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  • argued that this subsection deals only with sufficiency of interest But that is not in respect of environmental matters what it says it establishes capacity otherwise how is the High Court to give leave under the criteria set out in the legislation Thus in substance Charleton J construed s 50A as creating an exception to the normal position that unincorporated bodies cannot sue 3 3 On the non disclosure ground Charleton J ruled that any visible indicators of construction in the area were not of such an extent as to have put a member of the public on notice of the commencement of work on the treatment plant and pointed to the fact that various members of SAMRA had sworn or signed declarations that they had no knowledge of this work Therefore that aspect of the motion was also dismissed There is no appeal against this aspect of the judgment 3 4 Against the background of that judgment it is next necessary to turn to the issues which arose on this appeal 4 The Issues on the Appeal 4 1 Detailed written submissions were filed on behalf of all parties From those submissions and the subsequent oral hearing it is possible to identify the principal issues which separate the parties It is perhaps appropriate to start by setting out some matters which were not in controversy 4 2 The underlying legislation is to be found in s 50A of the Planning and Development Act 2000 as inserted by s 13 of the Planning and Development Strategic Infrastructure Act 2006 and amended by s 32 of the Planning and Development Amendment Act 2010 and s 20 of the Environment Miscellaneous Provisions Act 2011 In material part the section as it now stands provides as follows 50A 3 The Court shall not grant section 50 leave unless it is satisfied that a there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed and b i the applicant has a sufficient interest in the matter which is the subject of the application or ii where the decision or act concerned relates to a development identified in or under regulations made under section 176 for the time being in force as being development which may have significant effects on the environment the applicant I is a body or organisation other than a State authority a public authority or governmental body or agency the aims or objectives of which relate to the promotion of environmental protection II has during the period of 12 months preceding the date of the application pursued those aims or objectives and III satisfies such requirements if any as a body or organisation if it were to make an appeal under section 37 4 c would have to satisfy by virtue of section 37 4 d iii and for this purpose any requirement prescribed under section 37 4 e iv shall apply as if the reference in it to the class of matter into which the decision the subject of the appeal falls were a reference to the class of matter into which the decision or act the subject of the application for section 50 leave falls 4 3 It is also of some relevance to refer as indeed s 50A itself does to s 37 which is the section which deals specifically with the entitlement of parties to appeal from a planning decision of a local authority to An Bord Pleanála In material part that section provides as follows 37 4 c Notwithstanding subsection 1 a body or organization referred to in paragraph d shall be entitled to appeal to the Board against a decision by a planning authority on an application for development being development in respect of which an environmental impact statement was required to be submitted to the planning authority in accordance with section 172 before the expiration of the appropriate period within the meaning of that subsection d The body or organisation mentioned in paragraph c is a body or organisation not being a State authority a public authority or a governmental body or agency i the aims or objectives of which relate to the promotion of environmental protection ii which has during the period of 12 months preceding the making of the appeal pursued those aims or objectives and iii which satisfies such additional requirements if any as are prescribed under paragraph e e The Minister may prescribe additional requirements which a body or organisation of the foregoing kind must satisfy in order to make an appeal under paragraph c being requirements of a general nature and for the purposes of promoting transparency and accountability in the operation of such organisations including requirements i in relation to its membership ii that the pursuit of its aims or objectives be otherwise than for profit iii in relation to the possession of a specified legal personality and the possession of a constitution or rules iv that the area of environmental protection to which its aims or objectives relate is relevant to the class of matter into which the decision the subject of the appeal falls These subsections were inserted by s 10 of the Planning and Development Strategic Infrastructure Act 2006 4 4 It is also of relevance to note s 18 of the Interpretation Act 2005 which states Person shall be read as importing a body corporate whether a corporation aggregate or a corporation sole and an unincorporated body of persons as well as an individual and the subsequent use of any pronoun in place of a further use of person shall be read accordingly 4 5 Thus the overall structure of s 50A is clear There are two bases on which an applicant can have standing to bring an application for leave to challenge a relevant environmental decision First the applicant may have a sufficient interest in the subject matter under s 50A 3 b i Alternatively the applicant can be a non governmental agency which meets the criteria specified in s 50A 3 b ii 4 6 It was not disputed that SAMRA met the criteria specified in s 50A Thus it was accepted that SAMRA had standing to bring judicial review proceedings seeking to challenge the validity of the permission in this case However the substance of the case made on behalf of Dublin City Council and the State was that the conferring of standing on a body such as SAMRA to maintain such judicial review proceedings did not get over the question of whether SAMRA as an unincorporated body not having a formal legal personality had the capacity to bring any form of court proceedings Thus the core issue on this appeal was as to whether SAMRA had such capacity it being accepted that if it had capacity it undoubtedly has standing 4 7 Next it is necessary to turn albeit briefly to the general law which ordinarily applies in respect of the power of an unincorporated association to bring or defend proceedings before the courts There was no real dispute between counsel as to the applicable law All parties agree that the general position is that set out in Halsbury 5th Ed Vol 96 par 29 For legal purposes an incorporated association has no separate legal entity as distinct from the individuals who comprise its membership It is also accepted by all sides that the consequence of this is that an unincorporated association cannot sue or be sued in its own name but that there are exceptions to this general rule as can be seen for example from the ability of a registered trade union to participate in certain proceedings However there was disagreement as to the extent of the relevant exceptions As there appears to be a dearth of Irish case law on this point all parties sought to rely on decisions of the English courts 4 8 Dublin City Council and the State relied in particular on the decision in R v Darlington Borough Council ex p Association of Darlington Taxi Owners 1994 COD 424 where leave to seek judicial review on the part of the unincorporated association was set aside on the basis of that association s legal incapacity 4 9 SAMRA relied on the judgments in R v Commissioner for Northwest Traffic Area ex parte Brake 1996 COD 248 and in R v Ministry of Agriculture Fisheries and Food ex p British Pig Industry Support Group 2000 EuLR 724 which suggest that a distinction may be drawn between public and private law cases thus allowing unincorporated associations to bring judicial review in certain circumstances In British Pig Industry Support Group Richards J stated that there was no overriding requirement for a claimant for judicial review to have legal personality but it is important in such a case that adequate provision should be made for the protection of the defendant in costs Dublin City Council and the State in response pointed to the contrast in procedure between judicial review in Ireland where the applicant brings the proceedings in his own name against the public body and that in England where the dispute is technically between the Crown and the public body 4 10 It follows that it was accepted that in the ordinary course as a matter of common law an unincorporated body such as SAMRA could not bring court proceedings Thus the question which arose on this appeal was as to whether an exception to that general position is to be found in respect of environmental judicial review litigation either generally or by virtue of the terms and structure of the 2000 Act as amended 4 11 Finally there is the European dimension The Aarhus Convention the more common name for the United Nations Economic Commission for Europe Convention on Access to Information Public Participation in Decision making and Access to Justice in Environmental Matters the Aarhus Convention was signed on the 25th June 1998 Although Ireland was one the original signatories to the Convention Ireland only ratified it on the 20th June 2012 The European Union is also itself a signatory to the Convention 4 12 It is helpful to set out some of its provisions Article 2 of the Aarhus Convention defines the terms the public and the public concerned 4 The public means one or more natural or legal persons and in accordance with national legislation or practice their associations organizations or groups 5 The public concerned means the public affected or likely to be affected by or having an interest in the environmental decision making for the purposes of this definition non governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest Article 9 is titled Access to Justice and provides 2 Each Party shall within the framework of its national legislation ensure that members of the public concerned a Having a sufficient interest or alternatively b Maintaining impairment of a right where the administrative procedural law of a Party requires this as a precondition have access to a review procedure before a court of law and or another independent and impartial body established by law to challenge the substantive and procedural legality of any decision act or omission subject to the provisions of article 6 and where so provided for under national law and without prejudice to paragraph 3 below of other relevant provisions of this Convention What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention To this end the interest of any non governmental organization meeting the requirements referred to in article 2 paragraph 5 shall be deemed sufficient for the purpose of subparagraph a above Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph b above The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures where such a requirement exists under national law 3 In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above each Party shall ensure that where they meet the criteria if any laid down in its national law members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment 4 In addition and without prejudice to paragraph 1 above the procedures referred to in paragraphs 1 2 and 3 above shall provide adequate and effective remedies including injunctive relief as appropriate and be fair equitable timely and not prohibitively expensive Decisions under this article shall be given or recorded in writing Decisions of courts and whenever possible of other bodies shall be publicly accessible 4 13 Directive 2003 35 EEC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85 337 EEC and 96 61 EC The Public Participation Directive was designed to incorporate parts of the Aarhus Convention into European Union law 4 14 Recital 4 of the Public Participation Directive states Participation including participation by associations organizations and groups in particular non governmental organizations promoting environmental protection should be accordingly be fostered including inter alia by promoting environmental education of the public Article 1 sets out the objective of the Directive The objective of this Directive is to contribute to the implementation of the obligations arising under the Århus Convention in particular by a providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment b improving the public participation and providing for provisions on access to justice within Council Directives 85 337 EEC and 96 61 EC 4 15 Of particular relevance to the instant case is Article 3 7 which inserts Article 10a into Council Directive 85 337 EEC This provides Member States shall ensure that in accordance with the relevant national legal system members of the public concerned a having a sufficient interest or alternatively b maintaining the impairment of a right where administrative procedural law of a Member State requires this as a precondition have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions acts or omissions subject to the public participation provisions of this Directive Member States shall determine at what stage the decisions acts or omissions may be challenged What constitutes a sufficient interest and impairment of a right shall be determined by the Member States consistently with the objective of giving the public concerned wide access to justice To this end the interest of any non governmental organisation meeting the requirements referred to in Article 1 2 shall be deemed sufficient for the purpose of subparagraph a of this Article Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph b of this Article The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures where such a requirement exists under national law Any such procedure shall be fair equitable timely and not prohibitively expensive In order to further the effectiveness of the provisions of this article Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures The public is defined in Article 2 1 as meaning one or more natural or legal persons and in accordance with national legislation or practice their associations organisations or groups Also of note is Article 2 3 which provides Member States shall identify the public entitled to participate for the purposes of paragraph 2 including relevant nongovernmental organisations meeting any requirements imposed under national law such as those promoting environmental protection The detailed arrangements for public participation under this Article shall be determined by the Member States so as to enable the public to prepare and participate effectively 4 16 It is important to note therefore that the Public Participation Directive has at all material times made provision for the possibility that what one might loosely term environmental NGOs that is bodies that complied with Article 2 3 would have an entitlement to participate in decision making in the manner guaranteed by the Public Participation Directive It was however argued on behalf of Dublin City Council and the State that the Directive while permitting the involvement of environmental NGOs does not require that they be permitted to become involved in court review proceedings irrespective of their legal capacity It was said that so much can be gleaned from Article 2 1 which defines the public as natural and legal persons and associations organisations or groups in accordance with national legislation or practice On that basis it was argued that each member state may in accordance with its national law make provision for rules as to the capacity or qualification of such unincorporated bodies or organisations to participate in environmental litigation governed by Union law There was something of a debate between counsel as to the extent to which it could be said that the relevant provision enables merely regulation of unincorporated bodies or whether it permitted national law to exclude unincorporated bodies not having legal personality in their entirety 4 17 However that latter question would only arise if on foot of ordinary principles

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  • J quoted with approval from Professor Tribe s book American Constitutional Law 3rd Ed New York 2000 where at paras 3 to 11 it is stated that A case is moot and hence not justiciable if the passage of time has caused it completely to loose its character as a present live controversy of the kind that must exist if the Court is to avoid advisory opinions on abstract propositions of law Thus the Supreme Court has recognised that mootness can be viewed as the doctrine of standing set in a time frame the requisite personal interest that must exist at the commencement of litigation standing must continue throughout its existence mootness 20 Whilst it is acknowledged by the Minister that there are exceptions to this rule it is said that the instant case is not one of them as the appellants do not have a material interest in any decision which the Court might give Accordingly it is claimed that the instant circumstances are clearly distinguishable from those which prompted the Supreme Court to hear the appeal in O Brien v The Personal Injuries Assessment Board No 2 2007 1 I R 328 O Brien and in Irwin v Deasy Anor 2010 I E S C 35 Irwin and from what persuaded Hogan J to continue with Salaja a minor Anor v Minister for Justice Equality and Law Reform 2011 I E H C 51 Salaja In each of these cases apart altogether from the importance of the point of law involved at least one of the parties continued to have a real interest in the outcome of the issue s That is not the situation here and accordingly it is said that the general or prevailing rule should apply 21 Finally Borowski v Canada Attorney General Ors 1989 1 S C R 342 Borowski is cited as being a leading authority in this area and the Court is asked to specifically note that part of the judgment of Sopinka J speaking on behalf of the Court where the rationale for the rule was outlined 22 The appellants appear para 72 infra to deny that the appeal is moot and claim that the deportation order is not the only issue involved They point to a High Court order for costs which stands against them as a result of their failure to obtain leave They say that the only way in which this Court can decide whether such an order should be reversed or varied is by determining the appeal on its merits They submit that this is what the Supreme Court did in Caldwell v Mahon Tribunal Ors 2011 I E S C 21 Caldwell where in order to determine the costs issue the Court heard the substantive appeal A similar conclusion they say follows from O Brien where as one of the grounds for permitting the appeal to proceed the Court acknowledged that the respondent had a real current interest in the substantial question of costs Murray C J at pp 333 to 334 Accordingly even if for no reason other than costs the appeal should be determined 23 The second principal submission made on behalf of the appellants is directed at the discretionary aspect of the Court s jurisdiction to determine a point even if otherwise moot Based on certain observations made in Borowski they claim that the Court s intervention in this case is well justified on the grounds of both judicial economy and judicial efficiency They point to the certifying process as involving a decision by the trial judge that in his view the questions of law as submitted are of exceptional public importance and also that it is in the public interest to have such questions determined In particular a decision on the second question would be of great assistance to judges in dealing with the asylum list as presently there is an element of legal uncertainty as to how the ratio in Meadows should apply to such cases The only other option to address this confusion is to await the emergence of another case in which the same issue arises Even however if that should occur there is no certainty that the same arguments would be advanced or that the trial judge would certify in a manner similar to that which he has in this case Consequently it makes the utmost sense from a prudential point of view to have all issues determined whereas the contrary decision would involve a complete waste of resources 24 The essence of this argument seeks to suggest that when there is an issue which is likely to reoccur frequently and in diverse circumstances the courts have expressed a willingness to engage with the point even if the proceedings in question are no longer of direct interest to either party This approach it is submitted can be seen in In the Matter of Article 40 of the Constitution Zwann and Ors 1981 I R 395 Zwann later reaffirmed in Maloney v Member in Charge Terenure Garda Station Unreported Supreme Court Keane C J 18th May 2004 Maloney and more recently in Dunne v Governor of Cloverhill Prison 2009 I E S C 43 Dunne No 1 where the Court decided the underlying point even though the outcome could have had no possible bearing on the accused s liberty which had been the sole cause of the Habeas Corpus application in the first instance Moreover as the circumstances of the instant case are extremely analogous to those in Dunne No 1 it is suggested that this Court should likewise decide the issues 25 It is further claimed that cases like Murphy are of no assistance as they simply apply the well established rule that constitutional issues should be deferred at least until all other issues capable of resolving the inter partes dispute have been decided The facts of Irwin are much more akin to the current circumstance 26 Finally it is also asserted that the question of locus standi simply does not arise as it is beyond dispute that at the commencement of the proceedings the appellants had sufficient interest to sustain their institution 27 In conclusion they submit that the appeal through the certified questions should be determined Decision Regarding Mootness 28 The rule by which a court will decline to hear and determine an issue on the grounds of mootness is firmly based on the deep rooted policy of not giving advisory opinions or opinions which are purely abstract or hypothetical This policy stems from and is directly related to the system of law within which our courts discharge their essential function of administering justice Apart from any special jurisdiction conferred by statute by the Constitution or resulting from our membership of the European Union the system in question is fully adversarial Consequently there must exist some issue s embedded within a factual or evidential framework the determination of which is are necessary so as to resolve the conflict or dispute which necessitated the proceedings in the first instance It has therefore always been recognised that without such a concrete foundation the courts typically will decline to intervene 29 In addition to this basic justification for the rule there are a number of other reasons which support its existence including what has been described as judicial economy which can also be termed judicial efficiency or judicial effectiveness In a time of scarce and declining resources on the one hand and of an ever increasing stream of litigation much of which is lengthy and complex on the other the courts must consciously scrutinise and carefully calculate how best they can fulfil their functions Consequently where necessity of resolution is not required the courts quite correctly will be most reluctant to get involved 30 There is another related but broader consideration which must also be kept in mind it is that the discharge of the judicial function is best performed where the reference point is focussed on resolving defined issues in a concrete legal setting In that way there is much less danger of inadvertently overstepping the reach of the judicial role as envisaged in Article 34 of the Constitution In this regard I respectfully agree with the views of Hogan J in Salaja who said at para 7 that the provision by judges of such advisory opinions would not at least generally speaking serve the proper functioning of the administration of justice since if unchecked or not kept within clearly defined limits it would involve the judicial branch giving gratuitous advice on legal issues to the Oireachtas and the Government a function which was never conferred on it by the Constitution 31 In essence therefore this particular rule and its underlying utility are designed like a number of other related judicial practices to serve justice and to drive the administration of it 32 Mootness which has its foundation in the Common Law but which now has a legislative and even a constitutional basis in a number of jurisdictions for example s 2 1 of Article III of the Constitution of the United States of America can be described both by reference to the circumstances in which it applies and those circumstances in which it has no application Tribe speaks of a case being moot when it has completely lost its character as a present live controversy between the parties Tribe American Constitutional Law 3rd Ed New York 2000 Borowksi says that a decision should be avoided if it does not result in the resolution of some controversy affecting or potentially affecting the rights of the parties Hardiman J in Goold who cited with approval certain passages from both Tribe and Borowski felt that A proceeding may be said to be moot where there is no longer any legal dispute between the parties Therefore as can be seen where the action has lost its utility by reference to the issues and the parties the case is classified as moot 33 The use by Tribe of the phrase live controversy is to be understood as indicating that such controversy must be found within a set of tangible as opposed to imagined facts it must have a definite setting and not one based on conjecture Although speaking in a different context and indeed at a time when the constitutionality of a section was tested by reference not only to particular but also to universal facts Ó Dálaigh C J dissenting in McDonald v Bord na gCon Anor 1964 I R 350 pointed to the desirability of decision making being conducted in a real as opposed to an abstract context In a passage at p 356 of the report which applies no less to the doctrine of mootness than it does to constitutional practice the learned Chief Justice said Moreover while the constitutional validity of a statue has to be determined by reference to the statute s general application I must doubt whether it would be proper to pronounce a statute repugnant to the Constitution except in a case where the specific facts of that case themselves exemplified the repugnancy complained of 34 A case an appeal or some issue within either may cease to give rise to any real or actual conflict between the parties for numerous reasons Changed circumstances may result in either the loss or absence of a legal interest for many causes A few examples will suffice to illustrate the point the repeal of the impugned provision or the expiry of the entire statute leaving no issue the completion of the process which was sought to be prohibited Caldwell the resolution of the underlying dispute by agreement or other circumstance Irwin the attainment of what was sought to be achieved by means other than those in dispute P V a minor v The Courts Service Ors 2009 4 I R 264 the dissolution of a legislative assembly where an injunction was sought to prevent a member from exercising his her functions as such the unconditional release with no residual effects of a party who had challenged a decision peculiar to him her such as his her right to liberty or right to parole the death of a party who was contesting the validity of a statutory provision in circumstances individual to him her unreferenced the reaching of a specified age after which the relief sought could not be obtained e g adoption Those examples for which no authority is cited can be referenced to Borowski unless identified as unreferenced One further point in some of the cases which otherwise were moot there remained the outstanding question of costs That issue is one which I will again refer to later in this judgment 35 It has never been the case however that the rule of mootness is absolute even therefore when an issue is moot the courts have always maintained a discretion to hear and determine the point One of the earliest cases touching on this issue is Condon Ors v Minister for Labour Anor 1981 I R 62 where despite the expiry of the statute the constitutionality of which was in issue the defendants assertion of mootness was rejected Where there was a live possibility that similar legislation could be re enacted and where it was far from clear that rights had not been interfered with the existing challenge could not be said to be moot O Higgins C J at p 70 and Kenny J at pp 74 and 75 In any event where the court proceeds to determine a moot point the issue in question is not thereby reclassified rather it remains moot but for justifiable reasons the court will nonetheless intervene There are therefore two steps in the evaluative process The first is to decide whether the point is moot if it is not that is an end to the inquiry if it is and if either or both parties still wish to proceed the second question centres on the courts discretion The basis for the exercise of this discretion has not been particularised to any great extent and perhaps it should not be for to do so may have the unintended effect of being overly prescriptive or of foreclosing on the limits of a discretion with rigid or inflexible consequences 36 At the level of principle however it seems to me that where the overriding interests of justice require a decision on the moot the same should be given 37 Moreover again at the level of principle Borowski points out that a consideration of the underlying rationale for the rule will be informative as to which particular factors may be influential in this second tier of the process From the resulting analysis and by reference to the adversarial structure of the Canadian system of law which undoubtedly has similarities to this jurisdiction Sopinka J in giving the Supreme Court s judgment explained i that even where an issue may be redundant for the purposes of the existing proceedings nonetheless the same may still retain its character as a matter of live controversy if a decision would be beneficial to either party in related proceedings this he referred to as a decision having collateral consequences and gave as an example a case where a civil dispute about the necessity for a licence to operate a restaurant had been settled but where because of its expiry criminal charges were still pending against the operator ii that expense may still be justifiably incurred in determining an important and recurring point otherwise moot which by the nature of the proceedings is likely to evade review if the doctrine is strictly applied he instanced the validity of interlocutory injunctions given as part of industrial disputes which in his experience were almost always resolved by appeal date and iii that the courts should always be mindful of their true role as the adjudicative branch of government 38 There can be no doubting the relevance of the Borowski decision to this aspect of law but like all decisions from other jurisdictions it is important to retain a measure of reserve in its application as a full understanding of the principles and policies upon which such judgments are based may not always be readily apparent from the text of the decision itself This is particularly so in the area of discretion as the margin afforded to the decision maker may be heavily influenced by matters such as rules of court domestic precedent prevailing practices and or developing trends Murray C J as he then was highlighted in O Brien at p 333 the importance of exercising restraint in this regard when making reference to the practice in the United States of vacating a decision later found to be moot and of dismissing the complaint City of Mesquite v Aladdin s Castle Inc 455 U S 283 1982 Therefore whilst such decisions are instructive the learned Chief Justice warned that one must be cautious in applying too literally the principles as expressed or applied in other countries I respectfully agree with these observations 39 There are a number of cases in this jurisdiction in which a point the resolution of which could have no possible utility in further sustaining the inter partes proceedings was nonetheless the subject matter of court decision two in particular can be mentioned O Brien and Irwin 40 Pursuant to s 11 of the Personal Injuries Assessment Board Act 2003 the Act Mr O Brien like every claimant who desires to institute civil proceedings for personal injuries was obliged firstly to apply to the respondent Board P I A B or the Board for its assessment of his claim As part of that process he requested the Board to deal directly with his solicitor It refused On that issue in the resulting proceedings the plaintiff obtained a declaration from the High Court that such refusal was contrary to s 7 of the Act He also obtained an order for costs 41 Following the service of a notice of appeal but before the commencement of the appeal hearing the statutory process under the Act had been concluded with the result that it was no longer necessary for either party to engage with each other An issue thus arose as to whether in these circumstances the appeal was moot 42 The Supreme Court allowed the appeal to proceed effectively I believe on the basis that the point in issue namely whether P I A B was obliged to deal directly with a solicitor who had been duly nominated and authorised by the client to act on his behalf for this purpose was one which directly affected that body in the exercise of one of its core statutory functions In that regard as the Court pointed out the respondent of course had a wider interest in the issue than the plaintiff in that by reason of the extant declaration it was constrained in the exercise of its powers The plaintiff apart from the cost order had no continuing interest in the proceedings themselves Notwithstanding the absence of such interest however the then Chief Justice Murray C J did not believe that the proceedings had completely lost their character as containing a live issue or that a decision would not further resolve some controversy affecting or potentially affecting the rights of the parties p 334 In such circumstances he was of the opinion that P I A B retained a real current interest in the issue and therefore its appeal should be determined 43 The Court also gave as a further reason for its decision the real possibility that at some future time Mr O Brien might again have to engage with the Board if he finds himself unfortunate enough to have another claim If that should occur the Board in its dealings with him would remain disadvantaged by the existing decision Therefore in this way it could be said that he also retained an interest in the proceedings 44 Finally there is mention in the judgment of the Board s interest in the order for costs which the High Court granted to the plaintiff The appellants in the instant case rely heavily on such references para 20 supra in support of their submission that the instant appeal should proceed This point I will come back to later in the judgment 45 Whilst the factual context was different Irwin was quite similar to O Brien at the level of principle In that case the Revenue Commissioners The Revenue were a judgment creditor of the husband and had security in the form of three judgment mortgages over his moiety in certain registered lands His estranged wife was the co owner In the well charging proceedings brought by the Revenue the High Court felt that the only remedy available where the security touched upon the interest of only one co owner was either an order for partition or a sale in lieu followed by a distribution of the proceeds The Court went on to hold however that a judgment creditor in such circumstances had no locus standi to maintain a suit for partition and further that the Court itself had neither inherent jurisdiction nor statute based jurisdiction to order a sale in lieu of partition 46 Whilst the Revenue s appeal was pending the indebtedness of the husband was compromised by way of agreement Therefore the underlying purpose of the action disappeared Nonetheless the Supreme Court allowed the appeal to proceed resting its decision on much the same principles as it applied in O Brien As the Revenue had upwards of 20 cases involving this identical point it retained a material interest in having it definitively ruled upon at appeal level However Murray C J who delivered the Court s decision as he had in O Brien pointed strongly to the general practice when reaffirming the court s objection to hearing any appeal of a hypothetical or academic nature In a passage which highlights the importance of the underlying policy it was stated that In exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance the Court may in the interests of the due and proper administration of justice determine such a question Accordingly the learned judge concluded that i t is for these considerations and having regard to the exceptional circumstances and nature of the case that the Court would allow the appeal to proceed 47 It is important to bear in mind that neither O Brien nor Irwin should be seen as has been suggested as representing some form of relaxation in the application of this doctrine or as extending the historical remit of the discretion which the Court enjoys To so conclude would be to fail to properly appreciate the key elements peculiar to both cases and would also be to disregard the forceful underpinning of the general policy as exemplified for example in the passage above quoted from Irwin 48 With regards to O Brien it is unclear if the Court ever considered that the appeal issue was truly moot within the meaning above ascribed to that term It was certainly satisfied that there remained an adversarial context and that P I A B retained an active interest in the issue para 42 supra In addition and again disregarding the question of costs the Court also seems to have been satisfied albeit for different reasons that Mr O Brien likewise had such an interest para 43 supra Viewed in this way the case may not have been one of mootness at all However even if this should be wrong and if the decision to proceed was a discretionary one nonetheless the same can be explained by reference to the significant consequences which the extant declaration had for the operation by the Board of its preferred business model in the discharge of a key function for which it was established to perform Likewise the Court s ruling in Irwin had the capacity to frustrate if not entirely nullify a most important form of security enforcement in revenue debt recovery Consequently both High Court decisions in some very definite specific and constraining way gravely impacted on the performance of statutory functions Moreover both bodies were anxious to have the issues determined Consequently the decisions to proceed in both cases fall comfortably within the existing jurisprudence 49 There is one further case in this particular context which should be mentioned Dunne v The Governor of Cloverhill Prison 2009 I E S C 43 Dunne No 2 where Denham J as she then was at para 17 identified as a specific but important factor the following matter in the exercise of this type of discretion the learned judge said that In the circumstances the issue of the new charge is not justiciable and scarce judicial resources should not be used to advance an academic analysis In all the circumstances the matter is now a moot 50 In addition to these cases the appellants as recorded above para 24 also place reliance on three further aforementioned cases namely Zwann Maloney and Dunne No 1 which they offer as examples of situations where this Court has continued with the appeal even though the issues in question had been rendered moot O Brien at p 335 of the report explains the uniqueness of Zwann which I entirely agree with The issue in Maloney by express acknowledgment of the State had not become moot by the appeal date as the validity of the applicant s detention was still capable of having a significant bearing on the admissibility of any statements confession made by him during the custody period Dunne No 1 can be understood in a number of ways firstly it would appear that the issue under discussion was not raised during the course of argument and thus did not feature in either the Court s deliberations or in its resulting judgment Secondly and in any event given that the point at issue was central to the exercise by the District Court of its jurisdiction to extend time for the service of a book of evidence a jurisdiction which as a matter of notoriety is exercised with the utmost frequency it may well be that noting the widespread and grave consequences which would result from the wrongful exercise of such a power the Court decided as a matter of discretion to determine the appeal Whichever may have been the precise reason for the Court s decision in that case it is clear to me that none of these decisions can in reality support the position of the appellants in the instant case Therefore I do not believe that these cases add anything further to the principles above discussed 51 From the relevant authorities thus reviewed and leaving aside the issue of costs which is dealt with separately para 71 infra et seq the legal position can be summarised as follows i A case or an issue within a case can be described as moot when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties and such controversy arises out of or is part of some tangible and concrete dispute then existing ii Therefore where a legal dispute has ceased to exist or where the issue has materially lost its character as a lis or where the essential foundation of the action has disappeared there will no longer be in existence any discord or conflict capable of being justiciably determined iii The rationale for the rule stems from our prevailing system of law which requires an adversarial framework involving real and definite issues in which the parties retain a legal interest in their outcome There are other underlying reasons as well including the issue of resources and the position of the court in the constitutional model iv It follows as a direct consequence of this rationale that the court will not save pursuant to some special jurisdiction offer purely advisory opinions or opinions based on hypothetical or abstract questions v That rule is not absolute with the court retaining a discretion to hear and determine a point even if otherwise moot The process therefore has a two step analysis with the second step involving the exercise of a discretion in deciding whether or not to intervene even where the primary finding should be one of mootness vi In conducting this exercise the court will be mindful that in the first instance it is involved in potentially disapplying the general practice of supporting the rule and therefore should only do so reluctantly even where there is an important point of law involved It will be guided in this regard by both the rationale for the rule and by the overriding requirements of justice vii Matters of a more particular nature which will influence this decision include a the continuing existence of any aspect of an adversarial relationship which if found to exist may be sufficient depending on its significance for the case to retain its essential characteristic of a legal dispute b the form of the proceedings the nature of the dispute the importance of the point and frequency of its occurrence and the particular jurisdiction invoked c the type of relief claimed and the discretionary nature if any of its granting for example certiorari d the opportunity for further review of the issue s in actual cases e the character or status of the parties to the litigation and in particular whether such be public or private if the former or if exercising powers typically of the former how and in what way any decision might impact on their functions or responsibilities f the potential benefit and utility of such decision and the application and scope of its remit in both public and private law g the impact on judicial policy and on the future direction of such policy h the general importance to justice and the administration of justice of any such decision including its value to legal certainty as measured against the social cost of the status quo i the resource costs involved in determining such issue as judged against the likely return on that expenditure if applied elsewhere and j the overall appropriateness of a court decision given its role in the legal and specifically in the constitutional framework 52 The matters above mentioned as being material to the exercise of the courts discretion are indicative only and are not intended in any way to be exhaustive and may well have to be adjusted to reflect the particular circumstances of any given situation However once all appropriate matters are established and their relevance identified the conclusion of the resulting analysis in all cases should reflect the basic purpose of the rule and should be concordant with its underlying rationale 53 In summary it can be said that in light of the considerations stated above the courts do not in principle try issues which are moot notwithstanding that these may have been an important question of law in issue between the parties and it is only where there are a range of exceptional circumstances that the courts will exercise their discretion to do so Application of the Doctrine to the Instant Case 54 It is immediately apparent from the reliefs sought in this case that the single issue of complaint upon which each relief is founded is the deportation order made by the Minister for Justice on the 20th August 2009 That order and its making had immediate and personal consequences for Mr Lofinmakin and also for his family including his two Irish born children all of whom as a result would suffer at least a major disruption to if not a complete severance of family and personal life as heretofore enjoyed in this jurisdiction Therefore it is without argument that the substratum or basic foundation of the challenge both factually and legally is referenced to this order 55 As explained above that order no longer exists as it was revoked by the Minister on the 21st February 2012 There is no question of it again having effect either retrospectively or prospectively or at any time henceforth It can have no bearing on any rights or entitlements which Mr Lofinmakin or his family had have or which they may wish to assert in the future Both the order and the process by which such was made are circumstances entirely of the past Moreover it is now accepted that its original making will have no residual repercussions whatsoever for the appellants He is therefore not at risk from that order as it is devoid of legal effect and is not capable of reactivation at any time As such it cannot have any direct consequences for him or any indirect consequences for the three other appellants including his children Can it therefore be said that there remains in existence any legal dispute between the parties 56 If it cannot it seems to me that it is legally impossible to sustain a continuing challenge to an order of no effect and which no longer exists and that even if it were possible it would be an exercise in the utmost futility to do so This must equally apply to the underlying process as both are inextricably linked 57 The issue is in fact put beyond debate by a consideration of what would follow even if the appeal was allowed and leave granted The answer as Counsel on behalf of the appellants was obliged to concede is that the case would still be at an end as there is no possible relief or remedy which could be obtained at a substantive hearing Evidently therefore neither the evidential nor legal framework necessary to sustain an issue in controversy between the parties continues to exist In these circumstances the appeal in my view must undoubtedly be considered moot 58 This conclusion applies to both aspects of the appeal as each is fundamentally predicated on the existence of a deportation order and on the unlawfulness of the disruption to family life which would follow if Mr Lofinmakin was deported to a third country That has not and can now never happen ed by reference to such order 59 The issue then arises under the second tier of the analysis as to whether notwithstanding this finding of mootness the Court should nonetheless exercise its discretion and proceed to hear and determine the appeal For this purpose it should be noted that both of the certified questions have matters in common but also have matters individual to each other In addition under this heading it will be necessary to consider the submission that in any event since there is an outstanding issue on costs the appeal should be heard 60 If the Court should so proceed and pronounce on the certified questions it would in so doing be departing from what is now a well established practice firmly grounded on policy considerations of declining to intervene when a case is moot It will not lightly embark upon such a course and indeed normally will be most reluctant to do so Strong compelling and persuasive reasons will therefore need to exist before exceptions are made to such practice 61 It is very difficult if not impossible to see the existence of any remaining aspect of an adversarial context at this juncture of the proceedings For the reasons set out above the present conflict between the appellants and the respondents certainly the judicial conflict as established in the pleadings is at an end As to the future the position of the children is secure in that they are immune from the direct application of the asylum process that of their mother now lawfully resident in this jurisdiction has remained constant since December 1999 and there are no indications that such may alter With regards to the third named appellant it must be noted that even

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  • to proceed Furthermore any decision by this Court would be based on a hypothesis and would be an advisory opinion It has long been the jurisprudence of this Court that it will not give advisory opinions except in exceptional circumstances such as under Article 26 of the Constitution or as identified in the case law of the Court 15 Thus while the parties had a real dispute when the proceedings were commenced this is no longer the case 16 As has been cited by this Court previously including by Hardiman J in Goold v Collins 2004 IESC 38 the dictum of the Supreme Court in Borowski v Canada 1989 1 S C R 342 reflects the law of this jurisdiction where it is stated An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties Such a live controversy must be present not only when the action or proceedings is commenced but also when the Court is called upon to reach a decision The general policy is enforced in moot cases unless the Court exercised its discretion to depart from it In this case the issues are moot and applying the general rule of the Court the appeal would not be heard Discretion 17 There are exceptions to this general rule when the Court will hear and determine issues in a moot appeal Such exceptions have been described in O Brien v Personal Injuries Assessment Board No 2 2007 1 I R 328 in Okunade v The Minister for Justice Equality and Law Reform and Ors 2013 1 I L R M 1 and in Irwin v Deasy 2010 IESC 35 18 In Irwin v Deasy Murray C J said In exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance the court may in the interests of the due and proper administration of justice determine such a question 19 In some cases an exception may arise if the issue determined in the High Court affects many other cases Thus in O Brien v PIAB No 2 2007 1 I R 328 Murray C J pointed out Where as in this case a party has a bona fide interest in appealing against a declaratory order of the High Court which is not confined to past events peculiar to the particular case which has been resolved in one way or another the Court should be reluctant to deprive it of its constitutional right to appeal In this case the respondent continues to be constrained in the exercise of public powers under statute by virtue of the declaration granted in the High Court at the instance of the applicant 20 An exception to the general rule may also arise if it is a test case and if many other cases have been adjourned pending the decision of the case before the Court 21 The issue

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  • House The road continues west to Johnsport At that point it appears to stop but it joins a road going north which joins and intersects with the Larkin Road The Down Survey map of 1655 had indicated a road east of Ardtarmon towards Lissadell which does not appear on the Larkin Map but the learned trial judge did not rely on it because of the agreement between the parties The Larkin Map shows no continuation of the coastal route i e the byroad or pathway further west than Johnsport 144 The coastal road therefore was a byroad It followed the line of the coast being close to or slightly away from it It was considered by Mr Rob Goodbody the expert in historical geography called by the respondent that the coastal road was a public road i e that it was open to the public He explained that the coastal road avoided high ground whereas the Larkin Road being further inland traversed two high ridges The appellants expert Dr Vandra Costello was of a different opinion In her view this coastal road or pathway was not public it was a private avenue serving Lissadell House the farmhouse and Johnsport 145 The learned trial judge without placing reliance on the Down Survey of 1655 found that the wider historical context suggested that the Coast Road existed prior to the Larkin Map of 1819 He made the following points Ardtarmon which lies to the west of Johnsport and therefore of the old Lissadell House was known as a major medieval settlement in his will of 1801 Sir Booth Gore is described as being of Ardtarmon Later maps showed that there was a substantial castle on the coast between Ardtarmon and Lissadell which predated any of the Gore Booths houses Johnsport a substantial development was also located on the coast between Ardtarmon and the Water Wall at Lissadell He quoted extracts from notes made by persons involved in the preparation of the Ordnance Survey maps of 1837 which referred to the Bunbrenoige chapel as follows There was about 80 or 90 years ago a Mass House i e Chapel Teach Aifrinn at Bunbreunoige on the site of which stables belonging to Sir Robert Gore now stand hence the saying Poball Bunbreanoige The congregation of Bunbreanoige is still common among the people preserving the name Bunbreanoige whilst it the saying be remembered When the ancestor of the present Robert got his estate there he banished the congregation and pulled down the chapel The learned judge concluded that the chapel had been there from at least as early as 1750 He found this significant because although some of the routes may have only come into existence when the present Lissadell House was constructed in 1833 1836 the Coast Road clearly predates this He therefore concluded Given the existence of this functioning chapel it is highly likely that there was public access on the Coast Road to it Such churches are referred to in Irish as Teach an Phobail literally House of the Public and the right of public access to such churches was well known in the law The judge cited in some detail from the evidence of Mr Goodbody Since this is very pertinent to the question of the status of the coastal route it is worthy of citation here also paragraphs 214 215 Where there were places that would generate any type of traffic there generally were roads to serve them This was not always the case in the case of Lissadell it is evident that there would have been a road leading from Sligo town to the area around Ardtarmon and Lissadell from the medieval or early modern period given the existence of a fortified house at Ardtarmon and a castle at Lissadell together with the fishing community at Raghly The logical alignment for this road is driven by the topography as the area around Lissadell has a strong series of north south ridges and valleys Of the two roads known to have existed leading from Ballygilgan to Ardtarmon in the early years of the 19th century shown on Larkin s map of 1819 the coastal route is the more likely to have been the original and this is confirmed by the Down survey map The conclusion drawn from this is that the natural route from Carney to Ardtarmon is the one that runs close to the shore It would appear that the most likely reasons the construction of the more northerly route would be to encourage traffic away from the original Big House on the shoreline at Lissadell as this would be a more direct route to Maugherow Church and the settlements at Cloughboley and Kilmacannon for those that could manage the steep hill The need for a public road along the shoreline is also demonstrated by the various occupiers of land along the route 146 As is apparent from these passages the learned judge preferred the evidence of Mr Goodbody to Dr Costello The maps and the wider historical context including the contour of the coast and the former existence of a chapel showed that the coastal route was public This is the first significant point concerning the status of the coastal route 147 There was very detailed evidence in the High Court regarding the history of presentments The respondent claimed that significant public money had been spent in maintaining repairing and building the roadway from Carney by way of Ballygilgan and Lissadell to Johnsport 148 A statutory system for the purpose of having roads constructed repaired and maintained commenced with the Presentment for Roads Act 1765 Subsequent amending statutes followed Highways Acts of 1817 and 1818 the Grand Jury Ireland Act 1836 A presentment was made to the Grand Jury which was composed of local landowners Sir Robert Gore Booth 4th Baronet born in 1805 and thus not of the age of majority until 1826 was Chairman of the Grand Jury The Act of George III 1796 36 George III c 55 provides the legal basis for these presentments The Act is entitled An Act for the Amendment of Public Roads for directing the Power of Grand Juries respecting Presentments and for repealing several Laws heretofore made for those purposes 149 The learned trial judge at paragraph 191 of his judgment described the system as follows Presentment sessions were held in spring Lent and summer each year and were responsible inter alia for road construction maintenance and bridge building A person wishing to repair or construct a road was required to have a survey carried out by two engineers and have an affidavit sworn before a Justice of the Peace in the prescribed form The affidavit required the road to be identified as being the road from to between and all in the barony or half barony of the spaces being filled in by the applicant If the work was approved payment was made only after another affidavit of completion was sworn again before a Justice of the Peace The grand jury also of its own motion could present a road for repair or construction subject to similar affidavits being sworn 150 The learned trial judge also quoted the provisions of s 46 of the same Act for the closure or stopping of roads it shall be lawful for any Grand Jury to present any old road to be stopped up if it shall appear to them that the said road is no longer necessary to be kept open for the convenience of travellers or that a new road has been made which answers all the purposes of the old one to every which Presentment it shall be lawful for any person to enter a traverse and if such traverse shall not be tried within a year the Presentment shall stand good and valid to all intents and purposes 151 The question of presentments was a highly contentious issue in the High Court However the learned judge following a meticulous examination of the records and the expert evidence found in favour of the respondent only in respect of one presentment He found that there was a presentment in 1814 for the expenditure of money for the building of a battery wall This was Presentment No 3 1814 No 35 Assizes The record was Grantee Sir Robert G Booth Abraham Martin and John Jones to build a battery wall on the sea side of the road leading from Sligo by Farnicarney to the sea between Farnicarney and Lissadill 84 17 4 granted 152 There was much dispute as where the expenditure related to this presentment took place There were no maps accompanying the presentments The appellants contended that because of the description between Farnicarney and Lissadill it could not have been in Lissadell There was extensive argument and evidence concerning whether the principal land feature at the Water Wall a semi circular protuberance of land into the sea had existed in 1814 The learned judge carefully examined the map evidence and the evidence of the expert witnesses He found it probable that the presentment No 35 referred to expenditure at what is now the Water Wall on the appellants property That adjoins the Alpine Garden so that it was very close to the site of the old Lissadell House The appellants while criticising this finding in their written submissions did not do so at the hearing The finding was based on a careful examination of the evidence including the oral evidence and cannot be disturbed The learned trial judge however declined to find that any of the other presentments mentioned in the evidence applied to any part of the property now owned by the plaintiffs 153 It is important to note that the learned judge emphasised that while the fact of public expenditure on the maintenance of a way supports an inference that it is a public right of way it is not of conclusive effect As he explained a record of a presentment does not create a highway it is merely evidence which may support the existence of a highway He cited Holmes L J in Giants Causeway Co Ltd v A G 1898 5 N I J R 301 320 to the effect that the value of a presentment might be great or small depending on the circumstances 154 In summary the position regarding the coastal route is that the learned trial judge found that it had existed as a public right of way prior to the Larkin Map of 1819 and that public money had been expended in building the Water Wall pursuant to a presentment of 1814 155 The appellants argue that this finding is irrelevant since the judge found dedication to have taken place in respect of all of the routes between 1857 and 1861 and that therefore this is not an independent basis for establishing the public right of way It is true that the learned judge found that dedication had taken place in respect of all routes in the period 1857 to 1861 However insofar as he had already determined that there was a public right of way along the coastal route by reference to the Larkin and other maps it was unnecessary for him to find dedication at a later date His findings based on the Larkin Map and the 1814 presentment are capable of standing on their own 156 That however by no means terminates the issue regarding the coastal route The fact is that only part of the coastal route as depicted in the Larkin Map now exists That is the part which runs from the Bunbrenoige Bridge at the eastern boundary of Lissadell in a westerly direction past the Alpine gardens to the point B whence it turns north before branching off west at right angles towards Johnsport Separate considerations arise respectively concerning the part of the route A B which runs through Coillte lands and the more westerly part which is called the Farm Avenue 157 The Farm Avenue should first be considered The appellants claim that this avenue was not in existence in the period 1857 to 1861 Thus it could not have been dedicated in that period They point out that it first appeared in the Ordnance Survey map of 1885 Unlike the Main Avenue and what is now the Forge Avenue it does not appear on the 1837 Ordnance Survey map Nor does it appear on an Admiralty Chart of 1852 with corrections to 1859 The respondent responds that the appellants had produced no evidence positively supporting a post 1861 construction and that the evidence of Dr Costello suggested that all major reconfiguration works were carried out around the same time 158 It is appropriate to revert to the evidence of the maps The old coastal route going more or less directly west of the former Lissadell House follows a line at or near the coast until it reaches Johnsport It appears this way on the Larkin Map of 1819 the Nimmo Map of 1821 and indeed all intervening maps up to and including the 1837 Ordnance Survey map In the intervening years before that 1837 map the new Lissadell House had been constructed and the two new avenues the Main Avenue and what is now called the Forge Avenue were laid out It is interesting to note that both of these last named avenues appear for the first time on the 1837 map but the coastal road remains unchanged What is now called the Farm Avenue does not appear at all It first appears on any of the maps on the 1885 Ordnance Survey map 159 The appellants lay emphasis on the Admiralty Chart of 1852 with corrections to 1859 That map shows the coastal route still unaltered although it shows the new configuration of avenues around the new Lissadell House 160 The learned trial judge does not advert specifically to the Farm Avenue or suggest that it represents a replacement in part of the old coastal route At paragraph 148 he distinguishes between the Coast Road and the other internal ways on the estate He says that the latter were only laid out in or around 1833 to 1837 when the present Lissadell House was constructed whereas the Coast Road dates from a much earlier period He then concludes It is clear from this that it is not possible to presume or infer dedication in respect of the internal avenues prior to 1833 1837 since the avenues as a historical fact did not exist prior to that date The same however cannot be said about the Coast Road which I have found predates the new House 161 At paragraph 268 the learned judge states that the other avenues in dispute in this case only came into existence in or around 1830 1833 or thereabouts when the new house was erected and the paths were laid out It is unclear taking these two passages together whether the learned judge treated the Farm Avenue as part of the coastal route or as one of the other avenues in dispute which came into existence around 1830 1833 If the latter he would not appear to have addressed at all the argument based on the maps that the Farm Avenue first appeared in 1885 thus rendering dedication in 1857 to 1861 impossible If the former he would appear to have overlooked the fact that the coastal route has disappeared at this point On that hypothesis he would have had to decide whether as the respondent claims the Farm Avenue should be treated as a diversion from or substitution for the coastal route It will be necessary to consider how this issue should be resolved 162 Insofar as concerns the eastern part of the coastal route or former coastal route is concerned the history is quite complex The first thing to be said however is that the entire of that route lying east of the Bunbrenoige River or boundary of Lissadell lies outside the lands of the appellants It is owned by Coillte which is not a party to the proceedings At this point however it is necessary to refer briefly to the various changes which have taken place in that route since its depiction as a more or less continuous route on the Larkin Map of 1819 163 Several quite major changes can be shown to have taken place by reference to the maps Firstly as early as the Nimmo Map of 1821 part of the coastal route passing through Ballygilgan west of the point where the Larkin Map showed the Larkin Road to branch away from the coastal route has disappeared Instead there is a link going south west off the Larkin Road joining the coastal road Secondly as found by the trial judge paragraph 210 the part of the coastal route towards Carney apparently stopped in 1813 by a presentment and does not appear in the later maps Thirdly in or about this time the Larkin Road was closed by presentment Fourthly a new road now called the Ballinaphull Road R347 was constructed going north and looping round the Lissadell Estate Fifthly the rest of the old road from Carney to Ballygilgan was removed between 1834 and 1840 by Sir Robert Gore Booth who paid more than 3 000 for the new road which replaced it Sixthly when Sir Robert Gore Booth had acquired additional land in Ballygilgan the line of the road was changed in an easterly direction and the existing entrance at Crushmore was correspondingly extended a small distance further east 164 In the result by the time of the 1837 Ordnance Survey the Larkin Road has disappeared The new Ballinaphull Road runs from about Carney and loops to the west around the estate The learned trial judge found that the demesne wall on the eastern side of the demesne was most probably built at the same time as the present main R347 road was constructed i e between 1818 and 1828 and marked the boundary of the demesne as it then was As Dr Costello put it the route from Carney along the coast was closed and the new road was pushed upward 165 Whatever the legal consequences of these several complex changes it is an undoubted fact that the combination of the coastal route and the Larkin Road had drastically changed by 1837 High Court Judgment Overview 166 The introductory passages in the judgment of the High Court contain a number of observations regarding the place of the Big House in Irish history and literature referring in particular to the unique and extraordinary family history of the Gore Booths 167 The learned trial judge then outlined the history of the Lissadell Estate leading to the outbreak in 2004 of the dispute which led to the present litigation following the closure by the appellants of the main entrance gate 168 At an early point in the judgment paragraph 51 under the heading jus spatiendi the learned judge referred to evidence of witnesses called for the respondent who had said that when they were young they used to wander all over the estate and into the woods and that young boys in particular seemed to use it as an adventure park especially in the summertime He made a clear statement that the claim was confined to rights of way that is rights to pass and return over identified ways avenues or roads on the estate He said that apart from a claim to a right of access the beach at the Water Wall the respondent was not claiming a right to wander over the estate and expressed his view that it would have no prospect of success had it chosen to do so In this context he cited a passage from the judgment of Kearns J as he then was in Murphy v Wicklow County Council Unreported High Court 19th March 1999 referred to earlier see paragraph 105 where having reviewed the authorities he affirmed the common law saying Against this background of recent case law it seems ius spatiendi can no longer be regarded as a right recognised by law in the absence of express grant See p 115 See also Costello P in Smeltzer v Fingal County Council 1998 1 I R 279 at 286 169 It will be necessary to return to this issue when dealing with the rights of parking granted in the High Court 170 Before embarking on a further analysis of the substance of the judgment regarding public rights of way it is essential to consider the form of the action in particular the capacity in which the respondent brought its counterclaim and the learned trial judge s decision that it had been brought in personam only 171 A public right of way is a right of the public at large Normally only the Attorney General may bring an action to enforce the public law or enforce public rights Section 6 1 of the Ministers and Secretaries Act 1924 provides comprehensively for the powers vested in the Attorney General by succession from the former regime and otherwise but vests in him or her specifically with the representation of the Government of Saorstát Eireann and of the public in all legal proceedings for the enforcement of law the punishment of offenders and the assertion or protection of public rights and all powers duties and functions connected with the same respectively emphasis added 172 Kennedy C J in Moore v Attorney General No 2 1930 1 I R 471 a case concerning fisheries explained the history of the office and stated at page 497 the principle that the Attorney General is the only legal representative of the public in the Courts and is exclusively entitled to assert or defend public interests In Incorporated Law Society v Carroll 1995 3 IR 145 Blayney J with whom Hamilton C J and Denham J as she then was agreed held that the Law Society did not have the power to seek an injunction to restrain unqualified persons from pretending to be solicitors which was a matter concerning the protection of the public He said at page 174 The only party who can bring civil proceedings to enforce a public right was the Attorney General It follows that no body other than the Attorney General not even an individual user of a claimed right of way may bring an action to have the public right declared 173 When the Attorney General brings an action to enforce a public right such as a public right of way and succeeds in obtaining a declaration that declaration is good as against the whole world It is a decision in rem 174 There are two situations in which an individual is permitted to assert a public right of way Each is a situation where the individual has concerns peculiar to himself The first is where the individual claims to rely on damage special to him and greater than the general public Boyd v Great Northern Railway Co 1895 2 I R 555 Smith v Wilson 1903 2 I R 45 In Smith v Wilson it was held in the face of a strong dissenting judgment that there was sufficient particular damage in having to use a longer and more circuitous route when going to to the market town The second situation is where a user of the right is sued for example for trespass and raises the right as a defence In either of these cases any determination will affect private rights only It will not sound in rem Neither of these situations arises in the present case and they need not be further discussed 175 In the absence of the sort of situations mentioned in the preceding paragraph where an individual person or persons wish to bring a claim asserting a public right of way they must follow the well established procedure of applying to the Attorney General for his or her consent to bring the action at the relation of the Attorney General This is correctly called a relator action It is to be distinguished from the former requirement for the fiat of the Attorney General declared unconstitutional McCauley v Minister for Posts and Telegraphs 1966 I R 345 The procedure is there to enable persons to bring appropriate proceedings to protect existing public rights of way The Attorney General will not refuse without good reason The costs are borne by the relator not the Attorney General A relator action will be an action in rem 176 Finally there is the situation which arises in the present case Section 73 11 of the Roads Act 1993 No 14 of 1993 provides that it shall be a function of a local authority to protect the right of the public to use public rights of way in its administrative area A difference of opinion emerged between the parties at the appeal stage with regard to the true meaning of this provision It is appropriate to set out the contending position of the parties 177 The respondent says that s 73 11 imposes on it a duty in its functional area to protect public rights only and says that is in a position akin to that of a member of the public who has suffered damage in that in relation to certain aspects of the public rights of way it has statutory functions It says that it was in that context that it defended the proceedings brought by the appellants and that it brought the counterclaim It says that s 73 11 is limited to protection of user and that it does not confer any specific statutory function to assert public rights of way so as to establish their existence as a matter of law It says that the appellants make an unreal distinction between defending the action for slander of title and the making of a counterclaim It adds that its function under s 73 11 cannot displace that of the Attorney General 178 The appellants say that the respondent did not plead that it was asserting rights only on an in personam basis The suggestion that the claim was being made in personam only was raised by the trial judge on day 50 of the trial and adopted by the respondent s counsel in closing submissions on day 54 They say that had the respondent indicated at any stage in pleadings or prior to closing submissions that it was asserting rights in personam only it would have objected to the locus standi of the respondent 179 The capacity in which the respondent has brought the counterclaim must now be addressed It will also be necessary to consider it later in the very particular context of the declaration made by the learned trial judge relating to route A B from the Crushmore entrance passing through the lands owned by a third party Coillte which have not formed part of the Lissadell Estate since 1968 The appellants objected and object on this appeal that an order could not and should not have been made affecting a person or body not party to the proceedings The judge proposed that the matter could be resolved by treating the declaration as being made only in personam Thus it would affect only the appellants and the respondent and would not affect Coillte 180 It is in the course of responding to the appellants submissions on the issue of the effect on Coillte that the respondent has propounded the limited effect of s 73 11 so far as it is concerned 181 It should be noted that the learned trial judge at no point adverted to the possibility that the respondent was adopting such a limited role as is now suggested In an extremely thorough not to say exhaustive judgment on the entire case in which he addressed many complex issues of law and cited very many authorities the judgment never at any point referred to s 73 11 The judge noted at paragraph 7 that the respondent in its counterclaim was asserting rights of way over specified and identified roads on an annexed map which it claims were dedicated to the public by the plaintiffs predecessors in title and it is further claimed that the public accepted that dedication At paragraph 6 he applied the rule that he who asserts must prove which requires that the defendant should lead the evidence to establish its proposition before the plaintiffs bring their rebuttal evidence forward 182 According to the argument advanced by the respondent it was not asserting or claiming that public rights of way existed over the estate because it had no statutory power to do so or that if it was the result would not bind anyone except the parties In other words the declarations made would benefit the respondent but not the people of the locality who have exercised acts of user over the various ways in the estate Drawn to its logical conclusion this would mean that the appellants continued even after the pronouncement of the High Court judgment to be entitled to exclude the public from using the ways through the estate Because the members of the public as distinction from the respondent had not obtained any declaration of their right to use the ways through the estate at least the appellants could exclude them until such time as those individuals brought an action which would have to be at the relation of the Attorney General 183 If the declarations granted by the High Court operate only in personam they have effect only as between the appellants and the respondent Only the respondent has the right to use the public rights declared Since the respondent is a body corporate the rights of way could only be exercised by its servants or employees It seems clear that such user would be confined to acts done in furtherance of their duties as servants of the local authority not in their private capacity It is not clear what those acts would be since the ways have not been taken in charge by the respondent in its capacity as a road authority 184 So far as the ordinary members of the public are concerned including the many people who gave evidence at the trial in the High Court the declarations made in personam in favour of the respondent would be worthless Such a result would certainly come as a great surprise to the many local people who gave evidence in the High Court and it seems very likely to the learned trial judge 185 It seems clear beyond any doubt that this action was defended by the respondent and more importantly the counterclaim brought by that respondent on the basis of the function conferred upon it by s 73 11 of the Roads Act 1993 and that the claim was defended by the appellants on the assumption that the section empowered the respondent to claim formally in legal proceedings that public rights of way existed see paragraphs 46 and 48 ante As already noted the Attorney General attached particular importance to the fact that the appellants were not challenging the locus standi to explain his decision not to permit the counterclaim to be brought as a relator action in his name 186 The respondent states that s 73 11 of the Roads Act 1993 merely obliges it to protect public rights of way In fact it confers a function It does not impose an obligation The respondent states correctly that its function does not displace that of the Attorney General Nonetheless it has brought the counterclaim in the present case for declarations that public rights of way exist affecting the estate of Lissadell It relied in correspondence and in its defence on s 73 11 187 For more than a century the law of England and Wales has conferred functions on local authorities relating to the protection of public rights of way Section 116 1 of the Highways Act 1871 as amended provided It shall be the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority 188 The English courts have had occasion to examine the limits of an authority s discretion in deciding whether it would bring legal proceedings to protect public rights of way In Reg v Surrey County Council Ex parte Send Parish Council 1979 40 P CR 390 as cited by Stephenson L J in the course of his judgment in Reg v Lancs County Council Ex Parte Guyer 1980 1 W L R 1024 at 1031 Geoffrey Lane L J expressed the following views about the function of a local authority paragraph 396 The local authority must at all times act with the object of protecting the highway and of preventing or removing any obstruction and more broadly speaking of promoting the interests of those who enjoy the highway or should be enjoying the right of the highway and the county council must likewise operate against the interests of those who seek to interrupt such enjoyment of the highway 189 Stephenson L J also cited with approval the following statement relating to the earlier provision of s 26 1 of the Local Government Act 1894 of Neville J in Holloway v Egham Urban District Council 1908 72 J P 433 at 434 In my opinion the provisions of the Local Government Acts which give to local authorities the right impose and impose upon them the duty of maintaining public rights of road and way are of the greatest possible importance to the public and were very much needed at the time when the acts were passed because undoubtedly in parts of the country where the population was increasing and the value of land was growing there was a very great danger of public rights being invaded by individual proprietors 190 While s 73 11 confers a function on a road authority without imposing a duty it is a public law function It confers a statutory power on the authority In performing its function the authority is not pursuing a private law interest 191 The notion that the respondent as local authority counterclaimed for declarations that public rights of way existed throughout the estate of Lissadell only in personam i e in its own interest is a most surprising one Long established authority such as the cases already cited of Boyd v Great Northern Railway Co 1895 2 I R 555 Smith v Wilson 1903 2 I R 45 show that no individual which for present purposes must include the respondent may maintain an action for a declaration of a public right of way in the absence of proof of special damage The respondent has never claimed to have suffered special or individual damage It has brought the counterclaim to all intents and purposes in order to establish rights in favour of the public The action was conducted exactly as if it had been brought by the Attorney General or at his or her relation 192 In these circumstances it would be quite wrong and unjust to permit the respondent to take any other position at this stage The counterclaim must be treated as having been brought by the respondent for the purpose of seeking declarations that public rights of way exist over the roadways in Lissadell It cannot have been in the contemplation of anyone involved in the case that the respondent was seeking a declaration which would benefit it and it alone 193 Next it is necessary to consider the learned judge s treatment of the law with regard to public rights of way The learned judge summarised at considerable length and with great thoroughness the common law and the established authorities with regard to the creation of public rights of way He commenced by acknowledging on the authority of the decision of this Court in Connell

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  • to frustrate the ultimate hearing of this case and that is an unfairness to the defendants which I am not prepared to permit to continue So I will dismiss the plaintiffs claim and make an order for costs against the plaintiff in favour of the defendants and if the plaintiff had been here I would have had an opportunity of inquiring from his what his attitude was to the application being made by his new legal team to come off record prior to my making this order for dismissal He is not here and I appreciate that a solicitor who is representing a party whose case is being dismissed might wish to bring an application to come off record before that order is made but I have outlined in this brief statement of my reasons the sequence of events and I m completely satisfied that the present legal team should not be in any way prejudiced by the fact that they don t have an opportunity prior to this order for dismissal being made to formally serve a notice of motion under order 7 I think it is or the relevant rule to come off record It s not necessary that the order be made before I make my order for dismissal and obviously once I have dismissed the proceedings obviously there s no opportunity to come off record thereafter but I wont say any more about it than that but perhaps my comments might assist in some way at any later stage if necessary so I make that order to dismiss and costs to the defendants Amended Notice of Appeal 3 The appellant filed a notice of appeal and then pursuant to the order of this Court on the 23rd November 2012 he filed an amended notice of appeal The appellant set out twelve specific grounds of appeal Submissions 4 Submissions were filed on behalf of the appellant and the Court received also oral submissions on his behalf 5 Stephen Byrne B L made eloquent oral submissions on behalf of the appellant traversed the events in July 2011 and October 2011 and argued that the learned High Court judge should have given the appellant one more opportunity to move his case in the High Court 6 Submissions were filed on behalf of John O Dwyer and Evan O Dwyer practising under the title and style of Crean O Cleirigh and O Dwyer the defendants respondents referred to as the respondents 7 Counsel for the respondent Mr McGettigan S C submitted that the appellant was seeking to frustrate the administration of justice and that the Court should dismiss the appeal Background 8 There is a history to this case These proceedings were issued on the 18th September 2009 following earlier proceedings in which the respondents had acted as solicitors for the appellant The earlier proceedings were entitled Frank O Reilly Michael McHale John Joyce Seamus O Brien and An Post National Lottery Company High Court Record No 2001 369P were reported at Horan v O Reilly Ors 2008 IESC 65 and related to a claim by the appellant that he was a member of a syndicate which won the National Lottery early in 2001 and as such was entitled to one fifth of the lottery win Having won in the High Court the appellant lost in this Court The Court held In conclusion the original agreement clearly permitted only those syndicate members to share in winnings who had paid their contributions Mr O Brien did not have authority to vary the agreement His toleration of the payment by Mr Horan in arrear did not have that effect It could not bind the other members without their agreement Mr Horan was not a member of the syndicate on the 6th January 2001 9 These proceedings are a claim for damages in negligence against the respondents arising from the alleged manner in which they conducted his case in those proceedings 10 On the 18th September 2009 the appellant commenced these proceedings claiming damages for alleged professional negligence of the respondents arising from the defence of his appeal in Horan v O Reilly Ors 2008 IESC 65 The damages sought by the appellant include 1 loss of one fifth share of lottery jackpot 459 059 17 2 bill of costs 300 000 00 estimated 3 loss of opportunity to invest lottery winnings unascertained 11 At the core of the appellant s claim in this case is an issue as to submissions in the previous case It is claimed in the statement of claim as follows The defendants were crucially negligent in answering submission 3 1 of the appellants submissions which permitted the Supreme Court to wrongly conclude at paragraph 25 of the judgment that it was common case that the bet placed by the syndicate was 6 00 which represented the contributions of only four syndicate members not including Mr Horan the Plaintiff In answering this submission in the manner in which they did the Defendants permitted the Supreme Court to indulge in the fanciful and erroneous notion in the context of this or any lottery syndicate as to the value of the winning ticket and not to the real issue who were syndicate members at the time the winning ticket was purchased By answering the Appellants submission 3 1 in this manner the Defendants were grossly negligent in opening an issue which is not dealt with in the High Court judgment and which permitted the Supreme Court to analyse matters as they did which caused severe loss and damage to the Plaintiff 12 The claim is denied by the respondents and a full defence has been filed 13 The appellant served notice of trial on the 1st April 2011 certified the case as ready attended at the non jury list on the 18th May 2011 and called the case on for trial The case was assigned a hearing date of the 26th July 2011 14 On the 21st July 2011 at the

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  • even made his first statement and long before it had been submitted to Sergeant Fahy Moreover on that occasion Sergeant Fahy had not merely had a conversation with Ms McGourty but had taken the step of taking a formal statement from Mrs McGourty which was not however supplied to Superintendent Brunton Nor its existence disclosed In that statement she had alleged harassment by Garda Kelly and also significantly stated that while he might have put his foot inside the porch she was sure he did not enter the premises on the night in question The emergence of this statement cast the events in a somewhat different light and in particular Sergeant Fahy s request on the 20th November for confirmation from Garda Kelly that he had entered the premises and that he did not know any other of the occupants It also cast a different light on Sergeant Fahy s interaction with the Lynchs and his initial recommendation against prosecution 9 Much was sought to be made of the content of this statement by Garda Kelly s representatives who suggested that the reference to Garda Kelly putting a foot inside the porch was in some way exculpatory of him On the final day of the hearing the 11th July 2011 the tribunal found all six counts had been established and recommended that Garda Kelly be dismissed from service By letter of the 26th July 2011 the chairperson of the Board of Inquiry sent to the Chief Superintendent for Internal Affairs at garda headquarters a letter recording the fact that the Board of Inquiry had commenced sitting on the 26th May and concluded on the 11th July The letter stated that the chairperson was enclosing the report of the Board pursuant to Regulation 30 of the Regulations comprising the recommendation of the Board a list of witnesses the list of exhibits one extra statement handed in during the hearing presumably that of Mrs McGourty and the transcript of the hearing A copy of the report and transcript of the proceedings was also sent to Garda Kelly s solicitors The Commissioner accepted the recommendation of the Board and dismissed Garda Kelly from An Garda Síochána 10 On the 14th July 2011 the appellant indicated his intention to appeal the decision of the Board of Inquiry On the 16th August 2011 a formal Notice of Appeal was submitted which merely recited the grounds of appeal contemplated in the Regulations There was a change of representation on Garda Kelly s behalf and following the grant of an extension of time submissions on behalf of Garda Kelly were lodged on the 2nd March 2012 The grounds of appeal submitted by the appellant were in general terms It was stated that he had not been provided with due process during the investigation or during the hearing of the Board that the findings of the Board were wrong in law and in fact and that the recommendation of the Board and the decision of the Commissioner were too severe in the circumstances of the case Some correspondence was exchanged as to possible dates for a hearing However in mid March 2012 the Appeal Board dismissed the appeal of Garda Kelly without a hearing pursuant to Regulation 35 2 b of the Regulations on the basis that the grounds of appeal were without substance or foundation Regulation 35 on its face does not require that a hearing be held before an appeal is dismissed on this ground nor does it provide in terms that reasons should be given for dismissal The decision of the Appeal Board was recorded on a pre printed form on which the other grounds for dismissal under Regulation 35 i e that the appeal was frivolous or vexatious were deleted by hand That was the full extent of the information provided to Garda Kelly in respect a decision which had the effect of making final his dismissal from An Garda Síochána Proceedings in the High Court 11 Following the dismissal of his appeal by the Appeal Board Garda Kelly initiated judicial review proceedings in the High Court seeking inter alia orders of certiorari in relation to the decision of the Commissioner of An Garda Síochána to dismiss him from service the recommendation of the Board that he be dismissed and the dismissal of his appeal by the Appeal Board 12 In a judgment delivered on the 12th April 2013 the High Court Hedigan J refused the reliefs sought by the appellant The learned High Court judge considered that the statement of Ms McGourty should not have come as a surprise to Garda Kelly or his representatives since the Statement of Facts submitted by Superintendent Brunton showed that Mrs McGourty had raised concerns in this regard to Sergeant Fahy three days after the incident Furthermore it was noted that the issue could and should have been raised during the hearing before the Board of Inquiry In particular the High Court judge found that there was no essential contradiction between the first statement of Ms McGourty and her subsequent statements and accordingly the allegation made on Garda Kelly s behalf that Ms McGourty had somehow committed perjury was itself without any substance or foundation The High Court also found that no discursive reasoning was required of the Board of Inquiry for its decision In assessing whether the Appeal Board should have given reasons for its decision reference was made to each of the grounds of appeal Each ground was found to be patently insubstantial and unfounded and the learned High Court judge thus concluded that there was no further need for the Appeal Board to give any reasons for its decision although he noted that the mere ticking of a box might not suffice in other circumstances The Appellant s Submissions 13 On the hearing of this appeal Mr Mark Harty S C for the appellant made five interrelated points First he challenged the reasonableness of the Board of Inquiry s decision and procedures Second he contended that the Board of Inquiry was obliged to or ought to have given reasons for its decision Third it was said that the Board of Appeal did not define the circumstances under which it was permitted to dismiss an appeal on the grounds that it was frivolous vexatious or without substance or foundation In any event it was argued that the Appeal Board was wrong to dismiss the appeal on this ground Fourth it was contended that the Appeal Board in turn was obliged to give reasons for its decision Finally it was argued that the decision was in breach of the principle of proportionality The Respondent s Submissions 14 On behalf of the respondent Mr Diarmuid McGuinness SC argued that there was no lack of reasonableness on the part of the Board of Inquiry and that there was ample evidence upon which it could come to the conclusion which it did Furthermore there was no obligation on the Board to give reasons In any event it is patent that the appellant fully understood the basis of the decision made against him This was a simple case in which there was a conflict of evidence between Garda Kelly and Mr McNulty on the one hand and the occupants of the public house on the other The Board was entitled to accept the evidence of the licensee and the persons on the premises If this was so it followed that there was no prospect of the Appeal Board coming to any different conclusion to the Board of Inquiry which had heard and seen the witnesses Accordingly the Appeal Board was entitled to dismiss the appeal under Regulation 35 The determination was not disproportionate the falsification of evidence by a member of An Garda Síochána and the alteration of his notebook if found to have occurred was an extremely serious matter and justified dismissal Decision 15 In Mallak v Minister for Justice Equality and Law Reform 2012 IESC 59 in the context of an application for a certificate of naturalisation of the Irish Nationality and Citizenship Act 1956 Fennelly J conducted a thorough survey of the law relating to the obligation of a decisionmaker to give reasons for his or her decisions and observed that several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based in short to understand them para 67 That case occurred in the context of an Act which itself was silent as to any obligation to give reasons but conferred upon the Minister what was described as absolute discretion to grant or refuse any application for naturalisation Fennelly J concluded however that In the present state of evolution of our law it is not easy to conceive of a decision maker being dispensed from giving an explanation either of the decision or the decision making process at some stage The most obvious means of achieving fairness is for reasons to accompany the decision However it is not a matter of complying with a formal rule the underlying objective is the attainment of fairness in the process If the process if fair open and transparent and the affected person has been enabled to respond to the concerns of the decision maker there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded para 66 The applicant herein relies on this statement of the law However as the survey in Mallak makes clear the decision of the court is not simply the ascertainment of a general principle applicable without more to all administrative decisions The principle must be analysed in the context of the relevant statutory or administrative regime The Garda Síochána Discipline Regulations 2007 16 These Regulations set out a self contained process for dealing with allegations of breaches of discipline The Regulations distinguish between less serious breaches of discipline which are capable of being dealt with by the deciding officer and which may result in a reduction of pay not exceeding two weeks pay reprimand warning caution or advice Regulation 14 and more serious breaches of discipline which attract the more elaborate procedures contained in part 3 invoked in this case A serious breach of discipline is defined as one which in the opinion of the Commissioner may warrant any of the following disciplinary actions a dismissal b requirement to retire or resign as an alternative to dismissal c reduction in rank d reduction in pay not exceeding 4 weeks pay Regulation 22 17 Where the Commissioner considers that an allegation warrants it he or she appoints an investigating officer to carry out an investigation Under Regulation 24 5 the investigating officer submits to the Commissioner a written report of the investigation containing his or her recommendation as to whether the facts disclosed warrant the establishment of a board of inquiry together with copies of any written statements made during it and details of any information document or thing which the investigating officer was made aware of during the investigation Regulation 25 provides that if it appears from the report of the investigation that the member may have committed a serious breach of discipline the Commissioner establishes a board of inquiry which is charged with determining whether such a breach has been committed and if it finds that it has to recommend to the Commissioner the disciplinary action to be taken A board consists of three persons one of whom is the chairman appointed by the Minister from a panel made up of judges of the District Court and practising barristers or solicitors of not less than ten years standing One of the other two Board members must be a garda not below the rank of chief superintendent and the final member must be a garda not below the rank of superintendent The Board of Inquiry is obliged to formulate the particulars of the serious breach of discipline alleged and notify and supply it to the member That notification is accompanied by a statement of the facts established by the investigation and any written statements made during it Under Regulation 30 within 21 days after the conclusion of the inquiry the presiding officers shall submit a written report to the Commissioner and forward a copy of the report to the member concerned emphasis added Regulation 30 2 provides as follows 2 The report shall include a copies of any statements made including any admission made by the member concerned and any other documents provided to the board together with the verbatim record of the proceedings b the determination of the board as to whether the member concerned is in breach of discipline and if so as to the act or conduct constituting the breach and c its recommendation as to any disciplinary action to be taken in respect of the breach Section 3 of Regulation 30 provides that Where there is a difference of opinion among the members of the board regarding any matter dealt with in its report only the opinion of the majority regarding that matter shall be included in the report 18 Within 14 days of receipt of the report the Commissioner decides on the appropriate disciplinary action In the case of a member above the rank of inspector where the Commissioner considers that the appropriate disciplinary action is dismissal or a requirement to retire or resign or a reduction in rank the recommendation must be sent to the Minister for consideration by the government In the case of any other officer it is for the Commissioner to decide on the disciplinary action save that under Regulation 32 where a Commissioner proposes a more severe action than that recommended by the Board the member is to be given the opportunity to make representations in that regard Regulation 33 provides for an appeal against the determination of the Board of Inquiry in relation to the breach of discipline and or the disciplinary action decided on or to be recommended by the Commissioner Regulation 33 3 provides for the grounds of appeal Those are stated to be that a specified provisions of these regulations were not complied with b the determination is not justified having regard to the evidence heard by the board of inquiry c all the relevant facts i were not ascertained ii were not considered or iii were not considered in a reasonable manner d the member was not given a reasonable opportunity to be heard and to respond to matters raised e the disciplinary action which the Commissioner has decided to take or recommend is disproportionate in relation to the breach of discipline concerned Proceedings on Appeal 19 The Appeal Panel is presided over by a person drawn from a panel made up of judges of the District Court or practising barristers or solicitors of more than ten years standing The other members of the three person Appeal Board should be either the Commissioner or a person selected by him and in the case of a member who is a member of a representative body a member selected by that association Regulation 34 5 20 The procedure for appeal is provided under Regulation 35 It provides that the Appeal Board shall request a written statement of the grounds of appeal and any other submission and then inform the member at least 15 days beforehand of the time date and place of the hearing of the appeal Under Regulation 35 2 an appeal board may refuse to consider an appeal where a the notice of appeal was not given within the period specified in Regulation 33 1 or b having considered the member s statement of the ground or grounds of appeal it is of opinion that the case made by the member is frivolous vexatious or without substance or foundation emphasis added Where matters proceed to a full hearing the proceedings are regulated by Regulation 36 which permits the Appeal Board at its discretion to invite any person to give evidence orally or in writing Finally it is significant that among the powers of the Appeal Board are to quash the determination and to substitute another disciplinary action or quash the determination and decision and decide that another Board of Inquiry should be established to determine whether the member committed a breach of discipline Regulation 37 3 provides that An Appeal Board shall communicate its decision on the appeal and the reasons for it to the Commissioner and the member concerned within 7 days after the conclusion of the hearing emphasis added The Inquiry Process in this Case 21 Superintendent Brunton provided a three page Statement of Facts established by his investigation which sets out in a lucid format the facts found by him That report and the statements taken by him in the course of the investigation together with the account of his interview with Garda Kelly formed the essential material for the inquiry Other than the fact that the report does not appear to contain a recommendation as to whether the facts disclosed warrant the establishment of the Board of Inquiry it appears to be in full compliance with Regulation 24 On 26th July 2011 the presiding member of the Board of Inquiry wrote to the Chief Superintendent of Internal Affairs recording the dates upon which the Board of Inquiry sat The fourth paragraph of the letter was in the following terms I enclose the report of the Board pursuant to Regulation 30 of the Garda Síochána Discipline Regulations 2007 comprising 1 The recommendation of the Board 2 A list of witnesses 3 The list of exhibits 4 One extra statement handed in during the hearing 5 The transcript of the hearing emphasis added 22 Attached to the letter of the 26th of July was a standard printed statement containing the information required by Regulation 27 3 and also setting out particulars of the serious breaches of discipline alleged The final page of the printed form contained the conclusion of the Board of Inquiry which was contained in a standard printed form reciting that the member concerned is in breach of the following breaches of discipline as alleged and which continued in handwriting 1 2 3 4 5 6 All breaches Subparagraph B contained the recommendation of the Board to the Commissioner in the following handwritten terms 1 Statement of 27 9 2009 Dismissal 2 Statement of 21 9 2010 Dismissal 3 Statement of the 1 2 2010 Dismissal 4 Notebook entry Dismissal 5 Discreditable conduct attempted pressure of Robert Cullen Reduction in pay of 500 6 Foul language to Robert Cullen 1 3 10 Reduction in pay 300 23 It is readily apparent that there is no narrative or other account provided by the Board of Inquiry other than the handwritten finding of breach of the numbered paragraphs and the recommended sanctions On the 12th of August 2011 the recommendations were accepted by the Deputy Commissioner of An Garda Síochána Subsequently in March 2012 the solicitor for the appellant received a letter from the chairman of the Appeals Board containing a further pre printed form which was headed Refusal to Consider Appeal Regulation 35 Garda Síochána Discipline Regulations 2007 A number of irrelevant matters had been deleted and the completed form read as follows Commissioner The Appeal Board set up to hear an appeal by John Kelly Garda 2554A Drumshanbo Garda Station has decided to refuse to consider the appeal on the following grounds b having considered the member s statement of grounds the board is of the opinion that the case made by the member is without substance or foundation c having considered the member s grounds of appeal the board is of the opinion that the case made by the member is without substance or foundation 24 The form was signed by the chairman and members on different dates between the 14th of March 2012 and the 20th of that month The replying affidavit sworn on behalf of the respondents in this matter did not deal with the mechanics of the Appeal Board s decision However the letter of the 13th of March 2012 enclosing the decision under Regulation 35 3 from the chairperson of the Appeal Board was exhibited in the affidavit and it recorded the fact that the Board met on Monday 12th March 2012 at Garda headquarters No explanation was however provided for the fact that the decision was signed on three different dates by the three different members of the Appeal Board It appears possible either that the Appeal Board did not decide on the 12th to dismiss the appellant or that the meeting of the 12th did not involve physical attendance 25 Shortly before the hearing in the High Court an open letter was written on behalf of the appellant offering to compromise the matter on terms that there would be a fresh Board of Inquiry That letter was not responded to The matter proceeded and in a detailed judgment the learned High Court judge rejected the appellant s complaints It appears that in the High Court the appellant made much more of what he alleged was inconsistency between the statement of Ms McGourty which emerged at the hearing of the Board of Inquiry and the other statements made by her to Superintendent Brunton As already mentioned it was suggested in the first place that the newly discovered statement was exculpatory and secondly that in her evidence and in particular her denial that Garda Kelly had entered the premises Ms McGourty had been guilty of perjury This allegation and indeed the suggestion that the statement was exculpatory of Garda Kelly seem very wide of the mark and the judge correctly rejected these allegations Moreover the high octane nature of the perjury allegation may have obscured the separate complaint made and pursued more vigorously in this Court as to the significance of the emergence of the fact rather than the contents of the statement and the fact that it had not been revealed in either the statements or direct evidence of Ms McGourty or Sergeant Fahy In that regard the High Court judge considered however there was no substance to the complaint He said Superintendent Brunton s statement of facts dated the 28th of October 2010 served under cover of letter dated the 5th of April 2011 shows Mrs McGourty had raised concerns in this regard to Sergeant Fahy three days after the incident para 6 3 26 It will be apparent from the terms of Superintendent Brunton s Statement of Facts set out above that it did not show that Ms McGourty had raised concerns three days after the incident On the contrary while the statement of facts did refer to a conversation between Mrs McGourty and Sergeant Fahy it seemed to place any such conversation between the submission by Garda Kelly of his report and statement on the 18th of November and Sergeant Fahy s request for further information of the 20th of November It also seems apparent that Superintendent Brunton was unaware of the existence of the statement until it emerged during the course of the hearing It seems clear therefore that the High Court never addressed the significance of the fact that a formal statement had been taken by Sergeant Fahy on the 23rd of September and not disclosed by him to Superintendent Brunton or anyone else and furthermore that neither Ms McGourty nor Sergeant Fahy referred to this significant event in their statements of evidence or respective oral evidence when given to the Board of Inquiry This is of some significance in its own terms on this appeal but it also casts light on the wider issues It is precisely because the High Court judge delivered a comprehensive judgment that it is possible to identify this error and then consider what if any significance it had It is not however possible to ascertain what view if any either the Board of Inquiry or the Appeal Board took of this matter and if for example they shared the apparently mistaken view of the High Court because the decision of each body is contained in an uninformative and unilluminating standard form Analysis 27 A superficial reading of the Regulations might point to the explicit obligation in Regulation 37 3 imposed upon a board of appeal after a full hearing to communicate both its decision on the appeal and the reasons for it to the Commissioner and suggest therefore that the absence of similar explicit language from Regulations 30 and 35 should mean that no equivalent obligation was placed on a board of inquiry under Regulation 30 or a board of appeal when exercising jurisdiction to dismiss under Regulation 35 However before such a superficial reading might be accepted it would be necessary to consider why such an apparently arbitrary distinction might be provided for in the Regulations and to ask whether such an interpretation is consistent not just with the terms but also with the structure function and logic of the Regulations 28 The starting point for the analysis of the Regulations is that part 3 of the Regulations applies only to matters which are described as allegations of serious breaches of discipline which are defined as matters which might lead to one of the identified penalties including dismissal which was indeed the penalty imposed in this case It is to be expected therefore that the procedure established leading to such a result would be both careful and elaborate as indeed they are It is of course true as was argued forcefully on behalf of the respondent in this appeal that it must necessarily be the case that on the central issue in relation to which there was conflict namely whether Garda Kelly entered the main bar on the 20th September 2011 the Board of Inquiry must have been satisfied that he did not do so and it must also follow that the Appeal Board necessarily agreed and indeed considered that this issue was beyond any possible argument But that was not the only issue here This was not a simple conflict between two opposing accounts It was in truth something of a tangled web with competing allegations of collusion and concoction made either explicitly or implicitly on both sides In addition to the question of whether Garda Kelly was in the main bar on the night in question there were other ancillary facts which could not be said to be irrelevant particularly in the context of regulations which permitted a significant variety of graded punishments and which distinguish for example between simple dismissal and a requirement to resign from the force 29 Taking only one albeit important example a question arose as to the significance of the fact that it only emerged at the hearing before the Board of Inquiry that Ms McGourty had given a formal statement to Sergeant Fahy three days after the incident and before any statement had been made by Garda Kelly A decision maker coming to the conclusion that there had been a breach of discipline disclosed in this case might consider that there was nothing untoward at all about this and that Ms McGourty and Sergeant Fahy had acted perfectly properly It may also be possible that a decision maker could consider that their motives were not entirely honourable and that there was indeed an element of collusion or concealment perhaps even engendered by hostility to Garda Kelly s attempts to enforce the law but that all of this was strictly irrelevant to the question of a breach of discipline and could not at all influence the penalty to be applied Finally it is possible that the decision maker might be mistaken to a greater or lesser degree about the precise facts or may not have addressed the issue at all Similar issues arise in relation to the account given by Mr McNulty the taxi driver who supported Garda Kelly s account If his evidence was accepted then on what basis was Garda Kelly in breach of the regulations If as appears more likely his account was rejected was that because he was considered to be mistaken or was it that the Board considered his evidence unreliable at its lowest because of the evidence of his subsequent social contact with Garda Kelly and the fact that Garda Kelly was the prosecutor in a drink driving case against Mr McNulty which was due to be heard It is however impossible to know what view the respective decision makers took in this case on these facts or as importantly whether they took the same view because neither of them had explained their respective decisions in even the most rudimentary way The remarkable and somewhat unsettling fact is that Garda Kelly was dismissed by the application by the Appeal Board of a test the content of which was and remains unknown to facts which are themselves even now unclear In relation to the actual decision leading to his dismissal not only does Garda Kelly not know the view the Board of Inquiry took of the facts but and perhaps more importantly he does not know at this stage what the Board of Appeal thought the Board of Inquiry had decided in relation to all the facts He does not know by what test that body had concluded on the documents alone and without any submissions that his appeal was so lacking in substance or foundation in every single respect so that the appeal could be dismissed without the necessity even for a hearing of the appeal It is difficult to square such an outcome with the lengths to which the Regulations go to ensure that the procedure adopted is manifestly fair The Reasons for the Board of Inquiry Decision 30 Unlike the decision on naturalisation at issue in Mallak the decision here cannot be described as conferring a privilege Again unlike Mallak the decision is subject to a formal appeal process Accordingly it might be possible to say that the case is a fortiori the position in Mallak and that reasons are required as a matter of the general law However in my view such a conclusion can be arrived at without recourse to more general propositions and by an analysis of the Regulations themselves 31 The procedures and decision of the Board of Inquiry must be placed in their context within the Regulations A board of inquiry can only be established if under Regulation 25 it appears from the report of the investigation that the member concerned may have committed a serious breach of discipline That report is provided under Regulation 24 5 and is submitted to the Commissioner in written form containing a recommendation on the facts disclosed together with copies of any written statements Since this is a document to permit the Commissioner to make a decision as to whether or not to establish a Board of Inquiry it seems to necessarily follow that it must contain some narrative and conclusion as to the facts as indeed the Regulation 24 report of Superintendent Brunton did in this case It is described in Regulation 24 as a written report of the investigation and therefore could not be merely a collation of documentation without any narrative It is therefore of some significance that when Regulation 25 comes to address the obligations of the Board of Inquiry it uses the same words and imposes an obligation to provide a report to the Commissioner This suggests that the Regulations envisage a report containing some account of the Board s reasoning It would be surprising if the report which is the basis of the disciplinary charges against Garda Kelly could be much more informative than the report concluding that the charges were established 32 As counsel for the appellant has pointed out the Board of Inquiry does not conform to the model of the decision maker coming to a dispute with no prior knowledge which can be encountered in other areas of the law There is an inquisitorial element to this procedure It is for the Board of Inquiry to formulate the breaches of discipline alleged and provide particulars thereof and to provide notice of such allegations to the member concerned It follows therefore that the Board of Inquiry will have had some degree of prior engagement with the facts and importantly in the present context will have made some assessment of their significance It is also important that while the Board of Inquiry makes a decision in relation to the fact of breach that decision is not final and may be appealed to the Appeal Board Furthermore the Board itself does not impose a sanction but rather recommends it It is for the Commissioner to decide in the light of the Board s determination of the facts and recommendation as to penalty what penalty he or she considers appropriate Thus in every case the conclusion of the Board s inquiry must go to another decision maker the Commissioner and in some cases the Government and in many cases will be considered by a third decision maker the Appeal Board Thus when the Regulations impose an obligation on the Board of Inquiry to submit a written report to the Commissioner such an obligation must be read in the light that the Regulations themselves contemplate important decisions being made and possibly reviewed on foot of that written report This in itself is suggests that the Regulations contemplated a narrative setting out the views and therefore the reasons of the Board 33 Regulation 30 provides that the report shall include copies of the statements made and documents submitted with the verbatim record of the proceedings required by the Regulations the determination of the Board as to whether there is a breach of discipline and if so the determination as to the act or conduct constituting the breach and the Board s recommendation as to disciplinary action In my view it is not unduly pedantic to point out that the Regulations provide that the report shall include these matters rather than as the letter of the Board of Inquiry of the 26th of July 2011 apparently considered that the report should comprise the matters set out in Regulation 30 2 and no more In other words the Regulations themselves contemplate most naturally that the report will be something over and above the raw data collected in the course of the inquiry This might be said to follow from the basis principles of fairness identified so eloquently in Mallak but it also follows in my view from a functional approach to the Regulations The Commissioner of An Garda Síochána has many other important functions besides making determinations on discipline within the force and it seems very unlikely that the Regulations would have contemplated that he or she should approach the important task of determining appropriate sanctions in cases of serious breach of discipline within the limited timescale provided for by perusing not just the full witness statements and exhibits but as in this case the transcripts of five days of hearing without any narrative indicating the analysis of that material which the Board of Inquiry must have carried out to come to the conclusions it did 34 By the same token it is relevant to consider the other contemplated recipient of the report of the Board of Inquiry Regulation 33 contemplates an appeal by the member concerned in the case of a breach of discipline found It is not necessary here to resolve any question as to the nature of the appeal contemplated It was argued on behalf of the Commissioner that it was no more than a review akin to judicial review of the proceedings of the Board of Inquiry On the other hand counsel for the appellant pointed to the power of the Appeal Board to hear evidence on oath from any party and contended that in an appropriate case there could

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  • Prosecutions to a return for trial with a direction that an offence should be tried on indictment Submissions of the Appellant 6 Written and oral submissions were made on behalf of the appellant In written submissions counsel for the appellant stated that although the DPP directed summary disposal of the hybrid criminal damage charge preferred against the appellant the appellant was sent forward to the Dublin Circuit Criminal Court by the District Judge who considered that the offence was not a minor offence fit to be tried summarily He also adjourned the case for the service of a book of evidence 7 Counsel referred to Reade v Judge Reilly Anor 2010 1 IR 295 where this Court it was submitted unanimously held that where the DPP directed summary disposal of a hybrid offence the District Judge did not have the power to send the appellant forward for trial or to direct service of a book of evidence 8 On the basis of Reade counsel for the appellant submitted that it was exclusively a matter for the DPP to determine the nature and mode of trial of a hybrid offence It was submitted that if a District Judge took a different view to the DPP the District Judge should strike out the charge In this case arising from the Reade case apparently the DPP informed the appellant in writing of the intention to enter a nolle prosequi in his case However later after considering 2010 IESC Gormley v Judge Smyth Anor 2010 1 IR 315 the DPP resiled from the offer and now submits she is entitled to maintain the prosecution against the appellant 9 Counsel referred to a line of cases leading up to Reade being Attorney General O Connor v O Reilly WJSC HC 1187 State McEvitt v Delap 1981 I R 125 at 131 The State Clancy v Wine 1980 I R 228 Director of Public Prosecutions v Logan 1994 3 IR 254 Robinson v Judge O Donnell Ors 2009 IESC 51 and the amendment to s 7 of the Criminal Justice Act 1951 Oral Submissions on behalf of the Appellant 10 In oral submissions counsel for the appellant submitted that where a District Judge had declined jurisdiction to try a case summarily he had no further role save to strike out the proceedings He submitted that if the DPP has elected to have a case tried summarily it can proceed only as a summary offence It was submitted that if the DPP elected to proceed summarily but a District Judge says it is a non minor case the District Judge has no further role and should strike out the case It was further submitted that that does not prevent the DPP recommencing the prosecution giving a direction that the matter proceed by way of trial on indictment 11 Counsel for the appellant submitted that this case was the same as Reade v Judge Reilly Anor 2010 1 IR 295 Further that the behaviour of the DPP in the proceedings should weigh with the Court to enable it to grant the relief sought It was submitted that it was not fair to the appellant that the DPP should adopt one analysis on one day and then when a second Supreme Court decision was made decide that the second Supreme Court decision is relevant However counsel stated that the appellant was not saying that he was prejudiced It was submitted that what the DPP was doing was unprincipled not mala fides It was argued that the DPP was in error in saying Gormley v Judge Smyth Anor 2010 1 IR 315 applied as it was submitted this case is virtually on all fours with Reade It was submitted that the District Judge did not have the power to adjourn the case Counsel relied on Robinson v Judge O Donnell Ors 2009 IESC 51 in saying that the offence becomes a summary offence Submissions on behalf of the DPP 12 Counsel for the DPP made oral and written submissions to the Court In written submissions it was stated that the appeal arises out of the Gormley and Reade decisions It was submitted that the return for trial was valid and that the learned High Court Judge was correct to dismiss the appeal Counsel submitted that the decision in Gormley makes it absolutely clear that the District Judge has jurisdiction to make a return for trial in a case such as this It was submitted that the appeal should be refused so as to now permit the prosecution of the appellant to proceed on foot of the return for trial 13 In oral submissions counsel stressed that the DPP had changed his mind which he did in light of the Gormley decision He submitted that pursuant to the Gormley decision the return for trial in this case is valid Counsel addressed the Reade case and distinguished it on its specific facts and circumstances He submitted that Gormley considered s 4A of the Criminal Procedure Act 1967 which Reade had not He submitted further that the point had crept into Reade on appeal that it had not been part of the decision of the High Court Counsel pointed out that members of this Court had previously stressed the importance of not having a point argued and decided in the Supreme Court that had not been in the grounds granted for judicial review 14 Counsel also stressed in oral submissions that when a District Judge decides that a case is non minor he loses all substantive jurisdiction However it was submitted that the District Judge has not lost all procedural jurisdiction The District judge in this case could have made the order to strike out If the DPP consents to a return for trial then the District Judge can order a return for trial That is if all the ingredients of s 4A exist and so the District Judge could order a return for trial It was submitted that there was no difference between a consent or a direction of the DPP to a return for trial In this case it was submitted there was no challenge to the DPP s consent which is recited on the face of the order Statute 15 Section 4A of the Criminal Procedure Act 1967 was inserted by s 9 of the Criminal Justice Act 1999 Section 4A provides for an accused to be sent forward for trial 4A 1 Where an accused person is before the District Court charged with an indictable offence the Court shall send the accused forward for trial to the court before which he is to stand trial the trial court unless a the case is being tried summarily b the case is being dealt with under section 13 or c the accused is unfit to plead 2 The accused shall not be sent forward for trial under subsection 1 without the consent of the prosecutor 3 Where the prosecutor refuses to give a consent required under subsection 2 in relation to an indictable offence the District Court shall strike out the proceedings against the accused in relation to that offence 4 The striking out of proceedings under subsection 3 shall not prejudice the institution of proceedings against the accused by the prosecutor 5 The accused shall not be sent forward for trial under subsection 1 until the documents mentioned in section 4B 1 have been served on the accused 16 The documents mentioned in S 4B 1 are as follows 4B 1 Where the prosecutor consents to the accused being sent forward for trial the prosecutor shall within 42 days after the accused first appears in the District Court charged with the indictable offence or within any extension of that period granted under subsection 3 cause the following documents to be served on the accused or his solicitor if any a a statement of the charges against the accused b a copy of any sworn information in writing upon which the proceedings were initiated c a list of the witnesses the prosecutor proposes to call at the trial d a statement of the evidence that is expected to be given by each of them e a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act 1992 f where appropriate a copy of a certificate under section 6 1 of that Act g a list of the exhibits if any Further statutory provisions deal with a number of matters including an extension of time additional documents and examination of exhibits Cases 17 This appeal revolves around two decisions Reade v Judge Reilly Anor 2010 1 I R 295 and Gormley v Judge Smyth Anor 2010 1 IR 315 18 In Reade v Judge Reilly Anor the facts were that the applicant was charged with offences contrary to s 3 and s 15 of the Non Fatal Offences Against the Person Act 1997 which were hybrid offences enabling both summary trial and trial on indictment The applicant was summonsed to appear before the District Court Judge Reilly having read the statements was of the view that the offences were minor and accepted jurisdiction However at the trial following evidence of the victim Judge Reilly changed his mind and ordered that the offences were not minor offences and that the matter did not fall within his jurisdiction Judge Reilly sent the accused forward for trial to the next sitting of the Circuit Criminal Court and directed the service of the book of evidence The applicant obtained leave to seek an order of certiorari quashing the order of Judge Reilly declining jurisdiction and an order of mandamus compelling Judge Reilly to hear the matter 19 In Reade the High Court Charleton J refused the reliefs sought and held that even if a District Judge took a preliminary view that the papers in a case disclosed a minor offence the Court is under a constitutional duty to ensure that the case was tried by a jury should it emerge that the case was non minor The applicant appealed to the Supreme Court 20 In Reade the Supreme Court Macken J affirmed the order of the High Court refusing an order of certiorari but made a declaration that the District Court did not have power to send an accused forward for trial or direct service of a book of evidence in the circumstances The Court confirmed that it was for the District Court to determine if an offence was minor or non minor That if during a hearing it became clear to a District Judge that a hybrid offence was not a minor offence he or she was obliged to decline jurisdiction and discontinue the hearing 21 In Reade Macken J held I now turn therefore to the second issue It will be recalled that on the second issue counsel on behalf of the appellant contended that even if the District Court Judge was entitled to decline jurisdiction on one or other of the above grounds nevertheless the District Court Judge had no statutory power vested in him in such circumstances to send forward an accused for trial at the next sitting of the Circuit Criminal Court as he did and did not have any power to direct service of a book of evidence as he also did Under the provisions of the Act of 1951 the District Court Judge is vested with a statutory power once he has concluded that an indictable offence is not apt to be tried on a summary basis to send an accused forward for trial and direct the service of a book of evidence Analogous statutory provisions exist in relation to similar offences where created by other legislation of a similar nature This flows from the natural logic of any statutory scheme for the disposal of indictable offences on a summary basis and from specific statutory provisions vesting such powers in the District Court Judge Different considerations arise in relation to hybrid offences where no such specific power is provide by statute I have been unable to find any statutory general power vested in the District Court or in a District Court Judge which permits any equivalent order to be made in the case of non minor hybrid offences where the District Court Judge has properly declined jurisdiction and no such statutory power was drawn to this Court s attention by counsel for the second respondent Although all the academic writings including Walsh on Criminal Procedure Thomson Round Hall Dublin 2002 and Woods on District Court Practice and Procedure in Criminal Cases Limerick 1994 as well as the Report of the Working Group on the Jurisdiction of the Courts on The Criminal Jurisdiction of the Courts Dublin 2003 state that the District Court Judge must send an accused forward for trial if he considers the offence in the case of a hybrid offence not to be a minor offence it is not at all clear on what basis this is stated While the case of Cumann Luthchleas Gael Teo v Judge Windle 1994 1 I R 525 is cited as supporting this latter contention by one of the authors a consideration of that case makes it clear that although there were hybrid offences provided for under the Act in question the sending forward was by reference to an indictable offence triable summarily under another specific provision of the same Act I do not consider therefore that it is of assistance in resolving the issue Since the District Court Judge is obliged to decline jurisdiction there is clearly an actual power vested in him to strike out the proceedings as the appellant contends as being the only consequence which can flow from the determination that the offence is not a minor offence I am of the view that in the absence of a statutory power to do anything further this is the correct conclusion It does not of course prevent the second respondent from commencing proceedings again in respect of the offence on an indictable basis 22 In Gormley v Judge Smyth Anor 2010 1 IR 315 the applicant was charged with two offences in the District Court both of which could be tried summarily or on indictment A member of An Garda Síochana indicated in error to the District Court that the DPP was consenting to a summary trial The District Court judge accepted jurisdiction Then a solicitor for the DPP indicated to the District Court judge that in fact the DPP was directing a trial on indictment The applicant opposed the direction on the ground that the District Court judge had accepted jurisdiction to hear the matter and that the DPP did not have the power to direct the District Court judge to send the matter forward for trial on indictment The applicant sought an order of certiorari quashing the order of the District Court judge sending him forward for trial to the Circuit Criminal Court and an injunction restraining the DPP from prosecuting him in the Circuit Criminal Court 23 The High Court O Neill J in Gormley refused the reliefs sought In the Supreme Court it was held that where the DPP had directed prosecution of a hybrid offence by way of indictment the District Court judge had power to take the necessary steps to ensure that the matter was sent forward for trial as long as there were neither unfair procedures oppression or abuse of process For while the jurisdiction of the District Court was a statutory jurisdiction in relation to the prosecution of criminal and civil matters the Court was vested with implied procedural powers relating to the exercise of its functions 24 In Gormley Geoghegan J held with which Fennelly J and Finnegan J agreed that the District Judge acted properly and the appeal was dismissed 25 In Gormley Geoghegan J referred to the judgment of Macken J in Reade v Judge Reilly Anor 2010 1 I R 295 at p 313 where the issue of the jurisdiction to send the applicant forward for trial on indictment was addressed and thus Since the District Court Judge is obliged to decline jurisdiction there is clearly an actual power vested in him to strike out the proceedings as the applicant contends as being the only consequence which can flow from the determination that the offence is not a minor offence I am of the view that in the absence of a statutory power to do anything further this is the correct conclusion It does not of course prevent the second named respondent from commencing proceedings again in respect of the offence on an indictable basis 26 In Gormley Geoghegan J analysed the situation thus On one view of that passage and reading it literally it might be thought that it would apply to this particular case and that accordingly on that account this court should allow the appeal For a combination of reasons I do not accept that conclusion First of all the doctrine of precedent or stare decisis has to be applied with a careful eye on the context in which the alleged principle was set out and the nature of the case and I believe in particular that courts should be cautious about precedents in relation to criminal procedures Every criminal trial turns out to be different quite radically from every other criminal trial and problems arise which were not necessarily foreseen when general principles were laid down in another case A good example for instance is a series of decisions in this court on preservation of evidence Wide propositions have had to be modified in the light of different facts There are a number of factors in Reade v Reilly 2009 IESC 66 2010 1 I R 295 which radically and in my opinion relevantly differentiate it from this case First of all in Reade v Reilly 2009 IESC 66 the Director of Public Prosecutions had unequivocally directed a

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  • the time the place the nature of the words used who the police officers are who else was present and so on 5 4 McCullough J in Orum noted that the amendment to the 1986 Act meant that it was not the likely physical reaction to the conduct complained of but the likely mental reaction to it which now mattered He did however add that It is improbable in the extreme that any police officer would ever be provoked by threatening abusive or insulting words or behaviour to cause a breach of the peace but it is by no means impossible that such an officer may not feel harassed alarmed or distressed as a result of such words or behaviour This distinguishes the present case from Marsh v Arscott 5 5 First it must be noted that the precise statutory provisions applying in England and Wales are not identical to the Irish provisions Section 5 of the United Kingdom Public Order Act 1936 which was in issue in Marsh provided Any person who in any public place or at any public meeting uses threatening abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned shall be guilty of an offence However as noted above s 5 of the Public Order Act 1986 was in issue in Orum This section titled Harassment alarm or distress provides 1 A person is guilty of an offence if he a uses threatening abusive or insulting words or behaviour or disorderly behaviour or b displays any writing sign or other visible representation which is threatening abusive or insulting within the hearing or sight of a person likely to be caused harassment alarm or distress thereby 2 An offence under this section may be committed in a public or a private place except that no offence is committed where the words or behaviour are used or the writing sign or other visible representation is displayed by a person inside a dwelling and the other person is also inside that or another dwelling 3 It is a defence for the accused to prove a that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment alarm or distress or b c that his conduct was reasonable 5 6 In any event I am not satisfied that the somewhat absolutist view which is inherent in those English authorities represents the law in this jurisdiction It must of course be hoped that by virtue of their training and character members of An Garda Síochána would only act in a legitimate and proportionate manner when provoked It must therefore be hoped that the use of even outrageous behaviour to An Garda Síochána would not in fact provoke a breach of the peace involving the Gardaí themselves However as pointed out earlier the real question is not as to whether it is likely that a breach of the peace would in fact be provoked but rather whether such was the intention of the alleged offending party or whether the alleged offending party was reckless as to the consequences of his behaviour in relation to provoking a breach of the peace The fact that all responsible citizens might hope that the Gardaí would not respond to such behaviour by becoming themselves involved in a breach of the peace does not mean that there may not be circumstances where it is appropriate having regard to all of the facts to infer the appropriate intention or recklessness on the part of the accused 5 7 It is true in that context as counsel for Mr Clifford argued that one of the matters to be properly taken into account is the fact that the offending behaviour was directed to members of the Gardaí and the fact that it might be anticipated at least by many that the Gardaí would respond to such behaviour in a responsible way However that is but one of the factors to be taken into account It may be open to a decider of fact to conclude the necessary intent or recklessness notwithstanding that the only persons present and to whom the relevant behaviour was directed were members of An Garda Síochána It is by no means impossible to envisage circumstances where a person might readily be concluded to have intended to provoke the Gardaí to act improperly while at the same time concluding that it was in fact unlikely that those same Gardaí would have acted improperly 5 8 A similar point applies with even greater force in respect of recklessness Insofar therefore as it might be suggested that the English authorities to which reference has been made go so far as to suggest that an offence involving the provocation of a breach of the peace could not be committed where the only persons present were members of the police force I would not find such authority persuasive as to the proper interpretation of the law in this jurisdiction It seems to me that a case where the only persons present were members of An Garda Síochána is one where that fact needs to be taken into account by the decider of fact but is not one where necessarily the evidence must lead to a conclusion that the offence could not nonetheless be made out 5 9 Next it is necessary to note that there were members of the general public present on the occasion in question The evidence of course established that those members shied away from any possible confrontation However that fact of itself does not seem to me to be particularly relevant The question is as to the intent or recklessness of Mr Clifford rather than what the reaction to his behaviour actually was 5 10 Against that background it seems to me that it is appropriate to start with a consideration of the recklessness aspect of the offence The legal definition of recklessness is well settled The foremost authority on the concept is The People D P P v Murray 1977 I R 360 where recklessness is discussed in the context of capital murder It is important to note that the members of this Court in that case were discussing recklessness as to a concomitant circumstance of an act that being the deceased being a member of An Garda Síochána and not as here recklessness as to the consequences of an act 5 11 At p 402 Henchy J confirmed the subjective nature of the recklessness test by stating that the test of her guilt for capital murder as well as murder must be a subjective one The court of trial was not entitled to judge her by what a reasonable person would have done in the circumstances but it was entitled to evaluate what she did in the light of what she must have adverted to at the time 5 12 Like Charlton J in the High Court in the instant case Henchy J also referred to the Model Penal Code when attempting to define recklessness He stated at p 403 The test of recklessness in this context is well stated in the Model Penal Code s 2 02 2 c drawn up by the American Law Institute A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct The risk must be of such a nature and degree that considering the nature and purpose of the actor s conduct and the circumstances known to him its disregard involves culpability of high degree 5 13 A common thread running through the other judgments delivered in Murray is the importance of the concept of advertence At p 387 Walsh J contrasted intention with recklessness foresight of probable consequences must be distinguished from recklessness which imports a disregard of possible consequences The essential difference between intention and foresight on the one hand and recklessness on the other is the difference between advertence and inadvertence as to the probable result And at pp 421 422 Kenny J stated To prove that a person was recklessly indifferent it must be established that there were facts which indicated to the person concerned the possibility that the forbidden consequences might occur 5 14 Griffin J approved of the following passage from Glanville Williams book Criminal Law 2nd ed We have seen that the term recklessness as it has come to be used in juristic thinking means emphatically a mental state It has two distinct though related applications recklessness as to consequence and recklessness as to circumstance The element common to the two kinds of recklessness is the conscious taking of a risk The presence or absence of the fact the consequence or circumstance is not part of the actor s purpose but he chooses to ignore the possibility of the fact in order to pursue his purpose 5 15 These views were recently reaffirmed by this Court in The People D P P v Cagney The People D P P v McGrath 2008 2 I R 111 when considering the offence of endangerment contrary to s 13 of the Non Fatal Offences Against the Person Act 1997 At p 137 138 Geoghegan J stated 89 Where recklessness is a constituent of a criminal offence in Ireland the leading authority on its meaning is The People v Murray 1977 I R 360 The judgments of Henchy Walsh and Griffin JJ make it clear that the required mens rea for the purposes of recklessness as to consequences is subjective and not objective In particular Henchy J endorsed the American Law Institute definition in the Model Penal Code 90 It seems clear therefore that for the purpose of a count under s 13 based on recklessness as was the case here the accused would have had to consciously disregard a risk not of just causing harm but of causing serious injury or death 5 16 It therefore follows that the question which a decider of fact such as the District Judge in this case had to address is as to whether it was appropriate on all the evidence to infer that from Mr Clifford s perspective there was a substantial risk that a breach of the peace would be occasioned by his behaviour and that he went ahead anyway reckless as to the consequence 5 17 The fact remains that Mr Clifford on the evidence attended in the public office of a police station and engaged in highly abusive and significantly threatening behaviour directed in particular to a female member of An Garda Síochána He did so in the presence of a number of members of the public The question which must be asked is as to whether it was open to the District Judge to conclude that by so doing Mr Clifford acted recklessly as to whether there might be a breach of the peace by undertaking activity which it might be inferred from his perspective gave rise to a substantial risk that such a breach of the peace might be occasioned In reaching a conclusion on that question the District Judge was of course required to have regard to the fact that the persons against whom the abuse and threatening behaviour was directed were members of An Garda Síochána The District Judge was also obliged to take into account all of the circumstances surrounding the presence of members of the general public in the public office of the police station at Kilmainham on the occasion in question However it seems to me that Charleton J was correct in concluding that it was open to the District Judge in assessing all of the evidence to come to the conclusion that Mr Clifford was reckless as to occasioning a breach of the peace on the basis of concluding that there was in accordance with the authorities from his perspective a substantial risk that his activities would occasion such a breach of the peace but that he went ahead nonetheless 5 18 It does not seem to me that it is necessary to consider whether the District Judge could have come to any other conclusion It was for the District Judge to assess the evidence and reach such conclusions as were open to him on that evidence The only issue for the High Court and the only issue for this Court on appeal is as to whether an inference of recklessness in accordance with the authorities was open to the District Judge on that evidence 5 19 For the reasons which I have set out I am satisfied that while the District Judge was not necessarily constrained to find against Mr Clifford on that evidence it was nevertheless open to him to reach such a conclusion That being the only point of law which arises on the case stated so far as the public order offence is concerned I would propose answering the two questions raised by the District Judge under this heading by answering question a yes and by answering question b to the effect that a District Judge is entitled to infer recklessness as to the occasioning of a breach of the peace even where the evidence was that no such breach was in fact likely to occur in circumstances where the District Judge is satisfied that there was from the perspective of the accused a substantial risk that the behaviour of the accused in question would occasion such a breach of the peace and where the District Judge was satisfied that the relevant accused carried on with that behaviour notwithstanding that substantial risk 5 20 In those circumstances it is next necessary to turn to the offence in relation to failure to attend court on a date to which the accused had been remanded on bail 6 The Failure to Appear Charge 6 1 As noted in the case stated the prosecution case on this charge consisted solely of the evidence of Garda McLoughlin Garda McLoughlin gave evidence that after the incident at the garda station she had checked the PULSE database and discovered from same that there was an outstanding bench warrant issued in respect of Mr Clifford arising out of an apparent failure to appear in Court 44 on the 31st July 2006 Garda McLoughlin agreed under cross examination that she was not actually in court on that occasion She also agreed that she was not present when it was said that Mr Clifford had entered into the relevant recognisance which was said to have required him to turn up in court on the 31st July 2006 6 2 At the close of the prosecution case counsel for Mr Clifford sought a direction on the basis that there was no evidence on which it could be found that Mr Clifford had either entered into recognisances which required him to attend court on the 31st July 2006 or that Mr Clifford had not attended court on that date It is of course clear that both of those facts are essential to proving an offence under s 13 of the Criminal Justice Act 1984 as amended by s 23 of the Criminal Justice Act 2007 6 3 That section as amended provides as follows 1 If a person who has been released on bail in criminal proceedings fails to appear before a court in accordance with his recognisance he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding 5 000 or to imprisonment for a term not exceeding twelve months or to both 6 4 It seems clear that the legislative intent in enacting the section was to ensure that there might in an appropriate case be an additional penalty imposed on those who failed to answer bail The position which pertained up to that time was that on a failure to answer bail a bench warrant could be issued thus permitting the relevant person to be arrested and brought before the court Depending on the circumstances the court might remand the accused further either on bail most likely because some reasonable explanation for failure to attend was tendered or in custody if the court was not satisfied that any reason tendered for failure to attend was legitimate and became sufficiently concerned about the risk of the accused concerned not attending for his trial Either way no additional sanction was imposed on the accused The purpose of s 13 was to allow for an additional sanction above and beyond the accused being arrested and brought before the court to allow the process in respect of which he was originally charged and bailed to continue 6 5 Be that as it may the real question which arises here is as to the sort of evidence which must be tendered by the prosecution to establish both the fact of the accused having been bailed to attend on a particular date and the fact that the accused failed to attend on the date in question Once those facts are established it becomes a matter for the accused to put forward any explanation for failure to attend such as might satisfy the court not to convict 6 6 As appears from the case stated the relevant bench warrant which was issued on the 31st July 2006 was on the court file and it was submitted on behalf of the prosecution that the District Judge was entitled to take account of that bench warrant The first point made on behalf of Mr Clifford is that it was not open to the prosecution to place reliance on the bench warrant at all It is said that the bench warrant needed to be properly produced as part of the prosecution case I am not satisfied that that submission is well founded The District Court is a court of record

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