Thomas Murphy v Ireland and Others

• Jurisdiction: Ireland
• Judge: Mr Justice O'Donnell
• Judgment Date: 11 March 2014
• Neutral Citation: [2014] IESC 19
• Court: Supreme Court
• Docket Number: [S.C. No. 463 of 2011]
• Date: 11 March 2014

Murphy v Ireland & Ors

Between:

Thomas Murphy

Plaintiff/Appellant

And

Ireland, The Attorney General and the Director of Public Prosecutions

Defendants/Respondents

[2014] IESC 19

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O'Donnell J.

463/2011

THE SUPREME COURT

Constitutional law - Special courts - Administration of justice - Constitutionality of provision - ECHR compatibility - Whether decision of DPP reviewable - Equality - Reasons for decision

In November 2007, the plaintiff, Thomas Murphy, was charged with failing to furnish a tax return contrary to the Taxes Consolidation Act 1997. The offence was triable either way. The DPP issued a certificate under section 46 (2) of the Offences Against the State Act 1939 (the 1939 Act) on the 17 ^th of December 2007. This section provided that where the ordinary courts were inadequate to secure the effective administration of justice and preservation of public peace, a person could be forwarded to trial by a Special Criminal Court. Article 38.3 of the Constitution of Ireland 1937 (the Constitution) provided that special courts could be established by law where the ordinary courts were inadequate to try the offence.

The plaintiff issued a plenary summons on the 5 ^th of November 2008, seeking declarations that: section 46 (2) of the 1939 Act was repugnant to the Constitution of Ireland 1937 (the Constitution); section 46 (2) was incompatible with the State"s obligations under the European Convention on Human Rights (ECHR); and that the DPP acted unlawfully. The High Court dismissed the plaintiff"s claim which was appealed to this Court. A statement of claim was delivered with the central contention being that the DPP"s failure to provide reasons for the issuing of the certificate breached the applicant"s ECHR and Constitutional rights. The statement also averred that section 46 (2) of the 1939 Act failed to guarantee the plaintiff"s right to equality as enshrined by Article 40.1 of the Constitution and that it was repugnant to the Constitution and incompatible with the ECHR.

On the issue of equality, the plaintiff asserted that he was treated differently from another person charged with the same offence who would be tried before a jury. The Court conceded that the plaintiff was treated differently but noted that the differentiation was made 'in accordance with the dictates of the Constitution' and that therefore, it could not offend Article 40.1. The Court then dealt with the contention that section 46 (2) was incompatible with the ECHR. The Court considered that the ECHR provided the guarantee of a fair trial but noted that it did not specify how this trial was to be provided. Article 38.1 of the Constitution was an absolute guarantee that any trial on a criminal charge was to be carried out in the due course of law which was held to be, on its face, fully compliant with the requirements of the ECHR. A central element of the plaintiff"s argument here was that the decision of the DPP was effectively 'unreviewable'. The Court rejected this contention, holding that a review of case law of the last 15 years showed that the DPP"s decision was reviewable both 'in theory and in fact'. The Court then determined that when the DPP decided whether a case should be tried before the Special Criminal Court and the decision was not subjected to appeal or review, fair procedures required the provision of the reasons. However, since a decision to direct a trial in the District Court on an offence triable either way was always subject to review and decision by the District Judge, such a decision did not require reasons or hearing.

The Court concluded that there were no implications for the constitutional validity of section 46 (2) as it did not prescribe the procedure to be followed or the giving of reasons. The trial was therefore directed to proceed and the claims for declarations of incompatibility were dismissed.

TAXES CONSOLIDATION ACT 1997 S951

TAXES CONSOLIDATION ACT 1997 S1078(2)(G)(i)

OFFENCES AGAINST THE STATE ACT 1939 S46(2)

CRIMINAL JUSTICE ACT 1999 S11

OFFENCES AGAINST THE STATE ACT 1939 PART V

LYNCH, STATE v COONEY & AG 1982 IR 337

OFFENCES AGAINST THE STATE ACT 1939 S46

CONSTITUTION ART 38

OFFENCES AGAINST THE STATE ACT 1939 S35(2)

OFFENCES AGAINST THE STATE ACT 1939 S36

OFFENCES AGAINST THE STATE ACT 1939 S36(3)

OFFENCES AGAINST THE STATE ACT 1939 S41

OFFENCES AGAINST THE STATE ACT 1939 S44

OFFENCES AGAINST THE STATE ACT 1939 S45

OFFENCES AGAINST THE STATE ACT 1939 S46

OFFENCES AGAINST THE STATE ACT 1939 S47

OFFENCES AGAINST THE STATE ACT 1939 S48

OFFENCES AGAINST THE STATE ACT 1939 S47(2)

REDMOND v IRELAND & AG 2009 2 ILRM 419 2009/48/12102 2009 IEHC 201

CONSTITUTION ART 38.3

CONSTITUTION ART 38.1

CONSTITUTION ART 38.2

CONSTITUTION ART 38.5

DPP, PEOPLE v O'SHEA 1982 IR 384 1983 ILRM 549 1982/14/2864

CONSTITUTION ART 34

1 Judgment of the Court delivered the 11th of March 2014 by Mr Justice O'Donnell.

2 Judgment of the Court delivered by O'Donnell J

3 1 On the 8 ^th of November 2007 the plaintiff Thomas Murphy was charged with the offence of failing, being a chargeable person, without reasonable excuse to furnish a return in the prescribed form of his income, profits or gains, or the sources of income, profits or gains to the Collector General as required by s.951 of the Taxes Consolidation Act 1997 (hereinafter "the 1997 Act") and thus, it is alleged, contrary to s.1078(2)(g)(i) of the same Act (as amended).

4 2 The offence created by s. 1078(2)(g)(i) of the 1997 Act is an offence triable either way. The third named defendant, the Director of Public Prosecutions (hereinafter "the Director"), proposed to have the plaintiff tried on indictment and a book of evidence was served on him at Ardee District Court on the 19 ^th of December 2007. On the same occasion, the District Court was informed that the Director had issued a certificate pursuant to s.46(2) of the Offences Against the State Act 1939 (hereinafter "the 1939 Act") on the 17 ^th of December 2007. That certificate set out the offences with which the plaintiff was accused and was in the following terms:

"Offences Against the State Act 1939."

5 Director of Public Prosecution Prosecutor

6 Thomas Murphy Accused

7 Certificate of the Director of Public Prosecutions pursuant to s.46(2) of the above entitled Act, as amended by s.11 of the Criminal Justice Act 1999.

8 I, James Hamilton, Director of Public Prosecutions, hereby certify that the ordinary Courts are, in my opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of Thomas Murphy on the charges set out in the schedule hereto, being indictable offences which are not schedules offences for the purposes of Part V of the above named Act."

9 On the 10 ^th of January 2008 an order was made by the District Court Judge returning a date for trial to a sitting of the Special Criminal Court.

10 3 The plaintiff brought judicial review proceedings to challenge the return for trial because certain technical defects in the order had been amended in proceedings in which the plaintiff had not been represented. Accordingly, on the 19 ^th of November 2008, the High Court made an order quashing the return for trial. The effect of this was formal and procedural: it was accepted that a proper return for trial could be made and the trial proceed. However, the plaintiff took no steps to seek to challenge by judicial review the certificate of the Director of the 17 ^th of December 2007. Instead, on the 5 ^th of November 2008 (and therefore just shortly before the hearing in the High Court on the challenge to the return for trial) a plenary summons was issued by the plaintiff seeking declaratory relief. The endorsement of claim was in the following terms:

11 2 "1. A Declaration that section 46(2) of the Offences Against the State Act 1939, as amended, is repugnant to the provisions of the Constitution of Ireland, 1937.

12 2. A Declaration that section 46(2) of the Offences Against the State Act, 1939, as amended, is incompatible with the State's obligations under the European Convention on Human Rights as provided for by the European Convention of Human Rights Act, 2003.

13 3. A Declaration that the third named Defendant has acted otherwise than in accordance with law and in breach of the rights of the Plaintiff under the Constitution of Ireland, 1937 and the European Convention on Human Rights.

14 4. An Order by way of an Interim Injunction restraining the third named Defendant from prosecuting the Plaintiff on foot of the Bill of Indictment at present pending before the Special Criminal Court pending the determination of the within proceedings or further Order of this Honourable Court.

15 5. Interlocutory relief in terms of paragraph 4.

16 6. Such further or other Order as shall seem meet or appropriate.

17 7. The costs of these proceedings."

18 In the event, no application was made for the injunctions outlined in paragraphs 4 and 5 of the plenary summons. A statement of claim was delivered. The essential contention set out therein was contained at paragraph 8 in the following terms:

"Despite request in writing the third named defendant failed, neglected, and/or refused to inform the Plaintiff of the reason(s) for the issuing of the said certificate and has further failed, neglected, and/or refused to provide the Plaintiff with any information used by him to reach the decision to issue the said certificate."

19 4 The statement of claim also contained a composite plea that s.46(2) was repugnant to the Constitution and incompatible with the European Convention on Human Rights (hereinafter the "Convention") and further, that the Director had...