Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF THE CONSTITUTION

BETWEEN

RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by the applicant in the underlying proceedings (“Mr. R.”) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Ryan P., Peart and Irving JJ.) delivered on the 6th July 2017. The order appealed against was also made on the 6th July 2017 and perfected on the same day. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The Proceedings

Mr. R. was in a motor vehicle when it was stopped by officers of the Garda National Immigration Bureau. He was then arrested under s.5(1) of the Immigration Act, 1999 as amended. Mr. R. sought an inquiry under Art. 40.4.2 of the Constitution challenging his detention on the basis that it was said that the officers in question had no power at common law or under statute to stop a motor vehicle for the purposes of conducting such an arrest.

The High Court (O'Regan J.) conducted the Art. 40 inquiry which had previously been directed by Abbott J. The High Court expressed the view that An Garda Síochána had power under common law to act as they had done. Mr. R. appealed to the Court of Appeal.

3. The Order appealed against

The principal judgment of the Court of Appeal was delivered by Ryan P. The view was expressed that it would defy logic to suggest that a person was immune from arrest as long as they were driving in a motor car but would not be immune if they were travelling on a train or a bicycle. Irvine J. delivered a concurring judgment.

4. The Contentions of the Parties

The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

Essentially it is said on behalf of Mr. R. that the question of whether a statutory power of arrest necessarily includes the power to stop a vehicle has never been decided in this jurisdiction and is a question of general application and thus of general public importance. While the respondent (“the Governor”) has filed lengthy reasons (running to 13 paragraphs) for opposing leave it is, in the Court’s view, the case that an amount of what is set out in those paragraphs is concerned with the merits of the point raised rather than whether the constitutional threshold is met. However, it is suggested, at para. 3, that the consequences of Mr. R. being correct would result in an absurdity.

5. Discussion

As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

It is clear at least from the determination of this Court in Lyons v. Ireland & ors [2015] IESCDET 38, that, even if there might be, at a theoretical level, an issue of importance involved, the constitutional threshold is only met where there is some reality or substance to the point being advanced. In the view of this Court the position as set out in the judgment of Ryan P. is both clear and clearly correct. In those circumstances the Court is not satisfied that the constitutional threshold has been met.

6. Conclusion

The Court, therefore, refuses leave to appeal under Art. 34.5.3.

And It is hereby so ordered accordingly.