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Kavanagh v. Governor of Mountjoy Prison [2001] IEHC 77 (29th June, 2001)

THE HIGH COURT

2001 No. 840 SS

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION AND IN THE MATTER OF THE HABEAS CORPUS ACT 1782 AND IN THE MATTER OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

BETWEEN

JOSEPH KAVANAGH

APPLICANT

AND

THE GOVERNOR OF MOUNTJOY PRISON THE SPECIAL CRIMINAL COURT THE DIRECTOR OF PUBLIC PROSECUTIONS THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Finnegan J. delivered on the 29th day of June, 2001 .

1. This is an application for leave to apply for Judicial Review which pursuant to my direction is on notice.

THE FACTS

2. The circumstances giving rise to the application are as follows. The Applicant was charged with seven offences, one a scheduled offence under the Offences Against the State Act, 1939 and six non scheduled offences. Pursuant to the Offences Against the State Act, Section 47(1), the Director of Public Prosecutions directed that the Applicant’s trial on the scheduled offence should be before the Special Criminal Court and further in respect of the non scheduled offences pursuant to Section 47(2) of that Act certified his opinion as to the inadequacy of the ordinary Courts to secure the effective administration of justice and the preservation of public peace and order. This resulted in his been charged before the Special Criminal Court with all seven offences. The Applicant challenged the certificate of the Director of Public Prosecutions under the Offences Against the State Act 1939, Section 47(2) (but did not challenge the certificate under Section 47(1) thereof) by way of an application for Judicial Review which failed: See Joseph Kavanagh -v- The Government of Ireland and Others (1996) 1 IR 321. Thereafter on the 29th October, 1997 before the Special Criminal Court the Applicant was convicted of the offences and sentenced to terms of imprisonment of 12, 12 and 5 years on three offences the sentences to run from the 20th July, 1994, the date from which the Applicant had been in custody. The Applicant appealed to the Court of Criminal Appeal against the Special Criminal Courts refusal of leave to appeal and his application to that Court for leave to appeal was dismissed on the 18th May, 1999.

3. Shortly before the commencement of his trial before the Special Criminal Court the Applicant submitted a communication to the Human Rights Committee (“the Committee”) established under the International Covenant on Civil and Political Rights claiming violation of the following Articles of the Covenant: Article 2.1, Article 2.3(a), Article 4.1, Article 4.3, Article 14.1 with Article 14.3, Article 14.2 and Article 26. The communication was concerned with the operation in his case of the Offences Against the State Act 1939, Section 47(2). Ultimately the Committee communicated its views on the Applicant’s communication to the Applicant and to Ireland the views having been adopted on the 4th April, 2001. The relevant portion of the views is contained in paragraph 10.3 of the Committee’s communication in the following terms:-

“The Committee considers that the State party has failed to demonstrate that the decision to try the Author before the Special Criminal Court was based upon reasonable and objective grounds. Accordingly, the Committee concludes that the Author’s right under Article 26 to equality before the law and to equal protection of the law has been violated.”

THE PROCEEDINGS

4. Arising out of the views of the Committee the Applicant seeks leave to apply for the following reliefs by way of Judicial Review:-

1. An Order of Certiorari quashing his conviction by the Special Criminal Court on 29th October, 1997.

2. A declaration that Section 47(2) of the Offences Against the State Act 1939 (as construed by the Supreme Court) is incompatible with the United Nations Covenant on Civil and Political Rights and is accordingly repugnant to the Constitution in particular, Articles 29.2 and 3 thereof.

5. A number of other reliefs are also claimed but at this stage can be regarded as ancillary reliefs to those which I mention. The grounds relied upon by the Applicant are as follows:-

“Ireland is a high contracting party to the United Nations Covenant on Civil and Political Rights of 16th December, 1966 and by accepting that Covenant’s Optional Protocol of the same date Ireland accepted the authority of the Covenant Human Rights Committee to adjudicate on complaints against Ireland of a violation of the Convention. On 27th August, 1997 the Applicant complained to the Committee that his pending trial before the Special Criminal Court on 14th October, 1997 would contravene the Covenant on the grounds that the denial of a jury trial in the circumstances contravened his human right to equality before the law in the administration of criminal justice. In the course of proceedings (before the Committee) the State declined to proffer any good reason for the Director having certified on 15th July, 1994 that the ordinary Courts were inadequate to try the Applicant on the charges in question. On 4th April, 2001 the Human Rights Committee having carefully considered the complaint and the State’s response thereto adjudicated that the Applicant’s right to equality under Article 26 had been contravened and that he should be granted an effective remedy for such violation. He had been sentenced to 12 years and approximately 2 years remain to run of his sentence taking account of remission and temporary release. By virtue of Articles 29.2 and 3 of the Constitution as well as the doctrine of legitimate expectation as a matter of Irish (as well as International) law the Executive is obliged to respect that adjudication and grant the several reliefs sought herein”.

6. At the hearing of the application before me the Applicant sought to extend the scope of the same to bring within its ambit the provisions of the Offences Against the State Act 1939, Section 37(1). I am satisfied that this is unwarranted as the Committee was not asked to nor did it express a view within the meaning of the Covenant on the compatibility of that Section with the Covenant. Nor were they competent to do so: the Optional Protocol Article 5.2 provides that the Committee shall not consider any communication from an individual unless it is ascertained inter alia that the individual has exhausted all available domestic remedies and while the Applicant challenged the Director of Public Prosecutions’ certificate under the Offences Against the State Act, Section 47(2) by way of Judicial Review he did not challenge the Director’s direction under Section 47(1). In these circumstances there appears to me to be no basis upon which this application should be extended in the manner sought. Accordingly, I refuse leave to apply for Judicial Review for the reliefs sought insofar as it is sought to rely upon the Director of Public Prosecutions’ direction under the Offences Against the State Act, Section 47(1).

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

7. Ireland is a party to the Covenant. By the Covenant each State Party undertakes to respect and to ensure to all individuals within it’s territory and subject to it’s jurisdiction the rights recognised in the Covenant. Article 28 of the Covenant established a Human Rights Committee. Article 41 of the Covenant provides that a State Party to the same may declare under the Article that it recognises the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant. The Covenant thereafter provides the procedures to be adopted by the Committee to achieve a friendly solution of a matter communicated and failing this for the preparation of a report confined to a brief statement of the facts: the report is to have attached to it the written submissions and a record of the oral submissions made by the States Parties.

8. It the matter is not thereby resolved the Covenant provides for the appointment of a conciliation commission which in turn will make a report embodying it’s findings on all questions of fact and its views on the possibilities of an amicable solution of the matter which the States Parties may accept or not.

9. Ireland has also signed the Optional Protocol to the Covenant which enables the Committee to receive and consider communications from individuals claiming that they are victims of a violation by a State Party of any of the rights set forth in the Covenant. On receipt of a communication from an individual the Committee will obtain a written explanation or statement from the State Party. Having considered the complaint and any submissions thereon the Committee will forward it’s views to the State Party concerned and to the individual.

10. Neither the Covenant nor the Optional Protocol contain any provision for the enforcement of the solution contained in a report of the committee on a communication by a State Party, a report of the conciliation committee on a communication by a State party or the views of the Committee on a communication under the Optional Protocol by an individual, all of which appear to depend for their effect on their moral authority. However, Article 2. of the Covenant contains the following provisions at Article 2.2 and 2.3 -

2.2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant.

2.3. Each State Party to the present Covenant undertakes

(a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have the right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy:

11. As to the meaning to be ascribed to the term “views” in the Covenant, it appears from the travaux preparatoire that this term was preferred to the stronger terms “suggestions” and “recommendations”. Dominic McGoldrick in his work “ The Human Rights Committee” at page 151 says:-

“It is clear from the drafting work that the views of the HRC do not constitute a legally binding decision as regards the State Party concerned. In this respect the OP parallels the reports of the European Commission on Human Rights, and the supervision systems of the International Labour Organisation and under the European Social Charter. It contrasts markedly with the decisions of the European Court of Human Rights and the recommendations of the Committee of Ministers under the ECHR which are legally binding. There is no higher organ expressly authorised to review or supervise the implementation of the HRC’s views, so these remain the last word on the communication”.

12. I accept this. The views of the Committee do not constitute a legally binding decision.

13. As to the undertaking by States Parties to the Optional Protocol to provide an effective and enforceable remedy in case of a violation, it appears that the Committee regards itself as having a supervisory role. Thus, in communicating its views on the Applicants communication the Committee dealt with remedy as follows:-

“Bearing in mind that, by becoming a party to the Optional Protocol, Ireland has recognised the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to Article 2 of the Covenant, the State party has undertaken to ensure to all individuals within it’s territory and subject to it’s jurisdiction the rights recognised in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive, within 90 days, information from the Government of Ireland about the measures taken to give effect of the Committee’s views. The State Party is requested also to give wide publicity to the Committee’s views.”

14. The views expressed by the Committee in the past on the appropriate remedy have included the following:-

1. To provide compensation to the victim.

2. To immediately release the victim.

3. To adjust the provisions of legislation in order to implement Covenant obligations.

4. To give the victim a fresh trial incorporating appropriate procedural guarantees.

15. However, the Committee considers that its role comes to an end with the communication of views. The Committee, however, takes an interest in any action by the State Party as a consequence of the Committee’s views under the Optional Protocol both in any action taken by the State party which concerns either the legal issues involved or the situation of the person concerned.

THE CONSTITUTION

16. The following provisions of the Constitution are relevant to the arguments raised by the Applicant on this application.

Article 15.4.1 The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or to any provision thereof.

Article 15.4.2 Every law enacted by the Oireachtas which is in any respect repugnant of this Constitution or to any provision thereof, shall, but to the extent only to such of such repugnancy, be invalid.

Article 29.2 Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination.

Article 29.3 Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.

Article 29.6 No international agreement shall be part of the domestic law of the State, save as may be determined by the Oireachtas.

THE APPLICANT’S SUBMISSIONS

17. The Applicant’s submissions are threefold and are as follows:-

1. The Covenant is part of customary international law and so part of the Common Law and justiciable at the suit of the Plaintiff. The State having been found to be in breach of the Covenant by a competent judicial tribunal to whose determination it has submitted is bound by the determination of that tribunal. The Applicant having been convicted in breach of his Covenant rights is entitled as a matter of domestic law to have his Covenant rights vindicated.

18. The Covenant has not been incorporated in to domestic law by statute and, accordingly, the Constitution Article 29.6 applies. The Applicant however submits that the Covenant has been so widely accepted by the international community that it must now be regarded as part of customary international law: Accordingly by virtue of Article 29.3 it is incorporated in to Irish domestic law. I am satisfied however, that Article 29 has as its subject the relations between states only and, accepting the proposition that the Covenant in its entirety is part of Irish domestic law for the purposes of this application, cannot affect the rights of individuals. In Re: O’Laighleis (1960) IR 93 at page 124, Maguire C.J. says:-

“Clauses 1 and 3 of Article 29 of the Constitution clearly refer only to relations between states and confer no rights on individuals”.

19. This proposition applies equally to international law whether created by treaty or by convention or the source of which is customary international law. I am bound by this decision of the Supreme Court.

Further in Act Shipping (PTE) Limited -v- Minister for the Marine and Others (1995) 3 IR 407, Barr J. dealt with the relationship between Article 15.2.1 of the Constitution and customary international law. Speaking of Article 15.2.1 at page 412 he says:-

“As far as I am aware the implications of this provision have not been considered as yet by the Supreme Court or the High Court. It raises the question as to whether customary international law can become part of Irish domestic law otherwise than through the legislative power of the Oireachtas. In my opinion Article 15.2.1 of the Constitution does not inhibit the evolution of international customary law in to Irish domestic law. It relates to the “making” of laws for the State, which, it provides, is a power exclusively reserved to the Oireachtas. Customary law is not made in the sense envisaged by Article 15.2.1. Customary international law evolves from a practice or course of conduct which in terms become widely accepted. I am satisfied that this State subscribed to the international custom whereby innocent foreign commercial vessels in serious distress have a prima facie right to refuge in waters of an adjacent coastal state and that this customary right has long since merged in to Irish domestic law.

If the foregoing interpretation of Article 15.2 is not well founded in law, it seems to me that international custom in maritime law whereby a ship in serious distress is entitled to a safe refuge, is so long established as to be deemed to have been absorbed into Irish domestic law before the enactment of the Constitution in 1937. If it was already part of Irish domestic law when the constitution was enacted then Article 15.2 has no bearing on its validity.”

20. The second proposition of Barr J. can have no application in the present case the Covenant dating only from the 16th December, 1966.

21. As to the first proposition, accepting its correctness, it does not avail the Applicant. This point was clearly dealt with by the Supreme Court in Re: O’Laighlsis (1960) at page 124:-

“These provisions (The Constitution, Article 29.1 and 3), Mr. McBride submitted reproduced the pre-existing common law, and by the common law, he said those principles “which were commonly accepted as binding by civilised nations became part of the domestic law unless they could be shown to be contrary to it. He referred to the English authorities West Rand Central Gold Mining Company -v- Rex (1905) 2 KB 391, Chung Chi Cheung -v- The King (1939) AC 160. From the latter case he cited in particular this passage from the speech of Lord Atkin (at p. 167):-

“...so far, at any rate, as the Courts of this country are concerned, international law has no validity save insofar as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and having found it, they will treat it as incorporated into the domestic law so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.”

Clauses 1 and 3 of Article 29 of the Constitution clearly refer only to relations between states and confer no rights on individual; they can in no way assist Mr. McBride’s argument.”

22. Further, Barr J. goes on to say

“If in the present case it can be established that, in the circumstances prevailing, the M.V. Toledo had a right (subject as aforesaid) to the benefit of a port or anchorage of refuge in Ireland by reason of an established usage or custom in international law, then that right is part of Irish domestic law and the State is answerable in its domestic Courts to the Plaintiff for unlawful failure to honour it.”

23. This proposition if it is that an individual can litigate such a right appears to me to be contrary to the statement of the law in Re: O’Laighleis. Article 29.1 and 3 refer only to relations between states and confer no rights on individuals. The same must be true of Article 29.2. The right found for by Barr J. must be justiciable only at the suit of the State in which the vessel concerned is registered. In these circumstances I am bound to follow the decision of the Supreme Court.

24. Finally, in relation to this submission, I am not satisfied that the views of the Committee can be said to be a judicial determination the expressions of views having the moral authority of the Committee but nothing more than that. The Committee is not a Court under the Constitution and without a constitutional amendment cannot affect the administration of justice in the Courts established under the constitution: Constitution Article 34.1.

2. The State by its adherence to the Covenant has undertaken pursuant to Article 2.3 thereof to provide an effective remedy to individuals whose Covenant rights have been violated. The views of the Committee that the Applicant’s Covenant rights have been violated is a binding judicial determination to that effect. An Order of Mandamus should therefore issue from this Court to compel the State to provide an effective remedy.

25. This submission must fail for the same reasons as the first. Even if the Covenant is part of Irish domestic law, the subject of international law is the State and not the individual: See O’Laighleis (1960) IR at 124. Such matters as are raised by the Applicant are not justiciable at the suit of an individual.

3. The Applicant submits that by ratifying the Covenant and Optional Protocol the State created a legitimate expectation that its executive and judicial branches would adhere to the Covenant’s requirements and that where the Committee communicates in its views a finding of a violation of a Covenant right the State would promptly take steps to enforce the right which has been violated and grant the victim redress.

26. The Applicant relies upon Fakih -v- The Minister for Justice (1993) 2 IR 406 and Gutrani -v- The Minister for Justice (1993) 2 IR 427.

In Webb -v- Ireland (1988) IR 353 at 384, Finlay C.J. dealt with legitimate expectation in the following terms:-

“It would appear that the doctrine of legitimate expectation sometimes described as reasonable expectation has not in those terms been the subject of any decision of our Courts. However, the doctrine connoted by such expressions is but an aspect of the well recognised equitable concept of promissory estoppel (which has been frequently applied in our Courts) whereby a promise or representation as to intention may in certain circumstances be held binding on the representor or promisor. The nature and extent of that doctrine in circumstances such as those of this case has been expressed as follows by Lord Denning in Amalgamated Investment and Property Company Limited -v- Texas Commerce Investment Bank Limited (1982) QB 84 at p. 122:-

“When the parties to a transaction proceed on the basis that an underlying assumption - either of fact or of law - and whether due to misrepresentation or mistakes makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the Courts will give the other such remedy as the equity of the case demands.””

27. The Applicant in support of his claim to have a legitimate expectation relies upon a decision of the Australian High Court of Appeal, Minister of State for Immigration and Ethnic Affairs -v- Teoh (1994-1995) 183 CLR 273. The headnote to the report gives the finding of four of the five Judges in the following terms:-

“Although a convention ratified by Australia does not become part of Australian law unless its provisions have been validly incorporated into municipal law by statute, the ratification was an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision makers would act conformably with the convention. It is not necessary that a person seeking to set up such a legitimate expectation be aware of the convention or personally entertain the expectation. It is enough that the expectation is reasonable in the sense that there are adequate materials to support it.”

28. From the judgment it is clear that in Australian law an international treaty to which Australia is a party does not form part of Australian law unless those provisions have been validly incorporated into municipal law by statute. The position therefore would appear to correspond with that in the United Kingdom at common law: See Thakrar -v- Secretary of State for the Home Department (1974) 2 All E.R. 261. Specifically the Australian Courts are not constrained by any provision corresponding to the Constitution Article 29.6. In an Irish context the phrase “ absent statutory or executive indications to the contrary” must be expanded to have regard to constitutional indications. Bearing this in mind the true nature of the judgment is more readily understood when regard is had to the words used in context. As to context, I should first refer to the decision of McCracken J. in Abrahamson -v- Law Society of Ireland (1996) 1 IR 403, and the four principles which he therein sets out as reflecting the established law on legitimate expectation. The first two principles are relevant here:-

1. It is now well established in our law that the Courts will, as a general rule, strive to protect the interest of persons or bodies who have a legitimate expectation that a public body will act in a certain way.

2. In protecting those interests the Courts will ensure that where the expectation relates to a procedural matter the expected procedures will be followed.

The Teoh case relates to a procedural matter, namely whether the Defendant had a reasonable expectation that the Minister’s delegate in considering an application for resident status will act in conformity with the United Nations Convention on the Rights of the Child to which Australia was a party. In their judgment Mason C.J. and Dean J. held that the ratification of a convention is a positive statement by the Executive Government to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the convention. That statement, they held, is adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision makers will act in conformity with the convention and it is unnecessary that a person seeking to set up such a legitimate expectation should be aware of the convention or should personally entertain the expectation it being sufficient that the expectation is reasonable in the sense that there are adequate materials to support it. They went on to say:-

“The existence of a legitimate expectation that a decision maker will act in a particular way does not neccessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of an unincorporated convention into municipal law by the back door.”

29. They went on to hold that if the decision maker proposes to make a decision inconsistent with a legitimate expectation procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.

30. The judgments of Mason C.J. and Dean J. discussed the place of such a convention in Australian law having regard to the common law rule as to conventions which have not been incorporated in to municipal law. They accept that a statute has to be interpreted and applied, as far its language permits, so that it is in conformity and not in conflict with the established rules of international law. However this principle is no more than a cannon of construction and does not import the terms of the treaty or convention into municipal law as a source of individual rights and obligations. They expand on the limited relevance of a convention not incorporated into municipal law at page 288 -

“Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the Courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the Courts as a legitimate guide in developing the common law. But the Courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into domestic law. Judicial development of the common law must not be seen as a back door means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the Courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials. Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it was intended to serve and its relationship to the existing principles of our domestic law.”

31. I am satisfied that this decision is of no benefit to the Applicant here. Firstly, the Applicant here is not concerned with procedural fairness but rather is seeking from the Courts substantive protection for the Covenant right which he claims, that right having its origin in a convention which is not part of Irish domestic law. Secondly, and more fundamentally there can be no legitimate expectation of a substantive right which would conflict with the statute law of the State or the Constitution or with the well established principles of the common law. I am satisfied that the right claimed is in conflict with the Constitution Article 29.6 and with the common law as declared in Thakrar -v- Secretary of State for the Home Department . I unhesitatingly indorse the view of Mason C.J. and Dean J. that the judicial development of the common law must not be seen as a back door means of importing an unincorporated convention in conflict with the established common law rule that a convention unless validly incorporated into domestic law does not form part of the domestic law and a further rule that public international law does not confer substantive rights justiciable in the Courts of this jurisdiction upon individuals. A fortiori, the development of the common law must not be used as a device to circumvent the provisions of the Constitution Article 29.6 and 15.2.1.

32. It has been agreed between the parties that the appropriate test to be applied on this application is that contained in G. -v- DPP (1994) 1 IR 374. The Applicant must show an arguable case. With regard to the first two submissions to accede to the same would require that this Court disregard the decision of the Supreme Court in Re: O’Laighleis . With regard to the third submission, while the same would appear to find support on a reading of the headnote to the report in Minister for State for Immigration and Ethnic Affairs -v- Teoh a reading of the judgments clearly shows that this is not the case. In these circumstances I am satisfied that the Applicant has not satisfied the test of showing an arguable case laid down in G. -v- DPP . Accordingly, I refuse the Applicant leave to apply for Judicial Review.