Supreme Court dismisses appeal on recusal grounds, ruling judges must uphold statutory jurisdiction despite prior exercise.

THE SUPREME COURT

329/00

Denham J.

Murphy J.

Geoghegan J.

BETWEEN/

LOUIS BLEHEIN

APPLICANT/APPELLANT

and

ST. JOHN OF GOD HOSPITAL

RESPONDENT

and

THE ATTORNEY GENERAL

NOTICE PARTY

Judgment of Mrs. Justice Denham delivered on the 31st day of July 2001.

1. An Appeal

Louis Blehein, the applicant/appellant, hereinafter referred to as the applicant, has brought an appeal against judgments and orders of

the High Court (O’Sullivan J.). Judgment was delivered in part on 6th day of July, 2000 and completed on 18th day of July, 2000. The

orders were made on 18th day of July, 2000 and perfected on 21st day of August, 2000. They were adjusted by consent on 27th day

of November, 2000 and the adjusted orders were perfected on the 7th day of December, 2000.

The applicant had sought the leave of the High Court pursuant to section 260(1) of the Mental Treatment Act, 1945, as amended, to

bring proceedings against the respondent in connection with the exercise of its powers and duties under the Mental Treatment Act,

1945. The applicant submitted that he was detained against his will on foot of orders made by or on behalf of the respondent for

three separate periods in 1984, 1987 and 1991. The applicant claims declarations that the respondent acted in breach of natural

justice and in breach of constitutional justice and he also claims damages.

In a judgment delivered on 6th July, 2000, the applicant’s submissions were treated under nine headings by the High Court. In relation

to eight of the nine headings the High Court held that leave should not be granted to institute proceedings as the applicant had not

established substantial grounds for contending that the respondent acted either in bad faith or without reasonable care. On the ninth

ground the applicant had submitted that the respondent was not designated by law as a place of detention. The High Court granted

an opportunity to the respondent to produce a further affidavit. The learned High Court judge held:

“With the exception, therefore, of the point in relation to the status of the [respondent] my view is that the [applicant] has not

established substantial grounds for contending that the [respondent] acted either in bad faith or without reasonable care and I

would refuse him leave to bring the intended proceedings. For the present, however, the matter should be adjourned and no

final order will be made.”

On 27th November, 2000 the applicant was given leave to institute proceedings against the respondent hospital challenging the

lawfulness of his detention in 1984, 1987 and 1991 on the ground that, at the material times, the respondent hospital was not

designated by law as a place of detention. The applicant was also given liberty to challenge the constitutionality of section 260 of

the Mental Treatment Act, 1945, as amended.

2. Law

The applicant was before the High Court on foot of a motion under s. 260 (1) of the Mental Treatment Act, 1945 which states:

“No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by

leave of the High Court and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds

for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care.”

3. Grounds of Appeal

The applicant has appealed against the judgments and orders of the High Court. The grounds of the appeal are:

“1. That the Learned High Court Judge did misdirect himself in law:-

(a) In acting in excess of jurisdiction by denying access to justice to the Applicant, the provisions of section 260

notwithstanding;

(b) In failing to apply a literal construction to the provisions of the Act in accordance with well established prescriptive

ratio decidendi;

(c) By interpreting the Act in a manner which amounted to enacting that which the Oireachtas did not;

(d) In failing to apply the canons of construction of post-1937 legislation to the provisions of the Act;

(e) In holding that the Respondent was not obliged to look to the validity of the medical certificates in Form No. 7 of the

Act prior to acting upon them;

(f) In holding that the principles of procedural justice guaranteed by the Constitution may validly be vitiated by a

statutory provision;

(g) In holding that in this State the Legislature is Sovereign.

2. That the learned High Court Judge misdirected himself in law and in fact and upon the evidence and upon the weight of the

evidence as follows:

(a) In holding, contrary to that which is patent, that Form No. 7 of the Act contains an application for an Order for

detention;

(b) In holding that the inverted procedures, relating to the events of the 25th day of February 1984, described in the

Affidavit of Kevin Blehein (at Exhibit “LB3” in the grounding Affidavit herein) constituted a lawful ‘examination’ for the

purposes of section 185 of the Act;

(c) In holding that the Order in Form No. 7 dated the 26th February 1984 was made on that date, evidence to the

contrary notwithstanding;

(d) In holding that the predetermination and wrong reasons disclosed by Dr. Murphy’s contemporaneous letters were not

material to vitiating the accompanying certificates issued by him in Form No. 7 of the Act in 1984, in 1987 and in 1991;

(e) In holding that the Respondent was lawfully entitled to act upon invalid medical certificates;

(f) That, the provisions of the Constitution of Ireland notwithstanding, the condition of being suspected of a mental illness

(if there is such) justifies a Kangaroo court;

(g) That there was evidence before his Lordship which warranted reversing the statutory and common law presumption of

sanity;

(h) In holding that approval of an institution for the reception of patients pursuant to section 158 of the Act constitutes

a sufficient designation of that institution as a place of detention for the purposes of Article 40.4.1° of the Constitution of

Ireland;

(i) In declining to accept that marital disharmony, and the unlawful interference of the State police therein, was the only

reason for the incarceration of the Applicant in the Respondent’s institution the uncontroverted evidence therein

notwithstanding.

(j) In holding that the evidence herein did not constitute substantial grounds for contending that the Respondent acted

without reasonable care or in bad faith.”

4. Application

On 25th June, 2001 the applicant’s appeal against the orders and judgment of the High Court (O’Sullivan J.) came on for hearing

before the Supreme Court. There was no issue as to the constitutionality of s.260 of the Mental Treatment Act, 1945 before the

Court. While leave has been granted by the High Court to the applicant to amend the plenary summons to include the challenge to

the constitutionality of the section this has not yet been done.

At the commencement of the hearing the applicant requested that Murphy J. withdraw from the appeal. He submitted that Murphy J.

was a judge in a previous case where he had exercised the same law against the applicant. He submitted that in this case the issue

was the jurisdiction conferred by s. 260 of the Mental Treatment Act, 1945. He submitted that a judge who has previously exercised

the same jurisdiction in the same manner could reasonably be expected to be predisposed to uphold the jurisdiction. He submitted

that his appeal would commence with the argument that the High Court judge had exceeded his jurisdiction. He submitted that he

would be arguing that s. 260 is not a jurisdiction which the court may exercise having regard to its primary function of administering

justice, that to deny access to the court is to deny justice.

The applicant submitted that if a judge has operated s. 260 of the Mental Treatment Act, 1945 in the past he will operate it in the

future. He argued that any judge who has operated the section should not sit. He argued that if a judge has given a judgment

refusing leave to issue proceedings in any previous case where s.260 was challenged he or she would do the same again.

Counsel for the hospital, noting that Geoghegan J. had dealt with a previous application under s. 260 whilst a judge of the High Court

and Murphy J. had heard a previous, different, application under s. 260 by the applicant, submitted that the matter should proceed

before the court.

Counsel for the Attorney General informed the Court that he had been made a notice party after the judgment of O’Sullivan J. on 6th

July, 2000. At a late stage the applicant had canvassed the unconstitutionality of s. 260. Pursuant to the order of the High Court the

applicant has leave to amend the plenary summons. However, he has not yet instituted proceedings to make this amendment. Counsel

submitted that applying logic to the applicant’s application it would mean that any Supreme Court Judge who had exercised an

appellate function regarding s. 260 would have to withdraw. Similarly, any person who had acted as a High Court judge on any s. 260

application would also have to withdraw. Counsel for the Attorney General pointed out that the Attorney is involved in considerable

litigation. It would be inconceivable that if he had suffered an adverse adjudication on a statute that a judge could not sit on a

subsequent case relating to that statute. As to the particular situation counsel submitted that unless the Court considered that there

had been participation such as ruled a judge out of sitting in this case the Court should allow the matter to proceed.

5. Decision

The procedure where a party asks a judge to disqualify himself was considered by the Chief Justice recently. In Rooney v. Minister for

Agriculture [2001] 2 I.L.R.M. 37 at pp. 40-41 Keane C.J. stated:

“Where one or other party does invite a judge to disqualify himself, the established and prudent practice has been for the judge

concerned to disqualify himself if he has any reservations about the matter. On the other hand a judge cannot permit a

scrupulous approach by him to be used to permit parties to engage in forum shopping under the guise of challenging the

partiality of the court.

The need to ensure the appearance, as well as the reality, of impartiality must be reconciled with the proper functioning of the

judicial system. The dilemma to which these conflicting demands give rise might be resolved in cases of difficulty by the judge

concerned referring the issue - perhaps on the basis of a memorandum prepared by him or her - to the senior available judge of

the court of which he is a member. Such a course would be acceptable in cases of particular difficulty but I do not believe that

this procedure should develop into common practice. The disclosure of possible grounds for concern and the sensible reaction of

the parties, advised by their lawyers, has usually been sufficient to dispose of any such difficulty and I do not doubt this will

continue to be the case.”

Murphy J. did explain to Mr. Blehein that he would adopt the procedure described by Keane C.J. as set out above in the present case

and accordingly defer to my judgment as to whether he should recuse himself. The applicant moved this application referring to the

issue of bias and the judiciary. There has been considerable case law on the matter in this jurisdiction in recent times: Dublin

Wellwoman Centre Ltd. v. Ireland [1995] 1 I.L.R.M. 408; Bula Limited (In Receivership) and Ors. v. Tara Mines Ltd. and Ors. Supreme

Court, Unreported, 3rd day of July, 2000; Rooney v. Minister for Agriculture [2001] 2 I.L.R.M. 37; O’Neill v. Beaumont Hospital Board

[1990] I.L.R.M. 419; O’Reilly v. Cassidy (No. 2) [1995] 1 I.L.R.M. 311; Orange Communications Ltd. v. Director of

Telecommunications Regulation Supreme Court, 1999, No. 224, 18th May, 2000.

In Bula I stated:

“A judge has a duty to sit and hear a case. However, in certain circumstances it is appropriate that he or she disqualify himself

or herself from a particular case.

The test is not whether that judge believes he or she would be impartial. Nor is it whether the judge or judges on a motion to

set aside such a judgment believes the judge was or would be impartial. Nor is it whether the parties consider the judge

impartial. The test is objective. This has been analysed by the Constitutional Court of South Africa: The President of the

Republic of South Africa and Ors. v. South African Rugby Football Union 1999 (7) BCLR 725 (CC) at p.49:

“ ... the correct approach to this application for the recusal of members of this court is objective and the onus of

establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on

the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the

adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The

reasonableness of the application must be assessed in the light of the oath of office taken by the judges to administer

justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. It must

be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into

account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the

same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial

officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for

apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

This test was set out for a recusal i.e. application prior to a hearing.”

The above is an appropriate test which I adopt. It is essential to the administration of justice that there should be neither actual,

subjective bias, nor what a reasonable person may perceive as bias i.e. objective bias. However, what is alleged here is not a bias

against the applicant but a bias toward operating s. 260 of the Mental Treatment Act, 1945. The applicant has applied for the recusal

of Murphy J. on the ground that on a previous occasion he exercised the jurisdiction under s. 260 and that a judge who has operated

s. 260 previously and refused access to the court would be predisposed to uphold s. 260 on a later occasion.

The applicant’s application is subtle. He does not argue that the judge in question is biased (either subjectively or objectively) against

him. He submits that a judge who has previously exercised the same jurisdiction in the same manner could reasonably be expected to

be predisposed to uphold the jurisdiction in any challenge to the jurisdiction; and that this is an appeal which is a challenge to the

jurisdiction in that the applicant is asserting that the High Court judge exceeded his jurisdiction conferred by s. 260.

The constitutionality of s. 260 is not in issue in this case. That is a matter which the applicant has indicated he wishes to raise, and

for which he has got the leave of the court to so do, at a later stage. Thus in this case neither this court, not any member of it, has

to determine any question as to the constitutionality of the jurisdiction of s. 260. The section is the law of the land and under our

jurisprudence is presumed to be constitutional.

Every person appointed a judge under the Constitution makes a declaration as set out in Article 34.5.1° of the Constitution, in the

following terms:

“In the presence of Almighty God I, do solemnly and sincerely promise and declare that I will duly and faithfully and to the best

of my knowledge and power execute the office of Judge of the . . . Court without fear or favour, affection or ill-will towards any

man, and that I will uphold the Constitution and the laws. May God direct and sustain me.”

Accordingly it is part of the duty of a judge to uphold the laws. This includes operating the laws of the land.

Thus while the applicant’s application is subtle it is misconceived. All judges have a duty to uphold the laws of the land and this

includes s. 260 of the Mental Treatment Act, 1945. This means operating the section when applications are made under the

jurisdiction created therein. Thus no judge could be recused on the ground that on a previous occasion he or she had exercised a

jurisdiction which is the law of the land. If this were so no judge could hear this appeal who has previously made any order under s.

260. As this is the only ground upon which the application is made it must fail.

There was no claim of bias either subjective or objective. The applicant’s claim is clouded by his ultimate aim to challenge the

constitutionality of s. 260 of the Mental Treatment Act, 1945. However, that is a matter for another day.

6. Conclusion

I am satisfied that the applicant’s application is misconceived and that he has not raised a ground upon which Murphy J. should be

recused from this case. Accordingly, also, in accordance with my duty as President of the Court, I am satisfied that the application

should fail. This case should now be put in the list to obtain a date for hearing.