Supporting Documents:
138-18 AFL.pdf138-18 Resp Notice.pdf

BETWEEN

RESULT: The Court does not grant leave to the Applicant to appeal to this Court directly from the High Court.

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF JUDGMENT OR RULING: 22nd August, 2018

DATE OF ORDER: 22nd August, 2018

DATE OF PERFECTION OF ORDER: 22nd August, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 7th September, 2018 AND WAS IN TIME.

REASONS GIVEN:

General Considerations

1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2. The application for leave filed, and the respondent’s notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

Discussion

3. This application relates to the refusal of the High Court (McDonald J.) to grant leave to the applicant to seek judicial review. The subject matter of the proposed proceedings is the appointment of a Mr. Harris as the new Commissioner of An Garda Síochána. The applicant says that the appointment was unlawful, not by reason of any defect in the appointment procedures, but on the basis that Mr. Harris is not an appropriate person to serve in this position. In brief, the applicant’s complaint arises from the fact that Mr. Harris was previously a Deputy Chief Constable of the Police Service of Northern Ireland (and, before that, an officer in the Royal Ulster Constabulary). It is claimed that, by reason of his involvement in investigations carried out by that force into certain notorious murders in Northern Ireland, he would be compromised in the performance of his duties as Garda Commissioner. The applicant seeks declarations concerning the obligations of the respondents to investigate the murder of Irish citizens; a declaration that Mr. Harris would, by reason of his obligations under the Official Secrets Act of the United Kingdom and his alleged frustration of the effective investigation of the murders by the police in Northern Ireland, be incapable of directing an effective investigation by An Garda Síochána into those murders; a declaration that the appointment would breach the respondents’ obligations under the Constitution and the European Convention on Human Rights (hereafter “the Convention); and orders quashing or prohibiting the appointment of Mr. Harris or, in the alternative an order restraining him from having any involvement in any Garda investigation of murders where there is credible evidence of collusion on the part of the RUC or other agency of the British State.

4. In an ex tempore ruling given on the 22nd August 2018, McDonald J. refused leave for judicial review. Applying the principles set out by this Court in G. v DPP [1994] 1 I.R. 374 and AAA v The Minister for Justice [2017] I.E.S.C 78, he found that the applicant had not established that he had an arguable case. His primary reason for so finding was his view that there was a fundamental flaw in the applicant’s case. This was the complete failure to address or take account of the statutory process for the appointment, pursuant to which the Government is required to accept a nomination made by the Policing Authority and can reject it only in exceptional circumstances. McDonald J. considered that this was, in itself, sufficient to dispose of the matter. However, he proceeded to examine the individual grounds asserted by the applicant.

5. The trial judge ruled that the applicant had not shown that there was any basis upon which the court could find a breach of the various provisions of the Constitution, the Convention, and the Garda Síochána Act 2005 that had been pleaded. Next, McDonald J. referred to the fact that most of the matters of concern to the applicant had occurred in Northern Ireland. There was no suggestion that An Garda Síochána was involved in, or contemplated, any investigation into such matters and therefore no ground for any finding that Mr. Harris could be compromised in regard to such an investigation. If, as contended by the applicant, there was an obligation on the Garda Síochána to investigate, such an obligation long predated the appointment of Mr. Harris. In any event McDonald J. did not accept that there was such an obligation, under either the Constitution or the Convention, in respect of events occurring outside the jurisdiction of the State. While the applicant had referred to the Dublin/Monaghan bombs and to the Barron report, he had not set out sufficient facts to support the existence of a stateable case.

6. Finally, McDonald J. rejected the submission that Mr. Harris’s obligations under the United Kingdom’s official secrets legislation would be at variance with his duties to this State. He felt that similar obligations would arise in the case of any candidate from outside the force. The fact that the foreign State was Britain, which, the applicant alleged in the course of argument, had taken part in an illegal war in Iraq, did not relate to any matter set out in the Statement of Grounds.

7. It was therefore held that the case failed to meet the threshold requirements for judicial review.

8. In his application for leave to appeal to this Court, the applicant asserts that the case raises issues in relation to the separation of powers, national intelligence and international conflicts of interest affecting national security.

Decision

9. The concerns raised by the applicant do, unquestionably, relate to a matter of public importance. However, it has been made clear in many determinations that to meet the constitutional criteria an appeal must in the first place be stateable. The basic difficulty with this case remains the same as it was in the High Court – the applicant has not addressed the statutory framework within which this appointment took place, and has not set out any specific legal point relating to the part played in the statutory process by the respondents. The original nomination of Mr. Harris by the Policing Authority has not been challenged, and no case has been made that the Government acted illegally in not exercising its power to refuse to accept the nomination. There has been no analysis of that power and its parameters. Similarly, the application for leave to appeal fails to clarify the legal points intended to be argued, whether in relation to the Constitution, the Convention or the legislation.

10. In determining that the case presented by the applicant did not meet the threshold for judicial review, the trial judge applied well-established case law. It has not been suggested that the authorities on the issue require reconsideration.

11. In the circumstances the Court refuses leave to appeal to this Court.

And it is hereby so ordered accordingly.