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  • abruptly withdrawn on the morning of the hearing 16th October 2009 with no proper or adequate explanation iii The learned High Court judge failed to properly consider that these proceedings were wastefully continued in circumstances where many opportunities were afforded to the respondent to withdraw before the appellants had incurred substantial costs iv The learned High Court Judge failed to take into account that this case was one of a category of cases a challenge to a decision of the Refugee Applications Commissioner which the High Court and the Supreme Court had ruled could only succeed in very rare circumstances and which case was unduly prolonged without proper justification for such continuance v The learned High Court Judge failed to consider that the solicitor for the respondent failed to properly comply with the High Court direction that was made to promote the active management of the list in circumstances where the failure to comply with the direction led to the wasting of court time and resources and was a dereliction of the solicitor s duty to the Court vi Such further and other grounds of appeal as the appellants may with leave of this Honourable Court seek to advance at the hearing of this appeal Submissions 20 Written and oral submissions were given to the Court Submissions on behalf of the Appellants 21 Extensive written submissions were filed on behalf of the appellants and were the foundation of the oral submissions Ms Moorhead S C counsel for the appellants pointed out that a day of High Court time was wasted on the 16th October 2009 Counsel stated that there was no suggestion that the solicitor for the respondent was grossly negligent but that Order 99 r 7 also covers breach of duty to the Court When Mr Byrne wrote the letter on the 10th July 2009 he said that the case involved fair procedures issues but when the submissions were lodged they did not deal with the narrow category of cases which were the exception under the law on challenging a Commissioner s decision This counsel submitted was misconduct Counsel said that if the case had gone to hearing on the 10th July 2009 an Order 99 r 7 order would not have been sought But it had been said that the respondents believed they had a case that they would argue it that it came within the exception to the law and on the morning of the hearing they withdrew it without explanation Counsel submitted that that was a breach of duty to the Court 22 In written submissions it was stated that the law on challenging ORAC s decision in judicial review had been well settled and was well known to Burns Kelly Corrigan Solicitors in April 2009 when these proceedings were issued It was submitted that the letter written on the 10th July 2009 was vague and set out no basis for the continuation of the case It was submitted that the High Court did not adequately consider the vagueness of the letter which appeared to be a pro forma letter Criticisms were raised as to the submissions filed on behalf of the respondent It was pointed out that when Clark J on the hearing date of the application stated that she did not see any issue in the case that had not already been determined in other cases the respondent s counsel sought an adjournment It was only when an adjournment was refused that the case was withdrawn and that no explanation was given Further it was submitted that the learned High Court judge did not consider the evidence of misconduct or default or negligence that could be inferred from the standard form letters sent by Burns Kelly Corrigan solicitors to the appellants in a large number of cases which showed that a failure to obey the rulings of the court in this case was not an isolated incident and they showed that the said solicitors failed to engage with the relevant case law It was submitted that the directions by the Asylum Judges had the important purpose to distinguish between those claims that had merit and those which had not and to free up the lists so that genuine stateable cases could be heard promptly There was evidence in the High Court that on the 26th June 2009 Burns Kelly Corrigan solicitors represented applicants in 282 ORAC cases which were awaiting hearing in the court lists Only 19 were withdrawn in June and July pursuant to the court direction although 6 were withdrawn in October either on the day of the hearing or shortly prior thereto It was submitted that this evidence was not considered in the High Court judgment It was also submitted that the respondent had limited means and that there was little or no prospect of ever satisfying an order of costs against her Also it was submitted that this Court should consider the fact that the respondent refused to avail of the offer in June to withdraw the case with no order of costs against her It was submitted that it was difficult to perceive of any ground on which this litigation was legitimately pursued It was submitted that the conduct of Burns Kelly Corrigan solicitors came clearly within the principles set out in O J v Refugee Applications Commissioner 2010 3 IR 637 and Idris v Legal Aid Board 2009 IEHC 596 in that the litigation was vexatious and wasteful It was submitted that the litigation had no purpose other than that of prolonging the process and postponing a final determination of the asylum application It was also submitted that a wasted costs order should be imposed as the conduct complained of falls within the principles of Myers v Elman 1940 AC 282 as explained by Lord Wright it was conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty to aid in promoting in his own sphere the course of justice Submissions on behalf of the Respondents 23 Feichín McDonagh S C counsel on behalf of the respondent relied on the written submissions filed It was submitted as this Court has frequently stated that when a judge of the High Court exercises his discretion in relation to an order for costs this Court is slow to intervene It was submitted that the learned High Court judge correctly identified the relevant legal principles and correctly determined that there was no reasonable basis in law upon which an award of costs should be made against the solicitor acting for the respondent Alternatively it was submitted that even if this Court were to hold that the learned High Court judge erred in law either in his interpretation of the law or in his analysis of the correspondence between the parties in particular the letter of the 10th July 2009 then any solicitor who shared the approach of the learned trial judge could not be viewed as acting in breach of his duty to the court in light of the subsequent vindication of his approach by a judge of the High Court even if that judge were to be held to have erred 24 In oral submissions counsel stated that the issue of the 282 cases of the solicitors firm was not opened in the High Court and if it had been opened there could have been an answer on the number of cases that had settled or were successfully litigated 25 In relation to the case before this Court it was said it was withdrawn with no explanation Counsel opened the affidavit of Brian Burns deposed on the 8th December 2009 where he set out the facts history advice of counsel and what happened in the list 26 Mr Burns referred to a series of cases and stated that it was not the view of his counsel that the cases including Kayode v The Refugee Applications Commissioner Unreported Supreme Court Murray CJ 28th January 2009 were finally decisive in relation to a significant amount of cases his firm initiated in respect of decisions of the Commissioner He described the process and plans for the listing of cases in the Asylum list He stated that the main point in contention then was the effect of the European Communities Eligibility for Protection Regulations 2006 S I No 518 of 2006 which incorporated into domestic law the provisions of Council Directive 2004 38 E C of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States OJ L 158 30 4 2004 It was decided to list in 2009 sequentially a number of cases before Cooke J Mr Burns deposed in his affidavit dated the 8th December 2009 By the 16th October 2009 several of the cases had been dealt with by Cooke J and any ones in which judgement had been handed down were unsuccessful Upon a review of the cases that had been dealt with it was becoming clear that some of the cases yet to be heard were so similar in nature to ones that had already been dealt with that it appeared to me and my Counsel that there was little point in proceeding with them as given the results of the ones already heard it was inevitable that they would be lost and indeed that it would be an inefficient use of court time to hear same in the circumstances That was the view taken by myself upon counsel s advice at that juncture In that light instructions were taken from the respondent in the case of 0yenuga the within case and instructions were given to seek to adjourn the case and if that proved unsuccessful to withdraw same It was hoped that as had been the previous practise of the High Court on frequent occasions that if a case was withdrawn in the asylum list even as late as the morning of the hearing that no order for costs would be made This was a practise so far as I am aware introduced by his Honour Judge Birmingham when he had been previously in charge of the asylum list and continued to some extent by Judge Hedigan the idea being that unless an Applicant had an incentive to withdraw their case there would be no reason to withdraw and time would be taken up unnecessarily It was in this context that on the morning of the hearing the 16th October 2009 Mr Ian Whelan B L for the respondent applied initially for the matter to be adjourned and when that application was refused withdrew the case and the question of costs left over to a later date No indication was given at that juncture by the opposition that any application would be intended to be made on the basis of Order 99 Rule 7 of the Rules of the Superior Courts Indeed the first indication of this was contained in the letter of the 6th November 2009 Several of the other cases listed subsequently were also withdrawn and costs were ordered to be paid with an order for costs in favour of the Respondents I should say at this juncture that advices had been given on an informal basis by Senior Counsel in relation to the consideration of the possibility of applying for a certificate pursuant to Section 51 of the Illegal Immigrants Trafficking Act 2004 to appeal one or more cases to the Supreme Court In fact a definite decision was later reached to apply for a certificate in relation to two of the cases involved Igbinoba and Rajib one of which my firm was not the Solicitor on record for namely Igbinoba A decision had been made to apply for a certificate in relation to these cases but on or about the 6th November 2009 judgement was handed down in the case of Olunloyo by Cooke J which had been the first case of the series heard As a result of further considerations by Junior and Senior Counsel in the light particularly of the Olunloyo decision it was decided ultimately not to make any application for a Certificate This decision was arrived at on Wednesday 18th November 2009 the day Justice Cooke had fixed at the request of the Applicants a time for application for a certificate In the circumstances no application for a certificate was made Counsel for the appellants subsequently indicated that in other cases no order for costs would be sought where the cases were withdrawn on or before the 9th December 2009 and I am currently obtaining instructions from numerous clients in relation to the said offer and anticipate that a substantial number of cases will be withdrawn to take advantage of the offer in the circumstances that have now arisen The above is the general background to the position that is now current and I set out hereunder my response firstly to the Affidavit of Majella Donoghue filed herein In relation to Paragraphs 3 and 4 of the Affidavit of Majella Donoghue I say that the facts therein are true and accurate but the interpretation of the law is a matter for legal argument in any particular case In relation to Paragraph 8 of the said Affidavit under reply I say that Notice of Appeal to the Refugee Appeals Tribunal was lodged without prejudice to the application for Judicial Review I say that reliance was being placed in this case and intended to be placed in all of the other cases against ORAC listed in the current term on the fact that the Statutory Instrument applied to the particular decision and that there was no application of the said regulations applicable in the cases comprising what is described as the Kayode Nganzunu line of case law In relation to Paragraph 9 of the Affidavit under reply I say that my advice from Counsel was that in view of the judgments already given and the cases that had already been heard and the general impression that there were more than enough test cases and being conscious of the scarce resources of the Court together with our duty to act responsibly that it would be well to adjourn some of the cases given that the facts and arguments did not differ significantly This advice was partly on the basis of the Okoh judgement sic handed down that day My instructions from my client in the light of that advice was to withdraw the case unless an adjournment would be granted With regard to Paragraph 10 of the Affidavit under reply I say that on the 16th October 2009 the Applicant s Counsel Mr Ian Whelan indeed agreed that there did not appear to be an issue in the case which had not already been decided by a number of cases This I am informed by Counsel referred as far as Mr Whelan was concerned to cases which had been heard this term i e the test cases In relation to Paragraph 12 of the Affidavit under reply I say that the so called Kayode principles were not applicable to this case insofar as these cases were distinguishable by virtue of the statutory instrument point I say that the letter of the 10th July 2009 from my firm to the Chief State Solicitor exhibited in the affidavit under reply does seek to explain why this case fell outside those principles in that regard I say that it is correct to say that in a number of similar cases costs have been awarded to the Respondents but no application has been made to date pursuant to Order 99 Rule 7 of the Rules of the Superior Courts and no indication was given until 6th November 2009 that such application was intended to be made 27 Murray J pointed out that the Kayode principles were not relevant 28 Counsel for the respondent referred to the issue of the withdrawal of the case without sufficient explanation and argued that that was not misconduct He stated that they had answered this in their explanation He submitted that in a wasted costs case one must identify action or actions of a solicitor that are grossly negligent He submitted that the reasons a case may be withdrawn may be connected to client privilege He pointed out that they were not required to give a full explanation when withdrawing the case He submitted that it was unsatisfactory when a court day is lost but that what happened here was not misconduct by a solicitor who was acting on the advice of counsel Decision 29 This case was one of many hundreds in the Asylum list On the 15th June 2009 a practice direction was issued and applied by the judges of that list as to asylum cases against the ORAC It permitted judicial review cases to be withdrawn with no costs awarded against the applicants The respondent did not wish to withdraw her case and in a letter of the 9th July 2009 the solicitors for the respondent pointed to that fact and further that the case could be distinguished from recent cases 30 Having referred to the practice direction the letter of the 9th July 2009 from the solicitors for the respondent stated We are instructed by our client through her next friend that she wishes to proceed with the hearing of her application for leave to apply for Judicial Review in the above proceedings We would point out that it is our view that this case may be distinguished from the various recent cases relating to challenges by way of Judicial Review to decisions of the Refugee Applications Commissioner We refer to the decisions in the High Court cases of Nganzumu Diallo Akintunde Ajoke Nnauma and the Supreme Court decision in the case of Kayode As we see it the common factor running through these cases is that there was

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  • or suspension and c provide for the giving of such security as may be specified therein i to the road authority by any other party to the agreement or ii by the road authority to any other party to the agreement in relation to the carrying out and observance by that party or authority of the terms and conditions of the agreement 3 A road authority may with the consent of the Minister enter into an agreement with a party with whom it has entered into a previous agreement under this section amending the terms or conditions thereof adding thereto or deleting therefrom terms or conditions or revoking the previous agreement 4 Entry into an agreement under this section in relation to a regional road or a local road shall be a reserved function 5 The parties to an agreement under this section shall carry out the agreement in accordance with its terms and conditions and a road authority shall have all such powers as may be necessary for that purpose 10 It should be noted that sub section 1 expressly provides that an agreement may provide for the payment to or retention by the person of all or part of the proceeds of tolls in respect of the toll road the subject of the scheme That is precisely what is achieved by the agreements made between the two appellants and the National Roads Authority 11 This Court in Dublin County Council v Westlink Toll Bridge Ltd 1996 1 I R 487 held that tolls collected under the statutory regime are rateable It was dealing with the old rating legislation but it is not suggested that the Act of 2001 affects that determination The appellant in that case as it happens the first named appellant in these appeals claimed that the toll was not a rateable hereditament for the purposes of s 63 the Poor Relief Ireland Act 1838 which listed tolls The appellant was in the view of this Court in occupation of the tolls as a result of an agreement with Dublin County Council O Flaherty J with whom Hamilton C J and Barrington J agreed approved the holding of Geoghegan J in the High Court that when an agreement under s 9 of the Act of 1979 in effect the predecessor of s 63 of the Act of 1993 that agreement may have the effect of ousting for a particular period the power of the Council to collect tolls and conferring it instead on the other party to the agreement Geoghegan J had held that this had happened in the instant case The Court did not of course have to consider the point which arises here which relates to the calculation of the net annual value of the property and thus the amount which will have to be paid in rates 12 The Valuation Act 2001 deals with the question of net annual value Section 48 1 provides The value of a relevant property shall be determined

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  • a tax Charges can be specific to a particular property and or owner They need not be quantified in advance A clear example is presented in those charges that can be levied by a statutory authority where there is a failure by a landowner to take steps to remedy an unlawful state of affairs and the relevant authority has to take appropriate remedial measures the cost of which are to be recouped from the defaulting owner Recoupment may be facilitated by a statute deeming that the amount in question is recoverable as a simple contract debt see for example Derelict Sites Act 1990 s 11 5 Roads Act 1993 s 70 10 Waste Management Act 1996 s 56 2 In my view such a statutory obligation to pay cannot be classified as a tax but can be readily described as a charge payable by or under enactment in respect of the property 27 The term charge is a broad one English authorities provide guidance on the interpretation of clauses in leases requiring the lessee to pay or indemnify the lessor in respect of charges imposed on the demised property where a local authority pursuant to statutory powers as described above sought to recover a portion of the cost of doing specific works from the lessor 28 In Hartley v Hudson 1879 4 CPD 367 there was a covenant which required a lessee to pay all rates taxes charges and assessments whatsoever which now are or may be charged or assessed upon the said premises or any part thereof or upon any person or persons in respect thereof Pursuant to the United Kingdom Public Health Act 1848 Stockport Corporation directed the lessor to pave and lay sewers under the street abutting the premises When he failed to do so it carried out the works and required him to pay a proportion of the cost The judge observed that both limbs of the covenant were satisfied as it affected both the premises and the lessor personally He held Now these expenses paid by the plaintiff were incurred in respect of the demised premises and by the terms of the above section were a charge upon the premises until payment The fact of the plaintiff paying them because he was compellable by law to do so does not make them any the less a charge on the premises within the meaning of the covenant in the lease and hence I am of opinion that the plaintiff is on this ground entitled to recover see also to the same effect Smith v Robinson 1893 2 Q B 53 29 Outlining the principles of construction outlined earlier it is not necessary to go so far as to contend that the terms deployed by the legislators in s 48 3 of the Act of 2001 are ambiguous when it comes to the usage of the word charges A strong case can be made that they are in fact ambiguous It is unnecessary however to go that far One turns next to the connection between the statute and the contracts Comparison between the statute and the contracts 30 An examination of the terms of the two contracts demonstrates the extraordinarily close linkage between them and the provisions of s 63 of the 1993 Act I do not think this can be a coincidence Section 63 1 provides that the road authority may enter into an agreement with another person What are these but agreements entered into with such a person that is to say the appellants The agreements referred to in the Statute must set out the terms and conditions of the contract They do so The conditions are to include provision as to the payment to or retention by the person of all part or proceeds of tolls in respect of the toll roads That provision is made Under an agreement referred to in the section the proferee may do any or all of the following a pay some or all of the cost of the construction of the road b pay some or all of the cost of maintenance of the road c construct or join or assist in the construction of the road for or with the authority d maintain or join or assist in the maintenance for or with the authority e provide manage and operate a system of tolls in respect of the use of the road for or with the authority f Such other things connected with or incidental or ancillary to or consequential upon the foregoing as maybe specified in the agreement All of these potential options were provided for in the respective agreements 31 Were all this not sufficient s 63 2 provides that Without prejudice to the generality of subsection 1 an agreement may a provide for the application of the proceeds of tolls systems of accounting for tolls collected and the methods and times of payments of proceeds of tolls to the persons to whom to they are to be paid under the terms of the agreement What can the agreement be other than an agreement entered into under the section In my view this allows for only one answer The agreements in question were made under s 63 of the Roads Act 1993 The conclusion is further supported when one comes to s 63 5 There it is provided The parties to an agreement under this Section shall carry out the agreement in accordance with its terms and conditions and a road authority shall have all such powers as may be necessary for that purpose Again it will be noted the phrase agreement under this Section is deployed The duties are imposed on both parties to comply with the agreement I do not think it can be said this provision is otiose Nor do I think it can simply be seen as been an enabling provision conferring vires on the National Road Authority It goes much further It imposes a statutory duty on both parties to an agreement made under the section The United Kingdom legislation 32 In his careful and thoughtful judgment the learned trial judge refers to passages from Ryde on Rating and the Council Tax Issue 44 London Butterworths 2008 relating to the term all usual rates and taxes This formulation is to be found contained in Schedule 6 para 2 1 of the United Kingdom Local Government Finance Act 1988 This provision provided The rateable value of an non domestic hereditament shall be taken to be an amount equal to the rent at which it is estimated the hereditament might reasonably be expected to let from year to year if the tenant undertook to pay all usual tenants rates and taxes and to bear the cost of the repairs and insurance and other expenses if any necessary to maintain the hereditament in a state to command that rent The observations which are contained in that learned text must be interpreted as being referable and referable only to the United Kingdom provision which is not the same as s 48 3 of the Valuation Act 2001 on this point I am unable to agree that the terms of the English Act simply had a slightly different wording from the Irish provision It seems to me that the distinction between the two provisions is fundamental on the very point upon which this case hinges that is the use of the words all rates and other taxes and charges if any payable by or under enactment in respect of the property Conclusion on the primary issue 33 It follows from the above analysis that I must conclude that learned trial judge misdirected himself in law on this point This conclusion is in itself sufficient to be determinative on this aspect of the appeal Accordingly as was found by the Valuation Tribunal I am of the view that the revenue share falls to be regarded as a charge payable by or under any enactment in respect of the property within the meaning of s 48 of the 2001 Act and is properly deductible in the calculation of the net annual value of the relevant properties in question It also follows therefore that I do not consider that the contracts are simply a restrictive covenant or a private arrangement Some additional observations on the primary issue 34 I would wish to add one or two observations however The Valuation Tribunal had reached separate and independent determinations on two discrete issues The Tribunal held a Under the relevant principles of rating law the revenue shares should not have been included when calculating Westlink s gross receipts for the purpose of ascertaining through recourse to the Receipts and Expenditure Method of Valuation the net annual value of the relevant property and b In any event the revenue share is a charge payable by or under an enactment within the meaning of Section 48 of the Valuation Act 2001 which must be deducted when calculating the net annual value Thus far this judgment has addressed the latter of those determinations that is b above The appellants contend that the learned trial judge did not approach or decide these issues separately but fused his analysis as a consequence of which they contend he fell into error 35 While the issue did not arise in the instant case it is important to point that the learned authors of Ryde point out at para E 622 that any restriction on the profit making capacity of a particular property imposed by law does have to be taken into account but where the restriction arises by means of a private arrangement it is not to be taken into account in rating calculations The authors states Where an undertaking is occupied in order to earn profits those profits may be said to be limited by statute in two ways vis 1 by a limitation of the charges which the trading occupier can make as between him and the public 2 by an appropriation of the whole or part of the profits when earned to particular objects It is clear from the cases above cited in particular Port of London Authority v Orsett Union Assessment Committee 1920 AC 273 that limitations of the former kind must be taken into account but limitations of the latter kind must not 36 In support of these observations the learned authors cite two cases 1 Rhymney Railway Company 1869 L R 4 Q B 276 and Brecon Markets Company v St Mary s Brecon 1877 36 L T 109 While the question did not fall for determination in the appeal it is arguable that by reference to the statutes and to the contract the provisions fall within the definition of a limitation of profits clause which the trading occupier is entitled to make as between him and the public Consequently it might be said that limitations of this type may be taken into account I express no concluded view on this question however 37 The second observation must be prefaced by the acknowledgement that the identification of the most appropriate method of determining the net annual value is a question of fact and not a question of law see Mersey Docks and Harbour Board v Birkenhead Assessment Committee 1901 AC 175 180 Roadstone v Commissioner of Valuation 1961 I R 239 and Eastlink Limited v Commissioner of Valuation VA 4 93 015 11th May 1998 paragraph 12 It is an established principle that no particular method of determination should be used to the exclusion of other methods the determination can be reached in whatever way is most suitable to achieve a fair balanced and equitable result see Commissioner of Valuation v Dundalk Gas Company 1929 I R 155 Roadstone v Commissioner of Valuation 1961 I R 239 In the exercise regard should be had to common sense and economic considerations the Roadstone case cited earlier and Irish Management Institute v Commissioner of Valuation 1990 2 I R 409 Finally profit earning ability is the basic element in determining the net annual value and it is based not on actual profits but on what the prospective tenant would anticipate would be his profits Rosses Point Hotel v Commissioner of Valuation 1987 512 at 515 cited in Eastlink paragraph 13 38 In Eastlink the Tribunal held that the tolls or the proceeds of tolls are in effect a flow of income that these are the hereditaments to be valued and the most appropriate method to be used in this case was one that is based on income and expenditure Hence the Tribunal s preference for the profits method 39 This method well established in rating law necessitates firstly ascertaining the relevant gross income second ensuring that both the proper costs of purchases and the expenses of earning the gross income are then deducted leaving one with an operating surplus or balance That balance is then said to be available for the allocation of tenant s share for the payment of rates and for the payment of rent adjusted for the appropriate year This becomes the net annual value 40 Whatever percentage might be appropriate as the tenant s share is intended to cover interest on the tenant s capital remuneration for his industry and compensation for his risk Its level must be sufficient to induce the tenant to take the tenancy of the hereditament in the first instance In this appeal but not at the Tribunal counsel for the Commissioner contended it would be absurd for the exercise to be carried out without the rent being added back He contended to do so would be to double count the rent at two places in the exercise 41 In line with decided authority referred to above I do not consider it is open to this court save in exceptional circumstances to interfere with the decision of the Tribunal on issues of fact No such exceptional circumstances are identifiable in these two appeals I raise the matter as it may be relevant in other future cases I should add that at the Tribunal the method of calculation was accepted both by the valuer for the Commissioner and the rate payer s valuers As the method of calculation was not an issue raised in the case stated I take the view that the Court is debarred from considering the point at this stage It was not argued before the Tribunal and it cannot be argued now I further explain my reason for this conclusion later in the judgment in the discussion on arguing new grounds on appeal to this Court My reasons are the same in each instance This question is not an issue of law arising on the case and this Court is not empowered to consider the issue now The cross appeal and the application to amend 42 As briefly outlined earlier the Commissioner appealed against the finding of the trial judge that the costs in maintaining the entire length 54 7km of road of the M1 were deductible in the calculation of the net annual value instead of the cost of maintaining the tolled stretch of the M1 motorway from Gormanstown Co Meath to Monasterboice Co Louth a distance of 21 74 km Having outlined the facts Charleton J stated at para 37 I find it very difficult to come to the conclusion that as there is a necessity to maintain the whole of the relevant property only the portion of it which offers the certainty of generating a toll should be subject to the statutory allowance in respect of maintenance As to what is and what is not the property in that state for the purpose of s 48 of the Valuation Act 2001 is a both a question of fact and a question of law No argument has been put before me that convinces me that the Valuation Tribunal is incorrect on this last point 43 The Commissioner filed a notice of cross appeal on the 6th October 2008 This sought an order determining that it is the tolls in relation to the stretch of the M1 motorway from Gormanstown Co Meath to Monasterboice Co Louth which is relevant property for purposes of the deduction for maintenance provided by s 48 3 of the Valuation Act 2001 and that accordingly it is only expenditure and maintenance on the stretch of the M1 motorway comprising the toll which is available for deduction under s 48 3 of the Valuation Act 2001 However in a notice of motion flagged beforehand but made returnable for the hearing the Commissioner sought to argue the following grounds of appeal in substitution for that identified just above An order determining that it is the tolls which is the relevant property for the purposes of s 48 3 of the Valuation Act 2001 and that accordingly the maintenance costs on the M1 motorway are not available for deduction under s 48 3 of the Valuation Act 2001 and in the alternative if some maintenance costs for the M1 motorway are allowable under s 48 3 then it is only expenditure on maintenance of the stretch of the M1 motorway from Gormanstown Co Meath to Monasterboice Co Louth 44 It can be immediately seen that the basis which the Commissioner was seeking to argue in the Supreme Court was at least as regards the first part of the amended or substituted ground of appeal entirely different from the case put before the High Court In essence he was seeking to argue that no part of the expenditure on maintenance on any part of the motorway was available for deduction under s 48 3 of the Valuation Act 2001 although as a fallback arguing for deduction on the basis of part only of the motorway This new argument was never advanced to the Tribunal The Commissioner did not depart from this stance during oral argument before the High Court Counsel for the appellant argues strongly that had that case been

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  • that the Section was unconstitutional would simply not arise and would naturally be dismissed On the alternative construction of the Section whereby the forfeiture was discretionary only the constitutional argument would simply fall away When the question of the true construction of the Section was addressed on behalf of the applicant he invoked what is called the double construction rule whereby the Court should adopt any available construction of the Statute which avoids a finding of unconstitutionality Section 224B 3 17 All legislation is expressed in words and in principle the meaning of legislation is that expressed in the ordinary and natural meaning of the words used In Ireland statutes are passed either in the national and first official language Irish or in English which is recognised as a second official language See Article 8 of the Constitution By reason of Article 34 an official translation of a statute passed in either official language must be prepared in the other official language 18 For ease of reference I now set out s 224B 3 of the Fisheries Consolidation Act 1959 as inserted by s 5 of the Fisheries Amendment Act 1983 first in English and then in Irish In each version phrases which seem to me to be of particular importance are underlined 3 A person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding 100 000 and as a statutory consequence of the conviction to forfeiture of all or any of the following found on the boat to which the offence relates a any fish b any fishing gear 3 Aon duine a dhéanfaidh iascaireacht nó a fhéachfaidh le hiascaireacht a dhéanamh de shárú ar rialacháin faoin alt seo beidh sé ciontach i gcion agus dlífear ar é a chiontú ar díotáil fíneáil nach mó ná 100 000 a chur air agus mar iarmhairt reachtúil ar an gciontú dlífear forghéilleadh a dhéanamh ar a bhfaighfear díobh seo a leanas ar an mbád lena mbaineann an cion a aon iasc b aon ghléas iascaireachta Penal Statute 19 It seems very well established that particular rules apply to the construction of penal enactments I agree with what is said in Dodd Statutory Interpretation in Ireland Dublin 2002 at para 11 54 There the learned author has this to say It is presumed that an enactment creating a penal or taxation liability or other detriment should be construed strictly so as to prevent the imposition of penal liability unfairly for the use of oblique or slack language CW Shipping v Limerick Harbour Commissioners 1989 IRLM 416 It is said that nobody should suffer a detriment by the application of a doubtful law and that a person should not be found guilty of a statutory offence where the words of the statute have not plainly indicated that the conduct in question will amount to an offence The principle may be applied so as to require the precise fulfilment of statutory conditions precedent to the infliction of punishment and requires strict observance of technical provisions concerning criminal procedure and jurisdiction The greater the penalisation the greater weight to be attached to the principle 20 In DPP Broderick v Flannigan 1979 IR 265 Henchy J said It is in my view a cardinal principle in the judicial interpretation of statutes that the range of criminal liability should not be held to have been statutorily extended except by clear direct and unambiguous words If the law makers wish to trench on personal liberty by extending the range of the criminal law they may do so within constitutional limitations but an intention to do so should not be imputed to them where the statute has not used clear words to that effect No man should be found guilty of a statutory offence when the words of the statute have not plainly indicated that the conduct in question will amount to an offence The requirement of guilty knowledge for the commission of an offence presupposes as much 21 I would add only that the same requirement for clear direct and unambiguous words extends to a penalty section as well as to a section which criminalises certain conduct 22 In Mullins v Harnett 1998 2IRLM O Higgins J approved the following quotation from the well known text book Maxwell on Statutes in the following terms According to Maxwell 12th Edition p 239 40 the strict construction of a penal statute seems to manifest itself in four ways in the requirement of express language for the creation of an offence in interpreting strictly the words setting out elements of an offence in requiring the fulfilment of the letter of the statutory conditions precedent to the infliction of punishment and in insisting on a strict observance of technical provisions concerning criminal procedure and jurisdiction It would appear that the principle applies not only to criminal offences but to any form of detriment At p 572 of Bennion the nature of the principle is stated thus Whenever it can be argued that an enactment has a meaning requiring the infliction of a detriment of any kind the principle against doubtful penalisation comes into play If the detriment is minor the principle will carry little weight If the detriment is severe the principle will be correspondingly powerful however it operates the principle requires that person should not be subjected by law to any sort of detriment unless this is imposed by clear words 23 In my view these principles underline and support the passage in the judgment of Kearns J in DPP v Moorehouse 2005 EISC 52 which is quoted in the judgment of Mr Justice Clarke in the present case 24 I consider that it is important in a case like the present where the construction of a statutory provision for a penalty is in issue to restate the well established and special legal provisions applicable to a statute

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  • in s 2 1 of the Fisheries Amendment Act 1978 was interpreted The Minister says that both of those judgments are authority for the proposition that the phrase shall be liable must be construed as imposing a mandatory penalty rather than merely identifying the maximum penalty which could be imposed However attention was also drawn on behalf of Mr Montemuino to a large number of offences where persons are said to be liable to a specific term of imprisonment on conviction where the relevant provisions have consistently been interpreted as providing for a term of imprisonment up to the amount specified but not necessarily of that amount Well known examples include the offence of assault causing serious harm under s 4 of the Non Fatal Offences Against the Person Act 1997 where s 4 2 provides A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or to both and the offence of theft under s 4 of the Criminal Justice Theft and Fraud Offences Act 2001 where s 4 6 provides A person guilty of theft is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both It would seem therefore that the phrase liable to may or may not depending on its context indicate a mandatory sentence or consequence or a maximum sentence 3 3 Next counsel for the Minister placed particular reliance on the fact that the language used in s 224B 3 specifies forfeiture as being a statutory consequence of the relevant conviction Attention was drawn to a number of other statutory provisions which use that language including ss 12 and 14 of the Fisheries Amendment Act 1949 and multiple examples in the Fisheries Consolidation Act 1959 It was argued that such language normally places the consequence concerned outside of the sentencing role of the judge dealing with a criminal conviction Rather it is said the use of such language renders a forfeiture or other similar consequence a statutory result of the conviction rather than forming part of the sentence to be imposed by the Court on conviction On that basis it is said that the consequence is mandatory rather than discretionary 3 4 Finally it is necessary to have regard to the fact that what is to be forfeited is all or any of the following which amounts to a reference to all or any of a any fish b any fishing gear The use of language such as all or any might on one view suggest that a choice was being given On the basis of that argument it is said on behalf of Mr Montemuino that if it had been intended that all fish and all fishing gear was to be forfeited then different language could and should have been used to make that clear It is of course the case that the word any can sometimes be used in a context which means all If I say that I will buy any apples which my local shopkeeper has for sale I might well be taken to be offering to buy his entire stock However in other contexts as the dictionary definitions of any to which reference was made in the course of the hearing demonstrate the word any can mean some of In that context it is necessary to have regard to the fact that the section uses the word all and the word any joined by the word or Or normally carries with it the concept of alternatives It seems to me to follow that the use of the term all or any at least brings with it the possibility that alternatives are being contemplated and in that context that any might mean some of as an alternative to all 3 5 Before going on to analyse the proper meaning of the section using ordinary canons of construction it is also of some importance to note certain general principles of European Union law It is clear that where European Union legislation does not itself provide for penalties it is for national law to specify the relevant penalties for breach of European Union measures However such national law must provide penalties which are equivalent to the penalties which would be imposed for like offences against national law and also must provide for effective penalties At para 62 of its judgment in Case C 167 01 Inspire Art 2003 ECR I 10155 the Court of Justice observed The Court has consistently held that where a Community regulation does not specifically provide any penalty for an infringement or refers for that purpose to national laws regulations and administrative provisions Article 10 EC requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law For that purpose while the choice of penalties remains within their discretion they must ensure in particular that infringements of Community law are penalised in conditions both procedural and substantive which are analogous to those applicable to infringements of national law of a similar nature and importance and which in any event make the penalty effective proportionate and dissuasive see also Case 68 88 Commission v Greece 1989 ECR 2965 paragraphs 23 and 24 and Case C 230 01 The Intervention Board for Agricultural Produce v Penycoed Farming Partnership 2004 ECR I 937 In order to assess whether a penalty is effective reference must be had to the definition in para 88 of the Opinion of Advocate General Kokott in Joined Cases C 387 02 C 391 02 and C 403 02 Silvio Berlusconi and Others 2005 ECR I 3565 where it was stated Rules laying down penalties are effective where they are framed in such a way that they do not make it practically impossible or excessively difficult to impose the penalty provided for and therefore to attain the objectives pursued by Community law 3 6 It would in those

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  • it creates an offence to prescribe what punishment shall attach to the commission of such offence It is also common ground that the Legislature may for a particular offence prescribe a single or fixed penalty or a maximum penalty or a minimum penalty or alternative penalties or a range of penalties 18 The then Chief Justice observed There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case The prescription of a fixed penalty is the statement of a general rule which is one of the characteristics of legislation this is wholly different from the selection of a penalty to be imposed in a particular case If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular case then a choice or selection of penalty falls to be made At that point the matter has passed from the legislative domain emphasis added In essence the Chief Justice is identifying here the principle of proportionality 19 What was determinative in Deaton was that the selection of the penalty was not in fact a judicial function that power lay with the executive This Court held that once there was a choice of penalty prescribed by the legislature any question of the exercise of that choice by the executive would be tantamount to an administration of justice by the executive and thus offend against the principle of separation of powers 20 As is accepted in Deaton the legislature may prescribe mandatory sentences in certain instances But as Ó Dálaigh C J explained a fixed or mandatory penalty suffers from the flaw that all citizens if convicted no matter what their circumstances must face the same penalty The Chief Justice observed that where the legislature prescribes a choice of penalties the rights of the citizens against the executive were to be safeguarded by an independent judiciary He explained The individual citizen needs the safeguard of the Courts in the assessment of punishment as much as his trial for the offence 21 By analogy from this it follows that if the Oireachtas can constitutionally prescribe mandatory sentences it may also prescribe certain other rules to govern the sentencing process It is important to emphasise that such rules can only be in the nature of parameters within which judicial discretion may operate 22 What the then Chief Justice emphasised in Deaton was the principle that the legislature cannot retain or transfer what properly lies in the judicial domain The legislature states a general rule the application of that rule is for the courts The degree of punishment which a particular citizen is to undergo for an offence is a matter which may vitally affect his liberty the identification of the degree of punishment is a function of the administration of justice The Chief Justice considered that it was inconceivable to my mind that a Constitution which is broadly based on the doctrine of the separation of powers and in this the Constitution of Saorstát Éireann and the Constitution of Ireland are at one could have intended to place in the hands of the Executive the power to select the punishment to be undergone by citizens It would not be too strong to characterise such a system of government as one of arbitrary power In my opinion the selection of punishment is an integral part of the administration of justice and as such cannot be committed to the hands of the Executive The further identification of these separate roles continued in cases which further delineate powers ascribed by the Constitution of 1937 These judgments invalidated any forms of sentence or penalty which bore the hallmarks of the royal prerogative or a role for the executive in the determination of the sentence to be imposed in a criminal case The State Sheerin v Kennedy invalidates a ministerial discretion in the selection of the terms of detention 23 Three years after Deaton in State Sheerin v Kennedy 1966 I R 79 this Court had to consider a statute which vested in the Minister for Justice the power to transfer incorrigible juvenile offenders from St Patrick s Institution to Mountjoy Prison and then to decide whether the offender thus transferred should undergo hard labour or not The Prevention of Crime Act 1908 actually vested a discretion in the Minister as to the precise nature and the place where the punishment was to be imposed This Court condemned this purported discretion as constitutionally impermissible This discretion was held to be a remnant of the royal prerogative which had been eliminated by the Constitution of 1937 Again one can see that one of the matters in issue was that the Act allowed the executive to determine punishment in an individual case rather than in a category or class The State O v O Brien condemns detention during His Majesty s pleasure 24 In The State O v O Brien 1973 I R 50 where a minor detained under a section of the Children s Act 1908 was ordered to be detained until the pleasure of the government be made known concerning him This Court condemned this form of order Walsh J pointed out that the formula during His Majesty s pleasure deployed in the statute of 1908 was constitutionally impermissible and that the effect of the constitutional changes since 1922 had been to vest the exercise of all judicial power in the Courts save where expressly otherwise provided for in the constitutional provisions themselves The distinction in Osmanovic v D P P 25 More recently issues quite akin to Deaton arose in Osmanovic v The Director of Public Prosecutions and Others 2006 3 I R 504 The question there was again whether the legislature had transgressed into the judicial domain by fixing a penalty contrary to the separation of powers doctrine Section 89 b of the Finance Act 1997 amended s 186 of the Customs Consolidation Act 1876 The impugned section provided inter alia that the penalty for conviction on indictment on charges of illegal importation of goods was to be a fine of treble the value of the goods including the duty payable thereon or 12 700 which ever was the greater or at the discretion of the court imprisonment for a term not exceeding five years or both the fine and the imprisonment 26 Relying on Deaton the applicants in Osmanovic unsuccessfully sought a declaration that the provisions were inconsistent with the Constitution as the fine imposed in the section was a fixed penalty contrary to the principles of the separation of powers In dismissing the appeal this Court pointed out the vital distinction between that case and the earlier precedents was that the fine provided for in the impugned section was not a fixed penalty at all It provided for a choice of penalties which could be imposed Thus it did not offend against the Constitution This Court emphasised that where a section provided for a choice of penalty the process of selection of that penalty to be imposed was to be made by the court in the exercise of the administration of justice Insofar as the further point was made that the Act contained an inherent discrimination on the basis of the fine being predicated on the means of the convicted person Murray C J speaking for the court on this issue held that the impugned provision did not constitute wealth based discrimination and that a judge in dealing with an impecunious accused might variously impose a custodial or suspended sentence as otherwise there would be no punishment In the case of a wealthy accused the imposition of a fine might also be a real option but there was no duty in law to impose any monetary sentence therefore an impecunious person could not be the subject of wealth based discrimination 27 Murray C J s observations on the range of judicial discretion are à propos in the instant appeal He pointed out at p 504 of Osmanovic There is clearly a multiple choice here Even within the power to impose a prison term there is clearly the implied power to suspend all or part of that term The prison sentence whether custodial or suspended or partly custodial and partly suspended may be the only sentence or may be combined with the fine The selection is entirely to be made by the court There is no question therefore of either the legislature or the executive fixing the punishment Only the court exercising its judicial power does that This court cannot accept that because there is a legislative prescription in relation to the fine option there is a breach of the principle of separation of powers 28 The general principle enunciated by Ó Dálaigh C J in Deaton proceeds on the basis that the individual citizen who commits an offence is safeguarded from the executive s displeasure as the choice of penalty remains in the determination of an independent judge This is so because the issue of selection of punishment is an integral part of the administration of justice and as such cannot be committed to the hands of the executive It was the very fact that the impugned statutory provisions or powers allowed the executive the choice of penalty of punishment regime or duration of sentence that rendered the impugned provisions in Deaton Sheerin and O inconsistent with the separation of powers doctrine contained in Article 6 of the Constitution 29 In its Report Mandatory Sentences the Law Reform Commission outlines the various forms which sentences of a mandatory nature can take Such sentences fall into three categories The first are mandatory sentences where there is no discretion vested in the sentencing court whatsoever The court must impose the fixed sentence as prescribed by legislation The life sentence for murder under s 2 of the Criminal Justice Act 1990 held to be constitutional in Lynch Whelan v Minister for Justice 2012 1 I R 1 falls into this category Second there are presumptive minimum sentences where a court must impose a sentence of prescribed minimum length unless there are exceptional and specific circumstances which would make such a sentence of the prescribed minimum length unjust in all the circumstances Certain offences under the Misuse of Drugs Act 1977 and the Firearms Acts are examples of this category The third category is where mandatory sentences are prescribed in the event of a person committing an offence on a second or subsequent occasion When the conditions for the imposition of such a sentence have been met then the sentencing court is obliged to impose a prescribed minimum sentence However some though not all of the legislative provisions providing for this category of penalty also allow a court to depart from the minimum term prescribed For instance s 25 3 of the Criminal Justice Act 2007 permits a court not impose the minimum sentence where it would be disproportionate in all the circumstances of the case 30 By contrast with these three categories there are sentences where by virtue of the status of the offender a court is obliged if imposing a custodial sentence to make such sentence consecutive to any other custodial sentence to be served Such sentences are limited to two categories first offences committed whilst on bail s 11 1 of the Criminal Justice Act 1984 as amended and second offences committed whilst serving a prison sentence s 13 1 of the Criminal Law Act 1976 This last category of offence is at issue in the present appeal Analysis of this case in light of the authorities thus far cited 31 How do the principles identified in the case law apply to the facts of this case In the first place to state the obvious the case made begs the question is there a logical infirmity in there being a sentence consecutive to a life sentence 32 A flaw in the case presented is that it presumes a sentence which imposes a term of imprisonment But what s 13 requires merely is that any custodial sentence if one is actually passed on a serving prisoner shall be consecutive to the term then being served It does not require that a custodial sentence be selected at all 33 But even ignoring that fallacy the effect of the section is actually to provide that in the event that a term of imprisonment is to be imposed on a prisoner such as the appellant by a sentencing judge such sentence will be consecutive to the term of imprisonment already being served Rather than being a situation where the executive has a role in selecting within a range of penalties therefore the provision merely stipulates that a sentence of imprisonment if imposed shall be consecutive to the sentence already being undergone The critical distinctions between the impugned provision and that in Deaton are instantly identifiable here the executive does not select the sentence it has no role in the trial process a sentence of a particular type or term is not mandatory No denial of the principle of proportionality in sentencing 34 One of the hallmarks of the exercise of judicial discretion in sentencing in the application of the overriding principle of proportionality Does the section impermissibly prevent the judge from applying this principle 35 By now it is well established that the distributive principle of punishment under our law requires that in general every sentence must be proportionate to the gravity of the offence and take into account the personal circumstances of the offender see Deaton Osmanovic and Lynch and Whelan v Minister for Justice Here the term proportionality is used in the sense of the judicial task of striking a balance between the particular circumstances of the commission of the offence and the circumstances of the offender to be sentenced 36 In sentencing proportionality only arises when the judge is exercising a judicial discretion as to sentence within parameters laid down by law Obviously the principle does not arise in the case of mandatory penalties The test of proportionality does however apply in every case where the offence on conviction carries a maximum as opposed to a mandatory sentence Thus it arises in any situation where a trial court has a discretion as to the particular penalty to be imposed within the statutory maximum sentence Turning to the section under challenge it is clear the proportionality test is as applicable to offences committed by serving prisoners as to others Were there to be a denial of the power to apply this principle there might indeed be discrimination between one category of prisoner and another But this is not the case 37 It is not open to the appellant to argue that by virtue of his status as a prisoner serving a lengthy term of imprisonment he will ipso facto be subject to a sentence which is either disproportionate or unduly severe This is because the impugned section does not in fact mandate any standard or minimum level of punishment in any given case For the purposes of a challenge to the constitutionality of the statute it must be presumed that any sentence imposed according to s 13 1 must be proportionate The constitutional duty of ensuring proportionality devolves on the judge in imposing sentences in these as in any other categories of offences If an offender considers that the sentences imposed are unduly severe he or she will have the right to appeal to the relevant appeal court in order to ensure any error in principle is cured The appellant actually availed of and benefited from the application of the principle of proportionality 38 The appellant s own history in fact shows that he has actually benefited from the appeal system The original 28 year sentence imposed on him in the Special Criminal Court was said to be disproportionate it was reduced to 20 years on appeal The consecutive sentence for assaulting a prison officer subsequently imposed on him in accordance with s 13 1 of the Act was also reduced on appeal The very fact of these reductions in sentence by application of the principle substantially undermines one of the foundations of the appellant s case It is difficult to argue that the principle of proportionality cannot apply when that principle has already been applied in the operation of the section under challenge 39 If the regime was such that the principle of proportionality could not apply to the appellant in relation to offences which do not hold the same gravity as murder then clearly constitutional considerations might well arise Deaton recognises that the legislature may constitutionally prescribe a mandatory sentence for a particular offence but that is because of the grave denial of rights involved in the crime of murder 40 Here it may be noted that Article 49 3 of the Charter of Fundamental Rights of the European Union provides The severity of penalties must not be disproportionate to the criminal offence The provision on its face appears to re iterate the general principle of proportionality between penalties and criminal offences which is applied in the common constitutional traditions of the member states and in the case law of the Court of Justice Very arguably it is an expression of the same principle of proportionality that applies to criminal cases in this jurisdiction Totality in sentencing 41 Can it then be said that the provision inhibits the application of the test of totality in sentencing This concept must be viewed only as an aspect of the fundamental principle of proportionality The totality concept is a form of check to ensure that where proportionate sentences are chosen for each offence the court may when appropriate adjust that overall sentence or the last sentence imposed in order to achieve proportionality

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  • be added a further period of 376 days which elapsed after the father s permission to remain in the State was renewed in 2007 and which D F A were also prepared to allow This period is said to have ended on the 23rd August 2008 The Birth Certificate says the child was born on Sunday 24th August 2008 If this is so the shortfall on which the minister relies seems to be only two days Statutory provision on the computation of periods of time 32 Section 18 h of the Interpretation Act 2005 provides as follows Periods of Time Where a period of time is expressed to begin on or to be reckoned from a particular day that day shall be deemed to be included in the period and where a period of time is expressed to end on or be reckoned to a particular day that day shall be deemed to be included in the period 33 In this case there appears to be two periods of time which require to be reckoned to a particular day The first is the period of four years laid down by s 6A 1 of the Irish Nationality and Citizenship Act 1956 as amended being the period of four years immediately preceding the person s birth The person s birth in this case took place on Sunday 24th August 2008 so it would appear that this day is reckonable The second period is the period of two years mentioned in the Minister s letter of the 7th July 2005 in which it was said that the Minister had decided to grant the father permission to remain in the State for two years until 07 07 2007 It would appear on the basis of the statutory provision cited above that both the period of time to which the two years is reckoned 7th July 2007 and the date on which that period begins 7th July 2005 are reckonable 34 It is true that s 18 of the Interpretation Act applies in its terms only to the construction of an enactment and only the four year period referred to above is specifically provided in a statute However I believe that the ordinary method of reckoning periods of time to and from a particular date or a date which is ascertainable is the same as that provided in the statute Also the letter of 07 07 2005 was written in the discharge of a statutory function and should not I think be construed other than in accordance with the Act of 2005 35 These periods accepted by the D F A when aggregated amount to 1092 days or thirty five months and twenty six days according to the Department of Foreign Affairs 36 Since the required period or aggregate of periods is three years or 1095 days the child is on the Department s computations three days short of the period which would secure him Irish nationality and an Irish passport The true shortfall appears to me to be only two days on the D F A figures because the effect of s 18 h 37 The Department of Foreign Affairs material exhibited makes no reference to the Department of Justice s 7th July 2005 letter or its later note that permission had been granted on the 7th July 2005 Perhaps they did not know of these documents But it is obvious from their calculation sheet that if the father s residency with permission were dated from that date he would meet the 1095 day threshold with ease 38 Accordingly the question in this case relates to the date on which permission was granted The genesis of the appellant s present view can be found in the computation sheet already referred to The first column reads passport number and under it the number of the father s passport is given The second column is entitled page number and this column contains the figure five 39 On page 5 of the father s passport under the title Visas there is a stamped endorsement in a quadrilateral box which says permitted to remain in Ireland until 40 There is then added in handwriting the words 07 July 07 This is followed by a signature which itself is followed by the stamped words for Minister for Justice Equality and Law Reform Underneath this in a separate box there is a date stamp 22nd July 2005 The kernel of the Appellant s case 41 The facts just set out are the origin and basis of the case argued on the part of the Minister in the High Court and also of the case argued on his behalf on this appeal which was a somewhat different one 42 The appellant is saying that notwithstanding the content of the letter of 7 July 2005 no permission actually came into effect until the immigration officer endorsed the stamps just described on the father s passport two weeks and one day after the Minister had granted permission The Minister says there was no permission until those stamps were placed on the passport He says that it is important for the administration of the immigration system that this should be so The infant respondent through his father says that this requirement is an invented one without any foundation in the statutes 43 It is necessary now to turn to the statutory provisions applicable to the child s application for a Certificate of Nationality in order to see what substance there is in the Minister s case These provisions are not intrinsically complex or difficult to understand But they suffer from the endemic fault of Irish legislation which is a failure to set out all the statutory provisions relevant to a particular subject matter in one place and a habit of introducing changes by insertion in older statutes so that the same Act may have several different forms Statutory provisions 44 The first important statutory provision is s 5 of the Immigration Act 2004 The relevant parts of this provision are as follows 5 1 No non national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act or a permission given under this Act after such passing by or on behalf of the Minister Emphasis added 2 A non national who is in the State in contravention of subsection 1 is for all purposes unlawfully present in the State 45 The significance of this provision will be discussed below when the provision in relation to the entitlement of an Irish born child to Irish citizenship has been considered 46 This involves a perusal of s 6A of the Irish Nationality and Citizenship Act 1956 as inserted by s 4 of the Irish Nationality and Citizenship Act 2004 The earlier Act now provides as follows at s 6A 1 A person born in the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has during the period of four years immediately preceding the person s birth been resident in the island of Ireland for a period of not less than three years or periods the aggregate of which is not less than three years Emphasis added 47 This is the claimed basis of the Minister s refusal 48 The Act goes on to provide at s 6B 4 inserted by s 4 of the Irish Nationality and Citizenship Act 2004 A period of residence in the State shall not be reckonable for the purpose of calculating a period of residence under s 6A if a it is in contravention of s 5 1 of the Act of 2004 Emphasis added 49 This last phrase is a reference to the Immigration Act 2004 Section 5 1 the text of which has already been set out 50 On the basis of the foregoing provisions only the precise point of difference between the infant respondent and the appellant begins to emerge the appellant says that the father has not three years residence in the four years immediately preceding the child s birth because he was resident here with the consent of the Minister for only 1092 days of that time as opposed to the required 1095 days The father says this is not so the plain terms of the permission given to him made even plainer by the documents obtained on discovery show that he had permission from the Minister himself since the 7th July 2005 and that there is absolutely no legal or statutory warrant for counting the period of his permitted residence only from the date when the immigration officer put a stamp on his passport The High Court upheld this point 51 The appellant sought to dispose of that objection by reference to s 4 1 of the Immigration Act 2004 This provides Subject to the provisions of this Act an immigration officer may on behalf of the Minister given to a non national a document or place on his or her passport or other equivalent document an inscription authorising the non national to land or be in the State referred to in this Act as a permission 52 The appellant also relies on the definition section of the Act of 2004 which provides that In this Act except when the context otherwise requires permission shall be construed in accordance with s 4 53 The appellant also relies importantly on the terms of the letter of the 7th July 2005 other than those set out above This letter in its entirety is set out in the judgment of O Donnell J The relevant provision for present purposes is the contents of the last full paragraph on the first page of the letter which provides as follows Please note that this letter is not in itself evidence of permission to remain in the State and should not be used for any purpose other than to register at your local registration office If you live in the Dublin region this is located at the Immigration Registration Office Garda Siochana 13 14 Burgh Quay Dublin 2 you will be presented with a certificate of registration which shows that you have been given permission to remain and which sets out the conditions on which you have been given permission to remain 54 This then is the basis of the appellant s case He says that the letter of the 7th July 2005 is of no evidential significance and even if it were could merely evidence a decision to grant permission No actual permission comes into being until the passport is stamped he says 55 I cannot agree that the letter of 7th July 2005 is without evidential effect It was proved by the infant respondent s father as being a statement of the Minister made on his behalf by a civil servant in his department No attempt has been made in evidence to deprive it of that character In it the Minister acknowledges that he has decided to grant the infant respondent s father permission to remain in the State for the period of two years ending on the 7th July 2007 The statement that this letter is not in itself evidence of permission to remain in the State is incapable of depriving of the letter of its manifest evidential significance just as an I O U is not deprived of its evidential effect by endorsing on it please note that this document is not of itself evidence of debt 56 In this connection it is instructive to look at s 9 of the Immigration Act 2004 which was relied on by the infant respondent Insofar as relevant this provides 9 1 A A register of non nationals who have permission to be in the State shall be established and maintained by registration officers in such manner as the Minister may direct 57 This process of registration is what is referred to in the paragraph just cited from the letter on the 7th July 2005 I say this with some confidence as there is no other process of registration which could be in question What is of interest for present purposes is that the register is not a register of non nationals in general but a register of non nationals who have permission to be in the State Since this is the defining characteristic which gives rise to the requirement to register it appears to me to follow that that registration is not also the process creating the state of having permission This section is further discussed below 58 We have already seen that in October 2008 the infant respondent s father applied for an Irish passport in the child s name and received a rejection of this request dated the 31st October That letter and the enclosure showing the calculation of reckonable residency have been explained and discussed 59 It appears to be at this stage that the infant respondent s solicitors Messrs Kelleher O Doherty first became involved They complained very coherently to the Department of Foreign Affairs and represented the infant respondent doughtily thereafter In response to their complaint to the Department of Foreign Affairs they received a letter dated 27th March 2009 This letter sets out the appellant s case in some considerable detail Of particular relevance is the third sentence from the end of the letter which reads the lawfulness or otherwise of a period of residency outside the validity of stamps issued by the Garda National Immigration Bureau and whether or not these periods are reckonable under the terms of the 2004 Act are both immigration and citizenship matters As these matters fall within the responsibility of the Department of Justice it is open to your client to pursue these issues with that Department 60 In other words the D F A having devised the theory which allows the child s passport to be refused was now referring the problem back to the Department of Justice 61 The Solicitors did indeed take up the matter with the Department of Justice and that Department replied in August 2009 in a letter whose relevant portion reads For certain non nationals periods of lawful residence only commence when an officer of the Garda National Immigration Bureau decides to issue a stamp on the basis of checks carried to ensure that a person is still meeting all the conditions that would allow them to remain The requirement to a new GNIB registration at regular periods allows for greater control over the immigration process and is a matter of vital importance in calculating reckonable residence Lawful residence can only be proved by a thorough examination of the Garda National Immigration Bureau stamps Emphasis added 62 If this represents the law then the Minister must succeed and the infant respondent has no case at all But the infant respondent points out that the vital statutory provision is s 5 1 of the Act of 2004 For the purpose of that Section it is sufficient that one of the applicant s parents should have been resident in the State in accordance with a permission given under this Act after such passing by or on behalf of the Minister The Section makes no mention of permission only coming into being when a passport is stamped The Minister s case as pleaded and as presented 63 The basis on which the Minister claims to be entitled to refuse Certificate of Nationality to the infant respondent is set out in para 2 of his Statement of Opposition dated the 28th January 2010 The applicant s father was granted permission to be in the State by an immigration officer placing an inscription or stamp on her sic passport on the 22nd July 2005 The period from the 22nd July 2005 to the 7th July 2007 was reckonable 64 Accordingly as mentioned above the Department calculated that the infant respondent s father had only 1092 days of residence with the Minister s permission in the period reckoned to the child s birth whereas he needed 1095 if he was to confer a right to citizenship on his son This is the point on which the appellant has taken his stand The slightly lower figure is produced by the D F A by a very simple process they exclude from the computation of permitted residence the time between the Minister s decision and letter of the 7th July 2005 and the immigration officer s stamping the passport on the 22nd July 2005 This was the date when the father produced himself to register under s 9 of the Immigration Act 2004 discussed below 65 The argument advanced by the appellant to justify this exclusion originally and very surprisingly was that the Minister himself had no power to grant permission to remain in the State See para 23 of the appellant s submissions It was said that only an immigration officer could do this This is manifest nonsense s 5 of the Act of 2004 which requires a non national with certain exceptions to have permission to remain in the State actually refers to a permission granted by or on behalf of the Minister 66 The appellant himself seems eventually to have realised this because in the oral submissions in this Court in November 2012 he conceded for the first time that he has and his predecessors had power to grant permission to remain in the State But he said in this case the Minister had voluntarily refrained from exercising this power and left it to an immigration officer This view of events was advanced in legal argument but no evidence by affidavit or otherwise was advanced to support the proposition that the Minister had actually taken that view of this case at any stage of the process The departmental notation naming the 7th July 2005 as the day on which permission to remain was granted was simply omitted from this

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/129c2854ebab3c2e80257adb00509627?OpenDocument&TableRow=2.1 (2016-02-09)
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  • 07 July 07 and a signature for Minister of Justice Equality and Law Reform The words 07 July 07 and the signature were in handwriting This stamp was accompanied by another stamp of the Garda National Immigration Bureau dated the 22nd of July 2005 being it appears the date upon which that stamp was affixed to the passport 7 While it has become apparent that there is substantial dispute as to the commencement of the date of the permission granted to Mr Sulaimon to remain in Ireland there is no doubt about its expiry date the 7th July 2007 In advance of the expiry of that permission Mr Sulaimon applied for renewal of his IBC 05 Irish Born Child 05 Scheme permission to remain in the State On the 7th June 2007 a Ms Bernie S Maguire from the IBC unit of the Irish Naturalisation and Immigration Service in the Department of Justice Equality and Law Reform wrote to Mr Sulaimon returning his passport to tell him that the matter was under consideration The operative part of that letter read as follows I am directed by the Minister for Justice Equality and Law Reform to acknowledge receipt of your Application for renewal of your IBC 05 permission to remain in the State on the basis of your parentage of an Irish born child Please find the following original documents returned herewith Applicant s passport No A1355693 Should your current leave to remain within the State expire while your renewal application is under consideration you are advised to contact your local Garda National Immigration Officer to have your current permission to remain extended You will require this acknowledgement letter your passport and your GNIB Card This applies only to those who require evidence of entitlement to remain in the State for employment social welfare and travel purposes We will write to you when a decision has been reached in your case and all other original documentation submitted with your IBC 05 renewal application will be returned to you at that stage 8 Thereafter on the 23rd of July 2007 a Mr John B Brady from the same unit wrote to Mr Sulaimon informing him of the success of his application The operative provision of the letter read as follows As an exceptional measure I am to inform you that the Minister has decided to renew your permission to remain in the State for a further three years until the 7th day of July 2010 subject to the results of enquiries as to whether you have obeyed the laws of the State or been convicted of any offence and have not been involved in criminal activity The following conditions will apply to your permission to remain in the State That you will reside continuously in the State that you will take an active role in the upbringing of your Irish Born Child that you will obey the laws of the State and will not become involved in criminal activity that you will make every effort to become or to remain economically viable in the State by engaging in employment business or a profession that you will take all steps such as appropriate participation in training or language courses to enable you to engage or to remain in employment business or a profession that you accept that the renewal of your permission to remain does not confer any entitlement or legitimate expectation on any other person whether related to you or not to enter or remain in the State Please note that your permission to remain in the State will only become operative when you have registered at your local Registration Office If you live in the Dublin Region this is the Immigration Registration Office Garda Immigration Bureau 13 14 Burgh Quay Dublin 2 If you live elsewhere you should register at your local Garda District Headquarters Station When you apply to register at the appropriate Registration Office the Garda National Immigration Bureau will make enquiries to ascertain whether or not you have obeyed the laws of the State whether or not you have been convicted of any offence and whether or not you have been involved in criminal activity In the event that information comes to light indicating you have not met any of these requirements the Garda National Immigration Bureau will not register the renewal of your permission to remain in the State and your file be referred back to the IBC Unit in INIS for whatever action is deemed appropriate This may include the refusal of your application for renewal of your permission to remain in the State In the event that this occurs you will become illegal in the State and your file will be referred to the Immigration area of INIS for whatever action is deemed appropriate Provided that the Garda National Immigration Bureau is satisfied that you have met the above requirements upon payment of the appropriate fee of 100 you will be issued with a Certificate of Registration This Certificate will show that you have been given permission to remain in the State and will set out the conditions attached to this registration The Certificate is an important document and you should guard it safely The Certificate of Registration will entitle you to work in the State without the need for a Work Permit and will entitle you to set up a business without seeking the permission of the Minister You permission to remain in the State may be revoked for the following reasons if you do not comply with the conditions set out in this letter or if you are found to have provided false or misleading information in the course of you application for renewal of permission to remain in the State or if you are found to have provided false or misleading information in the course of your application under the revised arrangements announced on 15 January 2005 under which your prior permission was granted This list is not exhaustive It does not set out all the reasons for which permission to remain may be revoked Yours sincerely 9 These two letters together with the letter of the 23rd of July 2005 were the subject of protracted debate during the course of this appeal None of them are clear as to the legal situation Of the letter of the 7th June 2007 it can be said that it seems to imply although not state explicitly that on expiry of the permission Mr Sulaimon would be unlawfully in the State unless that permission was extended which extension could be effected by a Garda National Immigration Officer On the other hand the letter seemed to suggest that this applied only to those who required evidence of entitlement to remain in the State suggesting perhaps that it would be lawful to remain pending determination of the application Mr Sulaimon has sworn an affidavit stating that he did not require such evidence for any purpose since he had no intention of travelling and his current employer did not require him to obtain a temporary extension of his permission The position of someone in that situation is accordingly somewhat ambiguous at least under the terms of the letter This is made more complex by the fact that s 5 2 of the 2004 Act contemplates that a person without a permission will be unlawfully within the state but does not make that status an offence in itself 10 The letter of 23rd July 2007 is at the outset broadly consistent with that of the 7th July 2005 It too implies that i a decision has been made ii by the Minister iii to renew the permission iv the renewal was for a further three years until 7th July 2010 and accordingly must have commenced on the expiry of the first permission on the 7th July 2007 However the letter is somewhat confused and confusing The sentence please note that your permission to remain in the State will only become operative when you have registered at your local Registration Office is a departure from the format in the 2005 letter and implies some conditionality on the coming into force of any permission This is perhaps also to be inferred from the reference to the decision being subject to the results of inquiries as to whether the applicant was involved in any criminality On the other hand the reference to inquiries by the GNIB is itself instructive The GNIB is not empowered to refuse or revoke any permission All it can do is refuse registration and refer the matter back to the IBC unit in the Department of Justice The Department might then refuse the application for renewal of permission The next sentence In the event that this occurs you will become illegal in the State seems to suggest that it would only be then however that the recipient of a letter in these terms would become illegal within the State which implies that a permission of some sort had been given There is thus a significant ambiguity in the letter as to the precise point at which it can be said that a person becomes lawful within the State This ambiguity may only rarely become significant in the case of any individual applicant but may become crucial when in a case such as this the precise period of permitted lawful residence must be identified In the event Mr Sulaimon duly attended at the Immigration Registration Office on the 14th of August 2007 and his passport was then stamped in the following terms permitted to remain in Ireland until 07 July 2010 J Sergeant for Minister for Justice Equality and law Reform Date 14th August 2007 The words 07 July 2010 J Sergeant and 14th August 2007 were in handwriting 11 Two additional pieces of information should be noted First the applicant sought discovery which was exhibited in this case and relied on without objection That showed a departmental submission from Patrick Quinlan on the 7th July 2005 who it will be recalled was the signatory of the letter of the same date issued to Mr Sulaimon in respect of his permission to remain in Ireland The submission recommended that Fatai A Ayimla Sulaimon should be granted permission to stay in the State for two years That document does not show that the recommendation was accepted by the Minister but on the hearing on this appeal it was accepted on behalf of the State that there existed a document to that effect It seems possible that the acceptance of the recommendation was simply endorsed on another copy of the same submission Second when the application in 2007 was made for renewal of the permission to remain in the State that too received a positive recommendation on the 23rd of July 2007 that Fatai A Ayimla Sulaimon should be granted a renewal of his permission to remain in the State for a further three years That document also contained the following statement date of permission to remain under IBC 05 granted 07 07 2005 12 The view taken of the application by the Department of Foreign Affairs in accordance with guidance given by the Department of Justice was that the reckonable period of permitted residence in accordance with s 5 1 of the 2004 Act was only that period between the date of endorsement of each permission upon Mr Sulaimon s passport and the expiry of that permission This meant that the period ran from the 22nd July 2005 to the 7th July 2007 and the 14th of August 2007 to the 7th of July 2010 The period of reckonable residence prior to the birth of the infant applicant on the 24th of August 2008 totalled 1 092 days 3 short of the statutory requirement The reasoning was if not simple at least discernible the reckonable period could only include those periods of residence not in breach of s 5 1 of the 2004 Act s 5 1 prohibited presence in the State other than in accordance with permission permission had a special definition under the Act s 1 required the word to be construed in accordance with s 4 s 4 1 referred to a permission being given by the immigration officer on behalf of the Minister in a document to the non national concerned or the inscription on the passport or other equivalent document by the immigration officer in either case the document given or the inscription made had to authorise the non national to land or be in the State in this case the inscription had been made by an immigration officer on the passport on two occasions the 22nd July 2005 and the 14th of August 2007 these were permissions within the meaning of s 4 1 and accordingly the period covered by that permission and the renewal prior to the birth of the infant applicant was the 1 092 days calculated by the Department of Foreign Affairs Neither the letter of the 7th July 2005 nor that of the 23rd July 2007 could by their terms constitute such a permission nor be evidence of any such permission 13 This approach places heavy emphasis on the act of the immigration officer placing a stamp on the passport of the applicant The situation contemplated by s 4 is obviously that of an immigration officer at a frontier post port or airport who stamps a passport or other official identity document However the Irish Born Child Scheme was administered by the Department of Justice The procedure for stamping a passport or any similar document is clearly a useful one it provides certainty and durable evidence on a document designed and intended to carry such proofs in relation to legal residence Accordingly it is perhaps understandable from an administrative point of view that it was considered useful and desirable to bring together the two routes to permission and to attempt to make the process of placing a stamp on the passport or other such document the key moment 14 Indeed in the High Court the Minister argued that the Act only contemplated one permission namely that given in accordance with s 4 by an immigration officer and accordingly the Minister s decision was not a permission but simply a preliminary step to permission That claim was repeated in the written submissions to this court As the High Court judge observed this argument led to the strange conclusion that although the immigration officer was acting on behalf of the Minister and therefore his agent he the agent could do something grant permission which it was asserted the principal could not However in oral submissions to this court Michael Collins SC on behalf of the Minister took a more nuanced line He conceded that there were two possible sources of permission Under s 4 an immigration officer could grant permission on behalf of the Minister However the Minister could also grant permission Nevertheless he maintained that the Minister had deliberately not exercised that power in this case He had instead decided that permission should be granted by the immigration officer On this argument the formal legal and only permission in this case occurred or in the language of the letter of the 23rd July 2007 became operative only when permission was inscribed by the immigration officer on the passport Mr Sulaimon 15 The Minister s argument in the High Court that the only permission which could satisfy s 5 was one granted under s 4 by an immigration officer has at least a perverse logic since it could be argued that this special definition of permission was required by the combined effect of ss 1 and 4 of the Act even if the outcome seemed more than a little strange However as counsel recognised in this Court that position could not be maintained It was clear not only from the theory but also from the text of the Act itself that a minister could separately grant permission and independently of the act of an immigration officer under s 4 1 This was clear from the terms of s 5 itself which spoke of permission by or on behalf of the Minister That was to be contrasted with the formulation to be found in s 4 which referred to permission being granted by an immigration officer on behalf of the Minister Therefore the Act clearly contemplated at least two permissions one granted by the Minister and another granted by or on his or her behalf by an immigration officer Furthermore s 4 5 d dealt with the position of non nationals entering the State other than by sea or air and provided A non national to whom this subsection applies shall not remain in the State for longer than one month without the permission of the Minister given in writing by him or her or on his or her behalf by an immigration officer Accordingly it follows that the Act contemplates a separate power in the Minister to grant this permission other than through the agency of the immigration officer It is not necessary here to discuss the interesting question of whether that power is derived directly from the Executive power of the State or is now statutory since it is sufficient for present purposes that the Act at least clearly recognises the existence of a power in the Minister whatever its legal basis 16 Nevertheless counsel maintained that although the Minister had power to grant permission he had not done so here because it was argued permission had to be construed in accordance with s 4 and accordingly even if not executed by an immigration officer it had to comply with the other aspects of that section Therefore a permission granted by the Minister had to be in writing and more importantly given to the non national involved Although it was conceded that there was a documentary record of a ministerial decision no such document had been given to the non national

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/82a0c6ba4ab8028580257adb005285fa?OpenDocument&TableRow=2.1 (2016-02-09)
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