THE HIGH COURT
DUBLIN
JUDICIAL REVIEW
RECORD NO. 73 JR/2002
93 JR/2002
Between
R. O.
Applicant
And
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Respondent
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED THE 11TH DAY OF JULY 2002
	MR. JUSTICE SMYTH:       In these proceedings the Applicant seeks:- 
		(a)  An Order of Certiorari quashing the decision of the Respondent to continue his detention.
		(b)  A declaration that the continued detention of the Applicant is unlawful and ultra vires the powers of the Respondent.
		(c)  An Order directing the release of the Applicant on such terms and conditions as to the Court seem just and proper.
The grounds upon which the relief is sought are as follows:-
(a)  The decision of the Respondent to continue the detention of the Applicant is unlawful, ultra vires and contrary to the provisions of Article 34.1 and Article 40 of the Constitution;
(b)  The decision of the Respondent constitutes an abuse of the process to detain granted to the Respondent under the Immigration Act, 1999 as amended.
(c)  The Respondent has failed, refused and neglected to discharge the Order of detention on discovery of new facts and/or circumstances which render the continued detention of the Applicant unlawful and/or an abuse of his power under the Immigration Acts, 1996/2000.

These proceedings raise a net issue concerning the effect, if any, of proceedings in the District Court (or other proceedings) on:-

(1)  The entitlement of the Minister to make a Deportation Order, such as the Order in question, and serve same with a letter of notification.
(2)  The entitlement of a member of An Garda Siochana to arrest and detain a person for the purpose of executing the Deportation Order.
(3)  The execution of the Deportation Order.
To understand why these matters came to be litigated, it is necessary first to consider the facts. 
FACTS:
(a)	The Asylum and Immigration Process: 
The Applicant is a Nigerian national who departed from his country of origin on 1st December 1999.  He travelled by boat from Nigeria to France and then on to Rosslare by ferry.  He had a false passport on arrival.  On arrival in Ireland on 11th December 1999, he immediately sought asylum.  His application was refused in the first instance, and he was so notified by letter dated 8th August 2001.  The Applicant appealed against that decision and an appeal hearing was set for 17th October 2001, but he appeal was refused and the Applicant so notified by letter of 30th October 2001 from the Refugee Appeals Tribunal.  This was followed by a letter from the Respondent (the Minister) of 28th November 2001 indicating his proposal to make a Deportation Order in accordance with Section 3 of the Immigration Act, 1999 (hereinafter referred to as the Act of 1999).

It is clear, that as of the date of the consideration of the Section 3(6) application under the Act of 1999, on 17th January 2002, by Mr. Galvin and Miss Fitzgerald (and before final determination thereon on 29th January 2002) that the following matters were particularly noted:-
		"Section 3(6)(f) Employment (including self-employment) Prospects of the Person – 
Mr. O. was not issued with a right to work letter and therefore is not permitted to work in the State (Tab 14).  However, if permitted and given the present economic climate, he should have no problem in securing some form of employment.
Section (3)(6)(g) - Character and 4 Conduct of the Person Both Within and {where relevant and ascertainable) Outside the State (including any criminal convictions) - Mr. O. was arrested on 16th December 2001 and charged with 	handling stolen property, having no documentation and attempting to leave	the State without the permission of the Minister.  He is due to appear at court on 29th January 2002 (Tab 13).  This division is not aware of any convictions or misconduct by Mr. O. outside of this State. 
Section 3(6)(j) - The Common Good - It is in the interest of the common good to uphold the integrity of the asylum and immigration procedures.  As stated above, Mr. O. is due to appear in court on 29th January 2002 (Tab 13).
Section 3(6)(k) - Considerations of National Security and Public Policy - Considerations of national security and public policy do have a bearing on this case."
It is clear from the exhibited documents in Tab 13 that charges against the Applicant were in respect of offences:-
(a) Contrary to the provisions of S.9(4) (a) of the Refugee Act, 1996 (hereinafter referred to as the Act of 1996) as amended by S.ll(l) of the Act, 1999 and S.9 of the Illegal Immigrants (Trafficking) Act, 2000 (hereinafter referred to as the Act of 2000); 
(b)  In contravention of Article 15 of the Aliens Order Act, 1946 and contrary to S.6{1) of the Aliens Act, 1935 as amended by S.10 of the Act of 1999 and S.9(3) of the Act of 1996.

When arrested at Dublin Airport on his way to Dallas in the United States of America on 16th December 2001, the Applicant was in possession of £2,000stg. and US$3,000.  It appears that the Applicant was in possession of a British passport in the name of Richard Lewis Gelderd.  The Applicant asserted he had paid £150 for the passport in Dublin.  The refinements as to whether the document was purchased or stolen were canvassed during the hearing of these Judicial Review proceedings: what is of importance is that the existence of court proceedings was known before any Deportation Order was signed.  A Deportation Order was signed on 29th January 2002 and a letter of notice thereof, dated 30th January 2002, was served on the Applicant on 31st January 2002, which advised him to attend at the Garda National Immigration Bureau at Harcourt Street, Dublin at 4p.m. on that day to make arrangements for deportation from the State and to effect deportation not later than 28th February 2002.
			(b) Court Proceedings: 
On or about 4th September 2001, the Applicant was summoned to appear before the District Court in Carlow (hereinafter referred to as "the Carlow proceedings") on 19th September 2001 to answer charges under Section 10 of the Criminal Justice Act 1951, to wit that for two different periods of time; 
(a) between 6th March 2000 and 20th May 2000, and
(b) between 29th May 2000 and 20th July 2000, he had in aggregate obtained £1,918 by falsely pretending to the South Eastern Health Board that during those periods he was unemployed and not in receipt of income - whereas he was employed for gain or reward. The matter was adjourned on 19th September 2001 (the
Applicant having pleaded guilty to the offences). The adjournment was on terms.  The matter was further adjourned to 16th January 2002 and thereafter to 24th July 2002 on terms.  A sum of €400 by way of restitution payments had been made by the Applicant through his solicitor to the South Eastern Health Board by 22nd January 2002.  The solicitor acting for the Applicant in those proceedings was a Mr. John S. Sullivan. 

On 31st January 2002, the proceedings in respect of the events at Dublin Airport on 16th December 2001 were returned to the District Court sitting at the Bridewell (hereinafter referred to as "the Bridewell proceedings").  By consent in those proceedings, the charge of handling stolen property, to wit – the British passport was struck out and the remaining charge sheets were adjourned to 14th February 2002 and on that day adjourned for hearing on 23rd May 2002.  The Applicant on the occasion of 31st January 2002 was on remand on continuing bail of £750 in his own bail and an independent cash surety of £750 also.  After the court hearing on 31st January 2002 at about 10:30a.m., the Applicant was in fact served with a Deportation Order and letter of notice, and the Applicant was arrested on the suspicion that he would not comply with the Deportation Order.  That suspicion being generated by his conduct on receipt of the documentation. 

Next followed a flurry of activity in the High Court where Butler J. refused an ex parte application made on 1st February 2002 for an inquiry under Article 40.4.2 of the Constitution.  As the Judge assigned to the asylum list, an application was made to me and I granted an interim injunction restraining the Respondent from giving effect to the Deportation Order to 5th February 2002 and for an Order for the production of the Applicant on that date.  I had reason eventually to consider, with the benefit of the oral evidence, the lawfulness of the Applicant's detention and had the benefit of the having the evidence of the Garda tested by cross-examination.  Between 5th February 2002 and that investigation carried out before me, visitations had been made to McKechnie J. and the President of the High Court.  There is in place for some months now an undertaking from the Minister not to deport the Applicant until these proceedings are determined.

During the course of the hearing of the Judicial Review proceedings I was informed that the Applicant had appeared before Carlow District Court on 6th March 2002 on certain Road Traffic charges to which the Applicant pleaded guilty to; (1) driving without due care and attention, and received a fine of €100; (2) failing to stop for the Gardai, and received a fine of €100.  The Applicant was apparently disqualified from driving for 12 months and his licence endorsed.  He was given one month to pay the fine or four days imprisonment in lieu.

For the purposes of this judgment, I disregard the matter of the Road Traffic offences because; (a) the matter is not deposed to, and (b) a solicitor on record in these proceedings may have been unaware of those matters and they are not offences in any direct way related to trangressions referable to asylum or immigration matters.

I am satisfied and find as a fact on the evidence before me that at the time the Deportation Order was made, the letter of notice issued and the service thereof, that it was reasonably anticipated by the Minister that the Bridewell proceedings in the District Court would be attended to and that no intended interference with those proceedings would or could take place.  I am equally satisfied and find as a fact as I have already determined that the detention of the Applicant by the Gardai on 31st January 2002 was warranted.

THE APPLICANT'S SUBMISSIONS:
(1)  The Applicant invoked the provisions of Articles 6, 34, 37 and 40 of the Constitution.  The basic thesis of the submission was that matters in charge or seisin of the courts cannot in any way be interfered with by acts of the executive. 
(2)  Once begun, the judicial process must be allowed to run its course without interference and this is an inviolable principle.  In this regard, the Applicant sought to rely on Kelly, The Irish Constitution (3rd ed. p.360) and Hamilton -v- Hamilton [1982] I.R. 466 (per Henchy J. at p.481) and Quinlivan -v- The Governor of Portlaoise Prison, DPP, Ireland & The Attorney General [1998] 2 I.R. 113 per McGuinness J.  The argument advanced by the Applicant is best summarised by McGuinness J. at p.140 of the Quinlivan judgment in the following terms:-
		"The principles set out in Costello have a distinct relevance to the instant case where the Court had completed all preliminary processes and
had returned the Applicant for trial before the Special Criminal Court and subsequently the legislature enacted a statute which, on the interpretation canvassed by the Applicant, would in fact prevent his trial."
Professor Kelly at p.360 of the Irish Constitution, 3rd Ed. points out some areas where the administration of criminal justice is to a certain extent under executive rather than judicial control, (as in the decision to institute, or not to institute, a prosecution), but concludes:- 
"What does appear to be inviolable is the actual judicial process itself while in operation; once begun, it must be allowed to run its course without interference".

Counsel for the Applicant on this point stresses the power of the legislature to enact statutes which affect the criminal law and the fact that it is for the legislature to decide the form and content of statute law.  This power is undoubted.  The question in the instant case, however, is whether it is permissible for the legislature to take steps which would actually intervene in a case already before the Court. Counsel for the Applicant in referring to Buckley & Others (Sinn Fein) -v- The Attorney General [1950] I.R. 67, points out that this was an interference by the legislature on an individual basis in an individual case and that s.28 of the Act of 1947 is a general provision not directed only to the case of the Applicant.  This is undoubtedly true but in some of the other cases quoted, and in particular Maher -v- The Attorney General [1973] I.R. 140 and Costello -v- The Director of Public Prosecutions [1984] I.R. 436, the intervention of the legislature was also of a general nature rather than an intervention in an individual case."
In the case of Costello O'Higgins C.J. at p.456/457 stated:-
"The controversy which was before the District Court was one between the people and the Plaintiff as to whether there was sufficient evidence to put him on trial.  A power given to a non-judicial authority to come to a conclusion different from that of the District Court and to enforce that conclusion by compelling the person accused to stand trial is ... an impermissible intervention in the controversy between the people and that person."
In the case of Costello the Court was examining the constitutionality of the statutory provisions under which the DPP purported to direct that the accused stand trial on the same charges in respect of which he had been discharged by the District Justice.  The facts in the instant case do not fall within this line of authority. 

The Applicant also relied on the authority of Kelly –v- O'Neill [2001] I.I.R. 354 at p.359 per Denham J. which is to the effect that where a conviction has
been recorded but sentence has not yet been handed down, the process of the administration of justice is continuing.

(3)  Execution on foot of the Deportation Order would mean that an Act of the Minister could have the effect of nullifying conditions imposed by a court and accordingly constitute a violation of Articles 34 and 37 of the Constitution, and in this regard reliance is placed on the case of the DPP-v- Olympic Amusements (Bundoran) Limited [1987] I.L.R.M. 320.  On a reading of the case, I am not certain that the proposition contended for can be founded on the authority of that case.  The entitlement to make a Deportation Order is separate and distinct from all other rights such as the Courts have in dealing with matters submitted to their jurisdiction.

(4)  When an accused/convicted person has been granted bail by a court of competent jurisdiction, the executive cannot defeat that right by an Order for the deportation of that person which will coerce him into a breach of the terms and conditions of his bail. 

(5)  A person who enters into recognisance and lodges a sum of money with the Court (and gives further financial undertakings in return for bail) suffers an unlawful violation of his property rights under the Constitution if he is deported while on bail. 

SUBMISSIONS OF THE RESPONDENT:
1. The law empowered the detention and deportation of the Applicant notwithstanding court proceedings. The inherent power to deport is regulated by S.3 of the Act of 1999 and the power to detain by S.5 of the Act of 1999 is consequential upon and ancillary to the power to deport.
2. It is accepted that S.3 as amended limits the powers of detention conferred by S.5 by providing that the power may only be exercised in respect of any person "for the purpose of ensuring his or her deportation from the State".  It is accepted by the Respondent that the decision of the Supreme Court in the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360 at p.404-405 decides that for an Order for detention to remain lawful, it must be confined to the statutory purposes in accordance with the principles enunciated by Flood J. in Gutrani -v- The Governor of Wheatfield Prison & Minister for Justice (Unreported, High Court, February 1993). 

In that case Flood J. held that the onus was on the Minister for Justice to arrange suitable transportation and there was no evidence before the High Court that the Minister was in a position to provide suitable transportation to Libya in pursuance of the Deportation Order and that such travel arrangements were unlikely to be available to the Minister in the unforeseeable future and, accordingly, Flood J. found in those circumstances that the continued detention was unlawful.  While Gutrani predates the Act of 1999, it is accepted by the Respondent that there is a limitation on the power of detention.
3. Where there is a suspicion with reasonable cause that the person concerned who has been served with the Deportation Order is not going to permit the Deportation Order to be carried out in a proper manner, detention to secure such proper deportation is statutorily permitted.  The Applicant has had the opportunity to avail of "the elaborate procedures" provided for in the asylum and immigration process and, indeed, continuing on to an application to remain in the State on humanitarian grounds before any question of a Deportation Order is made of which statutory notification of such intention is and was given in the instant case.  While the legislation contains an express time limit of eight weeks, in aggregate, subject to certain extensions where proceedings are brought, it would still be the case that it would be an abuse of power to detain if it was clear that the deportation could not be carried out within eight weeks.  The period of detention in the excluded periods are referred to in S.5(5) and (6) of the Act of 1999. 

The question of the Applicant's position under Section 5(5) of the Immigration Act, 1999 was considered by me and ruled in earlier proceedings and I do not propose re-visiting that decision.  In balancing the various rights of the parties at that time, I noted that the Court must consider the common good which was acknowledged by the Supreme Court in its decision in the Illegal Immigrants (Trafficking) Bill, 1999 case. 
DETERMINATION:
In my judgment the giving effect to a Deportation Order in the present case where there are District Court proceedings extant does not come within any of the established principles as amounting to an unjustifiable interference with a judicial process. The issuing of the Deportation Order does not concern any of the justiciable issues which are before the District Court.  The issues that were before the District Court are the three separate matters comprised of; a charge of larceny, Road Traffic offences (which are now determined), and obtaining money by false pretences.  The deportation qua deportation is entirely neutral and independent of determining these matters. 

The proceedings are clearly distinguishable from Buckley's case earlier referred to.  In that case proceedings had been instituted to determine the entitlement of an organisation to a sum of money collected.  While the action was pending before the High Court, the Oireachtas passed the Sinn Fein Funds Act, 1947.  Section 10 of that Act provided that on the passing of the Act, all further proceedings in the action should be stayed and that the High Court, if an application on that behalf were made ex parte by or on behalf of the Attorney General, the Court should make an Order dismissing the pending action without costs.  The Supreme Court were of opinion that the Act was clearly repugnant to the provisions of the Constitution as being an unwarrantable interference by the Oireachtas with the operation of the Courts in a purely judicial domain.  In the instant case, the Deportation Order does not seek to decide the justiciable issues or any dispute before the District Court.

It cannot have been the intention of the legislature when enacting the Act of 1999 or amendments thereto, that an applicant could benefit from having committed a crime to enable him to remain longer in the State than he would otherwise have been entitled to by rendering a Deportation Order ineffective or putting a stay on the operation of such an Order. Even a temporary stay on the Deportation Order would confer on the applicant an unjustified benefit and frustrate the right of the State to deport him. While it is not necessarily the case, there are circumstances which could be envisaged where the Applicant against whom a Deportation Order had issued (or in anticipation of one being issued) could commit a minor infraction or crime to frustrate the operation of the Deportation Order so as to allow the person remain longer in the State. Such an applicant could obtain bail in relation to the charge and so remain free, and the State would be unable to give effect to the Deportation Order pending the outcome of the criminal proceedings! In the instant case, there may not have been any intention of committing a crime to frustrate the
Deportation Order, but nonetheless the principle remains that the applicant should not be able to profit from alleged crimes to allow him to remain longer in the State than he is by law entitled.

I am satisfied and find as a fact and as a matter of law that the Deportation Order was not in any way a reaction to the District Court proceedings, nor did it involve a determination of matters which are before the District Court.  It was a result of a process parallel and separate to the District Court proceedings.  The Deportation Order was issued following the process of the refusal of the Applicant's asylum claim and not because of any conviction as is borne out by the Order itself which is based on S3(2)(f) which is referable to a person whose application for asylum has been refused and on no other basis.

I am satisfied and find as a fact that the functions vested by the Oireachtas and the Minister for Justice relating to the making of the Deportation Orders do not amount to an administration of justice or purported administration of justice by the executive, but rather to the performance by the executive of its proper role in caring (inter alia) for the common good.

The constitutional right of access to the courts is a right to initiate litigation, not a right to compel suit or prosecution. 

The Deportation Order does not have the effect of reversing a judicial decision in the District Court proceedings.  The Order was issued entirely independent of the District Court proceedings and so could not involve a selection of punishment (Deaton -v- The Attorney General [1963] I.R. 170).  Nor is it an attempt to take away the power of the District Court to decide questions in favour of the executive power to decide (as in The State (C) -v- Minister for Justice [1967] I.R. 106).

To the extent that matters are uncompleted in the District Court, an accused person is entitled to the presumption of innocence and there would be no slur or prejudice to an applicant if the trial was not proceeded with due to the Deportation Order being given effect to.  Furthermore, there can be no prejudice to an applicant by the sentence of a court not being fully enforced against him.  Again, it was said by Finlay C.J. in The State (McCormick) -v- Curran [1987] I.L.R.M. 225 that:-
"The right of access to the courts, stated in its broadest fashion, is a right to initiate litigation in the court.  There is not, in my view, any right necessary for the protection of any constitutional rights to force another person to sue you at civil law or to prosecute you in the criminal law in the courts."
Equally so, it appears to me that there is no right to insist on criminal proceedings being continued against an Applicant as opposed to a right to remain in the State or to be brought back to enable the proceedings to be concluded. Therefore, on the question of the payment of monies by way of recognisance or bail, it seems to me that if a person is deported from the State and unable to be present for the hearing in the District Court or any other court, that is not a deliberate failure to answer to his bail, but rather a circumstance that has intervened such as precludes him from attendance at court and is not a failure to present himself of his own motion from the proceedings. I refuse to grant relief by way of judicial review.