Adams v. D.P.P. [2000] IEHC 45; [2001] 2 ILRM 401 (12th April, 2000)

1. The Applicant is awaiting trial in the Central Criminal Court on fifteen counts of rape and sixteen counts of sexual assault. He was extradited to this State in respect of other and unrelated charges. Because of the rule of specialty it would not have been possible to prosecute these sexual offences unless an appropriate waiver was forthcoming from the relevant authority in the requested state. On 29th July 1997 the third named respondent, Her Majesty's Secretary of State for the Home Department (and not as described in the title) hereafter 'The Home Secretary' issued a certificate of waiver in that regard.

2. On 7th February 2000 an application was made to O'Neill J. for leave to commence these proceedings. They seek to prohibit the Director of Public Prosecutions from continuing the prosecution of the sexual offences pending before the Central Criminal Court. An order of certiorari is also sought seeking to quash the District Judge's order returning the applicant for trial. The reliefs sought against the Home Secretary are as follows:-

3. The Applicant was granted leave to apply for these reliefs and the order of O'Neill J. then went on to give directions as to service. Insofar as service on the Director of Public Prosecutions was concerned he directed service on the Chief State Solicitor; insofar as the District Judge was concerned he directed service of the order and grounding papers on the relevant Court Clerk. Insofar as the Home Secretary was concerned he directed service on "the British Ambassador in Ireland or such other person authorised to except (sic) service on behalf of Her Majesty's Secretary of State for Home Affairs" .

5. The application is grounded upon an affidavit sworn by Christopher Radley Ashford a solicitor to the Home Secretary. The affidavit makes it clear that three grounds are relied upon. First, he seeks to set aside the service of the proceedings. They were, in the first instance, sought to be served at the premises of the British Embassy in Dublin. Such service would not have been in accordance with law, it is said. Secondly, the proceedings were then served at the Foreign and Commonwealth Office in London in circumstances where no order granting leave to serve out of the jurisdiction was either sought or obtained. Finally, in any event, the Home Secretary is, it is contended, entitled to sovereign immunity and cannot be impleaded in these proceedings.

7. Dublin 4. An official at the Embassy indicated that they should deliver the papers to the Foreign and Commonwealth Office in London. The documents were delivered by hand by an official of the Irish Embassy in London to an official of the Foreign and Commonwealth Office and also to the chambers of H.M. Attorney General in London. Mr. Ashford avers, as is clearly the case, that delivery of the documents to these London addresses does not constitute service within the jurisdiction of this Court. He also avers that no leave was sought from this Court to effect service of the proceedings out of the jurisdiction pursuant to Order 11 of the Rules of the Superior Courts (R.S.C.) and furthermore says that such proceedings do not fall within the terms of Order 11, Rule 1 or Order 11a of the R.S.C. He goes on to say that the Respondent is sought to be impleaded in circumstances in which he enjoys and invokes sovereign immunity in connection with the subject of this claim.

8. The response to this affidavit is provided by an affidavit of the solicitor for the Applicant. He says that these judicial review proceedings are to be consolidated with an Article 40.4/Habeas Corpus application which has been mounted by the Applicant. He says that the Applicant seeks inter alia to challenge a certificate given by the Home Secretary in the context of the Extradition (Rule of Specialty and Re-Extradition for purposes of Part III of Extradition Act 1965) Order 1994. He says that the Home Secretary by his certificate purported to waive the specialty requirement contained in Part III of the Extradition Act 1965 as amended. In order to comply with the "fundamentals of procedural fairness" he suggests that it was proper to endeavour to make the Home Secretary a Respondent. He goes on to say that if the Home Secretary chooses not to participate and defend his certificate then perhaps the certificate can be challenged and that officer can make no complaint about his absence from the proceedings. The other Respondents may be adequate "legitimate contradicters" (sic) according to the Applicant's solicitor.

9. The affidavit then goes on to accept that Order 11 of the RSC does not apply to judicial review where the remedy being sought is certiorari. He furthermore accepts that judicial review is governed by R.S.C. Order 84, which makes no provision for service outside the jurisdiction. He also accepts that there is no precedent for judicial review proceedings being served pursuant to the provisions of Order 11.

10. He then turns to the question of sovereign immunity. He says that this very issue will shortly be ruled upon by the European Court of Human Rights at Strasbourg in three named cases. He says that if that court finds in favour of the Applicants in those cases and endorses the principle that member states of the Council of Europe can no longer, in the light of Articles 6(1) and 13 of the European Convention on Human Rights and Fundamental Freedoms, claim sovereign immunity, then the Home Secretary would no longer be entitled to such immunity in these proceedings. He therefore requests an adjournment of this aspect of the matter until that court decides those cases.

11. The affidavit then goes on to make a further series of points. He says that by issuing the specialty certificate the Home Secretary waived any sovereign immunity which he might have. He then contends that the only judge who should hear this application is O'Neill J. Finally he submits that the present R.S.C.:-

"do not adequately address the emerging phenomenon in many countries of trans-national public law, of which this case is an example. Counsel advise me and I believe that, in the circumstances of this case there is an inherent jurisdiction in the High Court to make appropriate orders for the service of the proceedings of this nature on Respondents like the Third Named Defendant."

13. The Diplomatic Relations and Immunities Act, 1967 provides at section 5 thereof that the provisions of the Vienna Convention on Diplomatic Relations done at Vienna on 18th April 1961 has the force of law in the State.

14. Pursuant to the provisions of Article 22 of that Convention the premises of the United Kingdom mission to this State "shall be inviolable" . The Article expressly prohibits the agents of this State from entering those premises except with the consent of the head of the mission. Furthermore this State is placed under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

15. Article 29 of the Convention provides that the person of a diplomatic agent shall be inviolable. He is not liable to any form of arrest or detention. This State is obliged to treat him with due respect and to take all appropriate steps to prevent any attack on his person, freedom or dignity.

16. Article 31 of the Convention provides that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He is also given immunity from its civil and administrative jurisdiction save in three circumstances none of which are relevant to this case.

17. These provisions which have the force of law in this jurisdiction satisfy me that it was inappropriate for this Court to grant leave to effect service of these judicial review proceedings upon the United Kingdom Ambassador to this State. My view in that regard is fortified by a decision of the United States Court of Appeals, District of Columbia Circuit, called Hellenic Lines Limited v. Moore. 120 U.S. App. D.C. 288. That Court there held that diplomatic immunity forbids personal service of proceedings upon an ambassador of a foreign state. The Court approved of the statement that:-

"It has long been considered that an ambassador is immune from the service of all process, in the absence of a waiver of immunity, or of an indication that he is willing to accept service on behalf of his government or some other person. Diplomatic immunity is derive (sic.) from the law of nations and is not limited to service of process in actions naming an ambassador as a party or requiring his presence in court."

"There is little authority in international law concerning whether service of process on a diplomatic officer as an agent of his sending country is an 'attack on his person, freedom or dignity' prohibited by diplomatic immunity. Because application of the doctrine of diplomatic immunity exempts a person from the legal procedures necessary to ordered society and often deprives others of remedies for harm they have suffered, courts hesitate to invoke the doctrine in a novel situation unless its purposes will certainly be served. These purposes are to 'contribute to the development of friendly relations among nations' and 'to ensure the efficient performance of the functions of diplomatic missions'. Vienna Convention on Diplomatic Relations Signed at Vienna, April 18, 1961, preamble."

21. In my view the order permitting service of these judicial review proceedings upon the British Ambassador to Ireland was in direct conflict with the statutory provisions affording immunity to him from the civil and administrative jurisdiction of this State and on this ground alone the order ought to be set aside.

22. It is a matter of considerable regret that these statutory provisions were not drawn to the attention of O'Neill J. by Mr. Forde S.C., when he moved the ex parte application before that judge. I will return to this aspect of the matter later in the judgment. I am quite satisfied that had the judge had his attention drawn to these statutory provisions when the application was made to him ex parte he would not have made the order in question.

23. It is accepted that the proceedings which were served on both the Foreign and Commonwealth Office and the chambers of H.M. Attorney General in London were not authorised for such service outside the jurisdiction by any order of this Court. It is furthermore conceded that the provisions of Order 11 and 11a, R.S.C. do not encompass judicial review proceedings.

24. Whilst the first of these concessions makes it clear that the purported service of the proceedings in London was ineffective the Applicant contends that he could now apply for such leave from the Court on foot of what is described as its inherent jurisdiction.

25. Counsel argues that notwithstanding the absence of judicial review from the purview of Order 11 the Court can still order the service of proceedings out of the jurisdiction under this alleged inherent jurisdiction. He was unable to cite a single decision from any common law country to support this contention. Indeed the submission is clearly in conflict with decisions of the Supreme Court.

"Now, the plaintiff's application was made under Rule 1 of Order XI of the Rules of the Supreme Court (Ir.), 1905, which is the only authority for ordering service out of the jurisdiction, and has been carried on to the new Courts by virtue of the Courts of Justice Act, 1924, and the Rules of the High Court and Supreme Court, 1926. Rule 1 of Order XI enumerates the cases in which such an order may be made and the enumeration is exhaustive. " (My emphasis.)

27. Kennedy C.J. then goes on to consider what must be done in order for an Applicant to bring himself within one or other of the enumerated cases. He points out that if the affidavit grounding the ex parte application fails to show the necessary facts then it is the duty of the Court to refuse the order. Later in the judgment (at p. 107)he says:-

"It is necessary, in my opinion, that the affidavit should set out the facts which will enable the Court to determine for itself where the contract was made and not to accept what is merely the deponent's opinion or conclusion upon undisclosed facts, without regard to the material upon which the interested party's conclusion is based. That, in my opinion, is one of the very matters to which on an ex parte application of this kind, the long established rule requiring uberrima fides on the part of the applicant ought to be strictly applied." (My emphasis.)

28. Mr. Forde S.C., argues that that case concerned itself with civil proceedings and therefore cannot be regarded as authority for the proposition which he seeks to advance concerning an inherent jurisdiction relating to judicial review proceedings.

29. The answer to that is to be found in Fusco v. O'Dea [1994] 2 I.R. 93. That case involved applications under Part III of the Extradition Act 1965. In the course of delivering the principal judgment in the Supreme Court, Egan J. said:-

"It was submitted that [Order] 31 [Rule] 29 must be read in the light of [Order] 11, which provides for the service of a summons outside the jurisdiction. It has been held that the categories of cases specified thereunder in which an order for service out of the jurisdiction may be obtained are exhaustive; a Court may only exercise its discretion when the requirements of the order have been met . See O'Connor v. Star Newspaper Co. [1891] 30 L.R. Ir.1 at page 4. See also Shipsey v. British and South American Steam Navigation Co. [1936] I.R. 65 at page 83.

It would seem, therefore, that parties outside the jurisdiction are only to be made amenable to the Irish courts' jurisdiction in specified circumstances. To grant an order of discovery against such a third party outside the jurisdiction would circumvent to a certain extent this principle by subjecting such a party to the jurisdiction of the Irish courts in circumstances other than those provided for in Order 11. This approach is endorsed in the English context by Matthews and Malek, 'Discovery' (1992), where they suggest, at para 3.53, that the normal territorial limitations will apply to third part discovery." (My emphasis.)

30. These authorities, the latter of which is binding upon me, make it clear that the only circumstances in which this Court may exercise an exorbitant jurisdiction permitting service of its process outside the State are those contemplated by Order 11.

31. A further argument was addressed on the basis that the R.S.C. do not adequately address what was called the "emerging phenomenon in many countries of transnational public law of which this case is an example." No authority was cited demonstrative of this alleged emerging phenomenon. Indeed such authority as there is suggests the contrary. In an interesting article published in the 1997 Judicial Review Journal authored by the Honourable Michael J. Beloff Q.C. and Helen Mountfield intituled "The Territorial Limits of J.R.", those authors, after a most interesting survey of the position, conclude as follows:-

In Canada -v- Employment Appeals Tribunal [1992] 2 I.R. 484, the Supreme Court decided that the doctrine of sovereign immunity formed part of our law although not in an absolute fashion. It held that if the activity called in question before a court in this State truly touched the actual business or policy of the foreign government which was sought to be impleaded then immunity should be accorded to such activity (see O'Flaherty J. at p. 500).

34. That case concerned a claim of unfair dismissal brought by a chauffeur at the Canadian Embassy. The Government of Canada successfully maintained a plea of sovereign immunity in respect of that claim. O'Flaherty J. said at page 500:-

35. It is not necessary for me to consider further the application of this doctrine to the instant case because it was conceded by the Applicant's counsel that on the present state of the law, the Home Secretary is entitled to sovereign immunity in respect of the certificate which is sought to be quashed.

36. Counsel seeks to adjourn a consideration of this aspect of the matter until such time as the European Court of Human Rights decides three cases in which the United Kingdom is the Respondent. He says that if those cases are decided in favour of the Applicants and the European Court endorses the principle that Member States of the Council of Europe can no longer claim sovereign immunity, then the Home Secretary would not be entitled to immunity in respect of this certificate.

37. There might be something to be said for this proposition if the European Convention on Human Rights and Fundamental Freedoms had the force of law in this State and decisions of the European Court of Human Rights had direct effect. It had always been my understanding that the Convention does not form part of the domestic law of this State. To my surprise Mr. Forde S.C. contended otherwise. He asserted that as a result of a decision of Geoghegan J. in the case of Murphy v. I. R. T. C. [1997] 2 ILRM 467 the Convention could now be considered to be part of the domestic law of this jurisdiction.

38. I can find nothing in the judgment of Geoghegan J. to support this contention. It is also important to bear in mind what was said by the Supreme Court on appeal from Geoghegan J. Barrington J. at [1999] 1 IR 12 at 27 said:-

"It seems to the Court clear that the learned trial judge dismissed the applicant's claim because the applicant had failed to rebut the presumption of constitutionality in favour of the statutory provision attacked. The Court does not think his statement that an Irish statutory provision which offended article 10 of the European Convention would be unconstitutional in most if not all circumstances was intended to raise the suggestion that one could by examining the European Convention decide on whether a statute violated the Irish Constitution or not. Whatever methodology may be adopted by the European Court of Human Rights in deciding its cases we are bound to presume that a statute passed since the enactment of the Constitution does not violate the Constitution and we can only rule such an Act unconstitutional if that presumption has been rebutted. In the present case, it has not been rebutted and the Court therefore upholds the decision of the learned trial judge and dismisses the applicant's appeal."

39. There can be no doubt but that the European Convention is not part of Irish domestic law having regard to the decision of the Supreme Court in Doyle v. Commissioner of An Garda Siochana [1999] 1 IR 249 at 263. This decision of the Supreme Court post-dates the Murphy decision. In the course of his judgment Barrington J., with whom the other four judges agreed, said as follows (at page 268):-

Ireland is a signatory of the European Convention on Human Rights and accepts the right of individual petition. But Ireland takes the dualistic approach to its international obligations and the European Convention is not part of the domestic law of Ireland (see In re O'Laighleis [1960] I.R.. 93). The Convention may overlap with certain provisions of Irish constitutional law and it may be helpful to an Irish court to look at the Convention when it is attempting to identify unspecified rights guaranteed by Article 40.3 of the Constitution. Alternatively the Convention may, in certain circumstances, influence Irish law through European Community law. But the Convention is not part of Irish domestic law and the Irish court has no part in its enforcement. So far as Ireland is concerned the institutions to enforce the provisions of the Convention are the European Court of Human Rights and its Commission. They have their own procedures including the right to launch an inquiry, to demand papers from the governments of the member states and to give guarantees concerning the confidentiality of government files where this is appropriate. This would appear to be the proper way of investigating the plaintiff's complaint.

The position of the European Convention on Human Rights in Irish law contrasts sharply with that of the founding treaties of the European Union. These have become part of the domestic law of Ireland and have resulted in the formation of a European Community the laws of which bind both the member states and their citizens and may have direct effect in each of the member states. As a result the national judge is a community judge and is obliged to give priority to community law in his court."

40. Later in the judgment Barrington J. said (at page 269)that in the case of a state such as Ireland which had not made the Convention part of its domestic law the duty imposed by it "is merely an external treaty obligation of the State which the domestic courts are not in a position to enforce".

41. It follows therefore that in circumstances such as this where there is binding authority of the Supreme Court acknowledging the existence of the doctrine of sovereign immunity and where it is conceded that such immunity exists in respect of the certificate in suit, there could be no question of adjourning a decision on this topic with a view to awaiting a determination of the European Court of Human Rights whose decision, even if favourable, has no direct effect in this state and cannot be seen to supplant the binding authority of the Supreme Court upon me.

43. As the Applicant concedes that the Home Secretary is entitled to sovereign immunity it follows, subject only to the considerations which I must next consider in this judgment, that the Home Secretary's application must succeed.

44. The next argument made by Mr. Forde S.C. is to the effect that once the Home Secretary granted the waiver of specialty which enabled the Applicant to be dealt with in this jurisdiction for the offences upon which he is now indicted before the Central Criminal Court, he also waived his entitlement to claim sovereign immunity.

45. It is conceded that the issue of the certificate was not an express waiver of sovereign immunity. Rather I am asked to imply that by issuing such a certificate for the purposes of the statutory instrument in question the Home Secretary waived his entitlement to claim such immunity.

46. No authority was cited in support of this contention. In my view this is a submission without merit. I cannot see any basis upon which it can be said that by issuing the certificate the Home Secretary implicedly waived his entitlement to sovereign immunity. I therefore dismiss this argument.

47. The next argument made was that it was not open to the Home Secretary to make an application to set aside the order of O'Neill J. It was contended that the only remedy available was by way of appeal to the Supreme Court.

"In my view, however, quite apart from the provisions of any rules or statute, there is an inherent jurisdiction in the courts in the absence of an express statutory provision to the contrary, to set aside an order made ex parte on the application of any party affected by that order. An ex parte order is made by a judge who has only heard one party to the proceedings. He may not have had the full facts before him or he may even have been misled, although I should make it clear that is not suggested in the present case. However, in the interests of justice it is essential that an ex parte order may be reviewed and an opportunity given to the parties affected by it to present their side of the case or to correct errors in the original evidence or submissions before the Court. It would be quite unjust that an order could be made against a party in its absence and without notice to it which could not be reviewed on the application of the party affected."

50. I have no hesitation in following that line of reasoning. It is in my view both good law and good sense. It would be most unjust to deny a party against whom an ex parte order had been made the opportunity of applying to the Court to set it aside and instead to insist that the only remedy was one of appeal to the Supreme Court.

51. It is furthermore the established practice of this Court to regularly entertain applications to set aside orders made ex parte (see Voluntary Purchasing v. Insurco Ltd. and Schmidt v. The Home Secretary of the Government of the United Kingdom and Others , unreported High Court, Murphy J., 19th January 1994).

54. The next argument made by Mr. Forde S.C. was to the effect that the only judge who could hear the Home Secretary's application to set aside the order was O'Neill J. He argued that because the Home Secretary contended that there was no jurisdiction to make the ex parte order no other judge of the High Court was competent to hear such an application.

55. I reject this argument. First, it is completely inconsistent with the established practice of the court. Secondly, insofar as the R.S.C. permits applications to set aside, for example, under Order 52, Rule 3 or Order 12, Rule 26, the rules do not provide that the application has to be made to the judge who made the original order.

56. A moment's consideration of this proposition would demonstrate the absurd results that could flow from it. What if the judge who made the order was engaged in other business of the Court which could not be interrupted e.g. presiding over criminal business in the Central Criminal Court; what if the judge was on circuit?; what if the judge had retired?; what if the judge had died?: In the latter two circumstances the order, on Mr. Forde's thesis, could never be set aside. In the former two it could be done (in an urgent case) only by interrupting a criminal trial or following the judge to the country venue at which he might be presiding.

57. When asked if there was any authority to support the proposition I was referred to a decision of the Court of Appeal in England in St. George's Healthcare NHS Trust v. S. [1998] 3 W.L.R.936. Having carefully read the relevant parts of that judgment I do not find in it any authority for the proposition now being mooted. I reject the proposition and hold that there is jurisdiction in any judge of this Court to entertain an application brought by a party affected to set aside an order made ex parte.

Whilst the St. George's Healthcare case which I have just mentioned is not authority for the proposition which was made, it is of relevance to an aspect of this case which I find very troubling. That is the obligation on the part of counsel in seeking orders ex parte. In the course of the judgment of the court delivered by Judge L.J. he said (at page 966):-

58. Reference is there made to the duty of full and frank disclosure. That is reminiscent of the statement made by Kennedy C.J. in Brennan v. Lockyer [1932] I.R. 100 at 107,where he said in relation to the order in question there:-

59. On any application made ex parte the utmost good faith must be observed, and the Applicant is under a duty to make a full and fair disclosure of all of the relevant facts of which he knows, and where the supporting evidence contains material misstatements of fact or the Applicant has failed to make sufficient or candid disclosure, the ex parte order may be set aside on that very ground. One such fact which ought to have been disclosed was that the Applicant had unsuccessfully sought judicial review of the certificate in suit in the High Court of Northern Ireland. That was made known only during the course of this hearing.

60. The obligation extends to counsel. There is an obligation on the part of counsel to draw the judge's attention to the relevant Rules, Acts or case law which might be germane to his consideration. That is particularly so where such material would suggest that an order of the type sought ought not to be made.

61. In the present case Mr. Forde informed me that on the ex parte application which he moved before O'Neill J., neither the Rules, the legislation or the case law on sovereign immunity were drawn to the attention of that judge. When asked why he did not do so he told me that he did not consider them to be relevant. Of all of the propositions with which I have had to deal in this judgment that is the most astonishing.

62. It is difficult to conceive how any responsible counsel could so conclude given the novel features of this application and the attempt to expand the judicial review jurisdiction of this Court into the affairs of another sovereign state to say nothing of the diplomatic sensitivity of service of process on an ambassador.

63. I have not the slightest doubt but that had O'Neill J.'s attention been drawn to the relevant material he would never have granted the order which he did. It was in my view wholly wrong for the judge's attention not to have been drawn to the appropriate material. It was a serious departure from the norms governing the duties of counsel to the Court on ex parte applications. The Court is entitled to expect better.

64. This application succeeds. The order of O'Neill J. granting leave to bring the proceedings against the Home Secretary is set aside. It follows that the direction authorising service upon the British Ambassador in Dublin likewise falls. The purported service of the proceedings in London was null and void and of no effect.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Adams v. D.P.P. [2000] IEHC 45; [2001] 2 ILRM 401 (12th April, 2000) URL: http://www.bailii.org/ie/cases/IEHC/2000/45.html Cite as: [2000] IEHC 45

High Court of Ireland Decisions

Adams v. D.P.P. [2000] IEHC 45; [2001] 2 ILRM 401 (12th April, 2000)