Supreme Court of Ireland Decisions

Judgment Title: Riordan -v- The Government of Ireland & ors

Neutral Citation: [2009] IESC 44

Supreme Court Record Number: 411/06

High Court Record Number: 2003 13256 p

Date of Delivery: 27 May 2009

Court: Supreme Court

The appellant has been a frequent litigant with numerous appearances in this Court and has on more than one occasion objected to the fact that his appeals were heard by the Supreme Court consisting of less than its full quota of judges; that is to say that they were heard by divisions of three or five judges. This, he says in the present proceedings, is unlawful and indeed unconstitutional. He also objects to the provisions whereby a judge of the High Court may be invited to sit on the Supreme Court in certain circumstances and, by parity of reasoning, to the provision whereby a judge of the Supreme Court may be invited to sit as an additional judge of the High Court in certain circumstances.

All of these points are agitated in the present proceedings. The appellant also advances certain submissions in relation to the Court of Criminal Appeal although he has never been a litigant before that Court. This is because he has, of course, never been charged with or convicted of an indictable offence triable in either the Circuit Court, the Central Criminal Court or the Special Criminal Court, and has therefore never required to invoke the jurisdiction of that Court or have had it invoked against him in the limited circumstances where this is possible at the suit of the Director of Public Prosecutions. He says that the only person entitled to appoint judges to the Court of Criminal Appeal is the President of Ireland, who has not done so; that no delegation of this power is possible; and that a person who is a judge of the Supreme Court or the High Court must function only as such judge and is not entitled to sit in another court, such as the Court of Criminal Appeal, whether at the request or on the appointment of the Chief Justice, or otherwise. Such judges he says have not made or subscribed the declaration required by Article 34 of the Constitution as a judge of the Court of Criminal Appeal.

In making these and the other points to be set out below the appellant faces the difficulty that the practices to which he takes great objection appear to be mandated by statute. Accordingly, on the hearing of this appeal the primary relief he seeks are declarations of repugnancy to the Constitution as follows:

(1) Section 1(2)(b) of the Courts, (Establishment and Constitution) Act 1961as inserted by s.6(1) of the Courts and Courts Officers Act, 1995, is repugnant to the Constitution. This relates to the statutory constitution of the Supreme Court.


(2) Section 3(2) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution. This relates to the composition of the Court of Criminal Appeal.


(3) Section 7(3) of the Courts (Supplemental Provisions) Act, 1961 is repugnant to the Constitution. This and the next two grounds relate to the ability of the Supreme Court to sit in divisions.


(4) Section 7(4) of the Courts (Supplemental Provisions) Act, 1961 as inserted by s.7 of the Courts and Courts Officers Act, 1995 is repugnant to the Constitution.


(5) Section 7(5) of the Courts (Supplemental Provisions) Act, 1961 as inserted by s.7 of the Courts and Courts Officers Act, 1995 is repugnant to the Constitution.


(6) Sections 1(3) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution. This and all remaining grounds relate to additional and ex officio judges of the Supreme and High Courts.

(7) Section 1(4) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution.


(8) Section 2(3) of the Courts (Establishment and Constitution) Act is repugnant to the Constitution.


(9) Section 2(4) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution.


(10) Section 2(5) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution.

The last sentence of paragraphs 1, 2, 3 and 6 above have been added for ease of exposition.

Before addressing this claim, however, it seems appropriate to deal with two points made throughout his argument by Mr. Riordan. The first of these relates to the declaration a judge is required by the Constitution to make on his or her appointment. The second relates to his characterisation of the Supreme Court as “the (Full) Supreme Court”.

Article 34.5 of the Constitution requires that every person appointed a judge under the Constitution shall make and subscribe the declaration. This must be done before the new judge enters on his or her duties as such judge and in any event not later than ten days after the date of his or her appointment or such later date as may be determined by the President. Any judge who declines or neglects to make the declaration shall be deemed to have vacated his or her office. The form of declaration is the following:

“In the presence of Almighty God I, , do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice and (or as the case may be) without fear or favour affection or ill will towards any man and that I will uphold the Constitution and the laws. May God direct and sustain me.”

This declaration relates to the manner in which a judge will discharge his or her judicial functions in the office which he holds, but not in any specified court. More to the point, the declaration has nothing to do with the jurisdiction which is conferred on the judge: that derives from his appointment as a judge of a particular court and from the jurisdiction which is intrinsic to, or conferred on, that Court by the successive Courts Acts. As will be seen, these Acts, even before the passage of the Constitution, specifically envisaged that a judge appointed for example, to be a judge of the Supreme Court would nonetheless sit on occasion in the Court of Criminal Appeal and as an additional judge of the High Court. But the essential point is that the declaration relates to the manner in which a judge will carry out his duties, and does not in itself confer any specific jurisdiction on him.

It is also important to bear in mind that the Constitution speaks of “the Supreme Court” and not of “the (Full) Supreme Court”. On the contrary, as will be seen below, the Constitution specifically envisages that the Supreme Court may sit in a division less numerous than the number of judges in that Court and Statute specifically envisages that the Court may sit in divisions. Mr. Riordan’s phrase is apt to express his view that the Supreme Court should always sit en banc, with all its members, but it is not a legal or constitutional phrase.

Article 34.2 of the Constitution provides “The Courts shall comprise Courts of First Instance and a Court of Final Appeal”. And at Article 34.4. it is provided that:

(1) “The Court of Final Appeal shall be called the Supreme Court
(2) The President of the Supreme Court shall be called the Chief Justice

(3) The Supreme Court shall with such exceptions and subject to such regulations as may be prescribed by law have appellate jurisdiction from all decisions of the High Court and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

(6) The decision of the Supreme Court shall in all cases be final and conclusive”.

(1) “The judges of the Supreme Court, the High Court and all other courts established in pursuance of Article 34 hereof shall be appointed by the President.

(2) All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law…”.

“Subject to the foregoing provisions of this Constitution relating to the Courts, the following matters shall be regulated in accordance with law, that is to say:

(i) The number of judges of the Supreme Court and of the High Court, the remuneration, age of retirement and pensions of such judges,

(ii) The number of judges of all other courts, their terms of appointment and

(iii) The constitution and organisation of the said Courts, the distribution of jurisdiction and business amongst the said courts and judges and all matters of procedure.”

“(2) The Supreme Court shall be constituted of the following judges -


(a) The President thereof namely An Proimh-Bhreithneamh (The Chief Justice) and


(b) Not more than seven ordinary judges each of whom shall be styled ‘Breithneamh den Chúirt Uachtarach’ (‘Judge of the Supreme Court’).

(1) “The number of ordinary judges of the Supreme Court shall be four”.

“… words denoting numbers, places or identified persons admit of no debate”.

“The Chief Justice or, in his absence, the senior ordinary judge of the Supreme Court for the time being available may determine that an appeal to or other matter cognisable by the Supreme Court, not being a matter so cognisable under Article 12 or Article 26 of the Constitution or a question of the validity of any law having regard to the provisions of the Constitution, is to be heard and determined by three judges and, where such determination is made, the appeal or matter to which the determination relates shall be heard and determined by three judges of the Supreme Court, including judges who are by virtue of subsection (3) or (4) of section 1 of the principal Act, additional judges of the Supreme Court.”

7 .—Section 7 of the Act of 1961, is hereby amended by the substitution of the following subsections for subsections (3) and (4):


"(3) The Supreme Court may sit in two or more divisions and they may sit at the same time.


(4) Subject to subsection (5) of this section, the Chief Justice or, in his or her absence the senior ordinary judge of the Supreme Court for the time being available, may determine that an appeal to or other matter cognisable by the Supreme Court may be heard and determined by a division of five or three judges of the Supreme Court, including judges who are by virtue of subsection (3) or (4) of section 1 of the Principal Act, additional judges of the Supreme Court.


(5) An appeal to or other matter cognisable by the Supreme Court under Article 12 or Article 26 of the Constitution or a question of the validity of any law having regard to the provisions of the Constitution shall be heard and determined by not less than five judges of the Supreme Court including judges who are, by virtue of subsection (3) or (4) of section 1 of the Principal Act, additional judges of the Supreme Court.".

In answer to the foregoing arguments, the respondents point out that, in the constitutional provisions relied upon, there is in fact no requirement as to the number of judges who must constitute the High Court or the Supreme Court in any case. Indeed, neither Article 34 nor Article 36 imposes any requirement that the Supreme Court sit as a multi-judge court in all cases or precludes the High Court from sitting as a multi-judge court at its own discretion. The High Court in fact does this when it is thought desirable that a particular case be heard by a “divisional court”.

“… becomes permanently incapacitated (such incapacity being established to the satisfaction of the Supreme Court consisting of not less than five judges”. (Emphasis added)

“… The Supreme Court consisting of not less than five judges shall consider every question referred to it by the President under this Article for a decision…”. (Emphasis added)

The total number of judges of the Supreme Court has varied on a number of occasions since the foundation of the State. The number was originally fixed at three in 1924, increased to five in 1936 and increased to the Chief Justice and “not more than seven” ordinary judges by amendment to the Act of 1961 effected in 1995. Accordingly, at the time when the Constitutional provisions quoted above were framed the Supreme Court consisted of a Chief Justice, four ordinary members of the Court, and the President of the High Court as an ex officio member.

It is accordingly clear that in providing, by way of “regulation”, only that the Court should in certain circumstances consist of not less than five members, the Constitution, in the Articles mentioned above, was specifically envisaging that not every member of the Court might sit in such a case, at least if the ex officio member is taken into account. Indeed, a provision requiring that certain matters be determined by a Supreme Court consisting of “not less than five judges” naturally envisages that there will normally be at least five persons capable of sitting on the Court, and clearly implies that the Supreme Court may well consist of more than five judges.

In regulating the composition of the Supreme Court, for certain purposes, as it does, the Constitution does not in any way equate the number of judges thus fixed (not less than five) with “the (Full) Court” (a phrase of Mr. Riordan’s) or any such construct. On the contrary it expressly envisages, and permits, that some one or more of the members of the Court may not be sitting in any individual case. Since the amendment to the 1961 Act effected in 1995, it is particularly clear that the Oireachtas envisaged this.

Speaking of the constitutional provisions now under discussion, the Supreme Court in Riordan v. An Taoiseach (No. 4) [2001] 3 IR 365 at p.369 observed:

“Those are the only provisions to be found in the Constitution which require that a decision of a court is to be given by not less than a specified number of the members of the Court. Their existence is wholly irreconcilable with any alleged requirement that every matter coming before the Court in the exercise of its appellate jurisdiction may only be decided by a court consisting of all the members of the Court for the time being. No provision exists either in the Constitution or in statute law and given the extent of the Courts appellate jurisdiction and the necessity to ensure, in the interests of the proper administration of justice, its reasonably expeditious and economic dispatch, it would be remarkable if any such provision existed”.

The Court can see no basis on which an obligation (if such it is) to “regulate”, that is to provide by rule for, the number of judges, cannot be met in the way it has in fact been met in our statute law. The fact that the Constitution itself regulates the number of judges that sit in particular circumstances by the use of the formula “not less than” appears to the Court to mean that the Constitution itself specifically contemplates regulation in that form and there is no difference whatever between a “not more than” formulation and a “not less than” formulation in principle. Each envisages that practical exigencies may arise which make it possible that more than the minimum number of judges should be able to sit, on the one hand, and on the other that the business of the Court may be capable of being discharged with less than the total number of members of the Court.

It seems to the Court that to interpret the Constitutional provisions in the way contended for by Mr. Riordan would actually restrict, rather than expand, the regulatory power of the Oireachtas.

(2) Mr. Riordan’s second challenge, to Sections 7(3), (4) and (5) of the Act of 1961 (expressed at paragraph 3, 4 and 5 of the Notice of Appeal) amounts in effect to a contention that the Court of Final Appeal in deciding any particular issue must consist of all the members of the Supreme Court sitting together and may not consist of any smaller number of members of the Court. This contention, or an issue difficult to distinguish from it, has come before the Courts on two previous occasions, Riordan v. Ireland (No. 4) [2001] 3 IR 365 and State (Williams) v. Kelly [1970] IR 259. This latter case predated the provisions of the Act of 1995 making particular provision for divisions of the Supreme Court sitting to deal with particular cases. No constitutional issue was raised until Mr. Riordan did so.

Many of the arguments which were rehearsed in relation to Mr. Riordan’s previous submissions are relevant here also. The fact is that there is no constitutional provision requiring that the Court of Final Appeal can consist only of all the members of the Supreme Court sitting together. Indeed, as set out above, Mr. Riordan contends that the Supreme Court, under the present legislative and constitutional regime, might consist of the Chief Justice sitting alone or of the Chief Justice accompanied by any number of ordinary judges from one to seven. As was the case in relation to the previous point taken (as to the number of members of the Supreme Court), the appellant’s case here reduces itself to the proposition that there has been a failure to regulate this matter of procedure so that the question of the number of members of the Supreme Court who may sit is left to the determination of the Chief Justice rather than being regulated by law.

The provisions of the impugned sections here, which are clearly in the nature of provisions to regulate certain matters to do with the Supreme Court’s procedures, are as follows, as substituted by section 7 of the Act of 1995:

7 .—Section 7 of the Act of 1961, is hereby amended by the substitution of the following subsections for subsections (3) and (4):


"(3) The Supreme Court may sit in two or more divisions and they may sit at the same time.


(4) Subject to subsection (5) of this section, the Chief Justice or, in his or her absence the senior ordinary judge of the Supreme Court for the time being available, may determine that an appeal to or other matter cognisable by the Supreme Court may be heard and determined by a division of five or three judges of the Supreme Court, including judges who are by virtue of subsection (3) or (4) of section 1 of the Principal Act, additional judges of the Supreme Court.


(5) An appeal to or other matter cognisable by the Supreme Court under Article 12 or Article 26 of the Constitution or a question of the validity of any law having regard to the provisions of the Constitution shall be heard and determined by not less than five judges of the Supreme Court, including judges who are, by virtue of subsection (3) or (4) of section 1 of the Principal Act, additional judges of the Supreme Court.".

The appellant attacks this statutory provision on the basis that a determination of the Chief Justice or the senior ordinary judge cannot oust the jurisdiction conferred “on the (Full) Supreme Court” by Article 34.4.3 of the Constitution nor can an Act of the Oireachtas do so under the conditions specified in Article 34.4.4 when the case involves questions as to the validity of any law having regard to the provisions of the Constitution.

The appellant also submits that there is no provision in the Constitution which authorises a delegation of power to determine the jurisdiction of a division of five or three judges of the Supreme Court to the Chief Justice or the senior ordinary judge.

These matters which it is within the power of the law-making authority to “regulate”. The appellant’s argument in the view of the Court becomes circular: he says that only the Oireachtas can regulate the composition of the Supreme Court for any particular case and he then claims that the regulation actually made by the Oireachtas, quoted above, is invalid because the Oireachtas has no power to provide that this power be exercised by anyone else.

In the view of the Court this ground of appeal, a composite of three grounds of the original notice of appeal, must likewise fail because the practice of having the Supreme Court sit in divisions is plainly envisaged by statute and no adequate case whatever has been made for the propositions that the statutes are unconstitutional. It must also be stressed that there is simply no such body in law such as Mr. Riordan describes as “the (Full) Supreme Court”. The constitutional entity is the Supreme Court, the Court of Final Appeal in our jurisdiction. This Court is required by and described in the Constitution and regulated, as to the matters mentioned in the Constitution, by statute. The Constitution provides that certain matters including matters of procedure, are to be regulated by law. It would certainly have been possible for the Constitution or the law to provide that the Supreme Court should sit always en banc but it did not do so. It is a matter of general knowledge, at least amongst lawyers, that certain Courts of Final Appeal such as the United States Supreme Court do sit en banc, and that others, such as the Appellate Committee of the House of Lords in the United Kingdom do not, but sit in divisions. No doubt there is something to be said for each arrangement. But there is in this jurisdiction a statutory provision for the Court to sit in divisions and nothing in the Constitution which precludes the making of such provision. Nor is there anything which precludes the Oireachtas from deciding that (apart from the two specific cases mentioned) the Court may on any particular occasion consist of three or five judges at the discretion of the Chief Justice or the Senior Ordinary judge available. It is the will of the Oireachtas that matters should be so arranged. They are so arranged by Act of the Oireachtas. The Court cannot see that this in any way cuts down or restricts the power of the Oireachtas: on the contrary it expresses its will. The power of the Oireachtas would be cut down if it were required itself to decide in every case how many judges were to sit and were precluded from allowing this function to be performed by a judicial office holder familiar with the individual cases. The Constitution itself, in Article 36, quoted above, specifically provides for the regulation of certain matters concerning the Courts to take place by law. Mr. Riordan is entitled to dislike the provisions of these laws and to consider that some other provision would be better, but he has failed to point to any constitutional provision which could be considered as preventing the Oireachtas regulating as it did.

The foregoing portions of this judgment addresses grounds (1), (3), (4) and (5) of the relief sought in the Notice of Appeal. It is now proposed to discuss the appellant’s challenges to the constitutionality of Sections 1(3), 1(4), 2(3), 2(4) and 2(5) of the Courts (Establishment and Constitution Acts at 1961). These matters are raised at paragraphs 6, 7, 8, 9 and 10 of the Notice of Appeal. This will, accordingly, be the third substantive portion of the judgment.


(3) Ex officio and additional judges.

It will be seen from the Notice of Appeal that s.1(3) of the Act of 1961 which is impugned provides that:

“The President of the High Court shall be ex officio an additional judge of the Supreme Court.”

Where a judge of the High Court sits as an additional judge of the Supreme Court, or a judge of the Supreme Court as an additional judge of the High Court, he or she does not therefore cease to be a judge of the Court to which he or she was appointed. On the contrary, the liability to be asked to sit as a judge of the other court on a temporary basis is an incident of membership of the Court to which he or she was first appointed. It will be seen from the statutes that the circumstances in which such a request may be made relate to a deficiency of the number of judges actually available to attend to the business of the Courts or reasons to do with the volume of such business or arising from the state of business in the Court. Where these matters give rise to a temporary difficulty, a temporary redeployment of the available judicial manpower is permitted. It is quite wrong to suggest that a person so requested to sit temporarily in another court is, while doing so, immune or exempt from the obligations to act duly and faithfully, to the best of his or her knowledge and ability, without fear or favour affection or ill will, or to uphold the constitution of the laws.

In considering the applicant’s submissions on this point, it is relevant to consider the state of the law at the time of the Constitution’s adoption. The nature of this relevance was outlined in: Re Article 26 of the Constitution and the Offences against the State (Amendment Bill) 470. There, this Court was asked, by counsel assigned to challenge the Bill which had been referred pursuant to Article 26, to find its provisions for internment unconstitutional. In the course of its judgment the Court said:

“Before dealing with [the relevant articles] we desire to point out that several Acts authorising the detention of persons had been passed by the Oireachtas of the Irish Free State prior to the enactment of the Constitution which we are now considering. The existence and effect of these Acts must have been within the knowledge of the framers of the Constitution and, nevertheless, there is no express prohibition in the Constitution against such legislation. This is a matter to which we are bound to attach considerable weight in view of the fact that many articles of the Constitution prohibit the Oireachtas, in plain and unambiguous language, from passing certain laws therein specified.”

“Every ordinary judge of the Supreme Court shall travel and sit as a judge of the High Court on Circuit whenever requested by the Chief Justice so to do, and every such judge when so travelling and sitting shall be an additional judge of the High Court.”

Apart from the illness of a judge, which must always be provided for, there may be other circumstances such as a previous involvement in a case or with the litigant which makes it impossible or inappropriate for a judge of the Supreme Court to sit in a particular case. This might give rise to a difficulty in hearing the case at all if it were not possible to replace such judge with an additional judge of the Court, selected from amongst the ordinary judges of the High Court.

As with the previous points raised on this appeal, it is necessary to enquire what is the precise respect in which these provisions are said to be contrary to the Constitution. The learned High Court judge considered, and the Court agrees with him, that the real issue raised was that an additional judge of either the High Court or the Supreme Court was sitting in a court to which he had not been appointed by the President thereby rendering his sitting in that other court unconstitutional. The appellant says that:

“There is no power in the Constitution providing for the delegation of the power to appoint judges to the Court established in pursuance of Article 34 of the Constitution to the Chief Justice or any person or body”.

The Court entirely agrees with the observation of the learned trial judge that:

“There is no constitutional prohibition on judges of either court sitting as judges of any other court provided that in doing so they do not breach the provisions of Article 35.3 of the Constitution to the effect that no judge shall be eligible to hold any other office or position of emolument. The effect of the Article of the Constitution on the ability of judges to perform functions other than their constitutional role of the judges of the Courts to which they have been appointed has already been considered by the Supreme Court in other proceedings taken by Mr. Riordan challenging the entitlement to have a High Court judge to sit as the Chairperson of a commission or as the sole member of a Tribunal of Inquiry (see Riordan v. An Taoiseach (No.1) [1999] 4 IR 321 at 337.”

But the Court has no reason to believe that he has been a litigant before any judge sitting as an ex officio or additional judge of either the High Court or the Supreme Court. It notes that he contends in the Statement of Claim that he has a direct interest in ensuring that the Courts are properly constituted in accordance with the Constitution and the laws as enacted by the Oireachtas are in accordance with the Constitution. But the Court is not affirmatively satisfied that he had no interest and is therefore in the position of the plaintiff in Cahill v. Sutton [1980] IR 269, that is to say that he is attempting to “champion the putative constitutional rights of a hypothetical third party”.

(4) The Court of Criminal Appeal.

The remaining point urged by the appellant is a challenge to the constitutionality of s.3(2) of the Courts (Establishment and Constitution) Act, 1961. This relates to the Court of Criminal Appeal and provides as follows:

“3(1) On the commencement of this Act, a Court of Criminal Appeal, which shall be called An Chúirt Achomhairc Choiriúil (The Court of Criminal Appeal) shall stand established.


(2) For the purpose of hearing and determining any particular appeal cognisable by the Court of Criminal Appeal, the Court of Criminal Appeal shall be summoned in accordance with directions to be given by the Chief Justice, and the Court shall be duly constituted if it consists of not less than three judges -
(a) one of whom shall be either


(i) the Chief Justice, or


(ii) an ordinary judge of the Supreme Court nominated by the Chief Justice, and

(b) of whom the other two shall be either -

(i) two ordinary judges of the High Court nominated by the Chief Justice, or


(ii) the President of the High Court, if nominated by the Chief Justice and willing to act and one ordinary judge of the High Court nominated by the Chief Justice.


but any other available judge or judges of the Supreme Court or the High Court may, at the request of the Chief Justice, attend as a member or members of the Court”.

The Court of Criminal Appeal is principally concerned with the hearing of appeals, against either conviction or against sentence, or both, from persons convicted on indictment i.e. after a trial before Judge and Jury in the Circuit Criminal Court, the Central Criminal Court or after a non-jury trial before the Special Criminal Court. The Court also has a jurisdiction to hear applications by the Director of Public Prosecutions for review of sentences on the grounds of undue leniency. It also has certain functions in relation to appeals on the ground of new or newly discovered evidence, and applications to have certain convictions declared to have been miscarriages of justice, and certain other statutory jurisdiction.

The appellant has never been a party to any litigation before the Court of Criminal Appeal because he has never been charged with, and therefore never convicted of, an indictable offence. Indeed, lest the contrary impression be given, it should be stated that, as far as the Court is concerned, he has never been charged with or convicted of any offence.

However it appears that some years ago the appellant attended at the Court of Criminal Appeal and attempted to intervene in an appeal taken by the accused in a case called DPP v. Gilligan. This was an appeal by one John Gilligan who had been convicted of serious criminal offences.

The appellant addressed the Court of Criminal Appeal and said that the judges sitting on that occasion were acting “in an unconstitutional manner” and “in direct violation of their judicial law or declaration of office to uphold the Constitution”. He claimed that he had locus standi to seek the Court’s assistance to terminate what he described as a “deliberate violation and subversion of the Constitution by individuals holding judicial office who have acted as judges in his cases”.

It seems that the Court of Criminal Appeal declined to entertain the appellant’s attempted intervention in the Gilligan case.

This was an entirely justifiable stance by that Court since the appellant was not a party to the proceedings involving Mr. Gilligan. He was not entitled to intervene in the proceedings. His attempted intervention, without any justification, is not capable in itself of conferring locus standi on him. If it were otherwise, then any person could confer locus standi on himself by simply going along to a hearing and addressing the Court without invitation or entitlement.

The rules relating to locus standi are of ancient origin and require that a person who wishes to initiate or participate in court proceedings should himself have a cognisable interest in the subject matter of these proceedings. The leading modern statement of the rule is that to be found in Cahill v. Sutton [1980] IR 269. There, this Court refused the plaintiff a right to maintain the proceedings in order to “champion the putative constitutional rights of a hypothetical third party”. A plaintiff must have a personal standing in the sense of being able to show (in this case) that the impugned statutory provisions adversely affect or threaten his own personal interest. In the case in which Mr. Riordan attempted to intervene, Mr. Gilligan and his lawyers had obvious standing and they and the prosecution were the persons entitled to decide what matters or issues should, and what should not, be raised before the Court.

All citizens have a right of access to the Courts which, in other cases, the Courts have been sedulous in protecting. But this right of access is for the purpose of resolving justiciable issues and not for the purpose of constituting the Courts as a sort of debating society or deliberative assembly for the discussion of abstract issues. In the words of Henchy J. in Cahill v. Sutton:

“It would be contrary to precedent, to constitutional propriety and the common good for the High Court and this Court to proclaim itself an open house for the reception of such claims”.

“In vindicating the constitutional rights of any person it is of importance that the rights of the community as a whole or identifiable persons or officers or offices in it are not disregarded (e.g. by being open to harassment oppression or scandalous or vexatious litigation). The common good and the respect of society as a community for a justice system is not served or ensured by a disproportionate concern for the rights of the individual at the almost inevitable expense of a disregard for the rights of society by an over indulgence of every or any complaint of an individual. The Courts in respecting the rights of all of those who seek access to the Courts must also have some self respect. Otherwise there is the real possibility, nay probability, that the justice system will be abused and/or manipulated for unworthy purposes”.

For the reasons set out above the Court would dismiss the appeal. It would also uphold the order made by the learned trial judge (at pages 32 and 33 of his judgment) to the effect that any further applications by the appellant for leave to commence or continue proceedings should be made by application in writing on notice to the intended defendants or respondents supported by an affidavit referring in full and complete detail to all earlier applications, motions, actions or proceedings of any nature whatever in which the matters intended to be raised in the proposed proceedings were previously raised by him in such earlier matters or proceedings.

Audit Trail: