High Court refuses IHREC amicus curiae application due to lack of factual engagement and procedural delays.

Neutral Citation [2016] IEHC 740

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 721 J.R.]

BETWEEN

L.C.

APPLICANT

AND

DIRECTOR OF OBERSTOWN

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

JUDGMENT of Mr. Justice Eagar delivered on the 21st day of December, 2016

1. In these judicial review proceedings, the Court delivered a judgment on 9th December, 2016 seeking further information from Ms.

Emily Logan, the Chief Commissioner of the Irish Human Rights and Equality Commission (herein “IHREC”) on her application pursuant to

s. 10(2)(e) to the High Court to appear before the High Court as amicus curiae in the proceedings before the Court.

2. In that judgment the Court set out the information which would be of assistance to the Court in considering whether or not to

grant the application.

3. Counsel on behalf of the IHREC submitted a supplement affidavit of Emily Logan.

4. Ms. Logan avers in her affidavit that the IHREC’s role in other cases where it has acted as amicus curiae involved making written

submissions and later seeking the direction of the Court with regard to the timing of the submissions. Ms. Logan avers in this case

that the Commission would prepare and file its submissions after written submissions have been received from the applicants and the

respondents. This will assist the IHREC in ensuring that there is no unnecessary duplication of the arguments of either of the parties.

The IHREC also suggests that it will seek to make succinct oral submissions at the trial but undertakes to abide by such directions as

the trial judge may make in relation to the scope and length of any oral submissions.

5. She avers that all 4 cases raise fundamental issues about the use of separation or segregation policies in a detention centre for

children and she refers to the IHREC’s engagement with the UN Human Rights Committee and the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment with regard to the protection of rights of persons in prisons

and detentions centres. The IHREC also engages with the UN Committee on the Rights of the Child and the UN Human Rights

Committee, with regard to the treatment of children within the criminal justice system. She further avers that the IHREC is in a

position to offer an experience based international human rights perspective and can demonstrate how the international standards in

relation to separation policy and children in international human rights conventions can inform the interpretation of the applicant’s

rights under the Constitution. She further quotes from a number of Council of the European Union and Council of Europe instruments

which she states that it would be useful for the Court to have the submissions of the IHREC.

6. She avers that if joined as amicus curiae, the IHREC would seek to present submissions on the relevant human rights standards,

for the assistance of the Court and would hope that these submissions would inform the judgment of the Court in its examination of

any segregation of a child in a detention centre. She also avers that the IHREC will not enter into any contest on the facts of the

case (if any) and will seek to provide written submissions in advance of the trial and that the IHREC agreed to bear its own costs.

7. Counsel on behalf of the respondents indicates that there are in fact substantial factual differences and that in due course an

application will be made to amend the statement of opposition to include the issue of mootness. A short further affidavit has been

prepared by Mr. Kenny on behalf of the respondents but that same was outlined to Noonan J. on a previous date.

8. In fact, in spite of the order of the Deputy Master that the submissions of L.C. should be in before the Court on 9th December,

2016, and that the affidavits of the other applicants should be in by 15th December, these submissions have not been received by

either the respondents or the Court. Ms. Denning had directed that the respondents be in a position to respond by written submission

on 10th January, 2017.

9. The Court notes that in relation to the further information which the Court sought, the Court is satisfied:—

i. That the precise role of the applicant in the proceedings has been set out by the supplemental affidavit.

ii. The expertise in the area of human rights engaged in the case has been further elaborated to the satisfaction of the

Court.

iii. Ms. Logan has said that the IHREC will be responsible for their own costs. It appears that the IHREC have not been

served with the submissions of the applicant, nor the respondents, because they have not been prepared. In fact counsel

stated that there appeared to be no engagement with the respondents in this case to date despite the fact that the

case is for hearing on 17th — 20th January, 2017.

10. No correspondence to either the applicants or the respondents sent by or to IHREC was opened to the Court. The Court is

concerned that no information will be set out for the Court in relation to the decision making process that caused the IHREC to apply

to appear as amicus curiae.

11. The Court has not been given any information as to what caused the IHREC to make this application. The Court is left in the dark

as to whether or not the applicants had contacted the IHREC or whether media reports of the case have caused the IHREC to make

this application.

12. The Court has considered the supplemental affidavit of Ms. Logan and the circumstances in relation to the case.

13. The Court is clear that there are factual disputes and clearly the IHREC is not in a position to engage in these factual disputes.

14. Having regard to the situation regarding submissions in which this Court has given the applicants until the close of business on

21st December, 2016 and the submissions of the respondents to be in by 15th January, 2017 it is not clear how the IHREC are going

to be able to supplement these submissions in any useful way.

15. It appears to this Court that the more appropriate role for the IHREC will be in regard to any appeal to the Court of Appeal,

subject to their not being any settlement of this matter.

16. In these circumstances the Court is refusing the application of IHREC to appear as amicus curiae in these proceedings at this

time.

17. The Court further makes an order that the applicant’s submissions have to be in by the close of business on 21st December, 2016

and the submissions of the respondents have to be in by the 16th January, 2017.