The Gazette 1991

Recent Irish Cases COMP I L ED BY R A Y M O ND BYRNE, B.C.L,. LL.M.,B.L., LECTURER I N L AW, DUB L I N CITY UNIVERSITY

International Fishing Vessels Ltd v Min- ister for the Marine (No.2) Supreme Court 22 February 1991 ADMINISTRATIVE LAW — NATURAL JUSTICE — REFUSAL OF SEA-FISHING LICENCE - REASONS GIVEN FOR DECI- SION — OTHER REASONS NOT COM- MUNICATED TO APPLICANT FOR LI- CENCE — WHETHER DECISION SHOULD BE QUASHED — WHETHER REASONS ACTUALLY GIVEN SUFFI- CIENT TO JUSTIFY REFUSAL The applicant company had been refused sea-fish- ery licences by the respondent Minister in respect of two fishing vessels. No reasons were given by the Minister in refusing the I icence. The company sought judicial review challenging the validity of the re- tusal. In a preliminary application in the proceed iogs, the High Court ordered the Minister to furni»^ • tlieappticahFwTthrhe reasons for the refusal of the licences: International Fishing Vessels Ltd v Minister tor the Marine (19891 IR 149. In giving reasons pursuant to this order, the Minister referred to cer- tain matters which had been communicated to the applicant prior to the refusal of the licence, but certain matters were also mentioned which had not been so communicated. In the High Court, Gannon J held that the Minister's refusal of a licence was not invalidated by the failure to communicate some of the reasons to the applicant. On appeal by the applicant HELD by the Supreme Court (Hederman, McCarthy and O'Flaherty ||) dismissing the appeal: in the instant case the reasons actually communi- cated to the applicant by the Minister prior to his decision to refuse the licence were valid grounds on which to base a refusal; and while the other grounds referred to in the reasons given after the preliminary application also constituted grounds for refusal of a licence, the fact that they were not communicated to the applicant prior to the refusal did not invalidate that refusal. Per Hederman and McCarthy |): the applicant was deserving of little sympathy from the Court in view of its failure to honour previous undertakings given to the Minister in respect of landings of fish and the employment of Irish citizens as crew. Per O'Flaherty I (concurring): to grant the applicant relief would involve a moot since the applicant no longer sought a licence in respect of the vessels concerned in the original application. Murray and Anor v Ireland Supreme Court 14 February 1991 CONSTITUTION — FAMILY — HUS- BAND AND WIFE — IMPRISONMENT ON FOOT OF CONVICTIONS — RIGHT TO PROCREATE — ABSENCE OF FA- CILITIES WITHIN PRISON TO PROCRE- ATE - EFFECT OF IMPRISONMENT ON NORMAL CONSTITUTIONAL RIGHTS

— WHETHER RESTRICTIONS ON RIGHT TO PROCREATE JUSTIFIED AS CONSEQUENCE OF CONVICTIONS — Constitution, Articles 40.3, 41 The plaintiffs, wife and husband, were prisoners serving sentences of life imprisonment for murder. They had no children, but wished to be provided with facilities to procreate within prison. Such facili- ties were refused by the prison authorities, and the plaintiffs instituted proceedings claiming that the absence of such facilities amounted to a denial of their rights as a married couple to beget children. The plaintiffs were allowed to visit each other regu- larly but the prison authorities required that, for security reasons, these visits took place in the sight and hearing of prison officers. In evidence in the High Court, it was stated that by the time of their possible date for release the first plaintiff (at that time 36 years of age) would be unlikelv. bv reason of hr r age, to be able to conceive a child. Costello : dismissed the plaintiffs' claim: (19851 ILRM 542 II9851 IR 532. On appeal by the plaintiffs HELD by the Supreme Court (Finlay CI, Hamilton P, Mc Carthy, O'flaherty and Keane ))) dismissing the appeal: (1) since no application to adduce addi- tional evidence had been made between the time of the High Court judgment in 1985 and the hearing of the appeal in (anuary 1991, it would not be consis- tent with fair procedures for the Court to admit further evidence, whether relating to the ability of the first plaintiff to bear children or as to the rele- vance of the fact that the plaintiffs had been granted temporary release in December 1990 for two and a half days; and accordingly the appeal would he based on the evidence adduced in the High Court; (2) the arguments of the plaintiffs applied equally where one spouse only was imprisoned; nor could a distinction be drawn between a couple with children who wished to beget more, on the one hand, and a couple who have no children, on the other; (3) an inevitable practical and legal conse- quence of imprisonment as a convicted person was that a great many constitutional rights arising from the married status are, for the period of imprison- ment, suspended or placed in abeyance; and the trial judge had been correct to conclude that the right to beget children was a right which was, in general, put in abeyance for the period of imprison- ment; (4) the general regulation of prison conditions was a matter for the executive, subject to supervi- sion by (he courts for constitutional validity and to ensure that the executive did not operate its power in a capricious, arbitrary or unjust way; hut the courts would not intervene merely because they would have reached a different conclusion on the appropriatenessof particular restrictions; nor would the courts intervene in the context of the question whether the executive ought to exercise its power to grant tem|)orary release to prisoners in the [Misition of the plaintiffs in the instant case: (5) having regard to the evidence as to the difficulties associated with giving the plaintiffs, and others in a like situation, the facilities for procreation claimed, the trial judge had

applied the correct approach in dismissing tlx- pl.n tiffs' claim.

The People (D.P.P.) v Gallagher Supreme Court 12 February 1991 CONSTITUTION — SEPARATION OF POWERS — CRIMINAL TRIAL — FIND- ING OF GUILTY BUT INSANE—ORDER FOR DETENTION OF FORMER AC- CUSED IN PSYCHIATRIC HOSPITAL - CORRECT FORM OF ORDER — WHETHER CONSTITUTING PART OF ADMINISTRATION OF JUSTICE — RELEASE OF FORMER ACCUSED — WHETHER MATTER FOR IUDICIAL Of EXECUTIVE ARM OF GOVERNMEN" — FAIR PROCEDURES — Constitutor Article 34.1.38.1 — Tnai or Lunatics Ar 1883. i . l The applicant had Deen tried for murder in 198s i- the Central Criminal Court, and tne jury returner, verdict of guilty but insane in accordance with s.2 of the 1 883 Act. The trial judge ordered, also in accor- dance with s.2 of the 1883 Act, that the applicant he detained in the Central Mental Hospital until further order. In 1990, the applicant applied to the trial judge for his release. This application was refused on the ground that such release was a matter for the executive, and the trial judge amended the original order for the applicant's detention to provide that the applicant be detained in the Central Mental Hospital until the pleasure of the Government of Ireland is known. On appeal by the applicant HELD by the Supreme Court (Finlay CI, Hederman, Mc- Carthy, O'Flahertv and Barr ||) dismissing the ap- peal: (1 ) the verdict arrived at in accordance with s.2 of the 1883 Act is one of acquittal, and the function of the court of trial in such cases was to order the former accused's detention, at least for some mini- mum time, until the executive decides on the further disposition of the person; (2) such function of the court does not form part of the administration of justice, since it amounts to the carrying out of the executive's role in caring for society and the protec- tion of the common good, in particular by inquiring into the then mental state of the former accused, in a manner which was akin to the role of the executive under s.165 of the Mental Treatment Act 1945. In re Clarke 119501 IR' 235 approved. People v Neihn 119911 ILRM 184, sub nom. Apqéxation of Neilan 119901 2 IR 267 overruled; (3)Wrhere a former accused detainer] pursuant to s^A>f the IH8 I Act seeks release from detention, he may apply to the executive; and the executive must inquire into whether the former act used is no longer suffering from any mental disorder and must adopt lair and constitutional procedures, and such inquiry may be subject to judicial review.

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November 1991