In the matter of Article 40.4 of the Constitution; and in the matter of the Habeas Corpus Act 1782; and in the matter of the International Covenant on Civil and Political Rights.

Joseph Kavanagh (applicant) v the Governor of Mountjoy Prison, the Special Criminal Court, the Director of Public Prosecutions, the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General.

Judicial Review - Application for leave - Whether statute incompatible with International Covenant on Civil and Political Rights and with Constitution - Whether Convention incorporated into domestic law - Whether Convention conferred substantive rights justiciable in courts upon individuals - Special Criminal Court - Offences Against the State Act 1939 - International Covenant on Civil and Political Rights - Habeas Corpus Act 1782 - Bunreacht na h╔ireann 1937.

The High Court (Mr Justice Finnegan); judgment delivered June 29, 2001.

The views of the committee established under the International Covenant on Civil and Political Rights do not constitute a legally binding decision.

The judicial development of the common law must not be seen as a back door means of importing an unincorporated convention in conflict with the established common law rule that a convention, unless validly incorporated into domestic law, does not form part of the domestic law and, a further rule that public international law does not confer substantive rights justiciable in the courts of High Court jurisdiction upon individuals. A fortiori, the development of the common law must not be used as a device to circumvent the provisions of Articles 29.6 and 15.2.1 of the Constitution.

Mr Justice Finnegan so held in refusing leave to seek judicial review.

Michael Forde SC and Richard Humphreys BL for the applicant.

Mr Justice Finnegan said that this was an application for leave to apply for judicial review which, pursuant to his direction, was on notice. The applicant had been charged with seven offences, one of which was scheduled offence under the Offences Against the State Act 1939 ("the Act"). Pursuant to section 47(1) of that Act, the Director of Public Prosecutions directed that the applicant's trial on the scheduled offence should be before the Special Criminal Court. In respect of the non scheduled offences, the DPP certified his opinion pursuant to section 47(2) of the Act, as to the inadequacy of the ordinary courts to secure the effective administration of justice and the preservation of public peace and order. This resulted in the applicant being charged before the Special Criminal Court with all seven offences. The applicant had unsuccessfully applied for judicial review challenging the said certificate (Joseph Kavanagh v The Government of Ireland and Others 1 IR 321). Thereafter the applicant was convicted and sentenced. The applicant had appealed to the Court of Criminal Appeal against the Special Criminal Courts refusal of leave to appeal and that application was dismissed in May 1999.

Shortly before the commencement of his trial before the Special Criminal Court the applicant had submitted a communication to the Human Rights Committee ("the Committee") established under the International Covenant on Civil and Political Rights claiming violation of certain Articles of the Covenant. The communication was concerned with the operation in his case of the section 47(2) of the Act. Ultimately the committee communicated its views to the applicant and to Ireland which had been adopted in April 2001 and, the relevant portion was contained in paragraph 10.3 of that communication:

"The Committee considers that the State party has failed to demonstrate that the decision to try the Author before the Special Criminal Court was based upon reasonable and objective grounds. Accordingly, the Committee concludes that the Author's right under Article 26 to equality before the law and to equal protection of the law has been violated."

Arising out of the views of the Committee, the applicant was now seeking leave to apply for, inter alia, an order of certiorari quashing his conviction by the Special Criminal Court and a declaration that section 47(2) of the Act (as construed by the Supreme Court) was incompatible with the United Nations Covenant on Civil and Political Rights and was accordingly repugnant to the Constitution.

Mr Justice Finnegan refused the applicant's application made during the hearing of the case for leave to apply for judicial review for the reliefs sought insofar as it was sought to rely upon the direction under section 47(1).

Mr Justice Finnegan said that Ireland was a party to the International Covenant on Civil and Political Rights. By the Covenant each State Party undertook to respect and to ensure to all individuals within its territory and subject to its jurisdiction, the rights recognised in the Covenant.

Ireland had also signed the Optional Protocol which enabled the Human Rights Committee established by the Covenant to receive and consider communications from individuals claiming that they were victims of a violation by a State Party of any of the rights set forth in the Covenant. Neither the Covenant nor the Optional Protocol contained any provision for the enforcement of the solution contained in a report of the Committee on a communication by a State Party, a report of the conciliation Committee on a communication by a State party or the views of the Committee on a communication under the Optional Protocol by an individual, all of which, Mr Justice Finnegan said, appeared to depend for their effect on their moral authority. However, Article 2.2 and 2.3 of the Covenant provided for the adopting of such legislative measures as may be necessary to give effect to the rights recognised in the Covenant and provided that each State party to the Covenant undertook to ensure that any person whose rights or freedoms as herein recognised were violated shall have an effective remedy.

Mr Justice Finnegan said he accepted that the "views" of the Committee did not constitute a legally binding decision as regards the State Party concerned, and referred to Dominic McGoldrick's work, The Human Rights Committee. As to the undertaking by States Parties to the Optional Protocol to provide an effective and enforceable remedy in case of a violation, he said that it appeared that the Committee regarded itself as having a supervisory role. Thus, in communicating its views on the applicant's communication, the committee dealt stated that it wished to receive information from the Government of Ireland about the measures taken to give effect of the committee's views and that the State Party was requested also to give wide publicity to the committee's views. Mr Justice Finnegan said that the committee considered that its role came to an end with the communication of views although it took an interest in any action by the State Party as a consequence.

The applicant submitted that the Covenant was part of customary international law and so part of the Common Law and justiciable at the suit of the plaintiff. Mr Justice Finnegan said that the Covenant had not been incorporated in to domestic law by statute and, accordingly, Article 29.6 of the Constitution applied. Mr Justice Finnegan said he was satisfied, that Article 29 had as its subject the relations between states only and, accepting the proposition that the Covenant in its entirety was part of Irish domestic law for the purposes of this application, could not affect the rights of individuals. This proposition applied equally to international law whether created by treaty or by convention or the source of which is customary international law and that in this regard he was bound by the decision of Re O'Laighleis IR 93 and would follow the case of Act Shipping (PTE) Ltd v Minister or the Marine and Others 3 IR 407. Mr Justice Finnegan said that Article 29.1 and 29.3 referred only to relations between states and conferred no rights on individuals. The same must be true of Article 29.2. Mr Justice Finnegan added that the committee was not a court under the constitution and, without a constitutional amendment, could not affect the administration of justice in the courts established under the Constitution.

The second submission advanced by the applicant was that the State by its adherence to the Covenant had undertaken pursuant to Article 2.3 thereof to provide an effective remedy to individuals whose Covenant rights have been violated. The views of the committee that the applicant's Covenant rights had been violated was a binding judicial determination to that effect and an order of mandamus should therefore issue from the court to compel the state to provide an effective remedy.

Mr Justice Finnegan said that this submission must fail for the same reasons as the first. Even if the Covenant was part of Irish domestic law, the subject of international law was the State and not the individual. Thirdly, the applicant submitted, that by ratifying the Covenant and Optional Protocol the State had created a legitimate expectation that its executive and judicial branches would adhere to the Covenant's requirements and that where the committee communicated in its views a finding of a violation of a Covenant right the State would promptly take steps to enforce the right which has been violated.

The applicant relied upon an Australian case of Minister of State for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273. Mr Justice Finnegan said that from that judgment it was clear that in Australian law an international treaty to which Australia was a party did not form part of Australian law unless those provisions had been validly incorporated into municipal law by statute. The position therefore would appear to correspond with that in the United Kingdom at common law pursuant to Thakrar v Secretary of State for the Home Department 2 All ER 261. Specifically, he said, the Australian courts were not constrained by any provision corresponding to the Irish Constitution Article 29.6.

Mr Justice Finnegan referred to the decision of Mr Justice McCracken in Abrahamson v Law Society of Ireland 1 IR 403, and to the relevant principles therein as reflecting the established law on legitimate expectation. Firstly, it was now well established in our law that the courts would, as a general rule, strive to protect the interest of persons or bodies who have a legitimate expectation that a public body would act in a certain way. Secondly, in protecting those interests the courts would ensure that where the expectation related to a procedural matter the expected procedures would be followed.

Mr Justice Finnegan said that the Teoh case related to a procedural matter and the judgments examined the place of a specific convention in Australian law having regard to the common law rule as to conventions which had not been incorporated in to municipal law and legitimate expectations. Mr Justice Finnegan said that he was satisfied that that decision was of no benefit to the applicant here.

Firstly, the applicant here was not concerned with procedural fairness but rather was seeking from the courts substantive protection for the Covenant right which he claimed, that right having its origin in a convention which is not part of Irish domestic law. Secondly, and more fundamentally there could be no legitimate expectation of a substantive right which would conflict with the statute law of the State or the Constitution or with the well established principles of the common law. Mr Justice Finnegan said he was satisfied that the right claimed was in conflict with the Constitution Article 29.6 and with the common law as declared in Thakrar v Secretary of State for the Home Department. He furthermore endorsed the views of the judges in the Teoh case to the effect that the judicial development of the common law must not be seen as a back door means of importing an unincorporated convention in conflict with the established common law rule that a convention unless validly incorporated into domestic law does not form part of the domestic law and a further rule that public international law does not confer substantive rights justiciable in the courts of this jurisdiction upon individuals. A fortiori, he stated, the development of the common law must not be used as a device to circumvent the provisions of the Constitution Article 29.6 and 15.2.1.

Mr Justice Finnegan said that to accede to the first two submissions would require that the court disregard the decision of the Supreme Court in Re O'Laighleis. The third submission was not supported by a reading of the judgments in the Teoh case. In these circumstances, he said he was satisfied that the applicant had not satisfied the test of showing an arguable case laid down in G v DPP 1 IR 374.

Solicitors: Michael E. Hanahoe (Dublin) for the applicant; Chief State Solicitor for the respondents.

Gillian Reid Barrister