Supreme Court dismisses appeal for stay of criminal proceedings due to lack of arguable constitutional case.

THE SUPREME COURT

Appeal No. 475/2009

Denham C.J.

O’Donnell J.

Clarke J.

Between/

John Gerard Anthony Burke

Plaintiff/Appellant

and

Ireland and the Attorney General and Others

Defendants/Respondents

Judgment of the Court delivered on the 12th day of July, 2016 by Denham C.J.

1. This is an appeal by John Gerard Anthony Burke, the plaintiff/appellant, referred to as “the appellant”, from the refusal by the High

Court (Hedigan J.) on the 9th October, 2009, to grant a stay on proceedings in the District Court.

2. In a note of the judgment the learned High Court judge stated:-

“I read through the papers submitted to me by the applicant in this matter, i.e. the plenary summons, the affidavit and

the notice of motion.

The plaintiff seemed to be seeking:-

(1) An order staying the proceedings against himself in the District Court whilst he challenges their constitutionality

in the High Court. He claims the Acts under which he is being prosecuted are not properly Irish law. His reasons for

this are a mixture of complaints about the Lisbon II Referendum and generally European law or regulations holding

primacy over Irish law.

He wanted his action heard today. The State objected to going on today as it is present here on very short notice.

I refused to stay the proceedings today and refused to hear the action today. I advised him to clarify in his plenary

summons exactly what he was looking for as it was very difficult to ascertain this.

(2) Some form of order protecting him against the order of Hamilton D.J. directing he receive psychiatric care while

in prison as opposed to psychiatric assessment. He considered this to be a threat to his life. I considered the above

order did not constitute any threat to his life as he claimed and might indeed have been of assistance to him and

therefore I made no order in this regard either …

In the result, the only order I made was one reserving the costs of this application to be costs in the action.”

3. The appellant has appealed this decision.

4. The only issue before the Court on this appeal is whether the learned High Court judge was correct in refusing a stay.

5. The appellant also brought a motion to adduce additional evidence. The appellant grounds this motion by way of an affidavit sworn

by him on the 8th April, 2016. He deposes that the proceedings are as far on today as they were twelve years ago, that there has

been no conviction for cruelty to any animals. He still seeks a stay or injunction. To explain matters further he enclosed some

affidavits and exhibits.

6. On behalf of the defendants/respondents, referred to as “the State”, an affidavit was filed by Paul Fitzpatrick, State Solicitor for

County Tipperary (S.R.). As the appellant objected to this affidavit, the Court did not consider it.

7. The Court has considered the documents filed on behalf of the appellant. In addition, the Court has considered the oral submissions

made by the appellant and those made on behalf of the State.

8. In this case the appellant sought a stay on criminal prosecutions. A stay on a criminal prosecution is a matter which the Court

treats very seriously. It is a fundamental requirement that there be an arguable case in such circumstances. It would be wrong to

restrain a criminal prosecution on the basis of an assertion as to unconstitutionality of a statute or European Regulation. A bare

assertion of unconstitutionality is insufficient to ground such an application. It is necessary to establish a significant argument as to a

basis for such an order, which the appellant failed to do. In the circumstances of this case, it would have been improper to stay a

criminal trial.

9. Consequently, the Court is satisfied that there was no error by the learned High Court Judge, and it would dismiss the appeal.