THE HIGH COURT
Record No. 5813P/2003
Between:
Ann Lawrence, Patrick Lawrence, Mary Lawrence (A Minor) suing by her father
and next friend Patrick Lawrence, Bernard Lawrence (A Minor) suing by his
father and next friend, Gerard Lawrence (A Minor) suing by his father and next
friend Patrick Lawrence, Ellen Marie Lawrence (A Minor) suing by her father
and next friend Patrick Lawrence, Margaret Lawrence (A Minor) suing by her
father and next friend Patrick Lawrence, Cathleen Lawrence (A Minor) suing by
her father and next friend Patrick Lawrence, Patrick Lawrence (A Minor) suing
by his father and next friend Patrick Lawrence, Anne (Brigid) Lawrence (A
Minor) suing by her father and next friend Patrick Lawrence
Plaintiffs
V
Ballina Town Council, The County Council of the County of Mayo, the
Commissioner of an Garda Síochána, Director of Public Prosecution (at the suit
of Sergeant Anthony Lavelle) , The District Judge sitting at Ballina District Court,
Ireland and the Attorney General
Defendants
And
The Human Rights Commission
Amicus Curiae
And
The Equality Authority
Amicus Curiae
SUBMISSIONS ON BEHALF OF
THE HUMAN RIGHTS COMMISSION
1
1.
INTRODUCTION
1.1
The Human Rights Commission (hereinafter “the Commission”) makes the
following submissions in relation to a number of issues arising in the proceedings before
this Honourable Court.
1.2
The Commission’s functions are set out in the Human Rights Commission Act
2000 as amended. Section 8(h) empowers the Commission to apply to the High Court and
to the Supreme Court to be joined as amicus curiae in proceedings before the Court that
pertain to the human rights of any person and to appear as such on foot of an order of the
Court. The term “human rights” is defined in the Act of 2000 as meaning:
“(a) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the
Constitution, and
(b) the rights, liberties or freedoms conferred on or guaranteed to, persons by any
agreement, treaty or convention to which the State is a party.”
1.3
The Commission is of the view that the proceedings herein raise certain
fundamental issues pertaining to the protection of human rights. In that regard, it will
address whether or not Sections 19C(1) and Section 19(F) of the Criminal Justice (Public
Order) Act 1994 as inserted by Section 22 of the Housing (Miscellaneous Provisions) Act
2002 (hereinafter referred to together as “the Act of 2002”) meet the requirements of the
relevant rights provisions in the Constitution and in pertinent international instruments. The
Commission notes that the Equality Authority was joined as amicus curiae for the purpose of
addressing the Court on Council Directive 2000/43/EC of 29 June 2000 implementing the
principle of equal treatment between persons irrespective of racial or ethnic origin (the Race
Directive) and thus the Commission does not propose to address same in the course of its
submissions nor at the hearing of this action.
1.4
On the 20th June 2005, the Commission applied to be joined as amicus curiae in the
proceedings and that application was acceded to by O’Neill J. On the 18th day of July 2005,
the matter was re-entered before O’Neill J by the Third and Fourth Named Defendants for
clarification in relation to certain matters, and on that date, O’Neill J directed the
amendment of the Order of the 20th June joining the Commission, to record an undertaking
by Counsel for the Commission “not to duplicate submissions made by any other party
2
herein at the hearing of the matter [and] to be as brief as possible in the making of
submissions”. Thus, although the Commission herein addresses the issues with which it is
concerned in the proceedings, it is to be anticipated that it will not address same before
this Honourable Court to the extent that those issues are aired by the parties themselves.
2.
THE RELEVANCE OF INTERNATIONAL LAW PROVISIONS
2.1
The Commission submits that, when considering the constitutionality of the
impugned provisions, the interpretation and understanding of the relevant constitutional
provisions ought to be informed by the provisions of international Conventions ratified
by the State. In the event of any conflict between the provisions of an international
convention and any provision within the domestic legal framework, effect must, of
course, be given to the domestic provisions. To do otherwise would be to ignore the rule
embodied in Article 29(6) of the Constitution that no international agreement shall be
part of the domestic law of the State save as may be determined by the Oireachtas and
would also amount to disregard of Article 15.2.1º which confers the sole and exclusive
law making power in the State upon the Oireachtas.1
2.2
Thus, any attempt to use the provisions of unincorporated international law,
whether on the assertion that the provisions ought to be regarded as “generally
recognized principles of international law” referred to in Article 29.3 of the Constitution
or otherwise, as a basis for challenging the validity of any rule of domestic law is doomed
to failure.2 Nonetheless the Courts have on a number of occasions shown a willingness,
1 As the Supreme Court noted in Re Ó Laighléis [1960] IR 93 wherein the Applicant sought to challenge the
validity of the Offences against the State (Amendment) Act 1990, having regard to the terms of Articles 5
and 6 of the European Convention of Human Rights:
“Where there is an irreconcilable conflict between a domestic statute and the principles of
international law or the provisions of an international convention, the courts administering ‘the
domestic law must give effect to the statute … if this principle were not to be observed it would
follow that the Executive Government by means of an international agreement might, in certain
circumstances, be able to exercise powers of legislation contrary to the letter and the spirit of the
Constitution”.
2 In Murphy v GM [2001] 4 IR 113 the Plaintiff argued that the provisions of the Proceeds of Crime Act
1996 infringed the European Convention on Human Rights, that the Convention ought to be regarded as
part of the generally recognized principles of international law referred to in Article 29.3 and that
accordingly, the Act must be considered unconstitutional. This argument was rejected by the Supreme
Court, who held (at p. 158):
“this case concerns the application of domestic legislation to persons within the jurisdiction of
the State. In these circumstances it is not relevant or necessary to consider the application of the
‘principles of international law’ in the case and in particular whether the provisions of the
European Convention on Human Rights ought to be treated as included in those ‘principles’, as
3
in the absence of conflict between domestic and international provisions, to consider the
terms of such international instruments with a view to informing their understanding of
the applicable constitutional standards.
2.3
Thus, for example, in State (Healy) v Donoghue,3 the Supreme Court had regard to
the terms of Article 6 of the European Convention on Human Rights (hereinafter “the
ECHR”) when considering the scope of the right to legal aid under Irish law. Although
the ECHR at that time had been ratified by Ireland but not incorporated into the
domestic legal system, O’Higgins CJ nevertheless stated that:
“it is sufficient to say that the existence of the Convention demonstrates clearly
that it was … generally recognized throughout Europe that, as one of his
minimum rights, a poor person charged with a criminal offence had the right to
have legal assistance provided for him without charge”.
2.4
The Supreme Court was therefore willing to have regard to an unincorporated
international instrument in the context of its interpretation of the constitutional
guarantee of the right to a trial in due course of law as protected in Article 38 and of the
guarantees set out in 40.3 of the Constitution. In this case, the Court saw the
acknowledgement of the right to legal aid under the ECHR as significant in its
confirmation of the generally recognised existence of such a right.
2.5
Similarly, in O’Leary v Attorney General,4 when considering the constitutional status
of the presumption of innocence (in the context of the guarantee of a trial in due course
of law pursuant to Article 38 of the Constitution), Costello J reviewed the status afforded
Article 29.3 of the Constitution makes clear that these general principles, whatever their content,
govern relations with other sovereign states at an international level”.
Similarly, in Kavanagh v Governor of Mountjoy Prison [2002] 3 IR 97 an attempt was made to invoke Article 29.3
in support of the argument that certain principles of international law should be afforded constitutional
status. In particular, the applicant sought to rely on Article 26 of the UN Covenant on Civil and Political
Rights (principle of equal treatment) in support of his claim that his trial before the Special Criminal Court
was not in conformity with law. The Supreme Court rejected this contention, with Fennelly J stating (at
p.90):
“The obligation of Ireland to respect the invoked principles [of international law] is
expressed only in the sense that it is to be ‘its rule of conduct in relation to other nations’. It is
patent that this provision confers no rights on individuals. No single word in [Article 29.3] even
arguably expresses an intention to confer rights capable of being invoked by individuals”.
3 [1976] IR 325.
4
to the presumption in a number of international instruments, including Article 6(2) of
the ECHR and Article 11 of the UN Universal Declaration on Human Rights 1948.
Costello J then concluded (at p.107):
“by construing the Constitution in the light of contemporary concepts of
fundamental rights, (as I am entitled to do: see State (Healy) v Donoghue) the
plaintiff’s claim obtains powerful support.”
2.6
Further examples of such judicial willingness can be found in the judgments of
the Supreme Court in Rock v Ireland5 and Murphy v I.R.T.C.6 in which the principle of
proportionality (and the parameters of that principle), as expounded in the jurisprudence
of the European Court of Human Rights, was adopted and employed in a domestic
context prior to the incorporation of the ECHR.
2.7
Indeed, unincorporated international law provisions may have indirect effect
through the operation of a presumption of compatibility of domestic law with
international obligations. In State (DPP) v Walsh,7 Henchy J expressed the view that our
domestic laws are generally presumed to be in conformity with the then unincorporated
European Convention on Human Rights. The notion of such a presumption was
endorsed by O’Hanlon J, in support of his view that the provisions of the European
Convention on Human Rights, then unincorporated, ought to be considered by Irish
judges when determining what public policy was: Desmond v Glackin (No.1).8 Reference is
also made to the judgment of Finlay-Geoghegan J in Nwole v Minister for Justice,9 when
considering aspects of the asylum application process as it applied to minors. The learned
judge stated that:
[1997] 3 IR 484.
1999] 1 IR 12. In both cases, the Supreme Court adopted Costello J’s formula regarding the principle of
proportionality in Heaney v Ireland [1994] 3 IR 593 in which he referred to the test frequently adopted by
the European Court of Human Rights as set out, for example, in Times Newspapers Ltd v UK (1979) 2
EHRR 245.
7 [1981] IR 412 to the effect that our laws are generally presumed to be in conformity with the then
unincorporated European Convention on Human Rights.
8 [1992] 2 ILRM 490. In O Domhnaill v Merrick [1984] IR 151, Henchy J noted the submission that the
Statute of Limitations 1957, enacted after the State ratified the European Convention on Human Rights,
should be deemed to be in conformity with the Convention in the absence of any contrary intention, and
should be construed and applied accordingly. However, Henchy J did not express a concluded opinion on
the point as the application of the Convention had not been argued. McCarthy J in his judgment stated (at
p.166) “I accept, as a general principle, that a statute must be construed, so far as possible, so as not to be
inconsistent with established rules of international law and that one should avoid a construction which will
lead to a conflict between domestic and international law”.
9 High Court (Finlay Geoghegan J) 31st October 2003, at p.12.
5
6
5
“The provisions of the Refugee Act of 1996 [regarding the processing of
applications for asylum] must be construed, and its operation applied by the
authorities, in accordance with the Convention on the Rights of the Child which
has been ratified by Ireland.”10
2.8
It is thus clear that Finlay Geoghegan J was willing to have regard to the terms of
an international agreement in her consideration of the rights of minors in the asylum
process in this jurisdiction. Likewise, in Bourke v Attorney General,11 the Supreme Court,
when interpreting the meaning of the term “political offence” in Section 50 of the
Extradition Act 1965 placed reliance upon the meaning attributed to same in the
European Convention on Extradition, and also upon the travaux preparatoires thereof.12
2.9
It is also of interest to note that the approach advocated by the Commission
corresponds with the practice often adopted by the European Court of Human Rights
wherein the Court has considered the provisions of relevant international law provisions
when considering the meaning and parameters of rights protected under the ECHR. One
clear example is to found in the judgment of the Court in Chapman v United Kingdom13 to
which reference will be made in the body of these submissions. In the course of
considering the relevance of Article 8 of the ECHR to the circumstances of a woman, a
Gypsy, who argued that the actions of the relevant public authorities interfered with her
pursuit of her right to pursue a nomadic lifestyle, the Court had considered the Council
of Europe Framework Convention on the Protection of National Minorities and also to
certain measures adopted by the institutions of the European Union before reaching its
Finlay Geoghegan J went on to consider the terms of Article 12 of the Convention on the Rights of the
Child, which entitles children capable of forming their own views to “the right to express those views
freely in all matters affecting the child, the views of the child being given due weight in accordance with the
age and maturity of the child”. It also contained provision for the child having an opportunity to be heard
in any judicial and administrative proceedings affecting the child. Finlay Geoghegan J concluded that (at
p.13) “this would appear to require, at a minimum, an inquiry by or on behalf of the respondent in respect
of any minor applicant for a declaration of refugee status as to the capacity of the minor and the
appropriateness of conducting an interview with him or her”.
11 [1972] IR 36.
12 This may be seen as an example of the principle of statutory construction referred to by the House of
Lords in Garland v British Rail [1983] 2 AC 751 at 771 “that the words of a statute passed after a treaty has
been signed and dealing with the subject matter of the international obligation of the State are to be
construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation
and not to be inconsistent with it.”
13 (2001) 33 EHRR 399.
10
6
conclusions as to the applicability of Article 8 to claims based upon the right “to pursue a
gypsy way of life”.
2.10
Thus, it is submitted that the Courts have shown a willingness to use non-binding
instruments to inform the understanding of specific and consistent constitutional
provision to which the non-binding international provision may be “pinned”. The
international instrument may be seen both as a buttress and a guide to existing
constitutional guarantees, as far as the interpretation of the statutory provision before the
court is concerned. The Commission is of the opinion that it is entirely appropriate that
the Constitution and the guarantees thereunder should be informed by international
treaties ratified by the State, where such a state of affairs is possible, and thus endorses
the above approach in the context of the proceedings herein.
2.11
The above argument regarding the role to be played by international law in
informing our understanding of constitutional provisions applies equally in relation to
the ECHR. In addition, however, to that role, direct reliance may be placed upon the
ECHR in a domestic context since the implementation of the European Convention on
Human Rights Act 2003. Sections 2, 3 and 5 of that Act are set out in the Plaintiff’s
submissions. It is noted that the Plaintiff sought to amend the pleadings herein to take
account of the implementation of this Act and also to take account of Council Directive
2000/43EC. That application was refused by Johnson J on the 28th day of February 2005
who expressed the view that it was not necessary to do so as no new facts were sought to
be advanced: the points of law in issue were matters for argument at the hearing of the
action and did not necessitate an amendment to the pleadings. In the draft amended
Statement of Claim prepared by the Plaintiffs for the purpose of the application, two
Declarations of Incompatibility pursuant to Section 5 of the Act of 2003 were sought. It
is therefore to be expected that the Plaintiffs will raise arguments based upon the
incompatibility of the impugned provisions with the ECHR in the course of the hearing
herein. It is noted, however, that the Court may of its own motion declare a provision to be
incompatible with the ECHR pursuant to Section 5 of the European Convention on
Human Rights Act 2003.
2.12
In view of the fact that issues of compatibility of the impugned provisions with
the ECHR may be raised and considered on a separate basis, it is proposed herein to first
7
of all consider the constitutional dimensions of the issues which arise in the proceedings,
as informed by relevant international law standards, and thereafter to consider the ECHR
dimension separately, bearing in mind all the while that that dimension may also inform
the constitutional understanding of the issue raised.
3.
RECOGNITION OF TRAVELLERS’ RIGHTS
3.1
It is submitted that the question of respect for Traveller identity, culture and
values is at the heart of issues arising in this case as to the compatibility or lack of
compatibility of the impugned legislation with domestic and international human rights
norms. Travellers regard themselves as a distinct group14 within society and are so
regarded by the settled community15. It is argued that the values at the core of the
Constitution require respect for the right to pursue life as a Traveller and to adhere to
Traveller values. The principles of dignity, autonomy and privacy are central to the
constitutional order. In that regard, it is noted that in Re a Ward of Court (No. 2)16 Denham
J described the right to be treated with dignity as “an unspecified right under the
Constitution”. Dignity is strongly associated with the right to privacy: McGee v Attorney
General,17 Norris v Attorney General,18 and Kennedy v Ireland.19 The courts in recent years have
placed a strong emphasis on autonomy as a constitutionally protected value which is
The Committee on the Elimination of Racial Discrimination in General Recommendation No. 08:
Identification with a particular racial or ethnic group (August 22, 1990) recommended that that “such
identification shall, if no justification exists to the contrary, be based upon self-identification by the
individual concerned.”
15
As Crowley notes in “Travellers and Social Policy” in Contemporary Irish Social Policy (Quin, Kennedy,
O’Donnell and Kiely (eds), (University College Dublin Press 1999) at p. 244, “[T]ravellers share common
cultural characteristics, traditions and values which are evident in their organization of family, social and
economic life. Nomadism, in a range of forms, has been central to the development and expression of
these characteristics, traditions and values. Travellers have a long shared history which, though
undocumented, can be traced back before the 12th century through mention of Travellers in the law and
through analysis of their language, Cant. They have a distinct oral tradition and largely marry within their
own community.”15 Crowley asserts that such elements have all been identified as defining an ethnic
group. Likewise G. Whyte has argued that “a very strong case can be made for Traveller ethnicity”: Social
Inclusion and the Legal System (IPA 2001) at p. 216.
16 [1996] 2 IR 79.
17 [1974] IR 284.
18 [1984] IR 36.
19 [1987] IR 58. See also the dissenting judgment of Henchy J in Norris v Attorney General [1984] IR 36
where he commented (at p.71) that, having regard to the purposive Christian ethos of the Constitution,
“there is necessarily given to the citizen, within the required social, political and moral framework, such a
range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an
individual in the type of society envisaged”
14
8
inherent on the rights to liberty and due process and indeed it was recognised as a
distinct personal right in Re a Ward of Court (No. 2). The constitutional right to travel
within the State must also be borne mind in this context. The right to personal liberty,
guaranteed by Article 40.4, is now commonly understood to inform this right,20 although
the initial identification of the right located it within the guarantee of personal rights
contained in Article 40.3. Thus, in Ryan v Attorney General,21 Kenny J gave as an example
of “the many personal rights of the citizen which flow from the Christian and democratic
nature of the State which are not mentioned in Article 40 at all”, but which are latent
within that Article, as the “right to free movement within the State”.
3.2
Finally, the constitutional guarantee of equality in Article 40.1 must inform the
debate regarding the protection of Traveller identity. That provision envisages that:
1.
All persons shall, as human persons, be held equal before the law,
2.
This shall not be held to mean that that State shall not in its enactments
have due regard to differences of capacity, physical and moral, and of social
functions.”
3.3
Of importance in this context is the observation of Walsh J in Quinn’s Supermarket
v Attorney General22 that:
“[T]his provision is not a guarantee of absolute equality for all citizens in all
circumstances but it is a guarantee of equality as human persons and (as the Irish
text of the Constitution makes quite clear) is a guarantee related to their dignity as
human beings and a guarantee against any inequalities grounded upon an
assumption, or indeed a belief, that some individuals or racial, social or religious
background, are to be treated as the inferior or superior of other individuals in
the community.”
3.4
As Denham J noted in Re a Ward of Court (No.2), this concept:
Described by Hogan & Whyte in the following terms: “a deprivation of liberty, although instinctively
pictured in the form of imprisonment or being locked up, is essentially a deprivation of mobility”: Kelly: The
Irish Constitution (LexisNexis Butterworths 2003) at p.1466.
21 [1965] IR 294.
22 [1972] IR 1 at 13-14
20
9
“is not a restricted concept, it does not mean solely that legislation should not be
discriminatory. It is a positive proposition.”23
3.5
The concept of indirect discrimination is considered at a later point in the
submissions. For present purposes, however, (and despite the recognition that
jurisprudence on constitutional equality is at a relatively underdeveloped stage as yet), it
suffices to say that if Article 40.1 imposes an obligation to protect and promote, in a
legislative context, the concept of equality between different groups within society, then
it too may support the contention that the constitutional order demands that respect be
afforded to Traveller culture and values.
3.6
It is submitted that the combined effect of the above provisions is to create a
constitutional environment in which respect is to be afforded to Traveller values and
ways of living. Indeed, there are both judicial pronouncements and legislative provisions
which endorse this perspective. In Re F O’D, An Infant; Southern Health Board v An Bord
Uchtála24 a case concerning the contested adoption of a child of married Traveller
parents, Denham J stated:
“There is no doubt that it is a matter of great importance to take care in placing a
child in a family of different cultural ethnic background – to ensure that the
child’s interests are served. These interests may include knowledge of his social,
cultural and ethnic background”.
3.7
A number of legislative acknowledgements of the separate identity of Travellers
also exist. The first legal definition of Travellers was found in section 13 of the Housing
Act 1988 as amended by section 29 of the Housing (Travellers Accommodation) Act
1998. They are defined in that section as:
“persons who traditionally pursued or have pursued a nomadic way of life.”
3.8
The Employment Equality Act 1998 prohibits discrimination on the basis of
“race, colour, nationality, or ethnic or national origin” and then separately prohibits
discrimination on the basis of membership of “the Traveller community” (Sections 6(2)
23
24
[1996] 2 IR 79 at 159.
[2000] 1 IR 165.
10
(h) and (i) of the 1998 Act). The Equal Status Act 2000 repeats this formula, whilst also
including a definition of the “Traveller community” at s.2(1) as meaning:
“the community of people who are commonly called Travellers and who are
identified (both by themselves and others) as people with a shared history,
culture and traditions including, historically, a nomadic way of life on the island
of Ireland.”
3.9
In view of the Commission’s contention that, in the absence of conflicting
domestic provisions, the provisions of the Constitution ought to be informed by the
relevant provisions of those international instruments to which the State is a party, a
number of those instruments offering guidance on the recognition of the validity of the
Traveller way of life and on the obligation upon states parties to protect same fall to be
considered at this juncture.
3.10
The Convention on the Elimination of Racial Discrimination (hereinafter
“CERD”) is a UN treaty aimed at the eradication of racism and racial discrimination
worldwide.25 Ireland signed the Convention in 1968 but has thus far taken no steps to
incorporate the Convention into Irish law. The State ratified the Convention in
December 2000, at which time it also accepted the right of individual petition under
Article 14 of the Convention.
3.11
Article 2 of CERD provides that the States Parties condemn racial discrimination
and undertake to pursue by all appropriate means a policy of eliminating all forms of
racial discrimination in all its forms. It is also provided, at Article 2(3), that each State
Party shall:
“take effective measures to review governmental, national and local policies, and
to amend, rescind or nullify any laws and regulations which have the effect of
creating or perpetuating racial discrimination wherever it exists.”
3.12
At Article 5, States Parties undertake to prohibit and to eliminate all forms of
racial discrimination and to guarantee the right of everyone, without distinction as to
25
The treaty was adopted by the UN in 1965 and came into force in 1969.
11
race, colour or national or ethnic origin, to equality before the law in the context of the
enjoyment of a comprehensive list of rights thereafter set out.
3.13
Article 1.1 of CERD provides that:
“In this Convention, the term "racial discrimination" shall mean any distinction,
exclusion, restriction or preference based on race, colour, descent, or national or
ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other
field of public life.”
3.14
The Commission regards Travellers as an ethnic group for the purposes of this
Convention and it contends that the philosophy underlying CERD is one which requires
the provision of respect and protection for, amongst others, such groups.
3.15
In Ireland’s First National Report under the Convention on the Elimination of All Forms of
Racial Discrimination,26 the State for the first time expressly denied that Travellers
constituted a distinct ethnic group. Whilst the report asserts that the State is committed
to applying all the protections afforded to ethnic minorities by CERD to Travellers, it
nevertheless refuses to acknowledge that Travellers do in fact constitute such an ethnic
minority group. In its response, the Committee on the Elimination of Racial
Discrimination expressed its disappointment at the stance adopted by the Government
in that regard.27
3.16
Likewise in its First Report to the Advisory Committee of the Council of Europe in relation
to the Framework Convention on the Protection of National Minorities, the Government
concluded that Travellers are not a “national minority”.28 It did, however, regard them as
March 25, 2004.
In the Concluding observations of the Committee on the Elimination of Racial Discrimination (April 14, 2005), the
Committee stated at paragraph 20:
“Recalling its general recommendation VIII on the principle of self-identification, the
Committee expresses concern at the State party's position with regard to the recognition of
Travellers as an ethnic group. The Committee is of the view that the recognition of Travellers
as an ethnic group has important implications under the Convention (arts. 1 and 5).”
The Committee went on to encourage Ireland to “work more concretely towards recognising the Traveller
community as an ethnic group”.
28 November 13, 2001. The Report provided as follows:
26
27
12
an “indigenous minority who have been part of Irish society for centuries and confirmed
that it fully accepted the right of Travellers to their cultural identity, regardless of
whether they may be described as an “ethnic group” or “national minority””.
3.17
As the Human Rights Commission noted in its Discussion Paper on Travellers as an
Ethnic Minority under CERD29 at p. 4:
“the term ‘ethnic origin’ and related terms like ‘ethnic group’ or ‘ethnic minority’
have a particular meaning for the purposes of CERD and other relevant
international instruments. What is meant is evidently a group that is liable to
discrimination on the basis that it is different and distinct from the majority in a
way that is similar to, but not the same as, groups whose skin colour is different
or who are clearly of a different nationality. The terms ‘ethnic origin’, ‘ethnic
group’ etc are clearly intended to be used in a broad and flexible way to deal with
groups who do not readily fit into the traditional categories of race and colour”.
3.18
The judgment of Lord Frazer in the House of Lords decision in Mandla v Dowell
Lee30 is most instructive in so far as the classification of the term “ethnic origin” is
concerned. The Judge stated that:
“the conditions which appear to me to be essential [for the identification of a
distinct ethnic group] are these:
“[The term] "national minority" is not, as such, legally defined under Irish law. Ireland has not made
a declaration on the application of the Convention to any particular national minority or minority
community. In its international human rights policy, Ireland has supported the view that the
designation and protection of national minorities is an integral part of the international protection
of human rights and does not fall solely within the reserved domain of the State concerned. In
this regard, Ireland notes General Comment 23(50) of the UN Human Rights Committee on
Article 27 (rights of ethnic, religious and linguistic minorities) of the International Coherent on
Civil and Political Rights that the existence/designation of a minority does not depend upon a
decision by the State, but is required to be established by objective criteria. Ireland is also
conscious of the right (reflected in Article 3 of the Framework Convention) of individuals and/or
groups of individuals to freely choose whether or not to be treated as a recognised minority.
In order not to be at variance with these principles, which underpin the aims of the Framework
Convention, this - the first report to be submitted by Ireland - gives a detailed account of how the
provisions of the Framework Convention are given effect in law and practice in Ireland, without
seeking to designate a specific "national minority". That is not to say that such "national
minorities" may not emerge in the future.”
29 March 2004.
30 [1983] 2 AC 548.
13
(1) a long shared history, or which the group is conscious as distinguishing it
from other groups, and the memory which it keeps alive;
(2) a cultural tradition of its own, including family and social customs and
manners, often but not necessarily associated with religious observance.
In addition to these two essential characteristics, the following characteristics are
in my opinion relevant:
(3) either a common geographical origin, or descent from a small number of
common ancestors;
(4) a common language, not necessarily peculiar to the group;
(5) a common literature peculiar to the group;
(6) a common religion different from that of neighbouring groups or from the
general community surrounding it;
(7) being a minority or being an oppressed or a dominant group within a larger
community”.
3.19
Gypsies have been recognized as a distinct racial group in a number of decisions
of the English courts, such as Commission for Racial Equality v Dutton31 and Hallam v
Cheltenham Borough Council,32 and as a distinct ethnic group by the European Court of
Human Rights in Chapman v United Kingdom, where the court stated “the applicant’s
occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting
the long tradition of that minority of following a travelling lifestyle”. In O’Leary & Ors v
Allied Domecq & Ors33 Irish Travellers were found to constitute a “distinct ethnic group”
for the purpose of the Race Relations Act 1976; this finding is of particular interest in
this regard, particularly having regard to the similarity between the wording of that Act
and CERD.
3.20
In light of the above, the Commission once more submits that Travellers share
an ethnic origin and are an ethnic group for the purposes of the application of CERD.
3.21
It is to be noted that the definition of racial discrimination set out in Article 1.1
of that Convention, by its reference to the prohibition of measures which have the effect
[1989] 2 WLR 17.
[2001] UKHL 15.
33 Unreported, 29 August 2000.
31
32
14
of interfering with the enjoyment on an equal footing of human rights and freedoms,
embraces both direct and indirect discrimination. A similar prohibition is found in the
International Covenant on Civil and Political Rights. Article 26 thereof provides that:
“All persons are equal before the law and are entitled without any discrimination
to the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status.”
3.22
Unlike Article 14 of ECHR, considered below, and Article 2 of the Convention
on the Rights of the Child34 Article 26 is a freestanding non-discrimination provision
which is not ancillary to any other Covenant right. In General Comment 18, the United
Nations Human Rights Committee provides that in its view Article 26 embraces indirect
discrimination.35 A similar prohibition on indirect discrimination is to be found in the
Convention on the Elimination of Discrimination against Women.36 The Irish courts
have yet to have occasion to consider in any comprehensive way whether Article 40.1
embraces indirect discrimination and in such circumstances, the parameters of the
constitutional guarantee may be informed by the above international law provisions.37
3.23
A further guarantee of relevance from the point of view of the recognition of
Travellers’ rights can be found at Article 27 of the International Covenant on Civil and
Political Rights which provides that:
Article 2 of the CRC provides that “States Parties shall ensure respect and ensure the rights set forth in
the present Convention to each child within their jurisdiction without discrimination of any kind,
irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion,
political or other opinion, national or ethnic or social origin, property, disability or other status.”
Paragraph 7 states that discrimination shall cover:…any distinction, exclusion, restriction or preference
which is based on any ground such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and
freedoms.
36 Ratified in this State on December 23, 1985.
37 The right to equal treatment regardless of certain specified characteristics (e.g. sex, race, ethnic origin) is
a general principle of EU law, and its significance in the EU legal order can be seen from the provisions of
Article 21(1) of the EU Charter of Fundamental Rights, which prohibits “any discrimination based on any
ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief,
political or any other opinion, membership of a national minority, property, birth, disability, age or sexual
orientation shall be prohibited.” Although this is a non-binding instrument, it has been referred to by the
European Court of Justice in C540/03 Parliament v Council (unreported, June 27, 2006).
34
15
“In those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess their own
religion, or to use their own language.”
3.24
The Human Rights Committee has recognised that this provision imposes
positive obligations upon the States Parties to ensure that the existence and the exercise
of this right are protected; at General Comment 23, it states that:
“The Committee concludes that article 27 relates to rights whose protection
imposes specific obligations upon States Parties. The protection of those rights is
directed towards ensuring the survival and continued development of the
cultural, religious and social identity of the minorities concerned, thus enriching
the fabric of society as a whole.”
3.25
Of interest in this regard is the judgment of the Human Rights Committee in
Lovelace v Canada.
In that case, the Applicant, a Maliseet Indian, challenged the
provisions of the relevant federal legislation which provided that upon her marriage to a
person not of the native American community, she lost her “Indian status” and with that
lost, inter alia, the right to reside upon reserve lands. The Committee found that Canada
was in violation of Article 27 by denying Ms. Lovelace the opportunity to live on the
reserve, “the only place that she could practice her culture in community with other
members of the group” of persons of which she was a member38.
3.26
Similar sentiments regarding the benefit to be derived by the entire community
from the existence of such minority groups can be found in the Council of Europe’s
Framework Convention for the Protection of National Minorities which was opened for signature
in February 1995.39 Its Preamble expresses the view that:
38
Communication R6/24 UN Doc Supp. 40 (A 36/40)(1981
The Framework Convention is considered by the European Court of Human Rights in Chapman v United
Kingdom, considered infra.
39
16
“a pluralist and genuinely democratic society should not only respect the ethnic,
cultural, linguistic and religious identity of each person belonging to a national
minority, but also create appropriate conditions enabling them to express,
preserve and develop this identity.”
3.27 Article 4 contains a guarantee of equality and an undertaking by the State Parties to
adopt where necessary adequate measures40 in order to promote full and effective
equality between persons belonging to a national minority and those belonging to the
majority. At Article 5(1), the State Parties undertake to promote the conditions necessary
for persons belonging to national minorities to maintain and develop their culture and to
preserve the essential elements of their identity. Under Article 5(2), the Parties undertake
to:
“refrain from policies or practices aimed at assimilation of persons belonging to
national minorities against their will and [to] protect these persons from any
action aimed at such assimilation.”41
4.
The Protection of Travellers’ Rights under the ECHR
Article 8
4.1
The European Convention on Human Rights, and in particular Article 8(1), also
anticipates that respect shall be afforded to a Traveller way of life. Article 8(1) which
provides that “everyone has the right to respect for his private and family life, his home
and his correspondence” has been invoked before the European Court of Human Rights
In all areas of economic, social, political and cultural life.
In its First Report on the Convention submitted to the Advisory Committee of the Council of Europe,
the Government stated that
“Ireland's ratification of the Framework Convention is an integral part of the Irish Government’s overall
human rights strategy to advance justice and peace on these islands. The commitment to ratify the
Convention was made by the Irish Government under the Good Friday (Belfast) Agreement (1998)
which contains interlocking commitments on the part of both the British and Irish Governments with
respect to a wide range of human rights issues, including national minorities.”
Ireland signed the Framework Convention on February 1, 1995 and ratified it on May 7, 1999. The Framework
Convention entered into force with respect to Ireland on September 1, 1999. Ireland submitted its first State
Report under the Framework Convention on November 13, 2001. The Advisory Committee published its
Opinion on Ireland on May 22, 2003, with Ireland’s reply to that opinion submitted on October 23, 2003. The
Committee of Ministers adopted a Resolution on Ireland on 5 May 2004.Ireland submitted its Second Report
on December 7, 2005.
40
41
17
in a considerable number of cases involving persons of nomadic culture.42 Article 8(2),
which sets out the specific restrictions which may be imposed on the rights guaranteed
by its earlier counterpart, is discussed in detail below. For present purposes, however, it
is proposed only to consider the rights conferred by Article 8(1) for the purpose of
informing our understanding of those provisions which mandate the provision of respect
for Traveller culture and values. It is clear from the case law of the European Court of
Human Rights that the protection of Travellers’ interests and way of pursuing life
engages the right to respect for private life, family life and home. As the Court noted in
Connors v United Kingdom:43
“Article 8 [c]oncerns rights of central importance to the individual’s identity, selfdetermination, physical and moral integrity, maintenance of relationships with
others and a settled and secure place in the community.”
4.2
The observations of the European Court of Human Rights in Chapman v United
Kingdom44 neatly encapsulate the protection afforded by Article 8(1) in the context of
Travellers:
“The Court considers that the applicant's occupation of her caravan is an integral
part of her ethnic identity as a Gypsy, reflecting the long tradition of that
minority of following a travelling lifestyle. This is the case even though, under the
pressure of development and diverse policies or by their own choice, many
Gypsies no longer live a wholly nomadic existence and increasingly settle for long
periods in one place in order to facilitate, for example, the education of their
children. Measures affecting the applicant's stationing of her caravans therefore have an impact
going beyond the right to respect for her home. They also affect her ability to maintain her
identity as a Gypsy and to lead her private and family life in accordance with that tradition”45
[Emphasis added]
Connors v United Kingdom (2002) 35 EHRR 691; Chapman v United Kingdom (2001) 33 EHRR 399; Coster v
United Kingdom (2001) 33 EHRR 399; Beard v United Kingdom (2001) 33 EHRR 442; Lee v United Kingdom
(2001) 33 EHRR 677; Jane Smith v United Kingdom (2001) 33 EHRR 30.
43 (2002) 35 EHRR 691.
44 (2001) 33 EHRR 399.
45 At paragraph 73.
42
18
4.3
The Court also noted in Buckley v United Kingdom that “the concept of ‘home’
within the meaning of Article 8 embraces a “caravan” and added that it is not limited to
those which are lawfully occupied or which have been lawfully established46”.
4.4
While the object of Article 8 is essentially that of protecting the individual against
arbitrary interference by public authorities, it does not merely compel the State to abstain
from acts of interference; in addition to this primarily negative undertaking, there may be
positive obligations inherent in an effective respect for private or family life. Such
obligations may involve the adoption of measures designed to secure respect for private
life, family life and home. In Chapman v United Kingdom47 the European Court of Human
noted that:
“[A]lthough the fact of being a member of a minority with a traditional lifestyle
different from that of the majority of a society does not confer an immunity from
general laws intended to safeguard assets common to the whole society such as the
environment, it may have an incidence on the manner in which such laws are to be
implemented. As intimated in the Buckley judgment, the vulnerable position of Gypsies as a
minority means that some special consideration should be given to their needs and their different
lifestyle both in the relevant regulatory planning framework and in arriving the decisions in
particular cases. To this extent there is thus a positive obligation imposed on the Contracting States
by virtue of Article 8 to facilitate the Gypsy way of life”48 [Emphasis added]
(1996) 23 EHRR 101.
(2001) 33 EHRR 18.
48 In Botta v Italy (1998) 26 EHRR 241, the Court considered a claim from an applicant who was physically
disabled and prevented from using beach facilities while on holiday as certain ramp and access devices had
been removed. The Court reasoned that:
“… there may be positive obligations inherent in effective respect for private or family life. These
obligations may involve the adoption of measures designed to secure respect for private life even in
the sphere of the relations of individuals between themselves. However, the concept of respect is
not precisely defined. In order to determine whether such obligations exist, regard must be had to
the fair balance that has to be struck between the general interest and the interests of the individual,
while the State has, in any event, a margin of appreciation.”
However, the Court held against the Applicant on the ground that the right to gain access to the beach and
the sea at a place distant from his normal place of residence during his holidays, concerned interpersonal
relations of such broad and indeterminate scope that there can be no conceivable direct link between the
measures the State was urged to take in order to make good the omissions of the private bathing
establishments and the applicant’s private life. Nevertheless, Botta does stand as authority for the
proposition that Article 8 imposes a positive obligation on the State to respect family life.
In Marzari v Italy (1999) 28 EHRR CD 175, the applicant, who was disabled, claimed that Italy was obliged
to provide him with an apartment suitable to his needs. The factual context was complicated by several
factors: first, the applicant had been evicted from his previous apartment on account of non-payment of
rent; secondly, the applicant had been very obstructive of all efforts made by the State to find a solution to
his accommodation needs; and thirdly, the applicant insisted that he be allowed to live in a particular
apartment and was not prepared to accept another apartment, notwithstanding that the State had
46
47
19
4.5
In considering what that positive obligation to facilitate a traveller way of life
entails, the European Court of Human Rights has stopped short of imposing a general
obligation under Article 8(1) to provide suitable accommodation for all travellers. The
applicant in Chapman was a gypsy who had been refused planning permission to station
three caravans in which she and her family could reside on land which she herself owned
and who was thereafter served with enforcment notice designed to secure her removal
from her lands. Mrs. Chapman alleged that her Article 8 rights had been violated. A
majority of the Court rejected her claim,49 stating that:
“The Court does no[t] accept the argument that, because statistically the number of
Gypsies is greater than the number of places available in authorised Gypsy sites, the
decision not to allow the applicant Gypsy family to occupy land where they wished
in order to install their caravan in itself, and without more, constituted a violation of
Article 8. This would be tantamount to imposing on the United Kingdom, as on
other Contracting States, an obligation by virtue of Article 8 to make available to
the Gypsy community an adequate number of suitably equipped sites. The Court is
not convinced, despite the undoubted evolution that has taken place in both
international law, as evidenced by the Framework Convention, and domestic
legislations in regard to the protection of minorities, that Article 8 can be
interpreted to involve such a far-reaching positive obligation of general social policy
being imposed on States.
It is important to recall that Article 8 does not in terms give a right to be provided
with a home. Nor does any of the jurisprudence of the Court acknowledge such a
right. While it is clearly desirable that every human being has a place where he or
she can live in dignity and which he or she can call home, there are unfortunately in
the Contracting States many persons who have no home. Whether the State
provides funds to enable everyone to have a home is a matter for political not of
judicial decision."
undertaken to make whatever modifications were necessary to accommodate him properly therein. For
these reasons, although the Court found that Article 8 was prima facie applicable to the situation, it
concluded that the local authorities had discharged their positive obligations to the applicant.
49 The dissenting opinion of Judge Bonello in Chapman is set out below at paragraph 5.32.
20
4.6
This decision was followed by the European Court of Human Rights in the
admissiblity decision in Codona v United Kingdom.50 Injunction proceedings were issued
against Mrs. Codona, a Gypsy, because the site on which the caravans in which she and
her family resided were placed did not have the relevant planning permission. During the
course of court proceedings the applicant averred that she did not "wish to be given
bricks and mortar. She has always lived in a caravan, has only spent one night in a
building in her life. Mrs. Codona wishes to live in a caravan and have the support of her
extended family around her". The housing authority concluded that they could only offer
accommodation in a bed and breakfast establishment until it could make a final offer of
accommodation. The application before the Court of Human Rights was, in essence, for
relief under Article 8 as the applicant complained that the response of the housing
authority did not take into account her rights as a Gypsy pursuant to that Article 8. The
Court held:
"Following Chapman, the court does not rule out that, in principle, Article 8 could
impose a positive obligation on the authorities to provide accommodation for a
homeless Gypsy which is such that it facilitates their "Gypsy" way of life. However,
it considers that this obligation could only arise where the authorities had such
accommodation at their disposal and were making a choice between offering such
accommodation or accommodation which was not "suitable" for the cultural needs
of a Gypsy. In the instant case, however, it appears to be common ground that they
were, in fact, no sites available upon which the applicant could lawfully place her
caravan. In the premises, the court cannot conclude that the authorities were then
under a positive obligation to create such a site for the applicant (and her extended
family). Such would be to extend the positive obligation imposed by Article 8 far
beyond the - limited - bounds established in previous case law. In particular, to
accept that the authorities were under such an obligation would be to have the
effect of imposing upon the respondent State the positive obligation to create either
one or more caravan sites so as to equate supply with demand. The court recalls
that this was precisely the obligation that the Grand Chamber found that the
contracting states could not be said to owe in Chapman (para. 98). The court does
not find that there are any compelling reasons in the present case to depart from the
position adopted by the Grand Chamber in Chapman."
50
Judgment delivered on February 7, 2006.
21
4.7
In two recent decisions, the High Court has given consideration to the
application of Article 8 of the ECHR in a Traveller context. In Doherty v South Dublin
County Council,51 the applicants, an elderly Traveller couple who were suffering from poor
health, had been living in unsuitable caravan accommodation for a number of years and
were due to be accommodated by the respondent County Council in residential caravan
sites some eighteen months hence. In the interim, however, the respondent had offered
apartment accommodation to the applicants who had refused it and sought the provision
of a suitably adapted caravan during that period. Charleton J refused their application on
all grounds, including that based upon an alleged violation of Article 852 of the ECHR.
The Court noted:
“that there is no positive obligation to intervene to uphold private and family life
in Article 8 and that, expressly, the text forbids “interference by a public
authority with the exercise of this right.”
4.8
Nonetheless, the Court subsequently cited the above extracts from Chapman and
Codona regarding the existence of a positive obligation imposed on Contracting States by
Article 8 to facilitate the gypsy way of life. Charleton J thereafter appears to endorse the
view expressed by the English Court of Appeal in Anufrijeva v Southwark London Borough
Council53 to the effect that, while Article 8 may impose positive obligations, inaction shall
only constitute a lack of respect for private and family life if there is some culpability or
ground for criticising the failure to act. It is interesting to note that the Court of Appeal
in Anufrijeva provided that where the domestic law of a State imposes obligations in
relation to the provision of welfare support, breach of such positive obligations may
suffice to provide the element of culpability necessary to establish an Article 8 violation,
provided that the impact on private or family life is sufficiently serious and was
foreseeable. The application of such an approach in the context of the proceedings
herein would lead to the conclusion, if indeed it is established that the First and Second
Named Defendants breached their statutory duty pursuant to the Housing Acts in
relation to the Plaintiffs and it is furthermore established that the failure to accommodate
in fact prompted some or all of the consequences alleged by the Plaintiffs in the
Statement of Claim, that the failure to provide accommodation in the manner required
Unreported, High Court, Charleton J, January 22, 2007
The applicants also sought to invoke the prohibition on discrimination contained in Article 14.
53 [2004] 1 QB 1124.
51
52
22
amounted to a violation of the positive obligations imposed under Article 8. Charleton J
concluded that he found it “impossible to apply the tests of culpability and of inhuman
treatment where a number of offers of housing have been made, and where the best
form of halting site accommodation is to be made available to the applicants within 18
months.” He added that:
“I can find nothing in any [d]ecision of the European Court of Human Rights,
or of the courts in the United Kingdom or here, which would establish that the
particular aspect of family life that requires to be respected in the case of a
member of the Irish Traveller Community demands the provision of a new,
centrally heated, plumbed caravan with electricity supply. On analysis of the
relevant case law under the European Convention of Human Rights, my
judgment is that the statutory entitlements of the applicants exceed any benefit
that might be available to them on the basis of an interpretation of Article 8 of
the European Convention on Human Rights … I would add that the decisions
to date show a reluctance to require State authorities to intervene with forms of
welfare as an aid to the exercise of rights.”
4.9
In O’Donnell v South Dublin County Council,54 however, Laffoy J found a violation
on the particular facts of the case of the positive obligation of the Defendant housing
authority under Article 8(1) to provide appropriate accommodation for the three
Plaintiffs who were Travellers and all of whom suffered from severe physical disability.
Having distinguished the case before her from the Doherty case on account of the gravity
of the facts with which she had to contend and in view of the fact that in the Doherty
case an offer of accommodation had been made pending the completion of the new
facility for Travellers, Laffoy J noted that;
“This is not a case which is based on an assertion that the State or its organs has
a positive obligation to make certain provision for every Traveller family, for
instance, that the State should legislate or have an administrative scheme to
provide two de luxe mobile homes for every Traveller family. This is a case about
the particular circumstances of one family, which has three severely disabled
members, two of whom were minors when the proceedings started who, to the
knowledge of the defendant have been living in unacceptable conditions since
54
Unreported, High Court, Laffoy J, May 22, 2007.
23
2005 and whose plight is not going to be alleviated until August 2008 at the
earliest, if it will be then”.
4.10
As the facts before the High Court clearly engaged Article 8 of the ECHR,
Laffoy J proceeded to consider whether the refusal of the respondent County Council to
provide the appropriate accommodation sought constituted a legitimate restrcition
thereon. She noted that:
“The general interest which has to be weighed in the balance against the effect of
having to live in overcrowded, potentially unsafe and admittedly inadequate
accommodation for three and a half years and, perhaps, longer, which is what the
defendant’s refusal to fund the second mobile home has consigned the plaintiffs
to, in the terminology of Article 8, is the economic well-being of the State. It is
possible to evaluate the impact on the economic well-being of the State of
providing the second mobile home for the plaintiffs: the cost will be in the region
of €58,000 and the installation cost and the cost of connecting it with the services
and such like.”
4.11
Having concluded that the case before her was very unusual if not unique, Laffoy
J found that the refusal to provide the appropriate caravan constituted a violation of
Article 8 of the ECHR.
Article 14
4.12
A further provision to be considered in the context of the recognition of the
rights is the non-discrimination guarantee found in Article 14 of the ECHR. Headed
“Prohibition of discrimination”, it states that:
“The enjoyment of the rights and freedoms set forth in this Convention shall be
secured 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.”
24
4.13
Whilst reference must be made to Protocol 12 to the ECHR which contains a
free-standing prohibition on discrimination,55 it is not proposed to consider this in detail
herein as Ireland has not ratified same. Returning therefore to consider Article 14, it is
useful to refer to the judgment of Lord Nicholls judgment in R (Carson) v Secretary of State
for Work and Pensions56 which sets out neatly the parameters of the provision:
“… Article 14 does not apply unless the alleged discrimination is in connection
with a Convention right and on a ground stated in article 14. If this prerequisite is
satisfied, the essential question for the courts is whether the alleged
discrimination, that is, the difference in treatment of which complaint is made,
can withstand scrutiny. Sometimes the answer to this question will be plain.
There may be such an obvious, relevant difference between the claimant and
those with whom he seeks to compare himself that their situations cannot be
regarded as analogous. Sometimes, where the position is not so clear, a different
approach is called for. Then the court’s scrutiny may best be directed at
considering whether the differentiation has a legitimate aim and whether the
means chosen to achieve the aim is appropriate and not disproportionate in its
adverse impact.”
4.14
It is not necessary, in order for a claim under Article 14 to succeed, for an
applicant to show that the State is actually in breach of another Convention right. It is
sufficient for the applicant to show that the subject matter of the disadvantage
“constitutes one of the modalities” of the exercise of the right, or that the treatment
complained of is “linked” to the exercise of a Convention right.57 Furthermore, where
there is an interference with Article 8 of the ECHR, but it is justified under Article 8(2),
the interference may still be in violation of the Convention if it is discriminatory. In
Marckx v Belgium,58 the European Court of Human Rights stated:
Article 1(1) thereof provides that “The enjoyment of any right set forth by law shall be secured 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”. Article 1(2)
adds that “No one shall be discriminated against by any public authority on any ground such as those
mentioned in paragraph 1.”
56 [2005] 2 WLR 1369, at paragraph 3.
57 See Abdulaziz, Cabales & Balkandali v United Kingdom (1985) 7 EHRR 471; Petrovic v Austria (1998) 33
EHRR 307 at [22] and [28].
58
(1979) 2 EHRR 330 at 343
55
25
“The Court’s case law shows that, although Article 14 has no independent
existence, it may play an important autonomous role by complementing the other
normative provisions of the Convention and the Protocols: Article 14 safeguards
individuals, placed in similar situations, from any discrimination in the enjoyment
of the rights and freedoms set forth in those other provisions. A measure which,
although in itself in conformity with the requirements of the Article of the
Convention or the Protocols enshrining a given right or freedom, is of a
discriminatory nature incompatible with Article 14, therefore violates those two
articles taken in conjunction. It is as though Article 14 formed an integral part of
each of the provisions laying down rights and freedoms.”
4.15
A difference in treatment will be held to be discriminatory contrary to Article 14
if it has ‘no objective and reasonable justification’. In order to prove such justification, a
respondent must show that the difference in treatment pursues a ‘legitimate aim’, and
that there is a reasonable relationship of proportionality between the means employed
and the aim sought to be achieved.
4.16
The language of Article 14, talking as it does of the enjoyment of the rights and
freedoms protected under the ECHR, itself points towards a prohibition of indirect
discrimination, and as will be discussed in more detail below the European Court of
Human Rights has accepted that this Article does extend to the prohibition of measures
which, although facially neutral, produce effects that fall disproportionately on certain
persons.59
4.17
Despite its limitations, therefore, it appears that Article 14 can play a considerable
role within the ECHR framework as far as the protection of the rights and interests of
Travellers is concerned.
4.18
The Commission therefore submits that the values underlying the domestic legal
regime endorse notions of protection and respect for Travellers’ rights. It follows that
any measure which unduly and without justification impedes or restricts one of the
central tenets of that culture shall fall foul of those constitutional provisions and of the
59
As discussed in the Belgian Linguistic Case (1979-80) 1 EHRR 252, at 10 of section 1B.
26
ECHR which guarantee the provision of that respect. As with all rights, the rights
associated with pursuit of a Traveller lifestyle are not unlimited and aspects thereof may
be curtailed in order to protection the legitimate rights of others. Thus, as the impugned
provisions will clearly impact upon the nomadic practices of Travellers, it is necessary to
consider whether those provisions are a legitimate and proportionate response to the
need to protect competing property interests of other members of society. Before doing
so, however, it is proposed to consider the nature of the offence created by Section
19C(1).
5.
SECTION 19C(1)
(A) Due Process Considerations
5.1 The Commission submits that Section 19(C)(1) gives rise to a number of due process
concerns. In the recent case of McDonagh v Kilkenny County Council and others60, the
applicants sought orders preventing the further prosecution of two charges pursuant to
Section 19 of the Act of 1994, and in that regard, they raised, inter alia, a number of due
process arguments in relation to the Section. O’Neill J concluded that it was pre-emptive
to raise such arguments in judicial review proceedings in advance of the criminal trial.
The Court noted that;
“at this remove from the criminal trial, it cannot be ascertained whether these
applicants have any locus standi to raise these issues, as it is not yet apparent
what defences are available to them, or whether the aforesaid presumption [of
innocence] would be relied upon at all. Therefore it is not yet clear whether or
not any of the contentions sought to be raised in theses proceedings would
actually affect them in the criminal proceedings.”
5.2 In CC v Ireland61, the Supreme Court, sitting as a three judge court, considered
whether it was permissible for the applicant to mount judicial review proceedings in
advance of the criminal trial, in which he raised arguments regarding the constitutionality
and ECHR compatibility of the section under which he was charged. The Court found
60
61
Unreported, High Court, O’Neill J, 24th October 2007.
[2005] IESC 48.
27
that it was permissible to do so in the particular circumstances before it, placing
considerable reliance in so doing upon the fact that the High Court had already in that
particular case made a determination on the substantive issue and thus it would be
inappropriate for it to refuse to do so. In that regard, Fennelly proceeded to consider the
substantive issue in the light of the particular circumstances arising therein, while stating
that the Court should not approve, as a general rule, of the pursuit by applicants of a
judicial review route in which the interpretation of applicable statutory provisions was
raised in advance of a criminal trial. The Judge added that;
“It is [q]uite inappropriate and a usurpation of the function of the Court of trial
for an accused person – or the prosecution for that matter – to seek advance
rulings from the High Court as to how any legal provisions should be interpreted
in the course of a pending trial62”.
5.3 Geoghegan J expressed sympathy with the general proposition that the subtstantive
issues ought to be raised at the criminal trial and not in judicial review proceedings, but
concluded that in view of the prior determination by the High Court in that particular
instance, it would be unjust and wrong in principle for the Supreme Court not to make
its own decision on the issue. Denham J. reached the same conclusion as her two
colleagues, but pointed to a number of bases for her conclusion. In that regard, the Judge
had regard to the fact that the applications for judicial review had been brought at the
preliminary stage of the criminal process; no indictment had been laid although the
charges were known.
63
She then added that although the facts in the case before the
Court were somewhat hypothetical, the kernel issue to be determined was clear and thus
the Court was in a position to consider the law and construe the statute in question to
determine the issue in question. She therefore concluded that;
62
Page 105. The High Court came to a similar conclusion in Kennedy v Ireland (Unreported, High
Court, MacMenamin J) in the context of a challenge to the constitutionality and ECHR compatibility of
Section 4 of the Prevention of Fraud (Amendment) Act,2001 although this was not the section under
which the applicant was charged. It should also be noted that the application before the High Court in
that instance was made some three days prior to the commencement of the proposed trial.
63
Denham J noted that there is an important difference between considering an application for judicial
review in the currency of a trial as opposed to an application prior to the commencement of the trial,
prior to the laying of the indictment. In DPP V Special Criminal Court [1999] 1 IR 60, the Supreme
Court noted that judicial review is an available remedy in principle which permitted challenges to
decisions made in the course of a criminal trial, but only in the most exceptional cases.
28
“There is no doubt but that it is wholly undesirable that a criminal trial be
delayed while an application for judicial review proceeds. However, I am satisfied
that in all the circumstances of this case, including the judgment of the High
Court on the substantive issue, the facts and the issues raised, that in these cases
there were circumstances so as to justify proceeding by way of judicial review.
The alternative options, including an appeal to the Court of Criminal Appeal and
perhaps ultimately on a point of law of exceptional public importance to the
Supreme Court, or a case stated, may not enable a fair and just trial. It would be
unfair to force the three applicants to endure a trial without final determination
of the issue of the defences available, which goes to the core of the prosecution
and the defence. It is fair and just that the applicants have a legal determination, a
statutory interpretation, in all the circumstances prior to the trial. [H]owever, this
decision should not be regarded as a precedent determining that an issue of
statutory interpretation would routinely be circumstances such as to provide a
basis for a judicial review pre-trial.64”
5.4 If the Plaintiffs herein are permitted to raise due process arguments before the
Court, by reason of establishing circumstances which justify a departure from the general
rule regarding the appropriate forum for the consideration of such matters or indeed by
otherwise satisfying the Court of the appropriateness of arguing the said issues at this
juncture, the Commission will make the following observations in relation to the
substantive issues at play. Issues such as the impact which the impugned provisions
have upon the right to respect for the home, private life and cultural and ethnic identity
of all of the Plaintiffs herein may be of relevance for the purpose of determining whether
or not the general rule ought to be adhered to in this instance.
(i) The Mens Rea Requirement
5.5
It must first of all be considered whether or not it is necessary for the
prosecution to establish mens rea on the part of an accused in the context of the offence
in question. Thus, is the prosecution required to prove knowledge or recklessness on the
part of the accused as to whether his or her entry on the lands was without consent, or,
64
Pages 52-53.
29
to put the matter another way, is the accused permitted to avoid criminal liability by
arguing in his defence that he was mistaken, on reasonable grounds, as to the presence or
absence of consent65. The section does not provide for either of these propositions,
although this is not of significance in and of itself as “it is quite a normal legislative
practice not to make any reference to mens rea, however serious, even though the
principle of mens rea would have long been held to apply to such offences.”66 Indeed, the
Irish courts have recognised that there is a statutory presumption of mens rea in criminal
offences. As Walsh J noted in People (DPP) v Murray:67
“It is well established that, unless a statute either clearly or by necessary
implication rules out mens rea as a constituent part of a crime, a court cannot
find a person guilty of an offence against the criminal law unless he has a
guilty mind.”
5.6
The judgments of the Supreme Court in CC v Ireland and PG v Ireland68 are
particularly instructive in that regard. In the former case, the Court considered whether
or not such a requirement arose in the context of offences contrary to the Criminal Law
(Amendment) Act 1935 of having unlawful carnal knowledge of a girl under 15 years of
age. In the latter case, the Court addressed the same question in the context of offences
contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by
Section 37 of the Sex Offenders Act 2001.
5.7
The accused in that instance was facing trial on two counts of sexual assault on a
thirteen year old girl and, like the accused in the CC case, wished to argue that he had
made a bona fide error as to the age of the complainant, alleging that he believed her to be
over the age of fifteen years. Although consent is normally a defence to a sexual assault
charge, such a defence was unavailable as a result of Section 14 of the Criminal Law
(Amendment) Act 1935, which precludes such a defence where a complainant is less than
15 years old. Neither Section 1(1) nor Section 14 of the Act of 1935 specifically excluded
reliance by an accused upon a bona fide mistake as to age, yet while the Court found that
65
The issue was thus categorized by Fennelly J in CC v Ireland, surpa n.60, when considering whether Section
1(1) of the Criminal Law (Amendment) Act 1935 (which created the offence of defilement of girl under
fifteen years of age) permitted a defence of reasonable mistake as to the age of the girl in question.
66 Per Geoghegan J in CC v Ireland, supra, n.61.
67 [1977] IR 360.
68 Supra, n 61.
30
Section 1(1) precluded reliance upon the defence of mistake, it reached a different
conclusion in relation to the application of Section 14 of the Act of 1935. As far as the
former was concerned, the majority of the Court concluded that while the language of
the Section did not displace the presumption, recourse to the Section’s legislative
antecedents revealed that it replaced a provision which did permit of such a defence and
thus, the majority concluded, the intention of the Oireachtas when enacting the new
provision was clearly to remove the possibility of reliance upon mistaken belief as to age.
In the circumstances, the Court concluded that the statute “by necessary implication”
precluded such a defence. In the context of PG’s application, however, there were no
relevant historical considerations to be considered and thus the normal presumption in
favour of mens rea applied.
5.8
It would appear at first glance that the mens rea requirement also applies in
relation to offences pursuant to s.19C of the Act as there is no specific exclusion of that
requirement in that Section nor any historical context of relevance. An issue arises,
however, as a result of the application of Section 19G(2) of the 2002 Act which provides
that:
“in any proceedings for any offence under this Part it shall be presumed until the
contrary is shown that consent under this Part was not given”.
5.9
It would therefore appear that it is necessary for an accused to show that he or
she actually had consent to enter onto and occupy the lands in question and he or she
may not rely upon a mistaken belief, however reasonable, that such consent had been
granted. This seems to have the effect of displacing the presumption of mens rea and leads
to the worrying prospect that a person possessed of an “innocent mind” upon entry into
and occupation of the land in question may not be protected from conviction. Issues
arise regarding the compatibility of such a state of affairs with the guarantee of a fair trial
pursuant to Articles 38 of the Constitution, with the right to the vindication of one’s
good name and the right to liberty pursuant to Articles 40.3 and 40.4 of the Constitution
respectively.
31
5.10
The Supreme Court considered similar issues in the second case of CC v Ireland,69
in which the applicant sought to challenge the constitutionality of Section 1(1) of the Act
of 1935, in view of the finding of the Court in the earlier case that there was no
requirement to show mens rea in the context of prosecutions pursuant to that section.
Delivering judgment for the Court, Hardiman J relied upon the earlier decision of that
Court in the case of In the Matter of Article 26 of the Constitution and In the Matter of the
Employment Equality Bill, 1996.70 In the former case, the measure in question criminalised
“discrimination” and “victimisation” as defined in the Bill. It also provided that anything
done by a person in the course of his or her employment should be treated for the
purposes of the Act as done also by that person’s employer “whether or not it was done
with the employer’s knowledge or approval”. Judgment of the Court was delivered by
Hamilton CJ who said, at page 373:
“… [w]hat is sought to be done by this provision is that an employer, devoid
of any guilty intent, is liable to be found guilty on indictment of an offence
carrying a fine of £15,000 or a prison sentence of two years, or both such
fine and imprisonment, and to be tainted with guilt for offences which are far
from being regulatory in character but are likely to attract a substantial
measure of opprobrium. The social policy of making the Act more effective
does not, in the opinion of this Court, justify the introduction of so radical a
change to our criminal law. The change appears to the Court to be quite
disproportionate to the mischief with which the section seeks to deal.
In the course of his speech in Sweet v. Parsley [1970] AC 132 at 150 Reid L.J.
… referred to ‘the public scandal of convicting on a serious charge persons
who are in no way blameworthy’. Of course, the English Courts would have
to recognise that if Parliament decreed that a person should be found guilty
in those circumstances, then the legislation might be upheld because
Parliament
in
the
British
system
is
said
to
be
supreme.
Our situation, however, is totally different. We are governed by a
Constitution with the separation of powers as its fulcrum and the two
69
70
[2006] 2 ILRM 161.
[1997] 2 IR 321.
32
Houses of the Oireachtas are precluded from enacting any legislation which
is in any respect repugnant to the Constitution.
The Court concludes that to render an employer liable to potentially severe
criminal sanctions in circumstances which are so unjust, irrational and
inappropriate would make any purported trial of such a person not one held
in due course of law and, therefore, contrary to Article 38, s.1 of the
Constitution and also repugnant to the provisions of Article 40 s.1 of the
Constitution.”
5.11
Although the offence created by the Employment Equality Bill was a vicarious
one, Hardiman J noted in CC that there did not appear to be a distinction of substance
between being severely penalised for an act of which one was ignorant on the one hand,
and being even more severely penalised for an act of which one was aware but had no
reason to think was unlawful.
5.12
Hardiman J subsequently added:
“that to criminalise in a serious way a person who is mentally innocent is indeed
“to inflict a grave injury on that person’s dignity and sense of worth” and to treat
him as “little more than a means to an end”, in the words of Wilson J. [in R v City
of Sault Sainte Marie (1978) 85 DLR 161]. It appears to us that this, in turn,
constitutes a failure by the State in its laws to respect, defend and vindicate the
rights to liberty and to good name of the person so treated, contrary to the State’s
obligations under Article 40 of the Constitution.”
5.13 Although the Court was concerned in CC with an offence which carried a possible
life sentence, and Hardiman J did refer on a number of occasions to the seriousness of
the offence in question, it is submitted that the same principles apply in relation to the
offence created by Section 19(C) of the Act of 2002, thereby giving rise to the same
constitutional concerns.71
It is generally accepted that criminal liability depends on the coincidence of a mental element appropriate
to the offence together with the commission of the external elements of that offence. However, in the
context of the category of cases known as strict liability offences, all that the prosecution must prove is the
occurrence of the external element of the offence. Smith & Hogan draw a distinction between offences of
71
33
5.14 Article 6(1) of the ECHR provides that;
“In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal established by
law”.
It is clear from the jurisprudence of the European Court of Human Rights that
this Article provides guarantees in relation to the procedural standards to be
adhered for the purpose of ensuring a fair trial, and that the provision does not
authorise the Court to engage in an evaluation of the substantive provisions of
law, of which the mens rea component of Section 19(C)(1) is an example72.
(ii) The Presumption of Innocence
5.15
As noted above, Section 19G(2) of the 2002 Act provides that:
“in any proceedings for any offence under this Part it shall be presumed until the
contrary is shown that consent under this Part was not given”.
5.16
The presumption of innocence has been recognized as an essential constituent of
a trial in due course of law as guaranteed by Article 38.1. It is also a fundamental
requirement of a fair trial which is specifically referred to in Article 6(2) of the ECHR.
One consequence of the presumption of innocence is that the prosecution bears the legal
strict liability and offences of absolute liability, the latter of which admits no defence: Criminal Law (8th ed,
Oxford University Press 1996) at p.116-117. It may be argued that offences of absolute liability may be
acceptable in respect of “regulatory type offences”, whilst their appropriateness in respect of “truly
criminal offences” is in doubt in light of the decision of the Supreme Court in CC v Ireland, supra, n.69.
72
In “The Human Rights Act and Substantive Criminal Law” [2000] Crim LR 331 at 339, Buxton comments
that “To the extent that Convention jurisprudence has touched upon issues of mens rea, it has done so in
the context of what is, properly understood, an issue not of substantive but of procedural law, the role and
propriety of burdens and presumptions that place an obligation of proof of some osrt upon the
defendant.” Ovey and White in The European Convention on Human Rights (4th ed Oxford University Press
2006) state that “Article 6 cannot be used as a vehicle to criticize the content of domestic law”; page 191
(emphasis in original).
34
burden of proving every fact necessary to establish the guilt of the accused. Does Section
19G(2) have the effect of shifting the legal burden onto the accused, or is the burden
which the accused must bear simply evidential in the sense of having an obligation to
adduce sufficient evidence of a fact in issue to justify, as a possibility, a favourable
finding on that issue?
5.17
The test for determining whether a statute shifts the legal or the evidential
burden of proof was formulated by Costello J in O’Leary v Attorney General,73 where he
stated:
“if the effect of the statute is that the court must convict an accused should he or
she fail to adduce exculpatory evidence then its effect is to shift the legal burden
of proof… whereas if its effect is that notwithstanding its terms the accused may
be acquitted even though he calls no evidence because the statute has not
discharged the prosecution from establishing the accused’s guilt beyond a
reasonable doubt then no constitutional invalidity could arise”.74
5.18
Applying this test to Section 19G(2) of the 2002 Act, it would appear that this
provision cannot be regarded as shifting a legal burden, as the prosecution still bear the
burden of proving the guilt of the accused beyond a reasonable doubt in respect of other
elements of the offence, e.g. proof of entry onto or occupation of land, or of the
likelihood of one of the five detrimental consequences set out in Section 19C(i) – (v).
Furthermore, there is nothing in Section 19G(2) to prevent an accused person from
testing the probative value of the presumption in a number of ways, including crossexamination. Thus, it appears to entail a shifting merely of an evidential burden.
5.19
As noted above, the presumption of innocence is expressly recognized by Article
6(2) of the European Convention on Human Rights. The leading decision of the
European Court of Human Rights on Article 6(2) is Salabiaku v France.75 The European
Court of Human Rights stated that it would scrutinize presumptions of fact or law in
order to ensure that they did not in substance infringe the presumption of innocence,
recognizing that without this element of supervision, “the national legislature would be
free to strip the trial court of any genuine power of assessment and deprive the
[1993] 1 IR 102 (HC); [1995] 2 ILRM 259 (SC).
[1993] 1 IR 102, at p. 109.
75 (1991) 13 EHRR 379. This case concerned a smuggling provision under the French customs code.
73
74
35
presumption of innocence of its substance” (paragraph 28). The Court then formulated
the following statement of principle:
“Article 6(2) does not therefore regard presumptions of fact or law provided for
in the criminal law with indifference. It requires states to confine them within
reasonable limits which take into account the importance of what is at stake and
maintain the rights of the defence” (paragraph 28).
5.20
Whilst the shifting of an evidential burden is not, of itself, unconstitutional or
incompatible with the ECHR, it is clear from the jurisprudence of both the domestic
courts and the European Court of Human Rights that in order to be ECHR compliant,
the provision in question must not be a disproportionate measure. The test of
proportionality requires, in particular, a consideration of the context in which the
impugned legislation operates.
5.21
Thus, the fact that a statutory provision simply shifts the evidential burden is not
determinative of the question of a breach of the presumption of innocence. There are a
number of proportionality concerns which can be raised on behalf of the plaintiffs in the
present case. An issue of inequality of arms may be raised - why could the prosecution,
which has the benefit of superior resources as part of a well-equipped state apparatus,
not bear the burden of proving a lack of consent? Concerns as to the proportionality of
Section 19G(2) are even more pressing when considered in conjunction with the context
of the impugned legislation. In O’Leary v Attorney General,76 the Court considered the
proportionality of s.3(2) of the Offences Against the State (Amendment) Act 1972,
which provided that the evidence of an officer of An Garda Síochána not below the rank
of Chief Superintendent of a belief that an accused was at a material time a member of an
unlawful organisation, “the statement shall be evidence that he was then such a
member.” It is to be noted that legislation which touches upon paramilitary activities has
generally been accepted by the European Court of Human Rights as pertaining to a
“pressing and substantial concern in a free and democratic society”.77 Thus, the factual
[1993] 1 IR 102 (HC); [1995] 2 ILRM 259 (SC).
See Heaney v Ireland European Court of Human Rights, March 21, 2001 where the Court further noted at
paragraph 56 “The Government contended that section 52 of the 1939 Act is, nevertheless, a
proportionate response to the subsisting terrorist and security threat given the need to ensure the proper
administration of justice and the maintenance of public order and peace. The Court has taken judicial
notice of the security and public order concerns detailed by the Government” before concluding that “the
76
77
36
backdrop to that provision was significantly different to that which arises in the context
of this criminal trespass legislation. Finally, it ought also be borne in mind the fact that
the group targeted by the legislation is already one of the most marginalized groups in
Irish society. It is therefore submitted that the need to prevent trespass by Travellers can
not be characterised as a “pressing and substantial concern in a free and democratic
society”, which would warrant the enactment of such a provision and thus the measure
in question is a disproportionate one which will interfere with the right of an accused to a
trial in due course of law, of which the presumption of innocence is but one facet, as
guaranteed by Article 38.1 of the Constitution and with the specific guarantee of the
presumption of innocence set out in Article 6(2) of the ECHR.
(iii) Lawful Authority or Reasonable Excuse
5.22
It is the Plaintiffs’ case that they entered upon the lands in question as they had
nowhere else to reside. They allege that the First and Second Named Defendants were
under a statutory duty to provide appropriate accommodation and in view of the
ongoing failure of the said Defendants to comply with that requirement, they entered
upon the lands of those Defendants in order to make their home there. It must be
considered whether those factual circumstances do, and indeed ought to, give rise to a
defence to the prosecution currently pending in relation to the second named Plaintiff.
5.23
The status of the defence of necessity has not yet been tested in Irish law. It is
defined by Charleton, McDermott & Bolger in Criminal Law78 at paragraph 15.01 in the
following terms:
“The defence of necessity involves a choice of evils, one of which the
criminal law is designed to prevent. Circumstances can arise where an
accused person deems it necessary to choose the outlawed evil in order to
avoid a greater evil or to fulfil a human duty.”
security and public order concerns relied on by the Government cannot justify a provision which
extinguishes the very essence of the applicants' rights to silence and against self-incrimination guaranteed
by Article 6 § 1 of the Convention.”
78 (2nd Ed LexisNexis Butterworths 1999).
37
5.24
Charleton et al submit that the defence of necessity must be accepted in Irish
criminal law, having regard to the fact that “[j]ustice is the foundation of the State. The
courts cannot, therefore, countenance unjust convictions being recorded.” Although
there is no Irish authority on the availability of a defence of necessity in Irish law,
Charleton’s analysis of the constitutional context is apposite, and having regard to the
provisions of the Constitution, in particular Articles 40.3.1 and 38.1, it is submitted that a
defence of necessity does exist in Irish law. However, that defence of necessity must be
of very limited scope. Concerns as to the impact of such a defence on the criminal law
were articulated by the Supreme Court of Canada in R v Morgenthaler79 where it was held
that “no system of law can recognize any principle which would entitle a person to
violate the law because on his view the law conflicted with some higher value.” In Re A
(Children)80 the Court of Appeal outlined three requirements for the application of the
doctrine of necessity, namely:
(i) that the act is needed to avoid inevitable and irreparable evil;
(ii) that no more should be done than is reasonably necessary for the purpose to
be achieved; and
(iii) that the evil inflicted must not be disproportionate to the evil avoided.
5.25
The defence of duress of circumstance is a species of the defence of necessity.
The scope of this defence was addressed by the Court of Appeal in R v Martin81 where it
was held by Simon Brown LJ that the defence is available only if, from an objective
standpoint, the accused can be said to have acted reasonably and proportionately in order
to avoid a threat of death or serious injury. If so, then the jury should be invited to
answer two questions:
“was the accused compelled to act as he did because, as a result of what he
reasonably believed to be the situation, he had good cause to fear that otherwise
death or serious injury would result, and if so, would a sober person of
reasonable firmness, sharing the characteristics of the accused, have responded to
that situation by acting as the accused did?”
(1975) 53 DLR (3d) 161.
[2000] 4 All ER 961.
81 [1989] 1 All ER 652.
79
80
38
5.26
It is thus clear that the defence of necessity arises only in exceptional
circumstances, and it would appear that such defence would not assist the Second
Named Plaintiff in the context of the present proceedings in particular having regard to
the lack of immediacy in the experience of any evil in the sense outlined above.
5.27
Of more interest in the context of the present proceedings, however, is whether
the Second Named Plaintiff may plead lawful excuse in answer to the charge before the
District Court. In other words, can he seek to argue that the absence of alternative
created by the failure of the First Named Defendant to provide appropriate
accommodation affords him a lawful excuse for his entry and a basis for avoiding
criminal liability? For the purpose of considering this question, it is instructive to
consider the provisions governing the offence of criminal trespass simpliciter under Irish
law. Indeed it is apposite that it is the Criminal Justice (Public Order) Act 1994 which
provided for the criminalisation of trespass under certain circumstances. Section 13 of
the Criminal Justice (Public Order) Act 1994 provides:
“It shall be an offence for a person, without reasonable excuse, to trespass on any
building or the curtilage thereof in such a manner as causes or is likely to cause
fear in another person.” [emphasis added]
5.28
Furthermore, s.8(1)(b) of the 1994 Act provides:
“Where a member of the Garda Síochána finds a person in a public place and
suspects, with reasonable cause, that such person—
(b) without lawful authority or reasonable excuse, is acting in a manner which
consists of loitering in a public place in circumstances, which may include the
company of other persons, that give rise to a reasonable apprehension for the
safety of persons or the safety of property or for the maintenance of the public
peace, the member may direct the person so suspected to do either or both of
the following, that is to say:
(i) desist from acting in such a manner, and
(ii) leave immediately the vicinity of the place concerned in a
peaceable or orderly manner.” [emphasis added]
39
5.29
In view of the fact that Section 19C(1) is inserted into the Criminal Justice
(Public Order) Act 1994, it is most significant that the Oireachtas did not, as in the case
of the above offences, insert reference to lawful or reasonable excuse. Thus, it would
appear that there is no facility for consideration by the District Court of the invidious
position of persons such as the second named Plaintiff when charged with the offence of
criminal trespass. It is submitted that in the absence of such proviso, the offence would
appear to be contrary to the guarantee of a trial in due course of law and could entail the
detention of a person convicted thereunder, in violation of the guarantee of liberty to be
found in Article 40.4 of the Constitution.
(B) Legitimate restrictions upon the exercise of traveller’s rights
5.30
The application of Section 19C(1) in circumstances akin to those alleged by the
Plaintiffs raises very real concerns as far as the protection of the constitutional rights
discussed above82, which when read together may be regarded as affording recognition
at a constitutional level to the right to pursue a Traveller lifestyle, are concerned. Similar
concerns arise in relation to the compatibility of Section 19C(1) with various provisions
of the ECHR, primarily with Article 8 thereof. While a considerable body of Article 8
case law has emerged in recent years which is of relevance in the context of Section
19C(1), the principles established therein point equally towards non-compliance with
constitutional standards. Thus, although the following submissions give consideration to
arguments centred on Article 883, corresponding concerns arise about compliance with
constitutional standards.
5.31
If the allegations of the Plaintiffs are proven in the course of the hearing, then
the First Named Defendants have breached their statutory duty by virtue of the failure to
make appropriate accommodation available to the Plaintiffs. In those circumstances, it is
submitted that a statutory provision which purports to criminalise the Second Named
Plaintiff for bringing the family caravan onto the lands of the said Defendant and
occupying same without the consent of that Defendant landowner in circumstances
82
At Paragraphs 3.1 to 3.7.
It is noted that the applicants in McDonagh v Kilkenny County Council and others, supra n.61, did not
plead Article 8 in the pleadings before the Court. While counsel for the Applicants sought to raise
arguments based on Article 8 at the hearing, O’Neill J refused to permit them to so do, as Article 8 was not
among the grounds in respect of which leave to apply by way of judicial review had been granted.
83
40
where that occupation is likely to have one of the five specified effects, although that
same Defendant has, by its breach of statutory duty, brought about the homelessness of
the Plaintiffs, represents a prima facie breach of Article 8 and a violation of the
requirement imposed upon States, as first expressed in Buckley to “facilitate the Gypsy
way of life.” Thus the Commission respectfully disagrees with the obiter dictum O’Neill J in
McDonagh v Kilkenny County Council84 to the effect that;
“The fact that the two sites in question are owned by the first named
Respondents as local authority, coupled with the fact that the first named
respondents are the housing authority who have the relevant statutory duty to
provide for the accommodation of travellers is also immaterial.85 “
5.32 It is submitted, in this regard, that the observations of Judge Bonello in his
dissenting opinion in Chapman v United Kingdom86 are most compelling. In that instance,
the actions of Mrs. Chapman in taking her caravans onto her own land without planning
permission authorising same, took place against a repeated failure of the local authorities
to provide appropriate sites for her onto which she could bring her family’s caravan. The
local authority then brought injunctive proceedings in a planning context, an area in
which the European Court of Human Rights has traditionally afforded a considerable
margin of appreciation to the States Parties. It is submitted that this factor together with
the fact that the Second Named Plaintiff is being subjected to the rigours of the criminal
law, ought to mean that the following observations of Judge Bonello apply with even
greater force in the circumstances herein;
“I believe that a public authority which is in breach of its legal obligations
should not be allowed to plead that it is acting “in accordance with the law [for
the purposes of Article 8(2) when restricting a right guaranteed under Article
8(1).]. The classic constitutional doctrine of “clean hands” precludes those who
are in prior contravention of the law from claiming the law's protection.
Supra n. 60.
At page 20
86 (2001) 33 EHRR 399, dissenting opinion of Judge Bonello at 441.
84
85
41
A public authority has as great an obligation to comply with the law as any
individual. Its responsibility is eminently more than that of individuals belonging
to vulnerable classes who are virtually forced to disregard the law in order to be
able to exercise their fundamental right to a private and family life – individuals
who have to contravene the law due to the operation of the prior failings of the
public authorities.
In the present case, both the public authorities and the individual had
undoubtedly trespassed the boundaries of legality. But it was the public
authority's default in observing the law that precipitated and induced the
subsequent default by the individual. That failing of the authorities has brought
about a situation which almost justifies the defence of necessity. Why a human
rights court should look with more sympathy at the far- reaching breach of law
committed by the powerful than at that forced on the weak has not yet been
properly explained.
Here, we are confronted with a situation in which an individual was “entrapped”
into breaking the law because a public authority was protected in its own breach.
A court's finding in favour of the latter, to the prejudice of the former, is, I
believe, a disquieting event. A human rights court, in finding that an authority,
manifestly on the wrong side of the rule of law, has acted “in accordance with the
law” creates an even graver disturbance to recognised ethical scales of value.”
5.33
As the impugned provisions will clearly impact upon the nomadic practices of
Travellers, it is necessary to consider whether those provisions are a legitimate and
proportionate response to the need to protect competing property interests of other
members of society.
(i) The Constitution
5.34
The requirement that measures impacting upon the protection of rights satisfy
the doctrine of proportionality is one which is well established in domestic law and in the
42
jurisprudence of the European Court of Human Rights alike. The classic statement of
proportionality in the context of Irish constitutional law is to be found in the decision of
Costello J in Heaney v Ireland as follows:
“The objective of the impugned provision must be of sufficient importance to
warrant overriding a constitutionally protected right. It must relate to concerns
pressing and substantial in a free and democratic society. The means chosen must
pass a proportionality test. They must:—
(a) be rationally connected to the objective and not be arbitrary, unfair or
based on irrational considerations;
(b) impair the right as little as possible, and
(c) be such that their effects on rights are proportional to the objective:
Chaulk v. R. [1990] 3 S.C.R. 1303 at pages 1335 and 1336”87
5.35
This formulation of the proportionality test was explicitly endorsed by the
Supreme Court in Re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321.
(ii) European Convention on Human Rights
5.36
As far as rights protected by Article 8(1) of the ECHR are concerned, Article 8(2)
sets out in very specific terms the bases upon which Article 8(1) rights may legitimately
be restricted.
“There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others.”
5.37
These countervailing interests are exhaustive, not illustrative.88 All permissible
grounds of interference are to be construed strictly.89 As stated by the European Court of
[1994] 3 IR 593 at 607.
E.g. Golder v UK (1975) 1 EHRR 524, para 44.
89 Sunday Times v UK (1979) 2 EHRR 245; Smith & Grady v UK (1999) 29 EHRR 493.
87
88
43
Human Rights in Miailhe v France,90 “the exceptions in Article 8(2) are to be interpreted
narrowly and the need for them in a given case must be convincingly established”.
5.38
An interference which is not in accordance with domestic law will breach the
ECHR regardless of whether it is justified.91 Legality, or the requirement that interference
with rights is ‘in accordance with the law’, does not merely refer back to whether
interference is allowed by domestic law but it also relates to ‘the quality of the law’,
requiring it to be compatible with the rule of law, a concept inherent in all articles of the
ECHR.92
5.39
Once it is established that a particular interference is ‘in accordance with the law’
consideration turns to whether the measure in question has a legitimate aim and if so,
whether the measure meets the ECHR’s requirement of proportionality. The prohibition
on restrictive measures save those as are necessitated in a democratic society imports the
proportionality concept into this, and other, provisions of the ECHR. That principle,
which has long been endorsed in jurisprudence of the European Court of Human Rights,
embodies the notion of minimal restraint on the exercise of protected rights and interests
and the requirements of the common good in a democratic society.93
5.40
The balance between the protection of individual rights and the interests of the
wider community is at the heart of the ECHR and a fair balance is achieved when
interference with the individual’s rights is strictly proportionate to the legitimate aim
pursued in restricting it. As Sedley LJ stated in B v Secretary of State for the Home Department:
“A measure which interferes with a human right must not only be authorised
by law but must correspond to a pressing social need and go no further than
is strictly necessary in a pluralistic society to achieve its permitted purpose; or,
more shortly, must be appropriate and necessary to its legitimate aim.”94
(1993) 16 EHRR 332.
E.g., GK v Poland, judgment of 20 January 2004.
92 E.g., Dougoz v Greece (2002) 34 EHRR 61. para 55.
93 In that regard, see the test of proportionality as stated by Costello J in Heaney v Ireland [1994] 3 IR 593 set
out above at paragraph 5.29.
94 [2000] Imm AR 478.
90
91
44
5.41
The requirement that a restriction on a fundamental right correspond to ‘a
pressing social need’ and be ‘ necessary’ is strict; ‘necessary’ is not so flexible a term as
‘useful’ or ‘desirable’,95 and the phrase ‘necessary in a democratic society’ refers to a
pluralistic, tolerant and broadminded society.96
5.42
The extent of the interference with a right is most relevant to the assessment of
the proportionality of a given restriction.97 In Chapman, the European Court of Human
Rights noted that an interference with one’s home is a most serious one which will
require very considerable justification under the proportionality doctrine. Consideration
ought also be given to whether or not there are fair procedures and safeguards against
abuse in place.98 The absence of relevant and sufficient reasons for the restriction is likely
to result in a finding that the restriction was not necessary or was disproportionate.99 A
failure on the part of the authority in question to show the requisite reasons justifying the
measure adopted and to show that a less restrictive alternative would not have sufficed
will point to a lack of proportionality in the means adopted to deal with the competing
interest or interests. Guidance on this important aspect of the doctrine of proportionality
can be derived from the judgments of Dyson LJ in Samaroo v Secretary of State for the Home
Department100 and Lord Steyn in R (Daly) v Home Secretary.101 In Samaroo Dyson LJ held that
in deciding what proportionality required in any particular case, the issue usually had to
be considered in two distinct stages:
“At the first stage the question was: could the objective of the measure be
achieved by means which were less interfering of an individual's rights?
The essential purpose of that stage of the inquiry was to see whether the
legitimate aim could be achieved by means that did not interfere, or interfere so
much, with a person's rights under the Convention. That inquiry had to be
undertaken by the decision-maker.
Chassagnou v France (1999) 7 BHRC 151.
E.g., Dudgeon v UK (1981) 4 EHRR 149.
97 Restrictions which impair the ‘very essence’ of the right will tend to be disproportionate, see for example
F v Switzerland (1987) 10 EHRR 411.
98 E.g., Camenzind v Switzerland (1997) 28 EHRR 458, para 45.
99 Observer & Guardian v UK (1991) 14 EHRR 153, para 59; Vogt v Germany (1996) 21 EHRR 205, para 52.
100 [2001] UKHRR 1150.
101 [2001] 2 AC 532, 2 WLR 1622.
95
96
45
At the second stage, it was assumed that the means employed to achieve the
legitimate aim were necessary. The question at that stage was: did the measure
have an excessive or disproportionate effect on the interests of affected
persons?”
5.43
The application of the principle of proportionality of means was also considered
in R (Daly) v Home Secretary102 where Lord Steyn said at page 1634H:
“27. The contours of the principle of proportionality are familiar. ……in
determining whether a limitation (by an act, rule or decision) is arbitrary or
excessive the court should ask itself: "whether:
(i) the legislative objective is sufficiently important to justify
limiting a fundamental right;
(ii) the measures designed to meet the legislative objective are
rationally connected to it; and
(iii) the means used to impair the right or freedom are no more
than is necessary to accomplish the objective."
Clearly, these criteria are more precise and more sophisticated than the
traditional grounds of review."103
5.44
As set out at Page 26 of their Submissions, the Plaintiffs refer to the
considerations which prompted the introduction of the restrictive measures in the
following terms:
“The Government claimed that this legislation was to deal with large scale
encampments of Travellers. In a government press release of the 25th of May
[2001] 2 WLR 1622.
Lord Steyn also considered the scope and nature of review by the court when proportionality is in issue,
and considered that the intensity of review is sometimes heightened where proportionality is in issue than
under the traditional grounds of review in the following respects (at p.1635):
“First, the doctrine of proportionality may require the reviewing court to assess the balance
which the decision maker has struck, not merely whether it is within the range of rational or
reasonable decisions. Secondly, the proportionality test may go further than the traditional
grounds of review inasmuch as it may require attention to be directed to the relative weight
accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed
in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the
protection of human rights.”
102
103
46
2002, it claimed the introduction of the law was necessary as the existing powers
in the housing acts to remove unauthorised encampments from public places
were inadequate to deal with the large encampments that we have seen in the past
year or two.”
5.45
Thus, the impugned provisions are designed to protect the property rights of
others, although, significantly, they are not confined to trespass upon public places, a
matter which is discussed at a later point herein. 104 It must then be considered whether
they achieve their aim in a manner which interferes, to the least extent possible, with the
rights and legitimate interests of the Plaintiffs.
(iii) Application of the Proportionality Test
5.46
It must now be considered whether the use of the criminal law in Section 19C(1)
is a proportionate tool properly used for the purpose of protecting the property rights of
others. It is submitted that if civil remedies could achieve the same end, whilst displacing
to a lesser extent the rights and interests of the Plaintiffs, then recourse to criminal law
and sanctions may not meet the requirements of the minimal restraint principle.
5.47
The European Court of Human Rights has acknowledged in a number of cases
that procedural propriety and fairness is an important matter in weighing whether an
interference with an Article 8 right is proportionate. In Buckley v United Kingdom,105 the
Court stated:
“Whenever discretion capable of interfering with the enjoyment of a Convention
right such as the one in issue in the present case is conferred on national
authorities, the procedural safeguards available to the individual will be especially material in
determining whether the respondent State has, when fixing the regulatory
framework, remained within its margin of appreciation. Indeed it is settled caselaw that, whilst Article 8 contains no explicit procedural requirements, the
decision-making process leading to measures of interference must be fair and
In O’Donnell v South County Dublin, supra, n.54, Laffoy J referred to the economic well-being of the State
as the legitimate consideration to be weighed in the balance in the context of the Plaintiffs claim for
specific caravans; page 42.
105 At Paragraph 76
104
47
such as to afford due respect to the interests safeguarded to the individual by
Article 8.”106 [Emphasis added]
5.48
Similar views were expressed in Connors v United Kingdom.107 There, the Court
concluded that the domestic regime pursuant to which Gypsies resident on public sites
could be evicted on foot of a possession order granted by a court on a summary basis,
without affording the potential evictee any opportunity to raise a substantive defence
based, for example, upon the impact of that eviction, constituted a violation of Article 8
of the ECHR. The Court stated that:
“The procedural safeguards available to the individual will be especially material
in determining whether the respondent State has, when fixing the regulatory
framework, remained within its margin of appreciation. In particular, the Court
must examine whether the decision-making process leading to measures of
interference was fair and such as to afford due respect to the interests
safeguarded to the individual by Article 8….
[E]ven allowing for the margin of appreciation which is to be afforded to the
State in such circumstances, the Court is not persuaded that the necessity for a
statutory scheme which permitted the summary eviction of the applicant and his
family had been sufficiently demonstrated by the Government. The power to
evict without the burden of giving reasons liable to be examined as to their merits
by an independent tribunal has not been shown to respond to any specific goal or
to provide any specific benefit to members of the gypsy community.”
5.49
The English courts also recognised in a number of decisions delivered prior to
the Connors decision, that they were required by Article 8 to come to their own
conclusions as to the proportionality of the injunctive remedy sought and had to weigh
in the balance the impact of the injunctive relief having regard to the individual
circumstances of the respondents. In that regard, the judgment of Simon Brown LJ, on
behalf of the Court of Appeal in South Buckinghamshire District Council v Porter108 is most
See, for example, the McMichael v United Kingdom judgment of 24 February 1995, Series A no. 307-B, p.
55, para. 87).
107 (2004) 40 EHRR 189.
108 [2002] 1 WLR 1359.
106
48
instructive. He expressed the view that a judge should not grant such an injunction
unless he or she was prepared, if necessary, to contemplate committing the defendant to
prison, and, of more relevance to the Plaintiffs, if he or she considered for
himself/herself all questions of hardship for the defendant and family if required to
move. In particular, the availability of suitable alternative sites and the family’s health and
education will be factors for consideration. The House of Lords confirmed the decision
of the Court of Appeal. It is submitted that the approach of Simon Brown LJ represents
a proper one as far as the effective protection of Article 8 rights is concerned in the
context of applications pertaining to public lands.
5.50
The English Courts have now moved away from the position endorsed by Simon
Brown LJ in South Buckinghamshire District Council v Porter towards a more restrictive view
of the scope and impact of Article 8. In Leeds City Council v Price,109 the defendants were
members of a Gypsy family who had been repeatedly moved on from locations where
they had unlawfully parked their caravans. In June 2004 they moved their caravans to a
park in Leeds, and two days later were served with notices for possession, whereupon
they sought to prevent their removal by relying, inter alia, upon their Article 8 rights.
Their application was unsuccessful and, for present purposes, it is of relevance to note
that a majority in the House of Lords (which sat as a seven judge court) forcefully
rejected the suggestion that the personal circumstances of a defendant could ever suffice
to engage Article 8 in the context of residential proceedings. In the course of their
judgments, the judges noted that their conclusions were not in keeping with the
approach adopted by the European Court of Human Rights in Connors.110
5.51
The Commission, however, endorses the Connors approach as the correct one. If
that approach were adopted, bodies such as the First and Second Named Defendants
could not secure injunctive relief where the court hearing the application formed the
view that the eviction and removal of the persons resident represented an undue
interference with legitimate rights and interests. Thus, if the Plaintiffs herein were
defending an application for an injunction, the issue of the impact upon the education of
the children in the family, the lack of continuity with health services, the detrimental
impact which the fear of being moved on and the enforced moves had upon the mental
health of the First Named Plaintiff and the general well-being of the family would fall to
109
110
[2006] 2 WLR 570.
(2002) 35 EHRR 691.
49
be considered by a court acting in conformity with the requirements of Article 8. In
effect, the “best interests” of the eight infant Plaintiffs could not be ignored and should,
in fact, be a primary consideration. That principle enjoys statutory and constitutional
status in this State and is also one of the central principles of the United Nations
Convention on the Rights of the Child, at Article 3 thereof.111
5.52 A further vital consideration in the context of the proportionality argument is the
presence or absence of alternative accommodation. Thus, in Buckley v United Kingdom,112
the European Court of Human Rights found that the availability of alternative
accommodation to the Buckley family (albeit an alternative site to which the family did
not wish to go as they feared for their safety if moved there) was sufficient to render
their eviction compatible with the requirements of Article 8. What if, however, there is
no alternative, or, as the Plaintiffs allege herein, the housing authorities expressly states
that they will not consider their applications in view of an outstanding debt? In Chapman
v United Kingdom,113 the European Court of Human Rights considered and appeared to
confirm the central nature of alternative accommodation to the entire Article 8 equation
in such situations. The majority found no violation of the right114 and concluded, inter
alia, that the onus was on Mrs. Chapman to show the absence of alternative
accommodation. She had not done so. The minority, on the other hand, relied upon the
failure of the public authority to make any finding that there an alternative site available
to the applicant. As the authority had not reached such a finding, the minority asserted
that there must be compelling reasons to expect her to move. Thus, while those in the
minority and the majority differed on the question of on whom the obligation to show
such a lack existed, both camps appeared to regard the issue as a central one. While the
issue has not yet been determined conclusively, the report of a settlement into which the
Article 16 of the UN Convention on the Rights of the Child mirrors Article 8(1) in providing that “no
child shall be subjected to arbitrary or unlawful interference with his or her privacy, home or
correspondence, nor to unlawful attacks on his or her honour and reputation. The child has the right to the
protection of the law against such interference or attack.” Thus, it is submitted, having regard to the
submissions made at the outset of this opinion regarding the consideration of international instruments
where those instruments conform with domestic standards, that the courts in this case may show a
willingness to have regard to this UN Convention.
112 (1996) 23 EHRR 101.
113 (2001) 33 EHRR 399.
114 The majority of the Court found no violation of the right, being satisfied that there were adequate
procedural safeguards in place to protect Mrs. Chapman’s interests before the decision to evict was made
and that the authority had weighed the competing interests in a proper manner when making the said
decision. It also found that the competing rights of third parties bore heavily upon the decision-makers
before they made their decision and the Court also recognised the existence of a very considerable margin
of appreciation to the said authorities as the matter involved a violation of the planning code, an area in
which the Court has tended as a rule to afford national authorities a large degree of lee-way.
111
50
UK government entered with similar applicants is instructive; In Varey v United Kingdom115
the UK government paid the relatively significant sum of £60,000 sterling plus costs to
the applicants, two travellers who had been subjected to proceedings before the domestic
courts to remove them from the site on which they resided in their caravan. While the
motivation for the settlement is not, of course, clear, the reported judgment is replete
with references to the lack of alternative accommodation available to the applicants.
5.53
The approach of Barron J in the context of an application for an injunction to
remove a group of Travellers from the plaintiff’s site confirms the relevance of
alternative accommodation. In University of Limerick v Ryan,116 the Judge summarised the
essential relevant facts arising from the history of the proceedings before him as follows
(at p.7):
“(1) They [the defendants] had no right to be where they were;
(2) They had nowhere else in the area where they could go;
(3) The Council was unable to provide them with anywhere to go;
(4) The Circuit Court had already refused to move them because they had
nowhere else to go”.
5.54
Barron J concluded that the Council’s failure to provide accommodation to the
defendants in those proceedings amounted to a breach of its statutory duty under s.13 of
the Housing Act 1988. He therefore concluded that the Council was required to act “as a
matter of urgency [to] undertake temporary measures pending the provision of a
permanent caravan site” and adjourned the proceedings to allow the Council take such
steps as were required. Thus, he did not grant the injunction sought in respect of the
defendant’s occupation of University lands in those circumstances in view of the
Plaintiff’s default.
5.55
It is clear that the introduction of the offence of criminal trespass, which applies
in situations previously governed by civil proceedings including injunctions, prevents a
consideration of the balancing process which the principle of proportionality demands.
Thus, most significantly, the offence of criminal trespass does not permit any
consideration of the circumstances in which the offence came to be committed, namely
115
116
Judgment of 21st December 2000.
High Court unreported February 21, 1991.
51
as a result of the breach of duty by the local authority to provide housing. Furthermore,
there is no means by which questions of hardship for the defendant and family if
required to move may be considered, no facility for assessing the availability of suitable
alternative sites and the family’s health and education, as indicated by Simon Brown LJ in
Porter.
5.56 In the circumstances, the Commission respectfully disagrees with the conclusion
reached recently by O’Neill J in McDonagh v Kilkenny County Council and others117 to the
effect that, as far as persons in positions akin to the Second Named Plaintiff are
concerned, no significance attaches to the fact that a landowner may now recover
possession of his or her land by making a complaint to an Garda Siochana and
requesting them to invoke the criminal process embodied in Section 19, as opposed to
pursuing injunctive relief in the civil courts, as was the case heretofore. In that instance,
the applicants contended, inter alia, that the lack of inquiry or hearing prior to the service
of Section 19 notices and the attendant obligation to leave the lands in question under
threat of criminal sanction, compared unfavourably with the position which pertained
when a landowner sought to retrieve possession of lands by means of application for
injunction. O’Neill J noted that;
“The applicants seek to illustrate the procedural deficiency of which they
complain by comparing the absence of the procedure they contend for, namely
of some kind of hearing before the invoking of the s. 19 powers, to the situation
which appertained prior to the enactment of s. 19, namely where aggrieved
landowners sought injunctive relief from the court to restrain trespass. In this
situation, it was submitted that the trespasser had a hearing which was required
by article 6(1). What was entirely overlooked in the applicant’s submission in this
regard is that the circumstances now relied upon by the applicants as justifying
their illegal entry would have been no defence and would have gained them no
relief or concession from the court, where there was no dispute but that the entry
on land was unlawful.118”
117
118
Supra, n. 60 at page 19 -20.
Supra, n.60 at page 21.
52
5.57 It cannot, of course, be stated that the outcome of a process designed to secure the
removal from land of persons there without the consent of the owner will necessarily be
different in any given case where that process is a civil one as opposed a criminal one.
Nonetheless, the issues to which regard may be had are indeed different and it is
submitted that recourse to the criminal process embodied in Section 19 precludes
consideration of certain matters necessary to ensure the vindication of the rights of
persons such as the Plaintiffs herein.
5.58 In the above McDonagh case, O’Neill J was greatly influenced by the fact that the
applicants had entered and occupied the lands of the local authority without its consent.
In those circumstances, the Court concluded that it was not appropriate for the
applicants to seek to use the protections afforded by the relevant constitutional or ECHR
provisions in order to “shield from scrutiny and redress an illegal invasion of another
person’s property rights.” In those circumstances, O’Neill J did not engage in a process
of weighing the competing rights of the landowners on the one part and of the applicants
on the other, nor indeed of the proportionality of the action taken against the applicants
in that instance. He noted that;
“the applicants placed a very heavy reliance upon the principle of proportionality.
Needless to say, in circumstances where I have found that there has been no
interference with the applicants’ rights, the question of proportionality does not
arise.”
5.59 It should be noted that in that instance, the Court found that the local authority
had not breached its housing duties as the applicants’ accommodation needs were
properly the responsibility of another local authority. Thus, it was not a case in which it
could be argued that there were competing wrongs on the part of applicants and
respondent housing authorities (although O’Neill J did in any event express the view,
albeit obiter, that it was immaterial that the first named respondents were a housing
authority). It is submitted, with respect, that the fact of such unlawful entry by persons
such as the applicants in McDonagh or the Plaintiffs herein, though a relevant
consideration in the relevant decision-making process, ought not curtail or preclude
assessment of the rights under the Constitution and/or the ECHR of the person or
53
persons who have thus entered and occupied the lands in question. Indeed, as alluded to
above119, the European Court of Human Rights noted in Buckley that the ““home”
protected by Article 8 ECHR is not limited to those which are lawfully occupied or
which have been lawfully established120”, pointing to the view that illegal entry or
occupation cannot preclude assessment of the rights of that entrant or occupier .
5.60 Indeed, O'Neill J held in McDonagh that:
“In all of the ECHR cases above mentioned … [i.e. Buckley, Chapman and
Connors], the applicants in each case either owned the land in respect of which
the
dispute arose or had enjoyed a lawful occupation of it and hence, in my
view, are clearly distinguishable from the circumstances of this case.”
5.61 Whilst the applicants in Buckley and Chapman were the lawful owners of the lands
the subject of the proceedings, both cases concerned the applicants’ unlawful placement
or retention of caravans on the lands in question. Both the Buckley and Chapman cases
were therefore concerned with alleged unlawful or illegal activity, issues which did not
preclude the potential application of Article 8. Furthermore, in Connors v United Kingdom,
the applicants were neither the lawful owners of the land nor in lawful occupation of
same at the material time; nonetheless, it was noted by the European Court of Human
Rights that:
“The parties were agreed that Article 8 was applicable in the circumstances of
this case and that the eviction of the applicant from the site on which he had
lived with his family in his caravans disclosed an interference with his right to
respect for his private life, family life and home.
The parties were also
agreed, in the context of the second paragraph of Article 8, that the interference
was “in accordance with the law” and pursued a legitimate aim, namely, the
protection of the rights of other occupiers of the site and the Council as owner
and manager of the site.”
119
120
Paragraph 4.3
(1996) 23 EHRR 101.
54
5.62 The Court therefore proceeded to consider the outstanding issue of whether the
interference was “necessary in a democratic society” in pursuit of that aim. The Court
ultimately concluded that the eviction of the applicant and his family from the local
authority site “was not attended by the requisite procedural safeguards, namely the
requirement to establish proper justification for the serious interference with his rights
and consequently cannot be regarded as justified by a “pressing social need” or
proportionate to the legitimate aim being pursued.” The Court accordingly found a
violation of Article 8.
5.63 The Commission submits that while considerations such as lack of alternative
accommodation, detrimental impact upon health and education of the infant family
members etc., may not bear any real Article 8 weight in circumstances in which the
person being prosecuted has entered upon and occupied or has brought an object onto
privately owned lands, the Act of course applies to and criminalises such acts on certain
public lands. Indeed, the Plaintiffs were clearly living on such public lands when residing
in the swimming pool car park at Abbeyhalfquarter, Ballina. Thus, it is submitted that the
Section is drafted in an unduly broad manner. While the constitutionally-protected
property rights of a private individual, who owes no legal duty to any other person to
permit them onto his or her land, ought not to be interfered with and a legislative
attempt to protect such property rights by, as in this instance, criminalising the actions of
the person seeking to interfere with such rights may be a legally justifiable action, it is
much more difficult to sustain that argument in relation to the property of a public body,
where that public body has a statutory obligation to house the accused and has failed to
do so. Thus, it is argued that the section is unduly broad. It purports to criminalise
persons who have no real alternative but, as in the Plaintiffs’ case, to enter upon lands
and who therefore enter upon lands owned by a public housing authority, in
circumstances in which that same lack of alternative is created by the omissions of that
public authority. A proportionate legislative response would not have extended the
offence to entry upon and occupation of public lands. The civil route represents the
appropriate response in the event of entry upon and occupation, as the defendants could
then invoke competing legitimate interests of their own and of their family in order to
withstand removal from their home. At the very least, reliance ought to be placed in the
55
context of such civil proceedings upon the absence of any alternative open to the
Plaintiffs, being an absence created by the default of the housing authority.
5.64 It is therefore submitted that Section 19C(1) is a disproportionate response to the
legitimate aim of protecting private owners of land from unauthorised encampments. It
purports to criminalise persons who, like the applicants, have no real alternative but to
enter upon lands which are owned by a public housing authority. The wrong committed
by persons who enter public lands could be addressed without recourse to criminal
sanction. Section 19C(1) does not, therefore, respect the notion of minimal restraint but,
rather, constitutes an unnecessarily obtrusive invasion of the legitimate interests of
nomadic persons seeking a place to reside.
5.65 In the Commission’s view, Section 19C(1) does not meet the standards required by
Article 8 of the ECHR. In light of the inability of the Second Named Plaintiff to raise
relevant matters before the District Court, it must also be doubted whether it meets the
standards imposed by Article 6(1) of the ECHR. It is to be noted, in this regard, that the
European Court of Human Rights has acknowledged that there is a considerable degree
of overlap between the procedural safeguard requirements imposed by Article 8 and the
requirements of Article 6. Thus, for example, in Connors, the applicant alleged a violation
of Article 6, in addition to his Article 8 complaints. The Court considered that the
essence of his Article 6 complaint, that his eviction was not attended by sufficient
procedural safeguards, had been examined under Article 8:
“The applicant complained under Article 6 that he was unable in the summary
possession proceedings to challenge the Council’s allegations of nuisance
whether by giving evidence himself or calling witnesses. The applicant was at a
substantial disadvantage given the terms of the licence, in respect of which he
had not been in a free bargaining position. There was no equality of arms and he
was denied any effective access to court against the very serious interference with
his home and family.
The Court considers that the essence of this complaint, that his eviction was not
attended by sufficient procedural safeguards, has been examined under Article 8
56
above and may be regarded, in the present case, as absorbed by the latter
provision. No separate issue therefore arises for determination.”
5.66
In a constitutional context, the right of the Second Named Plaintiff to a good
name which the State guarantees in Article 40.3 to uphold, and to vindicate in the case of
injustice done, and his right to liberty as protected by Article 40.5 may be unlawfully
infringed by this disproportionate measure which purports to criminalise him without
affording him the opportunity of raising all relevant matters.
6.
SECTION 19(F)
6.1
Two summonses, dated 1st May, 2003, were served upon the second named
Plaintiff, on foot of which he was charged with the offence of entering and occupying
land without the duly given consent of the second named Defendant contrary to Section
19C and 19G of the Criminal Justice (Public Order) Act 1994 as inserted by Section 24
of the Act of 2002, and with failing to comply with the direction to remove his caravans
from the said place contrary to Section 19(D)(b) and 19(G) of the Criminal Justice
(Public Order) Act 1994 as inserted by Section 24 of the Act of 2002. The consequences
of failure to comply with such a direction are very considerable:
(a) The person failing to so comply shall be guilty of a criminal offence
(s19D);
(b) He or she can be arrested without warrant (s19E);
(c) His or her property may be removed and stored by gardaí (s19F(1));
(d) In order to recover property that has been removed, the owner can be required
to pay the costs incurred in its removal and storage (s19F(4));
(e) Where property has not been recovered after one month of its removal, the
gardaí can destroy it (s19F(5)).
57
6.2
A considerable number of concerns arise in relation to these provisions. First of
all, it is submitted that as all of the above consequences stem from a purported violation
of the main offence set out in Section 19C(1) of the Act, the infirmities, as described
above, which attach to the main offence also apply in relation to these provisions.
6.3
These latter provisions also, however, give rise to concerns independent of the
infirmities attaching to the main offence. In that regard, it is to be noted that the very
serious consequences that flow arise solely on the basis of a garda having ‘reason to believe
that a person is committing or has committed an offence under subsection (1)’ and an offence under
subsection (1) (i.e. Section 19C(1)) itself can be committed where a person’s conduct is
‘likely to’ adversely affect or interfere with land or amenities in a manner set out at section
19C(1)(b)(i) to (v). In other words, a person’s home can be confiscated and destroyed as
a result of a ‘double conjecture’ on the part of a garda whose opinion is not subject to
any independent inquiry or review. There is no requirement that the garda in question be
of a certain - relatively senior - rank, nor is it necessary to show that his or her suspicion
is a reasonable one. No reasons are provided, let alone examined independently, as to
why the garda has ‘reason to believe’ that an offence is being, or has been, committed.
He or she need not offer any justification, documentary of otherwise, to the person to
whom he issues the direction for the belief that an offence is being or has been
committed. Indeed, in view of the presumption that no consent to enter and occupy
lands has been given, it would appear that a garda may simply rely upon the word of local
persons disgruntled by the presence of Travellers on the land in question, without
reverting at all to the landowner for the purpose of determining whether or not consent
has been given.
6.4
When the above issues are considered in conjunction with the fact that a garda
may remove a caravan there and then, without awaiting a criminal conviction of the
person who refuses to comply with the direction to move, it is clear that Section 19F
confers an unregulated power upon a garda of any rank who may act as judge, jury and
executioner, and may furthermore do so on the basis of questionable evidence. The
Section envisages that by the time the trial of a person accused of failing to comply with
a direction to move on is conducted before the District Court, the accused may have had
his or her home taken away some weeks or indeed months hence; there is no need to
postpone the impounding pending the receipt of court authorisation. No role at all is
58
envisaged for the District Court nor indeed any other body to consider, monitor and
review the decision to impound. It is to be noted that there are a number of legislative
equivalents in England, all of which makes provision for court review. Thus, Section 77
of the Criminal Justice and Public Order Act 1994 gives to a local authority the power to
direct an unauthorised camper to move. An unauthorised camper is defined as:
“a person for the time being residing in a vehicle on any land forming part of the
highway, any other unoccupied land or any occupied land without the owner’s
consent.”
6.5
Failure to comply with a direction as soon as practicable, or re-entry upon the
land within three months, is a criminal offence. Local authorities are able to apply to a
magistrate’s court for an order authorising them to remove caravans parked in
contravention of such a direction; Section 78 thereof. No such process exists under the
Irish provisions.
6.6
Likewise, Section 10 of the Caravan Sites Act 1968 requires a local authority
within the designated area to apply to a magistrates’ court for an order authorising it to
remove caravans parked unlawfully. This provision was at the heart of the Buckley v
United Kingdom case,121 considered above.
6.7
It is to be noted that the applicants in the recent McDonagh v Kilkenny County
Council and others
122
sought to raise constitutional and ECHR objections to Section 19(F).
The Court, however, found that the applicants did not have locus standi to raise those
issues as their home had neither been destroyed nor confiscated. In the event that the
Plaintiffs herein are found to have standing to address such issues before this Court, the
Commission raises the following arguments.
Constitutional Considerations
121
122
At paragraphs 5.42 and 5.47.
Supra, n….
59
6.7
Perhaps the most obvious constitutional failing of Section 19F relates to its
impact upon the guarantee set out in Article 40.5 of the Constitution to the effect that:
“The dwelling of every citizen is inviolable and shall not be forcibly entered save
in accordance with law.”
6.8
It is well established in the jurisprudence of the superior courts that this
guarantee is one of the “most important, clear and unqualified protections given by the
Constitution to the citizen”.123 The courts have furthermore rejected a positivist
interpretation of the term “save in accordance with law” indicating instead that the
guarantee shall not be interfered with “by stooping to methods which ignore the
fundamental norms of the legal order postulated by the Constitution.”124
6.9
As noted previously herein, it has been established by the European Court of
Human Rights that the term “home” in Article 8 of the ECHR shall include caravans and
other temporary dwellings.125 The Irish courts have not yet had occasion to consider
whether or not a caravan constitutes a “dwelling”. It is noted, however, that in Simple
Imports Ltd v Revenue Commissioners,126 Keane J, having considered the application of Article
40.5 in the context of dwellings added, in any event, that protection against unjustified
searches and seizures is not confined to the dwelling of the citizen: it extends to every
person’s private property.
6.10
The Commission endorses the view espoused by Professor Casey in Constitutional
Law in Ireland127 that:
“It is clear that the ‘dwelling’ protected by Article 40.5 includes any premises
occupied by any person as his/her residence. It does not seem to be confined to
houses or apartments, and – given its purpose – must presumably apply to a
mobile home or indeed a hotel room.”
Carney J in DPP v Dunne [1994] 2 IR 537.
Barr J in Ryan v Callaghan, Unreported, High Court, 22nd July 1987.
125 Buckley v United Kingdom, supra at paragraph 5.42 and 5.47.
126 [2000] 2 IR 243 at 250.
127 (3rd ed 2000) at p.516.
123
124
60
6.11
Indeed in the case of People (DPP) v Yamanoha128 a hotel room was searched with
an invalid warrant and the evidence found therein was declared inadmissible. It is
implicit in the judgment of the Court of Criminal Appeal that this automatic exclusion of
evidence was due to the provisions of Article 40.5.
6.12
The Commission also supports the conclusions of the Constitution Review
Group, which stated in its Report129 that the word “dwelling” “does cover dwellings such
as trailers/caravans, tents and mobile homes”.
6.13
The Courts in this jurisdiction have often had occasion to consider the terms of
Article 40.5 in the context of cases involving search warrants. A common thread runs
through the case law to the effect that the power which such a warrant confers to enter
and search a dwelling and to seize goods therefrom, constitutes a serious encroachment
on the inviolability of the dwelling and indeed, upon the property rights of the citizen.
The courts have thus sought to strictly enforce the statutory requirements for their issue.
As Keane J noted in Simple Imports Limited v Revenue Commissioners:130
“Search warrant[s] entitle police and other officers to enter the dwellinghouse or
other property of a citizen, carry out searches and (in the present case) remove
material which they find on the premises and, in the course of doing so, use such
force as is necessary to gain admission and carry out the search and seizure
authorised by the warrant. These are powers which the police and other
authorities must enjoy in defined circumstances for the protection of society, but
since they authorise the forcible invasion of a person’s property, the courts must
always be concerned to ensure that the conditions imposed by the legislation
before such powers can be validly exercised are strictly met.”
6.14
As noted above, there are no conditions imposed at all upon the exercise by a
garda of the powers conferred upon him by Section 19F yet the consequences of his or
her actions are, of course, far more grave than are those which arise on foot of the
execution of a search warrant, in the sense that one’s home is still available to live in after
the gardai have exercised the powers conferred by such a warrant. In contrast, a person
[1994] 1 IR 565.
At page 353.
130 [2000] 2 IR 243 at 250.
128
129
61
may be left homeless and facing the prospect of the destruction of his or her home as a
result of the exercise of the powers conferred by Section 19F of the Act of 2002. It is
submitted, in the circumstances, that the provision amounts to a failure to “observe the
fundamental norms postulated by the legal order of the Constitution” and a clear
violation of Article 40.5.
6.15
The Commission submits that the provision, by facilitating the removal of one’s
home in such an arbitrary and unregulated manner, also violates the protection afforded
to private property in Article 43 and Article 40.3 of the Constitution. Article 43 provides;
“1. 1° The State acknowledges that man, in virtue of his rational being, has the
natural right, antecedent to positive law, to the private ownership of external
goods.
2° The State accordingly guarantees to pass no law attempting to abolish the
right of private ownership or the general right to transfer, bequeath, and
inherit property.
2. 1° The State recognises, however, that the exercise of the rights mentioned
in the foregoing provisions of this Article ought, in civil society, to be regulated
by the principles of social justice.
2° The State, accordingly, may as occasion requires delimit by law the
exercise of the said rights with a view to reconciling their exercise with the
exigencies of the common good.”
6.16
In Article 40.3, the State undertakes “to protect as best it may from unjust attack
and, in the case of injustice done, vindicate the ….property rights of every citizen.” The
attempts by the Courts to define the relationship between these two provisions is
described in JM Kelly: The Irish Constitution131 as follows:
“the older cases looked to Article 43 as the principal guarantee of the individual’s
right to a specific item of property. Then, for a brief period during the 1980’s,
131
See Hogan & Whyte (4th ed LexisNexis Butterworths 2004) at paragraphs 7.7.38-7.7.46.
62
that provision was relegated to the role of the protection of the institution of
private property, while Article 40.3 protected the rights of the individual to
particular items of property. However, since the latter half of the 1980’s, the
courts have again invoked the concepts of social justice and the exigencies of the
common good, mentioned in Article 43, when considering whether restrictions
on specific property rights constitute an unjust attack for the purposes of Article
40.3”132
6.17
In that regard, it is noted that in Re Article 26 and the Employment Equality Bill
1996,133 the Supreme Court considered the scope of the constitutionally permissible
restrictions on private property and concluded that such restrictions must be consistent
with the requirements of “social justice” within the meaning of Article 43.2.1 of the
Constitution”
“In reading Article 43 of the Constitution it is important to stress the significance
of the word "accordingly" which appears in Article 43, s. 2, sub-section 2. It is
because the rights of private property "ought" in civil society to be regulated by
"the principles of social justice" that the State may, as occasion requires, delimit
their exercise with a view to reconciling it with the "exigencies of the common
good". It is because such a delimitation, to be valid, must be not only reconcilable
with the exigencies of the common good but also with the principles of social
justice that it cannot be an unjust attack on a citizen's private property pursuant
to the provisions of Article 40, s. 3 of the Constitution.”
6.18
However vague the notion of “social justice”, the Commission submits that
neither it nor demands of the common good can justify the summary removal of a
person’s home and the rendering homeless of that person by the actions of a member of
the Gardai, without the provision of any forum for raising arguments in objection. In
that regard, it is noted that the Courts have also endorsed the view that the procedural
adequacies or inadequacies of a provision regulating private property are crucial to the
assessment of whether or a not that provision can be construed as ‘an unjust attack’ on
the property rights of an individual, for the purposes of Article 40.3.134 Indeed, it is also
At paragraph 7.7.03.
[1997] 2 IR 321.
134 See Clancy v Ireland [1988] IR 326; [1989] ILRM 670 and Deighan v Hearne [1990] 1 IR 440.
132
133
63
submitted that the obvious procedural inadequacies in Section 19F violate the right to be
heard before a decision is made, inherent in the right to fair procedures, also protected
by Article 40.3.135 Finally, in the view of the Commission, the removal of one’s home,
with the possibility of destruction thereof one month later, and the consequent rendering
homeless of a person, is an affront to the right to a good name, specifically protected
under Article 40.3 and to the unenumerated rights protected under that same provision
to be treated with dignity, the rights of privacy and to autonomy.
Issues arising under the ECHR
6.19
It is submitted, in view of the above, that Section 19F violates in a most flagrant
manner the Article 6 guarantee of a fair hearing by an impartial tribunal in the
determination of the civil rights of an individual. The jurisprudence of the
European Court of Human Rights has tended to focus upon the quality of the fair
hearing to be provided, seeking to ensure effective participation by the relevant
parties136, and thus has proceeded upon the assumption that a hearing will be
provided in the first place, an assumption that is unfortunately misplaced in the
context of Section 19(F). Indeed, the comment of the Court in the case of Golder
v The United Kingdom137, albeit expressed in the context of protection by Article 6
of the right to legal representation is apposite in the context herein; the Court
noted that;
“one can scarcely conceive of the rule of law without there being a
possibility of having access to the courts.”
6.20
It may be queried, furthermore, whether the right to an effective remedy
protected by Article 13 of the ECHR is also engaged; that provision provides
that;
See, for example, The State (Gleeson) v The Minister for Defence [1976] IR 280, Kiely v The Minister for Social
Welfare (No.2) [1977] I.R. 267, Beirne v The Garda Commissioner [1993] ILRM 1
136
See, for example, Airey v Ireland (1979) EHRR 305, Langborger v Sweden (1989) 12 EHRR 416.
137
(1979 – 1980) 1EHRR 524 at paragraph 34.
135
64
“Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in an
official capacity.”
6.21
The view adopted by the European Court of Human Rights in relation to Article
13, however, is such that it cannot be used as a basis for challenging the lawfulness of
legislation. In Connors v United Kingdom, the Court noted that;
“Article 13 does not go so far as to guarantee a remedy allowing a Contracting
State’s primary legislation to be challenged before a national authority on grounds
that it is contrary to the Convention138”
6.22
It is submitted, having regard to the parameters of Article 8(1) ECHR and the
scope of the permissible restrictions under Article 8(2) as discussed above, that Section
19F is represents a clear violation of this provision. In view of the gravity of the acts of a
garda pursuant to Section 19F, that it is an entirely disproportionate measure. The lack of
procedural safeguards in the sub-section compounds the flaws therein, procedural
propriety and fairness being important factors to be weighed when determining whether
an interference with an Article 8 right is proportionate. As noted above,139 the European
Court of Human Rights concluded in Buckley v United Kingdom that the presence of
procedural safeguards within the equivalent English legislation was a most material
consideration as far as its conclusion that the United Kingdom had acted in accordance
with the ECHR was concerned.
6.23
The provision also gives cause for concern under Article 1 of Protocol 1 of the
ECHR which provides that:
“Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
Para 109. James and others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 85; A. v.
the United Kingdom, no. 35373/97, ECHR 2002-X, §§ 112-113.
139 At paragraph 5.42.
138
65
interest and subject to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.”
6.24
It is clear, however, that the qualification set out in second paragraph of the
above provision regarding the right of a State to enforce the laws in question cannot
extend to a right to enforce laws which deprive a person of his or her possessions in
circumstances which violate the ECHR itself. In those circumstances, it is submitted that
Section 19F also appears to violate Article 1 of Protocol 1 of the ECHR.
7.
DISCRIMINATORY IMPACT OF SECTION 19A – H?
7.1
All parts of Section 19 are considered together herein for the purpose of
determining whether they, although facially neutral, violate the equality guarantee of
Article 40.1 of the Constitution and the non-discrimination provision clause in Article 14
of the ECHR in view of the fact that they are indirectly discriminatory. It is submitted
that the Section will inevitably have a disproportionately large impact upon the lifestyle
and freedoms of persons of a nomadic disposition. Indeed, disproportionate impact
upon the nomadic activities of Travellers is not only an effect of the section, it is,
according to the Government press statement alluded to above,140 the aim thereof as it
was stated therein that the measure sought to “deal with large scale encampments of
Travellers”.
7.2
The issue of indirect discrimination has scarcely been addressed by the courts in
this jurisdiction to date in the context of Article 40.1 of the Constitution. In Norris v
Attorney General,141 certain members of the Supreme Court appeared to reject the concept
in a number of obiter references. As noted earlier, whilst constitutional equality
jurisprudence remains relatively underdeveloped in this jurisdiction, it is clearly arguable
140
141
At paragraph 5.39.
[1984] IR 36.
66
that, if interpreted in a manner consistent with international instruments ratified by the
State, that Article 40.1 ought to embrace both direct and indirect discrimination. Indeed,
the European Court of Human Rights has acknowledged that “indirect discrimination” is
covered by Article 14 in the sense that it prohibits measures which, although neutral on
their face between two groups, produces effects that fall disproportionately on one of the
two groups. The Court accepted this relevance of effects in the Belgian Linguistic Case
(No.2):142
“[T]he Court, following the principles which may be extracted from the legal
practice of a large number of democratic States, holds that the principle of
equality of treatment is violated if the distinction has no objective and reasonable
justification. The existence of such a justification must be assessed in relation to
the aim and effects of the measure under consideration, regard being had to the
principles which normally prevail in democratic societies.
A difference of
treatment in the exercise of a right laid down in the ECHR must not only pursue
a legitimate aim: Article 14 is likewise violated when it is clearly established that
there is no reasonable relationship of proportionality between the means
employed and the aim sought to be realised.”
7.3
Similarly, in Shanaghan v United Kingdom,143 the Court stated “where a general
policy or measure had disproportionately prejudicial effects on a particular group, it is
not excluded that this may be considered as discriminatory notwithstanding that it is not
specifically aimed or directed at that group”.
7.4
Thus, the Commission submits, as a number of provisions of the ECHR are
violated by Section 19, that it will also violate Article 14 unless “objective and reasonable
justification” can be found. In order to prove such justification, the respondent
government or defendant public authority must show that the difference in treatment
pursues a ‘legitimate aim’, and that there is a reasonable relationship of proportionality
between the means employed and the aim sought to be achieved: Once discrimination is
demonstrated, it is for the discriminator to establish an objective and reasonable
justification for that discrimination. That onus must be especially high where, as is seen
142
143
(1979-80) 1 EHRR 252.
European Court of Human Rights, unreported, May 4, 2001.
67
from the above case law in relation to the protection of the Gypsy way of life, the ECHR
imposes a positive obligation on contracting States. Thus, in Ghaidan v Godin-Mendoza144
at paragraph 19 Lord Nicholls said:
“….where the alleged violation comprises differential treatment based on
grounds such as race or sex or sexual orientation the court will scrutinise with
intensity any reasons said to constitute justification. The reasons must be cogent
if such differential treatment is to be justified”.
7.5
In view of our earlier submissions regarding the lack of proportionality inherent
in Section 19, the Commission submits that it can have no objective or reasonable
justification. In the circumstances, it is submitted that the provisions thereof may also
violate Article 14.
144
[2004] 2 AC 557.
68