NI: Irish asylum standard not compliant with EU requirements

On Wednesday, a non-Arab Darfuri journalist who fled Sudan with her three children amid concerns the family would be killed due to her views on race and politics, won a High Court challenge from being returned to the Republic of Ireland.

Mr. Justice Stephens quashed a decision by the UK Border Agency to send ALJ and her three children A,B and C, back to the Republic of Ireland on the basis that it was in the best interests of the family to remain in Northern Ireland. .

ALJ gave evidence of a being a political journalist and writer who suffered a series of arrests, assaults and a miscarriage.

In April 2010, ALJ and her three children left Sudan with the help of traffickers, Mr. Justice Stephens heard. Her husband had to remain in Sudan, and ALJ is unaware if he is still alive. ALJ and her three children disembarked in Dublin three weeks later.

ALJ was informed that her entitlement to remain in the Republic of Ireland had expired when her bid for refugee status was refused. In July 2011, ALJ and the children travelled to Northern Ireland and applied for asylum in the United Kingdom. When authorities in the Republic of Ireland accepted a request to take ALJ and the three children back to conclude the asylum proceedings in the Republic, a challenge in the Northern Ireland High Court was launched.

The argument that during the asylum of process in Ireland, which can take up to five years, the family would be subject to standards that do not comply with the minimum required set out by the European Union.The current asylum process in the Republic means the applicants would not be able to work. The children at the age of 16 are not entitled to an education, and the family would have to live in hostel accommodation.

For the sake of the children, Mr. Justice Stephens held that the family should remain in Northern Ireland. Mr. Justice Stephens quashed the removal decision. The decision not to assure responsibility for determining the asylum application in the United Kingdom  on the basis of a failure to consider the need to safeguard the welfare of children was also quashed by Mr. Justice Stephens.

New laws must contain adequate principles and policies

On July 26th, Mr. Justice Gerard Hogan ruled offences against David Douglas, charged under section 18 of the Criminal Law Act 1935 were unconstitutional due to being insufficiently precise and lacking any ‘clear principles and policies’ in relation to defining the scope of the prohibited conduct.

The case against Mr. Douglas, observed massaging his penis through his clothing in a Dublin City centre café on two consecutive days, cannot proceed after Mr. Justice Hogan ruled the offences of causing scandal and injuring the morals of the community are unconstitutional.

The charges related to separate incidents at the café in January 2009.

Mr. Justice Hogan stressed the importance that there was no allegation that Mr. Douglas had exposed himself. It was also contended Mr. Douglas either desisted or disguised his activities when other people approached.

Counsel for Mr. Douglas argued the offences breached the rights of Mr. Douglas under the constitution, including the right to equality before the law and protection of personal liberty. The Criminal Law Act 1935, section 18 provides:

Every person who shall commit, at or near and inside of any place along which the public habitually pass as of right or by permission any act in such a way as to offend modesty or cause scandal or injure the morals of the community shall be guilty of an offence under this section and shall on summary conviction thereof be liable to a fine not exceeding [IR£500] or, at the discretion of the court to imprisonment for any term not exceeding [six months].

Mr. Justice Hogan ruled the words ‘or cause scandal or injure the morals of the community’ in section 18 of the 1935 Act were ‘hopelessly’ and ‘irremediably’ vague and lacked any real principles and policies in relation to the scope of the prohibited conduct.

However, Mr. Justice Hogan emphasised that the ruling does not prevent the Oireachtas legislating to create new offences which would address conduct of this nature, but any new laws must contain adequate principles and policies.

Private prosecution of indictable offences permissible

Mr. Justice Gerard Hogan in a seminal High Court ruling upheld the right of citizens to bring private prosecutions against individual banking officials.

The ruling will allow hotelier Patrick Halpin to bring private prosecution agaisnt two officials of the Irish Banking Resolution Corporation Mr. Halpin alleges behaved dishonestly during discussions about a rescue plan for his business. 

In the first case of its kind since the banking collapse, a summons has been issued to compel banking officials to attend a Distrct Court to answer allegations.

The decision to proceed further with the case will be a matter for the Director of Public Prosecution once the District Court hearing has taken place.

Mr. Justice Hogan in his written ruling noted that:

the underlying purpose of the private prosecution is still the same, namely, to draw to the public prosecutor's attention to the case with the implicit request that the prosecution be taken over.

While the ruling allows for private prosecution, there are risks involved, such as the substantial legal costs should the prosecution fail.

The ruling came after Mary Kelly and Declan Buckley, the former a current employee and the latter a former employee of the Irish Banking Resolution Corporation sought a judicial review to halt the private prosecution against them.

Mr. Halpin has run hotels in Dublin and in County Clare for the past twenty five years, these include the Aberdeen Lodge and Merrion Hall boutique hotels in Dublin, and Halpin's Townhouse in Kilkee, County Clare.

The Irish Banking Resolution Corporation appointed a receiver to two of the companies last year after Mr. Halpin got into financial difficutly in recent years over borrowings with the former Anglo Irish Bank.

Mr. Halpin claims he was invited to a meeting with Ms. Kelly and Mr. Buckley in February 2012 to discuss the sale of Merrion Hall in an attempt to pay down the debt. The meeting occurred prior to a receiver being appointed.

Mr. Halpin claims both himself and his accountant were left with the impression from the meeting that the matter would be considered further by Anglo Irish Bank, and that Anglo Irish would welcome proposals.

However, Mr. Halpin claims he later learned from a letter he subsequently received that the decision to appoint a receiver had already been made, and that both Ms. Kelly and Mr. Buckley were aware of this at the meeting, but deliberately concealed this knowledge from Mr. Halpin.

Subsequently, Mr. Halpin initiated a private prosecution against Ms. Kelly and Mr. Buckley in the District Court, alleging offences of dishonesty under the Criminal Justice (Theft and Fraud Offences) Act 2001, and succeeded in getting the District Court to issue a summons against both individuals. The argument  put forward in the High Court  to halt the private prosecutions was that private prosecutions  had been effectively abolished by the Criminal Justice Act 1999.

It was also put to the High Court that there had to be a preliminary examination procedure for a private prosecution to take place.

Mr. Justice Hogan disagreed with the argument that private prosecutions had been effectively abolished because the 1999 Act abolished the traditional practice of holding a preliminary investigation in the District Court to determine if sufficient grounds existed for sending a person forward for trial to a higher court.

Mr. Justice Hogan placed a stay on the private prosecution until January to allow Ms. Kelly and Mr. Buckley to appeal to the Supreme Court.

Strict legal requirements must be met to execute search warrant

A retired Central Bank administrator who got four years and a €5,000 fine for the possession of hundreds of thousands of child porn images and videos had his conviction quashed because of  the incorrect date on the search warrant.

The Court of Criminal Appeal overturned the conviction of Raphael Farina after the Court found that the search warrant  used to search his home was dated incorrectly and consequently  did not permit entry to the apartment  of Mr. Farina in Dublin city centre.

Counsel for Mr. Farina, Ms. Aileen Donnelly SC told the Court of Criminal Appeal that a combination of five flaws in the search warrant obtained, rendered the search warrant invalid in law and incapable of permitting entry to the apartment.

Among the flaws were a misspelling of the address as ‘Springer’s Yard’, instead of the correct address as ‘Spranger’s Yard’. Another flaw was the absence of information regarding the issuing District Court area and number. The date of the search warrant as May 6th 2007 was actually issued on June 6th 2007.

The court also heard  that an alteration was made to the search warrant, with a line drawn through the May 6th 2007 date, after its execution.

Mr. Justice Donal O’Donnell noted that before a search warrant to enter a home can be executed, the legal requirements must be strictly met. He found that the defect in the date was fatal to the warrant because the document on its own terms stated that entry was permissible within seven days of May 6th 2007.

Mr. Justice O’Donnell noted the search warrant was meant to be understood in simple terms. Further, the warrant must be taken as it would appear when presented to the accused man.

Judgement was not reserved because Mr. Farina  has been in custody since 2011. No retrial was ordered.

EW: Residents’ parking fees cannot subsidise transport budget

In a seminal High Court ruling delivered by Ms. Justice Beverley Lang, Town Halls cannot deliberately profit out of cash raised from motorists for parking outside their private residence.

However, Ms. Justice Lang did not rule illegal the half billion pound sterling surplus generated from parking as a whole. This means councils are still entitled to make a profit once fines, car parks and meter charges are put into the mix.

The catch is, the money raised must be used solely for transport whether it is fixing roads or paying for concessionary bus passes.

Barnet Council has been in the High Court before over  parking, and appears to be confused on the law where parking is concerned.

Other councils have maintained  that the profits raised are purely coincidental, and within the law. Councils in England and Wales cannot understand what possessed Barnet Council to ask Pricewaterhouse Coopers to include money raised from permits into the calculations.

The High Court ruling paves the way  for legal challenges against other councils profiting from selling residents’ permits.

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.