High Court of Ireland Decisions

 
THE HIGH COURT

HC 232/04

[2001 No. 342J.R.]

JUDICIAL REVIEW

BETWEEN

PAUL QUINN

APPLICANT

AND HIS HONOUR JUDGE SEAN O'LEARY, JUDGE MICHAEL C. REILLY, IRELAND, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE ATTORNEY GENERAL AND THE GOVERNMENT OF IRELAND

RESPONDENTS

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 23^rd of April, 2004

By order of this Court dated 28^th May, 2001, the applicant was given leave to apply for the relief of:-

1. An order of certiorari by way of judicial review removing for the purpose of being quashed the order of the first named respondent made on 20^th January, 1998 and also if necessary removing for the purpose of being quashed the order of the second named respondent made on 15^th May, 1997.

2. Alternatively an order pursuant to O. 84, r. 26 (4) of the Rules of the Superior Courts, 1986 and/or the inherent jurisdiction of this Court remitting the said proceedings to the first named respondent.

3. A declaration that s. 52 of the Offences against the State Act, 1939 is unconstitutional and void.

4. A declaration as to the statutory and constitutional rights of the applicant and as to his rights and legitimate expectations under the European Convention on Human Rights.

5. Damages for breach of duty including statutory and constitutional duty.

The grounds upon which this relief is sought are as follows:-

1. Section 52 of the Offences against the State Act, 1939 contravenes the constitutional rights of the applicant and his rights under the European Convention on Human Rights, and is unconstitutional and void, on the ground that it infringes the right to fair procedures, the right against self- incrimination, the right to silence, the right to freedom of expression, the presumption of innocence and the right to trial in due course of law and on the ground that the section lacks a sufficient relationship to the rest of Part V of the said Offences against the State Act, 1939, and the application of the section in conjunction with s. 35 of the said Act is arbitrary and irrational. Alternatively, the sixth named respondent had erroneously failed to reconsider the need for the continued application of the order made under the said s. 35 on the date of the offence alleged against the applicant.

2. The respondents and each of them are bound by the judgment of the European Court of Human Rights in favour of the applicant herein, which judgment became final on the 21st day of March, 2001. In particular the respondents and each of them are obliged to abide by the judgment of the Court pursuant to Article 46 of the Convention and to secure to the applicant the rights and freedoms guaranteed by the Convention as interpreted by the Court pursuant to Article 1 of the Convention. In the premises, s. 52 of the Offences against the State Act, 1939 contravenes Article 29.3 of the Constitution in as much as the principle of international law "pacta sunt servanda" requires the State to repeal or otherwise nullify legislation (including the said s. 52) which has been authoritatively determined to contravene an international treaty, in this instance the European Convention on Human Rights.

3. The decision of the first named respondent herein and/or the decision of the second named respondent failed to give any or any sufficient weight to the rights of the applicant under the Constitution and/or the European Convention on Human Rights. Further or in the alternative the said decisions were bad in law by reason of the fact that at the time of the alleged offence the applicant was liable to have any statements made by him in response to demands made under Section 52 of the Offences against the State Act, 1939 adduced against him in evidence by virtue of the state of the law then existing (People v. McGowan [1979] I.R. 45). The understanding of the law then prevailing has since been determined to be wrong in law and in breach of the constitutional rights of the applicant.

4. The decision of the first named respondent herein was infected by error and/or shows error on its face and/or is bad for uncertainty in that it purports to affirm "the Orders of the District Court" herein notwithstanding that the applicant sought to appeal against the single order whereby he was convicted and sentenced, whereas two orders of the District Court imposing a conviction were drawn up erroneously purporting to show that the applicant was convicted for different offences.

The application is grounded upon an affidavit of the applicant who described himself as a computer technical support analyst and resides in the County of Limerick. He states that on 15^th May, 1997, he was brought before the District Court in the City of Limerick on charges preferred against him by the Director of Public Prosecutions. He states that he was charged with three counts of failing on 20^th and 21^st July, 1996, to account for his movements on the 6^th and the 7^th June, 1996, pursuant to s. 52 of the Offences against the State Act, 1939. He states that the District Court dismissed one charge, made no order on another, and convicted him on the third charge and imposed a sentence of six months imprisonment. He states that there appears to have been error or confusion on the part of the District Court as to which charge he was convicted of, in that two sets of orders were drawn up which do not correspond. He points out that one of these orders purported to show that he was convicted of failing to respond to a request made under s. 52 on the 20^th July, 1996, while another purports to record that he was convicted of failing to respond to a similar request on the 21^st July, 1996. He states that he appealed the order of conviction, but following the rejection of submissions on his behalf as to overlap of charges, he applied to withdraw his appeal and on the 20^th January, 1998, the first respondent made an order striking out his appeal and purporting to affirm the orders of the District Court. He states that he was immediately taken into custody and was subsequently released on the 4^th June, 1998, having completed the sentence imposed by the court.

The applicant points out that in March, 1997 he made an application to the European Commission of Human Rights claiming that the prosecution taken against him pursuant to s. 52 of the Offences against the State Act, 1939 was in breach of his rights under Articles 6, 10 and 13 of the European Convention on Human Rights. Following his conviction in the Limerick District Court he submitted a more formal and detailed application to the European Commission of Human Rights on the 5^th June, 1997. He points out that his application was transferred to the European Court of Human Rights on the 1^st November, 1998, and the Court declared his complaints under Articles 6 and 10 of the Convention to be admissible on the 21^st September, 1999. The Court gave judgment in his favour on the 21^st December, 2000. The Court found that there had been a violation of his right to silence and his privilege against self-incrimination as guaranteed by Article 6 (1) of the Convention and a violation of the presumption of innocence guaranteed by Article 6 (2) of the Convention. The Court held that his complaint under Article 10 of the Convention did not raise any issue separate from those raised under Article 6 and accordingly made no finding in respect of that complaint.

The applicant points that the Court found that the decision of the Circuit Court and/or the District Court gave rise to a contravention by the State of his rights under the European Convention. The Court ordered payment of £4,000.00 by way of compensation which has since been paid. He points out that although the court found that his conviction under s. 52 was "a direct consequence of the violation [of the Convention] in this case", that conviction remains in place and on record. He points out that this has given rise to problems and difficulties for him, in that, the fact of his conviction was widely reported in the local media and inter alia he has had to declare it for the purpose of obtaining car insurance. He apprehends that such problems and difficulties will continue into the future for so long as the conviction stands. He asserts that the conviction will severely prejudice any application by him in the future in seeking work or a visa in a number of jurisdictions including the United States. He points out that previous to his conviction he had worked for two years in England but he is reluctant to return there now as he is concerned that any random police check

will reveal that he has been convicted of an offence contrary to the Offences against the State Act, 1939 and this would make him an object of suspicion to the police in that jurisdiction. He states that he is concerned that for the purpose of obtaining employment he may be required to disclose this conviction, even though it was imposed as a direct consequence of a violation of his rights under the European Convention of Human Rights.

The applicant points out that the judgment of the European Court of Human Rights became final on 21^st March, 2001. Following that, his solicitors by letter dated the 5^th April, 2001, requested the Director of Public Prosecutions and the Attorney General to consent to such action as might be necessary in order to have his conviction set aside. He points out that no reply was received by his solicitors until the 15^th May, 2001, when the Chief State Solicitor wrote to the effect that the original letter had been forwarded to the Director of Public Prosecutions and the Attorney General for instructions.

A statement of grounds of opposition has been filed on behalf of the several respondents with the exception of the Director of Public Prosecutions in which the following grounds are pleaded:-

1. By his delay and failure to comply with the requirements of O. 84, r. 21 of the Rules of the Superior Courts, the applicant has disentitled himself to the relief sought or to any relief.

2. The applicant was not given leave to apply for orders pursuant to O. 84, rr. 18, 19 and 24 and is so not entitled to any declarations or to damages.

3. The decision of the first named respondent was not affected by error and did not show error on its face and was not bad for uncertainty. Two orders of the District Court imposing the conviction on the applicant were not drawn up. An erroneous copy of the order of conviction was prepared, erroneous in that it contained the wrong date as the date of the offence found proved.

A statement of opposition had been filed on behalf of the Director of Public Prosecutions in which the following grounds are pleaded :-

1. Section 52 of the Offences against the State Act, 1939 does not contravene any rights enjoyed by the applicant under and by virtue of the law of Ireland, either by reference to the grounds alleged at paragraph (e) 1 of the statement grounding this application for judicial review or at all.

2. The European Convention on Human Rights does not form part of the domestic law of the State.

3. Section 52 of the Offences against the State Act, 1939 does not contravene Article 29.3 of the Constitution of Ireland, either as alleged or at all.

4. The fourth named respondent cannot "repeal or otherwise nullify legislation" on the grounds referred to at paragraph (e) 2 of the statement grounding this application for judicial review. In the premises the applicant is not entitled to any relief whatsoever as against the fourth named respondent on this ground.

5. It is denied that the decisions of the first and second named respondents impugned herein failed to give any or any sufficient weight to rights enjoyed by the applicant under and by virtue of the law of Ireland, either as alleged at paragraph (e) 3 of the statement grounding this application for judicial review or at all.

6. On the 15^th May, 1997 the applicant was convicted by the second named respondent of a single offence contrary to s. 52 of the Offences against the State Act,1939. The applicant's appeal against that order was part heard and the remainder subsequently withdrawn. The appeal was accordingly struck out and the order of the District Court affirmed by the first named respondent by order dated January 20^th, 1998.

7. In the premises, the applicant made no statements capable of being adduced against him in evidence and he was neither charged with, nor convicted of, any other offence. The matters canvassed at paragraph (e) 3 of the statement grounding this application for judicial review to the effect that any statements the applicant might have made might have been adduced against him in evidence if he had been charged with other offences is therefore moot.

8. Further or in the alternative the said ground is a ius tertii, which the applicant has no locus standi to raise in these proceedings.

9. The order made by the first named respondent is neither infected by error, shows error on its face nor is bad for uncertainty, either as alleged at paragraph (e) 4 of the statement grounding this application for judicial review or at all.

10. It is denied that the applicant has suffered any or any loss or damage as a consequence of the matters complained of in these proceedings.

11. The applicant was convicted in the District Court on the 15^th May, 1997. The order of the District Court was affirmed by the first named respondent by order dated 20^th January, 1998. In the premises, the applicant has failed to initiate the present application for judicial review either promptly or within the time limits prescribed by O. 84 of the Rules of the Superior Courts.

12. The applicant is not entitled to the relief sought herein against the fourth-named respondent or to any relief.

An affidavit has been sworn by Eileen Tracey, District Court clerk, who states that she is a District Court clerk and was in 1997 and 1998 assigned to the District Court area of Limerick City. She indicates that the applicant erroneously states that there was confusion on the part of the District Court in that two sets of orders were drawn up in respect of the offence of which the applicant was convicted and that these orders do not correspond to each other. She points out that the applicant has in fact exhibited, as exhibit "A" in his affidavit, the orders made by the District Court in the proceedings on 8^th October, 1998. She points out that as appears from the orders, a copy of which she exhibits, the applicant was convicted of a breach of s. 52 of the Offences against the State Act, 1939 in respect of his failure on the 21^st July, 1996, to account for his movements on certain dates. She points out that the applicant has also exhibited as exhibit "A" to his affidavit, copies of orders requested pursuant to Rule 85 of the District Court Rules, 1948. She indicates that the applicant erroneously appears to believe the copy of the relevant order to be an order itself. She exhibits the order with her affidavit. She states that it appears therefrom it is described as "copy of order of conviction/Rule 85". She points out that this Rule of the District Court Rules provides that a person may obtain from a District Court clerk a copy of an order made in the Court Area of that clerk. She points out that the District Court clerk is required to certify that the copy furnished is a true copy of the original order. She says that in this case, unfortunately, there appears to have been an error made in respect of the copy provided to the person who requested it pursuant to Rule 85. She states that while she certified the copy as being a true copy of the original order, in fact the copy erroneously refers to the 20^th July, 1996, when it should in fact refer to the 21^st July, 1996. She explains the circumstances in which this error arose. She points out that there were three offences before the court in the minute book in the order of offences alleged to have been committed on the 20^th and the 21^st July, 1996. She indicates that the summonses in question had been numbered at an earlier hearing by Judge Reilly as follows:- summons No. 1, summons No. 3 and summons No. 2.

She points out that the District Court judge when handing down his order, did so sequentially in respect of summons no. 1, summons no. 2, and summons no. 3. The District Court clerk in court on the 15^th May, 1997 being unaware that the Judge had numbered the summonses 1 to 3 entered the results sequentially in the minute book assuming summons no. 1 to be that first appearing in the minute book, summons no. 2 to be second and summons no. 3 to be the third in the minute book. She points out that these court results were transcribed onto the computer. Thus, when a copy order of the conviction was requested pursuant to Rule 85 of the District Court Rules 1948, what in fact issued was a copy of a conviction order in respect of an alleged offence on the 20^th July, 1996 and not in respect of an offence on the 21^st July, 1996 as per the order of the Court. She indicates that some time later it was brought to her attention that the conviction was in fact imposed in respect of summons no. 3 pertaining to the 21^st July, 1996 (which appeared second on the list of summons in the minute book) and not in respect of summons no. 2 (which appeared third on the list). She indicates that she checked the orders as handed down by the District Court judge and immediately rectified the error. When the appeal papers were processed the copy order correctly reflected that the conviction was in respect of summons no. 3, for an offence on 21^st July, 1996. On this basis she says that the order made by the Circuit Court related to the correct order of the District Court.

An affidavit has been sworn by Michael D. Murray, State Solicitor for Limerick City who indicates that he attended the Circuit Court on 20^th January, 1998, when the applicant appealed against his conviction in the District Court for a breach of s. 52 of the Offences against the State Act, 1939. He states that at no time during the course of the applicant's appeal did the applicant request the Circuit Court judge to have regard, before he came to his decision to any right under the Constitution or any right under the European Convention for the protection of Human Rights and Fundamental Freedoms of which he claimed to be entitled to the benefit. Mr. Murray also indicates that at no stage did the applicant make any submission in relation to any alleged error in the District Court order.

A supplemental affidavit has been sworn by the applicant which states that at the time of his arrest by a member of An Garda Síochána between the 19^th and the 21^st July, 1996, he believed that any answers given by him to demands made of him pursuant to s. 52 of the Offences against the State Act, 1939 would be admissible against him in evidence and that this belief influenced his decision not to answer the demands in question. He states that he is advised by his legal advisors and believes this continued to be the state of the law in that regard until decisions of the Supreme Court given after the date of the conviction, which is the subject of this application. He indicates his belief that any answers would be admissible in evidence was caused or contributed to by the expressed terms of repeated cautions given to that effect to him by members of An Garda Síochána. In this regard he refers to a certified copy of the typed script notes of garda interviews conducted with him during his detention and of statements of evidence of members of An Garda Síochána which he exhibits. He says, as appears from the exhibited notes the cautions were not withdrawn when requests pursuant to s. 52 were made. He also refers to a copy of the custody record pertaining to his detention.

The applicant states that as appears from the statement of evidence of Detective Sergeant Daniel F. Haugh, he was arrested by Detective Garda Mark Nash at or about 9.30 am on the 19^th July, 1996, and was cautioned by the Detective Garda that he was not obliged to say anything unless he wished to do so but anything he did say would be taken down in writing and might be given in evidence. He indicates that as appears from the statement of evidence of Sergeant Ian Connolly he read over his rights in custody to him at or about 9.46 am.

The applicant states that it appears from the statements of evidence exhibited, that at the commencement of each of the seven interviews culminating in the final interview, which gave rise to his conviction, he received a caution that he was not obliged to say anything unless he wished to do so, but whatever he did say would be taken down in writing and might be given in evidence. He indicates that the interview which gave rise to his conviction occurred on the morning of the 21^st July, 1996, and was conducted by Detective Garda Joseph Heaney and Detective Sergeant P.J. Walshe between 8.10 am and 9.20 am. He points out that as appears from the statement of evidence of Detective Garda Heaney he commenced by cautioning him in the usual terms, including the warning that answers might be given in evidence. He points out that Detective Sergeant Walshe then asked him to give an account of his movements "between 6.00 p.m. on 6^th June, 1996, and 12.00 m.d. on 7^th June, 1996". He states that no explanation of penalties or explanation in ordinary language of the effects of answering or not answering was proffered by either Detective Garda Heaney or Detective Sergeant Walshe on the 21^st July, 1996, other than that failure to give such an account was an offence. He points out Detective Sergeant Walshe himself made no reference in his statement to making a demand of him pursuant to s. 52 of the Act of 1939. On this basis the applicant indicates that it will be contended on his behalf that the conviction for failure to account for his movements on the 21^st July, 1996, was barred in law and that his conviction was in contravention of his legal and constitutional rights.

The applicant states that as appears from the interview notes repeated requests under s. 52 were made in respect of overlapping dates and times. He points out that in particular, the request on foot of which he was convicted (failing on the 21^st day of July, 1996, to account for his movements during the period 18:00 hours on 26^th day of June, 1996, to 12 midday on the 7^th of June, 1996) was a request which was wholly encompassed within previous requests made on the 19^th and the 20^th days of July, 1996. On this basis he indicates that if the section could validly be operated, it could only be so operated once in respect of any particular detention and in particular only once in relation to any particular period for which an account of movements was sought.

The applicant refers to correspondence with the Chief State Solicitor and refers to a reply received after the commencement of these proceedings, in which it was indicated on behalf of the Director of Public Prosecutions, that he had formed a preliminary view that the conviction of the applicant could not be set aside either by way of re-entry by consent before the Circuit Court or by way of application to the High Court, so that the Director of Public Prosecutions could not consent to such a proposed course or concede to such an application. The Director of Public Prosecutions was stated to be of the view that the prosecution which led to the conviction took place under the law as it stood in this jurisdiction and pending enactment of the European Convention of Human Rights Bill by the Oireachtas, as it stands this was stated to be a preliminary view point of the Director of Public Prosecutions, pending counsel's opinion.

An affidavit was sworn by Mr. Michael Farrell, solicitor on behalf of the applicant in which he refers to the question of regular reviews of the necessity for the Special Criminal Court. He states that these began only after the applicant's arrest in July, 1996. He refers to correspondence from the Department of Justice, Equality and Law Reform to the Department of Foreign Affairs dated 12^th March, 1999, obtained pursuant to a Freedom of Information Act request, and based upon this he states that the decision of the Government to commence annual reviews of the necessity for the Special Criminal Court was taken on 14^th January, 1997. He indicates that no regular review procedure was in place prior to that date. Mr. Farrell indicates the results of requests for discovery of documents pertaining to the convictions of the applicant and exhibits correspondence and other documents enclosed therewith. He indicates that the reply received from the Chief Prosecution Solicitor on the 13^th September, 2002, was not satisfactory, in that in particular it did not enclose any of the documents sought by letter of the 28^th August, 2002, and it did not enclose all documents sought by other paragraphs of the same letter. He indicates that he wrote again to the Chief Prosecution Solicitor on 10^th October, 2002, formally requesting discovery of all documents set out and itemised in that letter and he refers to a copy of the letter of 10^th October, 2002.

An affidavit has been sworn by John Forde of the Chief Prosecution Solicitor's office. He refers to correspondence passing between the offices of the Attorney General and the Department of Justice, Equality and Law Reform and he exhibits a request from the Chief Prosecution Solicitor to the Department of Justice, Equality and Law Reform seeking review dates of the Offences against the State Act, 1939. A reply dated 31^st October, 2002, indicates that following the decision of the Supreme Court in Kavanagh v. Government of Ireland [1997] 1 I.L.R.M. 321 which indicated that the Government had a duty, once it had made a proclamation declaring the ordinary courts inadequate to secure the effective administration of justice, to keep the situation under review. The then Minister for Justice proposed to the Government that a procedure be introduced whereby the Government would decide on a regular basis on the continuing needs for the Special Criminal Court. It is indicated that on the14^th January, 1997, the Government decided to introduce such a procedure. On foot of that decision reviews took place in February, 1997, March, 1998 and April, 1999. Following each such a review the Government decided that there was a continuing need for the court and that it should remain in operation until such time as the Government or the Dáil decided otherwise. It is stated that the review procedure was then superseded by the work of the Committee to review the Offences against the State Acts, 1939 to 1998 which was established in May, 1999. The Committee issued an interim report on the Special Criminal Court in June, 2001 which was brought to the attention of the Government and subsequently published. On the central question of the continuance in being of the Special Criminal Court the majority of the Committee favoured continuance. The letter indicated that the Committee had subsequently submitted a final report and that the Minister was giving careful consideration to the recommendations in the report with a view to bringing proposals to Government in due course.

Submissions:

On behalf of the applicant it was submitted by Mr. Gerard Hogan, S.C., having referred to the background facts and the provisions of s. 52 of the Act of 1939 and to the decision of the Court of Criminal Appeal in The People v. McGowan [1979] I.R. 45, where the Court of Criminal Appeal suggested that information that was lawfully obtained pursuant to s. 52 (1) was admissible in evidence in a subsequent prosecution for a different offence, although it was conceded by counsel that in that case s. 52 had not in fact been invoked. Counsel refers this Court to the decision of the Supreme Court in Heaney v. Ireland [1996] 1 I.R. 580 where the Court addressed the constitutionality of s. 52 of the Act of 1939. The Court indicated that it did not constitute a disproportionate interference with the right to free speech. In the course of delivering the judgment of the Court O'Flaherty, J. stated, inter alia, at pp. 589 and 590 of the report:-

"On the one hand, constitutional rights must be construed in such a way as to give life and reality to what is being guaranteed. On the other hand, the interest of the State in maintaining public order must be respected and protected. We must, therefore, ask ourselves whether the restriction which s. 52 places on the right to silence is any greater than is necessary having regard to the disorder against which the State is attempting to protect the public.

As was said in Cox v. Ireland [1992] 2 I.R. 503 at p. 522:—

"The Court is satisfied that the State is entitled, for the protection of public peace and order, and for the maintenance and stability of its own authority, by its laws to provide onerous and far-reaching penalties and forfeitures imposed as a major deterrent to the commission of crimes threatening such peace and order and State authority, and is also entitled to ensure as far as practicable that amongst those involved in the carrying out of the functions of the State, there is not included persons who commit such crimes."

That case was concerned with penalties and forfeitures arising on conviction in the Special Criminal Court for an offence amenable to the legislation; we can adapt the language, however, to the situation here: the State is entitled to encroach on the right of the citizen to remain silent in pursuit of its entitlement to maintain public peace and order. Of course, in this pursuit the constitutional rights of the citizen must be affected as little as possible. As already stated, the innocent person has nothing to fear from giving an account of his or her movements, even though on grounds of principle, or in the assertion of constitutional rights, such a person may wish to take a stand. However, the Court holds that the prima facie entitlement of citizens to take such a stand must yield to the right of the State to protect itself. A fortiori, the entitlement of those with something relevant to disclose concerning the commission of a crime to remain mute must be regarded as of a lesser order.

The Court concludes that there is a proper proportionality in the provision between any infringement of the citizen's rights with the entitlement of the State to protect itself."

Counsel refers to the fact that in that case the Court reserved the question of whether The People v. McGowan [1979] I.R 45 had been correctly decided but it proceeded to uphold the constitutionality of the subsection without deciding the most critical antecedent question bearing on the constitutional question, namely, whether statements obtained pursuant to s. 52 (1) were generally admissible in evidence.

Counsel further refers to the decision of Rock v. Ireland [1997] 3 I.R. 484 where the Supreme Court applied its earlier decision in Heaney v. Ireland [1996] 1 I.R. 580. Counsel referred to the fact that a few months after the decision in Heaney v. Ireland, the European Court of Human Rights expressed different sentiments and emphasised the importance of the right to silence in its decision in Saunders v. United Kingdom (1997) 23 EHRR 313, where it is held that the admission of evidence obtained pursuant to a statutory demand (in this case demands made by a company's inspector pursuant to the United Kingdom Companies Acts) in a subsequent criminal trial constituted a breach of Article 6 (1) of the European Convention of Human Rights. While the Court held at p. 337 that the application of the guarantees of Articles 6 (1) to investigations of this kind would "unduly hamper the effective regulation in the public interest of complex financial and commercial activities", the issue as to whether such answers were admissible in evidence in a subsequent criminal prosecution was quite a separate matter. The Court held that the use of such statutory compelled answers constituted a denial of its rights under Article 6 (1) of the European Convention. The Court stated, inter alia, as follows a p.340:-

"The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings.…Moreover the fact that statements were made by the applicant prior to his being charged does not prevent their later use in criminal proceedings from constituting an infringement of the right."

Counsel further refers to the decision of the European Court of Human Rights in Murray v. United Kingdom (1996) 22 EHRR 29 where a few months before the Saunders decision the Court indicated that the drawing of inferences from an accused's silence during the pre-trial detention constituted a breach of Article 6 (1) (the right to a fair trial) read in conjunction with Article 6 (3) (c) (the right to a lawyer). In that case, the applicant had been cautioned under the Criminal Evidence (Northern Ireland) Order 1998 where he was informed that adverse inferences could be drawn at his trial if he elected to remain silent and not to answer police questions. He was also denied access to legal advice for the first forty eight hours of his detention. In finding the accused guilty of the offences in question (aiding and abetting false imprisonment), the trial judge made it clear that he had drawn adverse inferences from the accused's failure to answer police questions and from the fact that the accused had not given evidence at his trial.

The Court first explained the rationale behind the right to silence at p. 60:-

"Although not specifically mentioned in Article 6 of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aim of Article 6".

The Court continued by saying as follows:-

"On the one hand, it is self-evident that it is incompatible with the immunities under consideration to base a conviction solely or mainly on the accused's silence or on a refusal to answer questions or to give evidence himself. On the other hand, the Court deems it equally obvious that these immunities cannot and should not prevent that the accused's silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.

Wherever the line between these two extremes is to be drawn, it follows from this understanding of the "right to silence" that the question whether the right is absolute must be answered in the negative."

In that case the Court concluded that the drawing of the adverse inferences by the trial judge was not in itself a breach of Articles 6 (1) and 6 (2) since appropriate warnings were given as to the effect of remaining silent; that there was no evidence that the accused had failed to understand the importance of such warnings and the inferences could only be drawn where a prima facie case had been established against the accused. Nor were the inferences unfairly or unreasonably drawn. The Court stated as follows a p. 63:-

"In the Court's view having regard to the weight of the evidence against the applicant … the drawing of inferences from his refusal, at arrest, during police questioning and at trial, to provide an explanation for his presence in the house was a matter of common sense and cannot be regarded as unfair or unreasonable in the circumstances.… [T]he courts in a considerable number of countries where evidence is freely assessed may have regard to all relevant circumstances, including the manner in which the accused has behaved or has conducted his defence, when evaluating the evidence in the case. It considers that, what distinguishes the drawing of inferences under the Order is that, in addition to the existence of specific safeguards mentioned above, it constitutes, as described by the Commission, 'a formalised system which aims at allowing common sense implications to play an open role in the assessment of evidence." Nor can it be said, against this background, that the drawing of reasonable inferences from the applicant's behaviour had the effect of shifting the burden of proof from the prosecution to the defence so as to infringe the principle of the presumption of innocence".

However the Court continued by saying that the drawing of adverse inferences in circumstances where the accused had been denied access to a lawyer did violate the accused's right under Article 6.

With regard to the decision of the European Court of Human Rights in Quinn v. Ireland (21^st December, 2000), counsel points out that it was noted at para. 51 that in the Heaney and McGuinness case the High Court considered that "such protections minimised the risk of an accused wrongfully confessing to a crime and safeguarded against the possible abuse of the powers provided by s. 52 of the 1939 Act." However, the European Court of Human Rights did not accept this analysis and stated as follows:-

"Important as they are, the Court is, however, of the view that such protections could only be relevant to the present complaints if they could effectively and sufficiently reduce the degree of compulsion imposed by s. 52 of the 1939 Act to the extent that the essence of the rights at issue would not be impaired by that domestic provision. However, it is considered that the protections referred to by the Government could not have had this effect. The application of s. 52 of the 1939 Act in an entirely lawful manner and in circumstances which conformed with all of the safeguards referred to above, could not alter the choice presented by s. 52 of the 1939 Act: either the information requested was provided by the applicant or he faced potentially six months' imprisonment."

Counsel refers to the fact that the Court in that case also laid considerable emphasis on the fact that at the date the applicant had been questioned under s. 52, July, 1996, the legal position regarding the admissibility of any statements made by an arrested person in a subsequent criminal prosecution was unclear and this was only clarified by the subsequent Supreme Court judgment in Re National Irish Bank Ltd (No. 1) [1999] 3 IR 145.

The court observed as follows at para.55:-

"Given this uncertainty, the position in July 1996 as regards the later admission into evidence of section 52 statements could not have, in the Court's view, contributed to restoring the essence of the present applicant's rights to silence and against self-incrimination guaranteed by Article 6 of the Convention.

The Court is not, therefore, called upon in the present case to consider the impact on the rights to silence or against self-incrimination of the direct or indirect use made in later proceedings against an accused of statements made pursuant to section 52 of the 1939 Act.

Accordingly, the Court finds that the "degree of compulsion", imposed on the applicant by the application of section 52 of the 1939 Act with a view to compelling him to provide information relating to charges against him under the Act, in effect, destroyed the very essence of his privilege against self-incrimination and his right to remain silent."

Counsel adopts the words used by Rose L. J. in R. v. Saunders (The Times Law Report, 1^st February, 2002) where he stated "the European Court's decisions in relation to the instant case were tantamount to a declaration in that court that (the Oireachtas's enactment of s. 52) was unlawful."

Counsel refers to the fact that in Re National Irish Bank Ltd, (No. 1) [1999] 3 IR 145 the Supreme Court confirmed that evidence obtained pursuant to a statutory demand could not constitutionally be admitted in a subsequent criminal trial. This case concerned s. 18 of the Companies Act, 1990 which provided that statements made by any officer or agent of a company to inspectors appointed by the High Court "may be used in evidence against him." The issue thus arose as to whether any statements made by such persons were admissible in any subsequent criminal prosecution. The Supreme Court held that the use of compelled answers in a criminal prosecution violated Article 38.1 of the Constitution. Barrington J. at p. 188 stated:-

"It is proper therefore to make it clear that what is objectionable under Article 38 of the Constitution is compelling a person to confess and then convicting him on the basis of his compelled confession."

In that case the Supreme Court concluded that it was possible to read s.18 in a constitutional fashion by confining the admissibility of such statements to civil proceedings only. It followed that persons appearing before inspectors could answer such questions as were posed by them pursuant to these statutory powers in the knowledge that any such answers were inadmissible in evidence.

Counsel refers to the decision of the Supreme Court in The People (The Director of Public Prosecutions) v. Finnerty [1999] 4 I.R. 364 where Keane, J. indicated that the right to remain silent is a constitutional right and the provisions of the Criminal Justice Act, 1984 must be construed accordingly. He stated at p. 380:-

"Absent any express statutory provisions entitling a court or jury to draw inferences from such silence, the conclusion follows inevitably that the right is left unaffected by the Act of 1984, save in cases coming within ss. 18 and 19, and must be upheld by the courts."

Counsel indicates that what is at issue is the precedent in the decision in Heaney v. Ireland [1996] 1 I.R. 580 which, it is submitted, has now been overtaken by the decision of the Supreme Court in Re National Irish Bank Ltd. (No. 1) [1999] 3 IR 145 namely, the issue as to whether the statements taken pursuant to a statutory demand are admissible in evidence. It is submitted by counsel that because that issue was not decided by the Supreme Court in Heaney, the proportionality assessment conducted by the Court in that case is flawed. It is submitted that from Re National Irish Bank the use of such statements in a subsequent prosecution would be unconstitutional yet in Heaney v. Ireland the Court was simply prepared to reserve the question of whether such evidence was admissible and did not disapprove of the dicta to this effect in The People v. McGowan [1979] I.R. 45.

It is submitted effectively that the Court upheld the constitutionality of s. 52 in circumstances where the admission of such statements was not excluded. It is submitted by counsel that this conclusion is manifestly incompatible with the subsequent reasoning in Re National Irish Bank (no. 1) [1999] 3 IR 145. Counsel submits that if this is so then the entire basis for the reasoning in Heaney v. Ireland [1996] 1 I.R. 580 has been entirely undermined so that it can no longer be regarded as a binding precedent.

On this basis it is submitted by counsel that this Court is not bound by the decision in Heaney v. Ireland [1996] 1 I.R. 580. It is submitted that if this is correct the Court should reconsider the matter and conclude, as did the European Court of Human Rights, that as s. 52 strikes at the very heart of the right to silence as guaranteed by Article 38.1 of the Constitution, it is therefore unconstitutional.

It is further submitted that in any event this Court should hold that the applicant's rights as protected by Article 38.1 were violated by the District Court convictions. Whatever the finer points of the status of The People v. McGowan [1979] I.R. 45 are any competent lawyer would have advised the applicant in June, 1996 at the time of his detention that his answers to s. 52 demands were admissible in evidence against him in any subsequent prosecution. Accordingly, it is submitted that the applicant was then confronted with an impossible dilemma of either staying silent (and receiving a prison sentence) or incriminating himself. It submitted that this is at the heart of the unconstitutional state of affairs which the Supreme Court did not address in Heaney v. Ireland [1996] 1 I.R. 580 but which was identified in Re National Irish Bank (no.1) [1999] 3 IR 145. On this basis it is submitted that the applicant's conviction plainly violated Article 38.1 of the Constitution and cannot survive on this ground either.

In the course of the presentation of his arguments to this Court counsel on behalf of the applicant referred to the decision in The People v. McGowan [1979] I.R. 45 and submitted that the observations of the Court of Criminal Appeal in that case in relation to the use of any admissions made were obiter. However, counsel submits that since at that time, this was historically understood to be the law, in other words that anything said under compulsion of s. 52 would be admissible in evidence against an accused person. Counsel next referred this Court to the decision in Heaney v. Ireland [1996] 1 I.R. 580 in which the Supreme Court upheld as constitutional the provisions of s. 52 of the Act of 1939. While counsel has criticised that decision before this Court on the basis that it fails to take account of the fact that a statement made under s. 52 might be used in evidence against the person making the statement, counsel does refer to that portion of the judgment of the Court delivered by O'Flaherty J. at p. 587 in which it was indicated that the Supreme Court expressly reserved its position as to whether the Court of Criminal Appeal was correct or not in suggesting that information which was lawfully obtained pursuant to s. 52 may be used in evidence. Counsel questions how the Supreme Court could have decided the constitutionality of s. 52 of the Act of 1939 without deciding on the issue of admissibility itself. Counsel stresses that the Court did not decide that issue in Heaney v. Ireland and questions how one could determine the constitutionality of the section without determining what the effect of the decision was. Counsel submits that the conviction of the applicant in the instant case amounts to a denial of his constitutional right, of silence insofar as it concerns the freedom from self-incrimination.

Counsel refers this Court to the decision of the Supreme Court in Re National Irish Bank Limited (No. 1) [1999] 3 IR 145. This case concerned s. 18 of the Companies Act, 1990. The Supreme Court in that case held that the right to silence was not absolute but could in certain circumstances give way to the exigencies of the common good, provided that the means used to curtail the right were proportionate to the public object to be achieved. In this regard the Court considered the decision in Heaney v. Ireland [1996] 1 I.R. 580. The Court held that the interviewees were not entitled to refuse to answer questions properly posed to them by the inspectors. The Court indicated that what was objectionable under Article 38 of the Constitution was compelling a person to confess and then convicting that person on the basis of his compelled confession. The Court further held that any confession of an official of the company under investigation obtained by the inspectors would not in general be admissible at a subsequent criminal trial of such an official unless the trial judge was satisfied that the confession was voluntary. Counsel referred this Court to the decision of Shanley J. in the High Court in that case. At p. 167 he indicated that the decision in Heaney v. Ireland was one where the Supreme Court declined to consider the moot point of whether the information lawfully obtained pursuant to s. 52 could be used in evidence. He indicated that the position was no different in the case before him:

"[W]hether or not there is a constitutional right not to have compelled testimony, or its fruits, used against an accused is an issue which I do not now have to decide because it has not as yet arisen. That is a matter which falls to be decided on the occasion when such evidence is tendered. Accordingly, I do not have to consider the implications of the wording of s. 18 of the Act of 1990."

Counsel referred extensively to the judgment of Barrington J. in this case. In the first instance he referred to the decision in The State (McCarthy) v. Lennon & Others [1936] I.R. 485 and placed it in the context of the Constitution of the Irish Free State at that time. Barrington, J. at p. 177 indicated that the right to silence had its origins in the common law but was elevated into a constitutional principle by the Fifth Amendment to the American Constitution. He indicated that:-

"The right to silence or privilege against self-incrimination was a judge made law and could be abridged or abolished at any time by sovereign parliament. The most the judges could do was to insist that, if parliament wished to abolish such a cherished doctrine of the common law it should state its intention clearly."

He indicates that this was the dilemma which faced the Irish judges in The State (McCarthy) v. Lennon and Others [1936] I.R. 485.

Moving from that Barrington J. referred to the provisions of Bunreacht na hÉireann and in particular Articles 40.6.1 and 40.3.1 and 40.3.2 together with Article 38. Barrington J. referred to the decision of the Supreme Court in Heaney v. Ireland [1996] 1 I.R. 580. He also referred to the decision of the European Court of Human Rights in Saunders v. United Kingdom (1997) 23 EHRR 313.

At p. 180 Barrington J. addressed the provisions of Article 38.1 of the Constitution and stated as follows:-

"Article 38.1 deals with a different matter. That Article, as reinforced by Article 40.3, deals with the conduct of a criminal trial and provides that no person is to be tried on any criminal charge 'save in due course of law.' The phrases 'due course of law' and 'due process of law' like the phrase 'equality before the law' embody dynamic constitutional concepts into which lawyers have obtained deeper insights as society has evolved. But it is doubtful if the principle of proportionality - so important in other branches of constitutional law - can have any useful application here. A criminal trial is conducted 'in due course of law' or 'with due process of law' or it is not. The question then arises would a trial, at which a confession obtained from the accused under penal sanction imposed by statute, was admitted in evidence against the accused, be a trial in due course of law?"

He continued as follows:-

"Should the Court attempt to give guidance at this stage.

A preliminary difficulty arises in attempting to answer this question. The difficulty is that the conduct of a criminal trial in due course of law is primarily a matter for the trial judge. The question of whether a statement is or is not a voluntary statement depends upon the circumstances in which it was made. The fact that inspectors are armed with statutory powers or may even have invoked them does not necessarily mean that a statement made in reply to their questions is not voluntary. This consideration appears to have influenced the learned trial judge and to have caused him to decline to give any further guidance than is contained in his judgment.

Nevertheless a practical problem has arisen in the course of the inspectors' inquiries. The inspectors and the solicitors advising the bank officials disagree as to the correct interpretation of the inspectors' powers and as to the implications for the bank officials of answering the inspectors' questions. In these circumstances the inspectors have applied to the High Court (Kelly J.) for guidance. Kelly J. took the view that the inspectors' application was a proper one and decided to settle the present issue as the most practicable way of resolving the problems which had arisen between the inspectors and the solicitors for the bank officials. Under these circumstances this Court - while in no way attempting to pre-judge or anticipate the actual decision of any trial judge who may, hereafter, have to conduct a criminal trial arising out of any matter disclosed by the inspectors investigations, should, in my opinion give further guidance."

At p. 186 of the report Barrington J. stated his conclusions as follows:

"From the above discussion I draw the following conclusion. The decision in The State (McCarthy) v. Lennon and Others [1936] I.R. 485 is not a safe guide for any person seeking to establish the rights of the citizen under the Irish Constitution. That decision was based on an interpretation of a provision deriving from article 2A of the Constitution of the Irish Free State which article was designed to bypass all the constitutional guarantees contained elsewhere in that Constitution. The fact therefore that s. 52 of the Offences against the State Act, 1939, may be almost identical in wording with s. 15 of Part III of the schedule to article 2A of the Constitution of the Irish Free State is of little relevance. The important distinction is that s. 15 was intended to be above constitutional challenge while s. 52 is subject to the Constitution. It appears to me that the better opinion is that a trial in due course of law requires that any confession admitted against an accused person in a criminal trial should be a voluntary confession and that any trial at which an alleged confession other than a voluntary confession were admitted in evidence against the accused person would not be a trial in due course of law within the meaning of Article 38 of the Constitution and that it is immaterial whether the compulsion or inducement used to extract the confession came from the executive or from the legislature."

Dealing with s. 18 of the Companies Act, 1990 he stated, inter alia, as follows at p. 187:-

"he relevant provisions of s. 18 of the Companies Act, 1990, may be abbreviated to read as follows:-

'. An answer given by a person to a question put to him in exercise of powers conferred by- (a) section 10 ... may be used in evidence against him ...'

'There is no doubt that the quoted provision covers civil cases but it is necessary to address the problem of whether the quoted provision is broad enough to cover the admission of involuntary confessions in criminal cases. One could argue that if it was intended to remove the common law privilege against self-incrimination the statute should have said so. On the other hand it can be argued that the statute expressly preserves legal professional privilege (see s.23) but does not mention the common law privilege against self-incrimination. It is therefore possible to argue that had it been intended to preserve the common law privilege against self-incrimination the statute would have said so.

However this line of reasoning becomes irrelevant once one is satisfied that Article 38 of the Constitution confers on accused persons a right not to have involuntary confessions accepted in evidence at a criminal trial and that this right is reinforced by the general provisions of Article 40.3 of the Constitution. The Companies Act, 1990, is a post-constitutional statute and must therefore be presumed to be constitutional. This means that in interpreting the Act the constitutional interpretation must be favoured."

He concluded under this portion of the judgment by stating as follows:-

"Accordingly the better interpretation of s. 18 in the light of the Constitution is that it does not authorise the admission of forced or involuntary confessions against an accused person in a criminal trial, and it can be stated, as a general principle, that a confession, to be admissible at a criminal trial must be voluntary. Whether however a confession is voluntary or not must in every case in which the matter is disputed be a question to be decided, in the first instance, by the trial judge."

Counsel submits that what is of importance in the decision of Barrington J. in the context of this action is what may be stated to be the obiter observations under the heading of 'The Fruits' at p. 188 where the learned judge stated as follows:-

"The judgment in this case follows the decision in Heaney v. Ireland [1996] 1 I.R. 580, insofar as that case decided that there may be circumstances in which the right of the citizen to remain silent may have to yield to the right of the State authorities to obtain information. It is not inconsistent with the decision Rock v. Ireland [1997] 3 I.R. 484, that there may be circumstances in which a court is entitled to draw fair inferences from the accused having remained silent when he could have spoken. It follows The People (Attorney General) v. Cummins [1972] I.R. 312, insofar as that case decided that for a confession to be admissible in a criminal trial it must be voluntary.

In the course of submissions the question arose of what would be the position of evidence discovered by the inspectors as a result of information uncovered by them following the exercise by them of their powers under s. 10. It is proper therefore to make clear that what is objectionable under Article 38 of the Constitution is compelling a person to confess and then convicting him on the basis of his compelled confession. The courts have always accepted that evidence obtained on foot of a legal search warrant is admissible. So also is objective evidence obtained by legal compulsion under, for example, the drink driving laws. The inspectors have the power to demand answers under section 10. These answers are in no way tainted and further information which the inspectors may discover as a result of these answers is not tainted either. The case of The People (Attorney General) v. O'Brien [1965] I.R. 142, which deals with evidence obtained in breach of the accused's constitutional rights has no bearing on the present case. In the final analysis however, it will be for the trial judge to decide whether, in all the circumstances of the case, it would be just or fair to admit any particular piece of evidence, including any evidence obtained as a result or in consequence of the compelled confession.

In these circumstances I would uphold the decision of the learned trial judge but would add the statement that a confession of a bank official obtained by the inspectors as a result of the exercise by them of their powers under s. 10 of the Companies Act, 1990, would not, in general, be admissible at a subsequent criminal trial of such official unless, in any particular case, the trial judge was satisfied that the confession was voluntary."

Counsel refers to the fact that the decision in the prosecution against the applicant whereby he was convicted by order of the court took place in June, 1996 which pre-dated the decision of the Supreme Court in the Heaney v. Ireland [1996] 1 I.R. 580, case of 23^rd July, 1996.

Counsel describes the decision in Heaney v. Ireland [1996] 1 I.R. 580, as putting the cart before the horse but indicates that in the case of Re National Irish Bank Ltd (No. 1) [1999] 3 IR 145 the Court addressed the question in relation to "the fruits".

Counsel referred this Court to the decision of the European Court of the Human Rights in the case of Quinn v. Ireland in which judgment was given by the European Court of Human Rights on 21^st December, 2001. Counsel refers to para. 40 of the judgment dealing with the right to silence and the right not to incriminate oneself in which the court stated as follows:-

"The Court recalls its established case-law to the effect that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.

Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right in question is closely linked to the presumption of innocence contained in Article 6.2 of the Convention (the above-cited Saunders judgment, 68).

The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. The Court would note, in this context, that the present case does not concern a request, through the use of compulsory powers, of material which had an existence independent of the will of the applicants such as, documents or blood samples (also the above-cited Saunders judgment, 69)."

In the course of its judgment the Court referred to its earlier judgment in the case Murray v. United Kingdom (1996) 22 EHRR 29 which related to the drawing of adverse inferences from silence on the part of the accused.

At para. 53 of its judgment the Court indicated that it considered that the legal position as regards the admission into evidence of s. 52 statements was particularly uncertain in July, 1996, when the applicant was questioned. It noted that the text of s. 52 of the Act of 1939 is silent on this point. It continued as follows:-

"Nor did the Government exclude the possibility that, prior to July 1996, statements made pursuant to section 52 had, in fact, been admitted in evidence against accused persons. The Government's position was rather that, in any event, the situation had been clarified for the future by the January 1999 judgment in the National Irish Bank Ltd case. This uncertainty about the domestic legal position in July 1996 is underlined by the comments of the Supreme Court in the Heaney and McGuinness case on the Court of Criminal Appeal judgment in the earlier McGowan case, the Supreme Court delivering its judgment in the Heaney and McGuinness case only days after the present applicant was released from custody in July 1996 (see paragraphs 25-27 above).

In any event, the applicant was provided with conflicting information in this respect by the questioning police officers on numerous occasions on 19-21 October 1996. At the beginning of each interview, the applicant was informed that he had the right to remain silent. Nevertheless, when the section 52 requests were then made during those interviews, he was effectively informed that, if he did not account for his movements at particular times, he risked six months' imprisonment. The only reference during those interviews to the possible use of statements made by the applicant in any later proceedings was to inform him that anything he did say would be written down and might be used against him. The fact that the applicant was also informed only on certain occasions that the earlier caution ceased to apply once a section 52 request had been made, could not have clarified matters. Moreover, the Court observes, from the police notes of the interviews, that it would have been difficult to discern during those interviews to which questions precisely the section 52 requests related."

At para. 55 of the judgment the Court stated as follows:-

"Given this uncertainty, the position in July 1996 as regards the later admission into evidence of section 52 statements could not have, in the Court's view, contributed to restoring the essence of the present applicant's rights to silence and against self-incrimination guaranteed by Article 6 of the Convention. The Court is not, therefore, called upon in the present case to consider the impact on the rights to silence or against self-incrimination of the direct or indirect use made in later proceedings against an accused of statements made pursuant to section 52 of the 1939 Act."

At para. 58 of the judgment the court referred to its earlier judgment in Saunders v. United Kingdom (1997) 23 EHRR 313 case where it concluded that the public interest could not be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial of proceedings. At para. 59 of the judgment the Court indicated:

"The Court, accordingly, finds that the security and public order concerns of the Government cannot justify a provision which extinguishes the very essence of the applicant's rights to silence and against self incrimination guaranteed by Article 6.1 of the Convention."

On this basis it reached the conclusion of a violation of Article 6 (1) of the Convention and proceeded to indicate that given the close link in this context between those rights guaranteed by Article 6 (1) and the presumption of innocence guaranteed by Article 6 (2) of the Convention, there had been violation of the latter provision. While the applicant also complained of the violation of Article 10 of the Convention dealing with the freedom of expression, at para. 63 of the judgment the court concluded as follows:-

"The Court considers that the essential issue raised by the applicant was the compulsion imposed by section 52 of the 1939 Act to respond to the questions of police officers investigating the commission of serious criminal offences, a matter considered above by the Court under Article 6 of the Convention. It does not consider therefore that the applicant's complaints under Article 10 of the Convention give rise to any separate issue."

Counsel asks this Court to conclude that the applicant had not been afforded a trial in due course of law having regard to the matters addressed by the Court of Human Rights on the application of the applicant.

Counsel submits that a major issue for this Court to determine is the direct incompatibility between the decisions In re National Irish Bank Ltd (No. 1) [1999] 3 IR 145 and Heaney v. Ireland [1996] I.R. 580. It is submitted by counsel that the decision in National Irish Bank undermines the authority of Heaney and if this is accepted it suggests that the applicant was denied a trial in due course of law.

With regard to the final aspect of the applicant's case whereby it is submitted that the orders of the Circuit Court are bad on their face and uncertain insofar as they purport to affirm "the orders of the District Court", notwithstanding that the applicant sought to appeal against the single order whereby he was convicted and sentenced, counsel submits that an inference must be drawn that the Circuit Court Judge was under misapprehension as to the nature of the District Court order. Counsel refers to the provisions of R.197 of the District Court Rules and submits that the Circuit Court judge should have a correct certified copy order before him.

Counsel submits that the applicant is entitled to the relief ex debito justitiae having regard to the decision in the case of The State (Vozza) v. Ó Floinn [1957] I.R. 227.

Counsel submits that this Court should take into account the decision of the European Court of Human Rights having regard to the terms of Article 29.3 of the Constitution.

On behalf of the Director of Public Prosecutions it is submitted by Mr. Maurice Gaffney S.C. as follows:-

In the first instance with regard to the facts counsel refers to the fact that refusal to comply with a requirement to account for one's movements under s. 52 constitutes a offence. Counsel refers to the fact that at no time was it indicated by the applicant that he considered that he was liable to incriminate himself if he answered a request under s. 52. On the other hand counsel concedes that it must have been an assumption of the Court of Human Rights that the applicant acted in circumstances where he considered himself liable to incriminate himself if he answered the questions under s.52. Counsel submits that this is a critical matter in the case. Counsel addresses the subject matter of the claim in Heaney v. Ireland [1996] 1 I.R. 580. Counsel submits that this court is bound by the decision of the Supreme Court in that case. In reference to the case of Quinn v. Ireland and the decision of the European Court of Human Rights of the 21^st December, 2000, counsel submits that the findings were based on the fact that the applicant has been convicted of an offence created by s. 52 of the Act of 1939 and the European Court's analysis of the compatibility of this section and the manner in which it was implemented in the instant case with the provisions of the Article 6 of the Convention is the matter upon which the decision was based. Counsel submits that pursuant to Article 29.6 of the Constitution no international agreement is part of the domestic law of the State save as may be determined by the Oireachtas and accordingly, the European Convention of Human Rights does not form part of the domestic law of the state for the purposes of this application. In this regard counsel refers to In re O Laighléis [1960] I.R. 93. On this basis it is submitted that the applicant cannot ask this Court to give priority to the Convention over domestic law or over the Constitution itself.

It is submitted that this application bears some similarity to that in Kavanagh v. Governor of Mountjoy Prison [2002] 3 IR 97 where the Supreme Court held that the terms of the international covenant on Civil and Political Rights which has been ratified. In the course of its judgment the Supreme Court stated as follows a p.126:-

"The obligation of Ireland to respect the invoked principles is expressed only in the sense that it is to be 'its rule of conduct in its relations with other States'. It is patent that this provision confers no rights on individuals. No single word in the section even arguably expresses an intention to confer rights capable of being invoked by individuals."

Counsel does however, bring to the courts attention the fact that a decision of the European Court of Human Rights is binding to the extent that each high contracting party undertakes to abide by the decisions of the court in any case to which it is a party. It submitted that the obligation to give effect to a judgment of the European Court of Human Rights rests with the State itself and not with the courts of that State. On this basis is submitted that the applicant must be refused the relief sought herein.

Counsel stressed the fact that the applicant in the instant case was charged with the failure to comply with the demand made of him under s. 52 of the Act of 1939. Counsel refers to the fact that he was tried for an offence contrary to s. 52 and found guilty. It is submitted that no fact was established by the applicant to show that the trial in question was other than in due course of law. It is submitted that the applicant's complaint is related to the fact that he was tried because of a theoretical possibility that he might have said something incriminating had he answered the requirement made of him. Counsel refers to the fact that the decision of the European Court of Human Rights rested upon an assumption that anything stated by the accused would have resulted in the same being admissible in evidence.

Counsel refers to the delay on the part of the applicant in moving to this Court for the relief which he seeks. Counsel submits that it is remarkable that there is no suggestion that the delay in question is excusable or should be excused. Counsel submits that there has been serious delay on the part of the applicant in the instant case and this seriously effects the application. Counsel refers to the fact that the application for leave in the instant case was made in May, 2001. This related to two orders of the courts made four years previously. It is submitted that the appropriate time has long since passed and it is clear that there is gross delay on the part of the applicant which has not sought to be excused. Counsel refers to the fact that the application made by the applicant to the European Court of Human Rights was made in March, 1997. It is submitted that there was no reason why the applicant should have left matters there and had he applied to the High Court at that stage he might have obtained the relief which he seeks. It submitted that no facts emerged after March, 1997 which would in anyway have prevented the applicant from moving at an earlier point in time. Counsel further refers to the fact that the applicant has in fact served a sentence of six months and if he was aggrieved, he could have applied at an earlier stage but by choice he did not do so. Counsel refers to the fact that this is a matter that should be addressed by this Court in the context of the discretionary nature of the relief which is sought.

Counsel refers to O. 84, r.21 of the Rules insofar as the obligation upon an applicant seeking leave to apply for a judicial review is to move promptly. Counsel submits that the proceedings in the instant case were not brought promptly and should have been brought in any event at the very latest by 15^th December, 1997.

Counsel submits that the applicant is obliged to demonstrate good reason why the time within which the application should have been made should be extended by this Court. In this regard counsel refers to the decision of Costello J. in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 and further De Róiste v. Minister for Defence [2001] 1 IR 190. Counsel submits that on these authorities the obligation is on the applicant to show good reason why the time should be extended.

Counsel further refers to Solan v. Director of Public Prosecutions [1989] I.L.R.M. 491 where Barr J. indicated at p. 493 that "[i]n the absence of evidence explaining delay, there is no basis on which the court can exercise its discretion to grant an extension of time for making the applications ." In Flynn v. Mid-Western Health Board [1991] 2 I.R. 223 the Supreme Court refused to grant a judicial review quashing a decision made eight months earlier in circumstances where no explanation was offered for the delay.

Counsel submits that it is noteworthy in this case that despite the fact that at para. 1 of the respondent's statement of grounds of opposition the issue of delay on the part of the applicant is specifically raised, no explanation whatsoever has been provided for the applicant's delay. On this basis it is submitted that the applicant self-evidently cannot either "explain the delay or afford a justifiable excuse for the delay". On this basis it is submitted that this Court should adopt the same approach as that adopted by the Supreme Court in Flynn v. Mid-Western Health Board [1991] 2 I.R. 223 and should refuse to grant a judicial review simply on the grounds that the application has not been made promptly and no explanation whatsoever has been provided to explain and justify the delay.

Counsel submits that insofar as the applicant may seek to argue that his proceedings are based on the judgment of the European Court of Human Rights and that the proceedings were brought promptly within the meaning of O. 84, r.21 after that judgment became final, it is submitted that such an argument is analogous to the applicant claiming that his cause of action was conferred by the decision of the European Court of Human Rights and that time must start running afresh from the date of this decision. A similar argument was unsuccessfully made by the plaintiff in Murphy v. Ireland [1996] 3 I.R. 307, in that case the plaintiff was a county engineer with a local authority. He was convicted by the Special Criminal Court of a scheduled offence under the Offences against the State Act, 1939. Following his conviction he was required to forfeit his post with the local authority pursuant to s. 4 of the Act of 1939. Years later he claimed damages for breach of his right to earn a livelihood and his right to fairness and fair procedures. Two years earlier the Supreme Court held in Cox v. Ireland [1992] 2 I.R. 503 that s.34 of the Act of 1939, which was the basis of the forfeiture of the plaintiff's post, was unconstitutional. One of the issues which arose was whether or not the Statute of Limitations, 1957, which provided for a six year limitation period for actions in tort could be relied upon against the plaintiff. In that case the High Court held that the plaintiff's claim was statute barred as it had not be brought within the relevant limitation period of six years provided for by the Statute of Limitations.

Dealing with the substance of the applicant's claim counsel refers to the fact that as indicated in the evidence of Mr. Michael Murray at no stage did the applicant make any submission to the District Court or the Circuit Court on appeal therefrom based upon the provisions of the European Convention of Human Rights. It is submitted that in view of the status of the Convention in Irish Law, the argument raised by the applicant at ground (e) 3 cannot succeed. Counsel refers to the fact that Ireland has fully abided by judgment of the European Court of Human Rights insofar as it paid to the applicant damages awarded by that Court. It is submitted that in reality the argument made by the applicant is to seek to confer upon the Convention a domestic status which international law acknowledges it may not have. Counsel refers to the dualist approach adopted by Ireland in relation to international law and in the absence at the relevant time of a law adopting the European Convention of Human Rights as part of the domestic law cannot be relied upon by the applicant and forming part of the domestic law of the State. In particular counsel relies upon the decision of the Supreme Court in Kavanagh v. The Governor of Mountjoy Prison [2002] 3 IR 97 in support of this submission.

Dealing with the aspect of domestic law it is submitted that having regard to the decision of the Supreme Court in Heaney v. Ireland [1996] 1 I.R. 580 there is no basis for the applicant's submission to the effect that the operation of s. 52 of the Act of 1939 is arbitrary or irrational. Finally while the applicant claims that the Government has failed to reconsider the need for the continued application of the order made pursuant to s. 35 of the Act of 1939, it is submitted that no evidence has been adduced by the applicant in this regard. Counsel refers to the fact that in the judgment of the European Court of Human Rights it is recorded that the Government submitted that the maintenance of the proclamation made pursuant to s. 35 continues to be necessary. Counsel refers to the fact that the submission pointed out that this necessity had been constantly reviewed, most recently in March, 1998, when it was decided to maintain the proclamation in force, the Government noting in this context that the single worst atrocity of the entire period of the proclamation was in Omagh in August, 1998. Counsel submits that assuming that there was evidence that the Government had not reviewed the application of the order made pursuant to s. 35 of the Act of 1939 that it is not within the remit of this Court to require the executive branch to conduct a review. It is submitted that this would constitute an impermissible encroachment into the executive sphere.

Counsel refers to the fact that the applicant had an adequate alternative remedy in the appeal to the Circuit Court. It is submitted that not having appealed on the grounds now relied upon that the applicant is estopped from raising these new grounds at this stage. It is further submitted that the respondents do not accept the applicant's characterisation of the state of the law at the time the s. 52 requests were made of the applicant. Insofar as the applicant seeks to place reliance on The People v. McGowan [1979] I.R. 45, it is submitted that the applicant is relying solely on obiter dicta since no s. 52 requests were in fact made in that particular case.

It is further submitted that the applicant has no locus standi to challenge s. 52 on the basis that the law as it stood in 1997, arguably entitled statements made pursuant to s. 52 to be adduced in evidence against the applicant during the course of subsequent criminal proceedings brought against the applicant. As no such proceedings were in fact brought, the applicant cannot satisfy the test prescribed by the Supreme Court in Cahill v. Sutton [1980] I.R. 269.

Dealing with the forms of the order drawn up and the assertion that two orders of the District Court imposing conviction were erroneously drawn up to show that the applicant was convicted for different offences, reliance is placed upon the affidavit sworn by Eileen Tracey to the effect that this is an erroneous assumption.

In conclusion it is submitted on behalf of these respondents that the applicant is not entitled to the relief sought having regard to his delay. Insofar as the judgment of the European Court of Human Rights is contended to be the reason for and justification for the delay, it is submitted that the applicant is only entitled to proceed in relation to the Convention grounds. It is submitted further that the applicant is not entitled to rely on the Convention either to challenge s. 52 of the Act of 1939 or his conviction. Counsel in this regard relies upon the judgment of the Supreme Court in Heaney v. Ireland [1996] 1 I.R. 580 in which the constitutionality of s. 52 of the Act of 1939 was upheld. It is submitted that the applicant has no locus standi to challenge s. 52 of the Act of 1939 on the basis of a hypothetical case.

It is submitted that the applicant has disentitled himself to the relief sought either on the Convention grounds or on the non-Convention grounds on the basis that he availed of an appeal against the orders made in the District Court and did not during the course of that appeal make any of the arguments or any submission as to the incompatibility of s. 52 with the Constitution or the Convention at that stage. It is further submitted that the District Court order was correctly drawn up.

On behalf of the Director of Public Prosecutions it is submitted by Shane Murphy, S.C., that this Court is in the first instance bound the decision of the Supreme Court in Heaney v. Ireland [1996] 1 I.R. 580. It is submitted that a decision of the European Court of Human Rights does not provide any warrant for an Irish court of law to refuse to follow a precedent established by a higher court in the curial hierarchy.

Dealing with the relationship between international and municipal law counsel again submits that Ireland is a dualist jurisdiction. On this basis the European Convention of Human Rights was not at any relevant time part of the domestic law of the State.

Counsel relies upon the similarity between the instant case and that of the Kavanagh v. The Governor of Mountjoy Prison [2002] 3 IR 97. It is submitted that precisely the same rules and principles as described by the Supreme Court in the Kavanagh case apply to the instant application. As the European Convention of Human Rights did not at any relevant time form part of Irish law, this Court cannot give effect to it or to any decision of an organ established under the Convention for the reasons set forth by the Supreme Court in Kavanagh.

Counsel does however concede that a decision of the European Court of Human Rights is binding to the extent that each high contracting party undertakes to abide by the decision of the court in any case to which it is a party. The position of the United Nations Human Rights Committee is different. Counsel submits however, that the obligation is on the State and not on the courts of the State.

Counsel refers to the remedy awarded to the applicant by the European Court of Human Rights for breach of his rights under the Convention. It is submitted that it is not a matter in respect of which the applicant is entitled to further relief in this jurisdiction.

Counsel submits that there is no conflict between the judgment in the case of Heaney v. Ireland [1996] 1 I.R. 580 and that in Re National Irish Bank Ltd (No. 1) [1999] 3 IR 145.

Counsel refers to the seventh ground of opposition relied upon, to the effect that, insofar as the applicant made no statement capable of being adduced against him in evidence, and he was neither charged with nor convicted of any other offence that the matters canvassed on his behalf to the effect that his statement might have been adduced against him in evidence if he had been charged with other offences is moot.

Counsel relies upon the fact that s. 52 of the Act of 1939 has been upheld as constitutional and it must stand until struck down.

Dealing with the form of the order made by the District Court it is submitted that the applicant's contentions are unmeritorious and that there is no error on the face of the record. In this regard counsel relies upon the affidavits filed in opposition.

Counsel submits that because of the manifest delay on the part of the applicant he should be refused the relief which he seeks herein. Counsel refers to the affidavit of the applicant and to the statements and the notes exhibited by him. In particular, counsel refers to the statement of evidence of Detective Garda Joseph Heaney which refers to the fact that the applicant was asked whether his solicitor had informed him of his obligation under s. 52 to account for his movements and that he had replied that he did. It is submitted by counsel that he was aware of the implications of not accounting for his movements when required to do so.

In reply counsel on behalf of the applicant refers to the applicant's affidavit to the effect that he was cautioned by Detective Garda Heaney in the usual terms including the warning that any answers might be given in evidence. Reference is also made to para. 3 of the applicant's supplemental affidavit in which he states that he believed that any answers given by him to the demands made of him pursuant to s. 52 of the Act of 1939 would be admissible against him in evidence and that this influenced his decision not to answer the demands in question.

Dealing with the issue of delay counsel submits that good reason has been shown why the applicant did not move at an earlier stage. It is submitted that he was not sitting on his hands but was seeking to pursue an effective remedy. It is submitted that he sought to have the position clarified and has demonstrated good grounds.

In the first instance this Court is bound by the decision in each of the Supreme Court decisions referred to by counsel for the applicants. In Heaney v. Ireland [1996] 1 I. R. 580 the Supreme Court upheld the constitutionality of s. 52 of the Act of 1939. In Re National Irish Bank (No. 1) [1999] 3 IR 145 the Supreme Court addressed questions which were somewhat analogous to the issue arising in this application. The essential issue was the entitlement of persons to refuse to answer questions put. In the judgment delivered by Barrington J. he indicated under "The Fruits" at p. 188:-

"that what is objectionable under Article 38 of the Constitution is compelling a person to confess and then convicting him on the basis of his compelled confession."

At the conclusion of the judgment he indicated at p. 189:-

"that a confession of a bank official obtained by the inspectors as a result of the exercise by them of their powers under s. 10 of the Companies Act, 1990, would not, in general, be admissible at a subsequent criminal trial of such official unless, in any particular case, the trial judge was satisfied that the confession was voluntary."

I am satisfied that this reasoning if applied to a confession made pursuant to requests made under s. 52 of the Act of 1939, would in principle not be admissible in evidence at the subsequent criminal trial unless the Court was satisfied that the confession was voluntary. The European Court of Human Rights in Quinn v. Ireland, (21^st December, 2000) relied essentially upon the uncertainty about the domestic legal position in July, 1996 with regard to the admissibility in evidence of statements made pursuant to s. 52. The uncertainty related to the particular situation of the applicant and the information given to him while in custody and questioned by members of An Garda Síochána. It must be noted that the Supreme Court in the context of the judgment of the Court delivered by O'Flaherty J. in Heaney v. Ireland [1996] 1 I.R. 580 expressly reserved its position as to whether information lawfully obtained pursuant to s. 52 of the Act of 1939 may be used in evidence. I reject as incorrect the submission made by counsel to the effect that the conclusion in Heaney v. Ireland is manifestly incompatible with the subsequent reasoning in Re National Irish Bank Limited [1993] 3 I.R. 145.

I am conscious of the fact that the applicant has sworn in these proceedings that at the stage where he refused to answer questions he had been cautioned in the usual terms including the warning that answers might be given in evidence. He has also indicated his belief at the time that any answers given by him to the demands made of him pursuant to s. 52 of the Act of 1939 would be admissible against him in evidence and that this influenced his decision not to answer the demands from questions.

I do not accept the submission made by counsel on behalf of the applicant that the effect of the judgment of the European Court of Human Rights is a requirement on the State to repeal or otherwise nullify legislation (including the said s. 52).

The European Court of Human Rights made a finding of violation in favour of the applicant and also awarded him a sum in compensation for non-pecuniary damage.

The issue that remains is whether the applicant is entitled to the relief sought herein including the relief of certiorari ex debito justitiae or whether it is discretionary in nature and secondly whether by reason of his delay in moving to this Court, this Court should refuse the applicant the relief which he seeks. In The State (Vozza) v. Ó Floinn [1957] I.R. 227 the Supreme Court addressed the issue as to whether the grant of an order of certiorari in the particular case was discretionary or should issue as of course. Chief Justice Maguire indicated at p. 243 of the judgment as follows:

"While I am prepared to agree that in strictness, except where it goes as of course, a granting of order of certiorari is in all cases a matter of discretion, I am of opinion that in cases where there is a conviction on record made without jurisdiction, the court can only exercise that discretion in one way, viz., by quashing the order."

He continued as follows at p. 244:-

"The right of a citizen to be tried by due process of law is as old as Magna Charta. It has now been enshrined in the Constitution in Article 38(1) and while conviction of a crime remains on record it constitutes a representation that a person accused has been convicted after a trial in due course of law. Accordingly it cannot be gainsaid that to allow the conviction to remain on record is a serious matter for the prosecutor."

In that case there had been failure on the part of the prosecutor to act with candour in presenting his case. In this regard, the Chief Justice continued:-

"I find it difficult, however, to imagine conduct on the part of an applicant for certiorari which would disentitle him to an order of certiorari in regard to a conviction of a crime of any sort, where it is established that it was made without jurisdiction."

In the same case Lavery J. stated at p. 245:-

"The order of certiorari, in general, is discretionary, but in particular cases it is due ex debito justitiae and cannot be refused and, as is argued, in certain other cases, of which the present is alleged to be one, though due ex debito, exception may be established."

In the course of his judgment Kingsmill Moore J., stated at p. 250 as follows:-

"The granting of an order of certiorari at the instance of a prosecutor has always been a matter of discretion, but where the prosecutor was a person aggrieved and the order for certiorari answered the same purpose as a writ of error, it was granted ex debito justitiae".

He then quoted Fitzgibbon L. J. in The King (M'Swiggan) v. Londonderry Justices [1905] 2 I. R. 318 who, after pointing out that, in the case then before the Court the order for certiorari was discretionary and not ex debito justitiae goes on to say, at p. 320:-

"If a right is involved, or if a wrong is continuing, or if liberty or character is at issue, or if a defective order is operating in any way, it may be otherwise."

Kingsmill-Moore, J. continued at p. 250:-

"The Constitution by Article 40 (3) (2), provides that the State shall in particular by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. Here we have a wrong continuing, character at issue, and a defective order operating as a blot on character. Injustice has been done and if the words of the Constitution are to have any effect, an order for certiorari should issue ex debito justitiae.

It was, however, argued that even where a prosecutor was entitled as of right to an order for certiorari, he might by his conduct forfeit that right and that either undue delay or lack of candidness in the affidavits used in applying for the conditional order were sufficient to warrant a refusal of the final order. In The State (Kelly) v. District Justice for Bandon and Another [1947] I.R. 258. the Supreme Court recognised that delay might afford grounds for refusal of the order, while holding that the High Court had wrongly exercised its discretion in refusing the order where the delay had only been for three months."

In De Róiste v. Minister for Defence [2001] 1 IR 190 the Supreme Court addressed the issue of delay in the context of judicial review proceedings. In the course of her judgment Denham J. stated, inter alia, at p. 208:

"[T]he general rule is that certiorari is a discretionary remedy. However, if, for example, a conviction was made without jurisdiction the general course would be for the court to grant the application. There are no absolutes in the exercise of a discretion. An absolute rule is the antithesis of discretion. The exercise of a discretion is the balancing of factors – a judgment."

Denham J. then indicated factors which might be taken into account by a court in analysing the facts of a case to determine if there is good reason to extend time or to allow judicial review. Factors instanced by her are as follows:-

1. The nature of the order or actions, the subject of the application;

2. The conduct of the applicant;

3. The conduct of the respondents;

4. The effect of the order under review on the parties subsequent to the order being made and any steps taken by the parties subsequent to the order to be reviewed;

5. Any effect which may have taken place on third parties by the order to be reviewed;

6. Public policy, that proceedings relating to the public law domain take place promptly except when good reason is furnished.

She indicated that such a list is not exclusive but that it is clear from precedent that the discretion of the court has ever been to protect justice. She added: "When criminal convictions are an issue the matter of justice may be very clear. However, it is the circumstances of each case which have to be considered."

Having referred to The State (Vozza) v. Ó Floinn [1957] I.R. 227 she stated, inter alia, at p. 209 as follows:

"The general rule is that an order of certiorari is a discretionary remedy. The circumstances of each case have to be considered. The general course is to grant certiorari if, for example, a criminal conviction has been ordered in excess of jurisdiction. However, the circumstances of the case are considered by the court in exercising its discretion and the court has a discretion to refuse the relief if, for example, the conduct of the applicant disentitles him or her to that relief. The facts and circumstances of each case have to be considered. Whereas the applicant is in a stronger position if he has been particularly aggrieved, the court retains its discretion in all applications. Factors which may also be relevant in a particular case are an alternative remedy and/or a pending appeal."

In the same case each of the members of the Supreme Court referred to the dictum of McCarthy J. in The State (Furey) v. Minister for Defence [1988] I.L.R.M. 89, where he said a p. 100:-

"I see no logical reason why delay, however long, should of itself, disentitle to certiorari any applicant for that remedy who can demonstrate that a public wrong has been done to him – that, for instance, a conviction was obtained without jurisdiction, or that, otherwise, the State has wronged him and that the wrong continues to mark or mar his life."

Keane C.J. indicated that this passage could not be regarded as a correct statement of the law and he expressly approved the analysis of same by Denham J. and Fennelly J. in that case. Denham J. indicated at p. 209 of her judgment that

"[t]he words of McCarthy J. were short and obiter in a case with different circumstances. They do not indicate an absence of discretion in the court. I agree with McCracken J. that the words of McCarthy J. were not an absolute statement that delay cannot disentitle an applicant, but rather that it should not "of itself" disentitle an applicant."

McCracken J. stated at first instance De Róiste v. Minister for Defence [2001] 1 I.R. 200 in that case, he stated as follows:-

"This remark was clearly obiter in the context of that case, although I fully accept that in considering the requirements of justice, the fact that the applicant may have been wronged by the State authorities rather than by a private individual must be a relevant consideration. However, I would emphasis (sic) that this was not an absolute statement that delay cannot disentitle an applicant but rather that it should not 'of itself' disentitle an applicant. In fact, I think that this comment is not inconsistent with the principles I have quoted already and I would dismiss these proceedings not solely because of the delay in itself, but because, in addition to such a delay, there is the element of blameworthiness on the part of the applicant and the fact of possible prejudice to the respondent."

At p. 215 Fennelly J. stated, inter alia, as follow, having referred to O. 84, r. 21(1) of the Rules of the Superior Courts, 1986:-

"The working of the rule shows that even at the stage of the application, ex parte, for leave to seek a judicial review, an applicant must satisfy the court that it is being made in time, for the purposes of this provision."

Fennelly J. referred to the passage of McCracken J. quoted above where he added:

"The fact that the applicant may have been wronged by the State authorities rather than by private individual must be a relevant consideration."

Fennelly J. stated at p. 216:

"This remark overlooks the fact that an application for judicial review necessarily concerns in every case a decision made by a public authority in some sense and cannot relate to wrongs committed by one private individual which affect another."

Fennelly J. referred to the judgment of Henchy J. in The State (Cussen) v. Brennan [1981] I.R. 181 where at the p. 196 he stated:-

"What particular period of inactivity will debar a person from getting an order such as mandamus or certiorari will depend on the circumstances of the case."

Fennelly J. stated:-

"The rule does not, it is clear, operate in the same way as a period of limitation. It is not expressed so as to bar a remedy and a party may, in an appropriate case, proceed by plenary proceedings. It does, nonetheless impose a preliminary obligation to proceed with dispatch. If the application is made outside the time provided (six months in the case of certiorari), the applicant carries a burden to furnish "good reason" which was well explained by Costello J. (as he then was) in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301."

Fennelly J. referred to Costello J.'s consideration of the phrase "good reason" and quoted with approval what he said at p. 315 of the judgment in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301:-

"The phrase 'good reasons' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84, r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay."

Fennelly J. observed that the view of Costello J. that delay in making an application for judicial review requires both explanation and justification is fully consistent with the provisions of O. 84, r. 21. He observed, however, that it was difficult to reconcile the existence of such an obligation with the dictum of McCarthy J. in The State (Furey) v. Minister for Defence [1988] I.L.R.M. 89 quoted above. He stated at p. 217:-

"The latter appears to dispense an applicant, who is able to demonstrate that he has suffered a public wrong or other injury at the hand of the State, from any obligation to explain delay (however long). As I have already noted, an application for judicial review necessarily impugns a decision of a public decision-making authority of some sort. This element cannot, therefore, at least not alone, justify denial of any effect to the time provisions of the rule regulating application for that remedy."

Fennelly J. referred to the earlier decision in The State (Kelly) v. District Justice for Bandon [1947] I.R. 258 dealing with delay. He stated as follows at p. 217:-

"In The State (Kelly) v. District Justice for Bandon [1947] I.R. 258, the applicant was convicted in the District Court of a fishing offence by an order bad on its face - part of the fine was unlawfully awarded to a garda fund. He appealed to the Circuit Court but withdrew his appeal with the result that an order was made in that court affirming the conviction and only then subject to an order of certiorari 15 months after the original District Court conviction. Murnaghan J. delivering the unanimous judgment of a Supreme Court of three judges said at p. 261:-

"Where the application is made by a person other than the Attorney-General, the issue of the order is not a matter of right, but is discretionary. In the exercise of its discretion, however, the Court makes a distinction between persons who have a special grievance, and persons who apply merely as members of the public. In the case of persons who have a special grievance, where there are grounds for the issue of the order, the order is granted ex debito justitiae unless the applicant has, by his conduct, disentitled himself to relief. In the case of a conviction where the penalty is awarded in a manner not justified by the law, the convicted person has, according to a long line of authorities, a special grievance.

The learned judge pointed out that the applicant was affected by an order bad on its face which might lead to his imprisonment. He was "therefore entitled to the order ex debito justitiae unless he [had] disentitled himself by his conduct". Having noted that the particular ground relied upon was delay, Murnaghan J. observed that there was "no doubt that delay [might] be a ground for depriving an applicant of certiorari". The learned judge went on to consider the actual delay, attributing much of it to the delay in the appeal coming on in the Circuit Court, and concluding that the effective delay should be counted from the Circuit Court order which was only some three months, which was within the six months then permitted under the rules for certiorari."

Fennelly J. addressed the decision in The State (Vozza) v. Ó Floinn [1957] I.R. 227 and the separate judgments of the members of the Supreme Court. At p. 220 Fennelly J. stated as follows:-

"Two points stand out in The State (Vozza) v. Ó Floinn [1957] I.R. 227. Firstly, the original order was made entirely without jurisdiction. The summary trial of the applicant proceeded without his consent. Secondly, the lack of candour with which the applicant was charged did not affect that ground of complaint.

It is clear from a reading of the aforementioned case as well as many other cases that an order of certiorari is always, as a matter of principle, discretionary. But the nature of that discretion must be considered in two different contexts. An applicant who is not directly affected by the legal act which he attacks can do no more than ask the court to exercise its discretion to quash an order. Applications of this sort are rare. When the order is one to which the applicant is entitled ex debito justitiae, i.e. one which affects him directly, that discretion can normally be exercised in only one way (i.e. in his favour). That does not mean, however, that the behaviour of the applicant may not be such as to deprive him of his prima facie right to relief. This gives rise to a second context for the exercise of discretion.

A close reading of The State (Kelly) v. District Justice for Bandon [1947] I.R. 258 and The State (Vozza) v. Ó Floinn [1957] I.R. 227 reveals that, though in each case the order was one to which the applicant was entitled ex debito justitiae, the court considered whether delay and lack of candour, respectively, would bar the applicant from relief. In each case, the court concluded, not that these were inadmissible grounds, but rather that they were not established on the facts of the respective cases."

At p. 221 Fennelly J. indicated:-

"In the nature of things, a short delay might require only slight explanation. The judicial review time limit is not a limitation period. Prompt pursuit of a remedy is, however, a requirement of a judicial review application.

A longer delay will require a more cogent explanation. Explicable delays have usually been a matter of months and very rarely years…. I would add that I fully agree with the analysis of these principles by Denham J. in her judgment."

Can it be said that the applicant has satisfied the requirement to explain his delay and secondly showed that the delay was justified? He indicates that he was convicted by order of the District Court on the 15^th May, 1997 and that he withdrew his appeal and that on the 20^th January, 1998 the Circuit Court made an order striking out his appeal and affirming the orders of the District Court. He then served his sentence until his release on the 4^th June, 1998. It is to be noted that he points out that on the 6^th March, 1997 he made an application to European Commission of Human Rights claiming that the prosecution taken against him was in breach of his rights under the European Convention on Human Rights. This pre-dated his conviction on the 15^th May, 1997 in the District Court. The applicant refers to the judgment of the European Court of Human Rights of 21^st December, 2000 in Quinn v. Ireland and the fact that this judgment became final on 21^st March, 2001. He indicates that following this his solicitors, by letter dated 5^th April, 2001, requested the Attorney General and the Government to consent to such action as might be necessary in order to have his conviction set aside. Insofar as the prosecution had been taken against him by the Director of Public Prosecutions and neither the Attorney General nor the Government were party to those proceedings, it is not clear upon what basis those particular parties were addressed at that stage in the context of having his conviction set aside. The applicant indicates that no reply was received until the 15^th May, 2001 when the Chief State Solicitor wrote to the effect that the original letter had been forwarded to the fourth and fifth named respondents for instructions and he indicates at the time of swearing his affidavit grounding his application to this Court that no substantive reply had been received by his solicitors.

As has been previously indicated, the statements of grounds of opposition filed on behalf of the respondents raised the issue of his delay and the applicant's failure to comply with the requirements of O. 84, r. 21 of the Rules of the Superior Courts.

These averments by the applicant may be stated to explain the delay but it is not entirely clear whether they really justify the delay in moving to this Court. It is surprising that the applicant raised these issues at the European level without seeking to address them to the Circuit Court by way of an appeal and it is not clear that they were addressed to the District Court. However, in my discretion I would not be disposed, in light of the particular circumstances outlined by the applicant, to disentitle him to the relief which he seeks merely by reason of his delay in moving to this Court. I believe that the affidavit has explained his actions and he pursued a course which he considered apparently appropriate to address the particular mischief perceived by him at that time. While he has been guilty of some delay, I would not on that account exercise my discretion to refuse the applicant the relief which he seeks.

With regard to the merits of the applicant's case, I accept that there is validity in the point made by the respondents that the District Court judge did not exceed his jurisdiction in the circumstances and the same can be said of the first respondent who apparently heard no submission in the matter. On this basis I am satisfied that the relief which the applicant seeks is not one that will issue as of course or ex debito justitiae.

I am, however, of the view that in all the circumstances of the case the interests of justice require that I grant to the applicant the relief of an order of certiorari in respect of the conviction entered against him, having regard to the unusual circumstances of this case. With regard to the declaratory relief and the relief in the form of damages, I am satisfied that the applicant has not established an entitlement to same. With regard to the matter being remitted to the Circuit Court pursuant to O. 84 r. 26 (4) of the Rules of the Superior Courts, this arises where the Court grants relief in the form of an order of certiorari and it is not in substitution of an order of certiorari.