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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A. (G.) v. Minister for Justice, Equality and Law Reform & Ors [2002] IEHC 130 (16 October 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/130.html Cite as: [2002] IEHC 130 |
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JUDICIAL REVIEW
RECORD NO. 109JR/2001
Between
Applicant
Respondents
RULING OF MR. JUSTICE T.C. SMYTH DELIVERED ON WEDNESDAY, 16th OCTOBER 2002
This case came on for hearing on 1st May 2002. Judgment was delivered at the beginning of October 2002. At the conclusion of the judgment counsel requested an adjournment to consider the judgment and later address the Court. This was acceded to and the matter came before the Court on Monday, 14th October 2002.
Amongst the legal submissions made during the hearing of the case was that of the Applicant's concerning the provisions of paragraph 14 of the Hope Hanlon Procedures (which subsequently found statutory expressions in Section 12(4) of the Refugee Act 1996).These deal with "manifestly unfounded cases". In the course of the judgment I noted that:-
"A considerable period of time was spent considering the niceties of paragraph 14 of the Hope Hanlon Procedures. I did not find this of assistance in coming to a determination in that regard."
That reference, as the parties to the action, if not their counsel and solicitors must have known, related to the submissions made in that regard inasmuch as the Applicant's case was that it was not open to the interviewer to make a finding that a case was manifestly unfounded on an issue of
credibility. I took the view that the absolute position taken was (a) not sustainable (b) was not a necessary logical deduction if the unfoundedness rested in whole or part on such a degree of untruthfulness as could be considered as a fraudulent claim. However, an application can, and many cases have come before the Court where there are elements of truth and untruth, and I took the view that it is not for the Court to restrict the terms of the procedure by imposing rigidity of interpretation which is contra the tenor of the scheme as a whole. In this, as in several other cases, I considered whether the accelerated procedures were invoked to use or used to deprive the Applicant a right to a more fulsome form of appeal. I was satisfied that this form of possible abuse had not taken place but I saw no reason to refer to that either in my judgment.
As to the argument as Mr. O'Higgins put it in addressing the Court on 14th October 2002:-
"...if the initial application was wrong, well then the Applicant could establish that it could not be cured by an appeal officer not allowing an appeal, or alternatively it was said that if credibility couldn't be allowed couldn't be attuned in the first instance then it couldn't be attuned similarly on appeal."
Cases come before the Court where there has been no appeal by way of oral hearing, where (a) the appeal decision affirms completely the first instance decision, (b) the appeal decision reversed in total the first instance decision and effectively directed a substantive adjudication stipulating that a determination of manifestly unfounded was not open, and (c) modified the first instance decision by adding or subtracting a basis or ground for a decision of manifestly unfounded.(L 2001/286 is the case that readily comes to mind).
As most, if not all, of the cases in this area of law involve matters of law and of fact, almost invariably intertwined in law in my judgment in making a finding of manifestly unfounded under paragraph (a) or (c) one can, if the facts establish and warrant it, make a finding of a lack of credibility. I do not consider these observations add one whit to the judgment. I accept that it adds more words and uses more paper.
It is the entitlement of counsel to criticise a judgment. The criticism is that there was not a sufficiency of reasons given. True much of the judgment is referable to facts which, with all respects to those involved, were presented in utter confusion in the documentation. In this, as in several other cases, it is only when a clear chronological narrative of the facts is set out that one can come to understand why a particular decision came to be made. It is true that besides the legal submissions referable to the Hope Hanlon Procedures there were also submissions referable to decisions of the European Court of Human Rights.
(i) D. v. United Kingdom (1997) 24 EHRR 423
(ii) SSC v. Sweden (2000) 29 E.H.H.R. 245 which at 249 records:-
"According to established case law aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a controlling state in order to continue the benefit from medical, social or other forms of assistance provided by the expelling state."
(iii) Bensaid v. United Kingdom (2001) E.H.R.R. 10 at page 205.
The Court was also referred to a document entitled "Texts prepared within the Council of Europe - 8. Convention for the Protection of Human Rights and Fundamental Freedoms". I saw no reason to set out any consideration (though as the matter was canvassed I in fact did) of these matters in my judgment. I contented myself with the observations that the Convention was not part of the domestic law.
In his observations to the Court on 14th October, Mr. O'Higgins referred me to the case of O'Mahony v. DPP & Ballagh unreported Supreme Court 13th December 2001, where Murphy J. stated inter alia:-
"every Trial Judge hearing a case at first instance must give a ruling in such a fashion as indicates which arguments are accepted and rejected and, as far as practicable in the available time, the reasons for same."
This is not new or novel law and has been the subject of a number of decisions, the most recent of which is to be found in [2000] 1 WLR at 2409 to which I will refer in a moment.
In the course of his submissions to the Court Mr. O'Higgins referred to the case of Flannery v. Halifax Estate Agencies Limited [2000] 1 ALLER 373, Court of Appeal decision, which is also reported at [2001] 1 WLR at 377. In the course of the more recent case of the Court of Appeal in England presided over by Lord Phillips of Worth Matravers MR with Latham and Arden LJJ as the bench, delivered on 13th April of this year and reported on 13th September 2002, i.e. at the beginning of September before the judgment in this and many of the other cases delivered at the beginning of October were written, the opening of the decision of the Court as handed down by the Master of the Rolls is as follows:
"1.Introduction
In Flannery v. Halifax Estate Agencies Ltd (trading as Colleys Professional Services) [2000] 1 WLR 377 this Court allowed an appeal on the sole ground that the judge had failed to give adequate reasons for his decision. This was despite the fact that his judgment was 29 pages in length. The trial had involved a stark conflict of expert evidence. The Judge preferred the expert evidence of the defendants to that of the plaintiffs, without explaining why. This Court ordered a retrial.
2.Flannery's case has inspired a large number of applications for permission to appeal on the grounds of inadequate reasons. In granting permission to appeal in one of the appeals before us, Sedley LJ remarked that they were becoming a cottage industry. It is an industry which is an unwelcome feature of English justice. The rights of appeal that are afforded under Statute reflect the fact that no judge is infallible. It should be, however, possible to deduce from a judgment the reason for the judge's decision. Happily the rash of applications for permission to appeal based on the decision in Flannery's case does not reflect a widespread inability or disinclination on the part of the judiciary to explain the basis for their decisions. Rather it reflects uncertainty on the part of litigants and judges alike as the extent to which a judgment should detail the chain of reasoning which led to the order made by the judge."
In the course of the headnote appearing at page of the report in the Weekly Law Reports it is noted as follows per curiam
(i) When considering the extent to which reasons should be given it is necessary to have regard to the practicable requirements of the appellate system. A judge cannot be said to have done his duty if it is only after permission to appeal has been given and the appeal has run its course the Court is able to conclude the reasons for the decisions are sufficiently apparent to enable the appeal court to uphold the judgement. Since permission to appeal is now a nearly universal prerequisite to bringing an appeal and will not normally be given unless the applicant can make out an arguable case that the judge was wrong, it may well be impossible within the summary procedure of an application for permission to appeal to form any view as to whether the judge was right or wrong if the judgment does not make it clear as to why he has reached his decision. In that event permission to appeal may be given simply because justice requires that the decision be subjected to the full scrutiny of an appeal. (Post, para 18)
(ii)If an application for permission to appeal on the ground of lack of reasons is made to the Trial Judge, the judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose if necessary. If he concludes that it is, he should set out to remedy the defect by providing additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the court that the application is well founded, it should consider adjourning the application and remitting the case to the Trial Judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing, on notice to the respondent. (Post, para 25)."
In the course of the deliberation of reviewing the cases by the Court of Appeal, which went back as far as the case of Knight v. Clifton reported [1971] Ch. 700, the decision in Flannery's case was considered. It seems to me that the appropriate quotation from that case is to be found in the judgment of Henry LJ., when he stated as follows:-
"(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is a especially so since without reasons the losing party will not know (as was said in Ex p Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not."
In concluding the decision in the Court of Appeal there is a postscript to the judgment in English -v- Emery Reimbold the relevant section and portion of which has already been referred to and
adopted by me in the case of Akipotor, which was delivered 4th October, and is to the following effect, I am now quoting page 2434 from English v. Emery Reimbold case:-
"There are two lessons to be drawn from these appeals. The first is that, while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the judge to produce a judgment that gives a clear explanation for his or her order. The second is that an unsuccessful party should not seek to upset a judgment on the ground of inadequacy of reasons unless, despite the advantage of considering the judgment with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the judge has reached an adverse decision."
As I have already stated in my note on this ruling, what I have stated seems to me (a) a matter of common sense (b) is to be found in decisions if not all in writing some of which regretfully had to be given in terms of oral judgments, and the determination of applications before the Court, and while I do not consider they add one whit to the judgment I feel nonetheless as a result Mr. O'Higgins request I should re-visit the matter.
