Judgment of Mr. Justice Clarke delivered on the 24th April, 2015
1. Introduction
1.1 I agree fully with the judgment delivered by O'Donnell J. in these two appeals. I write this concurring judgment for the purposes of explaining briefly some aspects of the reasons why I support the conclusions set out by O'Donnell J. in his judgment. I also include some observations on a number of the issues which arose in the course of these proceedings.
1.2 For the avoidance of doubt, I wish to emphasise that nothing which is said in this concurring judgment should be taken as in any way indicating that, in my view, the test set out at para. 85 of the judgment of O'Donnell J. should, in any way, be altered or modified. It is important, for the purposes of absolute clarity, that there be no doubt but that the test set out in that paragraph represents the basis on which a court faced with a referendum petition should analyse the question of whether a material effect on the result of the referendum in question, resulting from an established breach of law, has occurred. Indeed, it might well be said that one of the difficulties which arose on the appeal in respect of the referendum petition in this case was identifying with precision the test which this Court applied in Hanafin v. Minister for the Environment [1996] 2 IR 321. The respective judgments of the members of this Court in that case seem to express the test in somewhat different terms, thus leading to a potential difficulty in identifying a test which was supported by a majority of the members of the Court. In my view, the proper test is that identified by O'Donnell J. in his judgment in these appeals.
1.3 As the facts which underlie the issues which arise in both of these appeals are very fully set out in other judgments I do not propose to rehearse them here. I turn first to the issues.
2. The Issues
2.1 There were three main issues which arose on these appeals. The appeals themselves, of course, encompassed both the referendum petition brought before the High Court challenging the provisional result of the Referendum in respect of the 31st Amendment of the Constitution (Children) Bill ("the Referendum"), and the plenary proceedings which challenge the consistency of certain aspects of the Referendum Act 1994 ("the 1994 Act") with Bunreacht na hÉireann. The issues which arose in that constitutional challenge were, to a significant extent, interlinked with some of the issues which arose on the referendum petition, not least the issue of the proper test or standard by reference to which it might be appropriate for a court to interfere with a provisional result.
2.2 However, the broad issues were as follows:
(a) An issue concerning the proper interpretation of the 1994 Act, insofar as it relates to a technical question of interpretation, arising out of the fact that the procedure contemplated involves an application by the petitioner for leave followed, if leave is granted, by a trial. The specific issue concerned whether the materiality of any established irregularity only properly arose, as the petitioner/appellant ("Ms. Jordan") argued, at the leave stage;
(b) The proper test to be applied in determining whether any established irregularity in the conduct of a referendum had, as specified in s.43(1) of the 1994 Act, materially affected the result;
(c) Whether, applying the appropriate test, a material affect had been established in this case.
2.3 As appears from other judgments, the constitutional issue was concerned with the second of those questions for, it was argued, if the test was as submitted on behalf of the defendants/respondents ("the State") then, it was said, the 1994 Act was inconsistent with the Constitution in that regard. I turn first to the technical question concerning the proper interpretation of the procedures provided for in the 1994 Act for the conduct of a referendum petition.
3. The Leave/Materiality Issue
3.1 On that technical question of interpretation of the 1994 Act, insofar as it governs the conduct of a referendum petition, I agree with the reasoning set out in the judgment of O'Donnell J. I would add only two further observations.
3.2 It is a fundamental requirement of fair procedures that any party potentially affected by a finding adverse to their rights and obligations should have an opportunity to be heard in an appropriate way on the issue in question. That principle applies just as much in the context of an election or referendum petition as it does in any other form of litigation. In the context of a referendum, it must be recalled that those who support the provisional result have just as much of an entitlement to have the argument in favour of upholding that provisional result fully considered by the Court as those who wish to challenge the provisional result have to present the opposite case. It must also be recalled that it is possible that a provisional result which led to the rejection of the proposal contained in a referendum can also be the subject of a challenge. It may well be that such a challenge would not be likely to be of the type which arises here, for it is unlikely that it would be contended that improper government expenditure influenced the result against the passage of a referendum. It is, after all, unlikely that a proposal to amend the Constitution, which is required to be passed by both the Dáil and the Seanad before being put to the people, would be likely to be opposed by the government of the day (although there is no formal reason why that might not be so).
3.3 But whichever side may challenge the result, those holding the opposite view are entitled to a procedure which ensures that the case against the challenge is fully and properly heard. In passing, I should observe that the provisions of the 1994 Act, and in particular ss. 44 and 46, which provide for the service of a petition in respect of which leave has been given and the conduct of the trial of such a petition respectively, are silent as to the parties, other than the petitioner and the Director of Public Prosecutions, who may be represented, although s.46 clearly contemplates that there may be a number of parties to the petition. Likewise, s.53 contemplates costs being awarded against a party without addressing whom such a party may be. The Rules of the Superior Courts which apply in respect of all forms of election petitions (Order 97) seem to expressly contemplate that any person who is required to be served with a petition, or any person who is directed by the court to be so served, can appear. In substance, that would seem to require that the Minister for the Environment is to be properly regarded as a Notice Party, together with any one else whom the court directs.
3.4 It should also be noted that the only parties who, in election type petitions, are regarded as respondents are electoral candidates affected or potentially affected by the petition in question. It does appear that the Minister for Children and Youth Affairs, the Government of Ireland, Ireland and the Attorney General were directed to be served in this petition and should, therefore, be regarded as Notice Parties. It is not clear as to whether the Minister for the Environment took any formal position. However, any such technical deficiency is more than overcome by the fact that the Minister for the Environment is a member of the Government of Ireland which was itself a Notice Party. However, it is worth commenting that it is important that there be clear precision as to who is to be regarded as a party to any specific election petition. This is particularly so in the context of a referendum petition, where the interests of citizens generally are engaged to a greater extent and where there are no candidates as such. Furthermore, it would, in my view, be useful if some attention were to be paid to putting in place procedures (whether at the level of legislation or rules of court) to ensure that the position of parties with a legitimate interest in the outcome of a referendum petition can be properly represented at the trial of such petitions.
3.5 Be that as it may, it is against such a background that the construction of the 1994 Act urged on behalf of Ms. Jordan needs to be considered. It is suggested that a proper interpretation of the relevant provisions of the legislation leads to the conclusion that the issue of whether an alleged irregularity in the conduct of a referendum had a "material" effect is to be considered only when an application for leave is brought before the Court. It must also be recalled that, while on the facts of this case the leave application was heard after the State was put on notice and at the same time as the substantive hearing, the 1994 Act contemplates that leave may be granted ex parte and having heard only those who might wish to challenge the provisional result. To suggest that, assuming leave is given, those who might wish to oppose the challenge and uphold the provisional result would be precluded, at the full hearing, from addressing the issue of materiality, would be to suggest that such parties would be denied a fundamental entitlement to be heard on an important part of the case.
3.6 Whatever may be the appropriate test to justify court interference with a provisional result, it involves some assessment of the material effect of the asserted irregularity. To require that an assessment of the effect of the irregularity be made once and once only at the leave stage, and thus, in a manner which did not give to those who wished to uphold the provisional result any opportunity to be heard, would be a significant breach of fair procedures.
3.7 To suggest that this could be cured by giving an opportunity to seek to have leave set aside on the grounds that materiality had not been properly established does not seem to me to provide an answer. It is true that it is always possible for a party who is affected by an order made ex parte to seek to have that order set aside. However, where the ex parte order is simply a means of introducing a filter to the commencement of proceedings which would, where leave is given, be followed by a full hearing, it is normally only considered to be appropriate to seek to revisit the ex parte order (rather than to contest the substantive hearing) where it can be suggested that the ex parte order was wrongly obtained by, for example, the placing of misleading evidence before the court or a failure in the duty of candour which lies on every applicant for an ex parte order. It would be open to significant doubt, in my view, whether it would be appropriate, at least in most circumstances, to seek to revisit an ex parte leave order by inviting the court to conduct what would, in substance, be a full hearing on the issues within the framework of an application to set aside leave.
3.8 In any event, even if such were possible, same would create an extraordinarily complicated procedural mire. As others have commented in their judgments in this case, it is of significant importance that a final determination of the result of a constitutional referendum is not held up by a lengthy court process. If the provisional result is to be confirmed then that should be done as quickly as possible so that the constitutional amendment approved by the people becomes effective without any delay. Likewise, if grounds are established for requiring a recount, a rerun or other intervention by the court, then those measures should be put in place as a matter of urgency to ensure that a final and definitive result is confirmed in the shortest possible time.
3.9 The interpretation urged on behalf of Ms. Jordan would run the risk of either or both of significant procedural unfairness, by excluding or minimising the entitlement of those supporting the provisional result to be heard on the question of materiality, or significant procedural over-complication almost inevitably leading to delay in reaching a final conclusion. As the process for amending the Constitution is itself a process with a high constitutional value, an interpretation which led to what I think can be described as, at a very minimum, giving rise to very significant difficulties, could only be favoured if no alternative interpretation were available. Even if, therefore, I had come to the view that there was some technical merit in the argument advanced on behalf of Ms. Jordan under this heading, I would, nonetheless, have favoured the interpretation adopted in the judgment of O'Donnell J. However, in any event, as noted earlier, in my view the proper construction can be arrived at by means of the analysis adopted by O'Donnell J. in the course of his judgment.
3.10 Before leaving this aspect of the case I wish to make one final observation. It is a point which may well have some relevance to other issues in these appeals as well. While there are many similarities between the voting process which is designed to elect public representatives, on the one hand, and that adopted in the conduct of referendums, on the other, there is, in my view, one important distinction.
3.11 Both processes involve the people exercising their constitutional entitlement to vote in the selection of their representatives or in determining the content of the Constitution. However, the election process also involves the rights and, potentially, obligations of those who seek office. While the electorate has an entirely legitimate and constitutional entitlement to vote on the question of who should be elected to office, it is fully open to the Oireachtas to put in place measures which impose obligations on those who seek office and which further provide, within certain boundaries which do not need to be explored for the purposes of this case, for the consequences of electoral misbehaviour, including the deprivation of office in respect of those in relation to whom significant electoral misbehaviour is established. There is, in my view, no reason at the level of principle why it may not be constitutionally possible to deprive a candidate of victory as a consequence of established serious misbehaviour in the electoral process even if it may not be clear that the relevant electoral misbehaviour actually affected the outcome of the election in the sense of affecting those who were elected.
3.12 However, different considerations apply in the case of a referendum. While it may, as a matter of practical politics, be possible to identify those, whether within the party political or elected representative system or otherwise, who support or oppose a particular referendum, the people have a right to have their views on the constitutional amendment in question accepted and enforced independent of the conduct of those who may support or oppose the referendum concerned. A referendum which the people genuinely support should not be denied passage even if some of those who support a yes vote have acted improperly. It is only where such improper actions have actually affected the outcome or, for reasons which I will briefly turn to, have potentially done so, that it is appropriate for the courts to intervene, for it is only in such circumstances that it can be said that there is a real risk that reasonable and informed members of the public would not actually trust the provisional outcome of the referendum as truly representing the will of the people. That analysis has some affect on the proper test to be applied. However, for present purposes, it is also important to emphasise that those who take a contrary view to a challenger to a provisional referendum result must be entitled to be assured that the case in favour of that provisional result will be fully and fairly heard. A referendum result should not be displaced simply because misconduct or error has been established. It should only be displaced where there is a basis for suggesting that what went wrong has actually affected the outcome.
3.13 The next major issue which arises in these cases is as to the test by reference to which that judgment should be formed. I, therefore, turn to that question.
4. The Test
4.1 It is important to emphasise that the types of irregularity which may potentially affect the result of any electoral process are many and varied. But so also is the extent to which it may be possible to analyse with precision the effect of any established irregularity. Some irregularities involve purely technical or "mechanical" questions concerning aspects of the casting of ballots, the counting of votes or the assessment of whether a ballot paper should properly be included in the count. In many such cases it will also be possible, if the court is persuaded that there was an irregularity, to determine the precise effect of that irregularity with absolute precision. If votes have been counted which should not have been included then the relevant ballot papers can be looked at and an exact adjustment made. Likewise, if votes have been excluded which should have been taken into account, a similar adjustment can be made.
4.2 In an intermediate category, cases may be found in which there has been an established irregularity in relation to votes cast, or which should have been cast, but where it is not possible to tell with precision how the relevant votes would have been cast had it not been for the irregularity. Examples in this category would be cases where voters were wrongfully deprived of the opportunity to vote, or where votes were cast but for some reason were not included in the count, and where the relevant votes are no longer available to ascertain how they were, in fact, cast. In such cases, it will normally be possible to identify, with some reasonable level of precision, the maximum extent of the possible effect of the irregularity. It should be possible, for example, to identify the number of voters wrongly excluded from the opportunity to cast their ballot or the number of votes actually cast which can no longer be found. These issues raise the so-called " magic number " question which has been addressed in some of the Canadian jurisprudence to which we have been referred, and which is cited in other judgments of the Court. In some cases the answer may be straightforward. If the maximum number of votes potentially affected by the irregularity is 1,000 and the margin at the end of the day is more than 1,000 then the irregularity could not have made a difference and no basis for upsetting the original result would exist. The more difficult question arises where the number of votes affected is less than the margin, but where, as a matter of practicality, it is unlikely, or even highly unlikely, that all of the relevant votes affected by the irregularity in question would have been cast in the same way, so as to change the result.
4.3 However, the third, and most difficult category of case is one in which the irregularity is not so much concerned with practical questions, such as legitimate voters being denied the opportunity to vote in a proper way, or votes which have been properly cast not being taken into account, but rather where improper activity has been established which might be argued to have affected the way in which people voted. Some mention in that context should be made of cases involving an allegation of personation or other forms of voter fraud. It may be possible to establish that certain votes were fraudulently cast and to invite the court to determine, for the purposes of assessing materiality, whether it is possible to say how those votes were cast and whether the removal of those votes from the process would affect the result. Such cases do not really fit into the third category which I have sought to identify. They cannot properly be described as cases where there has been, on the face of things, a proper ballot and a proper count, but where the potential problem may stem from the fact that people may have been improperly influenced in the way in which they actually voted.
4.4 While a case involving unconstitutional expenditure, such as the present, is an example of the third type of irregularity, there can be others. Cases of, for example, bribery come to mind. A result may have been declared on the basis of an unimpeachable process for the casting and counting of votes. However, it may be established that bribery or other electoral malpractice of that type was deployed. In such a case the effect is more difficult to establish, for it requires an assessment of how people might have voted were it not for the irregularity. There is, therefore, a very real distinction to be made. On the one hand there are cases which focus simply on whether all the votes which should have been cast and counted (but only those votes) were properly assessed, but which do not involve any assessment of the way in which any individual voter cast their ballot (except to the limited extent of determining whether the total number of votes affected by any irregularity could have made a difference). On the other hand, there are cases where the irregularity concerns whether votes which were, on their face, properly cast and counted, may have become tainted by a more general form of irregularity.
4.5 This case is clearly of that third kind. There is no suggestion but that the provisional result properly represents the calculation of all of the votes which were correctly cast and counted, and there is no suggestion that voters were improperly deprived of the opportunity to cast their votes or to have votes which were cast properly counted.
4.6 In such a case it must, at least to some degree, be uncertain as to what the precise result, in terms of votes, would actually have been had it not been for the irregularity. It is not simply a question of counting votes which were wrongly excluded, or estimating the maximum number of persons affected, for example, by a wrongful failure to open a polling station. It is a question of estimating how the electorate would have cast their votes had it not been for the relevant irregularity. Did people actually vote who might not have voted had it not been for the irregularity, or did people not vote who might have voted in its absence? Did people actually change their vote? All of these, and doubtless more, are possible consequences of irregular expenditure, but they are in the nature of hypothetical considerations. The Court is being asked to assess what would, hypothetically, have happened in the event that the irregularity concerned had not occurred.
4.7 Against that background, I agree with the analysis to be found in the judgment of O'Donnell J. as to why the test proposed in his judgment properly meets the constitutional values at stake. A case in which a reasonable and informed citizen could not reasonably be expected to trust that the result would necessarily have been the same in the absence of whatever irregularity is established is a case in which the provisional result cannot be said to necessarily represent the will of the people properly exercised in accordance with law.
4.8 To the reasoning of O'Donnell J. I would merely add one further observation. The test of the balance of probabilities which is used in all civil proceedings applies in its pure form to the assessment by a court, or other decider of fact, of events which actually did or did not occur, but where uncertainty arises as to the facts because the evidence is weak, inconclusive or contradictory. In such a case, the decider of fact is required to assess all of the available evidence and to decide what actually happened on the balance of probabilities. But in such cases the court, or other decider of fact, seeks to reach a conclusion about an event which did or did not actually occur. In cases where a court has been asked a somewhat different and hypothetical question about what might have been, a somewhat different approach has sometimes been adopted. Where a court is, for example, asking itself as to what would have happened in the event that a particular act of wrongdoing had not taken place, the court is, by definition, asking itself a hypothetical question. The wrongdoing did occur and has been established. In order to assess the appropriate remedy, the court is required to compare what actually happened as a result of that wrongdoing with what might, hypothetically, have happened if the wrongdoing had not occurred. In some cases the answer may be obvious and straightforward. If the car had not crashed, the plaintiff would not have broken their leg and would not have suffered an interruption in their work with consequent loss of wages. If the defendant had supplied the contracted goods, then the plaintiff would have had those goods for sale and would, doubtless, have been able to secure the market price and achieve whatever profit that reflected.
4.9 But other cases may be more complex. What would the patient or client have done had they been properly advised by their lawyer, accountant or doctor? In many such cases there may be a range of possibilities, no single one of which may even be probable (in the sense of being more than 50% likely). Many other examples could be given. In such cases, the courts frequently adopt an analysis which accepts that there is a range of possible consequences for a hypothetical event, all of which need to be properly taken into account in assessing the overall consequence. For a brief discussion of this question note might be taken of the comments which I made, in my article, writing extra judicially, " Frances E. Moran Memorial Lecture: ‘ Do Hard Sums Make Bad Law? Mathematics in the Courts '", (2014) 37 D.U.L.J 1.
4.10 It is not, of course, the case that the standard of proof to be applied in civil proceedings is ever anything other than the balance of probabilities. However, it is important to analyse carefully the precise question which needs to be resolved by reference to that standard. Where the question is as to whether a disputed fact is correct then the application of that standard in its pure form is easily understood. However, where the question raises the range of hypothetical possible consequences of an event which did not, in fact, occur, then the question itself may be different, and may involve the court assessing a range of realistically possible consequences. A court may, in such circumstances, reasonably conclude on the evidence that there was, for example, a realistic possibility of a particular course of action having been adopted by a party to whom negligent advice was given. That possibility may fall short of a probability but nonetheless the client or patient may still be entitled to damages.
4.11 Without pushing the analogy too far, it seems to me that a like consideration arises in respect of the third category of voting irregularity which I have earlier identified. Assuming that the irregularity is established, then the question which must be asked is as to what would have happened had the irregularity not occurred. That is necessarily a hypothetical question. The irregularity did occur and people voted whatever way they did in the light of that irregularity. How they would have voted had it not been for the irregularity is necessary hypothetical, and it is, equally necessarily, the case that there is a range of possible outcomes to such analysis, no one of which is " probable ". The test proposed by O'Donnell J. is not one which requires a pure balance of probabilities approach because there is, in reality, a whole range of possible consequences which may be capable, within a margin of error, of being assessed, but none of which actually involves an assessment of facts which either did or did not occur.
4.12 It might, of course, be possible to attempt to answer the question as to whether more than 50% of the weighted range of possible consequences would have resulted in a different outcome to the referendum to the one contained in the provisional result. But any such analysis would, necessarily, involve questions of margins of error and statistical significance. The extent to which the absence of perfect information (a point to which I will return) might increase the range of potential error adds a further complication. To test this question, one might envisage a case where there was an unimpeachable set of survey data available which all experts agreed gave rise to a 51% probability that the relevant irregularity did not affect the result (in the sense of turning a yes into no or a no into yes) and a corresponding 49% probability that it did affect the result. Should such a result stand? On one view, it is probable (even if only just) that the result was not affected by the relevant irregularity. But another way of looking at exactly the same figures is to say that an informed citizen would be faced with being asked to trust the result of a referendum where we cannot approach the issue of the effect of the relevant irregularity with precision, and where the best we can do is to say that there was only a 49% chance that the irregularity changed the result. In my view, it is sufficient to state that proposition to understand why it cannot represent the proper test.
4.13 On that basis, I have no hesitation in agreeing with the test as formulated in the judgment of O'Donnell J. So far as the application of that test to the facts of this case is concerned, I have little to add to the analysis found in other judgments of the Court. I would only emphasise one point. The margin in this case was very significant. The evidence concerning the effect of the undoubtedly unconstitutional governmental expenditure was limited. But it is important to emphasise that, in a case where it was otherwise, and the evidence of effect greater and the margin smaller, a very different finding could be reached. I do, in the context of the evidence in this case, however, wish to make some brief observations on the use of survey evidence in litigation.
5. Survey Evidence
5.1 One of the significant disputes which emerged before the High Court, and which was the subject of significant debate before this Court, concerned the use of survey evidence coupled with the expert analysis of that survey evidence by political scientists. It is not my intention to comment on all of the issues under that heading which were canvassed both at the trial and on appeal. Those issues have been addressed both in the judgments of the trial judge and in other judgments of this Court on these appeals. However, there are a small number of observations which I wish to make.
5.2 First, I should record that it does not seem to me that there is any reason in principle why survey evidence and expert views derived from that survey evidence cannot form an appropriate evidential basis for certain types of finding of fact. While there may well be a legitimate debate as to the extent to which the sort of survey evidence frequently deployed in the social sciences can be compared to the type of experimental evidence used in the physical sciences, it must be recalled that courts should have regard to any potentially probative and admissible evidence which is material to any question of fact which the Court needs to determine to decide the case before it. Ordinarily, questions concerning the reliability of scientific evidence (whether of general theory or specific to the facts of the individual case) go to the weight to be attached to that evidence in reaching an overall conclusion. If, and to the extent that, a court is satisfied that survey evidence can have a bearing on a factual decision which the court is required to make, then that evidence should be considered. To the extent that there may be legitimate questions over the survey methodology, the interpretation of the results of the survey or the conclusions which can be reached as a result of the relevant findings, those are matters which affect the weight which the court should attach to the evidence in question and may, in that way, have a significant effect on the ultimate outcome of the court's factual findings.
5.3 But in that regard it does not seem to me that survey evidence is any different to any other form of forensic or experimental evidence. The circumstances in which forensic evidence was obtained or maintained, the methodology used in its collection or analysis, the scientific basis for its interpretation and the expert views as to what can be gleaned from the relevant information are all matters which may, to a greater or lesser extent, be the subject of debate in any case in which expert evidence based on an analysis of physical or other materials may be of assistance in reaching a conclusion on the facts.
5.4 But a second matter, which must also be borne in mind, is that it is important to keep clearly in focus the precise question with which the court is concerned in any particular case. Many disciplines (not least the social sciences) have appropriate protocols for the conduct of research and for reaching conclusions based on that research. It would, indeed, be foolish for any court which is asked to take such evidence into account not to have regard to whether relevant protocols or recommended practises were complied with. But it must be recalled that the task of a court is not the same as the task of those charged with considering whether, for example, an article should be published in a learned peer review journal. A court is required to make a decision on the facts and is invited to take certain evidence into account in assessing those facts. The precise, factual question which the court may have to address may not raise exactly the same as the issue which might typically be required to be addressed in a journal article. A lack of compliance with what some might consider to be best practice might legitimately lead to an article which reflected the results of relevant research not being accepted for publication. But provided that a court is of the view that the findings were of some assistance in determining facts which needed to be found to decide the case, then the court should consider those findings while, of course, taking into account, in considering the weight to be attached to same, any substantiated criticism of the methodology or analysis.
5.5 It must also be acknowledged that the precise factual question which the court has to answer can have a very significant bearing on the extent to which any legitimate criticism of the methodology or methods of analysis might lead to a significant devaluation of the expert conclusions reached for the purposes of the case in question. If, for example, a court was required to be satisfied that there was a more than a 50% likelihood that a particular state of affairs persisted, then it might well be necessary to conduct a very rigorous statistical analysis to ascertain whether that threshold had been reached. It might, in that context, be necessary to resolve debateable questions over the precise statistical methodology which should be adopted. Questions concerning the extent to which the raw data was appropriate or sufficient to allow a sufficiently rigorous analysis to be conducted might also loom large. As in all other cases, the question of the onus of proof may, where the evidence is sparse, prove to be decisive. A legitimate criticism as to the methodology adopted might lead to a finding that the party on whom the onus of proof rested had failed to discharge that onus.
5.6 In the context of this case, the evidence which might be regarded as sufficient to establish that, as a matter of mathematics, it was more than 50% likely that the unconstitutional expenditure of the government changed the result of the referendum from a no to a yes could be very different from the kind of evidence which would be material in deciding whether the test which O'Donnell J. has set out in his judgment has been met.
5.7 That leads to the last point. Much of the criticism which was to be found in the evidence of Professor Marsh as directed towards the evidence presented on behalf of Ms. Jordan was concerned with the ideal conditions in which one might structure survey evidence and data in order to reach conclusions on the materiality of the unconstitutional government expenditure which occurred in this case. But it must be recalled that every day, in all sorts of cases, and in relation to all sorts of evidence, courts are called on to do the best they can with the evidence which happens to be available. Doubtless it would make the determination of liability in motor accident cases a lot easier, and rarely controversial, if the circumstances of all accidents were clearly caught on CCTV. Doubtless an unfortunate but explained gap in the records of events may make it much harder to assess business conduct or professional activity which may be the subject of litigation. Very many other examples could be given. But in the messy world of real litigation, courts rarely have the luxury of having available to them evidence obtained in what might be called the real world equivalent of laboratory conditions. But courts are nonetheless required to do the best they can in assessing such evidence as may be available. Of course, it remains the case that it is open to a defendant to assert that the plaintiff has just not put forward sufficient evidence to discharge the onus of proof. Survey data and its analysis are potentially as subject to that type of criticism as any other type of evidence. It may be said that it just falls so far short of the kind of materials on which any sort of safe conclusion could be reached so that the party presenting the evidence in question has failed to meet the onus of proof. But the fact that the evidence falls a long way short of the ideal which might be put in place, in advance, by experienced professionals in the social sciences, does not mean that the evidence may not, nonetheless, be sufficient, in an appropriate case, to discharge the onus of proof.
5.8 That question, in the context of survey data and analysis, is no different to that which arises in the context of any other kind of evidence. The question is not whether there might, theoretically, have been better evidence. There almost always will. The question is whether there is enough.
5.9 In the light of those general observations, I wish to conclude with a few points concerning their application to the facts of this case. First, I should say that I have no reason to doubt but that Professor Marsh was correct when he said that the proper way to conduct a rigorous analysis of the effect of an intervention, such as the government expenditure in this case, would be to have a series of surveys from which the impact of the relevant expenditure might be inferred. But to impose such an obligation would be to require a person to anticipate a breach of the Constitution in the course of a referendum campaign. How else would a potential challenger be able to have the evidence which Professor Marsh identified as being ideal unless they had decided, just in case, to commission the relevant laboratory condition surveys in advance? Such surveys might well be the appropriate standard for a professional political scientist setting up, in advance, a project designed to analyse the impact of various events in the course of an election or referendum campaign. A failure to adopt such practice might well be a legitimate criticism of someone who set themselves the task, for research purposes, of conducting such an analysis, but without putting in place the appropriate periodic surveys. But that is not the question with which a court is concerned. The question which a court must answer is whether the available evidence is sufficient to discharge the burden of proof.
5.10 What happened in this case is, of course, that, short of Ms. Jordan commissioning an ex post facto survey of her own, the only raw data available to her experts was the information available from the Referendum Commission. Hardly surprisingly, the focus of the data collected on behalf of the Referendum Commission was designed to assist it in determining whether the various programmes which it had adopted in fulfilment of its statutory remit, to inform the electorate on the referendum and to encourage citizens to vote, had been successful. Using data for a purpose other than that for which it was collected always runs some risk (to a greater or lesser extent depending on the circumstances) of encountering difficulty stemming from the data not being ideal or even fit for purpose. But the fact that the data in question was not ideal did not, in my view, mean that it could not properly be taken into account and weighed in the balance in considering whether it had been established that there was a material effect.
5.11 In that context, I should touch on the constitutional issue. Put at its simplest, the case made on behalf of Ms. Jordan was that the interpretation which the State sought to place on the burden which she bore to establish material effect was so great as to render it impossible, or virtually impossible, or excessively expensive to show materiality even where there was, as here, a clearly established breach of electoral law. It does seem to me to be worthy of some comment that if the Court had been persuaded that the only way in which materiality could be established was in the manner suggested by Professor Marsh, there might well have been very considerable merit in Ms. Jordan's constitutional challenge. Such a level of proof would have rendered a challenge to the result of a referendum, based on the sort of unconstitutional expenditure arising in this case, close to impossible if the standards identified by Professor Marsh were the only ones which could produce evidence sufficient to prove materiality. If a different conclusion as to the test for materiality had been reached and if it had, in that context, been accepted that materiality could only be established in the manner identified by Professor Marsh, then I might well have come to a very different view on the issue of the constitutionality of the legislation.
5.12 Finally, I should comment that it is important that it be kept in mind that expert evidence of the type debated in this case is no different, at least at the level of high principle, to any other type of evidence which may need to be considered on appeal. It will always be possible to argue that the evidence does not bear any inference drawn. It will always be possible to point to any clear error in the way in which the evidence was approached and assessed. It will always be possible to argue that the evidence is insufficient to meet the burden of proof. But where there are competing but legitimate professional views on a topic, then it is really a matter for the trial judge to reach an assessment on those questions. While it is often emphasised that a trial judge has the benefit of hearing witnesses whose credibility may be in question giving evidence, it seems to me that there is another aspect of the proper reluctance of appellate courts to interfere with findings of fact of a trial judge which needs to be emphasised. Where there are competing professional views, the trial judge will have had the benefit of hearing those competing views teased out and challenged, frequently over a significant period of time. While this Court will, of course, have a transcript, there can be little doubt but that a trial judge is, nonetheless, in a better position to reach a conclusion as to which professional view is to be preferred. In the absence, therefore, of established error or findings which are not sustained by the evidence at all, the appropriate reluctance of appellate courts to interfere with findings of fact applies equally in the context of expert evidence such as that tendered in these cases as in respect of any other evidence.
6. Conclusions
6.1 As noted earlier the purpose of this concurrence is to set out some of the reasons why I fully agree with the judgment of O'Donnell J. delivered today and not least the test for determining the materiality of the effect of established irregularity which he proposes at para. 85 of his judgment. I also add some observations on the use of survey evidence in a case such as this.
6.2 I would finally add that it is important to emphasise that the test identified by O'Donnell J. is one which is far from impossible to meet. The problem in this case was that the margin, at the end of the day, was quite significant, and the evidence concerning the effect of unconstitutional government expenditure did not suggest that there was any realistic basis for fearing that the expenditure concerned could have altered the result.
6.3 However, it requires to be said that, in a different case, the Court might be faced with a narrower result coupled with stronger evidence of the effect of unlawful expenditure. In such a case I have no doubt but that it would be possible to conclude that the hypothetical reasonable and informed observer could not be expected to trust that the result might not have been changed by unconstitutional activity. If such a case were to occur then it would not only be open to this Court, but it would be the duty of the Court, to take action and, for example, require that a poll be reconducted. Such a consequence would, undoubtedly, be highly undesirable. In order that it be avoided it is important that every conceivable care be taken to ensure that a referendum is properly conducted in all respects.
Judgment of Mr. Justice John MacMenamin delivered on the 24th April, 2015
1. I agree with the judgment and orders proposed by the Chief Justice, O’Donnell J. and Clarke J. I also agree with, and endorse the judgment of the Chief Justice, which analyses the 1994 Referendum Act in detail, and the principles set out in O’Donnell J.’s judgment under the heading “The Test”. No part of this judgment is, in any way, to be read or interpreted as differing from what is said in the relevant and material principles and analysis contained in those judgments. I concern myself here with a focus on three issues; first, the procedure involved in the High Court hearing; second, some of the constitutional considerations which arise in interpreting the Referendum Act 1994; and third, some observations on the interpretation and application of the judgment of this Court in Hanafin v. Minister for the Environment [1996] 2 IR 321.
The Origins of the Proceedings
2. From the outset, it is necessary to reiterate that this is not a case where the government misconduct in question has gone without judicial remedy. Both proceedings before the Court derive from the judgment and findings of this Court in McCrystal v. The Minister for Children and Youth Affairs [2012] IESC 53, [2012] 2 IR 726. In its ruling, on the 5th November, 2012 (“the Ruling”), and subsequent reasoned judgment delivered on the 11th December, 2012, (collectively “McCrystal”), the Court held that the information campaign (“the campaign”) which had been conducted by the Minister for Children and Youth Affairs (“the Minister”) gave rise to breaches of the Constitution of Ireland, insofar as the conduct of the campaign could not be regarded as having been fair, equal, impartial or neutral. As a consequence, this Court held that the government campaign had resulted in a violation of principles derived from the judgment in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10 (“McKenna No. 2”).
3. In both the petition and the plenary proceedings herein, Ms. Jordan not only challenged the misconduct addressed in McCrystal, but also placed in issue what, she contended, was further wrongful conduct by the State parties, following on from the ruling of this Court on the 8th November, 2012 (“the post-ruling conduct”). The McCrystal ruling was delivered during the currency of the referendum campaign, just 2 days prior to the vote.
4. These proceedings seek far more radical relief than in McCrystal, however. Ms. Jordan asserts that, in order to uphold the McKenna principles (which have not been in any way placed in issue in these proceedings), the result of the Referendum should be annulled and a new referendum held. Alternatively, she contends, that insofar as the statutory machinery for challenging a referendum outcome, contained in the Act of 1994, places the onus of proof on a petitioner; it sets an “impossible” threshold of proof, and is thereby invalid having regard to the Constitution. It is said the Act fails adequately to provide for remedies for breach of the McKenna principles; and that, insofar as the judgment of this Court in Hanafin v. The Minister for the Environment [1996] 2 IR 321 supports McDermott J.’s rulings herein as to onus, standard of proof, procedure, and remedy; then that judgment was wrongly decided.
5. In McCrystal, this Court has already delivered a judgment wherein it granted a remedy, in the form of a declaration, saying, in terms, that the State parties had engaged in campaign misconduct. The appellant finds herself in a situation, therefore, where her case is met with the State response that, both the public interest, and the common good, have already been vindicated by the judgment of this Court in McCrystal, and that the respondents’ misconduct has already been addressed and condemned. Thus, the challenge facing the appellant is both very focused and very deep. But it is made in the circumstance where there has now been an expression of the will of the sovereign people voting in a Referendum, after a legal remedy was granted. Save insofar as these proceedings raise what is termed “post-ruling conduct”, i.e. conduct of the respondents after the ruling of this Court on the 5th November, 2012; the courts in these proceedings have, in effect, been asked to re-traverse, but with different terms of reference, legal terrain which has already been much explored.
6. The petition and plenary proceedings are considerably interwoven. This judgment addresses issues arising in both appeals. Assuming that the trial judge correctly applied the Act of 1994, and the principles identified in Hanafin; one broad central issue in this appeal is, whether the Referendum Act of1994 was applied in a manner consistent with the Constitution. It follows that, if, when considered in its factual context, that Act was properly applied in the High Court, and is constitutionally valid, then the totality of the appellant’s proceedings must fail.
The Reason for Analysis of the Evidence in Detail
7. This case was lengthy and costly. It lasted 14 days in the High Court and 3 days in this Court. Some of the expert evidence was very dense. The analysis in this judgment is in rather greater detail than would normally be warranted; for the reason that what is in question is the outcome of a referendum, itself a fundamental process of, and in, our democracy, where the people express their view on a proposal to amend the Constitution. Our democracy belongs to the ‘People of Ireland’, as constitutionally identified. To maintain public confidence, the processes of democracy must be transparent; one of the attributes of our system of government by the people must be that each citizen can reasonably observe and understand, to such level as they require, both procedure and outcome. Under Article 47 of the Constitution, a proposal is “approved” in a referendum when, subject to law, what is placed before the people is adopted by a majority of those who vote.
8. In the vast range of cases on appeal a very close analysis of the evidence may be unwarranted, provided it is shown that the trial judge reached conclusions which were supported by evidence. This appeal, to my mind, is something of an exception, in that, if the appellant were to succeed; a public undertaking in participative democracy, in which hundreds of thousands of citizens engaged, would be annulled. What occurred in this case merits some general observations.
The Nature of the Evidence and Democratic Process
9. One concern which emerges clearly from what transpired in the High Court hearing, and in this appeal is, the question of public perception, confidence and trust. These are fundamental to legitimacy. But could certain aspects of the evidence properly and reasonably be perceived as part of a process of engaging in democracy as generally understood? The highly technical econometric evidence in this case is a very distant echo of Athenian democracy. This is evidence, which might, potentially, have determined or annulled, the outcome of a referendum. But can it be said to be both transparent and clear to the ordinary citizen, such that a citizen could trust that evidence if it stands alone and taken in isolation? It is doubtful. It is very desirable that such a consequence be avoided for the future. The judgments of the Court seek to remedy this situation by clearly establishing the legal framework and the evidential thresholds for such a challenge.
10. The Act of 1994 envisages a two stage process; first, leave, and second, a plenary hearing. On consent, the parties agreed that the leave application be adjourned to the plenary hearing. This course was justifiable in this case, in light of the fact that, exceptionally, this Court had already delivered its ruling and judgment in McCrystal, declaring that there had been breaches of the McKenna principles. Relying on the judgments in McKenna and Hanafin, the State parties adduced expert evidence which had the effect of placing the appellants in a position of having to resort to econometric evidence deploying “regression analysis” as a mode of determining what the outcome might have been but for the campaign misconduct. The High Court judge held that the data upon which the appellant sought to base her case did not readily lend itself to such analysis. The clarity of exposition in the High Court judgments contrasts vividly with the density of some of the testimony. It is an interesting, but fortunately unnecessary, exercise to speculate what might have been the effect on public confidence had the judge been persuaded, upon that econometric evidence, that the State’s conduct had, in fact, materially affected the result of the referendum. While I do not deprecate the use of such evidence in the future, I question whether an outcome based so very much on such testimony would have the required public trust and, therefore, democratic legitimacy. The intent of the judgments herein is to clearly identify the tasks facing a trial judge, so that a procedure to challenge a referendum outcome should be shorter, less costly, and clearer and engender trust. It might be said that the test adopted by the unanimous court is itself predicated on trusting the outcome of a referendum.
11. Part of this judgment considers the evidence adduced in the High Court. In considering that testimony, it is helpful to reiterate two of the principles from Hay v. O’Grady [1992] 1 I.R. 210. First, if the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings; however voluminous and apparently weighty the testimony against them. Second, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact, where a different inference has been drawn by the trial judge. However, in the drawing of inferences from circumstantial evidence, an appellate court is in as good a position as a trial judge to proceed. Insofar as findings of fact are made by the trial judge and were supported by credible evidence, subject to the provisos observed above, therefore, this Court is bound by those findings. In fact, the vast weight of the evidence focusing on the issues to be determined, favoured the respondents.
Observations on the Evidence as a Whole
12. The evidence on the petition can be broadly divided into, on the one hand, testimony as to fact and opinion, and on the other, expert views. With regard to the latter, it is necessary to bear in mind that the trial judge had the opportunity, at first hand, to test out the validity of such evidence, and the soundness of conclusions based thereon. He encountered many of the difficulties now frequently arising with expert testimony. If experts cannot fully agree on a starting point, a trial judge will be placed in a position of having to choose which experts have identified the better working framework for their testimony. A trial court is entitled to assess whether, an expert witness adopts (or is in a position to adopt), a fair framework of reference, from which to make conclusions; whether the witness takes the opposing case and expert evidence into account and the extent to which such a witness is able or prepared to look at context, or “the big picture”; the aptness and reliability of any technical process for analysis adopted; whether the witness has any tendency towards “silo thinking” or tendentiousness in testimony; the degree of engagement with points put to him or her in cross-examination; the extent of acknowledgement of the limitations of his or her evidence in the broader context of the case; and an ability to ensure that “input”, be it of data, sample or survey or analysis, is sufficiently representative and sound to support the “output” or conclusions sought to be drawn from such procedures. This involves a recognition, where necessary, of the limitations of expert evidence (see also the observations of Charleton J. in James Elliott Construction v. Irish Asphalt [2014] IEHC 208. It is a matter for the judge, not the witnesses, to determine the issues. The expert witnesses who testified in the High Court were indeed eminent political scientists. They testified honestly and in good faith. But the trial judge had regard to many of the points just identified above. He preferred the evidence of the respondents’ witnesses. He gave his reasons for this. He also found that the data available to the appellant’s experts was insufficiently relative and broad based to form conclusions upon which a court could determine the issues before it. I turn now to an outline of certain relevant parts of the background to this case.
The Events Prior to the Referendum
13. As is now well known, prior to the Referendum, the government published a booklet, together with other campaign material, both entitled “Children Referendum”. This material was disseminated by, or on behalf of the government, on foot of monies voted by the Oireachtas. A website was set up. There was an advertising campaign. The booklet was widely distributed to homes in the jurisdiction. The appellant now asserts that, given its widespread distribution and readership, the booklet itself and other government information sources, were such, to adopt the terminology of s.43 of the 1994 Act, as to “materially affect” the result of the Referendum as a whole. At points in the submissions, the appellant made the alternative case that the material, and other information aids, had, or may have, affected the result of the Referendum. The appellant says that the content of the website and the advertising was also aimed at the same objective.
The McCrystal Decision
14. In McCrystal, this Court granted a declaration to the effect that the State respondents had “acted wrongfully in expending or arranging to expend public monies on the Website, Booklet, and Advertisements, in relation to the Referendum on the Thirty-First Amendment of the Constitution (Children) Bill 2012 in a manner which was not fair, equal or impartial”. That declaration was made two days prior to the holding of the Referendum. One of the appellant’s complaints is that, despite this declaration, the respondents nonetheless proceeded to hold the Referendum on the scheduled date, the 10th November, 2012.
The Size of the Majority
15. The amendment was passed by a very significant majority. The margin was, coincidently, the same as the plurality of voters who cast votes in favour of the Constitution itself on the 1st July, 1937, that is, 58% to 42%. The numerical majority in favour of the 2012 Referendum was some 180,000 voters. The size of a majority is not, of course, conclusive in the respondents’ favour. One can conceive of a circumstance where even a substantial majority could be achieved by unlawful means. But it is nonetheless an unavoidable obstacle in the petitioner’s path.
The Referendum Commission
16. The Referendum Commission provided a substantial degree of information to the public. The appellant questions why there was a separate government campaign at all? All the main political parties, and every member of the Dail and Seanad, save one, supported the referendum proposal. There had been considerable debate in the media outlets on issues raised by the proposal. Ironically, parts of the State’s own expert evidence was to the effect that the separate government information campaign had no appreciable effect at all. This last significant, but circular point, calls into question why the government expended public monies on an apparently ineffective campaign.
Areas of Agreement in the Evidence
17. The trial judge remarked that, to varying degrees, the experts on both sides accepted that, in the absence of evidence designed for the purpose; it was difficult, if not impossible, to assess the particular factors which determined the outcome. The experts also apparently agreed that, with hindsight, such a survey might have been possible to organise which would have significantly assisted the appellant’s case. The respondent’s case is that the Referendum Commission’s post-vote survey, which was sought to be relied on by the petitioner, failed to establish that the government information campaign had a material affect on the outcome. A question mark as to whether the particular survey data was useful for the purposes of these proceedings is unsurprising; the process was not intended for the purpose of a referendum challenge, but rather to determine the effectiveness of the Referendum Commission’s own, lawful, information campaign. The Referendum commission are in no way to blame for having designed a survey for the purposes of identifying whether public monies, which they lawfully expended, had, or had not, been well spent by them.
Relevant Provisions of the Referendum Act, 1994
18. It is now necessary to outline the relevant provisions of the Referendum Act, 1994. Section 40(1) of the Act of 1994 provides:
“(1) As soon as the referendum returning officer has received from every local returning officer the report referred to in section 37 of the numbers of the votes recorded in the constituency, the referendum returning officer shall prepare from such reports and shall sign the provisional referendum certificate in the prescribed form stating -
(a) in the case of a constitutional referendum, the number of votes recorded in favour of the proposal which is the subject of the referendum, the number of votes recorded against the proposal, and whether a majority of the votes recorded at the referendum was or was not recorded in favour of the proposal; …”
Section 42 provides:
“42-(1) The validity of a provisional referendum certificate may, and may only, be questioned by a petition to the High Court (in this Act referred to as “a referendum petition”) in accordance with this Act.
(2) A referendum petition in relation to a provisional referendum certificate shall not be presented to the High Court unless that court, on application made to it in that behalf by or on behalf of the person proposing to present it not later than seven days after the publication in Iris Oifigiúil of the certificate, by order grants leave to the person to do so.
(3) The High Court shall not grant leave under subsection (2) to present a referendum petition unless it is satisfied—
…” (emphasis added)
Section 43 provides:
“43.-(1) A referendum petition may question a provisional referendum certificate on the grounds that the result of the referendum as a whole was affected materially by -
(a) the commission of an offence referred to in Part XXII of the Act of 1992 (as applied by section 6 ),
(b) obstruction of or interference with or other hindrance to the conduct of the referendum,
(c) failure to complete or otherwise conduct the referendum in accordance with this Act, or
(d) mistake or other irregularity in the conduct of the referendum or in the particulars stated in the provisional referendum certificate.” (emphasis added)
19. Section 48 provides:
“48.-(1) At the trial of a referendum petition the court may order that the referendum to which the referendum petition relates shall be taken again in a constituency, and where the court so orders the following provisions shall have effect:
(a) the court shall, in its order under this section, appoint the day which shall be the polling day for the purpose of the retaking of the referendum in the constituency;
(b) the referendum shall be retaken in the constituency and the provisions of this Act in relation to the taking of a referendum shall apply to the retaking, with the substitution of the polling day appointed by the order of the court for the polling day appointed by the Minister;
(c) the referendum returning officer, having received the report of the local returning officer of the result of the counting of the votes at the retaking, shall forthwith report the result to the court.”
(2) The court shall not order a referendum to be taken again in any constituency merely on account of a non-compliance with any of the provisions contained in this Act or an error in the use of forms provided for in this Act where it appears to the court that the referendum was conducted in the constituency in accordance with the general principles laid down in this Act and that the non-compliance or error did not affect the result of the referendum as a whole.”
20. Section 57 of the Act provides:
“57.(1) At the trial of a referendum petition the court shall determine the matter at issue and the final order of the court on the trial of the referendum petition shall either -
(a) confirm without alteration the provisional referendum certificate which was the subject of the petition, or
(b) direct that the said certificate shall be amended in accordance with the findings of the court (including the result of any counting afresh of votes or any retaking of the referendum) and confirm the certificate as so amended.
…
(5) A provisional referendum certificate duly endorsed in accordance with this section shall, when it is received by the referendum returning officer from the High Court, forthwith become and be, in the form in which it was confirmed by the court, final and incapable of being further questioned in any court and shall, in that form, be conclusive evidence of the voting at the referendum to which it relates and of the result of such referendum.”
The Grounds Upon Which Leave Was Granted in the Petition
21. As can be seen from s.42 of the Act of 1994, the first step is an application for leave. The judge was satisfied that the totality of the evidence adduced established a fair, bona fide or serious issue to be tried. The effect of this finding was that he held, pursuant to s.42 (3)(a) of the Act, that there was prima facie evidence of a “matter” referred to in s.43, in relation to which the Referendum petition questioned the provisional referendum certificate concerned, and that, prima facie, the said “matter” was such as to affect materially the results of the referendum, as a whole. Here he was referring to the test referred to in s.43(1)(b) of the Act, that is to say, obstruction of, or interference with, or other hindrance of the conduct of the referendum.
22. The judge held that some parts of the evidence, taken in isolation, would not have justified a decision to grant leave. He referred particularly to that which had, in good faith, been provided to the court by the ‘fact and opinion’ witnesses referred to later. However he went on to observe that the issues, once raised, had to be considered in light of the determination by this Court that the McKenna principles had been breached; thus embracing a narrative covering the entire referendum campaign, and the government information campaign, including its three significant elements, comprising the government booklet, website, and advertising. Proceeding on the basis of the McCrystal decision, therefore, he reached the view that there was prima facie evidence justifying granting leave, namely, unconstitutional conduct by the Executive.
23. Having heard the totality of the evidence at the full hearing, the judge reiterated his conclusion that the appellant had raised a serious issue to be tried, that is, that the government information campaign had the potential to materially affect the result of the referendum, as a whole. However, having considered all the evidence, and applying the principles established by this Court in Hanafin, he was not satisfied that on the balance of probabilities the petitioner had established grounds sufficient to annul the referendum result.
24. It is abundantly clear that the trial judge considered, in great detail, the provisions and requirements of ss. 42 and 43 of the Act, in the context of the Hanafin judgments. One might surmise, therefore, that it was the absence of sufficiently cogent probative testimony, and the force of the rebuttal evidence which constrained the appellant, first, to challenge the constitutionality of the 1994 Act, and, second, necessarily, to challenge certain of the findings of this Court in Hanafin.
Fact and Opinion Witnesses
25. The first category of witnesses to whom I refer, with no disrespect, as ‘fact and opinion’ witnesses, were citizens, including the appellant, who told the trial court of their experience in the referendum campaign, the effect of the government information materials on themselves and others, and also the effect of the Supreme Court ruling.
26. These witnesses were the appellant herself; Mr. Michael Fitzgibbon; Mr. Nicholas Gargin; Mr. Daniel Ward; and Ms. Deirdre Ui Ghóibín.
27. Some of those witnesses, including the appellant herself, and Mr. Michael Fitzgibbon, intended to vote no and actually voted that way. The judge felt this in no way affected the truthfulness and credibility of their testimony. Both were actually campaigners for a ‘no’ vote. Thus, the government material did not affect them.
28. By contrast, Mr. Nicholas Gargin, a part-time student of Sports Management, said he had voted ‘yes’ in the referendum, and read the government booklet before voting. During his Christmas holidays, however, and after the poll, Mr. Gargin discovered that the Supreme Court ruling had been made. He testified that, had he found out about the McCrystal ruling before polling day, he would have been angry at the government’s behaviour, particularly so in the light of the Supreme Court judgments which he read. Had he known about the government wrongdoing he would have voted ‘no’ in the referendum.
29. Mr. Daniel Ward, a farmer on Arranmore, Co. Donegal, intended to vote ‘no’, but then read the booklet and was aware of the advertising by the government. He assumed the government would be impartial. When he read the materials he became uncertain as to whether he should vote ‘no’, and eventually decided not to vote at all.
30. Ms. Deirdre Ui Ghóibín was also a ‘no’ campaigner. She testified that family and friends with whom she discussed the matter were surprised at the government’s misconduct. She considered there was not enough factual information available in the government materials. She believed these materials had an influence.
31. But, the trial judge observed, Ms. Ui Ghóibín could not give any details of any specific discussion she had had about the booklet. In summary, therefore, and on the basis of the trial judge’s findings, just one of these witnesses intended to vote no, and instead did not vote at all.
32. The trial judge assessed their testimony in the context of the application for leave to bring the petition:
“73. Each of the witnesses gave useful and honest accounts of their experiences during the course of the Referendum campaign and their impressions of the government materials and information. These impressions were vindicated by the ruling and judgments of the Supreme Court in the McCrystal case. Some of the more generalised conclusions reached by the witnesses about the affect of the materials are highly speculative and subjective. I have considered all of this evidence and it is clear that without something more tangible and objective, this evidence would be entirely insufficient to justify the granting of leave to present a petition or to establish that the overall Referendum result had been materially affected by the government information campaign. …”.
33. The trial judge drew legitimate inferences on the insufficiency of this testimony. His conclusions were in accordance with established principles, as identified in Hay v. O’Grady. Specifically, it is noteworthy that, at least in the evidence of some of the factual opinion witnesses, there was an apparent “disconnect”. ‘Cause’ and ‘effect’ were not sufficiently established in order to demonstrate that the outcome of the referendum was “materially affected”, as a matter of probability. The referendum poll consisted of a total of many hundreds of thousands of voters. While the views of the non-expert witnesses were undoubtedly valid and honest, I do not think there is any legal flaw in the learned trial judge’s conclusion as to the effect of that category of testimony.
Mr. John Waters
34. Mr. John Waters, the well known writer and social commentator, submitted three affidavits in support of the petitioner. Because of his background and experience he comes into a rather different category. He is familiar with techniques of persuasion and public communications. He favoured a “no” result in the referendum. His sense was that, while the “no” campaign had started from a low base, the public mind had opened to the ‘no’ arguments in the last 10 days prior to polling day. His view at the time was that the contents of the booklet, which had a high level of credibility, were emotive, failed to have any regard for the arguments against the proposal, and failed to present the reality of the existing constitutional jurisprudence in respect of the rights of the child and the family.
The Judge’s Opinion on the Fact and Opinion Evidence
35. The trial judge was not persuaded that, in itself, any of this evidence, either in isolation or cumulatively, was sufficient to cross the leave threshold. He was entitled to so conclude. The statutory threshold of proof for leave must, necessarily, go considerably further than identifying the opinion of one person, even a highly experienced media commentator, on the affect of a campaign. A petitioner must show prima facie evidence that the result of the referendum, as a whole, was affected materially by the impugned misconduct. I turn next to the expert evidence. I should say here, I have had regard to the totality of the evidence, now summarised. It is noteworthy that no significant criticism is made of the judge’s description of the witnesses’ testimony
The Expert Evidence
Introduction
36. Central to the petition were; the booklet compiled and distributed by the Department of Children & Youth Affairs; the website created and maintained by that Department; and an advertising campaign which was conducted on radio, television and in the print media. 2.026 million copies of the government booklet were delivered to all residential and non-residential addresses in the State between the 19th October and the 6th November, 2012. A further 18,500 copies were sent to public offices, such as county libraries, and 384 other locations for display. The High Court was told that the first draft of the booklet was prepared by a civil servant, and that it had gone through some 18 drafts before the final draft was ready for the printer. It is clear nonetheless that the pamphlet contained a significant number of assertions which contravened the McKenna principles. These included the usage of slogans such as:
37. The government booklet also contained statements of the law which were obviously incorrect. These statements all favoured the “yes” side. No statement favoured the “no” side. It appears that the final draft was not formally “legalled” by the Attorney General’s office before distribution. In the context of McKenna, this was a serious omission.
The Issue of “Affect”
38. At this point, it is useful to emphasise the extent to which what may be conveniently termed “affect” was fundamental to the petition claim. In the context of this case, “material affect” would mean identifying a probable connection, (in the sense identified in the test in O’Donnell J.’s judgment), between the impugned conduct and material, and, the result as a whole. There are some parallels here with the issue of causation, which is well recognised as being an important and complex dimension in tort law. The courts have adopted various approaches to address the issue of multiple causes. It is interesting to surmise the extent to which the judge might have concluded that the evidence suffered from a number of well recognised flaws similar to those arising in causation; including the distinction between cause and correlation, the temptation to confuse simultaneity of events with cause, and what is termed the “regression fallacy”, where predictions are made on exceptional results as if they were average. In law, if evidence is such that it is simply not possible to identify a direct relationship between an alleged wrongful “cause” and a consequent “effect”, then an action may fail. In the same sense, the primary evidential deficiency the judge identified was as to “material affect” on the result.
The Expert Evidence
39. For the purposes of this judgment I do not intend to traverse all the evidence, but rather some salient parts of it. Thereafter, I seek to assess the lawfulness of the judge’s inferences and conclusions.
40. The appellant’s case relied heavily on evidence from Dr. Michael Bruter, a leader in Political Science specialising in electoral psychology at the London School of Economics. He is an eminent scholar in the discipline. Dr. Bruter was originally retained by the appellant’s solicitor to provide an expert opinion as to:
(i) Evaluating the nature of material provided by the Irish government to voters in the run up to the referendum, and whether it was likely to have influenced the casting of the votes in the Referendum;
(ii) Whether, following the decision of the Supreme Court in the McCrystal case on 8th November, 2012, delaying the vote would likely have resulted in a materially different result.
41. Dr. Bruter’s first retainer was, therefore, limited in scope; he was to assess the material provided by the Irish government to the voters. He was not asked to assess all the material which was supplied to voters; or the media coverage; the debates; commentary; or background history. He was not asked, either, to examine the way in which issues relating to the referendum came into the public domain. The judge found these were all highly relevant issues. So too was the question as to whether any of the material in question could actually be held to have influenced voters, rather than confirming them in points of view already held.
42. The scope of Dr. Bruter’s retainer did not, therefore, precisely fit the provisions of s.43 of the Referendum Act, 1994. To ask whether material provided by the government was “likely” to have influenced how votes were cast; is different from assessing whether the “result of the referendum, as a whole”, was “materially affected” by ‘misconduct’, in the words of s.43 of the Act. Dr. Bruter examined the possible effect of the materials supplied by the government by asking how that information “privileged a specific answer (yes or no)” from a “political behaviour point of view”. It will be noted, the evidence used a series of entirely legitimate terms in political science, but which did not correspond with the statutory tests.
43. Having identified the relevant ways in which the “yes” or “no” answer had been “advantaged”, the witness sought to assess whether this was “likely to have had a material impact on the way citizens voted”, considering the characteristics of the referendum.
44. Dr. Bruter pointed out that government material portrayed the proposal as one associated with multiple positive, and a complete absence of negative outcomes; that the campaign booklet was explicitly represented as stemming from, and/or legitimised by, non-partisan, neutral, and prototypically competent sources; that the narrative of the proposal was said to answer a possibly urgent need; and was expressed by the use of rhetoric which focused on emotion, and likely to induce a possible feeling of guilt amongst those not supporting the proposal. In short, he said, the material purported to be “neutral”, but was not.
45. The witness testified that the referendum was one of “low salience”, i.e. it addressed a question which was obscure to people, or about which they knew very little. He considered what are termed “cues” and “influences”. “Cues”, are understood as sources which collect, summarise, and report information on the pros and cons of a “yes” or “no” vote. Such sources might be regarded as neutral. Dr. Bruter accepted that political scientists were not agreed as to whether cues or influences matter most, but felt that the perception of whether the source of a cue was neutral, or partisan, had a major effect on the way voters would treat the information provided. A partisan source would likely be heavily discounted; by contrast, maximum credit would be afforded to information from a “neutral” cue source. He testified that the lower the salience of a referendum, the more likely it was that a voter would cast his or her ballot based on principles received or adopted through various cues. He concluded that, in this low salience referendum, voters would be highly dependent on information cues (in this case the government information); that the perceived nature of a source was a major determinant as to how influential the information would be; and, that, (in terms of the potentially strong impact of external inferences), in such a low salience referendum, any element which was likely to give additional credit or discredit to government would have a strong effect on the result.
The Referendum Commission Survey
46. As the statistical evidence caused much controversy at the trial, it is necessary to set out the framework. The Referendum Commission ordinary survey, entitled “Post Childrens’ Referendum Poll”, was prepared in January, 2013 by Martha Fanning and Ian McShane of “Behaviour and Attitudes” in conjunction with Murray Consultants. Both sides, but in particular the petitioner, sought to support their case by reference to the raw data. Dr. Bruter and Prof. Marsh prepared further reports on this, and submitted them to the court.
The Field Work
47. The field work for the survey took place from 8 days after the referendum starting on the 20th November to the 10th December, 2012. The sample was a statistically significant one, that is, 2,014 adults aged 18+ who were eligible to vote. A number of questions were put to the respondents, and the results were set out in tabular form.
48. Although the poll had not been designed to ascertain whether, or why, people voted “yes” or “no” in the referendum, the appellant sought to base a substantial part of her case on Dr. Bruter’s conclusions, reached following his analysis of the raw data. Professor Michael Marsh, Professor of Comparative Political Behaviour in Trinity College, Dublin, who testified for the State respondents, disagreed with Dr. Bruter’s methodology. The trial judge commented that the arguments advanced in this area were “detailed and technical and of rather narrow focus”. This was a considerable understatement.
49. Some of the expert testimony, presented at the hearing, touched on issues where, even among political scientists, there is no consensus. Dr. Bruter’s exercise must be seen as a response to Professor Michael Marsh’s testimony, whose evidence is described later.
50. In summary, Dr. Bruter sought to establish that a “link” could be shown between receiving the government guide and the actual yes/no vote. He prepared a report, based on the underlying data provided in the survey. This was divided into three parts. The first explained the application of the concept of “logistic regression” as a means of calculating the affect of various factors on a consequence; the second part explained the methodology used in his analysis; the third presented results and conclusions. The judge explained the methodology in this way at par. 107:
“107. Dr. Bruter explained that regression assesses the effect of a number of causes (independent variables) on a consequence (dependent variable) by attempting to ensure a levelling of conditions using control variables. Binomial logistic regression is a specific type of regression applied when the dependent variable (the factor one is trying to explain) is dichotomous (i.e. has only two possible values - voting yes or no). Bivariate regression is a method of measuring the impact of one variable on another. Multivariate regression assesses the effects of many independent variables on a dependent variable, thus permitting the identification of the variable that is really responsible for changes on the dependent variable - voting yes or no.”
Dr. Bruter’s conclusion was that, overall, receiving the booklet made people over 9.3% more likely to vote ‘yes’. He recalculated these figures controlling for social class, and obtained the same results in all classes. He based his conclusions on the raw data of results obtained from answers to a number of questions in the poll such as “how did you vote in the referendum on children (?)”. This figure, if valid, could have been highly significant if it could truly be represented as switching voters when the result was 58% to 42%.
51. Professor Marsh did not disagree that a figure of 9.3% could be obtained from the un-weighted data presented. However, he carried out a similar statistical analysis, this time using a number of weightings, from the underlying raw data supplied by the pollsters in their working papers. He concluded that those who said that they received the government guide were statistically more represented, as having voted yes, than those who did not, but, on his calculation, the clear difference between the two was approximately 5.5%, as against 9.3%. Dr. Bruter accepted that one could apply weighted data to the calculation.
52. Professor Marsh, whose discipline is also voter behaviour, gave evidence on behalf of the State. He outlined the difficulties, recognised in the discipline of political science, in attempting to determine what influenced voters to exercise their franchise in a particular way. In his view, the absence of a properly designed study, implemented at the time of the campaign itself, rendered it impossible, post hoc, to assess definitively what factors determined the outcome; or to decide whether any discrete individual factors, such as the material published by the Department of Children, had an affect on the level of the “yes” or “no” vote.
53. At paragraph 102 of his judgment, the judge commented that the results indicated that 62% of those polled, who said they received the Referendum Commission Guide (total 921), voted “yes”, and 38% “no”; 64% of those who received the government guide (668) voted “yes” and 36% “no”; and 65% of those who received both guides (636) voted “yes” and 35% “no”; while 64% of those who received neither guide voted “yes” and 36% “no”. These results could suggest that there was, in fact, no difference in effect between people who received the government guide and those who did not. Dr. Bruter’s conclusion suggested “a statistically significant relationship between saying you received the Government Booklet and saying that you voted yes in the Referendum”. It is also clear that the respondents tended to exaggerate the ‘yes’ vote which was only 58%.
The Judge Prefers Professor Marsh’s Evidence to that of Dr. Bruter
54. The trial judge held that, were it to come to a choice between those two expert witnesses, he preferred the evidence of Professor Marsh. He considered that Dr. Bruter had over-interpreted such data as was available to him; and that the conclusions he sought to draw were not based on a firm material foundation. The trial judge’s inferences regarding “narrow focus” have been referred to. He considered the appellant’s testimony paid insufficient regard to the larger picture of the campaign. Moreover, he commented that the extrapolations from the survey were subject to a further criticism, to the effect that; while evidence might be gleaned indicating a correlation between “recall” of receiving the government booklet, and the way in which voters actually voted, such a process did not discharge the onus of proof to the requisite standard.
The Judge’s Conclusions
55. The earlier observations in the judgment on ‘material affect’ now come into play. The trial judge concluded that while the figures established some statistical correlation between receipt of the government booklet and voting “yes”, he was not satisfied that receiving the booklet meant that the recipient was thereby caused to vote yes. He commented that, notwithstanding receipt of the government booklet, most of the electorate did not vote at all, and that a substantial portion of those who received the booklet voted no. He was not satisfied that the figures established as a matter of probability that receiving the booklet caused an increase in the “yes” vote attributable to that factor, thereby affecting the result of the referendum as a whole.
56. The judge found “this analysis did not address the other influential factors identified as important by Prof. Marsh to the understanding of the casting of votes in the Referendum. Of course, this was largely due to the fact that the data in respect of these important factors does not exist as acknowledged by Dr. Bruter and Prof. Whiteley” (the expert, a witness referred to below). The judge expressed serious reservations as to the extent to which the exercise in which Dr. Bruter engaged could be relied on as producing probative evidence.
57. It was clear from the trial judge’s extremely detailed and comprehensive analysis that he closely followed the complex testimony. But he observed a series of weaknesses in the methodology. To take one, that Dr. Bruter included in the regression process a number of individual sources of “campaigning” influences. These included figures concerning the influence of variables such as communications seen, read or heard during the campaign, broken down into television advertising, television coverage, radio advertising, radio coverage, internet advertising and internet coverage. But the judge found on this:
“As noted earlier, it later emerged that these figures related to coverage of the Referendum Commission’s materials and not the general Referendum Campaign.” (emphasis added)
He continued:
“Dr. Bruter concluded “The results confirm that even when controlling for all the additional variables…identified, receiving the Government booklet made respondents consistently and significantly more likely to vote yes in the Children Referendum””.
In simple terms, therefore, no sufficient distinction could be drawn between the different sources of the material. The judge observed these conclusions were in the face of Professor Marsh’s testimony to the effect that caution should be exercised in using the results of the poll, in circumstances where the pollsters had not attempted to obtain a rounded view as to why the particular referendum outcome occurred. The pollsters were, rather, endeavouring to analyse the effectiveness of the Referendum Commission’s campaign. The purpose of the poll was to seek information about how the Referendum Commission’s booklet and other sources of information had been received. The survey was not concerned with, and did not take account of, other sources of information and their significance to the Referendum campaign, such as how voting intentions were affected by political allegiances or government popularity.
58. The judge pointed out that there was a debate, among political scientists, as to whether weighting was, or was not, appropriate in multivariate analysis.
59. The trial judge concluded at par. 121:
“121. I have considered all of the econometric evidence from the expert witnesses. There were numerous differences between them, but what was missing from the discussion was any real engagement with what was happening in the Referendum campaign. The cut and thrust of that debate and the strength of influence of the various participants in favour of the proposal or, indeed, against it, were not afforded any substantial part in the academic narrative provided by the witnesses. To a large extent this was dictated, as was readily acknowledged by Dr. Bruter, by the fact that there was an enormous absence of information which was highly important to an understanding of the dynamics of the campaign. The assessment by Dr. Bruter of the data concerning the affect of recall of the Government referendum booklet has been the subject of a great deal of criticism by his colleague, Prof. Marsh. It appears to be accepted that he may be correct in his conclusion that there was some statistical connection between recall of the receipt of the booklet and voting yes. The figures which he relies upon contain some variables but nothing remotely sufficient to inform the court authoritatively of the affect of the other elements of the campaign.”
60. The judge held that Dr. Bruter’s process was insufficiently reliable to measure or take account of the reality of the affect of other factors in the course of the campaign. He noted that it was significant that, over the last thirty years, political and social discourse had been obliged to focus from time to time very heavily on issues concerning the welfare and rights of children. He continued:
“The Houses of the Oireachtas, the Courts, the Churches and virtually every organ of the media have been concerned, if not convulsed, with a whole range of issues concerning child abuse, child protection, homelessness, custody and access issues between children and parents, the detention of children, education rights of children, and many other child and family centred issues. These matters clearly informed the debate that led to the formulation of the proposal to amend the Constitution. Understandably, neither Prof. Whiteley nor Dr. Bruter had any knowledge of this background.”
61. He concluded:
“I am not satisfied on the basis of the evidence of Dr. Bruter, and having heard the evidence of Prof. Marsh which I prefer, that his work on the “Behaviour and Attitudes” survey is sufficient to enable me to find for the petitioner on the balance of probabilities. The experts have disagreed over fundamental elements of the survey, the meaning and significance of the questions posed, interpretation of the percentage figures given and how best to assemble and interpret the data underlying the figures set out in the survey. I am not satisfied that the petitioner has established, notwithstanding the booklet’s widespread distribution, that it materially affected the result of the Referendum as a whole.” (emphasis added)
This was a quite critical finding. Dr. Bruter’s evidence was critical to the petitioner’s case. A rejection of that evidence removed what may be accurately considered the main foundation stone of the case.
Professor Paul Whiteley
62. The appellant also relied upon the evidence of Professor Paul Whitely, Professor of Governance at the University of Essex. Professor Whitely testified that, if all political parties in the State were in favour of a particular aim, then people were likely to vote for it, taking their cue from the party which they supported; that people look for assistance from a truthful or trusted source when undecided and confused about a proposal; and that the information offered from a Department of State, having expertise in the area, would be influential, especially when invoking the opinion of other trusted sources.
63. Professor Whitely viewed the message carried by the government information campaign as drawing upon the emotions of the reader of the booklet. He referred here to the slogans and terminology described in the McCrystal judgments. His testimony was that the booklet did not contain any counter-arguments to the proposal. He accepted that the material would not influence those who had already made their minds up, or those who were uninterested in the issues. But, in his view, an undecided voter would attach more importance to the Department’s information than information coming from an obviously partisan group or party. Though he believed the information influenced the decision of voters, he acknowledged he could not give a precise assessment of the extent of that influence because the data was simply not available. He was, however, satisfied that biased information would help one side of the campaign, and, if one had data which measured the extent to which the people trusted their government at the time of the Referendum, and the extent to which they absorbed the material, then the extent to which it influenced the outcome would be ascertainable. However, the absence of a detailed study capable of giving a precise estimate of the extent of the influence of the general campaign did not prevent him from forming “a judgment of a rough kind about what the effects were”. He was clear, however, that it was not possible to determine the percentage affect of the booklet’s influence. He was satisfied its influence could not be proven either way. He confined himself to the view that the information may very well have been “quite influential”. He also believed that the general trend in the referendum campaign reflected trends seen in other referendums, that the “yes” campaign started out from a position of strength, but saw its support leak away during the course of the campaign. This led him to believe that a further negative trend would have continued to a somewhat greater extent had the government information campaign been neutral.
The Judge’s Findings on Professor Whiteley’s Evidence
64. McDermott J. commented that the fact that Professor Whitely laid emphasis on the people taking their “cues” from political parties was of particular significance. In the Children Referendum the unanimous support of all the political parties was, the judge concluded, indicative of the fact that the proposal must have resonated with the electorate, and would have been a significant contributory factor to the ‘yes’ vote. Having rehearsed his reservations on the inadequacy of the raw data, he found at par. 96:
“96. The court is satisfied that this evidence was completely insufficient to establish that the votes cast in the Referendum had been materially affected by the information distributed by the government (including the booklet). Dr. Bruter’s initial evidence set out a number of broad propositions which he acknowledged, required significant qualification and was the subject of reasonable criticism by Professor Marsh, some of which was based on the realities of the political campaign conducted in the lead up to the vote. Prof. Marsh and Prof. Whiteley importantly, agreed that there was insufficient data to enable the type of analysis that might make it possible to determine what influence, if any, the information had on the course of the campaign and to what precise level. Dr. Bruter also acknowledged the absence of this information but was satisfied to reach conclusions based on the limited data available. Dr. Bruter advanced additional material in support of his contentions in two further stages based on his analysis of a post Referendum survey.” (emphasis added)
Other Expert Evidence
65. The judge also considered evidence adduced on behalf of the appellant by Dr. Robert Heath, Associate Professor lecturing in Advanced Advertising Theory at Bath University in the United Kingdom. The gist of this evidence was as to the likely emotional influence of government advertising materials used during the course of the referendum. He testified that emotive non-verbal communication such as body language, tone of voice and emotional behaviour that accompanies and qualifies the communication may induce a favourable response; and that emotive communication in publicity material is processed automatically, instantaneously, and regardless of how much attention is paid to the verbal communication. Having examined the government booklet and the slogans used therein (described in the judgments in McCrystal), a television advertisement, and the printed advertisements; he concluded that each of these had a significant emotional aspect, and might have had a powerful influence on voter behaviour.
66. However, against this, the State relied on the evidence of Mr. John Fanning, a person of substantial experience in advertising and an Adjunct Faculty Member at University College Dublin Michael Smurfit Graduate Business School. Mr. Fanning testified that it was notoriously difficult to determine the effect of a marketing communications campaign. His evidence was that, in order to come to a definitive assessment on the impact of the material published by the Department, specific survey data, generated before, during, and after the Referendum campaign would be required. At minimum, this would require data on the degree of knowledge which potential voters had of the issues surrounding the Referendum, the degree of exposure they had to campaign literature and advertising from the Department and other sources, including traditional media, digital media and word of mouth comment. It would also be necessary to assess attitudes to the issues involved and the likelihood of voting. Mr. Fanning’s view was that the government material had minimal affect in influencing voters. He suggested the main reason for the lack of impact of this material during the campaign was its emphasis on public information rather than persuasion. It had a very conservative tone, and was conventional in design, style and layout. The fact that it included some phrases and images, the effect of which was to render it a breach of the fairness required by the McKenna principles, did not mean it was effective in terms of persuading voters to vote, and to vote yes.
The Judge’s Findings
67. The judge was satisfied that there was insufficient evidence available to allow any expert to reach the conclusion that the emotive material caused people to vote yes. In fact, he held that some of the material put in cross examination suggested that less than half of those who only received the Government guide voted ‘yes’, and that, in fact, a higher proportion of people who only got the Referendum Commission guide voted yes. He found, the absence of a multivariate analysis of other influences at work in the campaign made it difficult to determine a precise causal effect which the material had had, if any. In my view, there was sufficient material before the judge to reach this conclusion. I turn now to other aspects of the evidence.
The Website
68. With regard to the website, the judge pointed out that it had had just 23,309 “unique visitors” over the full length of its life, 10% of whom were outside the country. A “unique” visitor is a computer visitor who logs onto a website but may return to it on other occasions. 23,309 was well under 1% of the total population over 18 years of age. He noted the evidence of Mr. Roger Jupp, Vice Chairman of Millward Brown Lansdowne, the well-known public opinion consultants, who testified on behalf of the State, that there was no evidence, research based or otherwise, as to what people believed the website was telling them, either in favour of or against the proposal; or, whether it changed their opinions from one side to the other; or whether it reinforced their opinions.
Post-Ruling Conduct
69. The judge also assessed events following the McCrystal Supreme Court ruling. Counsel for the appellant contended that the ruling of the Supreme Court on the 8th November, 2012, two days before polling day (in contrast to 7 days in the Divorce Referendum), should have been followed by emergency legislation to postpone that polling day; that there was insufficient time to enable the terms of the declaration to be widely disseminated or to disabuse the electorate of the view that the booklet was unbiased. Counsel submitted that the then Minister for Justice, Equality and Defence had failed to issue an apology for the breaches when interviewed and requested to do so on RTE News; that the then Minister had said that the ruling only applied to the website and booklet, and did not apply to the advertising campaign, thereby further obfuscating its effect. Further, it was said that, when criticised in relation to the Supreme Court ruling, the Minister instead drew attention to the High Court ruling.
70. The appellant’s case, therefore, was that, because no legislation was enacted to postpone the polling day, “no” campaigners were deprived of a right to participate in a constitutionally compliant referendum process.
71. Dr. Bruter and Professor Whitely gave their views as to the likely benefits to the referendum process of postponement of the poll following the Supreme Court ruling. Dr. Bruter suggested that the referendum should have been delayed by a few days or three weeks. He later agreed with Professor Whitely that a delay of two weeks between the ruling and the polling day would have been sufficient in order to stabilise the electorate.
72. Against this, Professor Marsh considered that the negative message of the Supreme Court ruling to some extent cancelled whatever positive effect, if any, might have been gained by the government material. Over 61% of all adults were aware of the ruling, and 39% were unaware, according to the survey. This was adjusted and recorded as to 77% of the voters within the survey.
The Judge’s Findings on Post-Ruling Conduct
73. The judge described evidence as to the extensive national coverage of the McCrystal ruling. I summarise now his findings on the evidence. This included “heated exchanges” on RTE’s News at One programme, on the 8th November, between the then Minister for Justice, Equality and Defence, Mr. Shatter, the interviewer, Mr. O’Connell, and Mr. John Waters. The programme had an audience of 360,000 listeners. The ruling was the main topic on the RTE Radio programme Liveline, which had an extensive interview between the presenter, Mr. Joe Duffy, and Mr. Mark McCrystal. Liveline at this point had an average audience of 420,000 listeners. The ruling was the first item on the RTE Radio programme Drivetime. It was the first item on the Six One News with a film report on the judgment by the Legal Affairs Correspondent and a live interview between the Minister for Justice, Equality and Defence and Mr. Mattie McGrath T.D. This programme had an average viewership of in excess of 400,000. The ruling was given similar prominence in RTE television news at 9.00pm, which had an even larger audience of approximately 730,000. The RTE Primetime programme on the evening of 8th November, 2012, also covered the matter extensively. This had an average audience of approximately 350,000. The matter was covered in the TV3 programme Tonight hosted by Mr. Vincent Browne; Mr. Matt Cooper’s programme on Today FM, with an average listenership of 160,000; and the lunchtime programme, the Right Hook, on Newstalk, with an average audience of 130,000. On 9th November, the McCrystal ruling was again the lead story on Morning Ireland on RTE Radio featuring an interview between the Transport Minister, Mr. Varadkar T.D., and Mr. Malachy Steenson, on the issue. This programme has an average audience of 441,000 listeners.
74. The judge was not satisfied on the evidence that any Minister “showed disrespect” for, or sought to obfuscate the effect of the Supreme Court ruling. He viewed the materials and listened to the recordings produced to the court in respect of all of these. There was “robust” engagement between at least one of the interviewers and the Minister for Justice, Equality and Defence on the effect of the ruling on RTE News. He concluded that those people listening to the exchanges, or reading the newspaper reports of the ruling, could have been in no doubt as to the nature of the Supreme Court ruling.
75. The judge considered that the Supreme Court ruling in McCrystal had an immediate impact. He described it as short, focused and definitive, as a condemnation of the expenditure of public funds by the government on a partisan information campaign as a breach of the Constitution, and was reported as such. Having viewed the material, he was satisfied that the Minister for Children had demonstrated respect for the Supreme Court judgment in its criticism of the unconstitutional expenditure of public funds, and her understanding that the government would fully comply with the judgment of this Court. He commented that, on the same date, the Minister informed the Seanad of the government’s intention to act on the ruling, and to cease distribution and publication of the impugned materials. On the 8th November, the material on the website was edited by reference to the Supreme Court ruling. It was taken offline completely on the morning of 9th November. The Department cancelled advertisements scheduled to appear in five national daily, and one local newspaper, on 9th November, as well as proposed publication in another free sheet newspaper. So too were radio and television advertisements scheduled to be broadcast on the 8th, 9th and 10th November. On the 8th November, the Department also issued a notice to public bodies, including libraries, citizen information centres and family resource centres, requesting that copies of the criticised booklet be removed from public display.
The Trial Judge’s Conclusions
76. The judge was not satisfied that there was any evidence upon which to base a claim that following the ruling the action of any Minister, or the government as a whole, contributed to the obstruction of, or interference with, the conduct of the Referendum. He found no conduct which was unconstitutional, or which interfered with the constitutional rights of citizens or the democratic process.
77. Finally, the judge expressed reservations as to the appellant’s contention that the government should have sponsored emergency legislation to ensure the postponement of the referendum. He commented that apart from the fact that the petitioner never sought any such pre-referendum relief, he doubted whether the jurisdiction of the court extended to a review of a government’s failure to introduce emergency legislation in order to postpone a Referendum (see Fitzgibbon v. Ireland, Unreported, Supreme Court, 8th June, 2001, where the Supreme Court refused an application to restrain the holding of three referendums; where Keane C.J. thought it unnecessary to consider whether there might ever be “exceptional circumstances” in which the court could order the postponement of a Referendum poll, and considered that such circumstances would be “so rare and so exceptional that it is difficult to conceive them in practice”) (see also Slattery v. An Taoiseach [1993] 1 I.R. 286).
Conclusion on a Survey of the Evidence
78. In summary, and on a brief survey of the lengthy evidence, therefore, the findings of fact made by the trial judge were supported by credible evidence (see Hay v. O’Grady). His inferences were based on a body of credible testimony. His conclusions were based on that factual evidence. His reasons for preferring the evidence of the respondents’ witnesses over the appellant’s witnesses were explained and reasoned. If, therefore, the judge correctly applied the statute law to these facts and conditions, then it follows the petition cannot succeed. The evidence was not sufficient to surmount the threshold test set in O’Donnell J.’s judgment, with which I agree.
79. If, moreover, the Act of 1994 accords with the relevant provisions of the Constitution, then it follows that neither the petition nor the constitutional challenge can succeed.
The Constitutional Values Engaged
80. I wish to make a number of observations on the constitutional values engaged in interpreting the statute. I do not propose to refer to the provisions with the same degree of detail as O’Donnell J. I confine myself to pointing out that Article 46 of the Constitution lays down a clear framework for the amendment of the Constitution. We are dealing here with a process which is a bedrock of democracy. Under the Constitution the citizens of Ireland recognise themselves as a Sovereign People. The Constitution seeks to integrate and make real the concepts of identity, allegiance, and statehood, all of which have troubled the island, North and South, for many centuries. Amendment of the Constitution is not something to be lightly undertaken. The procedure whereby such amendment is to be effected is identified in Article 47. In my view, Articles 46 and 47 provide the main key to understanding how statute law should be interpreted. Both Articles are to be seen as mutually complimentary. Both inform all provisions of the Referendum Act 1994. Insofar as it is necessary to refer to them, I agree with O’Donnell J.’s analysis of Woodward v. Sarsons & Sadlier [1874/1875] LR 10 CP 733, Morgan & Others v. Simpson & Anor. [1973] 1 All England Reports 241, and his consideration of the statutory predecessor of the Referendum Act 1994. I would, however, add the following further observations, as to the role of the constitutional values engaged in the balancing process described fully by O’Donnell J.
81. Under the heading “Amendment of the Constitution”, Article 46 provides that any provision of the Constitution may be amended by way of variation, addition or repeal in a manner provided for in that Article (Article 46.1). A Bill, having been introduced into the Oireachtas, and then passed, or deemed to have been passed, by both Houses, is submitted by referendum to the decision of the People in accordance with, as Article 46.2 puts it, the law, “for the time being in force”, relating to the “Referendum”. This constitutional provision, therefore, allows for, and requires, a legal framework to be outlined in law for the amendment of the Constitution.
82. Articles 46.3 and 4 deal with the format and content of the Bill to be placed before the Oireachtas, and are not material to the appeal. The provisions prevent implicit amendment of the Constitution by statute. However, Article 46.5 provides that:
“5 A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law.” (emphasis added)
83. This section of the Article is phrased in strong, almost, imperative terms. Once the President is satisfied as to the conditions identified in Article 46 being complied with, the Bill is to be signed “forthwith”. The provisions which relate to the manner in which proposals to amend the Constitution are to be submitted to the People for approval are contained in the next Article.
84. Article 47.1 provides:
“1 Every proposal for an amendment of this Constitution which is submitted by Referendum to the decision of the people shall, for the purpose of Article 46 of this Constitution, be held to have been approved by the people, if, upon having been so submitted, a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law.” (emphasis added)
Thus, the status of a proposal to amend the Constitution is, itself, constitutionally designated and identified; once the proposal achieves the majority of votes cast at a referendum, it enjoys a presumption of constitutionality. It presumptively forms part of the Constitution itself, unless, it is demonstrated that there were breaches of the Referendum Act, 1994, which may be broadly referred to as “technical breaches” in the counting procedure in a constituency or constituencies; or, alternatively, more generally, conduct of such a blatant and serious nature, in breach of the McKenna principles, that the only proper remedy is to annul the referendum result.
85. Article 47.3 deals with the right of citizens to vote at a Referendum. Although not directly material to these appeals, it emphasises, in terms, the right of “citizens”, as part of their democratic right of participation in a sovereign State, to engage in the most fundamental legislative process of all, that is, the framing or amending of the Constitution. The right of citizens to vote in a Referendum, therefore, and the importance to be attached to the expression of that right of citizenship, is part of the essential character of the State itself.
86. Article 47.4 of the Constitution provides:
“4 Subject as aforesaid, the Referendum shall be regulated by law.” (emphasis added)
It is very clear, therefore, that Article 47.4 is expressed, in terms, to be “subject” to the other provisions of that Article.
87. The framework of reference, identified in the Constitution, does not simply set boundaries to interpretation; but rather, to my mind, flows into each statutory provision in the Act of 1994 addressing referendums, including, specifically, those the constitutionality of which is challenged in this appeal. The statute in question must be interpreted in a manner consistent with, both the spirit and letter, of Articles 46 and 47 of the Constitution itself.
88. The process of interpretation here will, of course, be guided by the actual language of the text of the Constitution, but rejecting excessive literalism. As both a political and legal charter of rights, the text of the Constitution may be interpreted in a broad and purposive manner. The Court is not engaged here in a process of statutory interpretation, such as might obtain in a Revenue statute. What is in question, rather, is the interpretation of an Act, passed by the Oireachtas, which itself is intended to embody and apply constitutional values in the very fundamental area of how the Constitution itself is to be amended.
89. While clearly there is a balance of rights and duties, at one level, it may be said that the appeals herein also involve the resolution of rights, that is, an individual right of the appellant, as contrasted to the “rights of the respondents”. That, however, is simplistic. The issue is considerably more nuanced. What is under discussion is a series of constitutional values of paramount importance, including the right of all citizens in voting at a Referendum. There is a respect due to the constitutionally identified “approval of the majority” of the people. In the hierarchy of constitutional values engaged in this case, that which ranks higher must be given due recognition. As the Preamble provides, ‘All powers, under the Constitution’ are to be exercised to promote the common good. Provided the referendum is conducted in accordance with the law, the decision on the priority of constitutional rights which is to be applied insofar as a conflict arises, is to be resolved by having regard to the terms of the Constitution itself, the political and ethical values contained in it, acknowledged by citizens of the State, and the main tenets of our system of constitutional parliamentary democracy (see judgments of Kenny J.; and Griffin J. in The People v. Shaw [1982] I.R. 1).
90. On its face, the vote which took place on the Children Referendum on the 10th November, 2012 was an expression of the will of the sovereign people of Ireland. The proposal, which was placed before the people, met with the approval of the people by a margin, by any standards considerable, of 58% to 42%, a total of some 180,000 people. This margin bears comparison with the narrow margin shown in the divorce referendum outlined in Hanafin, where the proposal put before the people was carried by a margin of just over 9,000 votes. We are not here dealing with a narrow margin.
91. In Hanafin the judgments lay emphasis on the proposition that great constitutional weight must be imparted to the will of the people. A democracy is constituted in the rule of the people by the people. Their will, as expressed by the Constitution of 1937, identifies the very framework and nature of the State, as well as identifying a series of fundamental rights and duties.
Opitz v. Wrzesnewskyj
92. With regard to the process of interpretation, I refer now to one persuasive authority as a preface to a judgment of this Court which, to my mind, is directly on point. In Opitz v. Wrzesnewskyj 2012 S.C.C. 55, [2012] 3 S.C.R. 76 (hereafter Opitz), the Supreme Court of Canada made a series of observations which, albeit in the context of an election petition rather than a referendum, are nonetheless useful in identifying how a court should strike the balance in interpreting statutes of this type which may be ambiguous, or difficult to understand.
93. Both the majority and minority opinions of that court placed central emphasis on the popular franchise, and the right to vote, as identified in the Canadian Charter of Rights. This was a “core constitutional value” in Canadian democracy. Accordingly, this consideration lay at the heart of how the electoral law in question was to be interpreted and applied. The majority judges (Rothstein and Moldaver JJ.) specifically pointed out that in the event that electoral legislation is found to be ambiguous, it should be interpreted in a way that is “enfranchising”. The judgment lays emphasis on the proposition that annulling an election would disenfranchise not only persons whose votes were disqualified, but every elector who voted; election administration is not designed to achieve perfection, but rather to come as close to the ideal of enfranchising all entitled voters as possible; the courts cannot demand perfect certainty, and rather must be concerned with the integrity of the electoral process. The majority pointed out at par. 50:
“This overarching concern informs our interpretation of the phrase “irregularities …” that affected the result”.
The similarity to our own legislation is self-evident. The Canadian Supreme Court also drew a distinction between what was described, historically, as a ‘strict procedural approach’ where all votes cast, pursuant to an irregular procedure, were held to be invalid; compared to a ‘substantive approach’ emphasising the substantive right of the electorate to vote.
94. I would agree with this approach to constitutionally based and framed legislation, which places a priority on substance over form, and which favours the right to vote and enfranchisement. Chief Justice McLachlin, in the minority, observed that election results benefit from a “presumption of regularity”, reflecting the fact an applicant bears the burden of establishing, on the balance of probabilities, that there were irregularities that affected the result of the election. She pointed out that election results should not be easily overturned.
Dillon-Leetch v. Calleary & Ors
95. But, in fact, a judgment of this Court presaged, by some three decades, some of the observations just outlined.
96. I have already expressed agreement with O’Donnell J.’s observations regarding the application of a series of English and pre-independent statutes relied on by the appellant, and my endorsement of them. I would, however, wish to lay emphasis on passages from Henchy J.’s judgment in Dillon-Leetch v. Calleary & Ors, (Unreported, Supreme Court 1973, No. 64, 25th July 1973), which so clearly express the principles which should apply as requiring more ample consideration. The appellant submits the passage which follows is obiter, relying on reasoning fully set out in O’Donnell J.’s judgment. It is said the observations are not material. Whether the passage is obiter or not it represents, to my mind, precisely the proper approach to interpretation of statutes of this Charter. The observations made apply a fortiori to the post-1937 Constitution Referendum Act, 1994 which enjoys a presumption of constitutionality.
97. The petitioner, Mr. Dillon-Leetch, brought his proceedings under the Electoral Act, 1923, seeking to invalidate the election result in the constituency of East Mayo in the 1973 General Election. The petitioner had been unsuccessful in the constituency. His petition was dismissed in the High Court. It was contended before this Court (Budd J., Henchy J., Griffin J.) that there had been a number of irregularities in the count, including a failure to seal the ballot box at various stages during the count, thereby impinging on the secrecy of the ballot.
98. Having referred to the findings of the Divisional High Court that there had been no such actual interference, and that the boxes had been kept under supervision at all times by members of An Garda Siochana, Henchy J. speaking on behalf of this Court, expressed himself this way in addressing the ‘principles’ to be observed:
“Where, as in the present case, a Rule in one of the Schedules to the Electoral Act, 1923 has not been complied with and, as a result, the election is impugned on the ground that it has not been conducted in accordance with the principle of secretary, the election should not be upheld if the court is satisfied (a) that the election was conducted in such a way as to involve either an actual breach of secrecy or a likelihood that such a breach occurred, and (b) that the ‘informality is of such a nature as to be fairly calculated in a reasonable mind to produce a substantial effect upon the election’” (here the judge was quoting from the Gill v. Reid [1874] 3 LT 69, 85).
Henchy J. continued:
“If an election is upheld because although a breach of secrecy has, or may have, occurred, it could not have effected the result, the court will be overlooking a breach of the constitutionally recognised principle of the secrecy of the ballot in elections for Dail Eireann: see Article 16 S1, sub-section 4 of the Constitution. This, however, is because the courts will not allow an electorally ineffective breach of that principle to be used to set aside the correctly exercised constitutional right of the rest of the citizens forming the electorate in the constituency to elect the representatives in Dail Eireann: see Article 16, sub-section 1, sub-section 2 of the Constitution. To hold otherwise would be as much an inversion of constitutional priorities as to hold that an election in a particular constituency should be set aside merely because a voter, or particular voters, voted more than once (in breach of the Prohibition in Article 16, S1, sub-section 4, against so doing), but not so as to have affected the result of the election. In such cases, where the court is confronted with the inescapable necessity of giving effect to one or other of two constitutional principles or rights, it should opt for the one which is more essential to the smooth and harmonious operation of the Constitution, in the light of its basic assumptions and primary aims: see e.g. Quinn Supermarket v. Attorney General [1972] I.R. 1.” (emphasis added)
99. Both Opitz and Dillon-Leetch, therefore, concern election petitions. But judgments resonate with the same themes and principles. The prioritisation of interpretative principles, expressed in both judgments, are the more apt when considering a vote in a referendum where the will of the People has been directly expressed as to how the Constitution should be amended.
100. To a large degree, the appellant’s submissions hinged on seeking to interpret the provisions of the Act of 1994 in a manner which is at variance with the principles just identified. A “literalist”, “formalist”, mode of interpretation is not generally appropriate in applying constitutional principles of this type to a statute addressing referendums. It is true that there are divergences in the terminology used by the drafters of the Act between ss. 42, 43, 48 and 57. They are considered in other judgments. It is said the term “result of a referendum” is used in s.48, whereas the result of a referendum as a whole is to be found in the first. This is true. But the terminology, insofar as it is divergent (although not significantly so), is not a justification for adopting an interpretative approach where the law is interpreted to fit the evidence, when, obviously, the converse must be the case. To succeed, the evidence must surpass the legal thresholds, which are, in fact, quite clear; either the requirements laid down by the statute are satisfied, or the appeal must fail, absent a finding of unconstitutionality of the Act of 1994. I turn next, and more briefly, to a consideration of some passages in Hanafin.
Stare Decisis
101. The judge applied the principles identified in Hanafin. The appellant’s case must hinge, therefore, on the proposition that Hanafin was wrongly decided in whole, or at least in part. What the Court is being asked to do is to set aside a decision of the full Supreme Court given in a fully argued case on consideration of all the relevant materials. While a decision is not to be overruled merely because a later court inclines to a different conclusion, this is, of course, subject to the consideration that “…error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability and predictability should yield to the demands of justice…” (per Henchy J. in Mogul of Ireland v. Tipperary NR Co. Co. [1976] I.R. 260 at p. 272). On the other hand, the Court must bear in mind that what is at issue here is an asserted constitutional right, asserted in a matter of exceptional importance, that is, the operation of referendums. This Court has, in the past, been prepared to overrule earlier decisions which are at variance with fundamental constitutional principles (see Re Employment Equality Bill 1996 [1997] 2 IR 321, and the dissenting judgments of Denham and Keane JJ in Society for the Protection of Unborn Children Ireland Limited v. Grogan [1998] 4 I.R. 343 at pp. 371 and 388 to 389 respectively, and the judgment of Keane J. in Director of Public Prosecutions v. Best [2000] 2 IR 17 at p. 62). The Court will, therefore, afford a greater degree of flexibility in an area where constitutional rights are enjoyed. It must be accepted that there is a need for judicial consistency in constitutional areas. This is, pre-eminently, a case where the Court is considering constitutional rights, not just of one citizen, but of all citizens. The Court is guardian of last resort of the Constitution. It would surely be entirely wrong for the Court to be obliged to perpetuate an erroneous interpretation of the Constitution, were such to be established.
102. In fact, as will be seen here, and in the other judgments herein, for the appellant to succeed, this Court would have to be persuaded that significant elements of Hanafin were incorrect. Implicit in the appellant’s case also is the need to depart from the observations made by O’Donnell J. in McCrystal, decided in 2012, as to the “different standard” applicable, seeking to annul a referendum result, as opposed to halting unconstitutional conduct prior to the vote.
103. The judge is criticised consistently, but inaccurately, for his use of terms such as “clear and cogent” to describe the evidence. There is a significant distinction between, on the one hand, a ‘standard of proof’, and on the other, the evidence which is necessary in order to reach that standard. It is by no means uncommon in other areas of the civil law that courts require “clear and cogent” evidence to establish matters to a degree of probability, especially when there is a duty on a court to identify what may be viewed by analogy as the causa causans and ‘effect’.
Onus of Proof and Standard of Proof
104. I now identify a number of points made by the appellant as to the manner in which the 1994 Act is to be applied. The view expressed here accords with those of the Chief Justice and O’Donnell J. on each of the points addressed by them. There is no doubt whatever that the conclusion of the court in Hanafin was that the onus of proof was on the petitioner. The standard of proof is the balance of probabilities. While the case was presented with great precision and elegance, in fact, no significant argument has been advanced to show that the judge’s findings were wrong. In Hanafin this Court held it would not lightly set aside what appeared, prima facie, to be an act of the sovereign people, unless what had happened was an express and obvious constitutional abuse, affecting the outcome of the referendum. It is quite clear that this observation was part of the ratio of the judgments. The issue is addressed in the judgments of Hamilton C.J. at p.425 of the report, to the following effect:
The Chief Justice then turned to a consideration of two arguments advanced by counsel for the appellant in Hanafin at p.426. These were to the effect that:
On this, Hamilton C.J. observed at pp.426 to 427:
“I cannot accept that the logic of the Act demands or requires that the concept of material effect be understood as equivalent to showing or establishing that the interference or wrongdoing was not trivial or inconsequential, or that the Act does not require the petitioner to establish that the wrongdoing complained of materially affected the result of the referendum as a whole.
Sections 42, 43 and 48, sub-s. 2 of the Act of 1994 refer to this requirement.
Under s. 42, sub-s. 3 of the Act, the High Court shall not grant leave for the presentation of a referendum petition unless it is satisfied that the matters complained of are such "as to affect materially the result of the referendum as a whole".
Under s. 43, sub-s. 1, a referendum petition may question a provisional referendum certificate on the grounds that the result of the referendum as a whole was affected materially by one or all of the matters set forth at (a), (b), (c) and (d) of the sub-section.
Section 48, sub-s. 2 provides that:-
"The court shall not order a referendum to be taken again in any constituency … where it appears to the court that … the non-compliance did not affect the result of the referendum as a whole."
From a consideration of these sub-sections of the Act, it is clear that the Act provided and intended that the result of the referendum as a whole could only be questioned if it was established to the satisfaction of the court that the result was materially affected by the alleged wrongdoing. The onus of so establishing rests on the petitioner who questions the result of the referendum.
This is not only required by the Act but is in accord with the constitutional right of the citizens to vote in a constitutional referendum and to have the result thereof accepted, respected and not interfered with unless it is established that such result was materially affected by alleged wrongdoing of such a nature and effect as to vitiate the referendum.” (emphasis added)
105. The questions of onus and standard of proof is also addressed specifically in Denham J.’s judgment to the same effect (see p.451) where, under the heading of Onus of Proof, she observed:
“This is a civil case involving fundamental constitutional principles. The onus of proof lies with the petitioner and remains that of the balance of probabilities. No higher degree of proof is required. I agree with the analysis and determination in the judgment of Barrington J.” (emphasis added)
106. Barrington J., in turn, made the following observations (at pp. 456 to 457 of the report):
“In my opinion the position concerning the onus of proof is as follows. A citizen wishing to present a referendum petition must first obtain the leave of the High Court pursuant to s. 42 of the Act of 1994. The High Court may not grant such leave unless satisfied that there is prima facie evidence of a matter referred to in s. 43 of the Act of 1994 (a) in relation to which the referendum petition questions the provisional referendum certificate concerned and (b) that the said matter is such as to affect materially the result of the referendum as a whole.
The application will usually be ex parte and no doubt affidavit evidence will be sufficient to establish prima facie evidence at this stage of the proceedings. When, however, it comes to the trial of the referendum petition the petitioner will have to produce his witnesses.
At this stage the petitioner has to attack a provisional referendum certificate purporting to record the decision of the people at a referendum. The situation is not unlike that which exists when the President refers to this Court a Bill which has been passed by both Houses of the Oireachtas. The Court pays the Oireachtas the courtesy of assuming that it has not violated the Constitution. It therefore presumes that the Bill is not repugnant to the Constitution until the contrary is clearly established (See In re Article 26 and the School Attendance Bill, 1942 [1943] I.R. 334). Likewise this Court will not lightly set aside what appears, prima facie, to be an act of the sovereign people. Unless, therefore, what has happened is an express and obvious constitutional abuse affecting the outcome of the referendum, the onus of proof on the petitioner will be a heavy one. This does not mean that the onus is higher than the civil onus of proof but rather that the Court will be particularly vigilant in examining serious allegations.” (emphasis added)
These statements unequivocally set out both the onus and standard of proof. They form part of the ratio of the Hanafin decision.
107. I am unable to accept the proposition that the logic of Hanafin is that a petitioner’s case is unprovable, or that the evidence crossed the test threshold set out in O’Donnell J.’s judgment. To these I would add just a number of brief observations.
The Leave Threshold
108. It cannot be the law that the threshold for leave should be a low one, such as found in ex parte applications for judicial review. The clear import of Articles 46 and 47 of the Constitution expressed through the Act of 1994 is that a petition seeking to challenge the outcome of a referendum should not be lightly undertaken. It is not only legally appropriate, but constitutionally necessary, that in a leave application, a High Court judge should satisfy himself or herself that there is prima facie evidence of a matter referred to in s.43. The judge must be satisfied that the matter raised is such as would “affect materially the result of a referendum as a whole”. Whether or not an ex parte application is to be heard on notice is a matter which lies in the discretion of a High Court judge. However, it is not clear to me how the constitutional duty, which devolves upon a judge in interpreting sections 42 and 43 of the Act of 1994, could be discharged by the adoption of some form of low leave threshold. The test must be whether the matter raised would materially affect the result as a whole. This could not then involve establishing some minor irregularity, or infringement, or the views, no matter how well meant or whether formed in good faith; simply based on the views of some individual persons.
109. Furthermore, there is an irony which arises from the argument advanced by counsel for the appellant. It is suggested that, once a prima facie case is established, this should thenceforth be taken as effectively a “given”, and that the onus of proof should thereafter devolve upon the State to rebut the appellant’s case. But an application for leave may be made ex parte. Even if on notice, not all the evidence will be available. Such an interpretation would not be in accordance with the principles of fair procedures. It would run counter to the terms of the Act as outlined in s.43, which deals with the level of proof and content of proof necessary for a leave application; and to the provisions of Articles 46 and 47 of the Constitution, outlining the status which the courts must give to the approval of the People. A procedure of the type suggested, tantamount to a form of procedural ‘ratchet’, would itself be at variance with the constitutionally based principle of audi alteram partem.
110. It is suggested that there is support for the concept of a low threshold for leave in the judgment of Barrington J. in Hanafin. In Hanafin, Barrington J. stated at p.456:
“The High Court may not grant such leave unless satisfied that there is prima facie evidence of a matter referred to in s. 43 of the Act of 1994 (a) in relation to which the referendum petition questions the provisional referendum certificate concerned and (b) that the said matter is such as to affect materially the result of the referendum as a whole.”
He continued at p.456:
“The application will usually be ex parte and no doubt affidavit evidence will be sufficient to establish prima facie evidence at this stage of the proceedings. When, however, it comes to the trial of the referendum petition the petitioner will have to produce his witnesses.”
111. Counsel for the appellant suggests that prima facie evidence should be seen as “simply evidence that is sufficiently strong to require an opponent to be called to answer it”. It is said that the High Court judge applied the leave test by holding that the appellant could only be granted leave following the production of both factual and expert witnesses, and that the guidance offered by Barrington J. had been ignored. I do not agree with this interpretation. What is necessary is that there should be prima facie evidence of material affect on the result as a whole (see sections 42 and 43 of the 1994 Act), in the sense identified in the judgments of this Court. No doubt, affidavit evidence may be sufficient to establish such evidence ex parte. But this cannot preclude the trial judge exercising his duty in order to establish whether that prima facie evidence crosses the necessary threshold of proof establishing material affect, to the standard which s.43 and indeed Article 47 of the Constitution requires. No such similar observation appears in any of the other judgments of this Court in Hanafin.
112. There is, too, further irony in the appellant’s position. The appellant herein was actually granted leave. Can it then be said that she can legitimately complain about the leave threshold, albeit in the context of a telescoped hearing. In my view, the appellant is seeking here to invoke jus tertii, a course of action deprecated by Henchy J. in Cahill v. Sutton [1985] I.R. 269.
113. It is said also that the learned trial judge’s approach failed to respect the distinction drawn in the language of the Act of 1994 between an application for leave to present a petition and the trial of the petition itself. The proof required in s.42(1)(b) regarding the leave application is that the High Court should be satisfied that the said matter is such as to “affect materially the result of the referendum as a whole”. It is argued that this suggests that the evidence must demonstrate a “potential” that the result of the referendum was affected. But this is not what the sub-section says. What is required is that the matter disclosed is such as to “affect materially” the result of the referendum “as a whole”. While it is evident that this language is derived from the consideration that referendum counts take place on a constituency by constituency basis, it is, nonetheless, a significant threshold, closer to the requirement disclosed in the planning statutes, requiring “substantial grounds”. I do not accept, therefore, that there is a significant contrast in language between the terms of s.42(1)(b) and s.43(1), requiring that at the trial it be shown “the result of the referendum as a whole was affected materially by the impugned matter”. It is said that s.43 requires “actuality”. I agree with the latter submission, which is consistent with the provisions of Articles 46 and 47 of the Constitution, and the respect due to the will of the people.
114. Linked with this submission is a further point. The appellant says that the trial judge drew an “irrational” distinction between the standard applicable at the leave and trial stage. It is said that having adopted an unduly high standard of proof at the leave stage, akin to that implied in s.43(1), and having accepted that the appellant had overcome the high threshold of demonstrating a fair, serious and bona fide issue, he ought to have concluded that the appellant had also met the lawful standard applicable to the trial of the Petition. In the course of argument, this submission acquired greater significance, in that, counsel for the appellant sought to argue that, accepting that the leave threshold was “high”, once that threshold was passed the burden of proof fell upon the respondents.
115. One hypothetical situation demonstrates the fallacy of this submission. It is suggested that there should be a “lower” threshold. But this threshold might actually be passed on an ex parte leave application, where a respondent has no right to be heard. But such a course of action could not be in accordance with the principle of fair procedures, still less the provisions of the two referendum Articles in the Constitution.
The Standard of Proof Applied
116. It is suggested that the standard of proof imposed by the statute was “impossible”. I do not agree. In directing himself on the law, the judge used phrases, such as “a decisive” impact; or that the conduct “caused” recipients to vote “yes”. Here, referring to the evidential burden, the judge was saying that the appellant was required to inform the court “authoritatively” of the affect of the other elements of the referendum campaign; to produce “clear and cogent evidence” which was based, or might have been based, on a “multivariate” analysis of other influences at work in the referendum campaign, apart from the unconstitutional conduct and/or part of it. The standard of proof and the possible means to surpass it, are outlined in ‘the Test’ referred to on a number of occasions
Reverse Onus of Proof?
117. I reject the submission that the circumstances are such that it would be necessary to reverse the onus of proof as a matter of fundamental fairness to the appellant deriving from the observations of this Court in Hanrahan v. Merck Sharpe & Dohme Ireland Ltd. [1988] ILRM 629, which held the exception to prove all the necessary ingredients of a tort may be raised where a particular element of tort lies, or is deemed to lie, pre-eminently within a defendant’s knowledge; in which case the onus of proof as to that matter passes to the defendant. The rationale in such cases lies in the fact that it would be palpably unfair to require a plaintiff to prove something beyond his or her reach, and which fact is peculiarly within the range of a defendant’s capacity of proof (see Henchy J.’s judgment in Hanrahan, at pp. 634 - 635).( Hanrahan Unverified)
118. However, it is important to emphasise that Henchy J. then went on to state that mere difficulty of proof is insufficient:
“There are of course difficulties facing the plaintiffs in regard to proof of … but mere difficulty of proof does not call for a shifting of the onus of proof… The onus of disproof rests on the defendant only when the Act or default complained of is such that it would be fundamentally unjust to require the plaintiff to prove a positive averment when the particular circumstances show that fairness and justice call for disproof by the defendant”.” (Ibid at 635). (emphasis added) (Hanrahan unverified)
119. It is not sufficient that a matter be within the exclusive knowledge of the defendant, but also that the matter in question be “peculiarly within the range of the defendant’s capacity of proof” (per Hardiman J., Rothwell v. Motor Insurers Bureau of Ireland [2003] 1 IR 268).
120. In my view the learned trial judge correctly identified the necessity for “authoritative”, “clear” and “cogent” evidence. As Henchy J. pointed out in Hanafin, many cases arise in the law of tort, and elsewhere, where it is necessary to segregate the probative evidence so as to clearly demonstrate cause and effect, or in this case, cause and material effect. What was lacking in this case was sufficient probative evidence. That is not to say that such evidence is impossible to obtain.
121. The material published was in breach of the McKenna principles. However, it was obviously necessary to have regard to the entire scenario, background and debate in order to determine whether or not unconstitutional activities had the affect contended for. The application of this standard was no more than that required in a civil action. Were it to be the case that the campaign breaches alone, as identified in McCrystal, as distinct from the electronic media, social media, the views of peers and lawful political activity, not to mention the entire political background, had materially affected the result of a referendum, then a petitioner would undoubtedly have a stronger case. The burden imposed, by the statute, even bearing in mind the presumption of constitutionality in Article 47, is not insurmountable.
122. There is no warrant to be found in any relevant section of the Referendum Act, 1994 for reverse burden of proof. A fortiori, imparting a constitutional interpretation to each section, no such warrant is discernable, nor can it be “read in” to the Act. To do so would be to invert the constitutional values which are engaged here. Moreover, this must be seen in the context of a situation where this Court in McCrystal has already, in protection of the McKenna principles, granted a declaration. The remedy which the appellant seeks is that the outcome of the referendum be annulled. It is difficult to avoid the conclusion that the interpretation which is sought is dictated by the remedy which is urged, in light of insufficient evidence.
An Inquiry Process?
123. It is said an inquiry process should have been adopted. First, I do not believe that this, in fact, would address the appellant’s concern. What was ultimately fatal to the appellant’s case at trial was the deficiency in evidence to prove the case in accordance with law, not the procedure. It is submitted that the requirement for an inquisitorial procedure is derived from some of the judgments in Hanafin. In my view, such observations are to be seen in the context of the particular facts of Hanafin where the appellant’s evidence at trial was simply insufficient to discharge the onus of proof; and where the divisional court felt justified in granting a direction at the conclusion of the petitioner’s case; and where, as a consequence, it was unnecessary for the State to go into evidence at all in order to justify its conduct. Neither judgment proposes that an enquiry process is mandatory. The judgments of Hamilton C.J. and Barrington J. in Hanafin do not support this proposition. It is true that two members of the Court in Hanafin do raise the question of an enquiry being an appropriate form of procedure. However, this was in the context of what occurred in the divisional court, where, at the end of the petitioner’s case, a direction was granted. To my mind, neither judgment expresses the definitive view that an enquiry is appropriate. I believe this observation arises in the context of the facts of Hanafin. I do not think that any proposition to that effect is supported, either by the text of the Act of 1994, or Articles 46 and 47 of the Constitution.
Post-Ruling Conduct
124. In my view, the learned trial judge was justified in reaching the conclusions which he did on the post-ruling conduct. In fact, the appellant has advanced no legal or evidential basis for the submission that there was unlawful “post-ruling conduct”. A breach of a constitutional right is not established by identifying quotations from a number of government ministers. No issue arose, in these statements, regarding public expenditure, or breach of the McKenna principles thereafter. It is said that the short time-elapse meant that those opposed to the referendum proposals were deprived of their rights. The remedy which is proposed is that courts should have directed the government to introduce emergency legislation to postpone the referendum following McCrystal. The judge made a series of findings of fact and I would not interfere with them.
The Constituency Requirement
125. What is termed the “constituency requirement” raises little difficulty. Under s.47 and s.48 of the 1994 Act a court is empowered to direct that all of the votes taken in a particular constituency, or a specific parcel of votes, may be counted again. The appellant submits that an absence of a specific provision in the Act allowing for a global recount gives rise to a “frailty”. It is true that in Hanafin Blayney J. observed that the 1994 Act did not “appear to be designed to deal with a circumstance which could affect the poll in every constituency”, and the constituency requirement created a “special problem for the petitioner”, and was “inappropriate when the circumstance is something which affects the referendum in every constituency” [1996] 2 IR 321 at p.444.. However, this observation was not part of the ratio decidendi in Hanafin; in fact, the entire thrust of that judgment, in particular the judgment of the Chief Justice, is that the only manner in which a McKenna breach can be challenged is through the 1 Act of 1994. But clearly, as the judgments of this Court in Hanafin bear out, this does not prevent a court ordering a recount in each or all constituencies in the event that a McKenna breach is shown on a national scale. Again, this could only arise in the most exceptional circumstances, where the breach was very clear, to the extent that a question of mala fides on the part of the State arose. I would, therefore, reject the appellant’s submissions at this point. In fact, the learned trial judge held to the contrary in the petition and plenary proceedings, that is, in favour of the appellant.
Conclusion
126. I would dismiss both the petition and the plenary proceedings. I would express hope that these complementary judgments, of a unanimous court, which address different aspects of the relevant issues, and arrive at a common conclusion, will reduce the risk of the issues which arose here arising in the foreseeable future.
