Unconstitutionally obtained evidence should not be automatically deemed inadmissible at trial

The Supreme Court has ruled that evidence obtained unconstitutionally should not be automatically deemed inadmissible at trial. The judgment refines the test for the exclusion of evidence first set out in the case of O'Brien in 1965 and again in Kenny in 1990.

The case stems from Gardaí in Waterford investigating three robberies on a bookmakers premises in mid-2011.

Two separate but connected issues  arose in the Supreme Court case. The first issue relates to the proper interpretation of the passage on appeals by the Director ect., on certain criminal proceedings. Specifically, whether Judge Mary Ellen Ring had erroneously excluded evidence in circumstances where it is accepted that the Judge was bound to follow, and properly applied, the Kenny judgment to the facts:

Can it be said that  a trial judge properly applied the established case law of a higher court by which that trial judge was bound, even if this Court takes the view that the established case law in question requires to be revisited in a material respect?

Mr. Justice Frank Clarke found that a trial judge can be properly described as having erroneously excluded evidence even where the trial judge was bound to follow what turns out to be an erroneous judgment. On that basis, Mr. Justice Clarke was satisfied that an appeal to the Court under section 23 is permissible.

The second issue concerned the statutory requirement that excluded evidence must be "compelling" for its exclusion to be appealed. Compelling evidence is defined as meaning that:

[...] the evidence is reliable, of significant probative value, and such that, when taken together with all other evidence adduced a jury might properly convict.

After establishing that there was sufficient material on the record of the trial to enable the Court to be satisfied that the evidence is compelling, Mr. Justice Clarke concluded that it was not necessary to reach a conclusion on a motion, submitted on behalf of the Director of Public Prosecutions, to introduce additional evidence.

The question before the Court was whether O'Brien or Kenny are correct, or, whether the test set out requires refining by identifying a point not identified in either case.

In O'Brien, the Supreme Court held that evidence should not be excluded if it can be shown that those gathering the evidence had knowledge that their actions were in breach of constitutional rights. Where as in Kenny, the Supreme Court held that evidence may be excluded if it can be shown that constitutional rights were breached, regardless of the knowledge or level of care involved, save in highly unusual and exceptional circumstances.

Mr Justice Clarke, in his judgment, felt O'Brien does not go far enough, while Kenny goes too far. Refining the test, Mr. Justice Clarke set out five principles.

One, the onus is on the prosecution to establish the admissibility of all evidence. However, Mr. Justice Clarke was keen to emphasis that the test which follows does not concern the integrity or probative value of the evidence. Rather, the test is concerned with objections to the admissibility of the evidence where it relates solely to the circumstances in which it was gathered.

Two, where a warrant is challenged the onus is on the prosecution to establish either: (a) that the evidence was not gathered in circumstances of unconstitutionality, or; (b) that, if the evidence was gathered in circumstances of unconstitutionally, it remains appropriate for the Supreme Court to admit the evidence.

Three, any facts the prosecution need to establish in order to discharge the onus must be established beyond reasonable doubt.

Four, evidence obtained in deliberate and conscious violation of constitutional rights should be excluded save in exceptional circumstances considered in existing precedent. If the evidence is obtained in violation of constitutional rights, but the prosecution shows  this was not conscious or deliberate, a presumption against the admission of the evidence arises. Moreover, where evidence is obtained in breach of constitutional rights but not deliberately or consciously, the evidence should be admitted where the prosecution can establish that the breach was inadvertent or due to later legal developments.

Five, evidence that could not have been constitutionally obtained  or gathered should be excluded, even if those involved in gathering evidence were unaware due to inadvertence of the absence of authority.

Mr. Justice Donal O'Donnell expressed agreement with the approach taken by Mr. Justice Clarke. While Mr. Justice John Murray concurred in part with Mr. Justice Adrian Hardiman, who, among others, dissented.

Mr. Justice Hardiman questioned whether the Court had jurisdiction to hear the appeal because an error on the part of Judge Ring had not been established. Indeed, the majority agreed that Judge Ring had not erred. Mr. Justice Hardiman also observed that a trial judge who follows a binding authority that is subsequently overturned by a higher court does not commit an error.

Both parties agreed that a decision on a retrial should be set aside until after the substantive issues were determined.

Surrogate, as birth mother, must be registered on birth certificate as the legal mother

The Supreme Court has ruled, by a six to one majority, that the surrogate mother of twins, as the birth mother, is entitled to be registered as the legal mother on the birth certificates. The judgment overturns the High Court ruling by Mr. Justice Abbott in March 2013.

The issues arose from the radical developments in assisted reproduction and were issues for the legislature, not for the courts to address, observed Chief Justice Susan Denham.

The lacuna surrounding particular rights of children born through surrogacy merits the outstanding issues being left to the legislature:

Any law on surrogacy affects the status and rights of persons, especially children: it creates complex relationships and has a deep social content.

In separate judgments, only Mr. Justice Frank Clarke dissented, while the remaining panel agreed the appeal should be allowed. However, Mr. Justice O'Donnell stressed his decision to allow the appeal was based on the fact that the Civil Registration Act 2004 requires the surrogate mother, as the birth mother, to be registered as the the mother on the respective birth certificates.

The case centers around twins born to a surrogate mother, using sperm and ovum from the genetic parents.

While the genetic father of the twins was registered on the birth certificates, the Registrar of Births refused to register the genetic mother because she was not the birth mother. The Registrar maintained that the surrogate mother must be registered on the birth certificates.

The core issue was the registration of a "mother" under the Civil Registration Act 2004, observed Chief Justice Denham. The Constitution does not provide for a definitive definition of "mother". Nor does the Constitution prevent the development of legislation on surrogacy.

The State relied on the status of the Latin legal maxim, mater semper certa est - the mother is always certain. However, Chief Justice Denham observed that the maxim is not part of Irish common law and the words merely recognise a fact that the woman who gives birth to a child is the mother of the child.

As it stands, neither Irish jurisprudence or existing legislation addresses the outstanding issues on surrogacy arrangements, Chief Justice Denham observed. Citing the lacuna in the law as being the basis for her decision, the appeal was allowed.

The constitutional right to conduct business in Irish is not absolute

Peadar Ó Maicín, a native Irish language speaker, has lost a Supreme Court case to have a bi-lingual jury selected from a specially designated area of Connemara where most people speak Irish.

Mr. Justice Hardiman observed that while there is no legislation requiring a juror to be competent in English or Irish, he described it as "as extraordinary state of affairs" in need of "urgent legislative action".

In his dissenting opinion, Mr. Justice Hardiman described the actions of the State in promoting the Irish language as "uniformly minimalist and grudging". Mr. Justice Hardiman did not believe there is any other country:

in which a citizen would not be entitled to conduct his business before a court in the national and first official language, and to be understood directly by such court in that language

However, the Supreme Court agreed that the case raised important constitutional issues on balancing language rights against the duty to prosecute crimes before a representative jury.

The High Court held Mr. Ó Maicín was not entitled to have his case heard by a judge and bi-lingual jury without a translator.

Mr. Ó Maicín is facing trial charged with two offences; assault causing harm and unlawfully producing an article (a broken whiskey bottle) capable of inflicting serious injury during a fight.

The State opposed the appeal on the basis that there would have to be a test of competence in the Irish language. But this would be impossible due to random jury selection.

In a majority four-one judgment, the Supreme Court held that while Mr. Ó Maicín has a constitutional right to conduct business and his trial in Irish with the aid of a translator, the right is not absolute.

The power of arrest may only be exercised with such force as is reasonable in the circumstances

The Supreme Court has ruled an arrest for drink driving unlawful because the accused was unjustifiably handcuffed on foot of a personal routine of a Garda Sergeant.

Peter Cullen was stopped in Dublin 15 in September 2007 by Sergeant Moyles after being spotted driving erratically. While speaking to Mr. Cullen, Sergeant Moyles formed the opinion that he was intoxicated. Sergeant Moyles had Mr. Cullen provide a breath specimen, which he failed.

On cross examination in Dublin Circuit Court Sergeant Moyles stated that Mr. Cullen was cooperative at all times prior and subsequent to his arrest. Sergeant Moyles also stated that Mr. Cullen had not used threatening force in order to avoid arrest. Nor was there anything in the conduct of Mr. Cullen which might lead Sergeant Moyles to suspect that he might resist arrest. Sergeant Moyles also stated that it was his personal policy to handcuff any person arrested for drink driving, irrespective of the circumstances.

At the conclusion of the Prosecution's case, Counsel for Mr. Cullen applied for a direction on the basis that Sergeant Moyles had no reasonable grounds for the handcuffing. Counsel submitted that such restraint was unjustified and amounted to a conscious, deliberate and unlawful use of force, rendering Mr. Cullen's detention unlawful. Counsel also submitted that the exclusionary rule obligated a trial judge, in cases where a conscious breach of constitutional rights occurs, to exclude the admissibility of evidence except where the prosecution establish some extraordinary and excusing circumstance justifying the actions of Gardaí.

While Judge Terence O'Sullivan accepted that the Prosecution had failed to prove that handcuffing Mr. Cullen was lawful, proportionate or justified and, therefore, Sergeant Moyles acted lawfully, he referred two questions to the Supreme Court.

The first question posed was whether Judge O'Sullivan was entitled to hold that the handcuffing of Mr. Cullen, following arrest, was unjustified because Sergeant Moyles did not believe he was likely to resist arrest or attempt to escape from lawful custody.

The second question hindered on the first question being answered in the affirmative. The question posed was whether Judge O'Sullivan was correct to conclude that the handcuffing of Mr. Cullen was a conscious and deliberate breach of his constitutional rights.

Before answering the questions posed by Judge O'Sullivan, Mr. Justice Nial Fennelly set out the principles on: the use of reasonable force when making an arrest; the judgement of the Gardaí as to the reasonable force; the application of handcuffs; and, more general observations on lawful arrest and detention. Mr. Justice Fennelly also noted the courts are slow to review the operational decisions of individual Gardaí.

On the use of reasonable force when making an arrest, Mr. Justice Fennelly held that:

[...] the power of arrest, whether exercised by a police officer or by a citizen may be exercised and may only be exercised with the use of such force as is reasonable in the circumstances.

However Mr. Justice Fennelly concluded that what force is reasonable in the circumstances is for the individual Garda to judge, and that the law allows for a generous measure of judgement in this regard:

An error of judgement by an officer in applying force where he genuinely believes to be necessary will not either render the arrest invalid or expose the officer to legal remedy, whether criminal or civil. 

On the application of handcuffs, Mr. Justice Fennelly set out four principles.

One, that a Garda is fully entitled, and may be obliged, to apply handcuffs to an arrested person, where he or she believes that it is necessary to do so in the particular case. Two, the decision to apply handcuffs must be left to the individual Garda dependant on his own appreciation of the requirements of the individual case. Three, the factors to be taken in account are: the nature of the offence, the prevailing circumstances, and the personality and character of the individual to be arrested. Four, that a realistic latitude is shown by the law to Gardaí in this regard.

Mr. Justice Fennelly also set out three principles on lawful arrest and detention.

One, that an arrest is a pre-requisite for the authority to demand that a suspect provide blood, urine or breath specimens. Two, that an arrest may be invalid, if in the absence of lawful authority or consent of the owner, the arrest was carried out on private property. Three, detention that was originally lawful, can become unlawful because the suspect was held in detention without justification.

Thus, Mr. Justice Fennelly answered the first question in the affirmative because Sergeant Moyles failed to give consideration to the context, behaviour and demeanour of Mr. Cullen.

While on the second question Mr. Justice Fennelly deemed the arrest unlawful, but found it unnecessary to refer to the breach of constitutional rights or the exclusionary rule. 

ECHR: There is an inherent obligation on a state to use special measures, safeguards to protect children from ill-treatment

The European Court of Human Rights has ruled that Ireland had been negligent in failing to protect Louise O'Keeffe from abuse in school in 1973.

The case was taken to the European Court of Human Rights after the Supreme Court ruled that the State was not liable because the school was run by the Catholic Church.

The Court held, by eleven to six with Judge Peter Charlton fully dissenting, that the structure of primary education in 1970s Ireland failed to protect Ms. O'Keeffe from abuse.

The Court found that there had been a violation of Article 3, prohibiting inhuman and degrading treatment, and Article 13, the right to an effective remedy, of the European Convention on Human Rights.

However, the Court found that there had been no violation of Article 3 in respect of the investigation into the compliments of sexual abuse at the school.

The Court also found that complaints made under Article 8, Article 2 of Protocol No. 1 and Article 14 did not establish any matters separate to the matters already examined.

The Court found that the State had an inherent obligation to use special measures and safeguards to protect children, especially those in primary education, from ill-treatment.

Delegating the obligation to protect children from ill-treatment does not absolute a state from that obligation.

The Court found Ireland failed to meet this obligation:

[...] which had to have been of the sexual abuse of children by adults prior to the 1970s through, among other things, its prosecution of such crimes at a significant rate [...]

Despite this, the State continued to allow the management of primary school education for the majority of children to national schools, without any mechanism of control against the risks of sexual abuse occurring.

The Court also found that Ms. O'Keeffe was entitled to choose from the legal remedies available, rejecting the Supreme Court judgment that Ms. O'Keeffe should fail for not exhausting all available legal remedies in Ireland first.

A prisoner, whose original punishment was commuted, is serving sentence and not a commutation and is therefore entitled to remission on good behaviour

The Supreme Court has ruled that a prisoner, whose original punishment of the death penalty was later commuted to forty years in prison, is serving a sentence and not a commutation, and is therefore entitled to remission on good behaviour.

Noel Callan has been in prison since June 27th, 1985. Mr. Callan was convicted and sentenced to death for the capital murder of Garda Sergeant Patrick Morrissey on December 3rd, 1985. His imprisonment under the sentence of death lasted until May 29th, 1986 - when the President of Ireland, on advice of the Government, commuted the death sentence to Penal Servitude to forty years. In 1997 Penal Servitude was abolished and replaced by imprisonment.

Counsel on behalf of Mr. Callan submitted that he is a prisoner serving a sentence of imprisonment. Therefore Mr. Callan is entitled to remission of at least one quarter, perhaps even up to one third, under section 11(5) of the Criminal Law Act 1997 and by article 59 of the Prison Rules 2007. 

Originally Counsel submitted on behalf of the State that Mr. Callan is serving a "full sentence of forty years". When the case was heard in the High Court before Mr. Justice Michael Hanna, both parties agreed that Mr. Callan is, in law, a prisoner serving a sentence of forty years. Although the parties disagreed on whether the terms of the "sentence" excludes remission. 

However, on day three of the High Court hearing the State called the Principal Officer in the Department of An Taoiseach to give evidence. Mr. Kennedy produced a letter in Court dated May 29th, 1986, from the Secretary of the Government to the President that contained the actual advice:

At a meeting held today, the Government decided to advise the President in the exercise of the power vested in him by Article 13.6 of the Constitution to commute to Penal Servitude for forty years the sentence of death by the Special Criminal Court on the 3rd of December 1985 on Noel Callan on his conviction of the capital murder of Garda Sergeant Patrick Morrissey. Pursuant to that decision, I have been directed by the Taoiseach to convey the Government's advice to the President to commute the sentence of death accordingly.  

The advice in the letter does not specify that the commutation from the death penalty to penal servitude was on the understand that it would be served without remission. This caught Counsel for the State by surprise.

After the evidence of Mr. Kennedy, a new submission on behalf of the State argued that Mr. Callan is serving a commutation and therefore falls outside the scope of the Prison Rules. However, Mr. Justice Hardiman pointed out the difficulties with this argument:

It is suggested that [Mr. Callan] was liable to be held in custody for forty years without being subject to the obligations of, or entitled to the protections contained in, the Prison Rules. It must be doubted whether that form of imprisonment would comply with the Constitution or with the State's international obligations.

Accordingly, on appeal to the Supreme Court, a third submission was made on behalf of the State. Counsel submitted that Mr. Callan is not a sentenced prisoner but is entitled to the benefits of the Prison Rules with the exception of Rule 59.

Despite acknowledging the Government had continued to apply remission as if the rule applied to prisoners serving sentences of penal servitude, Counsel for the State suggested that remission could not apply to Mr. Callan because precedent held that the predecessor to Rule 59 did not apply to such prisoners. Expressing his "grave distaste" for such arguments, Mr. Justice Hardiman quipped:

It would have been quite possible to amend the Prison Rules but this was not done. Instead, it was simply decided to proceed as though the Carney case had never happened [...]. The State case continued in this way until Penal Servitude was itself abolished in 1997, forty years after Carney was decided. But, fourteen years later again, when [Mr. Callan] claimed he was entitled to remission it was solemnly decided to rely on Carney [...].

The eventual case submitted on behalf of the State was that Mr. Callan is serving a commutation and not a sentence. However this argument was rejected by Mr. Justice Hardiman on four grounds.

One, when Mr. Callan challenged the legality of his detention under Article 40 the Governor of the Prison established the legality of his detention citing the order of the Special Criminal Court, the advice of the Attorney General, and the letter dated May 29th, 1986.

Two, the forty year period of imprisonment was described by the State as a sentence.

Three, all prisoners sentenced to Penal Servitude of forty years have been released by Executive action.

Four, the submission on behalf of the State that Mr. Callan is serving a commutation is "in terms of logic, law and language" nonsense, as it means "the action or process of changing or altering.

Therefore Mr. Callan was awarded a Declaration stating that he is eligible to earn remission by good conduct under Rule 59(1) of the Prison Rules 2007.  

NI: Same sex adoption in the best interests of the child

The Northern Ireland Court of Appeal dismissed a challenge on Thursday by the Department of Health to overturn a seminal High Court ruling that the prohibition on same-sex and unmarried couples adopting children is unlawful. Centred around judicial review proceedings was the blanket ban imposed under the Adoption (Northern Ireland) Order 1987.

In October 2012 the relationship status based ban was held to discriminate against those in civil partnerships. The High Court found excluding couples based on their relationship status limited the pool of potential adopters and could not be in the best interests of the children.

The High Court verdict came in a legal challenge mounted by the Northern Ireland Human Rights Commission. The Commission was seeking to force a legislative change to bring adoption laws into line with the United Kingdom.

In the United Kingdom, Scotland, and Wales, unmarried couples can apply jointly to be considered for adoption regardless of sexual orientation.

Attorney General for Northern Ireland appealed against the High Court ruling on behalf of the Department of Health. John Larkin QC argued that the criteria as it stood is lawful and appropriate and that the criteria serves in the best interests of the children.

Lord Justice Garvan held that the Department of Health failed to provide a proper explanation for why same-sex couples are ineligible once the relationship has been publicly cemented:

This cannot provide a rational basis or justification for the differential treatment of those  in a civil partnership compared to same-sex couples outside a civil partnership. 

Lord Justice Garvan expressed regret that until recently the website of the Department of Health failed to provide correct advice on the issue:

If it is to avoid being misleading Departmental guidance must take account of the effect of the law as it currently stands. It must take account of the outcome of the present appeal.

The Department of Health could seek to challenge the ruling in the British Supreme Court. 

Obligation on banks to assess creditworthiness of borrowers

In 2012 the High Court awarded KBC Bank €17,694,130 in damages against Dublin based law firm BCM Hanby Wallace (now Byrne Wallace) over failures to ensure the bank had security for the loans.

The Supreme Court has directed the High Court to reconsider findings that there was no contributory negligence by KBC Bank in how the bank suffered muti-million euro losses to struck-off solicitor Thomas Byrne and property developer John Kelly.

KBC Bank incurred the losses due to the failure in having security for €25m loans advanced to Mr. Byrne and Mr. Kelly.

The Supreme Court ruling addressed seminal issues relating to the duties of banks to the shareholders when advancing loans, including the responsibility to investigate the financial standing of borrowers.

Mr. Justice Brian McGovern in the High Court found the matter was about ‘multiple failures’ repeated across several separate loan transactions. He rejected arguments of contributory negligence by KBC Bank on the grounds that the bank was entitled to rely on assurances from professionals retained by KBC Bank. The Supreme Court ruled Mr. Justice McGovern had erred in how the issue of contributory negligence by KBC Bank was addressed.

Mr. Justice Nial Fennelly said that while BCM Hanby Wallace negligence related to obtaining security for the loans was a direct and proximate cause of the loss, there was an issue as to whether it was the only effective cause of the loss. It was important in this context to distinguish between the two types of contributory negligence alleged against KBC Bank. The first type of contributory negligence is the want of care in making decisions to lend. The second type of contributory negligence is the failing to verify or supervise the solicitors’ performance of their duties.

On the assumption KBC Bank failed to exercise due care in lending, Mr. Justice Fennelly was satisfied KBC Bank was exclusively responsible for those decisions.

Mr. Justice Fennelly found it was not the task of BCM Hanby Wallace to check the financial soundness or reliability of Mr. Byrne and Mr. Kelly. He also found that the High Court erred in finding there was no contributory on grounds of finding the actions of the borrowers were merely an inevitable or necessary cause, and not a proximate cause, of the loss.

Mr. Justice Fennelly noted the effective cause of the loss was the decision to lend to Mr. Byrne and Mr. Kelly, combined with the negligence of BCM Hanby Wallace.

Mr. Justice McGovern remarked that aspects of the loans to Mr. Byrne were "highly questionable". He noted the "somewhat careless" approach of KBC Bank in its actions.

On the second type of contributory negligence, the failure to verify or supervise the solicitors’ performance of their duties, KBC Bank was entitled to rely on the expertise of BCM Hanby Wallace to put in place security. Although it may be argued that the responsibility of KBC Bank in this context was so small it should not be fixed with any responsibility, there is no absolute rule.

Mr. Justice McGovern argued that if evidence showed the errors of BCM Hanby Wallace were so obviously the errors could not have been overlooked, there was a fault on the part of KBC Bank and it was open to BCM Bank Wallace to argue the obligations KBC Bank had in accordance with European Union Regulations on Licensing and Supervision of Credit Institutions. Also see 2009 and 2013.

The European Union Regulations requires the banks to manage business in accordance with ‘sound administrative and accounting principles’. The banks are also required to put in place and maintain internal control and reporting arrangement to ensure  business in managed.

Mr. Justice Fennelly directed that Byrne Wallace appeal  be allowed on the issue of contributory negligence and the matter should be reconsidered by the High Court.   

Prison authorities have duty of care to inmates

A recent High Court ruling could have implications for prisoners attacked in custody, after a former prisoner sued for negligence and a breach of duty. Almost four times the amount awarded in 2009.

Peter Creighton was serving a sentence in Wheatfield Prison when he was attacked with a knife in January 2003. Mr. Creighton needed 120 stitches for two-and-a-half feet of lacerations to his body.

Mr. Creighton claimed the prison and the state failed to take reasonable precautions for his safety. He said he did not know his attacker, and the system for bringing prisoners from the cells to receive methadone was dangerous.

Counsel for the state argued that it was not possible in a prison to guarantee the safety of a prisoner and ensure his protection.

Mr. Justice Iarfhlaith O’Neill said there could be few tasks more difficult than the management of the prison system. Mr. Justice O’Neill added that the courts would not impose on prison authorities a duty of care that was not capable of being preformed, but said it was necessary for the courts to intervene were there were systems or practices that have obvious deficiencies and foreseeable risks.

The case of Mr. Creighton previously came before the High Court in October 2009. The state appealed the High Court ruling. The Supreme Court ruled the case should be re-heard.

The function of legislation is one that cannot be delegated by the Oireachtas to any other body

The Supreme Court has ruled that Registered Employment Agreements which set the pay rates for several employment sectors are unconstitutional.

The Supreme Court found that the provisions of Part III of the Industrial Relations Act 1946 unconstitutional, observing that:

there is a wholesale grant, indeed abdication, of lawmaking power to private persons unidentified and unidentifiable at the time of grant to make law in respect of a broad and important area of human activity and subject only to a limited power of veto by a subordinate body ... Nor did the Oireachtas retain any capacity for review either by the Oireachtas or by a member of the Executive responsible to it, of the agreements actually made.

The Supreme Court found that there was no obligation on the Labour Court or the parties to the agreements to consider the interests of the parties who would be bound by the agreements and those who are not parties to the agreements. Moreover, once the agreement is registered it is binding on everyone, and it may only be varied on the application of the original parties.

The Supreme Court found that the Act allowed the parties to an agreement to make any employment related law on the condition that the Labour Court considers such a law to be "substantially representative" of those working in the sector.

Comment: The McGowan ruling mirrors the John Grace Fried Chicken ruling, where the High Court found the Joint Labour Committee wage settings mechanism unconstitutional.

Reasons must be given for administrative decisions

The Supreme Court has rejected the decision of the Minister for Justice not to grant a certificate of naturalisation for Irish citizenship to a Syrian national. The five judge Court held that the Minister was obliged to provide reasons for his refusal, but failed to do so.

Ruling in favour of Ghandi Mallak, Mr. Justice Nial Fennelly observed that the developing law of Irish courts provides "compelling evidence" that it must be unusual for a decision maker to be allowed to refuse to give reasons.

Mr. Justice Fennelly also observed that law serves to provide a remedy where it can be shown that fairness is lacking.

Indeed, administrative decisions are not excluded from review and any opinion formed by the Minister must be held in good faith, factually sustainable and reasonable.

Mr. Mallak and his wife arrived in Ireland in 2002, obtaining asylum in 2003, later applying for a certificate of naturalisation as part of the citizenship process.

However, the first application was rejected because Mr. Mallak was not residing in Ireland long enough. He applied again in December 2005, only to be rejected in November 2008. The Minister did not disclose the reasons.

Documents relating to his case were sought under the Freedom of Information Act, including the reasons for rejecting the application.

Mr. Mallak was informed by the Office of the Information Commissioner that the refusal of the Minister to give reasons was in accordance with section 18 of the Freedom of Information Act.

Additional requests to the Department of Justice disclosed material Mr. Mallak claims he was previously unaware of and, as a result, had no opportunity to meet any adverse findings.

Later, Mr. Mallak appealed the High Court ruling of 2011 to the Supreme Court where Mr. Justice Fennelly observed that the failure to give reasons means it is not possible for Mr. Mallak to decide whether he has a basis for applying for judicial review of the substance of the decision.

The Supreme Court ruling will have implications for other administrative decisions where it can be shown that fairness is lacking.