IESC 59 · Supreme Court

THE SUPREME COURT

277/00

27/01

Keane J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

BETWEEN/

STIOFAN BREATHNACH

APPLICANT/RESPONDENT

and

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

Judgment of Mrs. Justice Denham delivered on the 11th day of July, 2001.

1. Appeal

This is an appeal by the respondents/appellants, hereinafter referred to as the respondents, against the judgment and order of the

High Court (Quirke J.) made on 21st July, 2000, and perfected on 6th September, 2000, whereby the learned High Court Judge

granted the applicant/respondent, hereinafter referred to as the applicant, a declaration.

2. The High Court

The High Court made the following declaration:

“The Court doth declare and adjudge that the failure on the part of the State to provide for the applicant as a citizen of the

State amongst the prison population the necessary machinery to enable him to exercise his franchise to vote comprises a failure

which unfairly discriminates against him and fails to vindicate the right confessed (sic) upon him by Article 40.1 of the

Constitution of Ireland to be held equal before the law.”

The High Court held:

“The sanctions imposed upon the applicant by the Special Criminal Court in respect of the offences with which he has been

lawfully convicted comprised sentences of various terms of imprisonment. The loss of the applicant’s right to vote in national

and other elections was not, at the time of his conviction, a sanction which was prescribed or permitted by law in respect of

the offences of which the applicant was convicted. Accordingly, the applicant retains his constitutionally protected right to

vote at ‘. . . an election for members of Dail Eireann’ and his legally protected right to vote in presidential, European and local

government elections. Furthermore he is entitled to exercise that right provided that his exercise does not impose unreasonable

demands upon the authorities who are lawfully detaining him. It has been acknowledged that the authority which is lawfully

detaining the applicant is the State.

It follows from the foregoing that the failure on the part of the State to provide for the applicant, as a citizen of the State

amongst the prison population, the necessary machinery to enable him to exercise his franchise to vote comprises a failure on

the part of the State to vindicate a right conferred upon the applicant by Article 40.1 of the Constitution to be held equal

before the law.”

3. Grounds of Appeal

The respondents appealed upon the following grounds:

1) That the learned High Court Judge erred in law and in fact in granting the declaration sought.

2) That the learned High Court Judge erred in law and in fact in determining that the applicant’s right to vote was not a right which

depended upon the continuance of his liberty.

3) That the learned High Court Judge erred in law and in fact in determining that the failure of the respondents to provide the

applicant with the means to exercise his right to vote was in breach of the provisions of Article 40.1 of the Constitution.

4) That the learned High Court Judge erred in law and in fact in determining that the applicant was entitled to exercise his right to

vote while imprisoned.

5) That the learned High Court Judge erred in law and in fact in determining that the respondents were in breach of the applicant’s

constitutional rights in failing to make special provisions so as to enable him to exercise his right to vote while imprisoned.

6) That the learned High Court Judge erred in law and in fact in determining that the respondents were obliged by the provisions of

the Constitution to make special provision to enable prisoners such as the applicant to exercise their right to vote while imprisoned.

7) That the learned High Court Judge erred in law and in fact in determining that the respondents had arbitrarily or unfairly

discriminated against the applicant in failing to provide him with the means to exercise his right to vote while imprisoned.

The applicant filed a cross appeal seeking an order of mandamus directing that the respondents provide appropriate legislative

machinery to enable the applicant and others who are in lawful detention within the State and who are capable of voting to exercise

their right to vote at both national and local elections and in national referenda. The grounds of the cross appeal were that the

learned High Court Judge erred in law and in fact in failing to make the order of mandamus sought.

4. Law

Relevant law is to be found in the Constitution, legislation and common law.

Article 16.1.2 of the Constitution of Ireland states:

“i. All citizens, and

ii. Such other persons in the State as may be determined by law, without distinction of sex who have reached the age of

eighteen years who are not disqualified by law and comply with the provisions of the law relating to the election of members of

Dáil Éireann, shall have the right to vote at an election for members of Dáil Éireann.”

Article 16.7 of the Constitution of Ireland provides:

“Subject to the foregoing provisions of this Article, elections for membership of Dáil Éireann, including the filling of casual

vacancies, shall be regulated in accordance with law.”

Article 40.1 of the Constitution of Ireland provides:

“All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical

and moral, and of social function.”

In this case no breach of Article 16 of the Constitution of Ireland is alleged. No law is impugned. The case is based on Article 40.1 of

the Constitution, on the concept of equality.

5. Submissions

Counsel on behalf of the respondents, Mr.Eoghan Fitzsimons, S.C., submitted written and oral submissions. Mr. Fitzsimons pointed out

that in these judicial review proceedings the applicant has not sought to impugn the electoral laws but that instead he had simply

sought a declaration which contemplates the passage of legislation which would provide for postal voting facilities for himself and

other prisoners. Counsel submitted that the applicant is not entitled to raise the constitutional issue in this manner. Counsel argued

that it is not in issue that the applicant is entitled to equal treatment by the law by virtue of Article 40.1. He argued, further, that if

the law does not provide the applicant with such equal treatment he must challenge that law on the basis that it does not comply

with Article 40.1. The law is entitled to the presumption of constitutionality, consequently, counsel submitted, unless the applicant is

to challenge the constitutionality of the electoral law provisions as being a contravention of Article 40.1 of the Constitution he is not

entitled to advance a claim for the declaratory relief claimed by him. Thus, he submitted, on this basis, the appeal should be allowed.

Further, he submitted, that the High Court judgment was in error. The State did not enact any law to deprive the applicant of his

constitutional right to vote under Article 16.1.2 of the Constitution. On the contrary, by Section 11(5) of the Electoral Act, 1992

provision is made for the registration of him as a voter. Thus his registration would enable him to vote during the currency of his

sentence if he was on temporary release or, alternatively, if his prison sentence ended just before the date when the election was

being held.

Counsel for the respondents referred to the common law and submitted that the learned trial judge had erred in his interpretation of

that law especially his construction of the decision in Murray v. Ireland and Ors. [1991] I.L.R.M. 465. Counsel for the respondents

submitted that in the context of Article 40.1 of the Constitution the only issue that arose was that of whether or not the State has

arbitrarily discriminated against the applicant by passing laws providing for postal voting facilities for others and not for him. In this

connection the first point to be made was that the legislation, of which complaint is made, does not discriminate between different

types of prisoners. There is no question of some prisoners being given postal voting facilities and not others. All prisoners are treated

in the same way by virtue of Section 11 of the 1992 Act. It was agreed that in that the applicant is not provided with postal voting

facilities while certain other categories of citizens have this facility available to them, he is treated differently from those others.

However, Article 40.1 permits laws to differentiate between categories of citizens and to make different provisions for different

categories. Counsel submitted that equality under Article 40.1 does not mean uniformity. Further that the Electoral Acts of 1992 and

1997 enjoy a presumption of constitutionality.

On the cross appeal counsel submitted that any relief to be granted should be restricted to a breach of the applicant’s rights alone.

However, having said that, it was submitted that in the event of the Court holding for the applicant on the basic issue declaratory

relief alone would be sufficient to meet the situation. The State would comply with any declaratory relief granted in such

circumstances. It was further submitted that an order of mandamus would not be appropriate or a necessary relief in the

circumstances, having regard to the principle of separation of powers.

Mr. Paul Gardiner, S.C., counsel for the applicant, submitted written and oral submissions. In fact the cross appeal was not pressed

and thus the kernel matter for decision was the equality issue upon which the High Court judgment rested. Counsel submitted that

the learned High Court Judge had been correct in his decision. Counsel submitted that in the hierarchy of constitutional rights, the

constitutional right to vote must be placed at the top of the list. He referred to Article 6 of the Constitution. He submitted that rather

than seeking to exclude persons from the exercise of their right to designate the rulers of the State and decide questions of policy,

the State should be seeking to include all citizens in accordance with the Supreme Court decision in In Re The Electoral (Amendment)

Bill, 1983 [1984] I.R. 268 and subject to the requirements identified in Draper v. The Attorney General [1984] I.R. 277. He submitted

that the learned High Court Judge was correct that the applicant’s right to be treated equally had been infringed.

6. Decision

The issue to be determined is net. The query is whether the applicant’s constitutional right to equality has been infringed by the fact

that he is unable to vote when in prison and if this is established then the Court is requested to make a declaration as to such

breach. The issue of constitutional rights of prisoners being affected by their imprisonment has been the subject of previous cases. In

Murray and Murray v. Ireland [1991] I.L.R.M. 465, the plaintiffs sought declarations of their entitlement while serving sentences to

have the opportunity to exercise conjugal rights in order to beget children. The Supreme Court held that the length of time which a

person sentenced to imprisonment for life spends in custody and the extent to which, if any, such person obtains temporary release is

a matter which under the constitutional doctrine on separation of powers rests entirely with the executive. The exercise of these

powers by the executive is subject to supervision by the court which should intervene only if it can be established that such powers

are being exercised in a manner which is in breach of the constitutional obligation of the executive not to exercise them in a

capricious, arbitrary or unjust manner. Finlay C.J. stated at pp. 471 - 473:

“The fact that both the plaintiffs in this case are in prison and the fact that before they were committed to prison they had no

children of the marriage, whilst therefore affecting the compassion with which one might view their situation, cannot be

considered relevant to the constitutional rights which they claim and to the issue as to whether they have been invalidly denied

them.

I accept that the fact that the Constitution so clearly protects the institution of marriage necessarily involves the

constitutional protection of certain marital rights. They include the right of cohabitation, the right to take responsibility for and

actively participate in the education of any children born of the marriage, the right to beget children or further children of the

marriage, and the right to privacy within the marriage, privacy of communication and of association. It is quite clear that as an

inevitable practical and legal consequence of imprisonment as a convicted person that a great many of these constitutional

rights arising from the married status are for the period of imprisonment suspended or placed in abeyance.

Of the rights which I have outlined it is possible to say that only a right of communication, and that without privacy, and the

right by communication to take some part in the education of the children of the marriage would ordinarily survive a sentence of

imprisonment as a convicted prisoner.”

...

The finding that the provision of facilities within the prison to enable all prisoners of the same relevant category as the plaintiffs

to exercise these conjugal rights would place unreasonable demands on the prison service is, in my view, well supported by the

evidence and is a correct conclusion.”

In addition McCarthy J. stated at p. 477:

“The simple question may be posed - may a constitutional right be held in abeyance because of the State exercising a power in

accordance with law? It is difficult to identify a constitutional right that is unqualified; the right to life itself is not absolute (see

Article 13.6). The unenumerated right to procreate children, like all unenumerated rights, must be given a rational meaning. It

may be lost temporarily as a result of any form of detention, arrest or imprisonment for a criminal offence; detention for a

contempt of court; detention pursuant to mental treatment procedures. The suspension or abeyance of the right does not

depend upon practical considerations but because of the nature of a constitutional right. If a person is deprived of liberty in

accordance with law, then that person loses, for instance, the express right to vote (Article 16); the person loses the non-

expressed or unenumerated right to travel, to earn a livelihood, the right to be left alone, to give some examples.”

“. . . In my view, the right claimed, like many other rights, is not an unqualified one; it is placed in suspense if and when one or

both of the spouses is imprisoned and thereby deprived of personal liberty in accordance with law.”

The Supreme Court has therefore already stated clearly that it is an inevitable consequence of lawful imprisonment that a great many

constitutional rights of a prisoner are suspended for the duration of the imprisonment. The applicant is in a social category of persons

whose rights under Article 40.1 are temporarily affected by lawful imprisonment.

Disability to go to a polling booth does not give rise automatically to a postal vote. In Draper v. The Attorney General [1984] I.R. 277

the Supreme Court held that failure to provide facilities to enable the plaintiff (who was physically disabled and unable to go to a

polling booth to cast her vote) did not amount to an interference by the State in the exercise of the right to vote declared in Article

16.1.2° of the Constitution. Nor did that failure constitute a breach by the State of the provisions of Article 40.1 of the Constitution

relating to the equality of citizens before the law.

O’Higgins C.J. stated at pp. 290 - 291:

“The case made by the plaintiff in this action rests entirely on the failure of the State to provide special facilities for her and for

those similarly situated. In the opinion of the Court, such failure does not amount to an interference by the State in the

exercise of the right to vote under Article 16, section 1, subsection 2 of the Constitution. Nor is it, in the opinion of the Court,

a breach by the State of the provisions of s. 1 of Article 40. While under this Article the State could, because of the plaintiff’s

incapacity, have made particular provisions for the exercise by her of her voting rights, the fact that it did not do so does not

mean that the provisions actually made are necessarily unreasonable, unjust or arbitrary. For the reasons already stated, the

Court could not so find.”

The law providing for voting by people who suffer from disability has developed since that case. However, the recognition of the

special role of the legislature is a fundamental constitutional principle which is still relevant and applicable. At issue then was whether

the law was unreasonable, unjust or arbitrary - did it breach the principle of equality stated in the Constitution. That test remains

applicable.

There have been a number of other cases on the specific issue of a prisoner’s right to vote. Many such cases are unreported and are

consequently difficult to locate. However, they have been set out clearly in Prison Law by Paul Anthony McDermott. At paragraphs

10-13 and 10-14 (on pp. 333 - 335) of the said publication it is stated:

“10-13: Attempts to challenge the inability of Irish inmates to vote in elections have invariably failed. In Holland v. Ireland

(Unreported, European Commission of Human Rights, April 14, 1998), the applicant, who was serving a prison sentence, did not

vote in the 1990 presidential election. He sought judicial review on the basis of his inability to vote from prison. The High Court

refused his application, stating that there was no statutory right for voting by prisoners and suggesting that the applicant wait

until an election was due before pursuing the matter. (Unreported, High Court, March 19, 1991). The Supreme Court refused the

applicant’s appeal from this decision and noted that the applicant had not even applied to register himself to vote in the

relevant constituency. (Unreported, Supreme Court, June 28, 1991). It was also noted that the additional question of

permission or authority to vote was clearly within the authority of the prison governor and there was no suggestion that the

applicant had ever made such a request. In 1992 the applicant did not vote in either the general election or the abortion

referendum. In 1993 he was informed by Dublin Corporation that his name would be included in the register of electors at his

home address in Dublin. At that time the applicant again applied for leave to institute judicial review proceedings in relation to

the refusal of the prison authorities to grant him a postal vote. The High Court refused leave to seek an order of mandamus on

the basis that there was no statutory provision permitting postal votes for prisoners. (Unreported, High Court, November 18,

1993). If the applicant considered that this was unconstitutional, he was free to institute plenary proceedings on that basis. An

appeal from this decision was subsequently refused by the Supreme Court. (Unreported, Supreme Court, January 28, 1994). In

1994 the applicant applied for an injunction to suspend the European Parliament elections in order to allow him to pursue his

constitutional proceedings. This was refused firstly by the High Court, (Unreported, High Court, May 20, 1994), and then by the

Supreme Court on the basis that by that stage the election had already taken place, (Unreported, Supreme Court, July 29,

1994). The applicant’s plenary proceedings were not proceeded any further with and instead he initiated proceedings before the

European Commission of Human Rights.

Before the Commission the Government argued that it was not obliged under the Convention to provide either temporary release

to prisoners to vote, ballot boxes in the prison or the right to a postal vote. Release of all the prisoners to vote would be far too

high a security risk and would put an unfair burden on the prison system, which held 2,300 inmates at any one time. As a result

of the many different areas in which prisoners would be registered to vote, hundreds of ballot boxes would be required in each

prison to allow all prisoners to vote. Finally the Government pointed out that postal voting was not a right guaranteed by the

Irish Constitution or by the Convention.

10-14 The Commission considered that the matter fell to be considered under Article 3 of the First Protocol to the Convention,

which provides:

‘The High Contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions

which will ensure the free expression of the opinion of the people in the choice of the legislature.’

It held that the de facto deprivation of the right to vote imposed on a prisoner did not affect the expression of the people in

the choice of a legislature. Although Article 3 of the First Protocol implies a recognition of the principle of universal suffrage

(including the right to vote in elections for the legislature), this right was neither absolute nor without limitations but subject to

such restrictions which are not arbitrary and which do not affect the expression of the opinion of the people in the choice of

legislature. It concluded:

‘[T]he Commission does not consider that the suspension of the right of the applicant to vote while in prison affected the

expression of the opinion of the people in the choice of legislature - the fact that all of the convicted prisoner population

cannot vote does not affect the free expression of the opinion of the people in the choice of legislature.’

In the light of the above findings the Commission concluded that Irish law was not arbitrary in so far as it failed to permit prison

inmates to vote.

Because of its finding on the above matters the Commission did not find it necessary to consider whether the applicant had

exhausted his domestic remedies so as to give the Commission jurisdiction to hear his case.”

Article 40.1 provides for equality. All citizens as human persons are held equal before the law. However, that does not mean

uniformity. The State may have regard to differences of capacity, physical and moral, and of social function.

No legislation in Ireland prohibits or excludes the applicant or any prisoner from voting. Indeed, the legislation is enabling of the

applicant. Section 11(5) of the Electoral Act, 1992 provides:

“Where on the qualifying date, a person is detained in any premises in legal custody, he shall be deemed for the purposes of this

section to be ordinarily resident in the place where he would have been residing but for his having been so detained in legal

custody.”

The applicant is in a special category of person - he is in lawful custody. His rights are consequently affected. The applicant is in the

same situation as all prisoners: there is no provision enabling any prisoners to vote. Consequently there is no inequality as between

prisoners. The inequality as between a free person and a person lawfully in prison arises as a matter of law. It is a consequence of

lawful custody that certain rights of the prisoner are curtailed, lawfully. Many constitutional rights are suspended as a result of the

lawful deprivation of liberty. It is a consequence of a lawful order not an arbitrary decision.

The applicant has no absolute right to vote under the Constitution. As a consequence of lawful custody many of his constitutional

rights are suspended. The lack of facilities to enable the applicant vote is not an arbitrary or unreasonable situation. The absence of

such provisions does not amount to a breach by the State of the applicant’s right to equality.

The words of McCarthy J., cited previously, in Murray and Murray v. Ireland and Or. [1991] I.R. 465 at p. 477 correctly state the

law. If a person is lawfully deprived of their liberty and is in prison then that person loses certain constitutional rights including the

right to vote. That does not exclude the legislature from deciding in the future to legislate for a scheme whereby prisoners could

vote.

In the circumstances I am satisfied that the applicant’s position is not unreasonable, arbitrary or unjust. It is not invidious

discrimination. It is not a breach of the constitutional concept of equality. Consequently, the High Court erred in law in its

determination.

7. Conclusion

I agree with the judgment of the Chief Justice and for the reasons stated herein I would allow the appeal and set aside the order of

the High Court.