Constitutional - Personal Rights

Front 1

Rights expressed in Art 40.3.2 -
Right to Life

Back 1

Not considered on many occasions, but invoked in support of other arguments: McGee v AG, DPP v Delaney

Right to die / refuse medical treatment?

Re Ward of Court: limited right to die existed

ECHR Pretty v UK: Art 2 right to life could not be interpreted to give right to die. Blanket nature of ban on assisted suicide was proportionate

Front 2

Re Ward of Court

Back 2

Limited right to die existed

Front 3

Pretty v UK

Back 3

ECHR: Art 2 right to life could not be interpreted to give right to die. Blanket nature of ban on assisted suicide was proportionate

Front 4

Re Ward of Court (No.2)

Back 4

Right to life included right of individual to refuse medical treatment.

Front 5

Fitzpatrick & Ryan v FK

Back 5

FACTS: Ms K refused blood transfusion. Master of hospital obtained ex parte order authorising hospital to carry out transfusion. What about her wishes?

HELD: not possible to be certain patient understood decision. Hospital acted lawfully.

Front 6

Rights expressed in Art 40.3.2 -
Rights to One's Good Name

Back 6

Person entitled to be furnished with evidence reflecting on good name, be allowed cross-examine and to address tribunal

Goodman International v Hamilton: Supreme Court would not assume that Tribunal would trammel on applicant’s good name

Maguire v Ardagh: Oireachtas did not have power to establish and hold inquiry that would make findings capable of being adverse to person’s good name

Front 7

Re Haughey

Back 7

Person entitled to be furnished with evidence reflecting on good name, be allowed cross-examine and to address tribunal

Front 8

Goodman International v Hamilton

Back 8

Supreme Court would not assume that Tribunal would trammel on applicant’s good name

Front 9

Maguire v Ardagh

Back 9

Oireachtas did not have power to establish and hold inquiry that would make findings capable of being adverse to person’s good name

Front 10

Un-enumerated Rights -
Access to the Courts

Back 10

Macauley v Minister for Posts and Telegraphs [1966]

FACTS: Section 2(1) Ministers and Secretaries Act 1924: fiat of AG needed before you could argue that legislation was unconstitutional

HELD: Deemed to be unconstitutional. Court linked Article 40.3.2: (The personal right to litigate) with Article 34.3.1 (giving full original jurisdiction to the High Court)

The personal rights in Articles 40-44 would be meaningless if they could not be litigated

But is it a personal or a property right?

Macauley seems to suggest it is a personal right

O’Brien v Keogh [1972] and O’Brien v Manufacturing Engineering Co [1973] and Brady v Donegal Co. Co. [1989]: - it is a Property Right

Moynihan v Greensmith: it is not a Property Right

Good example of how the origin of an Unenumerated right can subjectively be decided

Front 11

Macauley v Minister for Posts and Telegraphs [1966]

Back 11

FACTS: Section 2(1) Ministers and Secretaries Act 1924: fiat of AG needed before you could argue that legislation was unconstitutional

HELD: Deemed to be unconstitutional. Court linked Article 40.3.2: (The personal right to litigate) with Article 34.3.1 (giving full original jurisdiction to the High Court)

The personal rights in Articles 40-44 would be meaningless if they could not be litigated

Front 12

Right of Access -v- Right to Litigate

Back 12

Tuohy v Courtney [1994]

FACTS: Was a 6 year Limitation period unconstitutional?

HELD: Supreme Court said that the right to litigate was different to the right of access to the Courts

Right to litigate is simply the right to achieve the appropriate remedy by action in the Courts upon proof of an actionable wrong.

Court also said that definition of right to litigate as personal or property right was unimportant

STATUTE OF LIMITATIONS

SOL 1957, ensures proper administration of Justice, and fair trial (delay/evidence/missing witnesses) – although these should be determined on a case-by-case basis rather than assuming that the passage of time automatically prejudices the Defence

A balance must be struck between the right to litigate and the proper administration of justice: Tuohy v Courtney and White v Dublin Co. Co. [2004]

1991 SOL Amended to allow general discoverability rule in P.I. Cases

Front 13

Tuohy v Courtney [1994]

Back 13

FACTS: Was a 6 year Limitation period unconstitutional?

HELD: Supreme Court said that the right to litigate was different to the right of access to the Courts

Right to litigate is simply the right to achieve the appropriate remedy by action in the Courts upon proof of an actionable wrong.

Court also said that definition of right to litigate as personal or property right was unimportant

FACTS: Section 11(2)(b) 1957 and Section 3(2)(a) SOL Amendment 1991: 6 years cause of action limitation. Solicitor allegedly made a negligent land transaction which came to light well after the 6 year limitation period
-HELD: Was the legislation “so contrary to reason and fairness” as to constitute an unfair attack on one’s constitutional rights?

Front 14

Morgan v Park Developments [1983]

Back 14

FACTS: House was structurally damaged, and the putative plaintiff could not reasonably have known about the flaw at the time the flaw occurred.
-HELD: Right of access will not be blocked where a cause of action was not “discoverable” until after the date of act causing the harm.

Front 15

Hegarty v O’Loughran [1990]

Back 15

FACTS: S 11(2)(b) SOL 1957 – 3 years limitation for Personal Injury from date of Cause of Action. Surgery in 1973. Deterioration in 1976. Proceedings in 1982.

Supreme Court : relevant date was not the date upon which the harm was done. Rather, it was the date upon which a personal injury occurred – when the damage was complete. This date was 1976, and so the claim was statute-barred.

Front 16

White v Dublin Co. Co. [2004]

Back 16

FACTS: Council had not advertised that they had submitted a second planning application for a development near the Plaintiff’s house. The first application had been rejected. The second application was different to the first, and included an “overlook” over the Plaintiff’s property. They would have objected if they had known. But the time limit for objecting (2 months) had elapsed.

HELD: A 2 Month time period was deemed an unconstitutional infringement of the right to litigate.

Tuohy v Courtney was distinguished as being unique to that case, that legislation, and that longer limitation period. 2 months was, constitutionally, too short a time for the plaintiffs to litigate.

Front 17

Re A26 and Sections 5/10 of the Illegal Immigrants Bill 1999

Back 17

FACTS: Only 14 days to challenge a deportation by Judicial Review under Section 5, unless there was a “good and sufficient” reason to extend this time

HELD: Heaney proportionality test was not applied (i.e. – was there a less restrictive way of limiting deportation challenges). Tuohy proportionality test used. Thus the provision was proportionate.

Front 18

Legal Aid

Back 18

O’Shaughnessy v AG: court rejected argument that Criminal Justice (Legal Aid) Act 1962 was unconstitutional in not providing for civil legal aid

MC v Legal Aid Board: court held that State had no duty under the Constitution to provide legal aid for private dispute in civil law

Stevenson v Landy: right to legal aid in wardship proceedings, even though not criminal

Kirwan v Minister for Justice: applicant entitled to legal aid to assist in preparation of submissions required by Dept of Justice

McBrearty v Morris: applicant not entitled to have State pay for representation before Tribunal

O’Donoghoe v Legal Aid Board: failure of legal aid board to provide legal aid in timely fashion was violation of the plaintiff’s constitutional rights

Ancillary Aspects

Bula Ltd v Tara Mines: right to litigate entailed right to be given proper opportunity to prove one’s case

Fallon v An Bord Pleanala: in determining amount of security for costs, court should bear in mind access to courts and person should not be denied access

Fees & Law Libraries

Murphy v MJELR: reasonable fees are constitutional

MacGairbhith v AG: State not obliged to fund law library for the people

Front 19

O’Shaughnessy v AG

Back 19

Court rejected argument that Criminal Justice (Legal Aid) Act 1962 was unconstitutional in not providing for civil legal aid

Front 20

MC v Legal Aid Board

Back 20

Court held that State had no duty under the Constitution to provide legal aid for private dispute in civil law

Front 21

Stevenson v Landy

Back 21

Right to legal aid in wardship proceedings, even though not criminal

Front 22

Kirwan v Minister for Justice

Back 22

Applicant entitled to legal aid to assist in preparation of submissions required by Dept of Justice

Front 23

McBrearty v Morris

Back 23

Applicant not entitled to have State pay for representation before Tribunal

Front 24

O’Donoghoe v Legal Aid Board

Back 24

Failure of legal aid board to provide legal aid in timely fashion was violation of the plaintiff’s constitutional rights

Front 25

Bula Ltd v Tara Mines

Back 25

Right to litigate entailed right to be given proper opportunity to prove one’s case

Front 26

Fallon v An Bord Pleanala

Back 26

In determining amount of security for costs, court should bear in mind access to courts and person should not be denied access

Front 27

Murphy v MJELR

Back 27

Reasonable fees are constitutional

Front 28

MacGairbhith v AG

Back 28

State not obliged to fund law library for the people

Front 29

Blehein v Minister for Health
Blehein v Minister for Health & Children

Back 29

FACTS: S.260 Mental Treatment Act 1945: need leave to challenge detention under Act. Leave would not be grated save where substantial grounds for contending person against whom proceedings brought acted in bad faith / without reasonable care

HELD: unconstitutional barrier to access to courts

HELD: Supreme Court: the objective of the Act of 1945, as set out above, is legitimate. It is important. But it is not of sufficient importance to override the constitutional right of liberty and the constitutional right of access to the Courts, in the terms of the section, for the reasons given by the High Court.

The terms of the section do not pass a proportionality test, for while being rationally connected to the objective, it is arbitrary and hence unfair. It therefore does not impair the rights involved as little as possible, and so the effect on rights is not proportionate to the object to be achieved.

Front 30

Privacy

Back 30

McGee v AG: provisions of Criminal Law (Amendment) Act 1935 prohibiting importation of contraceptives held unconstitutional

Movement towards more general right?

Norris v AG

FACTS: challenge to S.61 OAPA 1861 re offence of buggery

HELD: Norris did not have standing to make claims re marital privacy. What about general privacy?

Right to respect for one’s private life guaranteed, so long as not carrying out private life in immoral way

Front 31

Norris v AG

Back 31

FACTS: challenge to S.61 OAPA 1861 re offence of buggery

HELD: Norris did not have standing to make claims re marital privacy. What about general privacy?

Right to respect for one’s private life guaranteed, so long as not carrying out private life in immoral way

Front 32

McGee v AG

Back 32

Provisions of Criminal Law (Amendment) Act 1935 prohibiting importation of contraceptives held unconstitutional

Front 33

Kennedy v Ireland

Back 33

FACTS: phone-tapping, authorised by Minister for Justice

HELD: right to privacy could be ‘justifiably’ restricted in the interests of the common good. But here, deliberate, conscious and unjustifiable

Front 34

IOT v B

Back 34

FACTS: argued right existed to know natural mother. What about mother’s right to privacy?

HELD: While applicants had right to identify natural mother, this was restricted by mother’s right to privacy and confidentiality

Front 35

Foy v Registrar for Births, Deaths & Marriages [2002]

Back 35

FACTS: Lydia Foy, post-operative male to female transsexual, sought an order from the High Court amending the recording of her gender on the register of births.

HELD: High Court refused her application. Birth register is a historical document, and didn’t mean anything in re privacy, dignity etc. Not unreasonable for State to have in place a system of registration which has entry as to ‘sex’

NOTE: Two days later, the European Court of Human Rights held, in the case of Goodwin v UK, that the British system for registration of births, which was almost identical to the Irish system in respect of transsexuals, contravened the ECHR by failing to respect the applicant’s rights to privacy and marriage.

Front 36

Foy v Registrar for Births, Deaths & Marriages [2007]

Back 36

HELD: The High Court granted a declaration that the system for registration of births in Ireland was incompatible with the ECHR. (The government set up an inter-departmental committee on the legal recognition of transsexuals in 2010.)

Front 37

People (DPP) v Kenny

Back 37

Close observation of those in custody is no violation of right to privacy

Front 38

Kane v Gov Mountjoy Prison

Back 38

Covert surveillance of a general type without justification is objectionable. But justified in particular circumstances of this case (terrorist offences etc)

Front 39

Devoy v Dublin Corporation

Back 39

Playing of tape recording of a conversation in court, which was recorded without knowledge, was compared to production of photographic evidence

Front 40

Atherton v DPP

Back 40

Video recording of neighbour did not breach right to privacy, in absence of trespass. A different view may have been taken if there was trespass

Front 41

Surveillance - ECHR

Back 41

(i) Private communications (incl those from office phones) are protected by Art 8

(ii) But, may be subject to state surveillance. Such surveillance should be left under supervisory control of judge, rather than being ad hoc (Klass v Germany)

(iii) Surveillance must be prescribed by law (Khan v UK, Copland v UK)

Front 42

Cogley & Ahearne v RTE (Leas Cross Nursing Home)

Back 42

FACTS: argument that documentary breached person’s right to privacy & good name

HELD: distinction drawn between

(i)right to privacy in re nature of information, where information completely private versus

(ii)Privacy not in re information, but in terms of method used to obtain info

-HELD:

(i)While the secret filming added to the credibility of the accusations, that did not mean it was justified

(ii)Legitimate public interest concerns were raised, which deserved significant weight to be attached

(iii)Damages would be an adequate remedy

- Therefore, refused injunction to prevent broadcast, but order granted preventing RTE from trespassing on Ahearne’s property

Front 43

Herrity v Associated Newspapers

Back 43

FACTS: damages claimed by plaintiff for breach of right to privacy, wrongful infliction of distress and breach of confidence (articles re relationship with priest)

HELD: S.98 Postal & Telecommunications Services Act 1983 (interception of telecommunications): State had legislated for exception to right of freedom of expression.

Publication was deliberate, conscious and unjustified breach of right to privacy (applied Kennedy)

NOTE: Dunne J notes that ‘the cases in which the right to privacy will prevail over the right to freedom of expression may be far and few between.’

Publication of material obtained unlawfully was one such exception.

Front 44

X v Flynn

Back 44

Right to privacy invoked in successful application for injunction to restrain journalists bothering a rape victim and publishing matters re her and family

Front 45

Hanahoe v Hussey

Back 45

Right to privacy covered leaking or publication of personal details in certain cases

Front 46

Haughey v Moriarty

Back 46

Right, in theory, covers matters under heading of ‘confidential’ information such as bank records

Front 47

Right to earn a livelihood

Back 47

Whether right is a personal right under Art 40.3.1 (Hand) or a property right (Cafolla) under 40.3.2 is unresolved

Murtagh Properties v Cleary: picket to prevent part-time waitresses being employed was a breach of Art 45.2.i: all men and women equally have a right to an adequate means of livelihood

Re Art 26 & the Employment Equality Bill 1996: right to carry on a business and earn a livelihood was part of general right to property

Therefore, appears Supreme Court view is that right is an aspect of property rights

Therefore for something unconstitutional to have arisen, need 3 circumstances:
(i)Type of conduct must be capable of being viewed under right to earn a livelihood
(ii)Must be an attack on that right
(iii)If there is an attach, the attack must be unjust

For attack on one’s rights, the activity that is restricted must be an activity which you would be free to perform as of right

Front 48

Murtagh Properties v Cleary

Back 48

Murtagh Properties v Cleary: picket to prevent part-time waitresses being employed was a breach of Art 45.2.i: all men and women equally have a right to an adequate means of livelihood

Front 49

Re Art 26 & the Employment Equality Bill 1996

Back 49

Re Art 26 & the Employment Equality Bill 1996: right to carry on a business and earn a livelihood was part of general right to property

Front 50

AG v Paperlink

Back 50

“all citizens have constitutional right to earn a living…. It is not an absolute one however, and it may be subject to legitimate legal restraints”

(WEAK RIGHT)
-FACTS: Paperlink sought to open a private competitor to An Post, but AG sought injunction based on Post Office Act 1908, which gave Minister for Posts & Telegraphs statutory monopoly. Defendants argued breached right to earn livelihood and was disproportionate

HELD: Act was not unconstitutional. Post Office Act was legitimate restraint on their right

Front 51

Greally v Minister for Education

Back 51

FACTS: recruitment of teachers in Catholic schools based on panel system & needed to have experience

HELD: right to earn livelihood not infringed. Right does not make you entitled to receive employment

Front 52

Casey v Minister for Arts

Back 52

FACTS: restrictions on freedom of person to land boats on Skellig Micheal to bring visitors

HELD: Casey had no ‘right’ to land visitors on island, therefore no right had been ‘attacked’.

Front 53

Landers v AG

Back 53

FACTS: plaintiff’s father and manager convicted under S.2 Prevention of Cruelty to Children Act 1904, as plaintiff singing in bars late at night.

HELD: Not unconstitutional as plaintiff could perform at other hours.

Front 54

Cafolla v O’Malley & AG [1985]

Back 54

FACTS: plaintiff was proprietor of amusement hall where he operated a number of slot-machines. Convicted in the District Court of exceeding the limits permitted by Gaming & Lotteries Act 1956. Argued infringed right to earn livelihood

HELD: even if the imposition of these restrictions on the operation of gaming had been proved to be such as to make it wholly unprofitable as part of the business of an amusement hall proprietor, such restrictions would not be an unjust attack on the plaintiff's property rights as they were so clearly imposed with due regard to the exigencies of the common good.

Front 55

Hand v Dublin Corporation

Back 55

FACTS: plaintiffs convicted under Casual Trading Act 1980 and thus were ineligible for license. Deprivation of right to earn livelihood

HELD: right to trade and earn livelihood is not unqualified and its open to Oireachtas to provide for strict control and regulation of casual trading in public places, having regard to common good.

Front 56

Shanley v Galway Corporation

Back 56

FACTS: decision by defendant corporation not to allow sale of pre-cooked foods in Eyre Square

HELD: decision made in interests of common good and did not constitute breach of right to earn livelihood

Front 57

Cox v Ireland

Back 57

FACTS: S.34 Offences Against State Act 1939: disqualified person convicted by Special Criminal Ct from holding any office or employment remunerated out of public monies for 7 years

HELD: State entitled to provide onerous and far-reaching penalties on persons convicted of crimes threatening such peace and order. BUT, S.34 was disproportionate, it was impermissibly wide and indiscriminate

Front 58

Re Art 26 & the Employment Equality Bill

Back 58

FACTS: two arguments:

(i)Anti age-discrimination measures robbed employers of freedom to choose people suitable for particular roles

(ii)Employers required to provide finance for integration of disabled persons into the workplace

HELD:

(i)Legislature entitled to enact measures to combat age-discrimination

(ii)Unjust attack on right to earn a livelihood qua property right

Front 59

Right to earn a livelihood - other issues

Back 59

Cause & effect

-Scally v Minister for Environment: to show infringement of right to earn livelihood, had to show actual impact as opposed to lost opportunity

Horizontal Effect

-Parsons v Kavanagh / Lovett v Gogan: infringements on right found in horizontal disputes

Front 60

Right to Travel

Back 60

Ryan v AG: “there are many personal rights of the citizen… which are not mentioned in Art 40 at all- the right to free movement within the State and the right to marry are examples of this. This also leads to the conclusion that the general guarantee extends to rights not specified in Art 40’

Front 61

State (M) v Minister for Foreign Affairs

Back 61

FACTS: application for passport for child of Irish mother and Nigerian father. Refused under Adoption Act 1952

HELD: the Act failed to defend and vindicate right of child to travel. Citizen has right to passport, subject to public order concerns.

Front 62

Lennon v Ganly

Back 62

FACTS: application for injunction to prevent IRFU from travelling to South Africa during apartheid era

HELD: defendants had constitutional right to travel, could only be restrained if sport unlawful.

Front 63

Natural & Constitutional Justice Rights

Back 63

Common Law Concept which, when fleshed out, results in a host of procedural rights: audi alterem partem, nemo judex in causa sua

Mc Donald v Bord na gCon: in terms of the Constitution, natural justice might be more appropriately termed ‘constitutional justice’

Re Haughey: general right to fair procedures exists under Art 40.3

Garvey v Ireland: government must act fairly in dismissing Garda Commissioner, must tell him reasons for proposed action and allow him opportunity to be heard.

Entitled to ‘natural justice’

Front 64

Mc Donald v Bord na gCon

Back 64

In terms of the Constitution, natural justice might be more appropriately termed ‘constitutional justice’

Front 65

Re Haughey

Back 65

General right to fair procedures exists under Art 40.3

Front 66

Garvey v Ireland

Back 66

Government must act fairly in dismissing Garda Commissioner, must tell him reasons for proposed action and allow him opportunity to be heard. Entitled to ‘natural justice’

Front 67

Variability of the Rights

Back 67

Mooney v An Post: rights of natural and constitutional justice ‘cannot be applied in a uniform fashion to every set of facts’

Flanagan v UCD: ‘procedures which might afford a sufficient protection to the person concerned in one case, might not be acceptable in a more serious case’

Front 68

Mooney v An Post

Back 68

Rights of natural and constitutional justice ‘cannot be applied in a uniform fashion to every set of facts’

Front 69

Flanagan v UCD

Back 69

‘procedures which might afford a sufficient protection to the person concerned in one case, might not be acceptable in a more serious case’

Front 70

Natural and Constitutional Justice Rights

Back 70

Elements of a Fair Hearing: Ryan v VIP Cooperative Society Ltd:

Notice and Reply: State (Healy) v Donoghoe

Re Haughey minimum set of fair procedure rights:

-Furnished with copy of evidence
-Allowed cross-examine
-Allowed give rebutting evidence
-Permitted to address committee in own defence;

Effective understanding: Tierney v An Post

Reasons for the Decision: Rajah v Royal College of Surgeons, International Fishing Vessels v Minister for Marine.

Representation: Flanagan v UCD

Front 71

Ryan v VIP Cooperative Society Ltd

Back 71

Applicant entitled to be furnished with names and address of complainants, and specific details of complaints

Front 72

State (Healy) v Donoghoe

Back 72

Individual must be inter alia informed of nature and substance of accusation, entitled to have matter tried in his presence by impartial and independent adjudicator, to test evidence, and make submissions

Front 73

Tierney v An Post

Back 73

Decision maker cannot found decision on matters shielded from the person whom the decision concerns

Front 74

Rajah v Royal College of Surgeons

Back 74

In general, bodies which exercise functions of a judicial nature must give reasons for decisions.

Front 75

International Fishing Vessels v Minister for Marine

Back 75

In refusing to give reasons for decision, Minister placing serious obstacle in the way of same being reviewed.

Applicant disadvantaged in (i) deciding whether to review and (ii) more difficult to succeed in review if doesn’t have reasons for decision

Front 76

Flanagan v UCD

Back 76

FACTS: applicant accused of plagiarism.

HELD:

She should have received in writing details of charge

She should have been given right to be represented

She should have been able to hear evidence against her and challenge same, and present own evidence

Front 77

Dublin Wellwoman Centre v Ireland

Back 77

FACTS: Carroll J had served as a chairperson on woman’s group that had made submissions re abortion

HELD: no actual bias, but possible perception of bias had been raised and Judge should not hear case

Front 78

Bula Ltd v Tara Mines

Back 78

FACTS: Barrington J & Keane J had links with respondents

HELD: prior relationship of legal advisor and client did not generally disqualify judge from hearing case. There must be additional factors:

(i)A long, recent and varied connection may disqualify a judge
(ii)A reasonable apprehension would arise where Judge had, as counsel, given legal services on live issues in the present case

Front 79

O’Neill v Beaumont Hospital Board

Back 79

FACTS: continuation of employment of neurosurgeon after probationary period. Chief Executive Officer held unsatisfactory performance. Challenged by applicant, but certain members of Board enquiring into performance had already made critical comments re applicant

HELD: reasonable apprehension of bias, members could not sit on hearing

Front 80

McGrath v Trustees of Maynooth College

Back 80

FACTS: plaintiff dismissed from Maynooth by reason of criticism of church. Trustees who made decision had such strong views- was it bias?

HELD: did not amount to bias.