High Court of Ireland Decisions

1. The Plaintiff is alleged to have committed an assault in the Dublin Metropolitan District on the 5 July 1992. He was arrested by a member of the Garda Siochana under section 28 of the Dublin Police Act, 1842 which provides that;

". . . it shall be lawful for any constable belonging to the said Dublin Police to take into custody without warrant any person within limits of the police district who shall be charged by any other person with committing any aggravated assault, in every case in which such constable shall have good reason to believe that such assault has been committed, although not within view of such constable, and by reason of the recent commission for the offence a warrant could not have been obtained for the apprehension of the offense".

He was brought before the District Court. The charge of assault was heard on the 15 October 1992 and the 13 January 1993. On that day the plaintiff's solicitor informed the court that he wished to refer a point of law to the High Court and the prosecution was adjourned. By plenary summons of the 9 March 1993 these proceedings in the High Court were instituted and the prosecution in the District Court has been regularly adjourned ever since. The High Court proceedings have been inordinately delayed but eventually by order of the 1 July 1996 it was ordered that the issue as to whether section 28 of the 1842 Act is unconstitutional by reason of inconsistency with Article (40)(1) of the Constitution be tried as a preliminary issue. This is my judgment on that issue.

Article 40(1) provides;

"All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function".

The plaintiff's case is that the power of arrest conferred by the section does not exist outside the Dublin area where neither statutory or common law would permit the arrest of a suspect without warrant in the circumstances referred to in the section and that this means that all citizens are not being treated equally by the law and so Article 40(1) is infringed.

In my view this submission is based on a misunderstanding of the Article and is unsustainable.

The preamble to the Constitution declares that by enacting it the people of Ireland were, inter alia, seeking to promote the common good so that the "dignity and freedom" of the individual might be assured, and it required by Article 40(1) that all citizens "as human persons" should be held equal before the law. The concepts thereby enshrined are ones which, quite literally, are universally recognised. The 1948 UN Declaration of Human Rights refers in its preamble "the inherent dignity of all members of the human family" and declares in Article 1 that "all human beings are born free and equal in dignity and rights". Innumerable laws are enacted in every state which treat differently one group or category of persons from other groups or categories of persons by imposing detriments or conferring benefits on one group or category and not on others. Every law, which so provides does not of course breach the concept contained either in Article 40(1) of the Constitution or Article 1 of the Universal Declaration. For example, laws may allow more lenient tax regimes in certain geographically defined areas than those in other parts or more generous welfare payments to persons living in certain designated areas than to those living elsewhere and they have never been challenged because of an alleged breach of the requirement that all citizens be treated equally. The Supreme Court has explained why. The guarantee in the Constitution is not a guarantee of absolute equality for all citizens in all circumstances, but is a guarantee of equality as human persons relating to their dignity as human beings and a guarantee against inequalities based on an assumption that some individuals because of their human attributes ethnic, racial, social or religious background are to be treated as inferior or the superior of other individuals in the community (see Quinn's Supermarket Ltd v Attorney General [1972] IR 1, 13). When it is claimed that a law has infringed the guarantee in this Article because it provides for different treatment between one group or category of persons and other groups or categories it may help if the court identifies (a) the category of persons allegedly adversely affected by the law, (b) the difference of treatment enacted by the law of which complaint is made, and (c) the basis on which the difference of treatment was enacted. If it appears that the difference of treatment in the impugned law is not related in any way to a difference based on the characteristics or attributes of citizens as human persons then quite clearly the Article is not infringed. But if it is so based then a further examination requires to be undertaken. The State may in its enactments have due regard to differences of capacity, physical and moral, and of social function. (Article 40(1), second paragraph). If therefore the difference of treatment which is challenged can be justified because it is based on the differences referred to in the second paragraph of Article 40(1) then no constitutional invalidity has occurred.

Approaching section 28 of the Dublin Police Act 1842 in the way suggested it will be seen that (a) the category of persons affected by it are suspects of the crimes referred to in the section who are for the time being in the Dublin area, (b) that the difference of treatment complained of is that such suspects may be arrested without warrant whereas persons suspected of a similar crime may not be so arrested if outside the Dublin area when an arrest is sought to be made. As to (c), in order to ascertain the basis for the difference of treatment which has been identified it is not necessary for the court to search the parliamentary debates to ascertain the arguments used to justify the enactment of the measure -- it will usually be possible for the court to make reasonable inferences from the provisions of the statute itself and the facts of the case. In this case it would be quite irrational to suggest that the basis for the difference of treatment between suspects in the Dublin area and those outside it was some basic human attribute or quality which differentiated suspects in the Dublin area from those outside it. Rather it is a reasonable inference that the difference of treatment was based on considerations of public policy relating to the incidence of crime in the Dublin area, the difficulty of apprehending suspects in that area and the need to do so speedily. This being the case the difference of treatment in no way infringes the guarantee of equality contained in Article 40(1). There is therefore no need to consider whether it is justified by the provisions of its second paragraph.

It does not surprise me that the point is this case has not been raised before and that there is no direct legal authority available for guidance. Those nearest (The State (Hartley) v Governor of Mountjoy Prison, Supreme Court, unreported, 21 December 1967, in which the court rejected a claim that the Extradition Act, 1965 infringed Article 40(1) because it contained different extradition arrangements in respect of different countries; and Tormey v AG [1984] ILRM 657, in which the court rejected a claim that this Article was breached by a law which permitted an accused returned for trial outside Dublin to transfer to the Circuit Court sitting in Dublin whilst the reverse was not permitted) support the conclusions which I have just announced.

I will answer the point raised in the issue by stating that the section is not unconstitutional.