Appeal dismissed; international treaty views cannot override domestic statute or court conviction via legitimate expectation.

THE SUPREME COURT

194/01

Keane C.J.

Denham J.

Hardiman J.

Geoghegan J.

FennellyJ.

BETWEEN

JOSEPH Kavanagh

Appellant

-v-

THE Governor of Mountjoy PRISON and THE ATTORNEY GENERAL

Respondents

JUDGMENT delivered the 1st day of March, 2002 by FENNELLY J.

This is an appeal from the refusal of the High Court (Finnegan J) to grant to the appellant leave to apply for judicial review

related to his conviction by the Special Criminal Court. The appellant relies on Ireland’s accession to the United Nations

Covenant on Civil and Political Rights (“the Covenant”) and particularly on the views expressed by a Human Rights Committee

under the Covenant about his conviction.

On 20th July 1994 the appellant was arrested and charged, by direction of the Director of Public Prosecutions, before the

Special Criminal Court with seven offences relating to the kidnapping and imprisonment of a senior manager of a banking

company. One of the offences, possession of a firearm with intent to commit an indictable offence, namely false imprisonment,

was a scheduled offence for the purposes of the Offences against the State Act, 1939. The remainder, including false

imprisonment, robbery, and demanding money with menaces were not scheduled offences.

Section 47 of the Offences against the State Act, 1939 provides as follows:

"47(1) Whenever it is intended to charge a person with a scheduled offence, the Attorney General may, if he so thinks

proper, direct that such person shall, in lieu of being charged with such offence before a justice of the District Court, be

brought before a Special Criminal Court and there charged with such offence and, upon such direction being so given,

such person shall be brought before a Special Criminal Court and shall be charged before that Court with such offence

and shall be tried by such Court on such charge.

(2) Whenever it is intended to charge a person with an offence which is not a scheduled offence and the Attorney-

General certifies that the ordinary Courts are, in his opinion, inadequate to secure the effective administration of justice

and the preservation of public peace and order in relation to the trial of such person on such charge, the foregoing sub-

section of this section shall apply and have effect as if the offence with which such person is so intended to be charged

were a scheduled offence.

(3) (not relevant)."

On 15th July 1994, before the appellant was arrested and charged, the Director of Public Prosecutions, exercising the powers of

the Attorney General, had given the certificate required by section 47(2). The appellant was, consequently, charged and tried

before that court. Thus the Director of Public Prosecutions by the exercise of his powers under both subsections of section 47

ensured that the appellant was tried before the Special Criminal Court instead of the ordinary courts. That fact, in particular

that he was denied a trial by jury, is at the core of his subsequent complaints.

The appellant unsuccessfully sought judicial review of the decision of Director of Public Prosecutions (see Kavanagh v Director

of Public Prosecutions [1996] IR. 321.) on a number of grounds including the failure of the state in the person of the Director of

Public Prosecutions to respect his right of equal treatment before the law as guaranteed inter alia by the Constitution and the

European Convention for the Protection of Human Rights and Fundamental Rights (hereafter "the European Convention"). His

application for judicial review was rejected by Laffoy J in the High Court on 6th October 1995 and unanimously by this Court on

18th December 1996, principally on the ground that the decision of the Director of Public Prosecutions was not reviewable in the

absence of mala fides.

The appellant was convicted by the Special Criminal Court on the 29th October 1997 of robbery, possession of a firearm with

intent to commit an indictable offence (false imprisonment) and demanding money with menaces. He received concurrent

sentences of 12, 12 and 5 years respectively to date from 20th July 1994.

On 27th August 1997, prior to the commencement of his trial, the appellant made a complaint to the Human Rights Committee

(“the Committee”) to the effect that his trial before the Special Criminal Court violated his rights under a number of articles of

the Covenant. Ireland is a party to the Covenant. It is dated 16th December 1966. Article 3 obliges "each State Party... (a) to

ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy,

notwithstanding that the violation has been committed by persons acting in an official capacity..”

Article 28, in Part IV of the Covenant, provides for the establishment of a Human Rights Committee, consisting of eighteen

members, who are to be “persons of high moral character and recognised competence in the field of human rights,

consideration being given to the usefulness of the participation of some persons having legal experience.”

Ireland has also ratified the Optional Protocol which enables the Human Rights Committee established under article 28 of the

Covenant “to receive and consider ...communications from individuals claiming to be victims of violations of any of the rights

set forth in the Covenant .....” Article 1 of the Protocol provides that a “State Party that becomes a party to the .... Protocol

recognises the competence of the Committee...” in respect of such individual claims. Subject to the proviso that the individual

complaining “has exhausted all available domestic remedies,” the Committee “shall consider communications received under the

...Protocol in the light of all written information made available to it by the individual and by the State Party concerned.”

The appellant’s complaint to the Committee invoked two principal articles of the Covenant. Article 14 lists a number of the most

basic procedural and substantive rules protecting the rights of accused persons in the criminal process. It is enough to say that

the Committee did not find it necessary to examine the appellant’s complaints under article 14, though a minority view was

recorded. Furthermore, unlike the case made under article 26, to which I am about to refer, no attempt was made in the course

of the present proceedings to rely directly on the substantive provisions of article 14.

Article 26 of the Covenant provides:

“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.”

The Committee upheld the appellant’s complaint of violation of this article. It observed that:

“No reasons are required to be given for the decisions that the Special Criminal Court would be “proper”, or that the

ordinary courts are “inadequate,” and no reasons for the decision in the particular case has been provided to the

Committee. Moreover, judicial Review of the DPP’s decisions is effectively restricted to the most exceptional and virtually

undemonstrable circumstances.”

Accordingly, the Committee considered that “the State Party [had] failed to demonstrate that the decision to try the author

before the Special Criminal Court was based on reasonable and objective grounds.” It continued: “Accordingly, the Committee

concludes that the author’s right under article 26 to equality before the law and to the equal protection of the law has been

violated.” The link between the conclusion so expressed and the principle of equality appears to be that the appellant was

treated differently from other persons who were charged with similar offences before the ordinary courts.

The Committee, having referred to article 3(a) of the Covenant, quoted above, conveyed its conclusion to the Irish government

as follows:

"13. Bearing in mind that, by becoming a party to the Optional Protocol, Ireland has recognised the competence of the

Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the

Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction

the rights recognised in the Covenant and to provide an effective and enforceable remedy in case a violation has been

established, the Committee wishes to receive, within ninety days, information from the Government of Ireland about the

measures taken to give effect to the Committee's Views. The State party is requested also to give wide publicity to the

Committee's Views."

The appellant, who is serving the sentences of imprisonment impose by the Special Criminal Court, applied in the High Court for

an inquiry pursuant to article 40.4 of the Constitution into the lawfulness of his detention, but, as was accepted at the hearing

of the appeal, the essential reliefs sought were:

a) certiorari to quash his conviction;

b) a declaration that section 47(2) of the Offences against the State Act, 1939 (as construed by the Supreme Court) is

incompatible with the UN Covenant on Civil and Political Rights and is accordingly repugnant to the Constitution , in

particular, Articles 29, 2 and 3 thereof.

The appeal becomes, in reality, an application for leave to apply for judicial review. The grounds for these reliefs, as advanced

both in the High Court and on the appeal, are based in part on the provisions of the Covenant itself and in part on the views

communicated by the Committee. They include arguments based on a novel or at least revised interpretation of article 29 of the

Constitution as well as a legitimate expectation created by the adherence of Ireland to the Covenant and the Protocol. All of

these were rejected in a considered reserved judgment of Finnegan J (as he then was). I will discuss these arguments as they

have been advanced at the hearing of the appeal.

Equal Treatment: The Constitution

The appellant’s starting point is the principle of equal treatment, both as it expressed in article 26 of the Covenant and as it is

given concrete expression in the views of the Committee. Dr Forde, Senior Counsel, submitted that the general principles of

international law have greatly expanded the scope and content of this principle over the past fifty years. Article 29 section 3 of

the Constitution declares that:

“Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other

States.”

This, according to the appellant, “constitutionalises” the general principles of international law, including the principle of equal

treatment. The latter can, therefore, be invoked in the courts of Ireland so as, where appropriate, to invalidate a conviction or

to render repugnant a statutory provision. Attention was drawn to the dissenting judgment in the International Court of Justice

of Judge Tanaka, South West Africa Cases (1966) on “the essence and nature of fundamental rights ..[in the context of the

United Nations Charter] ... in which the principle of equality before the law occupies the most important part ....” This Court,

it is acknowledged, ruled in In Re O Laighleis [1960] IR. 93 that article 29 section 3 confers no rights on individuals. Dr Forde

was at pains to say that he did not suggest that In Re O Laighleis was wrongly decided. It was probably correct in its time.

However, the substance of the principles of international law has changed so radically that the case would no longer be decided

in the same way. These principles take effect in Irish law by virtue of article 29 section 3 and there is thus no need for their

enactment into Irish law pursuant to art 29 section 6.

As an alternative, Dr Forde invoked article 29 section 2:

“Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international

arbitration or judicial determination.”

This provision would apply to the views expressed by the Committee. However, when pressed as to whether the views of such

an international body could prevail against a judgment of a court established under Irish law, Dr Forde appeared to accept that

his argument would probably be incompatible with article 34 of the Constitution.

LEGITIMATE EXPECTATIONS

The second part of Dr Forde’s argument concerned legitimate expectation. The State’s accession to the Covenant and

ratification of the Protocol created a legitimate expectation that the State would respect the terms of the Covenant itself in its

substance and, more particularly, that it would take steps to give effect to the views of the Committee. These might extend to

or include an application by the Director of Public Prosecutions to the Special Criminal Court to have the conviction quashed. Dr

Forde cited a wide and impressive array of authority to show that courts in various countries have extended the application of

the doctrine of legitimate expectation to encompass undertakings to be implied from the acceptance by states of international

obligations.

I will refer briefly to some of these authorities. In the New Zealand Court of Appeal in Tavita v Minister of Immigration [1994] 2

NZLR 257, a decision had been made under immigration legislation for removal of an “overstaying” immigrant. The immigrant later

founded a family in New Zealand. Judicial review proceedings were brought in relation to the original order and subsequent

implementing decisions. Reliance was placed on New Zealand’s adherence to certain international human rights instruments,

including, as it happens articles 23 and 24 of the Covenant but also the United Nations Convention of 1989 on the Rights of the

Child. In that case the argument centred on whether the administrative authorities including the Minister should have regard to

provisions of these instruments conferring protection on family relationships such as the one the immigrant had established. The

matter was not formally determined: the court adjourned the matter to provide an opportunity for the authority to reconsider

the case. Cooke P, as he then was, made some remarks on the relevance of a state’s international obligations in the context of

domestic decision-making upon which Dr Forde relies. He characterised as “unattractive” an argument of the respondents

“apparently implying that New Zealand’s adherence to the international instruments [had] been at least partly window

dressing.” Later he said:

“If and when the matter does fall for decision, an aspect to be borne in mind may be one urged by counsel for the

appellant: that since New Zealand’s accession to the Optional Protocol the United Nations Human Rights Committee is in

a sense part of this country’s judicial structure, in that individuals subject to New Zealand jurisdiction have direct rights

of recourse to it. A failure to give practical effect to international instruments to which New Zealand is a party may

attract criticism. Legitimate criticism could extend to New Zealand courts if they were to accept the argument that,

because a domestic statute giving discretionary powers in general terms does not mention international human rights

norms or obligations, the executive is necessarily free to ignore them.”

The decision of the High Court of Australia in Minister of State for Immigration and Ethnic Affairs v Teoh [1994-1995] 183 CLR

273 was also concerned with the effect on the exercise of administrative powers of ratification of United Nations Convention on

the Rights of the Child. Decisions to refuse resident status and to deport had been made. Arguments in reliance on the

Convention, which had entered into force as regards Australia before the relevant decisions were made, were raised at a late

stage. The best interests of children affected by state action were, inter alia, required to be “a primary consideration.” It

appeared that one possible effect of the decisions was the break-up of the immigrant’s family. The joint judgment of Mason C.J.

and Keane J treads a careful line between giving direct effect in Australian law to an international agreement that had not been

legislatively adopted and the duty of administrative authorities to respect expectations legitimately entertained that Australia

would act in accordance with international obligations freely entered into. The judgment contains the following at page 291:

"... ratification of a convention is a positive statement by the executive government of this country to the world and to

the Australian people that the executive government and its agencies will act in accordance with the Convention. That

positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to

the contrary, that administrative decision-makers will act in conformity with the Convention (46) and treat the best

interests of the children as 'a primary consideration'."

"It follows that while Australia's ratification of the Convention does not go so far as to incorporate it into domestic law, it

does have consequences for agencies of the executive government of the Commonwealth. It results in an expectation

that those making administrative decisions in actions concerning children will take into account as a primary

consideration the best interests of the children and that, if they intend not to do so, they will give the persons affected

an opportunity to argue against such a course. It may be said that such a view of ratification will have undue

consequences for decision-makers. But it is important to bear in mind that we are not concerned with enforceable

obligations, but with legitimate expectations, and that there can be no legitimate expectation if the actions of the

legislature or the executive are inconsistent with such an expectation."

Earlier in the same judgment reference was made to the fact that, while the treaty making power fell within the province of the

executive, “the making and the alteration of law fall within the province of Parliament, not the executive.” It continued: “So, a

treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and

obligations under that law.”

While Australia, as a common-law country, operates the general dualist approach to the domestic effect of international

agreements, it does not appear from the judgments of the High Court that Australian law replicates that rule with anything quite

like the constitutional rigour with which it is embodied in article 26 section 6 of the Constitution:

“No international agrement shall be part of the domestic law of the state save as may be determined by the

Oireachtas.”

The appellant also relied on a decision of the High Court of Hong Kong Special Administrative Region of 13 July 2000. In that

case, Cheung J adopted the approach outlined in the New Zealand and Australian decisions in another immigrant case, and went

on: "Where legitimate expectation is invoked by reference to the international covenants, the court is, of course, dealing with

the concept of procedural propriety and not as a matter of substance."

Finally Dr Forde cited Fakih v Minister for Justice [1993] 2 IR.. 406 and Gutrani v Minister for Justice [1993] 2 IR.. 427 as

showing that the courts in this jurisdiction will ensure that the State, in dealing with aliens, pay due regard to procedures it has

undertaken to observe in letters written to an international organisation.

CONSIDERATION OF THE APPLICATION

The appellant does not have to go further, on this application, than to demonstrate that he has, in the words of Finlay C.J., “a

statable, an arguable case in law”, [G v Director of Public Prosecutions 1994 1 I.R. 374 at page 381]. The Chief Justice

described this burden as light and also said at page 382:

“The aim is ... to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse

of the process, trivial or unstatable cases proceeding, and thus impeding public authorities unnecessarily.”

The appellant sees article 29 of the Constitution not as an obstacle to his reliance on the general principle of equal treatment,

but as the channel through which it flows into Irish law: in fact, not merely into Irish law but into the Constitution. This

approach is logical and necessary. The appellant wishes to find a legal means to free him from the obligation to serve the

sentences of imprisonment imposed on him. That, as he sees it, can be done either by quashing the conviction or invalidating

the relevant provisions of the Offences against the State Act. Nothing less will suffice. The appellant has, as he was in any

event required to establish to the satisfaction of the Committee, exhausted all available legal remedies in Irish law. He pursued

his complaint against the decision of the Director of Public Prosecutions all the way to the Supreme Court. He has appealed his

conviction and sentence to the Court of Criminal Appeal, all to no avail.

He relies, therefore, on article 29, sections 3 and 2 in that order. For the purposes of this analysis, it can be assumed without

deciding that the appellant is correct in his contention that the principle of equal treatment before the law has become a

generally recognised principle of international law and even that its scope and content has expanded sufficiently since O

Laighleis was decided to encompass the appellant’s treatment at the hands of the Director of Public Prosecutions. It can even

be assumed, again without so deciding, that the principles of international law which article 29 section 3 requires the State to

respect include the rights claimed by the appellant.

The difficulty for the appellant, on this application does not lie in the quality of the principle of equality. It is to be found in the

wording of the constitutional provisions. The obligation of Ireland to respect the invoked principles is expressed only in the

sense that it is to be “its rule of conduct in its relations with other States.” It is patent that this provision confers no rights on

individuals. No single word in the section even arguably expresses an intention to confer rights capable of being invoked by

individuals.

The appellant is mistaken, in my view, in his interpretation of O Laighleis. That case was also concerned with an argument that

provisions of the Offences against the State Act were contrary to international law but also to the provisions of the European

Convention. The unanimous judgment of the Court, delivered by Maguire C.J. said (page 124):

“Clauses 1 and 3 of Article 29 of the Constitution clearly refer only to relations between states and confer no rights on

individuals..”

The judgment went on to hold that, in the specific case of the European Convention, there was “an insuperable obstacle” to

importing its provisions into domestic law. That was, in particular, the reservation by Article 15, section 2, sub-sect ion 1 of the

“sole and exclusive power of making law for the State..” to the Oireachtas. Moreover, Article 29, section 6 permitted an

international agreement to have effect in domestic law when and to the extent that the Oireachtas so decided. It concluded:

“No argument can prevail against the express terms of section 6 of Article 29 of the Constitution before judges whose

declared duty is to uphold the Constitution and the laws.”

It is fair to say that Dr Forde, conscious no doubt of the force of these combined provisions and of the undisturbed status of

the decision in O Laighleis did not contend for direct effect to be given to the provisions of the Covenant. He limited this part of

the argument to the contention that Article 29 “constitutionalises” general principles of international law. The O Laighleis case

remains the law and has been followed in other cases: see, for example State (Sumers Jennings) v Furlong [1966] IR.. 183;

State (Gilliland) v Governor of Mountjoy Prison [1987] 201. O Laighleis has stood the test of time because the words that it

interpreted are clear beyond argument and do not admit of any other construction.

Turning to Article 29, section 2, the words are, if anything clearer. The reference to “international arbitration or judicial

determination” occur in the context and only in the context of the State’s affirmation of its adherence “to the principle of

pacific settlement of international disputes ...” To take them out of that context would do violence to the text of the

Constitution. Furthermore, though the point is now surplusage, insofar as Dr Forde relied on this provision to invoke the

expression of views of the Committee as against the conviction of the appellant by the judgment of the Special Criminal Court,

it would conflict with Article 34, section 1 of the Constitution:

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this

Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

The notion that the “views” of a Committee even of admittedly distinguished experts on international human rights experts,

though not necessarily lawyers, could prevail against the concluded decision of a properly constituted court is patently

unacceptable. To be fair, even in international law, neither the Covenant nor the Protocol make such a claim. Neither the

Covenant nor the Protocol at any point purports to give any binding effect to the views expressed by the Committee. The

Committee does not formulate any form of judgment or declare any entitlement to relief. Its status in international law is not, of

course, a matter for this court. It suffices to say that the appellant has not furnished any arguable case for the effect of the

Committee’s views. His case encounters the “insuperable obstacle” identified in the judgment of Maguire C.J.

I turn finally to the argument based on legitimate expectation. It is unnecessary to pronounce any view on the impressive array

of authority cited by Dr Forde for the proposition that decision-makers should take international human rights instruments into

account when making decisions in areas potentially affected by those instruments. It can be accepting without deciding that

such decision makers should pay due regard to such instruments. It is, however, the particular form of legitimate expectation

claimed by the appellant which has to be considered.

The principle of respect for legitimate expectations, though novel and as yet not fully explored, can be confidently defined as a

rule applicable, ratione materiae, to the decision-making process. Where the state is involved, it should be assumed for present

purposes that all makers of administrative decisions may come within its scope once the state itself has adopted a relevant

position in the international sphere. On that hypothesis, decision makers should not be allowed to disappoint expectations which

they have themselves created and which are reasonably entertained by those within the purview of the powers they exercise.

Why, one asks? The simple almost naive answer is that it would be unfair. I discussed this in my judgment in Daly v Minister for

the Marine and the Attorney General (unreported 4th October, 2001). Moreover, the doctrine of legitimate expectation does

not, in the normal course of events, guarantee anything more than procedural fairness. Mason C. J. and Keane J. In their joint

judgment in the Teoh case said (page 291):

“The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel

him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To

regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as

a rule of law.”

Depending on circumstances, it is conceivable that application of the doctrine will have the effect of conferring substantive

rights, but that will necessarily be an indirect consequence. The decision-maker, confronted with the duty to take created

expectations into account may find it difficult or even impossible credibly to reject an application for a particular result.

In this case, the appellant wishes in essence to obtain an order, by whatever legal procedure may be available, having the

effect of invalidating his conviction at the hands of the Special Criminal Court. His invocation of the unconstitutionality of the

impugned sections of the Offences against the State Act, 1939 are merely incidental to that objective. They are but means to

that end. Indeed, at the hearing of the appeal, Dr Forde modified his position, stating that it would not be necessary to have a

declaration of unconstitutionality; it would suffice to follow the rule that the sections be construed so as to be in conformity

with the Constitution. The target would remain the order of conviction. It would be quashed, even if that involved relief

formulated in a novel form such as requiring the DPP to apply to have the conviction set aside. This is substantive relief of a

far-reaching kind.

Such a claim for relief seems greatly to exceed the reach of the doctrine of legitimate expectation, however generously it might

be extended. However, that may not conclusively establish that the appellant has failed to establish a stateable case.

The decisive question is whether, by reliance on the doctrine of legitimate expectation, the appellant can make an arguable

case to have his conviction quashed. In order to obtain this relief, the appellant must demonstrate credibly, i.e., arguably, that

either the right to equal treatment as guaranteed by the Covenant or the expression of views of the Committee has the effect

of invalidating the conviction.

At this point, the clear terms of article 29 of the Constitution return to the picture. How, one might ask, could the provisions of

an international agreement which has not been adopted into Irish law or the views expressed by a Committee established

thereunder prevail over the legal effect of a conviction by a duly constituted Irish court? Once again, the joint judgment of

Mason C.J. and Keane J is instructive. The judges observed that to allow the doctrine of legitimate expectations to compel a

decision-maker to act in a particular way “incorporates,” i.e., would incorporate “the unincorporated convention into our

municipal law by the back door.” It seems clear beyond argument that what could not be achieved directly through the

mechanism of article 29, section 3 could not be achieved indirectly by invoking the doctrine of legitimate expectations. To

permit that result would do much more than extend the range of application of the doctrine. The terms of the Covenant have

not been enacted into Irish law. They cannot prevail over the provisions of the Offences against the State Act, 1939 or of a

conviction by a court established under its provisions. For the reasons already stated, the views of the Committee cannot be

invoked to invalidate that conviction without contravening the terms of article 29, section 6 article 15, section 2(1) and article

34 section 1 of the Constitution.

To accept that the appellant has an arguable case under any heading of his claim would imply that the Court may be able to

disregard the clear and unambiguous provisions of the Constitution in their relations with international agreements. The

Constitution establishes an unmistakable distinction between domestic and international law. The government has the exclusive

prerogative of entering into agreements with other states. It may accept obligations under such agreements which are binding

in international law. The Oireachtas, on the other hand, has the exclusive function of making laws for the state. These two

exclusive competences are not incompatible. Where the government wishes the terms of an international agreement to have

effect in domestic law, it may ask the Oireachtas to pass the necessary legislation. If this does not happen, article 29, section

6 applies. I am prepared to assume that the State may, by entering into an international agreement, create a legitimate

expectation that its agencies will respect its terms. However, it could not accept such an obligation so as to affect either the

provisions of a statute or the judgment of a court without coming into conflict with the Constitution.

In my view, the appellant has not established any arguable case under any of the headings of judicial review in respect of which

he seeks leave. I would refuse the application and dismiss the appeal.