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  • as the third named applicant was born in Ireland on the 14th November 2001 and is an Irish citizen He has resided in the State since his birth Gheorghe Dorin Duman the first named applicant and hereinafter referred to as the first named applicant is the father of the third named applicant and is a Romanian national Alina Vica Gap Samolia the second named applicant and hereinafter referred to as the second named applicant is the mother of the third named applicant and is a Romanian national 6 Particular Facts The first and second named applicants each made an application under the IBC 05 Scheme and both were refused It is common case that each have been convicted of a shoplifting offence The letters from the Minister included the following findings In relation to the first named applicant it was stated In announcing the revised processing arrangements the Minister stated that persons of good character who have not been involved in criminal activity can expect to be granted permission to remain in the State I am advised by the Garda National Immigration Bureau that on 1 March 2004 you were convicted of a shoplifting offence contrary to Section 4 of the Theft Act 2001 On the basis of the foregoing I am not satisfied that you are a person of good character who has not engaged in criminal activity as set out in the Minister s announcement and accordingly your application for permission to remain in the State under the revised arrangements is hereby refused In relation to the second named applicant s application it was stated In announcing the revised arrangements the Minister stated that persons of good character who have not been involved in criminal activity can expect to be granted permission to remain in the State I am advised by the Garda National Immigration Bureau that on 9 May 2002 at the Dublin District Court 46 you were convicted of a shoplifting offence contrary to Section 2 of the Larceny Act 1916 as amended and received a three year suspended sentence I am advised that two other charges were also taken into consideration On the basis of the foregoing I am not satisfied that you are a person of good character who has not engaged in criminal activity as set out in the Minister s announcement and accordingly your application for permission to remain in the State under the revised arrangements is hereby refused The Minister was requested to reconsider the matter His reply was that the position regarding the applications remained as detailed previously 7 High Court Proceedings By order of the High Court Peart J on the 12th December 2005 the applicants were granted leave to seek certain reliefs by way of judicial review including an order of certiorari quashing the Minister s decision The High Court Finlay Geoghegan J on the 14th November 2006 noted in considering the decision These proceedings were heard with the proceedings 2006 No 504 J R Mercy Oviawe Ors

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  • counsel The same affidavit of Maura Hynes a principle officer in the Department of Justice Equality and Law Reform was filed in all cases on behalf of the Minister Similar written submissions were filed on behalf of the Minister in all cases 4 The general facts and law relating to the Minister s decision in the administrative scheme in the seven cases are set out in the Bode judgment The particular facts law and decision of this case are set out herein 5 Parties Samir Moriss Gerges Fares the first named applicant and hereinafter referred to as the first named applicant is married to Mrs Sohair Antone Gerges Boulis who gave birth in the State to Flobater Samir Moriss Gerges Fares the second named applicant and hereinafter referred to as the second named applicant on the 14th September 2003 6 Particular Facts This case relates to the requirement in the IBC 05 Scheme of continuous residence within the State The first named applicant is an Egyptian national On the 1st September 2003 the first named applicant and his wife entered the State on a visitor s visa His wife gave birth to the second named applicant in the State on the 14th September 2003 All three left the State on the 13th October 2003 The applicants and the first named applicant s wife and mother of the second named applicant re entered the State on the 10th March 2005 using visitors visas Both the first named applicant and the second named applicant s mother applied under the IBC 05 Scheme on application forms received on the 22nd March 2005 On the 19th August 2005 both applications were refused The grounds for the refusal were stated as follows It is a requirement under the revised arrangements that the applicant is residing in the State with their Irish born child on a continuous basis since the child s birth In this case I note from your application form that you have been resident in Egypt from 13 October 2003 to 10 March 2005 On this basis I am satisfied that you do not meet the criteria for the granting of permission to remain in the State under the revised arrangements and accordingly your application is hereby refused 7 High Court Proceedings On the 21st November 2005 the first named applicant was given leave by the High Court Butler J to apply by way of judicial review for a number of declarations relating to the alleged invalidity of the decision of the Minister to refuse his application under the IBC 05 Scheme These proceedings together with the Bode case and the other cases listed in paragraph 3 above were heard together by the High Court 8 High Court Order The High Court held There is no substantive difference between the position of the second named applicant as a citizen child and his father as an applicant under IBC 05 so as to distinguish them in any way from the conclusions which I reached

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  • is a national of Nigeria who arrived in the State in March 2002 The seventh and eighth named applicants were born in the State on the 29th July 2002 and are Irish citizens being the twin son and daughter of the first named applicant The remaining applicants are other children of the first named applicant who have resided with her in the State since 2002 6 Particular Facts This case raises the issue of criminal activity of an applicant The first named applicant submitted an application under the IBC 05 Scheme By letter dated the 16th November 2005 the application of the first named applicant was refused The reason given was The Minister stated in his announcement that persons of good character who give honest and complete details can expect to be granted permission to remain in the State I am advised by the Garda National Immigration Bureau that in January 2001 and January 2004 you were convicted of offences contrary to Section 4 of the Theft Act 2001 On this basis I am not satisfied that you are a person of good character as set out in the Minister s announcement and accordingly your application for permission to remain in the State under the revised arrangements is hereby refused The first named applicant was convicted in January 2004 of offences contrary to s 4 of the Criminal Justice Theft and Fraud Offences Act 2001 The charges related to the theft of goods to the value of 99 00 The first named applicant pleaded guilty and was sentenced to three months imprisonment which was suspended for 12 months on her bond of 300 to keep the peace and be of good behaviour The first named applicant disclosed the conviction on her application form for the IBC 05 Scheme The learned trial judge stated that her application under IBC 05 was considered and determined without any consideration of the constitutionally protected personal rights of her citizen children 7 High Court Proceedings On the 8th May 2006 the applicants were given leave to seek an order of certiorari quashing the decision of the Minister dated the 16th November 2005 8 High Court Order The learned High Court judge stated that the only difference of substance between this case and the Bode case was the reason for the refusal of the application under the IBC 05 Scheme The High Court then went on to hold that this necessitated consideration of the following issues 1 Were the revised arrangements known as IBC 05 addressed to non national parents of Irish born children born before 1 January 2005 with a criminal conviction 2 Does the fact of Mrs Oviawe s criminal conviction alter the entitlement of her twin citizen children to have their personal rights within the meaning of Article 40 3 of the Constitution or right to respect for their private life within the meaning of article 8 of the Convention considered and taken into account by the Minister in determining their mother s

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  • persons brings a rapid end to the defendant s anxieties which in this case must be considerable since one of the charges the applicant is facing carries a mandatory minimum sentence of ten years imprisonment and brings about a resolution of the action between the prosecutor and the defendant at the earliest possible time freeing up Court time for other cases 9 There is accordingly no doubt but that the applicant was entitled to seek the relief which he sought from the learned Circuit Court judge The question is whether the latter was entitled to require him to give advance notice of the grounds upon which the application would be urged 10 The applicant s rights arise from the statutory provision already quoted This provision requires that the prosecutor be put on notice of the defendant s application to dismiss but does not itself require that notice of the grounds of this application be given The statute does not of course exclude this possibility either The applicant s case is put in this way he has an undoubted right to have his motion to dismiss determined and there is no statutory authority for the proposition that he has to give advance notice of the grounds of his application The respondent however argues that the requirement to give notice of the application would be meaningless unless it that is the notice incorporated the grounds of the application It is also argued that the learned judge was entitled to organise the business in his court in the most efficient manner as he sees fit and that this extends to a power to order a statement of grounds The High Court decision 11 The High Court Quirke J in a judgment delivered the 27th May 2004 referred to a number of cases including Hughes v Garavan and the DPP unreported Supreme Court 17th December 2003 There McGuinness J had endorsed the following statement from the High Court judgment of Kelly J The preliminary examination is an important safeguard to ensure that an accused is not put on trial for offences where there is no evidence against him However the examination is not complete until the accused is discharged or a return for trial is made 12 I respectfully agree that the availability of a pre trial examination of the sufficiency of the evidence against the defendant now by virtue of s 4E is an important safeguard to ensure that an accused is not put on trial for offences where there is no evidence against him 13 In the Hughes case submissions evidently substantial ones were made to the learned District Justice during the preliminary examination on behalf of the applicant The prosecution did not make submissions but sought an adjournment Between the date on which the submissions were made and the adjourned date a Notice of Additional Evidence was served purporting to comprise additional testimony as to the value of the drugs in question in that case On judicial review it was held that Once the District judge had passed on to hear submissions under s 7 it was not open to him to receive the additional evidence which purported to be served under s 6 4 or to take it into account in reaching his decision to return the accused for trial on this particular charge there is I consider also some weight and logic in the argument put forward by Mr Gageby that the right to make submissions under s 7 would be rendered meaningless and possibly counterproductive if the prosecution is to be permitted simply to mend its hand by producing additional evidence at that stage 14 It is important to remember that Hughes was decided before the provisions of s 4E had come into force and related to the older provisions of the 1967 Act Nevertheless the case is a useful one because of its emphasis on the importance of a safeguard such as that provided by s 4E I do not believe that it is necessary for the purpose of this case to comment on the last passage from Hughes cited above It is however quite clear that a trial judge has an inherent jurisdiction to refuse to permit the adduction of additional evidence if to do so would be unfair or would tend to frustrate the defendant s entitlements 15 In this case the learned trial judge proceeded to make further finding about the procedure required by the 1999 Act He pointed out p 8 of the judgment that an accused person under the preliminary examination system was entitled to make an application in the District Court that he be discharged as to the offence under examination on the ground that the evidence before the District Court did not disclose a sufficient case to put him on trial for the offence with which he had been charged As far as I am aware there is no reported case under the 1967 Act regime where a defendant exercising this right was compelled to give advance notice of his submissions The statutory provision under the present law provides a right to apply to the trial court to dismiss one or more of the charges preferred It goes on to provide at subsection 4 If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates the Court shall dismiss the charge 16 At p 9 of his judgment the learned trial judge asked Does this place an onus upon the accused person to prove that the evidence upon which the State will rely in support of the charge preferred against him is insufficient to establish a prima facie case 17 Quirke J answered his own question as follows I think not Every person charged with the commission of a criminal offence within this jurisdiction enjoys the constitutional right to a trial in due course of law Article 38 1 of the Constitution Included

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  • arrested without warrant is a person who should be detained by him for a period not exceeding six hours from the time of the arrest as a necessary part of the proper investigation of the offence for which the person has been brought into the Station That independent opinion of the Sergeant can be formed as a result of information given to him either prior to the arrest or even when the arrested person is brought to the Station What is necessary under the section is that the Sergeant in charge makes an independent decision on the information supplied to him and comes to his or her personal decision that the detention of the person brought to the Station is then necessary for the proper investigation of the offence for which he has been charged It remains a question of fact for the District Court Judge to determine on all the evidence before him whether he is satisfied that the requirements of the section have been complied with The Third Question The next question is If the member in charge did in fact possess the requisite independent bona fide belief does the decision of the D P P to prefer summary charges following an arrest and detention under s 4 of the Criminal Justice Act 1984 undermine the said member in charge s independent bona fide belief and thereby retrospectively render the period of detention unlawful The answer to that question must be no for the reasons which I have already mentioned in addressing the first question when I referred to the distinction between the function and role which the Gardai are exercising when investigating an offence and exercising powers under s 4 and the ultimate decision of the D P P to prefer summary charges A subsequent decision of the D P P or other authorised persons to prefer summary charges does not retrospectively undermine the independent bona fide belief of the member in charge but whether that exists is a matter for the District Court Judge to decide on all of the evidence before him The Fourth Question The fourth question states that If s 4 of the Criminal Justice Act 1984 was properly invoked is the D P P estopped from preferring summary charges Again for the reasons I have stated and in particular the distinction between the investigative role of the Gardai when exercising powers under s 4 of the Act of 1984 and that of the D P P they being distinct and separate it cannot be said that the exercise of a power of arrest pursuant to s 4 of the Act of 1984 in the course of an investigation precluded or estopped the D P P from subsequently preferring summary charges or otherwise when exercising his functions in that respect Accordingly the questions 1 3 and 4 should be answered in the negative and question 2 should be answered in the positive namely that he is entitled to so conclude if as indicated the evidence leads the District Court Judge to that conclusion These answers accord with those given in the High Court judgment although the reasons given here differ somewhat because it is not all evident from the Cases Stated that the District Court Judge has in fact already decided the questions of fact relating to the exercise of powers pursuant to s 4 which the High Court appear to have assumed CASES STATED REFERRED TO An Chúirt Dúiche The District Court District Court Area of Cobh District No 20 IN THE MATTER OF SECTION 2 OF SUMMARY JURISDICTION ACT 1857 AS EXTENDED BY SECTION 52 1 OF THE COURTS SUPPLEMENTAL PROVISIONS ACT 1961 BETWEEN DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA MICHAEL DILLANE OF AN GARDA SÍOCHÁNA COBH STATION COBH COUNTY CORK PROSECUTOR AND TERENCE ALCOCK OF 39 BAYVIEW COBH COUNTY CORK ACCUSED APPEAL BY WAY OF CASE STATED This is a case stated by me Michael Pattwell a Judge of the District Court assigned to District Court number 20 pursuant to section 2 of the Summary Jurisdiction Act 1857 as extended by section 51 of the Courts Supplemental Provisions Act 1961 1 At a sitting of Cobh Distict Court held at the Courthouse Cobh County Cork on the 25th day of January 2006 Terence Alcock the accused herein hereafter referred to as the Accused appeared before me to answer a complaint the subject matter of three charge sheets in which he was charged with the following offences to wit that on the 27th day of October 2005 at West Beach Cobh County Cork a public place a on a date unknown between the 27th day of October 2005 and the 27th day of October 2005 assaulted a David Parker contrary to section 2 of the Non Fatal Offences Against the Person Act 1997 b did use or engage in threatening abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned contrary to section 6 of the Criminal Justice Public Order Act 1944 and c while committing appearing to be about to commit an offence to wit assault in the course of a dispute producing in a manner likely unlawfully to intimidate another person an article capable of inflicting serious injury to wit a hurley contrary to section 11 of the Firearms and Offensive Weapons Act 1990 A copy of the charge sheets which forms part of this case stated is attached at Annex 1 2 At the said hearing the Director of Public Prosecutions was represented by Inspector Martin Dorney of An Garda Síochána Midleton Station Midleton County Cork Mr Barry Sheehan Solicitor of Ravensdale Church Road Douglas Cork represented the Accused 3 The facts as proved or admitted or agreed and as found by me were as follows a In or around 14 35 hours on the 27th day of October 2005 at Low Road Cobh County Cork the Accused was arrested by Garda Michael Dillane hereafter referred to as the Prosecutor without warrant pursuant to section 4 of the Criminal Law Act 1997 for an alleged offence under section 11 of the Firearms and Offensive Weapons Act 1990 b In or around 14 36 hours the Accused arrived in custody at Cobh Garda Station where at approximately 14 49 hours the Prosecutor applied to Garda Bryan Griffin hereafter referred to as the Member in Charge to have the Accused detained pursuant to section 4 of the Criminal Justice Act 1984 for an alleged offence under section 11 of the Firearms and Offensive Weapons Act 1990 In his oral evidence the Prosecutor stated that the said application was based upon a statement of complaint he had received earlier that day from a David Parker hereafter referred to as the Complainant together with a witness statement from Mr Parker s partner Noreen Broderick where they alleged that the Accused during the course of a dispute had produced a hurley with which he assaulted the Complainant in addition to several telephone calls received at Cobh Garda Station On cross examination the Prosecutor confirmed that he did not carry out any further investigation of either the Complainant or the subject matter of the complaint before effecting the said arrest of the Accused c In his viva voce evidence the Complainant alleged that he had suffered a bruise to the upper part of his left shoulder blade from the Accused s hurley d In his oral testimony the Member in Charge stated that he was satisfied that he had reasonable grounds for detaining the Accused pursuant to section 4 of the Criminal Justice Act 1984 on the basis of the short application made to him by the Prosecutor On cross examination the Member in Charge confirmed that he did not carry out any form of background check on the Complainant nor did he investigate any aspect of the complaint rather he had relied solely upon the application made to him by the Prosecutor e In or around 14 52 hours the Accused was informed by the Member in Charge that she was being detained pursuant to section 4 of the Criminal Justice Act 1984 and was advised of his right to contact a solicitor He was subsequently placed in a holding cell f In or around 14 59 hours at the request of the Accused the Member in Charge contacted Don Ryan Solicitor however Mr Ryan was unavailable to attend At the Accused s request Mr Sean Mulvihill Solicitor was contacted at approximately 15 07 hours but never attended at the station g In or around 15 16 hours the Member in Charge requested the Accused to consent to his fingerprints palm prints and photographs being taken The Accused agreed and signed the designated form of consent h In or around 15 50 hours the Accused was interviewed by the Prosecutor Present during the course of the said interview were Garda Diana Ryan and with the Accused s consent Student Garda Aidan O Mahony i In or around 16 42 hours the interview was concluded and the Accused was returned to the holding cell In or around 17 35 hours the Accused was taken to the doctor s room where his fingerprints palm prints and photographs were taken by Garda Donacha Riordan and Student Garda Aidan O Mahony j The Accused was subsequently returned to the holding cell and at approximately 19 25 hours was informed by the Member in Charge that he was being released from the provisions of section 4 of the Criminal Justice Act 1984 The Accused was subsequently charged by the Prosecutor for assault contrary to section 2 of the Non Fatal Offences Against the Person Act 1997 and for using or engaging in threatening abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned contrary to section 6 of the Criminal Justice Public Order Act 1994 detained in custody overnight and brought before Fermoy District Court on the 28th day of October 2005 on foot of the said charges The Accused was further charged with while committing appearing to be about to commit an offence to wit assault in thre course of a dispute producing in a manner likely unlawfully to intimidate another person an article capable of inflicting serious injury to wit a hurley contrary to section 11 of the Firearms and Offensive Weapons Act 1990 on the 14th day of December 2005 and brought before Cobh District Court on foot of the said charge on the said date k At Fermoy District Court the Accused was remanded on bail to appear before Cobh District Court on the 9th day of November 2005 the matter was adjourned for mention to the 23rd day of November 2005 and following a number of subsequent adjournments was eventually listed for hearing before Cobh District Court on the 25th day of January 2006 l When the matter came on for hearing on the 25th day of January 2006 Mr Sheehan made a preliminary submission to the effect that I should dismiss the charges alleged in the charge sheets on the basis that section 4 of the Criminal Justice Act 1984 had not been validly invoked and consequently the Accused had been unlawfully detained Mr Sheehan relied upon a number of superior court authorities in support of his submission in particular People DPP v O Toole and Hickey unreported Court of Criminal Appeal 20 July 1990 which he opened to the Court In the alternative Mr Sheehan argued that as the statutory power of detention under section 4 of the Criminal Justice Act 1984 only applies to offences for which a person of full age and capacity and not previously convicted may under or by virtue of any enactment be punished by imprisonment for a term of five years or by a more severe penalty the Director of Public Prosecutions was estopped from preferring summary charges m I formed the view that I could not address Mr Sheehan s submission in the absence of oral evidence as to the arrest and detention of the Accused and in the circumstances directed that the case proceed Inspector Dorney opened the prosecution s case and called the Prosecutor the Member in Charge the Complainant and Ms Broderick as witnesses Mr Sheehan confined his cross examination of these witnesses to questions touching upon matters raised in his preliminary submission and reserved the Accused s right of cross examination pending adjudication by me of the preliminary issue At the close of the prosecution s case Mr Sheehan renewed his application to dismiss the charges preferred THE LAW In order for a person to be lawfully detained in police custody following his arrest the arresting member of the Garda Síochána must have reasonable cause for suspecting that such person has committed an offence for which a person of full age and capacity and not previously convicted may under or by virtue of any enactment be punished by imprisonment for a term of five years or by a more severe penalty and the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person s arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence Subsections 1 and 2 of section 4 of the Criminal Justice Act 1984 QUESTIONS I Does the decision of Director of Public Prosecutions to prefer summary charges following an arrest and detention under section 4 of the Criminal Justice Act 1984 undermine the arresting member s reasonable cause and thereby retrospectively render the said period of detention unlawful II In People DPP v O Toole and Hickey unreported Court of Criminal Appeal 20 July 1990 Hederman J stated at page 30 of the judgment that I n interpreting subsection 2 of s 4 of the 1984 Criminal Justice Act the trial Judge must satisfy himself that the member in charge of the Garda Síochána Station must have an independent bona fide belief that the person who has arrived in custody arrested without warrant is a person who should be detained by him for a period not exceeding six hours from the time of the arrest as a necessary part of the proper investigation of the offence for which the person has been brought in to the Station That independent opinion of the Sergeant can be formed as a result of information given to him either prior to the arrest or even when the arrested person is brought to the Station What is necessary under the section is that the Sergeant in charge makes an independent decision on the information supplied to him and comes to his or her personal decision that the detention of the person brought to the Station is then necessary for the proper investigation of the offence for which he has been charged Am I entitled to conclude that the Member in Charge possessed the requisite independent bona fide relief in circumstances where he relied exclusively upon the application of the arresting member and carried out no investigation of either the Complainant or the complaint whatsoever III If the Member in Charge did in fact possess the requisite independent bona fide belief does the decision of Director of Public Prosecutions to prefer summary charges following an arrest and detention under section 4 of the Criminal Justice Act 1984 undermine the said Member in Charge s independent bona fide belief and thereby retrospectively render the said period of detention unlawful IV In the alternative if section 4 of the Criminal Justice Act 1984 was properly invoked is the Director of Public Prosecutions estopped from preferring summary charges Having heard the submissions of both Mr Sheehan and Inspector Dorney I found in favour of the prosecution in respect of each of the four questions raised above n The Opinion of the High Court is sought on the question as to whether I was correct in law in so doing Dated this 22nd day of June 2006 Michael Pattwell Judge of the District Court An Chúirt Dúiche The District Court District Court Area of Cobh District No 20 IN THE MATTER OF SECTION 2 OF SUMMARY JURISDICTION ACT 1857 AS EXTENDED BY SECTION 52 1 OF THE COURTS SUPPLEMENTAL PROVISIONS ACT 1961 BETWEEN DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA MICHAEL DILLANE OF AN GARDA SÍOCHÁNA COBH STATION COBH COUNTY CORK PROSECUTOR AND JACQUELINE ALCOCK OF 39 BAYVIEW COBH COUNTY CORK ACCUSED APPEAL BY WAY OF CASE STATED This is a case stated by me Michael Pattwell a Judge of the District Court assigned to District Court number 20 pursuant to section 2 of the Summary Jurisdiction Act 1857 as extended by section 51 of the Courts Supplemental Provisions Act 1961 1 At a sitting of Cobh Distict Court held at the Courthouse Cobh County Cork on the 25th day of January 2006 Jacqueline Alcock the accused herein hereafter referred to as the Accused appeared before me to answer a complaint the subject matter of two charge sheets in which she was charged with the following offences to wit that on the 27th day of October 2005 at West Beach Cobh County Cork a public place a did use or engage in threatening abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned contrary to section 6 of the Criminal Justice Public Order Act 1944 and b while committing appearing to be about to commit an offence to wit assault in the course of a dispute producing in a manner likely unlawfully to intimidate another person an article capable of inflicting serious injury to wit a hammer

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  • Section 6 of Chapter III Specifically in the last of these letters he said The Visitors have jurisdiction in this case because I claim to have suffered an injustice as a consequence of a decision of the Board Chapter III Section 6 of the College Statutes The claim that the injustice is as a result of a decision of the Board is what provides the Visitors with jurisdiction in this case On 9th November 2005 the Secretary conveyed to the applicant the decision of the Visitors That decision referred to the applicant s assertion that the Visitors had jurisdiction based on Section 6 of Chapter III They noted that Section 6 gave jurisdiction in the case of any decision or sentence of the board The Visitors ruled that section 6 by its terms could only refer to a positive decision They referred to Professor McGilp s report stating that he had clearly determined that the case was unfounded and the statutes make no reference to any requirement of a decision by the Board in such a case Accordingly the Visitors ruled that the applicant s complaint did not come within section 6 of Chapter III concluding there is no jurisdiction for the Visitors to hear the complaint The applicant applied in due time for leave to apply for judicial review of that decision The reliefs sought are 1 An order of certiorari quashing the decision of the respondent dated November 9 2005 on the ground of automatic disqualification of the primary Visitor 2 Alternatively an order of certiorari quashing the decision of the respondent dated November 9 2005 on the ground of objective bias 3 A declaration by way of judicial review that as the primary Visitor the Chancellor at the College of the Holy and Undivided Trinity of Queen Elizabeth near Dublin referred to as the Chancellor of the University of Dublin is a judge in his or her own cause and is disqualified as a matter of law automatically 4 A declaration by way of judicial review that acting as the primary Visitor a Pro Chancellor at the College of the Holy and Undivided Trinity of Queen Elizabeth near Dublin referred to as a Pro Chancellor of the University of Dublin is a judge in his or her own cause and is disqualified as a matter of law automatically 5 A declaration by way of judicial review that because the factual errors in the decision of the respondent dated November 9 2005 are such as to render the decision irrational the respondent acted ultra vires 6 A declaration by way of judicial review that the nominations process for the Visitor other than the primary Visitor does not comply with the principles of natural and constitutional justice and violates the applicant s constitutional right to procedural fairness 7 Damages 8 Further and other relief These grounds can be divided into three headings a Professor Sagarra as pro Chancellor was disqualified from sitting as one of the Visitors by reason of objective bias b The nomination process for the appointment of the second visitor Mr Justice McCracken do not comply with principles of natural and constitutional justice c The decision was void by reason of the presence of factual errors at the hearing this became a matter of mistake as to jurisdiction It is of course well established that the applicant will be entitled to obtain leave to apply for judicial review if he can show that he has an arguable case G V Director of Public Prosecutions 1994 1 I R 374 I would add that although the applicant was at pains to establish that Trinity College and Dublin University constitute a single entity and went to very considerable lengths and conducted extensive legal and parliamentary researches this is not an issue of concern at this point I am prepared to presume that proposition in favour of the applicant for the purposes of the application The Bias Claim The target of the bias claim is the participation of Professor Sagarra as one of the Visitors Again the applicant was at great pains to establish the primacy of the Pro Chancellor in the event of dispute between the Visitors The Court explained to the applicant at the hearing that it was not necessary for him to show that any participant in the decision had superior power The applicant relies on the following facts with regard to Professor Sagarra These are based on documents obtained by him under the Freedom of Information Acts Dr Sagarra was appointed Chair of German at Trinity College in 1975 and held that position until she retired in 1998 She had also held the positions of Registrar Senior Proctor Junior Proctor and Dean of Visiting Students It is not alleged that she held any of these positions at any time relevant to the present proceedings Professor Sagarra became a Pro Chancellor of the University on 9th November 1999 It was by virtue of holding that position that she was eligible to be a Visitor Section 1 of Chapter III of the Statutes provides that The Visitors of the College and of the University shall be the Chancellor of the University or if he should for any reason be unable to act one of the Pro Chancellors and one other person appointed by the Government from a panel of two persons nominated by the Senate of the University No person holding a salaried post in the College or University shall be eligible for nomination The applicant claimed at the hearing that on her appointment as Pro Chancellor Professor Sagarra had sworn that she would uphold the best interests of the University and that by reason of her career and background she would be naturally biassed in favour of the College The applicant claims that on these facts Professor Sagarra was disqualified by reason of objective bias from being one of the Visitors He made extensive reference to authority including the House of Lords decision in In re

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  • that discretion upon the special facts and circumstances of the case before him and not be content to apply some hard and fast rule Undoubtedly the fact that a plaintiff is not seeking a private personal advantage and that the issues raised are of special and general public importance are factors which may be taken into account along with all other circumstances of the case in deciding whether there is sufficient reason to exercise a discretion to depart from the general rule that costs follow the event However insofar as the learned High Court Judge may have considered that the two principles to which she referred are in themselves the determining factors in a category of cases which may be described as public interest litigation I do not find that the authorities cited support such an approach In the first of those authorities McEvoy v Meath County Council Quirke J in his ruling on costs took into account the fact that the proceedings in that case fell into a category which he described as public interest challenges He relied on a description of a public law challenge as set out in an English case by Dyson J in R v Lord Chancellor Ex Parte Child Poverty Action Group The only passage cited from that judgment by Quirke J was one in which Dyson J set out what he saw to be the essential characteristics of a public law challenge The passage cited was as follows The essential characteristics of a public law challenge are that it raises public law issues which are of general importance where the applicant has no private interest in the outcome of the case It is obvious that many indeed most judicial review challenges do not fall into the category of public interest challenges so defined This is because even if they do raise issues of general importance they are cases in which the applicant is seeking to protect some private interests of his or her own The description is a succinct and useful one Its descriptive nature does not involve the statement of any principle of law Neither do I consider the description to be definitive or exhaustive of what might generally be referred to as public interest litigation where an applicant does not seek to protect some private interest of his or her own Such proceedings may be brought for a whole range of reasons and may be motivated by the most altruistic objectives in the community interest the pursuit of a political agenda of a pressure group or a speculative strategy to at least delay the proposed project of a public body I do not think it necessary to hypothesise further suffice it to say that each case would need to be assessed according to its own context facts and circumstances Indeed Quirke J cited a dictum from the judgment of Denham J in Lancefort Limited v An Bord Pleanala No 2 1999 2 IR 270 to the effect that a contention by an applicant in proceedings that he is acting in the public interest must be analysed in the circumstances of each case The Lancefort case was concerned with locus standi rather than an issue as to costs In any event apart from the descriptive passage referred to Quirke J did not rely further on any other aspect of the English case which is perfectly understandable since it concerned an application under English law for a pre emptive costs order where an applicant sought an order awarding him costs of the proceedings prior to any hearing on the merits The parties in that case agreed that the English Court had jurisdiction to make such an order on the basis of English law including statute law and practice Furthermore decisions of other common law jurisdictions concerning matters of their practice and procedure must because of their very nature be considered with caution See observations of Kennedy C J in Little v Dublin Tram Co Anor 1929 I R 642 at 657 However it is the case that Quirke J took into account in deciding to award costs to the unsuccessful applicants in judicial review proceedings that neither of them were seeking to protect some private interest of their own and that they acted solely by way of furtherance of a public interest in the environment These are of course legitimate factors which a Court may take into account in exercising its discretion pursuant to Order 99 of the Rules But Quirke J did not hold them to be determinative factors On the contrary he went on to say that in exercising his discretion as to costs he was also taking into account certain findings of fact which he had made These included his finding that the trial of these proceedings was unnecessarily prolonged by reason of the fact that a vast amount of documentation had to be analysed and considered in order to determine questions of fact which could have been readily determined by agreement between the parties The overwhelming majority of those issues of fact were determined in favour of the Applicants He also added Furthermore the contention on behalf of the Respondent that zoning decisions which were inconsistent with the guidelines could be explained by the fact that the guidelines contained long term objectives was not supported by any credible evidence and required a complete examination of the minutes of the various meetings at which decisions were made This examination disclosed no record which would support the contention Quirke J in conclusion stated In all of the circumstances I am satisfied that the appropriate exercise of my discretion requires that the Respondent pay 100 of the costs of an associated daily transcript of the proceedings and 50 of the Applicant s costs of and incidental to the proceedings Furthermore there was not a simple award of costs to the losing party but an apportionment of costs In short it is clear that Quirke J was exercising his discretion pursuant to Order

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  • the category 9 documents are essentially sought only in order to assist the Respondent in the assessment of the damages it seeks That is of course perfectly legitimate It is thus necessary to refer to the reason given for the request for Category 9 discovery 16 What is sought is information relating to the volume of minutes trafficked per month in respect of each 1800 number issued by reference to access method Thus as is stated in the letter written by the Appellant s solicitors to the learned High Court judge which is quoted more fully by Kearns J the essential difference between the parties remains whether or not it is necessary for the proper disposal of the within proceedings for the plaintiff to have information on the volume of freephone minutes trafficked per month in respect of each 1800 number in addition to information on the total volume of such traffic That was indeed the ambit of the debate at the hearing of the appeal 17 The reason advanced to justify the need for the breakdown into individual 1800 numbers was The plaintiff alleges that it has suffered loss as a result of the discriminatory imposition of the MNO origination charge MTC by the defendant Access to call details regarding the quantity of 1800 numbers issued by the defendant the number of minutes trafficked per number by reference to access method and the names of the parties to whom the numbers were allocated would enable the plaintiff to access the manner in which the MNO origination charge MTC was imposed In terms of assessing the quantum of its alleged loss such information would demonstrate how in a market highly sensitive to increases in price the discriminatory imposition of the MNO origination charge MTC caused the plaintiff to lose customers to operators who were are not charged the MNO originators charge MTC by the defendant In short this category would enable the plaintiff to show a link between its market share and the obligation to pay the MNO origination charge MTC to the defendant The plaintiff believes that expert analysis of these figures will establish a direct and conclusive correlation between the discriminatory behaviour of the defendant the loss suffered by the plaintiff 18 The second sentence only refers to minutes trafficked per number which I take to relate to individual number But that sentence refers only to the manner in which the charge was imposed which does not appear to be an issue in the case at all In any event the category 9 information would cast no light on the manner in which the charge was imposed The other sentences refer more generally to loss of customers to operators who were not required to pay the charges Leaving aside the language actually used by the Respondent s solicitors one must examine in concrete terms the need to break the information down into individual numbers The Respondent refers and is entitled to refer in general terms to loss of

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/59f06bdfa21e445d802573a800498b78?OpenDocument&TableRow=2.1 (2016-02-09)
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