Emergencies
Cases
In re McGrath and Harte.
Gavan Duffy J. [1941] IR 68
GAVAN DUFFY J. :
26 Aug.
I have heard an elaborate and very able argument by counsel on behalf of the applicants, but in view of my conclusions on the matters in issue I think it better not to reserve my judgment, but to give judgment at once.
In my opinion, there is neither cause nor jurisdiction to make the order absolute in this case, or rather, if I may qualify that sweeping generalisation, no jurisdiction where there is any possible cause and no cause on any of the grounds raised.
Mr. MacBride takes broadly four lines of objection. His first line of objection depends upon the construction of Art. 28, sub-s. 3, cl. 3, of the Constitution, which reads:
“Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in pursuance of any such law.”
That Article was amended by the First Amendment o
the Constitution Act, 1939, (1) by the addition of the following words to the above sub-section:
“In this sub-section ‘time of war’ includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State.”
It was expressly admitted by Mr. MacBride that the resolutions contemplated by that amendment have been passed by both Houses of the Oireachtas.
The first objection raised is that under Art. 25 of the Constitution it is the duty of the President to wait five days before signing any Bill, that he did not wait five days before signing the Bill containing this proposal to amend the Constitution, and that this amendment is consequently invalid. But I think it quite clear that Art. 25 sub-s. 2, dealing with the time-limit of five to seven days, does not apply to this constitutional amendment.
The second objection is that the President did not consult the Council of State before the Bill passed into law; but Art. 51 imposed no obligation upon the President to do so.
His third objection on this first line of attack is that the amendment exceeds the powers of amendment and repeal given by the Constitution. In my opinion, the amendment is clearly within the powers given to the Oireachtas within the first three years of the Constitution.
The second line of objection dealt with the Emergency Powers Acts passed since the amendment of the Constitution. The Emergency Powers Acts, 1939 and 1940, are attacked first on the ground that they are not expressed to be for the purpose of securing the public safety and the preservation of the State in time of war. But in the title to the Acts their purpose is very clearly so expressed. In my opinion, that is quite sufficient without repeating the same thing in the body of the Acts.
Then, they are objected to because they do not recite that the required resolutions contemplated by the Amendment of the Constitution have been passed by both Houses of the Oireachtas. I hold that no such recital is necessary.
And the last Emergency Powers Act, 1940, authorising trial by a Military Court in such a case as this, is attacked on the remarkable ground that, instead of stating that it is “for the purpose of securing the public safety . . .”the title says it is “for the purpose of making better provisions for securing the public safety . . .” I cannot think that that particular argument is put forward seriously.
The third line of objection attacks Order 41 and Order 41A, made under the Emergency Powers Acts, 1939 and 1940, on the ground that they do not recite the Government’s opinion that they are necessary or expedient for the public safety. But the Government acted under a specific power given to them by s. 2 of the Emergency Powers Act, 1939, as amended, under which there is in my opinion no need for the Government to recite their opinion of the necessity of the Order, as they must do when making an Order which is not specifically authorised by the Acts.
Finally, there are general objections, relating to Orders 41 and 41A and the consequent imprisonment. These Orders have now been produced. They appear to me to be duly made under the Emergency Powers Acts enacted under Art. 28 for the duration of the emergency. But it is objected that neither order 41 and Order 41A nor the committal order shows jurisdiction. I think the Statutory Orders do, whatever may be said against the form of the committal order, but, however this may be, in my opinion, the plain words of Art. 28 make it impossible for this Court to invalidate either the committal order or Orders 41 and 41A on that ground.
I doubt if any Order 41A was necessary on a prosecution at the suit of the Attorney-General; it appears to have been made out of abundance of caution, and I think Order 41 would have sufficed to justify the course adopted in this prosecution. But, whether requisite or not, Order 41A, which seemed vital before I had seen the two Orders, does not seem material now on the question of detention, because the detention comes within the express terms of Article 5 of Order 41; and, if necessary, Article 28 of the Constitution would cover that detention.
In regard to another objection made as to the contents of Orders 41 and 41A not being available to the accused, or rather to their legal advisers, I need only say that the evidence before me now is that extractsthe material portions, I presumeof these Orders were read out by counsel for the State at the trial, and that the Orders were handed in, but both the accused men stated that they did not intend to make any defence.
In the result, having now all the material documents before me, I find nothing in the course of the proceedings which resulted in the detention complained of to justify the application for an order of habeas corpus absolute in this case.
I shall allow the cause shown by Commandant Lennon and discharge the conditional order.
From this order the prosecutors appealed to the Supreme Court (1).
S. MacBride for the prosecutors (appellants).
[His arguments were the same as those upon which he relied in the High Court, and which, as already stated, were summarised in the judgment of Gavan Duffy J. supra,and were further referred to in the judgment of Sullivan C.J.,post.]
J. A. McCarthy K.C. and G. Murnaghan for the respondents were not called on.
The judgment of the Court was delivered by
SULLIVAN C.J. :
This is an appeal from an order, dated 26th August, 1940, of Gavan Duffy J., discharging a conditional order ofhabeas corpus ad subjiciendum obtained by the appellants on the 23rd August, 1940.
The appellants seek to have the said order of the 26th August, 1940, discharged and the conditional order made absolute on the following grounds, as stated in the notice of appeal, namely:(1) that the order and judgment of the learned Judge was erroneous in law, (2) that the order and judgment of the learned Judge was erroneous in fact, (3) that the learned Judge was wrong in law in refusing to make absolute the said conditional order of habeas corpus ad subjiciendum or in refusing to grant all or any of the other reliefs sought in the said affidavits made by the applicants.
The said notice of appeal is irregular and defective in that it does not specify the rulings in law and findings of fact which are alleged to have been erroneous; but, in view of the nature of the proceedings and the gravity of the case, the Court allowed counsel to argue every point upon which he relied in support of the appeal.
This is the first case in which a conviction by a Military Court established by the Emergency Powers (No. 41) Order, 1940, has been brought before these Courts, and counsel for the appellants has minutely investigated and discussed the provisions of the Constitution, of the Emergency Powers Acts, 1939 and 1940, and of the Orders made thereunder, with a view to establishing his right to the relief claimed. Some of the points mentioned in the course of the argument were clearly unsustainable and were not seriously pressed by counsel. I propose to deal with the other points which were relied upon.
It was argued that the First Amendment of the Constitution, enacted on the 2nd September, 1939, was invalid on the following grounds, namely:(1). That it was not within the powers of amendment conferred upon the Oireachtas by Art. 51 of the Constitution. (2). That the Bill effecting such amendment was signed by the President earlier than 5 days after the Bill had been presented to him, contrary, as alleged, to Art. 25, par. 2, cl. 1, of the Constitution; and (3), that the President did not consult the Council of State under Art. 51, par. 2, of the Constitution with a view to a Referendum.
As regards the first point so argued, Art. 51 provides that “notwithstanding anything contained in Art. 46 hereof any of the provisions of this Constitution, except the provisions of the said Art. 46 and this Article, may, subject as hereinafter provided, be amended by the Oireachtas, whether by way of variation, addition or appeal, within a period of 3 years after the date on which the first President shall have entered upon his office.” We are of opinion that the meaning of this Article is too plain to admit of any ambiguity. It expressly authorises the Oireachtas to amend any provision of the Constitution save those contained in Art. 46 and 51.
As regards Art. 25, par. 2, cl. 1, it is clearly intended to apply to Bills, other than Bills expressed to be Bills containing proposals for the amendment of the Constitution, and it has, therefore, no application to the Bill in question in this case.
The third point, though mentioned, was not seriously argued. It seems to us clear that the question as to whether the Council of State should be consulted was entirely a matter for the President in the exercise of his discretion.
The next argument is concerned with the validity of the Emergency Powers Acts, 1939 to 1940. Art. 28, par. 3, cl. 3, as so amended, provides that nothing in the Constitution shall be invoked to invalidate any law enacted by the Oireachtas, which is expressed to be for the purpose for securing the public safety and the preservation of the State in time of war (including in that term, a time when there is taking place an armed conflict in which the State is not a participant, but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists effecting the vital interests of the State) or armed rebellion, or to nullify any act done or purporting to be done in pursuance of any such law.
It is contended in the first place, (1) that the Acts in question were not expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion and that they do not come within the protection of Art. 28, par. 3, cl. 3, and (2) that they are invalid as contravening other provisions of the Constitution.
The Emergency Powers Act, 1939, is (in the long title thereof), expressed to be “An Act to make provision for securing the public safety and the preservation of the State in time of war,” etc. The Emergency Powers Act, 1940, is expressed to be “An Act to amend the Emergency Powers Act, 1939, for the purpose of making better provision for securing the public safety and the preservation of the State in time of war,” and the Emergency Powers (Amendment) (No. 2) Act, 1940, is expressed to be “An Act to amend and to extend the Emergency Powers Act, 1939, for the purpose of making better provision for securing the public safety and the preservation of the State in time of war.” In our opinion these Acts are clearly expressed to be for the purpose of securing the public safety and the preservation of the State in time of war, and we see no reason for having this purpose stated in the enacting portion of the statutes.
It is next contended that the statutes should state, upon their faces, that the necessary resolutions were passed by each of the Houses of the Oireachtas in accordance with the First Amendment of the Constitution. We are quite satisfied that this is not necessary. It was expressly admitted, by counsel on behalf of the appellants, before Gavan Duffy J. and in this Court, that such resolutions had in fact been passed. This, in our opinion, is all that is necessary to bring the Article, as amended, into active operation. We are, therefore, of opinion that the Acts come within the protection of the Article as amended and, on the construction of the Article itself, none of the suggested alternative constructions proposed by counsel can have any foundation in view of the clear language of the Article, which, in the times and circumstances contemplated, makes it impossible to invoke other Articles of the Constitution to invalidate Acts passed by the Oireachtas and expressed to be for the purpose of securing the public safety and the preservation of the State within the terms of the Article.
It was next contended that the Emergency Powers Orders (Nos. 41 and 41A), 1940, are invalid, on the grounds that they do not show jurisdiction on their face by stating (1) that the necessary resolutions had been passed by each of the Houses of the Oireachtas, and (2) that the provisions contained in the Orders were, in the opinion of the Government, necessary or expedient for securing the public safety or the preservation of the State. It is sufficient to answer this argument to point out that the Orders in question are not Orders of an inferior Court but are Orders made by the Government in express exercise of the powers conferred upon them by the said Acts.
Order No. 41 makes provision for the trial and punishment of persons alleged to have committed certain specified offences, and in clause 2 of the Order “Specified Offence”is defined as meaning an offence set out in the Schedule to the Order which is alleged to have been committed after the passing of the Emergency Powers (Amendment) (No. 2) Act, 1940, whether before or after the making of the Order. It is contended that the effect of this definition is to give to the Order a retrospective operation, which was not authorised by the Act. Sect. 3 of the Act provides that the Government may, by such an Order, make provision for the trial in a summary manner of any person alleged to have committed any offence specified in such Order. In our opinion these words, taken in conjunction with the provisions of s. 2, sub-s. 1, of the Principal Act are sufficiently wide to enable the Government by Order, made under these Acts, to provide for the trial and punishment of persons alleged to have committed offences whether before or after the making of such Order. Accordingly we are of opinion that this ground of objection fails.
A further objection to the validity of Order No. 41 was made upon the grounds:(1), that it did not contain any provision as to how the members of the Military Court should be selected, and (2), that it did not contain any provision as to how the accused person should be brought before it. In our opinion no such provisions were necessary. Any three persons having the qualifications specified in clause 3 of the Order would, in our opinion, constitute such a Court, and would have jurisdiction to try an accused person charged with a specified offence and brought before
them for trial. In the present case the appellants were brought before the Court in pursuance of an Order (No. 41A), made by the Government in exercise of the powers conferred upon them by the said Acts.
Another objection taken was that Orders 41 and 41Awere not made and published in accordance with the provisions of the Rules Publication Act, 1893. This Act deals with rules and regulations made by specified rule-making authorities, and the only way in which counsel sought to apply the Act to the Orders in question was to substitute, for the words “Her Majesty in Council” in s. 4 of that Act, the words “The Government.” He was not able to point to any adaptation having this effect. The adaptations to which he referred may authorise certain Authorities in this State to exercise powers formerly exercised by Her Majesty in Council but do not have the effect for which he contends. It may be that the time has come when the Oireachtas should pass a new Rules Publication Act appropriate to this State.
Sect. 9 of the Act of 1939 provides that every Emergency Order shall be laid before each House of the Oireachtas as soon as may be after it is made. The section, however, recognises the validity of anything previously done under any such Order, even if such Order be subsequently annulled.
The warrant of committal and the order of the Military Court have been read and criticised, but in our opinion they sufficiently show jurisdiction on their face.
Counsel has advanced every point that could be brought forward in favour of the appeal; but in our opinion none of them can be sustained and this appeal must be dismissed.
The State (Walsh and Others) v. Lennon and Others.
Maguire J. [1942] IR 112
Supreme Court
The judgment of the Court was delivered by Sullivan C.J.
SULLIVAN C.J. :
27 Jan.
Art. 40, s. 4, of the Constitution provides that no citizen shall be deprived of his liberty save in accordance with law, and that any person who alleges that he is being unlawfully detained may apply to the High Court for an order that he be released, which order the Court is required to make unless it is satisfied that he is being detained in accordance with law.
Art. 28, s. 3, sub-s. 3, provides that nothing in the Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done, or purporting to be done, in pursuance of any such law, in time of war or armed rebellion. By amendment, the present time is a time of war or armed rebellion within the meaning of that Article.
It was argued by counsel on behalf of the appellants that the judgment of the High Court refusing an order of habeas corpus was based on the view that no application for habeas corpus could be entertained by the Court in a case where it appears that the applicant is detained pursuant to a law to which the last mentioned Article applies. If this be the basis of the decision of the High Court, we are of opinion that the order is unsustainable on that basis. In the case of In re McGrath and Harte(2), such an application was entertained by the High Court and, on appeal, by this Court.
The appellants are, admittedly, detained in pursuance of Orders made under the Emergency Powers Act, 1939, and the Emergency Powers (Amendment) (No. 2) Act, 1940, namely, Emergency Powers (No. 41) Order, 1940, and Emergency Powers (No. 41 F) Order, 1941. The validity of the said Acts and of Order No. 41 of 1940 has already been established in the case of In re McGrath and Harte(1) above referred to.
Order No. 41 F of 1941 directs that the appellants be brought before a Military Court established by the above mentioned Order, No. 41 of 1940, and there tried together for the murder of one, Michael Devereux.
The validity of Order No. 41 F was challenged on the grounds:1, that it was ultra vires the powers conferred on the Government by the said Acts inasmuch as, by directing the Military Court to try the prosecutors together, it precluded the Court from exercising its discretion and control over its own procedure; and 2, that all the prosecutors had been brought before the Special Criminal Court and charged in connection with the said murder and that after the trial of two of them, namely, Plant and O’Connor, had proceeded for some time, a nolle prosequi was entered against each of the latter, and subsequently against the remaining two prosecutors.
Sect. 2 of the Emergency Powers Act, 1939, provides that the Government may make, by Order, such provisions as are, in their opinion, necessary or expedient for securing the public safety or the preservation of the State, or for the maintenance of public order, and sub-s. 5 of that section provides that nothing in the section shall authorise the making of provision for the trial by Courts-martial of persons not being persons subject to military law. That sub-section was amended by the Emergency Powers (Amendment) (No. 2) Act, 1940, by deleting therefrom the words “the making of provision for the trial by Courts Martial of persons not being persons subject to military law,” and s. 3 of the latter Act provides that”the Government may, by an Order under s. 2 of the Principal Act, make provision for the trial, in a summary manner, by commissioned officers of the Defence Forces, of any person alleged to have committed any offence specified in such Order, and, in case of the conviction of such person of such offence, for the imposition and the carrying out of the sentence of death, and no appeal shall lie in respect of such conviction or sentence.”
In determining the validity of the Order, this Court must give effect to the provisions of Art. 28, s. 3, sub-s. 3, of the Constitution, which makes it impossible to invoke any other Article of the Constitution to invalidate this or any other Order made in pursuance of an Act passed by the Oireachtas and expressed to be for any of the Supreme Court
purposes mentioned in the said Article. See the judgment of this Court in the case of McGrath and Harte(1).
In view of the extremely wide provisions of s. 2, sub-s. 1, of the Emergency Powers Act, 1939, and of the provisions of s. 3 of the Emergency Powers (Amendment) (No. 2) Act, 1940, this Court is of opinion that the Order in question comes within the powers conferred upon the Government by the said sections and cannot be impugned.
So far as the argument is based on the entering of thenolle prosequi in the Special Criminal Court, we are of opinion that it cannot succeed. In no case has it been decided that the entering of a nolle prosequi by the Attorney-General is a bar to a fresh indictment for the same offence, and it is well established that the discharge of an accused person under a nolle prosequi does not amount to an acquittal, and, in our opinion, the law in this respect has not been altered by s. 12 of the Criminal Justice (Administration) Act, 1924.
But whatever the strict legal position, and however unusual the course taken in this case may be, the considerations referred to cannot, in the opinion of this Court, be invoked for the purpose of invalidating the said Order.
A further ground relied upon by the appellants in support of this appeal is based upon Emergency Powers (No. 139) Order, 1941, the effect of which, it is suggested, is to deprive the Military Court of the attributes of a judicial tribunal.
In substance, this Order permits unsworn and unsigned statements of persons not present at the trial to be read as evidence against the accused, and unsworn and unsigned statements made by one accused to be read as evidence against another accused, and to authorise the Court at the trial, if it considers it proper to do so, to disregard any rule of evidence, whether statutory or at common law.
It is contended that this constitutes such a fundamental change in the law of evidence, to the prejudice of an accused person, that the Military Court, governed by this Order, could not be said to be carrying out such a trial as is contemplated by s. 3 of the said Act of 1940. If, as is conceded, the Government had power to set up a special tribunal to try specified offences, and to invest it with special powers for this purpose, it is, in our opinion, quite impossible to hold that that tribunal is deprived of its jurisdiction and powers by reason of alterations in the laws of evidence to be recognised by such tribunal. The changes effected by clauses 3 and 4 of the Order are entirely in favour of the prosecution, but the powers contained in clause 5 may equally well be exercised in favour of an accused person.
It was strenuously urged by counsel for the appellants that the Orders in question were manifestly oppressive and unjust to accused persons, and that, if this Court refused the relief sought, it would be sanctioning an improper exercise by the Government of the powers vested in them by the Legislature.
In our opinion this contention is based upon a misconception of the duties and functions of the Court. This emergency legislation is of a temporary character, passed for the purpose of securing the public safety and the preservation of the State during a time of national emergency. During such period the duty of determining what provisions are necessary for securing that object is vested in the Government, but every such provision must be laid before each House of the Oireachtas and may be annulled by a resolution passed by either House. Many of the arguments addressed to us would be more fittingly addressed to either House of the Oireachtas when considering the propriety of, and necessity for, the Order in question. They are not matters which can properly be relied upon in a Court of law.
For these reasons we are of opinion that the applications for habeas corpus and prohibition were properly refused, and that these appeals should be dismissed, and the order of the High Court affirmed.
Murphy v Ireland
[2014] IESC 19
Judgment delivered on the 19th February, 2014 by Denham C.J.
1. This is an appeal by the minor appellant from the judgment and order of the High Court (Ryan J.) delivered on the 30th September, 2013, which refused the appellant’s application for relief under Article 40 of the Constitution.
2. Relevant dates are as follows:-
Thursday the 26th September, 2013: 8 day emergency care order made by the District Court.
Friday the 27th September, 2013: ex parte application made to High Court to open Article 40 enquiry.
Saturday the 28th September, 2013: the High Court (Ryan J.) heard the Article 40 enquiry and reserved ruling over the weekend.
Monday the 30th September, 2013: the High Court gave judgment and declined to order the release of the appellant.
Tuesday the 1st October, 2013: appeal mentioned before the Supreme Court which, having been informed the matter was back before the District Court on Thursday, adjourned the appeal to Friday the 4th October, 2013, for mention.
Thursday the 3rd October, 2013: following an extensive hearing the District Court declined to make an interim care order and the appellant was released back into the custody of his parents, the subject of supervision order with directions.
Friday the 4th October, 2013: having been updated on this new development the Supreme Court fixed the 30th October, 2013, as the hearing date for submissions on the question of mootness.
Wednesday the 16th October, 2013: the appellant’s father issued a motion seeking to be joined to the appeal.
Friday the 18th October, 2013: the motion was moved before the Supreme Court and the Court joined the appellant’s father to the appeal, whilst making it clear that it was in no way indicating that he would be entitled to any costs order in his favour regardless of the outcome of the appeal.
Moot
3. A preliminary issue arises in this case as to whether the appeal is moot. The Health Service Executive, the respondent, referred to as “the respondent”, submitted that the appeal is now moot by reason of the hearing in the District Court on the 3rd October, 2013. It was submitted that as a matter of logic, you cannot hold an Article 40 inquiry when the person in issue is no longer in custody, as the only relief available is an order for the release of that person.
4. On behalf of the appellant it was submitted, inter alia, that it could not be said that there is no longer any dispute between the parties, and that there are issues of public importance, which are recurring in the District Court, which, it was submitted, made this an exceptional case which should be considered by the Court.
5. In oral submissions it was agreed by both parties that the appeal was moot. Thus, the only issue was whether the appeal fell within an exception to the general rule; the general rule being that appeals which are moot are not heard and determined by the Court, but that in exceptional circumstances the Court would exercise its discretion and hear the appeal.
An Exception?
6. Mr. O’Higgins S.C., counsel for the appellant, the minor, submitted that the appeal should be heard as there were a number of important legal points arising on the judgment of the High Court. He paraphrased these as including: (i) what he submitted was a finding that the mother need not be heard until the interim hearing; and (ii) the judgment’s approach to the decision D v. Groarke [1990] 1 I.R. 305, where he submitted it appeared to make a mandatory ruling discretionary.
Jurisprudence
7. The jurisprudence of this Court on the issue of mootness is well established. As Hardiman J. stated in G v. Collins [2005] 1 ILRM 1:-
“Parties may have a real dispute at the time proceedings commence, but time and events may render the issues in proceedings, or some of them, moot. If that occurs the eventual decision would be of no practical significance to the parties.”
8. There are exceptions to this general rule when the Court exercises a discretion and hears an appeal even though it is moot.
9. Instances when the Court has exercised its discretion to hear an appeal, notwithstanding that an appeal is moot, may be seen in the jurisprudence of the Court.
10. Thus, in Irwin v. Deasy [2010] IESC 35 Murray C.J. said:-
“In exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance, the Court may in the interests of the due proper administration of justice determine such a question.”
11. In O’Brien v. PIAB (No. 2) [2007] 1 IR 328, the Court also exercised a discretion and heard a moot appeal. Murray C.J. stated:-
“Where, as in this case, a party has a bona fide interest in appealing against a declaratory order of the High Court which is not confined to past events peculiar to the particular case which has been resolved in one way or another, the court should be reluctant to deprive it of its constitutional right to appeal. In this case the respondent continues to be constrained in the exercise of public powers under statute by virtue of the declaration granted in the High Court at the instance of the applicant.”
12. In a test case, the Court may also exercise its discretion and hear a moot appeal. In Okunade v. The Minister for Justice, Equality and Law Reform & Ors [2013] 1 I.L.R.M. 1 at p. 11 Clarke J. stated:-
“5.3 This case had, therefore, been, in a sense, designated as an appropriate test case by reference to which the broad issues which are addressed in this judgment were to be determined. That designation occurred at a time prior to the issue becoming moot by virtue of the decisions of Cross J. In those unusual circumstances the minister was anxious, and the court agreed, that this appeal should be heard notwithstanding the fact that the issue had, by the time the appeal actually came on for hearing, become moot. The unusual set of circumstances outlined above formed the basis for that decision. In addition it seemed to the court that any case in which this issue might arise was likely to become moot in a relatively short period of time for the issue concerns the proper approach that should pertain pending the hearing of a leave application. Each case of this type will, therefore, become moot when the leave application is heard. The problem which emerged in this case, being that arrangements for an expedited appeal had been set up with a date set but that the issue became moot by virtue of the hearing and determination of the leave application before the date was reached, has a significant risk of occurring in any other case. In those special circumstances this court felt that it was appropriate to hear the appeal notwithstanding its mootness.”
Decision
13. This is a case where an inquiry was sought pursuant to Article 40 of the Constitution. Thus, upon complaint being made by or on behalf of a person that he or she is being unlawfully detained, the High Court is required forthwith to enquire into the complaint. The relief in such proceedings is the release of the person, if he or she is found to be held in unlawful custody.
14. The appellant in this case is a minor. It was alleged that he had been unlawfully detained in custody by the emergency care order of the District Court order of the 26th September, 2013.
15. On the 30th September, 2013, the High Court refused the application for release.
16. The emergency District Court order was superseded by order of the District Court of the 3rd October, 2013. The minor is now back with his parents, subject to a supervisory order.
17. Habeas Corpus is a unique and important remedy, which may be sought swiftly to enable an inquiry into the detention of a person. The relief sought is the release of that person. It does not have a wider ambit. It is not a judicial review, nor is it a plenary summons.
18. In this case the minor has been released from the order that was queried and that order has been superseded. Thus, the issue is moot. According to the general rule, the Court would not hear such an appeal.
19. The parties agreed that the appeal is moot. Nevertheless, counsel for the appellant and the notice party submitted that the case comes within an exception to the general rule.
20. However, I am satisfied that the general rule applies to this case. The case is moot, no exception applies, and the appeal should not be heard, for the reasons set out below.
21. Counsel for the appellant raised two issues in particular in submissions, arguing that an exception to the general rule arose in this case. I shall take the second point first; the High Court judgment’s approach to the decision D. v. Groarke [1990] 1 I.R. 305, which counsel submitted appeared to make a mandatory ruling discretionary.
22. Even if the learned High Court judge had sought to vary the decision of this Court in D. v. Groarke, he would not have the jurisdiction to so do. However, I do not view the words of the learned High Court judge as taking any such approach. Whilst the phraseology may not have been the clearest, it should be remembered that the High Court judgment was delivered in the midst of an urgent hearing.
23. It is quite clear that the law as stated by this Court in D. v. Groarke remains unaltered by any reference in the judgment of the High Court. Thus, this is not a basis upon which to apply an exception to the general rule.
24. Counsel for the appellant submitted, as another reason why this appeal should be heard, that there was a finding by the High Court that the mother need not be heard until the interim hearing.
25. This was an emergency application by the HSE in relation to the baby, the child’s right to emergency protection, made in light of all the circumstances.
26. Counsel submitted that the baby’s mother was not given proper or sufficient notice of the application.
27. While it is true that there was a great deal of material furnished by the HSE to the mother with little time for consideration by her lawyers, all the circumstances and the nature of the application have to be borne in mind.
28. The judgment of the High Court in this case was fact based. The appellant is a baby. There was a claim that An Garda Síochána had detained the appellant’s parents while the emergency care application was heard. There were particular facts in this case, upon which the learned trial judge reached a decision.
29. The relevant law has been settled as set out in D. v. Groarke [1990] 1 I.R. 305. The High Court did not raise or apply any new principles.
30. The case was not argued or determined as a test case before the learned High Court judge.
31. Wider issues, as for example raised by the notice party, G.W., do not arise on this appeal. Consequently, there is no good reason to apply an exception to the general rule on this basis either.
32. The issue of an adjournment was also raised, but that is quintessentially a matter for a trial judge, and appeal courts are slow to intervene in the exercise of such discretion of a trial judge. This is particularly so where the High Court was hearing an urgent matter relating to the welfare of a child. Consequently, this too is not a good reason to employ an exception to the general rule that a moot appeal should not be heard.
33. I find no circumstances in this case such as to give rise to an exception to the rule, as occurred in cases such as O’Brien v. PIAB (No. 2) [2007] 1 IR 328 and Okunade v. The Minister for Justice, Equality and Law Reform & Ors [2013] 1 I.L.R.M. 1.
34. There is no issue of the constitutionality of s. 13 of the Child Care Act 1991, as amended, nor indeed of the interpretation of the statute.
35. This case was decided in the High Court on its particular facts. The decision of the learned High Court judge was fact based, it did not establish new principles, and as such raises no exception to the general rule as to moot appeals.
36. I have considered carefully the oral and written submissions of the parties, and can find no basis upon which this case falls into an exception in which the moot appeal should be heard.
Conclusion
37. Courts do not decide hypothetical or moot points of law unless there is a special jurisdiction such as under Article 26 of the Constitution, or in exceptional cases where it appears to the Court that there are compelling reasons why a court would consider hearing an issue that is moot.
38. This appeal is moot. The minor, the appellant, has been released, and so the remedy of habeas corpus is no longer relevant.
39. In light of the particular facts of the case, and the fact based nature of the judgment of the High Court, I do not consider that this moot appeal falls into any category of exception to the general rule. Consequently, I would not exercise a discretion to hear the appeal.
40. Therefore, for the reasons given, I would dismiss the appeal.
Gilligan v. Special Criminal Court,
Supreme Court, 7 December 2001
[2001] 4 IR 655
t
Keane C.J.
7th December, 2001
The plaintiff was indicted before the Special Criminal Court on the 4th December, 2000, on a number of offences and his trial concluded on the 15th March, 2001, when the plaintiff was convicted of offences under the Misuse of Drugs Acts, 1977 to 1984 and was sentenced to 28 years imprisonment in respect of the supply charges and 12 years in respect of the importation offences, the terms to run concurrently and it is right to say that he has lodged an appeal against both the conviction and sentence. That appeal is pending.
When the sentencing was concluded, the court indicated that it intended to commence an inquiry pursuant to s. 4 of the Criminal Justice Act, 1994, as amended by s. 25 of the Criminal Justice Act, 1999, as to whether he had benefited from drug trafficking within the meaning of that phrase in the Act of 1994, as amended.
At this stage it is convenient to refer to the provisions of s. 4, as amended by s. 25 of the Act of 1999. It provides that where a person has been sentenced or otherwise dealt with by a court in respect of one or more drug trafficking offences of which he has been convicted on indictment the court shall, subject to subs. (2) and (3), determine whether the person has benefited from drug trafficking and it goes on to provide that the court may decide not to make a determination where it is satisfied of certain matters and the duty of the court is not to make a determination if the convicted person has died or absconded.
It is not without significance that that replaces the original provision in the Act of 1994, which provided that where the person had been sentenced and so on, the Director of Public Prosecutions might make an application to the court to determine whether the person convicted had benefited from drug trafficking.
What happened thereafter was that there were submissions advanced by counsel on behalf of the plaintiff in these proceedings to the Special Criminal Court which culminated in an application, effectively to the court, at the least to defer its proceeding with the inquiry until such time as the High Court had had an opportunity of considering whether the statute was, as claimed on behalf of the plaintiff in mandating an inquiry of this nature, repugnant to the Constitution. In the course of his submissions to the court today, counsel on behalf of the plaintiff, has made it clear that the argument that will be advanced on behalf of the plaintiff in those proceedings which have now been instituted is that if, as the Special Criminal Court held, the inquiry contemplated by this section is a criminal proceeding, then he says, unarguably, he is deprived of his constitutional rights in relation to what he would undoubtedly contend was a criminal proceeding – not of a minor nature – namely his right to a trial by jury, his right to the benefit of the presumption of innocence, his right to have the matter decided in accordance with the normal onus of proof, that is beyond reasonable doubt; that he would be deprived of all those important constitutional protections and the Act, if it mandated a criminal hearing without those protections, would as he puts it, be clearly unconstitutional. Alternatively, he says, if that is not correct and if the Special Criminal Court is not correct and these proceedings are civil in nature – and he points to the fact that they have been held by Her Honour Judge Dunne in other proceedings to be civil in nature and hence not requiring a jury – he says that in that situation the Special Criminal Court can have no jurisdiction because he says that is a court established under special legislation, dealing exclusively with criminal offences in accordance with provisions of the Constitution derogating from the normal rights which persons accused of serious crime have in relation to trial by jury. That in sum is the argument which is being advanced now in the proceedings issued on behalf of the plaintiff in the High Court, challenging the constitutional validity of the inquiry which the Special Criminal Court wished to embark on. It is to be said at once that clearly these are arguable grounds and raise important issues which will have to be determined by the High Court in due course and indeed it is not contested by counsel on behalf of the Director of Public Prosecutions that an arguable case has been raised or to use the phrase in interlocutory injunction proceedings, of which this is one – a fair question has undoubtedly been raised by the plaintiff.
However, that is not what we are concerned with today, because what happened thereafter was that, it should be said, responding to what appears to have been a suggestion by the Special Criminal Court, the plaintiff decided to bring the matter before the High Court at the earliest possible opportunity and did so by way of instituting these proceedings and then applying to the High Court for an interlocutory injunction restraining the Director of Public Prosecutions from continuing with the proceedings, pending a determination of the constitutionality of the Act. That matter came on for hearing in the High Court before Lavan J. who, in a judgment he gave, dismissed the application for an interlocutory injunction being satisfied that the balance of convenience did not favour the granting of the injunction and from that decision of the High Court, the plaintiff has now appealed. It comes before us today and the court indicated that it would deal with it as a matter of urgency because, unless restrained from so doing, or unless the Director of Public Prosecutions is restrained from proceeding with the matter, then it would be the intention of the Special Criminal Court to embark on the inquiry on Monday. It is for that reason that the court heard the appeal as a matter of urgency today.
It should be said, not that a great deal turns on this, in one sense that this relief is essentially a relief directed against the Director of Public Prosecutions and that in one sense inevitably flows from the fact that under the terms of the section, the Special Criminal Court had no discretion in the matter unless it was satisfied that the other elements set out which might provide it with a discretion not to have an inquiry are present, that s. 4(1) expressly imposes on it an obligation in a case of this nature to make a determination whether the person has benefited from drug trafficking and then certain consequences flow from that, which I need not go into at the moment. It is sufficient to say that that is the obligation on the Special Criminal Court. Accordingly, there would be obvious difficulties in the way of a court restraining a court from proceeding with an inquiry where there appears to be a statutory duty on it to proceed with the inquiry. The way it is put on behalf of the plaintiff is that in any event courts would not normally issue either orders of prohibition or injunctions against inferior courts and one might have some doubts as to whether that is necessarily so but that is what is said anyway on behalf of the plaintiff, that the Director of Public Prosecutions is accordingly being injuncted because he is the statutory officer whose presence and assistance would be necessary in order to enable the court to make the determination that they are required to make under subs. (1). It is on that basis that it is suggested this is the appropriate way in which to bring the matter before the court. I do not find it necessary at this stage to express any opinion as to the effect on the proceedings of the fact that it appears to be conceded that the order, if it is to be made, must be made against the Director of Public Prosecutions, rather than the Special Criminal Court as such. The real issue that the High Court and this court has to decide is whether, given that the statute requires the court to embark on this inquiry and given that the inquiry only takes place in circumstances where a person has been sentenced and accordingly,ex hypothesi convicted of one or more drug trafficking offences: can the High Court intervene when, as it is put on behalf of the Director of Public Prosecutions, this is effectively all one proceeding and what is the jurisdiction of the High Court to interfere at this stage?
In the court below and again in this court, the plaintiff has relied strongly on the authority of the decision of this court in Pesca Valentia Ltd. v. Minister for Fisheries [1985] I.R. 193 and before considering what is decided in that case, it is, of course, necessary to point out, and indeed, this is relied on by the State, that if this inquiry is deferred until such time as the proceedings in the High Court and it may be, on appeal to this court, are disposed of, then the necessary consequence of that would be that a lengthy and it could be a significantly lengthy interval of time would have elapsed between the conviction of the person concerned and the holding of the inquiry mandated by s. 25(1). That is clearly not what was contemplated by this legislation and effectively it means that the High Court would be intervening at an intermediate stage in a process which begins with a charge, proceeds to a conviction and indictment and then is followed by an inquiry. It would need very unusual circumstances to justify the intervention of the High Court in that situation.
That would be the same in any form of criminal proceedings but it would be particularly so, and arises in a particular and specific way in the case of the Special Criminal Court which, it is rightly pointed out on behalf of the Director of Public Prosecutions, is a court which has no necessarily permanent existence which is brought into being because of special circumstances referred to in the Constitution and which can undoubtedly have its existence terminated if the executive and the Oireachtas reach the conclusion that the circumstances which brought it into being no longer exist. That gives it, as it is put, a more fragile tenure in the whole judicial system than the permanent courts established under the Constitution. It is a court which in this case is sitting in a division of three judges and clearly untold complications could result if any events occurred during the time that this litigation was proceeding on its way through the High Court (and it may be to this court) if it was no longer possible for whatever reason to reconvene that court as originally constituted.
It seems to me there are serious grounds for questioning whether the High Court has any jurisdiction, such as was sought to be invoked in this case to intervene to prevent the Special Criminal Court from proceeding with a statutorily mandated inquiry on the ground that the legislation which requires the inquiry to take place is either unconstitutional or, if constitutionally interpreted, cannot give the Special Criminal Court jurisdiction to conduct the inquiry.
The plaintiff has as I have said, relied strongly on the decision of this court in Pesca Valentia Ltd. v. Minister for Fisheries [1985] I.R. 193 but it has to be borne in mind in relation to that case that there, the plaintiffs were seeking to restrain the relevant Minister from proceeding with a prosecution against fishermen, which if successful, would have not only the effect of a conviction but could also have the effect of forfeiture of their boats and gear and would certainly have the necessary effect of preventing them from carrying on their fishing in Irish waters and thereby effectively depriving them of their livelihood. It was in that context that this court restrained the defendant from maintaining the criminal proceedings he had brought against the plaintiffs, but it is noteworthy, and this is particularly emphasised in the judgment of Finlay C.J., that the court undoubtedly must have regard to the public interest in the prosecution of crime and the maintenance of prosecutions, and it must undoubtedly have regard to those features. What the court was really concerned with in that case was whether, when that was balanced against the consequences in that case if the matter was allowed to proceed, the balance of convenience was in favour of restraining the proceedings rather than allowing them to continue.
This case it seems to me is entirely different because here the plaintiff has been convicted and sentenced to terms of imprisonment and while undoubtedly, being subjected to this inquiry may on one view be damaging to him in the sense that he will have in addition to the lengthy criminal trial which he has undergone, he will be implicated in other forms of proceedings which may result in orders being made forfeiting assets which are his and in the proceedings which he has brought, he strongly contends that the court has no right so to do. One can understand the objection that would be taken to that form of proceeding. But that is not to say that anything that happens in this inquiry is of an irremediable or irretrievable nature that cannot be rectified if it should transpire that the legislation is indeed unconstitutional or is being operated in an unconstitutional manner. It is wholly unlike Pesca Valentia Ltd. v. Minister for Fisheries [1985] I.R. 193 in my view, where quite clearly the damage that would be done to the plaintiffs by the maintenance of the proceedings against them would clearly be irremediable. I see no reason to suppose that a court which deals with this matter and ultimately finds the legislation, if that be the outcome, to be unconstitutional, or to have been operated by the Special Criminal Court in an unconstitutional manner, cannot afford the plaintiff such redress as he is entitled to for any damage or loss of a sort he has suffered as a result of what would then have been undoubtedly the violation of his constitutional right to the appropriate form of procedure.
For those reasons I am satisfied that the judgment of the High Court Judge was correct and I would dismiss the appeal.
Geoghegan J.
I agree.
Fennelly J.
I also agree.