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Byrne v. Ireland [1999] IESC 36 (11th March, 1999)
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[1999] IESC 36
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Byrne v. Ireland [1999] IESC 36 (11th March, 1999)
THE
SUPREME COURT
310/98
& 311/98
HAMILTON
C.J.
O’FLAHERTY
J.
DENHAM
J.
BARRINGTON
J.
BARRON
J.
BETWEEN:
RONALD
BYRNE and BERNARD DEMPSEY
Appellants/Applicants
and
THE
GOVERNMENT OF IRELAND, THE ATTORNEY GENERAL, THE DIRECTOR OF PUBLIC
PROSECUTIONS AND THE SPECIAL CRIMINAL COURT
Respondents
Judgment
delivered on the 11th day of March 1999 by Hamilton C.J. [Nem. Diss.]
1. The
above named Appellants, Ronald Byrne and Bernard Dempsey, have appealed against
orders made by the High Court (Geoghegan J.) on the 21st day
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(2)
of
October, 1998 whereby he refused each of them liberty to apply by way of
judicial review for
(i) A
declaration that the certificate issued by the third named Respondent and dated
the 17th day of July 1998 certifying that in the opinion of the third named
Respondent the ordinary Courts are inadequate to secure the effective
administration of justice and preservation of public peace and order in
relation to the trial of the Applicant herein on the charges set out in the
schedule to the said certificate is invalid;
(ii) A
declaration that the prosecution of the Applicant herein before the fourth
named Respondent unfairly discriminates against the Applicant in contravention
of Article 40(1) of the Constitution and/or Article 14 and/or Article 6 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
and/or Articles 14 and 26 of the International Covenant on Civil and Political
Rights.
2. The
grounds upon which such reliefs were sought were set forth in the Statement of
Grounds as follows:-
“1.
There is no factual basis for the third named Respondent’s opinion that
the ordinary Courts are inadequate to secure the effective administration of
justice and preservation of public peace and order in relation to the trial of
the Applicant herein on the charges
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(3)
set
out in the schedule to the said certificates. There is nothing in the nature of
the alleged offences for which the Applicant is to be tried which would suggest
a connection with subversive or paramilitary organisations. The Applicant is
not a member of any subversive or paramilitary organisation and has not been
charged with such membership. Nothing has occurred in the course of these
proceedings to date in respect of these charges to suggest that attempts would
be made by or on behalf of the Applicant herein, to interfere with or
improperly influence any jury empanelled to try these charges.
2. There
is no factual basis for the third named Respondent distinguishing between the
Applicant herein and the great majority of his co-accused, nine of whom have
been returned for trial to the ordinary courts. In the premises the Applicant
has been denied his right to equality before the law as guaranteed by Article
40.] and/or Articles 14 and 6 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms and/or Articles 14 and 26 of the
International Covenant on Civil and Political Rights.”
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(4)
3. The
certificates issued by the third named Respondent referred to in the aforesaid
Declarations were in the following terms:
“Certificate
of the Director of Public Prosecutions pursuant to Section 46(2) of the above
Act.
I,
Eamonn M Barnes, Director of Public Prosecutions, hereby certify that the
ordinary Courts are, in my opinion, inadequate to secure the effective
administration of justice and preservation of public peace and order in
relation to the trial of the above named person on the charges set out in the
Schedule hereto, being charges for indictable offences which are not scheduled
offences under the above named Act.
Schedule
“1. For
that you the said accused on the 14th day of May, 1996 at Basin Street Upper,
Dublin 8, known locally as Basin Lane, Dublin 8 in the Dublin Metropolitan
District committed a violent disorder in that you with other persons namely
John Fitzpatrick Stephen Carney, William Kenny, Andrew Kelly, Christopher
O’Shea, Bernard Dempsey, Mark Alford, Mark Cooke, Hugh Byrne, John Kenny,
Martin Glynn present together used or threatened to use unlawful violence and
such conduct taken together, was such as would cause a person of reasonable
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(5)
firmness
present at the said place to fear for his or another persons safety.
2. For
that you the said accused on the 14th day of May, 1996 at Basin Street Upper,
Dublin 8 known locally as Basin Lane, Dublin 8 in the Dublin Metropolitan
District did unlawfully assault one Alan Byrne thereby occasioning him actual
bodily harm.
3. For
that you the said accused on the 14th day of May, 1996 at Basin Street Upper,
Dublin 8 known locally as Basin Lane, Dublin 8 in the Dublin Metropolitan
District did unlawfully kill one Joseph Dwyer.
Contrary
to Common Law.”
4. The
facts relevant to and legal issues raised in these appeals are identical and
both appeals were heard together.
5. The
relevant facts are deposed to in the affidavits sworn by the Appellants’
Solicitor and are as follows:-
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(6)
6. The
Applicants were charged on the 17th December 1996 by the third named Respondent
in the Dublin Metropolitan District Court with three offences, namely, the
manslaughter of Joseph Dwyer; assault occasioning actual bodily harm to one
Alan Byrne contrary to Section 47 of the Offences Against the Person Act, 1861;
and violent disorder contrary to Section 15 of the Criminal Justice (Public
Order) Act, 1994. The said offences are indictable offences which are not
scheduled under the Offences Against the State Act, 1939. I beg to refer to
copies of the Charge Sheets which I have pinned together and upon which marked
with the letters ‘IMP] ‘I have endorsed my name prior to the
swearing hereof
7. On
the same and succeeding dates twelve other men were charged with the same
offences in the Dublin Metropolitan District Court, namely Stephen Carney, John
Fitzpatrick, Bernard Dempsey, Christopher O’Shea, Mark Alford, Mark
Cooke, John Kenny and William Kenny, Andrew Kelly, Hugh Byrne, Martin Glynn and
Desmond Whelan.
8. The
Applicant and his co-accused were remanded from time to time in the District
Court. On divers date following the 11th of May 1998 depositions were taken
from a number of witnesses. On
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(7)
the
24th of July 1998, the District Court sent forward all accused for trial except
for Desmond Whelan who had died in the intervening period. Nine of the
Applicant’s co-accused were sent forward for trial to the Central
Criminal Court. On that date and for the first time, it was indicated that the
third named Respondent had certified, in respect of the Applicant and two of
his co-accused, that in his opinion the ordinary courts were inadequate to
secure the effective administration of justice and the preservation of public
peace and order. The certificate in respect of the Applicant herein is dated
the 17th of July 1998 and was made pursuant to
Section 46(2) of the
Offences
Against the State Act, 1939, Part V I beg to refer to a copy of the said
Certificate upon which marked with the letters ‘MF2’ I have
endorsed my name prior to the swearing hereof As a result of the said
certificate the Applicant herein was sent forward for trial to the Special
Criminal Court.
9. As
appears from counsel’s note of the extempore judgment of Geoghegan J.
which said note was approved by the learned trial judge, the learned trial
judge in dismissing the application made on behalf of Ronald Byrne held -
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(8)
“that
having regard to the decision in
Kavanagh
.v. Ireland
[1996] 1 IR 321, the Courts had a very limited function in relation to
reviewing a decision of the third named respondent to send an accused for trial
to the Special Criminal Court;
That
such review was limited to situations where a
prima
facie
case was established that the third named Respondent had acted mala fides or
had employed an improper motive or policy in sending the accused for trial to
the Special Criminal Court;
That
notwithstanding that a number of the applicant ‘s co-accused had been
returned for jury trial while the applicant had been returned for trial in the
Special Criminal Court, a
prima
facie
case had not been made out that the third named Respondent had improperly
exercised his discretion to issue a certificate pursuant to
Section 46(2) of
the
Offences Against the State Act, 1939 and accordingly the application for
leave to seek judicial review of the third named Respondent would be
refused.”
10. On
the same basis the learned trial judge dismissed the application made on behalf
of Bernard Dempsey.
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(9)
11. Both
applicants have appealed against the judgment of the trial judge on the grounds
that -
1. That
the learned trial judge erred in law in holding that the decision in
Kavanagh
.v. Ireland
[1996] 1 IR 321 had disposed of all the issues in the present application and
that the application should be refused.
2. That
the learned trial judge erred in law in ruling that the Applicant did not raise
a
prima
facie
case of unconstitutional discrimination contrary to Article 40.1 of the
Constitution.
Provisions
of Constitution relevant to the Appeal
Article
38
1. No
person shall be tried on any criminal charge save in due course of law.
2. Minor
offences may be tried by courts of summary jurisdiction.
3. 1°
Special courts may be established by law for the trial of offences in cases
where it may be determined in accordance with such law that the ordinary courts
are inadequate to secure the effective administration of justice, and the
preservation of public peace and order.
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(10)
2°
The Constitution, powers, jurisdiction and procedure of such special courts
shall be prescribed by law.
4. l°
Military tribunals may be established for the trial of offences against
military law alleged to have been committed by persons while subject to
military law and also to deal with a state of war or armed rebellion.
2°
A member of the Defence Forces not on active service shall not be tried by any
court-martial or other military tribunal for an offence cognisable by the civil
courts unless such offence is within the jurisdiction of any court-martial or
other military tribunal under any law for the enforcement of military discipline.
5. Save
in the case of the trial of offences under
section 2,
section 3 or
section 4 of
this Article no person shall be tried on any criminal charge without a jury.
6. The
provisions of Articles 34 and 35 of this Constitution shall not apply to any
court or tribunal set up under
section 3 or
section 4 of this Article.
Article
40
1. All
citizens shall, as human persons, be held equal before the law.
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(11)
12. This
shall not be held to mean that the State shall not in its enactments have due
regard to differences of capacity, physical and moral, and of social function.
Statutory
provisions relevant to the Appeal
Section
46(2) of the Offences against the State Act, 1939 provides as follows:-
“Whenever
a person is brought before a justice of the District
Court
charged with an indictable offence which is not a scheduled offence and such
justice receives informations in relation to such charge and sends such person
forward for trial on such charge, such justice shall, if an application in this
behalf is made to him by or on behalf of the Attorney General grounded on the
certificate of the Attorney General that the ordinary Courts are, in his
opinion, inadequate to secure the effective administration of justice and the
preservation of public peace and order in relation to the trial of such person
on such charge, send such person forward in custody or, with the consent of the
Attorney General, at liberty on bail for trial by a Special Criminal Court on
such charge.”
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(12)
“Subject
to the provisions of
this Act, the Director shall perform all the functions
capable of being performed in relation to criminal matters and in relation to
election petitions and referendum petitions by the Attorney General immediately
before the commencement of this section and references to the Attorney General
in any statute or statutory instrument in force immediately before such
commencement shall be construed accordingly.”
“(4)
The Director shall be a civil servant in the Civil Service of the State”
(5)
The Director shall be independent in the performance of his functions.”
Submissions
on behalf of the Appellants
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(13)
15. It
is submitted on behalf of the Appellants, and each of them that
1.(a)
the Appellants, and each of them, enjoyed a constitutional right not to be
tried on the criminal charges preferred against them without a jury;
(b) the
opinion of the Director of Public Prosecutions that the ordinary Courts are
inadequate to secure the effective administration of justice and the
preservation of public peace and order in relation to the trial of each of the
Appellants on the said charges and the issue of the certificates in respect
thereof in accordance with the provisions of
Section 46(2) of the
Offences
Against the State Act, 1939 had the effect of depriving the Appellants and each
of them of their alleged constitutional right to trial by jury;
(c) having
regard to the said effect of the formulation of such opinion by the Director of
Public Prosecutions and the issue of such certificates in pursuance thereof
viz,
the
deprivation of the constitutional right to trial by jury, such opinion and the
consequent decision of the D.P.P., should be subject to
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(14)
review
of the Courts as the upholders and protectors of the constitutional rights of
the citizens;
(d) all
such decision should be subject to review by the Courts for the purpose of
ascertaining on an objective basis Whether or not the constitutional rights of
persons affected thereby are unnecessarily interfered with or abridged and such
review should not be limited to cases where it is established that the
decisions were made
mala
fides
;
(e) in
the absence of such power of review, the courts would not be in a position to
decide whether any citizens constitutional rights were being unnecessarily
interfered with.
2. The
decision of the Director of Public Prosecutions to certify that the ordinary
courts were, in his opinion, inadequate to secure the effective administration
of justice and preservation of public peace and order in relation to the trial
of the appellants on the charges set out in the Schedule thereto while at the
same time not so certifying in respect of the other accused and permitting
their return for trial to the Central Criminal Court where they would be tried
in respect of the same offences before a Judge and Jury unfairly discriminated
against the Appellants and each of them contrary to the provisions of Article
40.1 of the Constitution;
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(15)
3. The
circumstances and issues raised in the instant differed from those in the case
of
Kavanagh
.v. Ireland
[1996] IR 321 and the learned trial judge erred in law in relying on this
decision and in refusing the Appellant’s application for leave to seek
relief by way of judicial review.
Kavanagh
.v. Ireland
[1996] IR 321
16. In
the course of his judgment in this case Barrington J. stated at page 353
thereof:-
“Article
38 of the Constitution provides that no person is to be tried on any criminal
charge save in due course of law. Article 38, s. 5 provides that, subject to
certain exceptions, no person is to be tried on any criminal charge without a
jury. One of the exceptions is contained in Article 38, s. 3 which provides as
follows: -
‘(1)
Special courts may be established by law for the trial of offences where it may
be determined in accordance with such law that the ordinary courts are
inadequate to secure the effective administration of justice and the
preservation of public peace and order.
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(16)
(2)
The Constitution, powers, jurisdiction and procedure of such special courts
shall be prescribed by law.’
17. It
is clear from the statement that special courts may be established ‘by
law’ that the power to decide whether such courts should be established
is vested in the legislature in which is invested the sole and exclusive power
of making laws for the State. See Article 15, section 2.
18. The
question of whether the ordinary courts are inadequate to secure the effective
administration of justice and the preservation of public peace and order is to
be determined ‘in accordance with such law’.
‘If
and whenever and so often as the Government is satisfied that the ordinary
courts are inadequate to secure the effective administration of justice and the
preservation of public peace and order and that it is therefore necessary that
this part of
this Act should come into force, the Government may make and
publish a proclamation declaring that the Government is satisfied as aforesaid
and ordering that this part of
this Act shall come into force’.
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(17)
20. Sub-section
4 of the same section provides that if at anytime while Part V of the Act is in
force, the Government is satisfied that the ordinary courts are adequate to
secure the effective administration of justice and the preservation of public
peace and order, the Government shall make and publish a proclamation declaring
that Part V of the Act shall cease to be in force and thereupon Part V shall
forthwith cease to be in force.
21. It
is clear therefore that under our system the question of whether special
criminal courts should be established is a matter for the legislature and the
question of whether the Part of the Offences Against the State Act, 1939,
providing for the establishment of special criminal courts should be brought
into force or should cease to be in force is a matter for the Government.
22. Provided
these powers have been exercised in a bona fide manner the ordinary courts have
no function in relation to them. There is a certain logic in this as the
question under consideration is the adequacy or otherwise of the ordinary
courts to secure the effective administration of justice and the preservation
of public peace and order.
23. The
question of whether the ordinary courts are or are not adequate to secure the
effective administration of justice and the
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(18)
preservation
of public peace and order is primarily a political question, and, for that
reason, is left to the legislature and the executive, the fact that the control
intended is primarily apolitical control is underlined by
s. 35, sub-s. 5 which
provides that it shall be lawful for Dáil Éireann, at anytime
where Part V of
the Act is in force, to pass a resolution annulling the
proclamation by virtue of which Part V was brought into force and that
thereupon such proclamation shall be annulled and Part V shall cease to be in
force but without prejudice to the validity of anything previously done
thereunder.”
24. At
a later stage in the course of his judgment he stated at page 360 that:-
“This
judgment has attempted to stress that the primary control over the powers of
the Government under Article 38,
s. 3 of the Constitution and under Part V of
the
Offences Against the State Act, 1939, is a political control. This means
that normally the proclamations of the Government under
s. 35, sub-ss. 2 and 4
of the
Offences Against the State Act, 1939, or the certificates or directions
of the Director of Public Prosecutions under
s. 47 of the same Act will not be
subject to judicial review in the absence of evidence of
mala
fides
.”
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(19)
25. In
the course of his judgment in the same case, Keane J. stated at page 365:-
“For
the reasons elaborated by Barrington J in his judgment, I am also satisfied
that the applicant has failed to discharge the onus upon him of establishing
that, in deciding to maintain Part V in force, the government were invading or
infringing the constitutional rights of individual citizens, including the
applicant. The maintenance in being of a special criminal court, the existence
of which is expressly envisaged by the Constitution, where, in the judgment of
the Government, the ordinary courts are inadequate in specified cases to secure
the effective administration of justice and the preservation of public peace
and order is not, of itself such an invasion or infringement.”
26. The
other members of the Court agreed with these judgments.
27. While
the court in
Kavanagh’s
case
was concerned with issues broader than the issues involved in the instant case,
the judgments delivered therein, with which all the members of the Court
agreed, clearly established that the question of whether the ordinary courts
are or are not adequate to secure the
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(20)
effective
administration of justice and the preservation of public peace and order is
primarily a political question, and, for that reason, is left to the
legislature and the executive and that normally, the certificates or directions
of the Director of Public Prosecutions under either
Section 46 or
47 of the
Offences Against the State Act will not be subject to judicial review in the
absence of mala fides or improper motives.
28. The
question of mala fides or improper motives does not arise in the instant case
and in fact have been expressly disallowed by Counsel on behalf of the
Appellants.
29. The
submission made on behalf of the Appellants that all decisions of the Director
of Public Prosecutions made pursuant to the provisions of Sections 46 and 47 of
the Offences Against the State Act, 1939 are subject to review by the courts
for the purpose of obtaining an objective assessment as to whether or not the
ordinary courts are inadequate in specified cases to secure the effective
administration of justice and the preservation of public peace and order would,
if accepted, involve the courts in determining whether or not the ordinary
courts are effective for the said purpose.
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(21)
30. This
was clearly not the intention of the legislature and I am satisfied that it has
not been established by the Appellants that there is even an arguable case to
support the submission and I would reject his appeal on this ground.
31. It
was further submitted on behalf of the Appellants that the decision of the
Director of Public Prosecutions to issue the impugned certificates in respect
of them and each of them amounted to unfair discrimination against them and
contrary to the provisions of Section 40.1 of the Constitution having regard to
the fact that no such certificate was issued in respect of the other accused
who were returned for trial to the Central Criminal Court.
32. In
the course of his judgment in
The
State (Keegan) . v. Stardust Victims Tribunal
[1987] ILRM 202 Henchy J. stated:-
“I
would accept that Article 40.1 of the Constitution requires that people who
appear before the Courts in essentially the same circumstances should be dealt
with in essentially the same manner; see
McMahon
.v. Leahy
[1984] IR 525.”
In
McMahon
.v. Leahy
,
which
case concerned an application for extradition, O’Higgins C.J. stated in
the course of his judgment:-
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(22)
“Almost
eight years after the commission of the offence, the warrant with which these
proceedings are concerned has been issued and the State seeks to justify its
enforcement on grounds which it either abandoned as being unsound or which it
expressly declined to argue in relation to the other four persons concerned.
Such discriminatory treatment of one individual appears unfair, smacks of
injustice and certainly requires explanation.”
33. In
the course of his submissions counsel on behalf of the Appellant relies on
these statements.
34. There
is no doubt that the circumstances of each of the accused is the same insofar
as each of the accused has been charged with the same offences arising out of
the same set of circumstances.
35. What
distinguishes the Appellants from their co-accused is that, in respect of them
only, the Director of Public Prosecutions has certified that the ordinary court
are inadequate to secure the effective administration of justice and the
preservation of public peace and order. This is a power which is expressly
conferred upon him by Section 46 of the Offences Against the State Act, 1939 as
amended. The Section, as amended, provides that the Director of
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(23)
36. Public
Prosecutions may issue a certificate that the ordinary Courts are, in his
opinion, inadequate to secure the effective administration of justice and the
preservation of public peace and order in relation to the trial of
“such
person”
on
such charge. Such a certificate can only be issued by the Director of Public
Prosecutions while there is in force a Government Proclamation stating that the
Government is satisfied that the ordinary Courts are inadequate to secure the
effective administration of justice and the preservation of public peace and
order under the provisions of Section 35 of the Offences Against the State Act,
1939. But, while such a proclamation is in force, the Director of Public
Prosecutions is directly authorised by Statute to issue such a certificate and
thereby to make such a distinction between citizens. There has been no
submission in this case that either Section 35 or Section 46 of the Offences
Against the State Act, 1939 is unconstitutional or that the Director has acted
mala fide in issuing such a certificate.
37. In
the absence of a
prima
facie
case of mala fides in the issue by the Director of Public Prosecutions of the
certificate, he cannot be called upon to explain his decision or give the
reasons for it nor the sources of the information upon which it was based (vide
State
(McCormack) .v. Curran
[1987] ILRM at page 237).
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(24)
38. Under
these circumstances no arguable ground for judicial review has been established
and I would affirm the order of the learned trial judge.
© 1999 Irish Supreme Court
