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.

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-

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-

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