170-2017 AFL.pdf 170-17 RspndtNotcs.pdf
THE SUPREME COURT
THE GOVERNOR OF MOUNTJOY PRISON, THE MINISTER FOR JUSTICE EQUALITY AND
DEFENCE, THE IRISH PRISON SERVICE
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES
RESULT: The Court grants leave to the Plaintiff / Applicant to appeal to this Court directly from the High Court.
|ORDER SOUGHT TO BE APPEALED|
|COURT: High Court|
|DATE OF JUDGMENT OR RULING: Written judgment of 13th September 2017; Ex Tempore judgment of 16th November 2017|
|DATE OF ORDER: 16th November 2017|
|DATE OF PERFECTION OF ORDER: 23rd November 2017|
|THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 21st DECEMBER 2017 AND WAS IN TIME.|
1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v. Director of Public Prosecutions  IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v. Quinn Insurance Ltd. (Under Administration)  IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v. Director of Public Prosecutions  IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
2. Furthermore the application for leave filed and the respondent’s notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.
3. In that context it should be noted that the respondent does not oppose the grant of leave.
4. Finally, it should be noted that the Court directed an oral hearing in relation to this application, which took place on the 20th June 2018.
5. As can be seen from the respondents’ notice filed on behalf of the State defendants, there was no opposition to the grant of leapfrog leave in the circumstances of this case. However, the Court was concerned to ensure that the undoubtedly important issues which potentially arise in this case could properly be dealt with by this Court without an intermediate appeal to the Court of Appeal. It was for that reason that an oral hearing was directed.
6. The Court would wish to emphasise that where there is a real contest on the facts, such that the Court is likely to be called on to determine whether findings of fact by the High Court were sustainable on the basis of the evidence tendered, it will ordinarily not be appropriate to allow leapfrog leave. Rather, the proper course would be to permit the Court of Appeal to consider whether the facts as found by the High Court are sustainable, and only then should this Court determine whether the issues which might remain in controversy meet the constitutional threshold.
7. However, at the oral hearing, counsel for the applicant (“Mr. Simpson”) made clear that the findings of fact made by the trial judge were accepted for the purposes of any appeal, so that the issues which would arise on an appeal, whether to the Court of Appeal or to this Court, would be as to the legal consequences arising from those facts.
8. This Court has also indicated in a number of recent determinations that an appropriate practice to be adopted in at least many cases may be for the Court to indicate the general issue or issues which appear to it to meet the constitutional threshold for leave to appeal, but to entrust the task of deciding the precise questions which arise in the context of those general issues and the proceedings generally, and the task of refinement of those questions, to the case management judge.
9. It seems to this Court that the following general issues which potentially arise in this case do meet the broad constitutional threshold. First, there is the question of the overarching principle by reference to which it must be determined that treatment of a prisoner can be regarded as inhuman and degrading. In that context, other issues potentially arise as to the extent to which, in reaching an overall assessment as to whether treatment has been inhuman and degrading, the Court can take into account the circumstances pertaining to the relevant prisoner’s detention. Undoubtedly, any final assessment as to whether the existence of inhuman and degrading treatment has been established in a particular case will necessarily be somewhat fact specific. However, the Court is satisfied that a broad issue, of more general application, clearly arises as to the factors which can and should be taken into account in reaching an assessment as to whether such treatment has been established.
10. Furthermore, the Court is satisfied that an issue of general public importance arises as to the proper approach to be adopted in weighing both positive and negative factors in reaching such an overall assessment.
11. Next, the Court is satisfied that there is an issue of general importance arising concerning the circumstances, if any, in which it may be appropriate for a court to decline to award damages notwithstanding a finding that there has been a breach of constitutional rights. In that context, it must be recalled that the trial judge found that there had been a breach of Mr. Simpson’s right to privacy and personal dignity. The State defendants do not intend to cross appeal against that finding. However, for reasons set out in the judgment of the trial judge, it was determined that it was inappropriate to award damages in all the circumstances of this case. An important legal issue therefore clearly arises on the facts of this case which meets the constitutional threshold. There may well be a subsidiary question under this heading as to whether, by analogy with the law which applies in respect of personal injuries, it may be necessary to establish an actual psychological or psychiatric condition before damages can be awarded.
12. The Court is, therefore, satisfied that the issues identified in this determination amount to matters of general public importance meeting the constitutional threshold.
13. On the question of whether it is appropriate to give leave to bring a leapfrog appeal, it should be noted that the Court was informed by the parties that in excess of 1,600 cases involving contentions, which are at least broadly in the same category as those which arise in these proceedings, have been intimated to the State defendants, with proceedings commenced in approximately 1,000 cases. While it was quite properly acknowledged by counsel on both sides that any decision in this case would not bind all of the other cases, the Court was informed that the current view of the judge in charge of the relevant High Court list was that he would not list any other cases for hearing until such time as any appellate process in this case had completed. It was acknowledged, of course, that that situation might change in the event that a lengthy period of time were to elapse before this case concluded. However, it is entirely understandable that the High Court would not wish to waste resources in trying cases where the basis on which the case was tried might turn out to be inaccurate in some respect in the light of the final determination of relevant legal principles which might result from this case.
14. A factor such as that is clearly identified in Wansboro as a matter which may bear significant weight in the assessment of whether leapfrog leave is appropriate, not least in a case where the issues are unlikely to be significantly refined as a result of an intermediate appeal to the Court of Appeal. Given that the Court has now been assured that no issues of primary fact would arise on any appeal then it is likely that, in the words of some previous determinations, an appeal in this case may well “look the same” whether it comes directly from the High Court or through an intermediate appeal to the Court of Appeal. In such circumstances, the Court is of the view that there is considerable merit in assisting the High Court by ensuring that there is the earliest possible definitive determination of the broad principles to be applied in the resolution of cases such as this.
15. The Court will, therefore, grant leapfrog leave to pursue an appeal within the broad parameters of the issues of importance referred to above. Clearly, any question of costs can also be pursued given that the case is going to come to this Court on appeal in any event.
16. However, the Court will vary the statutory practice direction by requiring that in advance of the first case management hearing the parties should, rather than file written submissions, attempt to agree a list of the issues, within the broad ambit of the issues identified in this determination, which will arise on the appeal and also to agree the facts relevant to those issues which were found by the trial judge or can be taken as having been agreed or not contested before the High Court. It is desirable that documents recording both of those matters, which meet with the full agreement of both parties, should be filed. However, in the event that it is not possible to agree the entirety of such document or documents then a document should nonetheless be filed setting out the matters which are agreed and setting out the position of the parties in respect of any relevant matters which can not be agreed (the Court strongly recommending that such matters of disagreement be kept to the absolute minimum if at all possible). Thereafter, the case management judge will define the issues in the light of the position of the parties and will give further directions for the filing of submissions and all other matters which may require to be dealt with in order for the appeal to be made ready for hearing.
17. The Court will, therefore, direct that a Notice of Intention to Proceed must be filed within 7 days and will further direct that the documents identified in the preceding paragraph should be filed not later than Wednesday July 18th with a view to a first case management hearing taking place before the end of term.
And it is hereby so ordered accordingly.