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

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

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

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.

November 1991