District Court allows appeal against taxi licence refusal due to lack of admissible evidence and procedural flaws.

AN CHÚIRT DÚICHE

THE DISTRICT COURT

Dublin Metropolitan District Court Record Number 2023/000119

IN THE MATTER OF SECTION 13 OF THE TAXI REGULATION ACT 2013, AN APPLICATION OF IMRANUL HASSAN SHUVO, THE APPELLANT

Between

Imranul Hassan Shuvo

Appellant

-and-

Superintendent Stephen McCauley

Respondent

Decision of Judge Marie Quirke delivered the 26th day of July 2024

Introduction

1. This case comes before the court as an appeal under section 13 of the Taxi Regulation Act 2013 which includes the following statutory provisions:

Section 13(1) ‘whenever the licensing authority proposes to refuse to grant a licence... it shall notify in writing the applicant or the holder, as the case may be, of the proposal and the reasons for the refusal… and shall, if any representations are made by or on behalf of the applicant or holder, as the case may be, not later than 14 days or such further period as the licensing authority allows from the date of the service of the notification, consider the representations.’

Section 13(2) ‘whenever the licensing authority, having considered the representations (if any) that may have been made to it under subsection (1) by or on behalf of the applicant or holder, decides as the case may be, to refuse to grant the licence or to revoke or suspend the licence, the licensing authority shall notify in writing the applicant or holder of its decision and of the appeal procedure under subsection (3) and that the decision does not take effect until the expiration of the period referred to in subsection (3) in the event of an appeal not being made within that period.’

Section 13(3) ‘where a person has been notified under subsection (2) of the

decision of the licensing authority, to refuse to grant the licence... he or she may, not later than 28 days from the date of the service of the notification, appeal to the District Court against the refusal…’

Section 13(6) ‘an appeal under subsection (3)… shall be to the judge of the District Court within whose jurisdiction the applicant or the holder ordinarily resides or carries on or proposes to carry on the business of providing small public service vehicle services.’ Section 13(7) ‘on the hearing of an appeal under subsection (3) in relation to the decision of the licensing authority under subsection (2), the District Court may either confirm the decision or allow the appeal. If the appeal is allowed in relation to a decision to refuse to grant a licence the licensing authority shall grant the licence.’

2. Superintendent Stephen McCauley, the respondent in this Appeal is the interim Authority vested with the statutory function to decide on an application for a Small Public Service Vehicle (SPSV)

Licence. Assessment of licence applicant and notification of health issues

3. The statutory framework for the assessment of licence applicants is set out in the Taxi Regulation Act 2013 and includes the following:

4. Section 8 requires an applicant to satisfy requirements and conditions for the grant of licences as set out by the National Transport Authority in assessment regulations and are to include:

a. an assessment to be carried out by the Garda commissioner or by another person on behalf of the National Transport Authority, of the suitability of a person to hold a licence.

b. The National Transport Authority bye-laws 2019 have established requirements and conditions in respect of an applicant’s competence to an acceptable level in relation to knowledge of, and ability to meet small Public Service Vehicle transport needs of consumers, knowledge of the geography, routes, place names, in addition to the ability to meet the needs of people with disabilities and other competence criteria as defined by the National Transport Authority.

‘Suitable person to hold licence’

5. Section 10 of the Taxi Regulation Act 2013 outlines the requirements for a suitable person to hold a licence:

Section 10(1) states that ‘a licensing authority shall not grant a licence under section

9 to a person unless it is satisfied he or she is a suitable person to hold a licence’

Section 10(2) ‘in assessing whether a person is a suitable person to hold a licence, the licensing authority may, amongst any other matters, have regard to the following;

a) whether the applicant is of good character;

b) any concerns raised by the Authority or the Garda Commissioner or other member of the Garda Síochána regarding the applicant’s suitability to hold a licence;

c) any convictions for offences (including offences under the enactments mentioned in the Schedule) committed by the applicant, and the extent to which those convictions are of relevance to the activities of the person in respect of providing small public vehicle services or driving a small public service vehicle, as the case may be;

d) in respect of an application for a licence to drive a small public service vehicle, the health of the applicant and his or her ability to provide small public vehicle services or drive a small public service vehicle;

e) where the applicant is a company, the suitability or conduct of any director, shadow director, manager, secretary, member entered in the register of the company, other officer or employee of the company any person who has control of the company or any person purporting to act in that capacity regarding the operation of the licence;

f) where an applicant has previously held a licence, his or her compliance with any obligations applicable to him or her as a licence holder under this Act or regulations under section 34 of the Act of 2003 or section 82 of the Act of 1961.’

6. In addition, the Taxi Regulation Act 2013 specifies mandatory disqualifications to holding a Small Public Service Vehicle (SPSV) licence (a taxi licence) and a ‘Demerit Scheme’ that applies in the event that the holder of a taxi licence obtains certain convictions during the course of holding a taxi licence.

The history of this case

7. Mr. Shuvo applied for a renewal of a Small Public Service Vehicle licence on an application form dated the 4th day of November 2022. This form included a question as to what the applicant’s immigration status was. This question appears to be a new question that was not contained in the application form that had been completed by Mr. Shuvo and lodged dated the 1st of February 2018 when he had originally applied for and was granted his first Small Public Service Vehicle / Taxi licence in this jurisdiction.

8. In response to Mr. Shuvo’s application form dated the 4th day of November 2022 a letter issued from Sergeant Paul Sherlock dated the 12th day of December 2022 indicating that the Superintendent proposes under section 10 of the Taxi Regulation Act 2013 to consider refusing the application to renew the licence to drive a Small Public Service Vehicle for the reasons set out in his letter, an extract of which can be seen below: Dear Mr Shuvo,

This is to inform you that Superintendent Stephen McCauley, the Authorised Officer for the Dublin Metropolitan Region, authorised by the Commissioner under Section 70 of the Taxi Regulation Act 2013, proposes, under Section 10 of the Taxi Regulation Act 2013, to consider REFUSING your application to renew your Licence to drive Small Public Service Vehicle’s due to the following reason:

The reason for such consideration is that S.10(1) of the Taxi Regulation Act 2013 provides that: “The licensing authority shall not grant a licence under Section 9 to a person unless it is satisfied that he or she is a suitable person to hold a licence.”

The Authorised Officer is not satisfied that you are a suitable person to hold a SPSV Licence due to the reason(s) listed below:

1. That your permission to reside in the State was revoked by the Minister for Justice and your application for retention of your residence card was refused by the Minister for Justice on the 07/01/2022.

2. This was due to the fact that the Minister was satisfied that the documentation you provided in support of your application to evidence the residence of you and your spouse in this State was false and misleading as to a material fact.

3. The Minister was also satisfied that the documentation you provided to evidence the exercise of rights by your spouse in this State were also false and misleading as to a material fact.

4. You knowingly submitted this documentation in order to obtain a right of residence which you otherwise would not enjoy.

This constituted a fraudulent act within the meanings of the European Communities (Free Movement of Persons) Regulations 2015 and Article 35 of the Directive.

5. That the Minister was satisfied that the marriage contracted between yourself and the EU Citizen was one of convenience, contracted for the purposes of obtaining an immigration permission, which you would otherwise not have an entitlement to.

This notification is in compliance with section 13(1) of the Taxi Regulation Act 2013 and as per this Section you are invited to make representations to this office, or may have representations made on your behalf stating reasons why the Authorised Officer should not REFUSE your application for renewal of your Small Public Service Vehicle Licence. Such representations must be made within 14 days of the service of this notification. Thereafter a decision will be issued within 7 days.

Any representations made by you within the 14 days permitted will be considered by the Authorised Officer before making a final decision.

If you have any queries in relation to this notification, I can be contacted at CarriageOffice.DMR@garda.ie

Yours sincerely, Paul Sherlock (Sergeant)

9. A response from the solicitors for Mr. Shuvo dated the 14th of December 2022 (some 2 days later) raised preliminary issues relating to what was alleged, was the fact that the Superintendent had allegedly obtained personal data matters relating to Mr. Shuvo that were held by the Department of Justice, such information having been obtained allegedly without any legal basis and in breach of Mr. Shuvo's data protection/ EU charter rights. The substantive issues raised in the Sergeant's letter of the 12th of December 2022 were not otherwise addressed. Save to state “Without expressing any view on the relevance of a marriage of convenience finding to suitability, we must raise a preliminary issue at this stage”.

This letter ran to 5 pages. Importantly it was noted in the letter:

“ we cannot see any provision in the Taxi Regulation Act 2013, or any other provision of Irish Law, which lays down the basis for processing in this case. Absent a specific statutory provision, any such processing is therefore unlawful. We should note that, although section 38 of the Data Protection Act 2018 allows for processing of data if necessary and proportionate for the performance of a function under an enactment, section 6(2) of the Data and Governance Act 2019 provides that “section 38 of the Data Protection Act 2018 shall not apply to the disclosure of information by one public body to another.””

10. It was stated in this letter that section 6(2) was commenced from the 31st day of March 2022, before Mr Shuvo applied for his licence and therefore section 38 of the 2018 Act cannot be relied upon in this case.

“We would further note that in Case C-201/14 Bara and others the CJEU ruled that ;

Articles 10, 11 and 13 of Directive 95/46/EC of the European Parliament and of the Council of 24th October 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as precluding national measures, such as those at issue in the main proceedings , which allow a public administrative body of a member state to transfer data to another public administrative body and their subsequent processing , without the data subjects having been informed of that transfer or processing.

This is also reflected in Article 5(1)(a) GDPR, which provides that data must be “processed lawfully, fairly and in a transparent manner in relation to the data subject.

Article 5(1)(b) further provides that data must be collected far specified, explicit and legitimate purposes and not further processed in a manner incompatible with those purposes... Moreover, in accordance with recital 69 GDPR it is submitted that the burden is on the data controller /processor to establish that the processing of the data subject’s personal data was lawful. Our client has not been informed of any transfer or subsequent processing of his personal data in this matter. Therefore, the transfer and further processing of his personal data is unlawful on this basis alone. In these circumstances we submit that there is no basis upon which the authorized officer can lawfully access our client’s immigration files and as a consequence the matters which are put forward as reasons for your recent proposal are not matters which can be lawfully considered in this process. Strictly without prejudice to the foregoing, it is also worth noting however that whilst the minister did in fact revoke our client’s permission, that decision has been under review since the 26th of January 2022. Our client continues to await a decision in respect of same. The measure is not yet settled and therefore that first instance finding cannot be relied upon in order to denigrate he's good character as it relates to his suitability as a taxi driver.”

11. The solicitors then called upon the Superintendent to withdraw his recent proposal and to issue Mr. Shuvo with an SPSV licence. They also reiterated a call for the Superintendent to justify the legal basis for him processing Mr. Shuvo's personal data.

12. A final response issued from the Superintendent dated the 19th day of December 2022 as follows:

“Dear Mr. Shuvo,

This is to inform you that I, Superintendent Stephen McCauley, an Officer of An Garda Siochana, the Authorised officer for the Dublin Metropolitan Region, authorized by the Garda Commissioner under Section 70 of the Taxi Regulation Act 2013, having considered any representations made by you on your behalf, have, under Section 10 of the Taxi Regulation Act 2013, decided to REFUSE your application to renew your Licence to drive Small Public Service Vehicles, due to the following reasons;

1. That your permission to reside in the State was revoked by the Minister for Justice and your application for retention of your residence card was refused by the Minister for Justice on the 07/01/2022.

2. This was due to the fact that the Minister was satisfied that the documentation you provided in support of your application to evidence the residence of you and your spouse in this State was false and misleading as to a material fact.

3. The Minister was also satisfied that the documentation you provided to evidence the exercise of rights by your spouse in this State where also false and misleading as to a material fact.

4. You knowingly submitted this documentation in order to obtain a right of residence which you otherwise would not enjoy. This constituted a fraudulent act within the meaning of the European Communities (Free Movement of Persons) Regulations 2015 and Article 35 of the Directive.

5. That the Minister was satisfied that the marriage contracted between yourself and the EU Citizen was one of convenience, contracted for the purposes of obtaining an immigration permission which you would otherwise not have an entitlement to. This notification is in compliance with Section 13(2) of the Taxi Regulation Act 2013.

In reaching this decision I, the Authorised Officer, have considered representations made by Thomas Coughlan & Co, solicitors dated the 14/12/2022.

This decision may be appealed under S.13(3) of the Taxi Regulation Act 2013 to the District Court within 28 days of receipt of this notification by you.

If this decision is not appealed within 28 days of receipt of notification, then it takes effect after the expiry of that 28 day period of time.

If you have any queries in relation to this notification, you can contact the Sergeant in charge of the carriage office at CariageOffice.DMR@Garda.ie .

Yours sincerely,

Setephen McCauley (Superintendent

Date: 19/12/22 ”

13. The Superintendent did not address in any way the matters raised as regards the data rights of Mr. Shuvo and did not address what the statutory basis was for him in accessing information from the immigration files held by the Department of Justice.

The Appeal

14. A notice of appeal to the District Court dated the 11th January 2023 was filed in the District Court office on the 11th day of January 2023 and a copy served on the Superintendent stating that the appellant appeals to the District Court against the decision of the respondent to refuse to renew a taxi licence pursuant to section 9(1) and 10 of the Taxi Regulation Act 2013 and is seeking the following reliefs;

1. An order directing the respondent to renew the licence.

2. Such further order as the court shall deem fit. Preliminary Issues

15. Preliminary issues were brought before the court before the allocation of a hearing date. These issues were the subject of submissions, written and oral and preliminary rulings were required to be made by the court.

An application for discovery by the appellant

16. This was fully disputed by the Superintendent, including an assertion on behalf of the Superintendent that this Court has no jurisdiction to make such an Order on the basis that the court was exercising a licensing jurisdiction as opposed to a general civil jurisdiction. A decision in relation to this application was delivered on the 19th day of March 2024 and I determined that to ensure fair procedures and due process, I was satisfied that I had jurisdiction to make a Discovery Order in the context of this statutory appeal and was required to do so in the interests of justice, but would limit the terms of the Discovery to what I found as being factually necessary, proportionate and relevant in the context of the Appeal. Any information which I considered to be speculative in nature or that which would give rise to a fishing expedition would not be ordered to be discovered. An order for discovery was made on the following terms: from the date that Mr Shuvo lodged his application to renew his taxi application which was agreed was the 25th day of October 2022 uptodate.

17. To include, all and any documentation/communications held in any form whatever between the Superintendent Stephen McCauley and the Garda National Immigration Bureau and any/all documentation/communications held in any form whatsoever between the Superintendent Stephen McCauley and the Department of Justice.

18. Certain other categories that were sought were refused on the basis that the Court found them to be in the nature of a speculative fishing expedition not relevant or factually necessary in the context of the statutory appeal before the Court. Discovery was also stated by Court to be necessary because the documents sought were peculiarly within the power, possession and procurement of the Superintendent and necessary, relevant and proportionate to the hearing, disposal and determination of the matters before this Court.

An application for a preliminary ruling on the exact nature of this statutory appeal.

19. The case of Anne Fitzgibbon v Law Society of Ireland [2014] IESC 48 was cited. It was contended on behalf of the appellant that the statutory appeal could only be an appeal on the record. Legal representatives of the Superintendent argued and submitted that in fact this case in essence constituted a hybrid, that being both an appeal on the record and an appeal on the facts.

20. There is no dispute between the parties that this statutory appeal could not be a de novo appeal and could not be an appeal on the law. It was further contended by the appellant that this appeal was an appeal on the record only; that evidence obtained by the Superintendent in breach of fundamental EU Charter Data Rights without a legal basis must be excluded ab initio and then the Court should decide the matter on the record only with no evidence being adduced. This court applying the law as enunciated by Clarke J. in the Fitzgibbon case made a determination that the legislature had provided for an appeal in the terms set out in the Taxi Regulation Act 2013 and that in the particular circumstances of this appeal, in order for the appeal to constitute an effective legal remedy, the court determines that the appeal is in essence a hybrid, being an appeal on the record and an appeal on the facts and must proceed by way of evidence.

Ruling on inadmissibility ab initio

21. The next application was an application by the appellant for a ruling by the court at the outset that the evidence obtained by the Superintendent from the Department of Justice should be ruled as inadmissible ab initio, without any evidence being heard. The contention was made that the Superintendent had obtained the material from the Department of Justice without any legal basis, and this was a breach of the appellants EU Charter Data Rights and must be excluded.

22. The ruling in DPP v JC [2015] IESC 31, hereinafter referred to as ‘the JC decision’, a decision of the Supreme Court which set out that evidence obtained in breach of constitutional rights must be excluded, unless the test for inclusion set out in JC is met was opened to the Court. The JC

decision related to evidence in a criminal trial. In the subsequent decision by O'Malley J. in Criminal Assets Bureau v Murphy & Anor [2018] IESC 12, the Supreme court made it clear that the same rules as set out in the JC decision will also apply to decisions about the admissibility of evidence in civil proceedings save for the standard of proof in civil proceedings will be on the balance of probabilities. In addition, O’Malley J. outlined in her decision that it would be a matter for the trial judge as to when the decision on admissibility should be made whether that is at the outset or during the course of the hearing.

23. This court determined that a decision on the admissibility and weight to be attached to any evidence would, in the interests of justice, be determined by the court during the course of the hearing, in line with the decision of O’Malley J. in Criminal Assets Bureau v Murphy & Anor.

24. It was also advanced on behalf of the appellant that there should be an advance ruling by the court on what questions, if any, could be posed to the appellant about the material that had originated from the Department of Justice pertaining to Mr. Shuvo’s immigration status.

25. This Court declined to make such a ruling on the basis that this trial court is bound by the rules of evidence including that hearsay evidence is not admissible save in such limited circumstances as set out by law. In the ordinary course of evidential rules if questions are posed to the appellant during cross-examination that are not subsequently borne out by evidence adduced to prove the contents of the questions posed, then there will be no evidence before the court to ground any such cross examination and no weight, may in reality, be attached to propositions put to an appellant that are not borne out by evidence adduced.

26. As regards whether there was a breach of EU Charter Personal Data Rights and whether there was a legal basis for the Superintendent to access the Minister for Justice file and to seek and receive information, from the Department of Justice this will have to be proven on the balance of probabilities and can be dealt with and considered in the context of the hearing.

27. The court determined that the case could proceed to hearing with oral testimony by the appellant, the Superintendent and any witnesses they wish to adduce.

The hearing of the appeal

28. The hearing of the appeal then proceeded over the course of 1 and a half days on the 27th June and 5th July 2024.

29. Evidence was heard from the appellant, Mr Shuvo and on behalf of the respondent: the Superintendent and official Catherine Grace from Department of Justice official. I do not propose to recite verbatim all the evidence that was heard. I propose to summarize the main points. It is to be noted that any reference or any summary of any piece of evidence is not to be taken as a finding that the court did not listen to all of the evidence and all of the submissions in this case.

30. The appellant Mr. Shuvo gave evidence that he is from Bangladesh originally. He came to the UK and married a UK/E.U. citizen in 2011 in the UK when UK was still an E.U. member state.

He said spouse came to Ireland in 2013 and he followed her in 2014. They had spent time in Northern Ireland, they had a business there, but it did not succeed. Mr. Shuvo said his spouse started in a beauty shop and both of them were working when they came to Ireland. He said that he could not recall exact dates. He said he originally had a delivery job and in 2018 he applied for a taxi licence. He submitted police certificates from Bangladesh and the UK. He completed an exam and was successful. In February 2018 he started as a taxi driver and worked as a taxi driver for 5 years. In 2022 he applied for a renewal, and he was refused for the reasons set out in the letter of the Superintendent, as outlined earlier in this decision. He now has a stamp 4 allowing him temporary permission for a specified period. He said his spouse went on maternity leave in 2015, she gave birth to a child to which he was not the father. He said she worked continuously up to the end of 2020/early 2021.

31. He has applied for review of decision as regards his immigration status made by the Department of Justice and he awaits the review decision and has a Stamp 4 Temporary permission in the meantime.

32. The Superintendent gave evidence explaining his role. In carrying out his function under the Taxi Regulation Act 2013 he must assess if an applicant for a taxi licence is a “suitable person”.

He stated that honesty and integrity is crucial particularly when vulnerability of passengers is at play. The Superintendent averred that he is operating the system that he inherited from his predecessor. The Superintendent explained that he gets a recommendation from a local Garda Station; he checks the Pulse Garda system for a criminal record and then he gets a Police Certificate Notification from the applicant's home country. He then explained that he will check if a temporary immigration status exists. The Superintendent explained that he has to confirm the facts. He cannot take things at face value. All information is checked and verified.

33. The Superintendent outlined that the application form, residence card, photo and current status is verified and whether there has been a change in immigration status. He confirmed that he checks immigration status by accessing information through his colleagues at the Garda National Immigration Bureau. It was observed that the applicant has to have legal status to be in the country to be eligible to be considered. The applicant also requires tax clearance, a driving licence, and a completed skills test which must be valid as per the National Transport Authority.

34. The Garda National Immigration Bureau confirms the status of the applicant. The Garda National Immigration Bureau had a record to reflect that there had been a change in status from permission based on marriage to an E.U. citizen to a Stamp 4, in this case. They had a note that Mr. Shuvo’s status, based on his marriage to an E.U. Citizen had been revoked.

35. This caused official personnel in the Carriage Office to raise a request to the Department of Justice. This was done by e-mail which had been discovered in the context of the order for discovery in this case. An e-mail issued from Nadine B. Campion who worked in the Carriage Office of the Superintendent dated the 18th day of November 2022 which was sent to Compliance@justice.ie which I understand is a section of the Department of Justice, the contents of the email are as follows:

“I wish to query the permission status of the following and if previous permissions were refused/revoked due to MOC/Fraud could I request copies of same please.”

A response to this email dated 21st November 2022, stated:

“Imranul Hassan Shuvo dob ….- permission revoked and Retention refused in January 2022. He has a pending Review since 26/01/2022 they issued him with a Temporary Stamp 4 until 25/06/2023. He also has a pending undocumented since 13/06/2022.”

36. An e mail dated 24th November 2022 was sent by Nadine B. Campion to Paul A. Sherlock with two attachments and these attachments are letters written by Department of Justice EU Treaty Rights Unit dated 7th January 2022 and 26th September 2022 which in these letters a decision under European Communities (Free Movement of Persons) Regulations 2015 that included a finding at first instance that the Minister was satisfied that the documentation provided by Mr.

Shuvo to support his application to evidence the residence of him and his spouse was false and misleading as to a material fact. The Minister was also satisfied that the documentation provided to evidence the exercise of rights by Mr. Shuvo’s spouse in this state was also false and misleading as to a material fact and that he had knowingly submitted this documentation in order to obtain a right of residence which he would not otherwise enjoy and that this constituted a fraudulent act within the meaning of the regulations and directive.

37. Sergeant Sherlock from the interim licensing authority then proceeded at that point to write the letter with the intention to refuse, which letter was dated the 12th of December 2022. In essence, the finding of the department executive officer caused the Superintendent to come to the proposition that the applicant was not a suitable person to obtain an SPSV taxi licence.

38. At no point in the Superintendents evidence did he aver to having given any consideration to addressing a query directly to Mr. Shuvo asking him to address the change in his immigration status recorded on the Garda National Immigration Bureau database. It is noteworthy that at the end of the original email sent by Garda Nadine Campion dated the 18th of November 2022 stated that:

“This information is provided/requested under sections 8(1) and (2) of the Immigration Act 2003 and section 41B of the Data Protection Act 2018 and section 261(2) of the Social Welfare Act 2005 as amended.”

39. It is important to note that this was the legal basis enumerated by the Superintendent’s Office for the request for information from the Department of Justice/Minister for Justice in relation to Mr.

Shuvo’s immigration file.

Legislation relative to the legal basis underpinning the information request

40. At this point I will quote fully the sections from the legislation which were stated to be the legal basis on which the information was requested from the Department of Justice.

41. Section 8 (1) and (2) of the Immigration Act 2003 provide as follows;

(1) Notwithstanding any provision of any other enactment but subject to section 11(4)

of the Refugee Act 1996 (“the Act of 1996”), whenever so requested, an information holder shall give to another information holder such information, including personal information, in his or her possession, control or procurement regarding non-nationals, including applicants within the meaning of the Act of 1996, for the purposes of that Act or for the purposes of the administration of the law relating to the entry into and the removal from the State of non-nationals.

(2) The Minister for Social and Family Affairs may, for the purposes of the Social Welfare Acts, request an information holder to furnish him or her with such information including, personal information, in his or her possession, control or procurement regarding non-nationals, including applicants within the meaning of the Act of 1996 and the information holder shall comply with any such request.

Section 41 B of the Data Protection Act 2018 provides as follows;

Without prejudice to the processing of personal data for a purpose other than the purpose for which the data has been collected which is lawful under the Data Protection Regulation, the processing of personal data and special categories of personal data for a purpose other than the purpose for which the data has been collected shall be lawful to the extent that such processing is necessary and proportionate for the purposes—

(a) of preventing a threat to national security, defence or public security,

(b) of preventing, detecting, investigating or prosecuting criminal offences, or

(c) set out in paragraph (a) or (b) of section 47 .

Section 47 of the 2018 Act states

The processing of special categories of personal data shall be lawful where the processing—

(a) is necessary for the purposes of providing or obtaining legal advice or for the purposes of, or in connection with, legal claims, prospective legal claims, legal proceedings or prospective legal proceedings, or

(b) is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

Section 261 (2) and (3) of the Social Welfare Consolidation Act 2005 as amended provides as follows;

(2) Information held by the Minister for the purposes of this Act or the control of schemes administered by or on behalf of the Minister or the Department of Social and Family Affairs may be transferred by the Minister to another Minister of the Government or a specified body, and information held by another Minister of the Government or a specified body which is required for those purposes or the control of any such scheme administered by another Minister of the Government or a specified body may be transferred by that Minister of the Government or the specified body to the Minister.

(3) In subsection (2) “specified body” means a local authority, the Executive, the Garda Síochána or any other body established—

(a) by or under any enactment (other than the Companies Acts 1963 to 2005), or

(b) under the Companies Acts 1963 to 2005, in pursuance of powers conferred by or under any other enactment,

and financed wholly or partly by means of moneys provided or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government and a subsidiary of any such body.

42. It is important to note that when the request for information was made by the Superintendent as interim licensing authority for taxis to the Department of Justice no reference was made to either section 38 or section 49 of the Data Protection Act of 2018.

43. Section 38 subsections (1) to (7) of the Data Protection Act 2018 provides as follows;

(1) The processing of personal data shall be lawful to the extent that such processing is necessary and proportionate for—

(a) the performance of a function of a controller conferred by or under an enactment or by the Constitution, or

(b) the administration by or on behalf of a controller of any non-statutory scheme, programme or funds where the legal basis for such administration is a function of a controller conferred by or under an enactment or by the Constitution.

(2) Subject to subsection (3), the processing of personal data and disclosure of that data to a person for the purposes of preserving the Common Travel Area, or any part of that Area, shall be lawful where the controller is an Irish air carrier, an air carrier or a sea carrier.

(3) The Minister shall, following consultation with such other Minister of the Government as he or she considers appropriate and the Commission, make regulations for the purposes of subsection (2) specifying—

(a) the part of the Common Travel Area to which the regulations apply,

(b) the personal data that may be processed,

(c) the circumstances in which the personal data may be disclosed, including specifying the person to whom the data may be disclosed, and

(d) such other conditions (if any) as the Minister considers appropriate to impose on such processing.

(4) Subject to subsection (5), the processing of personal data which is necessary for the performance of a task carried out in the public interest by a controller or which is necessary in the exercise of official authority vested in a controller may be specified in regulations made—

(a) by the Minister following consultation with such other Minister of the Government as he or she considers appropriate, or

(b) by any other Minister of the Government following consultation with the Minister and such other Minister of the Government as he or she considers appropriate.

(5) The Minister or any other Minister of the Government shall consult with the Commission before making regulations under subsection (4).

(6) The Commission may, on being consulted under subsection (5), make observations in writing on any matter which is of significant concern to it in relation to the proposed regulations and, if the Minister or any other Minister of the Government proposes to proceed to make the regulations notwithstanding that concern, that Minister shall, before making the regulations, give a written explanation as to why he or she is so proceeding to—

(a) the Committee established jointly by Dáil Éireann and Seanad Éireann known as the Committee on Justice and Equality or any Committee established to replace that Committee, and

(b) any other Committee (within the meaning of section 19 (1)) which that Minister considers appropriate having regard to the subject matter of the regulations.

(7) Regulations made under subsection (4) shall specify—

(a) the personal data that may be processed,

(b) the circumstances in which the personal data may be processed, including specifying the persons to whom the data may be disclosed, and

(c) such other conditions (if any) as the Minister or any other Minister of the Government, as the case may be, considers appropriate to impose on such processing.

Section 49 of the Data Protection Act 2018 states

Subject to suitable and specific measures being taken to safeguard the fundamental rights and freedoms of data subjects, the processing of special categories of personal data shall be lawful where the processing respects the essence of the right to data protection and is necessary and proportionate for—

(a) the administration of justice, or

(b) the performance of a function conferred on a person by or under an enactment or by the Constitution.

44. It is noteworthy that on the facts of this case at the time the request was made by the Office of the Superintendent as interim licensing authority to the Department of Justice neither section 38 nor section 49 of the Data Protection Act 2018 were stated as the legal basis for the request at that time.

45. There was no evidence before this Court and it was therefore never proven that in the process conducted by the Superintendent and the system in place as the interim authority for the grant of taxi licences that Mr. Shuvo was ever made aware of the Superintendents request for information to the Department of Justice nor was his consent sought to such a request nor was he asked directly for the information which the Superintendent believed he required in order to conduct his assessment.

46. The Superintendent referred to his staff raising these queries as part of the system in place to obtain the information he believed was necessary to carry out his assessment and the system he inherited from his predecessor.

Evidence of Ms. Catherine Grace

47. Evidence was heard from Catherine Grace an officer of the EU Treaty Rights Division of the Department of Justice. She averred that Mr. Jason McEneaney executive officer of the department was the decision maker in this case, as regards the findings that had been made against Mr. Shuvo. She said a review of this decision had been requested by Mr. Shuvo. This review is still pending and not yet determined nor concluded. In the meantime, a temporary stamp 4, which allows Mr. Shuvo to work subject to the rules of any profession he seeks to follow being complied with, has issued.

48. This is a discretion residing in the Minister exercised in this case to grant Mr. Shuvo the stamp

4 on a temporary basis until the review has been completed.

49. She evidenced the fact that the Garda National Immigration Bureau are the operational/administrative unit and are informed on a routine basis of the status decisions and were so informed in relation to Mr. Shuvo.

50. She said that the review requested by Mr. Shuvo would be conducted by an officer in the Department at a higher grade then the executive officer who had made the original decision and that the matter is not considered/concluded by the Department until the review is completed.

51. She referred to and put into evidence a letter that had been written to Mr. Shuvo dated the 7th of January 2022 from Mr. Jason McEneaney of the Department of Justice which set out the findings of the Minister and the fact that Mr. Shuvo could request a review and the actions he had to take with his local immigration office within the Garda National Immigration Bureau in the meantime.

52. The original letter of the 7th of January 2022 was not routinely supplied to the Garda National Immigration Bureau. This letter only became available to the Superintendent in this case on the request that his section made by e-mail dated 18th November 2022 to the Department.

53. The original purpose for Mr. Shuvo’s submission of personal data to the Department of Justice was for the purpose of assessing his immigration application. It would appear that the administration of the issue of a stamp 4 was conducted by the Garda National Immigration Bureau but only the outcome of decisions of the Minister was routinely notified to G.N.I.B. not the facts nor substance grounding the decision.

54. It was clear to the Court that Ms. Grace did not anticipate or countenance any other purpose in the exchange of the information from the Department to the Garda National Immigration Bureau other than the communication of the result for the purpose of the administration of the decision of the Minister.

55. She was clear in her evidence that the information was not sent to An Garda Siochana, in general, for the purpose of investigation whether a crime had been committed under the EU (Free movement of Persons) Regulations 2015. Under these regulations it is stated to be a criminal offence to commit fraud in the context of submitting false and misleading information to the Minister and if prosecuted successfully, a person may be liable on summary conviction to a Class A fine or imprisonment for a term not exceeding 12 months, or both.

56. This concludes a summary of the evidence with reference to legal matters as arose in the course of the hearing. All of the evidence and all of the submissions both written and oral and all case law and legislation submitted during the course of this case has been considered fully by the court before reaching a decision.

Preliminary Ruling on the admissibility of material

57. This Court has now been asked to make a preliminary ruling on the admissibility in these proceedings of the material as regards the finding of the Minister which were made in the remit of the Department of Justice immigration file and which were accessed in the manner evidenced by the Superintendent interim licensing authority for SPSV/ taxi licences. This requires the court to consider: was the material accessed in breach of Mr. Shuvo’s EU Charter Personal Data Rights? Was there a clear legal basis for the request and receipt of the information in this case?

58. I do not propose to recite the law in its entirety in this Decision as to the law governing the admissibility of evidence save to refer in outline to the superior court cases that have clarified the law that I must apply to this question.

59. At the outset, I wish to make reference to the decision of the High Court in Rahman v Superintendent Murphy and Others High Court [2022] IEHC 206 of Simons J. delivered on 25th April 2022.

60. It would appear that this decision reached a conclusion that immigration status was and is a relevant consideration for the Superintendent to consider in the context of an application for a taxi licence. The High Court went on to state whether obiter or part of the ratio that the existence of an adverse finding by the immigration authorities against an applicant would go to the good character of the applicant in the context of the legislative intent of the Taxi Regulation Act 2013 and that the licensing authority would be entitled to rely on the finding notwithstanding that it was subject to a review process. However at the time of the decision in the High Court the applicant in that case had had the review of the initial determination of the Department of Justice.

The review had been conducted and his immigration permission had been refused finally. The fact that he no longer had any immigration permission meant that the issues to be decided by the court were narrowed significantly. This is the wording of Simons J. at paragraph 39 of the judgment which stated:

“The fact that the applicant no longer has any immigration permission means that the issues to be decided are narrowed significantly. A major plank of the licensing authorities defence to the proceedings had been that the applicant should be refused relief as a matter of discretion having regard to his allegedly chequered immigration history. It would seem to be unnecessary to decide this issue in circumstances where subject always to any successful challenge to the immigration decisions, the applicant cannot now obtain any practical benefit from these proceedings. There would not appear to be any point in remitting the application to the licensing authority for further consideration in circumstances whereas of now the applicant has no immigration permission to be in this state. The licensing authority would accordingly be entitled to refuse the application on the basis that he has no immigration permission” Simons J. went on to say at paragraph 40 of his decision as follows:

“for similar reasons the objection made by the applicant to the effect that the licensing authority is not entitled to rely on sensitive personal data allegedly obtained from the Department of Justice in contravention of the General Data Protection Regulation EU 2016-

679 does not now need to be addressed in these judicial review proceedings.”

61. The High Court did not make a decision on the matter which I must now determine. The ruling in DPP V JC [2015] IESC 31 (‘the JC Decision’) by the Superior Court clarified the law applicable to the admissibility of evidence where a breach of constitutional rights in criminal proceedings was alleged. Clarke J states:

“5. 10 The test, therefore, requires the following:-

"Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context, deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct and state of mind not only of the individual who actually gathered the evidence concerned but also of any other senior official or officials within the investigating or enforcement authority concerned who are involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned."

5.11 Next, it seems to me to follow that, where evidence is taken in circumstances of unconstitutionality, but where the prosecution establishes that same was not conscious and deliberate in the sense already identified, the evidence should be admitted if the prosecution can also establish that the unconstitutionality concerned arose out of circumstances of inadvertence or by reason of developments in the law which occurred after the time when the relevant evidence was gathered.

5.12 I consider that including an exception of this type properly meets the balance of interests engaged in this case. It is illustrative to look at the facts before us. As a result of a subsequent decision of the courts, it became clear that a particular form of warrant was invalid. That legal fact was not known at the time of the evidence gathering at issue in this case. It is true that some doubts had been expressed over the constitutional validity of the relevant measure, but it remained on the statute book and enjoyed the presumption of constitutionality. In what way could it be said that it would encourage enforcement and investigation authorities to remain within the boundaries of their legal power if evidence is to be excluded by reference to legal decisions not even taken at the time when the power in question was exercised?

5.13 It seems to me that, likewise, inadvertence, such as that which was present in O'Brien, should not lead to the exclusion of otherwise probative evidence. It is true that imposing a rule of almost absolute exclusion (which rules out evidence even in cases of inadvertent breach of constitutional rights) might act as a somewhat greater encouragement to authorities towards strict compliance with their obligations. However, the price to be paid for that exceptionally high level of encouragement involves an inappropriate balancing of the interests concerned. On the other hand, if, short of a deliberate and conscious act, evidence is taken in circumstances of recklessness or gross negligence, then a different balancing exercise arises, for it is important that those involved in investigation and enforcement know that they cannot expect that reckless or grossly negligent actions will not have serious consequences for evidence gathering. To rule otherwise would be to place the level of encouragement to compliance at too low a level.

5.14 It is important to make clear, in that context, that the term "inadvertent" cannot be said to include a case where any relevant person acted in a manner which was reckless or grossly negligent. There is one sense in which the word "inadvertent" simply means that a person did not advert to the problem. On that basis, a person who, even though grossly negligent, might not actually have "adverted" to the fact that they were acting in breach of constitutional rights might, nonetheless, be said to have acted inadvertently. It is important to emphasise that the term "inadvertent", in the sense in which it is used in this judgment, could not encompass such actions.

5.15 On the other side of the equation, it does seem clear that inadvertence can include at least some circumstances which might be regarded as negligent in the broadest sense of that term. A professional person who, for example, fails to notice some material aspect of an issue on which they are to advise or in respect of which they are to act might well be said to have acted inadvertently but might, nonetheless, be found liable in negligence.

5.16 It might be argued that permitting the admission of evidence taken in circumstances of inadvertent breach could place a premium on ignorance. Evidence obtained in conscious and deliberate violation of constitutional rights, in the sense in which I have used that term, will be excluded. It might be said that it is more easily determined that the knowledgeable were aware of what they were doing compared with those who may be ignorant of the relevant law. However, it is clear from the sense in which I have suggested that the term "inadvertence" should be used that investigative agencies cannot hide behind an unacceptable lack of knowledge appropriate to their task for the purposes of pleading inadvertence. It does not, therefore, seem to me that the test which I propose, when properly analysed, gives any comfort to those who might seek to rely on exaggerated ignorance of the law to escape a ruling in favour of the admission of evidence taken in breach of constitutional rights.

5.17 An exclusionary rule which permits the admission of evidence obtained in circumstances of either inadvertence or where there are subsequent legal developments is sufficient to resolve this case. Doubtless the precise parameters of the point at which, in practice, inadvertence may be said to stop being an appropriate characterisation of events will be defined by further case law.

…

7.2 In summary, the elements of the test are as follows:-

(i) The onus rests on the prosecution to establish the admissibility of all evidence. The test which follows is concernedwith objections to the admissibility of evidence where the objection relates solely to the circumstances in which the evidence was gathered and does not concern the integrity or probative value of the evidence concerned.

(ii) Where objection is taken to the admissibility of evidence on the grounds that it was taken in circumstances of unconstitutionality, the onus remains on the prosecution to establish either:-

(a) that the evidence was not gathered in circumstances of unconstitutionality;

or

(b) that, if it was, it remains appropriate for the Court to nonetheless admit the evidence.

The onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places on the prosecution an obligation to explain the basis on which it is said that the evidence should, nonetheless, be admitted AND ALSO to establish any facts necessary to justify such a basis.

(iii) Any facts relied on by the prosecution to establish any of the matters referred to at

(ii) must be established beyond reasonable doubt.

(iv) Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct or state of mind not only of the individual who actually gathered the evidence concerned but also any other senior official or officials within the investigating or enforcement authority concerned who is involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.

(v) Where evidence is taken in circumstances of unconstitutionality but where the prosecution establishes that same was not conscious and deliberate in the sense previously appearing, then a presumption against the admission of the relevant evidence arises. Such evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments.

(vi) Evidence which is obtained or gathered in circumstances where same could not have been constitutionally obtained or gathered should not be admitted even if those involved in the relevant evidence gathering were unaware due to inadvertence of the absence of authority.”

62. The ruling in the case of The Criminal Assets Bureau v Murphy & Anor, confirmed that the principals enunciated in the JC Decision applied also to the admissibility of evidence in civil proceedings save that the standard of proof is on the balance of probabilities.

63. The recent decision of the Supreme Court in DPP V Caolan Smyth 2024 IESC 22 by Collins J.

has confirmed that a breach of EU Charter Rights in the context of admissibility of evidence must also be subject to the evaluation and standards set out by the Supreme Court in the ruling in the JC decision.

64. It has been contended on behalf of the Superintendent that this Court is applying domestic law it is not implementing European Union law and is only entitled in the context of this appeal to implement domestic law.

65. Therefore, in making a decision on the admissibility of evidence this court must be guided by domestic law and the guidance as is set down by the superior courts. In this regard the decision in DPP v Caolan Smyth is particularly helpful. In following this decision, this court in its determination of substantive matters is bound to apply and respect the EU Charter rights of individuals as they arise and in particular and as they have arisen in this case. I am satisfied that this court is bound to respect EU charter rights in the context of making a determination in order to afford the parties fair, legal and lawful procedures and process.

66. Remedies and actions associated with data breaches simpliciter are not within the remit or function of this Court and are a separate and distinct matter.

67. Was there a breach of Mr. Shuvo’s EU Charter Personal Data Rights? I find on the facts that such a breach did occur. I have also concluded that there was no legal basis existing for the exchange of information at the time the access request and receipt occurred. I wish to confirm that the evidence as to what was obtained on the Garda National Immigration Bureau database was within the remit of the Superintendent, as it was information held within the body of An Garda Siochana and available to him in his capacity as a member of An Garda Siochana.

68. The Superintendent was not the controller of the information which he requested and received therefore section 38 of the Data Protection Act 2018 on a literal interpretation, cannot apply to the facts of this case. In addition, section 49 of the Data Protection Act 2018 which in the latest submission has been proffered as a basis in law for the request and receipt of personal data has not been proven by the evidence adduced in this case.

69. The system in place for the request and receipt of information, on an objective, subjective and factual analysis, I find, constituted a deliberate and conscious breach of Mr. Shuvo’s EU Charter Personal Data Rights. The system used by the interim licensing authority was oblivious to Mr.

Shuvo’s data rights and deliberately did not seek or rely upon a correct legitimate legal basis for the exchange of information that occurred. The system in place was constructed in such a manner that it had a conscious and intentional disregard for Mr. Shuvo’s personal data rights. As evidenced to the court, it went beyond mere inadvertence applying the principles of the JC

decision.

Final Determination on the Appeal

70. The legislature has mandated there are the two options available to the court under section 13 of the Taxi Regulation Act 2013.

71. Leaving aside the fact that on the basis of my finding that there was no admissible evidence in law of the findings which the Superintendent relied upon to refuse this licence, I have noted that in the context of this appeal even if the material had been accessed lawfully and was deemed admissible, the Superintendent produced no original evidence to ground the findings outlined above.

72. So, in essence this court was not afforded the opportunity to evaluate the material which it was alleged proved fraud and dishonesty on the part of the appellant which contributed to the Superintendents decision that the appellant did not have the good character to render him suitable to hold an SPSV licence. On that analysis alone the oral testimony of Mr. Shuvo has not been controverted by testimony proven and open to cross examination and interrogation.

73. I cannot in law confirm the Superintendents decision.

I must allow the Appeal.

I note the effect of this is that the Superintendent must now grant the licence. In light of the

decision in Rahman, the Superintendent enjoys a wide discretion under the Taxi Regulation Act 2013 to impose such terms and conditions to the licence as he sees fit within the statutory framework of the Act.

74. I am satisfied that it is open to the Superintendent to impose conditions to protect the safety of any passengers and the vulnerability of passengers in the context of this service provision. These are matters entirely in his discretion within the parameters of statutory framework which he is tasked with operating.

75. It may be timely to note that a different conclusion may have been reached by this court in relation to the admissibility of evidence if a correct legal basis had been stated and been in existence in law now and or at the time the information was sought and received and/or if the appellant had been informed in a transparent manner as to what was occurring and/ or if his consent had been forthcoming and /or if he had been requested for the information required on a voluntary basis and in light now of the Data Sharing and Governance Act 2019 which actually commenced on the 16th December 2022 as matters go forward if a transparent Data Sharing Agreement compliant with that legislation was to be in existence.

76. It is important to note that this is a decision on the exact facts of this one particular case. Any selective quotation from this decision that is not firmly grounded on the exact and full facts of this case, may not truly represent the full findings of this court in terms of its use by other litigants and/or its quotation in any other manner.

Marie Quirke

District Judge

Dublin Metropolitan District. 26th July 2024.

Legal Representatives For the Appellant Thomas Coughlan & Co, 1-2 Anglesea Street, Cork.

Aengus Ó Corráin BL Rosario Boyle SC

For the Respondent Chief State Solicitor, Osmond House, 8 Ship Street Little, Dublin Kilda Mooney BL