No. 258/00

Denham, J.                                                                 
Murphy, J.
Geoghegan, J.

BETWEEN

JOHN GILLIGAN 

							APPLICANT/APPELLANT

AND

IRELAND, THE GOVERNMENT OF IRELAND,

THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTION

RESPONDENT

Judgment of the Court delivered by the Hon. Mrs. Justice Denham on the 24th day of October 2000 [nem. diss.]

This is an appeal by John Gilligan, the applicant/appellant, hereinafter referred to as the Applicant, from a refusal on 28th September, 2000 of the High Court (Butler J.) to grant leave to apply for judicial review.

Relief Sought

The Applicant had sought leave to apply for judicial review for:
	(i)			A declaration that the provisions of Sections 35 and 47 of the Offences Against the State Act, 1939 are inconsistent with the Constitution;
	(ii)		A declaration that the Proclamation by the Government of Ireland of the 26th May, 1972, bringing Part V of the Offences Against the State Act, 1939, into force is no longer valid.
(iii)	A declaration that the certificate and directions of the Respondent Director herein purporting to validate the Applicant’s trial before the Special Criminal Court are null and void;
(iv) 	An Order in the nature of a stay on the prosecution of the Applicant herein;
(v)	A declaration that the prosecution of the Applicant herein is in breach of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which entitles the Applicant to a fair hearing of criminal charges laid against him by an independent and impartial tribunal;
(vi)	A declaration that the prosecution of the Applicant herein is in breach of Article 14 of the European Convention for the Protection of Human Rights an Fundamental Freedoms which provides that the Applicant is entitled to enjoy his right to a fair trial without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status;
(vii)	A declaration that the continuation in force of the Proclamation of the Irish Government of the 26th May, 1972 is a violation of Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides that measures may be taken by High Contracting Parties derogating from its from its obligations under that Convention in time of war or other public emergency, to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law;
(viii) Such further and other relief as may be appropriate;
(ix) An Order providing for the Costs herein.

Counsel for the applicant, Mr. Michael O’Higgins, S.C., informed the court that the declarations as set out in paragraphs (v), (vi) and (vii) were not now being sought.

Grounds for Relief

As set out in the formal statement of grounds the following grounds of relief were sought:

(a)	Section 35 of the Offences Against the State Act, 1939, is an unwarranted and irrational interference with the Applicant’s right to a jury trial;

The High Court refused the application. The learned High Court judge did not refer any time problem but he took the view that there was no new point of law and that the ground had been covered by Kavanagh v. Government of Ireland  1 I.R. 321. From that decision the applicant has appealed to this Court.

Time

An application for leave to apply for judicial review must be brought promptly. By any standard this application has been brought far too late. Even if the leave were otherwise appropriate the application is clearly well out of time. The Certificate of the Director of Public Prosecutions is dated the 28th of August, 1997. After extensive litigation in England the Applicant was the subject of a rendition order and arrived in Ireland on 1st February, 2000. It is not uncommon, of course, where there is a possible time problem, for the High Court to grant leave but make it clear at the time of doing so that it would be open to respondents and notice parties to raise and have determined any time issues at the hearing of the application. But such an order would not be appropriate in this instance. The declaratory reliefs sought are of their nature more appropriate for a plenary action than an application for judicial review. The only real justification for going the route of judicial review would be to invoke the power of the Court to impose a stay on the criminal proceedings. But having regard to the long lapse of time in bringing the application in this case it would be quite wrong to postpone the criminal proceedings. In these circumstances, the Court, as a matter c discretion and quite apart from the rules specifying that an application for leave must be brought promptly, should refuse leave. On this procedural ground alone the order of the learned High Court judge would be affirmed.

Points of Law

There are, however, more substantive reasons for refusing leave. The learned High Court judge held that the application raised issues which had already been determined by the Court. There is considerable justification for that view. In a series of judgments including re MacCurtain  I.R. 83; Kavanagh v. The Government of Ireland and Others I.R. 321; D.P.P. V. Quilligan  I.R. 495 and Byrne v. Dempsey (Unreported, Supreme Court, 11th March 1999), this Court and the former Supreme Court have laid down principles concerning the constitutionality of various provisions of the Offences Against the State Act, 1939. It has been established that the Constitution empowered the Legislature to determine whether the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. It was further held that that power was validly and constitutionally delegated by the Legislature to the Government by the 1939 Act s. 35 sub-s. 2 of which provides:

“If and whenever and so often as the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this part of this Act should come into force, the Government may make and publish a proclamation declaring that the Government is satisfied as aforesaid and ordering that this part of this Act shall come into force.”

It has been recognised that a decision as to whether Part V of the Act of 1939 should remain in force is essentially political in nature as is the decision to invoke those powers in the first place. The political character of such decisions is underscored by the power given to Dáil Eireann by s.35 sub-s. 5 of the 1939 Act to pass a resolution annulling the proclamation It has been expressly held that the 1972 Proclamation extends to crimes other than those committed by subversives. Also, it is settled law that decisions of the Director of Public Prosecutions are not subject to judicial review unless it can be demonstrated that he has reached a decision mala fide or influenced by an improper motive or an improper policy.

Mr. Michael O’Higgins, S.C., in his very able argument, sought to draw a fine distinction between the jurisprudence so established and applied in many cases and the proposition for which he contends. He pointed out that in the Kavanagh case Keane J. (as ii then was) expressly recognised, as had Barrington J. by implication, that a decision of the Government to retain in force a proclamation so issued “cannot be regarded as forever beyond the reach of judicial control”,  1 I.R. 321, 365. He noted too that decisions of the Director of Public Prosecutions might be impugned if mala fides could be established. With that limited base Counsel constructs the following arguments:-

1.	A proclamation must of its nature be issued for some reason or by reference to some particular circumstances. Those reasons or circumstances might be, and perhaps should be, included in the Proclamation or failing that inferred from a knowledge of current affairs.

2.	A proclamation, and more particularly the powers to which it gives rise, can be used only for the reasons or to meet the circumstances which justified making it.

3.	The inescapable inference is that the Proclamation of 1972 was made to meet the circumstances of unrest which then existed in Northern Ireland and extended to a greater or lesser extent to areas within the jurisdiction of this Court.

4.		In the context of those propositions counsel relied on the facts set out in the affidavit sworn by his instructing solicitor, Mr. John Joseph Rice, practising in Victoria Street Belfast, where he describes the very significant improvements which have taken place in the political and security situation in Northern Ireland in recent years.

Mr. O’Higgins SC draws attention not only to the probability that the Proclamation of 1972 was intended to relate to the troubles which arose in Northern Ireland but the improbability that it related to drug trafficking and offences connected therewith, with which the applicant is charged, which Mr. O’Higgins says constitute a more recent, but perhaps equally regrettable, development. It is not for this Court at this time to say whether such arguments will prevail. Our task is to determine whether the applicant should have leave to that case by way of judicial review. It seems to this Court that in the nature of the argument made and in the terms of the reliefs sought the more appropriate proceedings would be brought by way of plenary summons in which the Attorney General, among others, would be defendants from the outset. It emerged from the argument of counsel that it was his intention to seek an order restraining the hearing of the pending criminal proceedings before the Special Criminal Court until the determination of the constitutional issues which he anticipated might be disposed of finally before the end of the existing term. No doubt it has been thee practice in many cases in which leave to apply for judicial review is granted to with that permission an order restraining the activity the validity of which it is sought to impugn. Such an order should never issue as a matter of course and certainly should not be granted in the present case. The trial of the applicant has been pending for over three years. It is due to take place in the Special Criminal Court in the coming month in accordance with jurisprudence which has been established over many years. Trials - particularly criminal should be heard with reasonable expedition. That is the constitutional right of the accused but it is also the right of the citizen to see justice done, justice acquitting the innocent as surely and expeditiously as convicting the guilty. In the circumstances, the appeal will be dismissed while recognising the right of the Applicant to institute substantive proceedings for such declaratory relief as he may be advised in relation to the subject matter of this application.

Decision

For all these reasons the Court is satisfied that the application for leave should be refused and the appeal will be dismissed.