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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Breathnach v. Government of Ireland [2000] IEHC 53; [2000] 3 IR 467 (23rd June, 2000)
URL: http://www.bailii.org/ie/cases/IEHC/2000/53.html
Cite as: [2000] IEHC 53, [2000] 3 IR 467

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Breathnach v. Government of Ireland [2000] IEHC 53; [2000] 3 IR 467 (23rd June, 2000)

THE HIGH COURT
1999 No 1127 S.S.
BETWEEN
STIOFAN BREATHNACH
APPLICANT
AND
THE GOVERNMENT OF IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

JUDGMENT of Mr. Justice Quirke delivered the 23rd day of June 2000.

1. The Applicant is a citizen of this State who is in lawful detention within Wheatfield Prison which in turn is a lawful place of detention within the State.

2. The first named Respondent is the Government of Ireland and the second named Respondent is the Law Officer of the State. The Applicant, as a matter of law, is entitled to commence proceedings against the State and against the Law Officer of the State and whilst it might be useful to identify the Government of the State with greater particularity it has not been contended on behalf of the State or on behalf of the Law Officer of the State that the Applicant is not entitled to bring proceedings seeking relief against the Government of the State and, when it is appropriate, to obtain such relief.

3. By Order of the High Courts, (Barr J.) dated the 9th day of July, 1999 the Applicant was given liberty to seek declaratory relief against the first named Respondent (hereafter referred to as the Government) in the form of a declaration that the failure on the part of the Government to provide for the Applicant, as a citizen of the State amongst the prison population, the necessary machinery to enable him to exercise his franchise to vote comprises a failure which unfairly discriminates against him and (a) fails to vindicate the right conferred upon him by Article 40.1 of the Constitution of Ireland to be held equal before the law and; (b) fails to vindicate the right conferred upon him by Article 14 of the European Convention on Human Rights to vote in national and local elections without discrimination by reason of his status.

4. By a Ruling of the High Court (Barr J.) made on the said 9th day of July, 1999 the Applicant was given liberty to seek relief by way of Judicial Review comprising an Order of Mandamus directing the Respondents to provide appropriate legislative machinery to enable the Applicant and others who are in lawful detention within the State and who are capable of voting, to exercise their right to vote at both national and local elections and in national referendums


THE FACTS

5. On or about the 9th day of November, 1993, the Applicant was lawfully convicted by the Special Criminal Court of certain criminal offences and was sentenced to various terms of imprisonment including two terms of 10 years' imprisonment each and one term of 15 years' imprisonment and the Applicant is currently serving those terms of imprisonment and is in detention on foot of lawful warrants relating to those and other criminal offences of which the Applicant has been convicted.

6. In an affidavit grounding these proceedings and prepared on his own behalf the Applicant states that he is registered to vote in his home constituency in the Dublin 4 area and wishes to exercise his right to vote. He states that he does not object to his registration as a voter in an area other than in his constituency and whilst his affidavit does not contain express averments that he has made application to the prison authorities seeking permission to exercise his right to vote and has been refused, it has not been denied by or on behalf of the Respondents that the Applicant wishes to exercise his right to vote and it has been expressly acknowledged by and on behalf of the Respondents that the Applicant has, throughout the duration of his detention by the State been unable to exercise his right to vote at local or national elections and referendums. It is further acknowledged by and on behalf of the State that the Respondents do not intend within the foreseeable future to permit the Applicant or any other citizen amongst the prison population to vote in either local or national elections or referendums and the Respondents have no plans to put in place arrangements which would enable the Applicant and other citizens within the prison population to exercise their right to vote in such elections and referendums.

7. The State has given effect to the provisions of the Electoral Act, 1992 and in particular Sections 11, 12, 14, and 17 and Part XIII thereof so that effective arrangements have been made to enable certain citizens who are prescribed by law to vote in local and national elections and in referendums by way of a postal ballot.


THE LAW

8. Article 16.1 of the Constitution provides inter alia as follows;


"...2 (i) All citizens, and
(ii) such other persons in the State as may be determined by law, without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dail Eireann, shall have the right to vote at an election for members of Dail Eireann.
3. No law shall be enacted placing any citizen under disability or incapacity for membership of Dail Eireann on the ground of sex or disqualifying any citizen or other person from voting at an election for members of Dail Eireann on that ground."

9. The effect of this provision is to confer upon all citizens who have reached the age of eighteen years the right to vote at an election for members of Dail Eireann provided that they are not disqualified by law and that they comply with the provisions of the law relating to such elections.

10. The article expressly prohibits enactment of any law disqualifying any citizen from voting at such elections on the ground of sex . Accordingly the Constitution, by its terms, appears to contemplate the enactment by the Oireachtas of legislation whereby a citizen may be disqualified from voting in national elections on particular grounds other than sex . However no such disqualifying legislation has in fact been enacted by the Oireachtas between the date of the enactment of the Constitution and the date hereof and during that period the only legislative provisions which formerly had the effect of disqualifying citizens amongst the prison population from exercising their right to vote in parliamentary and other elections (Section 2 of the Forfeiture Act, 1870, Section 1(9) of the Electoral Act, 1923 and Section 6(3) of The Prevention of Electoral Abuses Act, 1923) have in fact been repealed by the Oireachtas. (see the Electoral Acts, 1992 and 1963 S.S. 3 and 5).


11. Accordingly citizens who are lawfully detained within the prison population enjoy a right which has been conferred upon them by the Constitution to vote at elections for membership of Dail Eireann and no legislation enacted by the Legislature is currently in force which purports to remove that right or to limit it in any way.

Section 8 of the Electoral Act, 1992 provides inter alia that;

"(1) A person shall be entitled to be registered as a Dail elector in a constituency if he has reached the age of 18 years and he was, on the qualifying date -
(a) a citizen of Ireland, and
(b) ordinarily resident in that constituency."

Section 11 of the Electoral Act, 1992 contains a number of general provisions in relation to the registration of electors and subsection (5) thereof (which, inter alia replaces a similar provision (Section 5(5) of the 1963 Act (as amended)) provides that for the purposes of registration as an elector:-
"Where on the qualifying date, a person is detained in any premises in legal custody, he shall be deemed for the purposes of this section to be ordinarily resident in the place where he would have been residing but for his having been so detained in legal custody."

12. The word "elector" for the purposes of S. 11 of the 1992 Act is defined as "a presidential elector, a Dail elector, a European elector or a local government elector".

13. Accordingly legislative provision has been expressly made by the Oireachtas for the registration as "electors" of citizens who are in lawful detention within the prison population of the State.

14. The Applicant claims that he has been and is prevented by the Respondents from exercising a right which has been conferred upon him by the Constitution and which has been recognised and acknowledged by Statute.

15. The Respondents acknowledge that a right has been conferred upon the Applicant by Article 16 of the Constitution to vote at national elections but argue that the exercise of that right can be limited and is lawfully limited when a citizen is physically unable to exercise that right by reason of his detention within lawful custody upon conviction of a criminal or other offence.

16. It is also contended on behalf of the Respondents that the effect of Section 11(5) of the 1992 Act is to enable citizens who are in lawful detention within the prison population to exercise their right to vote in national elections during periods when they are temporarily released from detention by the prison authorities or otherwise.

17. Furthermore the Respondents rely upon the decision of the Supreme Court (O'Higgins C. J.) in Draper -v- The Attorney General [1984] I.R. 277, as authority for the proposition that a failure by the State to provide facilities to enable a citizen to vote at elections does not of itself amount to interference by the State in the exercise of the right to vote conferred by Article 16 of the Constitution and does not constitute a breach by the State of its obligations pursuant to Article 40 of the Constitution.




CONCLUSIONS

18. The issue for determination is whether the State is acting lawfully in preventing the Applicant from exercising his constitutional right to vote in elections or referendums.

19. It is well settled that when a convicted citizen is detained pursuant to a lawful warrant many of his normal constitutional rights are abrogated or suspended - see The State (McDonagh) -v- Frawley [1978] I.R.131.

20. However such citizens in lawful detention nonetheless retain their right "...of access to the Courts and...can complain of any interference with...constitutional rights which is not necessary in order to give effect to the sentence of the Court in the institution in which it must be served." - see the State (Fagan) -v- the Governor of Mountjoy Prison (unrep High Court (McMahon J.) 6th March, 1978).

In Marie Murray and Noel Murray -v- Ireland and the Attorney General [1991] I.L.R.M. 465 the Supreme Court (Finlay C.J.) expressed itself to be "...in complete agreement with..." the following principles of law set out by the High Court (Costello J.) in the same case;

"When the State lawfully exercises its power to deprive a citizen of his constitutional rights to liberty many consequences result, including the deprivation of liberty to exercise many other constitutionally protected rights, which prisoners must accept. Those rights which may be exercised by a prisoner are those.
(a) which do not depend on the continuance of his personal liberty (so a prisoner cannot exercise his constitutional right to earn a livelihood) or
(b) which are compatible with the reasonable requirements of the place in which he is imprisoned or, to put it another way, do not impose unreasonable demands on it."

21. The Court went on to endorse the finding of the High Court that it would place unreasonable demands on the prison service to require prison authorities to make facilities available within the confines of the prison to enable all prisoners who fell within the appropriate category to exercise their right to beget children.

22. It follows from the foregoing that if the Applicant's right to vote in national elections is a "constitutionally protected right" then it may be exercised by the Applicant provided that (a) it does not depend on the continuance of his personal liberty and (b) it does not impose unreasonable demands on the place where the Applicant is imprisoned which is Wheatfield Prison.

23. It is contended on behalf of the Applicant that the exercise of the Applicant's right to vote in elections and referendums does not depend upon the continuance of his personal liberty because it will be possible both for the Applicant to exercise his right to vote in elections and referendums provided that the State provides him with the means to vote by way of postal ballot.

24. Furthermore it is contended that the exercise of the right by the Applicant to vote in such elections and referendums will not impose unreasonable demands upon the Wheatfield Prison authorities provided similarly that the Applicant is enabled to exercise his right by means of voting by way of a postal ballot.

Section 14 of the Electoral Act, 1992 provides for the entry of the names of certain citizens (including members of the Garda Siochana, members of the Defence Forces and members of diplomatic missions) within a postal voters list.
Section 17 of the Act of 1992 provides for the preparation of a special voters list for citizens who satisfy the registration authority that they are unable to vote by reason of physical illness or disability. Section 63 of the Electoral Act, 1997 makes provision for other categories of voters to vote by post.
Part XIII of the Electoral Act, 1992 makes detailed and express provision for various categories of citizens who are prescribed in the manner just outlined to vote by post in local and national elections and in referendums. Accordingly it has been possible for the State to accommodate the special requirements of a substantial number of citizens [including certain categories of citizens who, for one reason or another, are unable to attend personally] to vote in local and national elections and in referendums and it has been acknowledged by and on behalf of the Respondents that this accommodation has been achieved by the State without great administrative difficulty. It has not been argued on behalf of the Respondent that the extension of a system for postal voting to citizens who are lawfully detained within the prison population would impose undue administrative demands upon the State.

25. Accordingly it would appear prima facie that the exercise by the Applicant of his right to vote in local and national elections and in referendums may be possible without the imposition upon the Respondent of unreasonable demands.

26. However the authorities of Wheatfield Prison are not empowered to provide for the Applicant the means whereby he can exercise his right to vote so that the question which this Court must address is whether the failure on the part of the Respondents to provide for the Applicant a means of voting by post (or by some other convenient means) comprises a failure which unfairly discriminates against the Applicant having regard to the provisions of Article 40.1 of the Constitution and if it does so then what are the consequences of such a failure.

27. Article 40.1 of the Constitution provides as follows;


"All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function".

28. Although the second sentence of the Article suggests an application to the process of enacting laws this does not preclude the application of the Article to the process of applying existing legislative provisions.

29. I have not been made aware of any case in which the Courts have construed the provisions of Article 40.1 of the Constitution in the context of facts analogous to those in the instant case.

In Howard and others -v- The Commissioners of Public Works in Ireland [1993] I.L.R.M. 665 the Supreme Court (Denham J.) in holding that there is no presumption or special rule of interpretation which is applicable to the position of the executive in regard to legislation made the following observations (at 699);

"In arriving at this conclusion I also have regard to the concept of equality. On one hand this concept means that all citizens as human persons are equal before the law, though the State may, in its enactments, have due regard to the differences of capacity, physical and moral, and of social function. This right to equality is one of the personal rights of citizens.
In addition to recognising the right to equality of citizens the concept of equality includes the concept that, in the execution of their power the organs of government shall act with due regard to the concept of equality. Thus, while
accepting that there may be specific exceptions, in general, the position of a citizen, as a person, should not be lesser than a "person" in the form of a corporate body, of whatever status."

In McMahon -v- Leahy [1984] I.R. 525 the Supreme Court (O'Higgins C.J.) refused to permit the State to contest the claim of a prisoner that his escape from custody was the subject of a charge which was "political" in nature having regard to the fact that the State had not contested similar claims made earlier by other escapers charged with precisely the same offence in relation to the same incident.

30. He pointed out (at 537) that;


"... if the State succeeded, four citizens whose arrest had been sought by the Northern Ireland authorities, and who had been involved in the same escape as a fifth person would have been held by the Courts, in interpreting the law, to be politically exempt while that fifth person, in respect of whom no different considerations applied, would have been held not to be exempt. In such circumstances, could it be said that all these five citizens had been held equal before the law? This obligation to provide equal treatment for citizens of the State is ordained by Article 40 of the Constitution. It is the clear duty of the Courts to see that this obligation is discharged."

31. In his Judgment in the same case Henchy J. agreed (at p.542) in the following terms;


"Were the State to be allowed to defeat the Plaintiff's claim to the political exemption now, seven years after it conceded (in effect) that that exemption applied in four similar cases and after it has allowed the Plaintiff to live for that period on the assumption that the political exemption was his to claim for this offence, the Court would be giving countenance to an unfair, unconscionable and oppressive discrimination. In short, it would be acting in disregard of the Plaintiff's rights under Article 40.1 of the Constitution."

32. Whilst the facts of the "McMahon" case bear little resemblance to the facts of the instant case the obligation imposed by Article 40.1 of the Constitution upon the State to provide equal treatment for all of its citizens has been clearly recognised by the Courts as has the duty of the latter to see that this obligation is discharged.

33. Whilst the Applicant's right to vote in national and other elections is a limited and qualified right (see the Judgment of the High Court [Kenny J.] in Reynolds -v- Attorney General [Irish Times] 16th of February, 1973) it is nonetheless a constitutionally protected right. The State has, by its laws, vindicated the same limited but constitutionally protected rights of other categories of its citizens who for one reason or another are unable to attend at polling stations in order to vote in national and other elections. That vindication has been achieved by the enactment of laws providing postal voting facilities for such citizens.

34. It has been acknowledged by the State that the extension of a system for postal voting to citizens (such as the Applicant) who are lawfully detained within the prison population would not impose undue administrative demands upon the State but nonetheless no such legislative provisions have been enacted by or on behalf of the State.

35. The sanctions imposed upon the Applicant by the Special Criminal Court in respect of the offences in which he has been lawfully convicted comprised sentences of various terms of imprisonment. The loss of the Applicant's right to vote in national and other elections was not, at the time of his conviction, a sanction which was prescribed or permitted by law in respect of the offences of which the Applicant was convicted. Accordingly, the Applicant retains his constitutionally protected right to vote at "...an election for members of Dail Eireann" and his legally protected right to vote in Presidential, European and Local Government Elections. Furthermore he is entitled to exercise that right provided that his exercise does not impose unreasonable demands upon the authorities who are lawfully detaining him. It has been acknowledged that the authority which is lawfully detaining the Applicant is the State.

36. It follows from the foregoing that the failure on the part of the State to provide for the Applicant, as a citizen of the State amongst the prison population, the necessary machinery to enable him to exercise his franchise to vote comprises a failure on the part of the State to vindicate a right conferred upon the Applicant by Article 40.1 of the Constitution to be held equal before the law.

37. It follows further that the Applicant is entitled to a declaration in the foregoing terms or in terms similar thereto.

38. Certain questions arise out of these proceedings and the finding which I have just made including questions as to the nature and extent of the duty which rests upon the State to vindicate the Applicant's right to vote. In particular, questions arise as to the means by which the State should seek to vindicate that right and whether the duty rests upon the Executive of the State or upon the Legislature or upon both.

39. At the hearing of this application those questions were not addressed by either of the parties and no application was made to amend the title of the proceedings having regard to the principles, set out in Byrne -v- Ireland [1972)] I.R. 241 and other authorities.

40. In the circumstances I will entertain further submissions from Counsel for the parties on such questions. It is felt that submissions are appropriate and I will also entertain submissions as to the appropriate form of Order which is consequent upon my finding.

© 2000 Irish High Court

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