The Gazette 1993

GAZETTE

JUNE 1993

Recent Irish Cases Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer in Law, Dublin City University. The f o l l ow i ng case summaries have been reprinted f r om the Irish Law Times and Solicitors Journal w i t h t he kind permission of t he publishers.

stitution did not support the claim for an absolute blanket on confidentiality, and against that background it was a matter for the respondent to determine what areas of inquiry were relevant to the terms of refer- ence set out by the Houses of the Oireachtas. Sheehan v O'Reilly and Ors Supreme Court 8 December 1992 CONSTITUTION - INQUIRY INTO LEGALITY OF DE- TENTION - CRIMINAL LAW - DISTRICT COURT OR- DER IN EXCESS OF JURISDICTION - WHETHER IN- QUIRY INTO DETENTION SHOULD BE ORDERED IMMEDIATELY - CONVERSION INTO CERTIORARI APPLICATION-WHETHER APPROPRIATE-WHETHER CASE TO BE REMITTED TO DISTRICT COU RT - Rules of the Superior Courts 1986, 0.84, r.26(4) - Constitution, Article 40.4.2 The applicant had been convicted in No- vember 1990 of certain offences and sen- tenced to a total of 16 months' imprison- ment. Having withdrawn an appeal against these convictions, he began serving the sen- tence in January 1991. On 2 January 1992, the applicant was convicted by the first re- spondent of an offence under the Larceny Act 1916, and was sentenced to 10 months' imprisonment, to date from the termination of the sentences imposed in November 1990. On 22 January 1992, the applicant applied in person to the High Court for 'a conditional order of habeas corpus... and for an inquiry in accordance with the Constitution of Ire- land, Article 40.4.2.' The ground for the application was that the first respondent's order of 2 January 1992 was in excess of jurisdiction in that its effect was to impose consecutive sentences totalling 26 months. On 5 February 1992, Carney J ordered that, i n I ieu of granting an order for habeas corpus, the applicant be permitted to apply for judi- cial review of the order made on 2 January 1992. The ruling made by Carney J appeared to indicate that he was under the mistaken impression that the applicant's November 1990 conviction had occured in November 1991. On 25 March 1992, Denham J made an order on judicial review quashing the conviction and sentence of 2 January 1992, but remitted the case to the District Court pursuant to 0.84, r.26(4) of the 1986 Rules. By spoken order, Denham J also discharged the applicant from custody. The applicant appealed in person to the Supreme Court, and the Court issued a recommendation that the appl icant was entitled to the benefit of the Attorney General's scheme: see Application of Woods [1970] IR 154. HELD by the Su- preme Court (Finlay CJ, Hederman, O'Flaherty, Egan and Blayney JJ): (1) the application of 22 January 1992, as it clearly raised an issue concerning the legality of the applicant's detention, should have been re- garded as one for an inquiry pursuant to Article 40.4.2 of the Constitution, no matter how it was described by the applicant; (2) an

posed to a fully expressed constitutional pro- vision. Attorney General (SPUC Ltd) v Open Door Counselling Ltd [1987] ILRM 477; [1988] IR 593 and Attorney General v X [1992] ILRM 401; [1992] 1 IR 1 referred to; (2) (Finlay CJ, Hederman and O'Flaherty JJ; McCarthy and Egan JJ dissenting) Article 28.4 of the Constitution, in requiring government members to meet and act as a collective authority, involved the consequential duties of full, free and frank discussion between them, the making of a single decision on any issue and to accept collective responsibility for decisions; these involved, as a necessity, the non-disclosure of different or dissenting views held by government members prior to making any decisions; (3) (Finlay CJ, Hederman and O'Flaherty JJ; McCarthy and Egan JJ dissenting) this conclusion was sup- ported by the obi igation to interpret the Con- stitution in its entirety in a manner most likely to make it an effective instrument for the ordering of society and the governing of the Nation, as well as by the implications of the doctrine of the separation of powers which derived from Article 6 of the Constitution; nor was there any inconsistency between this conclusion and the fact that Articles 26.2.2 and 34.4.5 had expressly inserted provisions prohibiting the expression of dissenting opin- ions in certain Supreme Court decisions, since these provisions were properly inter- preted by reference to the historical context in which they had been inserted after the decision in In re the Offences against the State (Amendment) Bill 1940[ 1940] IR 470; (4) (Finlay CJ, Hederman and O'Flaherty JJ; McCarthy and Egan JJ dissenting) no previous cases concerning discovery of documents had directly raised the issue of government or cabinet discussions; and, in any event, since they concerned the exercise of the judicial power, the principles involved in those cases could not automatically be applied to the question of evidence adduced before a tribu- nal of inquiry appointed on foot of resolu- tions passed by the Houses of the Oireachtas. Murphy v Dublin Corporation [1972] IR 215 and Ambiorix Ltd v Minister for the Environ- ment [1992] ILRM 209; [1992] 1 IR 277 distinguished; (5) (Finlay CJ, Hederman and O'Flaherty JJ; McCarthy and Egan JJ dissent- ing) having regard to the fact that it had been the invariable practice of the Houses of the Oireachtas not to seek information from gov- ernment Ministers on cabinat discussions, this supported the claim to confidentiality in the instant case; and since the claim went to the fundamental machinery of government it could not be waived by any individual mem- ber of government; but while the confidenti- ality extended to details of discussions at meetings of the Government, it did not ex- tend to the decisions actually made or the documentary evidence of them. PerMcCarthy and Egan JJ (dissenting): the text of the Con-

Attorney General v Mr Justice Hamilton, Sole Member of Tribunal of Inquiry Into Beef Processing Industry High Court 10 July 1992; Supreme Court 21 August 1992 CONSTITUTION - EXECUTIVE - GOVERNMENT MEET- INGS - WHETHER ABSOLUTE BAN ON DISCLOSURE OF CONTENT OF DISCUSSIONS AT GOVERNMENT - TRIBUNAL OF INQUIRY APPOINTEDBY OIREACHTAS SEEKING INFORMATION ON GOVERNMENT DIS- CUSSIONS - LOCUS STANDI - WHETHER ATTORNEY GENERAL HAVING STANDING TO RAISE ISSUE OF GOVERNMENT CONFIDENTIALITY - Constitution, Ar- ticles 6, 28.4 The respondent had beef) appointed the sole member of a tribunal of inquiry into the beef processing industry, pursuant to resolutions passed by both Houses of the Oireachtas on 24 May 1991. The background to the resolu- tions and their effect is discussed in Goodman International v Mr Justice Hamilton [19921 ILRM 145. In the course of the tribunal's hearings, a former Minister for Justice was examined by counsel for the tribunal con- cerning the details of discussions which took place at meetings of the government, that is the executive branch of government, on 8 June 1988. Counsel for the Attorney General objected to these questions on the ground that discussions af government were abso- lutely confidential pursuant to Article 28.4 of the Constitution. The respondent indicated that he intended to pursue the questioning of the former Minister, and the Attorney Gen- eral was then given an opportunity to apply for judicial review of this ruling. In the High Court HELD by O'Hanlon J upholding the respondent's ruling: the decisions of Irish courts concerning claims for government privilege in applications for discovery of documents, which militated against an abso- lute claim for confidentiality in government deliberations, were relevant to the instant case since it also concerned the balance to be struck between an individual's legal rights and the claims of the executive; and the claim to an absolute blanket of confidential- ity claimed in the instant case would not have due regard to the rights of the individual guaranteed by the Constitution, and if such a ban had been intended it would have been spelt out in clear terms in the Constitution, as it was in relation to Oireachtas members in Article 15.13. Murphy v Dublin Corporation [1972] IR 215 and Ambiorix Ltd v Minister for the Environment [1992] ILRM 209; [1992] 1 IR 277 applied. On appeal by the Attorney HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) allowing the appeal: (1) the Attorney Gen- eral had locus standi to maintain the judicial review proceedings since it related to an issue which he claimed was fundamental to the whole operation of government and, if his contention was correct, he had the clear- est duty to intervene; and it was irrelevant if his contention concerned an implication from an express constituional provision as op-

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