a further appeal to this Court, it is noted that the issues which might justify such a further appeal may well have been refined by a hearing in the Court of Appeal. That allows this Court to be able to focus on the issues of general importance which require attention.


It is possible to identify, at one end of the spectrum, a single issue case involving only a legal issue which undoubtedly meets the constitutional threshold of importance. Of course, even in such a case, it would be of some assistance for this Court to have the added views of the Court of Appeal. Nonetheless there may be a countervailing question as to whether the efficient use of court time and resources, and the burden in time and costs for the parties which would be occasioned by having to face two appeals, would be justified. The case at that end of the spectrum might be described as a single issue case with clearly identified arguments where a second appeal to this Court would be likely to involve only a rehash of the arguments which would be made to the Court of Appeal. At the other end of the spectrum, there may be cases where the issues which might arise on appeal would have been many and varied, including questions of the sustainability of the facts found by the trial judge or routine questions concerning whether the trial judge had properly applied well settled law to the circumstances of the case. Even if, in the midst of such an appeal, there might be a point, or points, which might ultimately be considered as possibilities for meeting the constitutional threshold for an appeal to this Court, it would be difficult to see how the process of bringing such a case to final determination would not be significantly improved by an appeal to the Court of Appeal.


Thus, it is important to note that the further one gets away from the ‘single important issue of law’ case, the more weight has to be attached to the risk that the overall appellate process might be impaired by departing from the default position of an appeal to the Court of Appeal. It is, of course, also necessary to identify what might be said to be the exceptional circumstances justifying a direct appeal to this Court for without such circumstances the Constitution does not permit a direct appeal. It would be both wrong and dangerous to attempt to identify an exhaustive approach to that question; however, in the context of this case, two issues clearly have the potential to arise.


First, it may be said that the very issues in the case itself are of such importance, or involve such questions involving the interests of justice, that the potential appeal is thus rendered exceptional. The Court is...

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