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Cite as: [2001] IESC 206

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    O’Doherty v AG [2001] IESC 206 (6 June 2001)


    No. 146/01

    Denham J.

    Murphy J.

    Hardiman J.





    [Judgments delivered by Denham J and Hardiman J]

    Ex tempore Judgment of Mrs. Justice Denham delivered on the 6th day of June, 2001.


    On 30th May, 2001 the High Court (Johnson J.) granted the applicant leave to serve short notice of motion on the Chief State Solicitor on behalf of the respondents for an injunction. The injunction seeks to restrain the Minister for the Environment from proceeding with the holding of a referendum or any other plebiscite or vote of the people on June 7th, 2001.

    Yesterday the High Court determined that there was an ambiguity and in light of that situation permitted the applicant to proceed for the injunction sought and also for an order of mandamus compelling the respondents to make all and any and adequate provision necessary for the applicant to exercise his 'vote on June 7th.

    The applicant is a citizen of Ireland. He was sentenced at the Circuit Court in Limerick on October 3rd, 2000 to a term of two years imprisonment. He is currently a prisoner in the Training Unit, Glengarriff Parade, North Circular Road, Dublin 7. The applicant submitted that he enjoys the right to vote, that he is one of' "the people" provided by Article 6.1 of the Constitution.

    The applicant submitted that the law providing for a referendum or plebiscite or vote of the people on June 7th, 2001 relied for its effect on an omission of or neglect of or disregard of the applicant as a citizen as one of "the people" provided by Article 6.1 of the Constitution of Ireland and thus is devoid of constitutional authority and is repugnant to the provisions of the Constitution for the applicant to be a citizen and to be one of the people as provided in Article 6.1 of the Constitution of Ireland. He further submitted that the law providing for a referendum or plebiscite or vote of the people on June 7th, 2001 is a law which deprives him


    of his right to exercise his vote and, dishonours the guarantee provided in Article 40.3.1 of the Constitution of Ireland, that the law is repugnant to the Constitution of Ireland.

    The High Court (Murphy J.) refused the applicant's application. Having analysed case law in relation to the issue to be tried, the balance of convenience, damages as a remedy for the applicant, and the delay of the applicant, for the reasons stated, he refused the application. The High Court ordered:

    1. That the reliefs sought in the said Notice of Motion and all reliefs in the nature of mandamus be and the same are hereby refused;

    2. That the applicant be refused leave to appeal the order herein;

    3. That this matter be adjourned to Thursday the 14th day of June, 2001.

    Against the order and decision of the High Court the applicant has appealed. The grounds of appeal were:

    A That the Learned High Court Judge erred in failing to consider the weight of evidence adduced by the Applicant at its most practicable and at its most favourable to the Applicant when refusing the Applicant's application.

    B That the Learned High Court Judge erred when refusing the applicant's application, by failing to defend and vindicate, as far as practicable, the personal rights of the Applicant who, being a citizen, has the constitutional right under Article 40 of the Constitution of Ireland to be held, as a human being, equal before the law and that the Constitution makes it imperative on the State to respect this right.

    C That the Learned High Court Judge erred in his interpretation and application of the various Statutes, Statutory Instruments and Cases which he relied on and which he cited in reaching his Judgment.

    D That the Learned High Court Judge erred in his interpretation of the constitutional and inherent rights of the Applicant to exercise his right to vote.


    E That the Learned High Court judge erred in failing to give full consideration to the weight, in the Applicant's favour and at its most practicable, of the separate and combined provisions of the Constitution of Ireland and of the laws derived there from.

    F. That the Trial was unsatisfactory.

    In this Court the applicant applied to file a further affidavit. The respondents consented to the affidavit being admitted without agreeing to its contents. The affidavit related to the issue of delay. The applicant submitted that he did not realise that as a prisoner he could not vote, and that it was unreasonable to say he delayed.

    Whilst the appeal proceeded on foot of the issue of mandamus and injunction in fact the applicant sought an order that he be delivered to a polling booth or released from restraint so as to enable him to vote. He relied on the decision of the High Court in Breathnach v. Ireland and the Attorney General (Unreported High Court, 23rd June, 2000). He argued that the Court should apply that law, that the State has no law to deprive him of his vote, that he is a person entitled to vote. He anchored his arguments in Article 16.1.2 of the Constitution of Ireland.

    Counsel on behalf of the respondents submitted in written submissions that for seven reasons the application should be refused. These reasons were:

    (1) In this Judicial Review Application the applicant cannot establish that the Respondents or any of them have acted outside the law.

    (2) If an allegation is made in this application that an act of the Oireachtas is unconstitutional that is not an appropriate matter for a Judicial Review Application.


    (3) The presumption of constitutionality applies to the legislation in issue.

    (4) The relevant legislation is constitutionally valid under existing law.

    (5) Damages would be an adequate alternative remedy.

    (6) The balance of convenience is against the grant of the Injunction.

    (7) There has been delay on the part of the applicant.

    Counsel for the State, Mr. Brian O'Moore, S.C., in oral submissions, argued that the issue of delay was significant. Further, he submitted that the applicant could not identify a single provision of law which has been breached. He submitted that the application for mandamus is misconceived. He argued that this is an interlocutory application and that the balance of convenience is overwhelmingly in favour of the respondents.

    This application is made by way of judicial review. It is a motion in judicial review proceedings. Thus it is a proceedings circumscribed by the relevant rules relating to judicial review. In addition, being an application for injunction the relevant rules relating to such an application are applicable.

    The applicant is in lawful custody. As a consequence he has lost the right to exercise certain constitutional rights. This was explained in Murray and Murray v. Ireland [1991] ILRM 465 at p 477 by McCarthy J:

    "The simple question may be posed - may a constitutional right be held in abeyance because of the State exercising a power in accordance with law? It is difficult to identify a constitutional right that is unqualified; the right to life itself


    is not absolute (see Article 13.6). The unenumerated right to procreate children, like all unenumerated rights, must he given a rational meaning. It may be lost temporarily as a result of any form of detention, arrest or imprisonment for a criminal offence; detention for a contempt of court; detention pursuant to mental treatment procedures. The suspension or abeyance of the right does not depend upon practical considerations but because of the nature of a constitutional right. If a person is deprived of liberty in accordance with law, then that person loses, for instance, the express right to vote (Article 16); the person loses the non-expressed or unenumerated right to travel, to earn a livelihood, the right to be let alone, to give some examples."

    In Draper v. The Attorney General [1984] I.R. 277 the Supreme Court, considering an application by a disabled person who because of her chronic physical disability was unable to go to the polling booth, dismissed her claim. It was held that the failure to provide facilities to enable her to vote did not amount to an interference by the State in the exercise of the right to vote declared in Article 16.1.2 of the Constitution relating to the equality of the citizens before the law.

    Further, an issue similar to this case was raised in Patrick Holland v. Ireland where leave to seek judicial review was sought for an order of mandamus directing a postal vote to be granted to a prisoner. Geoghegan J. held (Unreported, 18th November, 1993):

    "The Applicant seeks an Order of Mandamus directing the Respondent to grant him a postal vote. I am treating the application as an application or leave to institute Judicial Review proceedings to obtain an Order of Mandamus. The Applicant admits that there is no statutory provision permitting postal votes for prisoners. Accordingly, I must refuse the application. If the Applicant considers that he can mount a constitutional challenge to the relevant enactments in the electoral Acts, he should do so by plenary proceedings. In the circumstances Judicial Review would not be appropriate."

    On appeal this decision was upheld by the Supreme Court.


    The applicant here seeks mandatory relief. Such relief requires that a strong and clear case has been made out b an applicant.

    In this case the procedure used -judicial review and an interlocutory relief- is not the appropriate tool to achieve a decision in relation to the constitutionality of Acts of the Oireachtas. Further, the applicant has not made out a case that there is a strong likelihood that his ultimate action will succeed. The case law is to the contrary. In an interlocutory application the severe consequences for the prison system of such an order cannot be ignored. Further, while conscious of the right and duty of the courts to consider the constitutionality of acts of the Oireachtas this approach is taken from the basis of the presumption of constitutionality. Further, as the applicant is in lawful custody due regard must be had to the duty of the executive in that regard.

    The power of this Court to direct the relief sought has not been established. The applicant has not made out a case to the standard required by Campus Oil v. Minister for Industry [1983] I.R. 88.

    On the issue of delay I am in agreement with the judgment of Hardiman J.

    I would refuse the application.



    Denham J.

    Murphy J.

    Hardiman J.






    Ex-tempore judgment of Hardiman J. delivered the 6th day of June, 2001.

    I agree with the judgment of Mrs. Justice Denham. I wish, however, to add certain observations of my own on the topic of delay.

    The Applicant has arrived in this Court the day before the holding of the referendum on foot of proceedings initiated six days ago. In his Notice of Motion of 1st June he sought, solely, an injunction restraining the holding of the


    referendum. He has been permitted to seek in addition mandatory relief requiring the authorities to take him to the poll or release him in order to vote.

    These reliefs are all of a radical and far reaching nature and would require the overruling or, at least, the distinguishing of at least two recent decisions of this Court. These are the Murray and Holland decisions cited by Denham J.

    Apart altogether from the general obligation on a person seeking equitable relief or relief by the way of judicial review to move speedily, there is a special obligation on a litigant who seeks to interfere with the solemn and important process of the amendment of the Constitution to do so.

    The Applicant has been in lawful custody since the 3rd October, 2000. Under the law, an election would have to take place well within two years of that date. A referendum on at least one of the questions to be decided tomorrow has been mooted for the past six months or more and has been formally announced since March.

    The Applicant has stated that he believed until recently that provision would be made for him to vote. He apparently told the High Court, though he did not repeat it in this Court, that he expected that a ballot box would be


    brought to him in prison. He claims that time should not be regarded as running against him until the 24th May of this year, the date of which he was allegedly told for the first time that this was not so. He was given this information within hours of his first enquiry to the authorities on the topic.

    I do not find his assertions in this regard credible. He is plainly well aware of the High Court decision in Breathnach, delivered in June 2000, which would itself have disillusioned him. If, as he claimed in Affidavit, he discussed the matter with long serving prisoners, he will not have found one such prisoner who had voted from prison in any election or referendum. He has taken no steps to alter his registration, or to apply for a postal vote, or to enquire whether either of these things was necessary or feasible.

    I agree with the observations of Mr. Justice Kelly on the question of delay, specifically in cases seeking to interfere with the referendum process, in Riordan v. Ireland [1999] 4 IR 343.

    The Applicant has been in gross and obvious delay. I believe that this has extended, not from the 24th May 2001 but from his incarceration in October 2000. No serious claim of a constitutional nature can properly be met at a few days notice. The effect of this delay, therefore, tends to deprive the


    constitutional institutions involved of the opportunity to meet the Applicant's claim in a proper and orderly manner. On this ground, too, I would dismiss the appeal.

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