THE SUPREME COURT
Appeal No: 2009/080
McKechnie J.
MacMenamin J.
Charleton J.
EDDIE KERSHAW
APPLICANT/APPELLANT
AND
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
JUDGE JOHN LINDSAY, JUDGE JOHN COUGHLAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTIES
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 21st day of June, 2016
Introduction:
1. This is the appeal from a High Court judgment and Order of Hedigan J. in which the learned judge set aside an earlier Order of Peart J. granting Mr Kershaw (“the Applicant” or “the Appellant”) leave to apply by way of judicial review for certain reliefs. Hedigan J. set aside the Order granting leave on the bases that the proceedings were scandalous and vexatious in a legal sense and that they failed to disclose a reasonable cause of action; as a result they were, in his opinion, bound to fail.
2. The background to the substantive judicial review application relates to certain convictions of and other pending prosecutions against the Applicant: all on the same type of charge save as to date, namely that whilst driving a mechanically propelled vehicle he failed to wear a seatbelt, contrary to certain regulations made under road traffic legislation. These failures are admitted on the factual side, with the reasons given and the justification offered on all occasions being identically expressed, to wit:-
“I do not wear my safety belt because I need to be able to get out of my car quick enough to defend myself against abusive [gardaí] or get away from them.”
So founded he seeks to mount a constitutional challenge to the relevant pieces of legislation which criminalise such conduct and which provide for mandatory disqualification on the accumulation of twelve penalty points: he does so on the basis that these provisions interfere with his right to life and his right to bodily integrity, and to a lesser extent his right to liberty.
Procedural History:
3. As stated, Mr. Kershaw, who describes himself as an artist and human rights defender, instituted judicial review proceedings by way of an originating Statement of Grounds filed on the 7th July, 2008, in which the following reliefs were sought:
(i) A declaration that section 3 of the Road Traffic Act 2002 (relating to disqualification by reason of the accumulation of 12 penalty points) is unconstitutional and contrary to the European Convention on Human Rights;
(ii) Orders of prohibition restraining District Judge John Lindsay and the Director of Public Prosecutions from proceedings with prosecutions against him on certain “failure to wear a safety belt” charges until his constitutional challenge had been decided;
(iii) A declaration that natural law is the supreme law under the Irish Constitution and that the natural law provisions of the Constitution are superior to the positive law provisions therein; and
(iv) An Order of certiorari quashing certain prior convictions of the Appellant on similar charges.
By way of an amended Statement of Grounds dated the 8th July, 2008, the Appellant sought a further declaration that Article 6(2) of the Road Traffic (Construction, Equipment and Use of Vehicles) (Amendment) (No. 3) Regulations 1991 (S.I. No. 359/1991) is unconstitutional.
4. On the 14th July, 2008, following the making of an ex parte application, Peart J., by Order of that date, granted leave to the Applicant to apply by way of an application for judicial review for all of the reliefs set out above, save that relating to the declaration set out at subpara. (iii) above, in respect of which leave to apply was refused. The perfected order of the 21st July, 2008, also provided that the further prosecution of the pending summonses and any attempted execution of the convictions by then so recorded be stayed until after the determination of the judicial review proceedings. The required motion grounding the application issued on the 23rd July, 2008 and shortly thereafter was duly filed and served.
5. By Notice of Motion dated the 14th October, 2008, the Respondents applied to the High Court to have the Order of Peart J. set aside pursuant to the inherent jurisdiction of that Court. Hedigan J., by judgment and Order dated the 9th February, 2009, acceded to that application on the basis that for the reasons set forth in para. 1 above, the proceedings were bound to fail. The Order of Hedigan J. was perfected on the 17th February, 2009.
6. In his judgment, Hedigan J. stated that the law on seatbelts and the penalty points system is there for the protection of the public, and that although it does constitute an infringement on personal liberty, the same is a necessary and proportionate one, and it is made for a legitimate purpose and clearly provided by law. He observed that the jurisdiction to set aside “a leave Order” is to be exercised sparingly, but that this case was an illustration of why such jurisdiction existed in the first place. The learned judge went on to say that in his view there was no possibility whatsoever that the Applicant could succeed in the core argument grounding his case, namely, that he should be exempted from the requirement to wear a seatbelt “…because of his need to escape quickly when stopped by the Gardaí. Nobody, in my view, could succeed upon the basis of such a bizarre proposition”.
7. By Notice of Appeal dated the 9th March, 2009, the Appellant applied to this Court seeking an Order discharging the said judgment and Order of Hedigan J. and in lieu thereof seeking an Order granting the reliefs as originally sought in the High Court, save that he did not pursue the declaration that natural law is the supreme law under the Constitution.
8. On the 26th April, 2013, Mr. Kershaw applied to the Supreme Court by way of Notice of Motion dated the 8th April, 2013, seeking a stay on certain prosecutions and summonses for failure to wear a safety belt, as well as a stay on the execution of certain convictions, until the determination of the appeal against the Order of Hedigan J. of the 9th February, 2009. In effect, he was looking for a continuation of the stay as granted by Peart J. In addition, he further sought liberty to amend his Grounds of Appeal so as to seek a declaration that natural law is the supreme law under the Irish Constitution or, in the alternative, to seek a declaration that the natural law provisions in the Constitution are superior to the positive law provisions thereof.
9. The Order of the court (O’Donnell, Clarke and MacMenamin JJ), dated the 26th April, 2013, reads as follows:-
“The motion on the part of the applicant in person pursuant to Notice of Motion herein dated 8th April, 2013, for a stay pending appeal on the judgment and order of the High Court (Mr. Justice Hedigan) given in mail on 9th February, 2009, coming on for hearing this day and upon reading said motion and the affidavit of Eddie Kershaw filed on 9th April, 2013, and upon hearing the applicant in person and counsel for the respondents
IT IS ORDERED that the said application be refused
Reserving the question of costs.”
Submissions:
Submissions on behalf of the Appellant:
10. The Appellant’s dense 34-page outline written submissions before this Court traverse a considerable amount of terrain. Much of it is a reiteration of or an elaboration upon points previously made in his various grounding affidavits and in other documents filed as part of the High Court proceedings; however, some arguments are broached for the first time on appeal.
11. Mr. Kershaw’s core reason for not wearing a seatbelt is that he needs to be able to get out of his car quickly enough to defend himself against abusive gardaí or to get away from them. He takes issue with the conclusion of Hedigan J. that “there is … no possibility whatever that the [Appellant] could succeed in the central core argument grounding his case” and the further statement of the judge that he could not succeed “upon the basis of such a bizarre proposition.” He points out that prior to the making of the Road Traffic (Removal of Exemption From Wearing Seat Belts by Taxi Drivers) Regulations 2004 (S.I. No. 402/2004), the drivers of taxis, hackneys and limousines were exempted by Article 8(1)(g) of the Road Traffic (Construction, Equipment and Use of Vehicles) (Amendment) (No. 3) Regulations 1991 (S.I. No. 359 of 1991) (“the 1991 Regulations”) from wearing a seat belt while driving such a vehicle. He submits that the rationale for such an exemption was the acknowledgment that taxi drivers may need to get out of their vehicles quickly enough to defend themselves or escape from abusive persons or dangerous situations within their taxicabs. In light of this former exemption under Article 8(1)(g) of the 1991 Regulations, it is submitted that the argument for exemption so as to facilitate a swift escape from abusive gardaí does not seem to be such a bizarre proposition, after all.
12. The Appellant says that there is an error on the face of the record of the Order of the Supreme Court dated the 26th April, 2013, insofar as that it omits to mention his application for a declaration that natural law is the supreme law under the Irish Constitution and that it is superior to positive law. In relation to this argument, he seeks to have the Court revisit the decision in In re Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill, 1995 [1995] 1 I.R. 1, which he claims was decided per incuriam and in breach of the Constitution and natural justice, as well as alleging that it may have been obtained by fraudulent misrepresentation.
13. Mr. Kershaw submits that Hedigan J. was unreasonable in his findings and/or unreasonable in setting aside the Order of the High Court granting leave to seek judicial review. He states that the test in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 is not a sufficient test to be applied in this case due to the natural law and fundamental rights at stake, including his right to life and to bodily integrity.
14. He complains further that there are a number of what he describes as “errors on the face of the record” of the judgment of Hedigan J., as well as errors in the affidavit grounding the motion to set aside the leave order and also in the Respondents’ outline written submissions. The Appellant submits that his grounding affidavit has been misinterpreted and misquoted in a misleading way by the Respondents and in the judgment of Hedigan J. For example, he says that Hedigan J. suggests that his argument for refusing to wear a safety belt was so as to be able to make a quick escape from ordinary, everyday members of the gardaí, whereas in fact his core point in this regard only extends to escaping from abusive gardaí. As another example, his argument is not that all gardaí are terrorists, as again suggested by the judge and repeated by the Respondents; rather, it is that certain abusive gardaí are terrorists.
15. The Appellant further submits that Hedigan J. erred in law or in fact or on a mixed question of law and fact in that the learned High Court judge took into account factors that should have been excluded, or excluded factors that should have been considered. Mr. Kershaw highlights the fact that there was no mention made in the judgment of Hedigan J. or in the Respondents’ pleadings of the fact that he was granted leave by Peart J. to challenge Article 6(2) of the Road Traffic (Construction, Equipment and Use of Vehicles) (Amendment) (No. 3) Regulations 1991; the Appellant submits that “a point not argued is a point not decided” (State (Quinn) v Ryan [1965] I.R. 70).
16. A matter that seems to have arisen for the first time on appeal is the submission that the State is vicariously liable for torts and/or constitutional wrongs committed against the Appellant by certain members of An Garda Síochána (Shortt v. Commissioner of An Garda Síochána [2007] 4 IR 587; McIntyre v. Lewis [1991] 1 IR 121). He seeks damages in respect of same. He submits that the observation of Hedigan J. that “I have no doubt that the [Appellant] has had much trouble with the Gardaí … I have no doubt he firmly believes they are out to get him”, underlines the significance of his allegations of wrongdoing against the gardaí. He says that the Respondents cannot reasonably claim to have been taken by surprise or disadvantaged by the introduction of these matters at this stage, because although he had not specifically asserted a claim for damages in respect of these and other wrongs, nonetheless the general nature of his complaint has been clear over the course of the proceedings as a whole (Wildgust v. Bank of Ireland [2001] 1 I.L.R.M. 24).
17. Mr. Kershaw submits that he has satisfied the test that an applicant must meet in order to obtain liberty to issue judicial review proceedings (G. v. Director of Public Prosecutions [1994] 1 I.R. 374). He states that a detailed examination of the facts may only take place at the hearing of the substantive application for judicial review. He says that Hedigan J. has denied him equality of arms in such a manner that the Order and judgment of the High Court ought to be quashed and/or set aside (JF v. DPP [2005] 2 IR 174). He further states that the learned judge has disregarded what the law regards as essential for the setting aside of “a leave Order” in that there were a number of disputes between the parties on issues of fact: as such a crucial precondition to the exercise of the Court’s inherent jurisdiction is not satisfied. The Appellant also submits that the determination to set aside the leave granted by the High Court was not made in accordance with the principles of natural and constitutional justice (State (Holland) v Kennedy [1977] I.R. 193) or fair procedures.
18. Finally, the Appellant makes a number of submissions in relation to delay. He states that he has been irremediably prejudiced by inexcusable delay that was caused and/or fundamentally contributed to by systemic delays and by Hedigan J. setting aside leave in the way that he did. The Appellant states that the delay in the Supreme Court hearing his appeal amounts to denial of a fair trial within a reasonable time. As a result of this delay, he has been convicted in the District Court on the very legislation that he sought to constitutionally impugn in these proceedings. As a consequence of these convictions, the Appellant has been sentenced to considerable fines and disqualified from driving for ten years. He submits that the Court has failed to prevent a grave injustice (Conroy v Attorney General [1965] I.R. 411) and that the delay has resulted in a denial of access to the courts and fair procedures (McCauley v Minister for Posts and Telegraphs [1966] I.R. 345). The Appellant seeks liberty to apply for damages to remedy this delay and its consequences for the Appellant.
Submissions on behalf of the Respondents:
19. The Respondents stand over the judgment of the High Court and submit that the appeal should be dismissed. They say that the learned judge correctly cited the applicable legal principles, namely that an order granting leave can be set aside, notwithstanding that this jurisdiction should be exercised sparingly, and that he correctly concluded that this is a judicial review that cannot possibly succeed.
20. They submit that no one can assert an absolute right of access to the courts to litigate any general grievance that they might have (Carmel Rose O’Reilly McCabe v. The Minister for Justice, Equality and Law Reform [2009] IESC 52). It would be unjust to deny a party against whom an ex parte order is made the opportunity of applying to have it set aside and instead to insist that the only remedy is by way of appeal (Adams v. Director of Public Prosecutions [2001] 2 ILRM 401; Adam v Minister for Justice [2001] 3 IR 53; Gordon v. Director of Public Prosecutions [2002] 2 IR 369).
21. The Respondents describe as unstateable the Appellant’s claim that he is entitled to an immunity from the law of the land, and in particular from the legal obligation to wear seatbelts, on the basis that he believes that the gardaí are terrorists. It is submitted that the obligation to wear seatbelts derives both from domestic law and European law. The Respondents set out the instruments, both national and European, pursuant to which the wearing of seatbelts is compulsory, including the Road Traffic (Construction, Equipment and Use of Vehicles) (Amendment) (No. 2) Regulations 1978 (S.I. No. 360/1978); Council Directive 91/671/EEC of 16 December 1991 (O.J. No. L. 373/26 of 31.12.91); the Road Traffic (Construction, Equipment and Use of Vehicles) (Amendment) (No. 3) Regulations 1991 (S.I. No. 359/1991); Directive 2003/20/EC of the European Parliament and of the Council of 8 April 2003 (O.J. No. L. 115/63); and the European Communities (Compulsory Use of Safety Belts and Child Restraint Systems in Motor Vehicles) Regulations 2006 (S.I. No. 240/2006). Pursuant to Part 2 of S.I. No. 240/2006, subject to exceptions not relevant, every adult occupant of a seat in a relevant vehicle for which a safety belt is provided shall wear the safety belt.
22. The Respondents further describe some of the assertions in the Appellant’s judicial review papers as scandalous ‘in the legal sense of that word’: in this respect they point to the Appellant’s claim that there is a real risk or danger that he may be stopped while driving his car and “assaulted, injured or fatally injured by abusive or corrupt gardaí”, and his further claim that there is a probability that he “would be subjected to felonious homicide, assaults, torture, inhuman and/or degrading treatment” by gardaí. The Respondents also characterize the Appellant’s grounding affidavit as containing abusive remarks about individual gardaí and about the gardaí generally, including describing “systemic” abuse within An Garda Síochána and referring to certain abusive gardaí as “terrorists”.
23. Finally, the Respondents submit that the Appellant’s papers are so deficient that no leave could properly have been granted upon them. In particular, when seeking leave the Appellant did not exhibit any relevant documentation, nor did he provide any factual basis upon which the case he makes could possibly be grounded. It is submitted that the Appellant has not raised any justiciable issues or a recognised cause of action against any of the Respondents. It is submitted that the Respondents, as public bodies, should not have to devote time and expense towards defending legal proceedings that do not raise any justiciable issue and which have no reasonable prospect of success.
Discussion/Decision:
24. Mr. Kershaw, who lives in Cherry Orchard, Ballyfermot, Dublin 10, describes himself as an artist and as a Human Rights Defender. I am not quite sure what he means by the latter description, but let’s take it that he has a keen interest in civil liberty and fundamental rights, not simply as affecting himself, but also as these might impact on fellow citizens.
25. From his grounding affidavit sworn on the 30th June, 2008, and thereafter running right throughout the rest of the other documentation as filed, including the written submissions, the applicant refers in much detail and in serious tone to his interaction with various members of An Garda Síochána over many years: stretching, as far as I can make out, back to 1996 at least. This material at least implies, if not expressly alleges, that he has been subjected to an unfair and targeted campaign, of an ongoing and continuous nature, by the members referred to. On at least one occasion he has referred certain matters to the Garda Síochána Complaints Board, which dismissed his complaints. Whether what is alleged is true or accurate, or grossly exaggerated or false, or indeed otherwise, is not for decision on this appeal, nor would it be even if the Respondents had an opportunity of putting in issue and contesting many or all of these assertions. Accordingly, and in light of the issue before this Court, I should express no view whatsoever on the merits of what is alleged. Such would be entirely premature and in any event would constitute quite an impossible task given the nature of the judicial review process, particularly at the stage where these proceedings are presently stationed. However, what I am prepared to do is to remain conscious of this general background from which the explanation offered by Mr. Kershaw for not wearing a seatbelt is most likely founded. In addition, let me stress that at this stage of the process, it is the explanation given by him, rather than the basis for it, which must ground the justification offered for the constitutional challenge.
26. For the purposes of rendering mandatory the wearing of seatbelts and child restraints, Regulations have been made from time to time to this effect under the Road Traffic Act legislation. That applicable to this case is the Road Traffic (Construction, Equipment and use of Vehicles) (Amendment) No. 3, Regulation 1991 (S.I. 359/1991) (“the 1991 Regulations”), and in particular Art. 6 thereof, which reads as follows:-
“6 - (1) This Article applies to every vehicle when used in a public place, being either -
(a) a passenger vehicle having accommodation for not more than eight persons exclusive of the driver,
(b) a passenger vehicle having accommodation for more than eight persons exclusive of the driver and having a design gross vehicle weight not exceeding 3,500 kilograms,
(c) a goods vehicle having a design gross vehicle weight not exceeding 3,500 kilos, or
(d) a goods vehicle not exceeding 1,524 kilos in weight unladen.
(2) Subject to the provisions of article 8 of these Regulations, the driver of a vehicle to which this article applies and a person occupying a forward facing front seat of such a vehicle shall, as and from the 1st day of January 1993, wear a safety belt or an appropriate child restraint.”
27. Section 3 of the Road Traffic Act 2002 (the “2002 Act”) provides for the consequences which follow from the accumulation of penalty points: if such number should equal or exceed twelve in any given period, the section provides for the disqualification of that person for a limited period. The relevant section reads as follows:-
“3.—(1) When penalty points are endorsed on the entry of a person and, in consequence, the total number of penalty points standing so endorsed equals or exceeds twelve, the person shall stand disqualified for a period of 6 months beginning on the appropriate date for holding a licence and a licence held by him or her at the beginning of the period shall stand suspended accordingly.”
The constitutional challenge mounted in these proceedings concerns both Article 6 of the 1991 Regulations and section 3 of the 2002 Act, which were the relevant pieces of legislation involved in the convictions made and summons issued in respect of Mr. Kershaw.
28. It is not an easy exercise to try and identify the precise number of convictions, under the aforesaid provisions, which had been recorded against Mr. Kershaw by July, 2008, or the number of actual or anticipated summonses pending or about to be issued at that time. As a matter of fact, however, it can be taken to be several in number, as demonstrated by what occurred after his application for a further stay was refused by this Court on the 26th April, 2013. Thereafter, Mr. Kershaw was convicted on the 31st October, 2013, of 13 different seatbelt offences, and on the 16th January, 2014, a further 13 convictions of a similar nature followed. On all occasions various sanctions were imposed, including fines and disqualification, the most significant of which was a disqualification from driving for a period of ten years imposed by Judge Watkins following the January 2014 convictions. As can therefore readily be seen, the Appellant is a serial repeat offender, and now has quite a significant number of such convictions recorded against him.
The Set Aside Jurisprudence:
29. It might be thought that an aggrieved person against whom a leave Order has been granted should move by way of an appeal to this Court by virtue of Art. 34.4.3° of the Constitution, or to the Court of Appeal post the constitutional and statutory creation of that court. That, however, has not been the practice, with at least one judge, McCarthy J. in State (Hughes) v. O’Hanrahan [1986] I.L.R.M. 218 at 221, doubting the availability of such a process. What there is no doubt about, however, is that such a person can apply to the High Court to have the original order set aside, even though the determining court on such an application sits at the same judicial level as the issuing court. There is an authoritative body of case law which confirms the existence of this jurisdiction.
30. An important feature of the judicial review procedure is the requirement to obtain leave, which acts as a type of filter mechanism against wholly unmeritorious claims. Since 1994, however, it is clear that such a requirement will be satisfied where, assuming other pre-conditions have been met, such as having a sufficient interest in the subject matter, the applicant can establish a stateable ground or an arguable case. G. v. D.P.P. [1994] 1 I.R. 374. Such applications are of course normally heard ex parte, with the respondent being put on notice only after the leave Order has been obtained. In such circumstances the question arises as to what options are open to such a respondent if, in his view, the leave Order should not have been granted in the first instance.
31. In Voluntary Purchasing Groups Inc. v. Insurco Ltd [1995] 2 I.L.R.M. 145 (“Voluntary Purchasing”), McCracken J. referred to the inherent power of the High Court in this respect, where he stated:-
“In my view, however, quite apart from the provisions of any rules or statute, there is an inherent jurisdiction in the courts in the absence of an express statutory provision to the contrary, to set aside an order made ex parte on the application of any party affected by that order. An ex parte order is made by a judge who has only heard one party to the proceedings. He may not have had the full facts before him or he may even have been misled, although I should make it clear that is not suggested in the present case. However, in the interests of justice it is essential that an ex parte order may be reviewed and an opportunity given to the parties affected by it to present their side of the case or to correct errors in the original evidence or submissions before the court. It would be quite unjust that an order could be made against a party in its absence and without notice to it which could not be reviewed on the application of the party affected.”
32. Kelly J., as he then was, in giving judgment in Adams v. Director of Public Prosecutions [2001] 2 ILRM 401 (“Adams v. D.P.P.”), endorsed the above passage, stating:-
“I have no hesitation in following that line of reasoning. It is in my view both good law and good sense. It would be most unjust to deny a party against whom an ex parte order had been made the opportunity of applying to the court to set it aside and instead to insist that the only remedy was one of appeal to the Supreme Court.”
33. The issue came before the Supreme Court in Toma Adam & Ors v. Minister for Finance [2001] 3 IR 53 (“Toma Adam”), where it was argued, firstly, that the comments of McCracken J. in Voluntary Purchasing were not made in the context of a judicial review case, with the significance being that the proceedings had not been subject to the leave requirement, and, secondly and in any event, the applicants also sought to distinguish Adams v. DPP on the basis that the leave Order in that case was set aside on the grounds that Mr. Adams lacked bona fides. Despite these submissions, however, the Supreme Court confirmed that both the High Court and, on appeal, the Supreme Court itself have an inherent jurisdiction to set aside an Order granting leave which had been obtained on an ex parte basis. The Court further held that leave could be set aside, inter alia, where the proceedings disclose no reasonable cause of action or where they are otherwise frivolous, vexatious or doomed to fail, including where there was an absence of mala fides,
34. It should be added that in her judgment McGuinness J. felt that such jurisdiction should only be exercised in ‘exceptional cases’, a point which the learned judge also made in C.S. v. Minister for Justice [2005] 1 I.R. 343, where at 367 she used the phrase “…should be exercised sparingly and only in plain cases”. Fennelly J. approved of these principles in Gordon v. Director of Public Prosecutions [2002] 2 IR 369 (“Gordon”). Hardiman J. in Toma Adam, on the other hand, took a somewhat more relaxed approach, stressing that the original order had been obtained ex parte. Given the conclusion which I have reached in this case, it is not necessary to offer any comment on any possible difference of emphasis between both views, and thus I refrain from doing so. However, I should add that amongst the factors which would most likely influence my approach, if such became necessary, would be whether or not the set aside application is the only recourse available to a respondent who wishes to challenge the underlying Order. In any event, I do not have to further consider this matter as even on the more strict approach I am perfectly satisfied as to what the ultimate outcome should be.
35. The trial judge in this case applied the more stringent test by stating that this type of jurisdiction “must be exercised sparingly”, an approach which for the reasons above given I am also satisfied to apply on this appeal
36. Whilst it follows therefore that the Order of Peart J. granting leave on the 14th July, 2008, should not lightly be set aside, nonetheless, as stated, all superior courts have jurisdiction to do so where the proceedings fail to disclose a reasonable cause of action or where they are frivolous or vexatious or are doomed to fail; in other words, leave can be set aside if it can be clearly shown that it should not have been granted in the first place.
37. Before leaving this point it is worth noting that this jurisdiction raises no concern regarding access to justice. Many people confuse the right of access to the judicial process and the right of both judges and the system alike to regulate the exercise of that access. A distinction must thus be made between restrictions which directly affect the right at the access point in the first instance, and decisions made thereafter which may affect the conduct of the litigation. An example of the former is to be found in the case of MacAuley v. Minister for Posts & Telegraphs [1966] I.R. 345, where the court struck down as unconstitutional the then requirement for an individual to obtain the fiat of the Attorney General in order to bring an action against a Minister of Government. That was a true example of an external impediment which imposed an unjustified restriction on access to the judicial system.
38. On the other hand, there are multiple situations where decisions are taken as part of the administration of justice which affect the course of litigation, and which impact on a party’s perceived entitlement to conduct litigation as he sees fit. The following are examples of rules, practices, principles of law and statutory interventions which can be regarded as having such an impact, albeit in different ways and to varying degrees:-
• Limitation periods;
• Equitable delay;
• Security for costs;
• No reasonable cause of action pleaded/frivolous or vexatious;
• The principles outlined in Barry v. Buckley [1981] IR 306;
• The rule in Henderson v. Henderson (1843) 3 Hare 100;
• The principle of finality/ legal certainty;
• No justiciable issue disclosed;
• Judgment as part of the summary process.
These are but examples of tools which are available as part of the administration of justice and, in principle, are quite distinct from restrictions of the type mentioned in MacAuley v. Minister for Posts & Telegraphs. As the “set aside jurisdiction” comfortably falls within the former, it raises no concerns as previously indicated regarding access to justice.
The Elephant in the Room:
39. It will be convenient at this point of the judgment to deal with the following issue, which the Appellant has described in terms of the sub-heading to this paragraph. As above stated (para. 4), the Appellant was refused leave to apply for any relief arising out of or relating to any argument he wished to make regarding the positioning of natural law in the constitutional framework of this jurisdiction (“the natural law issue”). In both the documentation and in oral argument, Mr. Kershaw suggested that this Court, on the 22nd July, 2008, granted him leave to appeal against the refusal of Peart J. on this point. No such Order has been produced and, as I understand it, no such Order exists. It seems very unlikely that the Supreme Court would make such an Order without a formal application to that effect having being moved before it. It would therefore appear that Mr. Kershaw’s characterisation of what occurred is inaccurate. It is much more probable that the case was mentioned to the Court on the occasion in question purely to satisfy the four day rule (Order 58 Rule 13 of the Rules of the Superior Courts). Accordingly, and in particular in the absence of any Order, the mere mention of the case to the Supreme Court cannot be treated as a substantive basis permitting Mr. Kershaw to appeal to this Court from the refusal so mentioned.
40. This view of what most likely occurred is strongly supported by reliefs (iv) and (v) which Mr. Kershaw sought from this Court in a motion issued on the 8th April, 2013, and determined on the 26th April of that year. It might be recalled (para. 8 supra) that the principal relief sought in that motion was a stay on any further movement of both the recorded convictions, and/or the pending prosecutions. That was rejected, as appears from the Order which I have recited in full at para. 9 above.
41. In addition, Mr. Kershaw also sought permission to appeal the refusal of Peart J. to grant leave on the natural law issue. Whilst it is true to say that no express mention is made of that part of the application in the Order, such cannot be taken as the legal basis sustaining an appeal to this Court on that issue. There is simply no Order in force to that effect. None such exists. It is thus not possible for a party to argue that the mere absence of any express reference to these reliefs in the Order should be taken as affirmatively approving the application in that respect. If Mr. Kershaw was dissatisfied with the perfected Order, he should have sought clarification of it. He did not do so. Accordingly, it is not now open to him to make any argument on this point.
42. However, even if the obstacles as identified did not face Mr. Kershaw in his attempt to appeal the natural law issue, it seems to me that he could not conceivably, at the level of principle, satisfy the threshold for leave set out in G. v. D.P.P. It is worthwhile noting that under this heading he wishes to argue that the decision of this Court in In re Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill, 1995 [1995] 1 IR 1, which in effect decided that the fundamental rights contained in Irish law are those set out in the Constitution and are not to be found elsewhere, has been given in breach of the Constitution itself, in breach of natural and/or constitutional justice based on some unidentified fraudulent misrepresentation, and/or was decided per incuriam. He therefore submits that unless he obtains leave based on this argument, he would suffer a grave injustice as that decision would continue to apply. There is not a shred of evidence to support his assertion as to how that decision was arrived at, nor is there any other credible basis identified anywhere within the entirety of the documentation which could justify the pursuit of this point. Therefore, he is not entitled to argue that issue, even if the judicial review application was being proceeded with.
43. There is a further basis on which the pursuit of this argument would be futile, which is this. The purpose of the Appellant in attempting to advance the natural law argument is so that he can rely on certain rights as contained in natural law, so as to further his challenge to the validity of the 1991 Regulations and s. 3 of the 2002 Act. In fact, those fundamental rights to life and to bodily integrity are unquestionably within the Constitution of Ireland, and thus he could not conceivably obtain any further benefit or greater advantage by relying on natural law as distinct from the 1937 Constitution. Therefore, for all of these reasons, this point cannot be argued on this appeal, the grounds advanced fail to meet the leave requirement and, in any event, no benefit would accrue to Mr. Kershaw even if such an argument could be so advanced.
The Stay Argument/Delay Point:
44. The appellant raises a further point regarding the issue of a stay and in that context refers to the delay arising from the Order made by Hedigan J., and also in having his appeal determined by this Court.
45. O. 84, r. 20(8)(b) of the Rules of the Superior Courts (RSC) provides that where leave to apply for judicial review has been granted, the issuing court, if it considers it just and convenient to do so, may grant a stay on such terms as it thinks appropriate. That jurisdiction was exercised by Peart J. when granting leave on the 14th July, 2008. The basis for granting such a stay is, firstly, that in the Court’s view a successful applicant has established an arguable case for obtaining the relief which is sought in the statement grounding the application, and, secondly, that the Court, having considered all of the circumstances, is also satisifed that it is just and convenient to so do.
46. The stay so granted in this case automatically lapsed with the judgment and Order of Hedigan J. on the 9th February, 2009. Immediately on dismissing his case, the position of Mr. Kershaw significantly changed in that thereafter he did not have the benefit of a leave Order, and thus could no longer rely on one of the essential bases for which he originally obtained the stay. What he had then was the right of appeal only: he could no longer rely on having an arguable case.
47. Whilst it is unclear whether he applied for a stay de novo to Hedigan J., he did in fact make such an application to the Supreme Court, as previously outlined (paras. 8-9, supra). By Order of the 26th April, 2013, that application was dismissed. There is no issue but that the Court had jurisdiction to refuse the application: there is no dispute that it exercised such jurisdiction correctly. What the Appellant simply says is that he disliked the result. That in itself cannot be a sustainable basis for asserting any breach of some unspecified right by reason of the Director of Public Prosecutions continuing thereafter with the pending prosecutions and/or taking whatever steps might be appropriate to execute the convictions previously obtained.
48. What must be stressed in this context is the sharp distinction between an individual in whose favour there stands a leave Order as against a person where no such Order is in existence, but whose only right is one of appeal. This is amply demonstrated in the evidence of Mr. Kershaw himself, who points out that in a further judicial review application he obtained leave from the High Court (Peart J.) on the 10th February, 2014, to challenge the validity of the convictions recorded against him in the previous October, and in January of that year. As part of this Order the learned High Court judge, as he then was, saw fit to apply the provisions of O. 84 of the RSC and, accordingly, as and from that date there stood in favour of the Appellant a further stay on the convictions as mentioned. That decision of Peart J. and the decision of the Supreme Court in April, 2013 are fully provided for in domestic legislation: accordingly, no grounds have been advanced to challenge the stay process which took place in this case.
49. The Appellant argues that he has been irremediably prejudiced by the delays which have occurred. Between leave being set aside and the hearing of the appeal, he has been convicted pursuant to the legislation he sought to impugn, resulting in heavy fines and a disqualification from driving for ten years. However, as I have pointed out, he is challenging the validity of such convictions and has secured a stay on the execution steps until these judicial review proceedings have been determined. Therefore, there is available to him a means, which he has availed of, by which any injustice can be remedied, if so found to exist. He also claims that as a result of this delay he has been denied access to the Courts and fair procedures. For the reasons above given, I do not accept any of these points. As I will show in a moment, the Appellant’s challenge to the constitutionality of the legislation under which he has subsequently been convicted had no prospect of success and is and was always bound to fail.
Misquoted:
50. The Appellant objects to his being misquoted or selectively quoted by Hedigan J. and the Respondents; he claims that this has given the impression that his fear is that all members of the gardaí may seek to assault him, when in fact his argument relates only to abusive members. Perhaps this judgment will reassure Mr. Kershaw that the nature of his complaint has not been misunderstood; in addition, however, this general characterisation of his complaint against Hedigan J. is perhaps overstated. From the totality of the decision of the trial judge it is abundantly clear that he was fully aware of the case as made. This point does not give rise to an arguable ground of appeal. Furthermore, the Appellant argues that Hedigan J. erred in failing to mention in his judgment that Peart J. had granted the Appellant leave to challenge Article 6(2) of the 1991 Regulations. I am satisfied that this could not be described as an error on the part of Hedigan J. It is clear that his comments in relation to the Appellant’s case applied to the challenge to Article 6(2) of the 1991 Regulations as well as to section 3 of the Road Traffic Act 2002.
Constitutional Issue:
51. The basis for the Appellant’s argument that he should be exempted from the requirement to wear a seatbelt is that he needs to be able to escape quickly if stopped and assaulted by abusive gardaí. He claims that under the circumstances, the requirement to wear a seatbelt constitutes a violation of his constitutional rights to life and bodily integrity; this is on the basis that taking the time to remove the seatbelt while under attack by such Gardaí would lessen his chances of successfully defending himself from or evading such an attack.
52. In support of this contention, the Appellant has pointed out that prior to 2004, taxi drivers were exempted by Article 8(1)(g) of the 1991 Regulations from the requirement to wear seatbelts. He claims that the reason for this exemption was that taxi drivers needed to be able to effect a quick getaway from would-be attackers inside their taxicabs. Seen in this light, he argues that his core proposition is not “bizarre”, as characterised by Hedigan J.
53. To the extent that the rationale suggested by the Appellant is correct and was once recognised as a genuine reason to exempt taxi drivers from the requirements of the seatbelt legislation, clearly it has no longer held sway since 2004. Furthermore, insofar as this was the logic applying to the exemption, it arguably made some sense in the context of taxi, hackney and limousine drivers, who would necessarily be inside the vehicle together with their hypothetical assailants, all random or unknown members of the public. One can perhaps imagine in that sense how a fastened seatbelt could itself be used to restrain the driver by someone leaning over from the passenger seat or the back seat and doing so.
54. However, whatever logic there might be to that proposition does not in my view carry over to the primary argument advanced by Mr. Kershaw, which is that he should likewise be exempted so as to protect himself or aid his escape from attacks that have never been inside the vehicle. Leaving aside for a moment the important issue of whether the Appellant has demonstrated as a matter of fact any reality to his fear of assault by the gardaí, I am satisfied that he cannot rely on the exemption formerly granted to taxi drivers as being in any way comparable or analogous to the argument that he is attempting to sustain.
55. In any event, as just noted, the unlikely scenario of an attack by a taxi passenger is no longer seen - if indeed it ever was seen - as justifying the obvious risks posed to the health of taxi drivers and passengers alike by the exemption of taxi drivers from the requirement to wear seatbelts; the exemption was removed by the Road Traffic (Removal of Exemption From Wearing Seat Belts by Taxi Drivers) Regulations 2004 (S.I. No. 402/2004). As stated by Hedigan J., the law on seatbelts is there for the protection of the public. While it does constitute an infringement on personal liberty, it is a necessary and proportionate one, made for a legitimate purpose and clearly provided by law.
56. I do not believe there is any basis on which the Appellant can sustain the argument that the extra couple of seconds it would take him to remove his seatbelt if faced with a threat of assault from outside his vehicle justifies his exemption from a law which is in place for his own safety and the protection of the public. I therefore agree with Hedigan J. that this is an unstateable proposition which is bound to fail. Moreover, there is absolutely no reality to the idea that this argument could ground a general challenge to the constitutionality of the impugned pieces of legislation, be it the requirement to wear a seat belt under Article 6(2) of the 1991 Regulations or the operation of the penalty points scheme under section 3 of the Road Traffic Act 2002. Both, of course, enjoy the presumption of constitutionality, which cannot be impugned on the basis advanced.
57. As noted, the Appellant’s fear relates to attacks by “abusive” members of An Garda Síochána. Of course, it is not the case that the gardaí have never acted in an untoward fashion: far from it. There have been instances of police misconduct and harassment, of which the Appellant cites Shortt and McIntyre as two examples (para. 16, supra). Certainly it is the case that the Appellant has had numerous dealings with the gardaí. He has made complaints against certain members in the past. However, I do not believe that there is any credibility to the argument that the requirement to wear a seatbelt has or could in any way endanger his life or violate his right to bodily integrity, by virtue of any anticipated assault by abusive gardaí or otherwise. The very idea underpinning the challenge to the legislation is so lacking in objective reality that it has no prospect of success.
58. Seemingly encouraged by the acknowledgment by Hedigan J. that “I have no doubt [the Appellant] believes [the gardaí] are out to get him”, Mr. Kershaw is now seeking damages from the State, which he alleges is vicariously liable for torts and/or constitutional wrongs committed against him by members of An Garda Síochána. Quite apart from the fact that this appeal and these proceedings are not an appropriate forum in which to seek damages, I should add that I fail to see any discernable cause of action against the Respondents in respect of any tortious or constitutional wrongs as alleged. Such, however, is not an issue in this case and that observation is obiter. In conclusion, the requirement that Mr. Kershaw must legally wear a seatbelt is not a breach of his constitutional rights.
59. Accordingly, for the reasons set out above, I would dismiss the appeal.
