Personal Rights

Question 1

1. The Right to Life (Die)

McGee v AG [1974]

Answer 1

• If M got pregnant again she’d die. Imported contraception, seized, took case
• Said the seizure was in violation of her constitutional rights, incl. bodily integrity
• SC agreed it was an unwarranted interference w bodily integrity and marital privacy.

Question 2

1. The Right to Life (Die)

Re a Ward of Court (No 2) [1996] Limited Right

Answer 2

• W in vegetative state. Fed w tube for 20 yrs. Would die naturally if not given artificial nutrition
• SC: Dying is an inevitable consequence, so the right to life implies right to have nature take its course and die natural death. Held limited right to die if treatment has no curative effect. No general right

Question 3

1. The Right to Life (Die)

Pretty v UK [2002

Answer 3

Right to life in Art 2 couldn’t be interpreted to include a right to die. Thus, no violation

Question 4

Right to Withhold Medical Treatment

McGee v AG

Answer 4

Held right to life included right to refuse medical treatment.

Question 5

Right to Withhold Medical Treatment

Fitzpatrick & Ryan v FK [2008]

Answer 5

• K had haemorrhage after birth. B4 blood transfusion, said she’s a Jehovah’s W. Issues: 1st said she’s Catholic, diff birth, no family there. Hosp doubted refusal was valid, so got an order & did transfusion
• Sought declaration they’d acted lawfully: On evidence, court satisfied K gave valid consent: evidence showed couldn’t be certain she understood the gravity of the situation. Also odd she said she was catholic, then JW after birth. Hospital objectively justified in doubting her capacity.
• Test: Is P’s cognitive ability impaired to extent they don’t understand the nature, purpose & effect of treatment and consequences of accepting/rejecting in context of choices available (incl. alt treatment)

Question 6

Right to Withhold Medical Treatment

Purdy v DPP [2008] UK

Answer 6

MS sufferer sought a right to die w help of H. DPP gave H assurance he unlikely to be prosecuted if helped P travel. But didn’t apply to paid profess helpers. DPP told to issue guidelines

Question 7

Right to Withhold Medical Treatment

Fleming v Ireland [2013] CASE NOTE HC

Answer 7

• Had MS, wheel chair, final stages. Can’t use arms, but full mental capacity, so can’t take life w/o help
• Argued: (1) She’d a right to die (2) Offence of assisted suicide is unconst (3) The law is incompatible w the ECHR (4) An order directing DPP to publish guidelines on prosecuting those who assisted
• HC: Art.40.3.2 and the protection of persons: HC overriding concern was the interest of the state in safeguarding the sanctity of human life. Worried about danger of liberalising laws. Held:
  (1) If they allowed it by even a limited amount it’d open a Pandora’s Box that’d be impossible to shut
  (2) Even most rigorous system would be unable to ensure the vulnerable in society wouldn’t hasten their death to avoid being a burden on family & society. Putting others at risk (not F’s intentions)

Question 8

Right to Withhold Medical Treatment

Fleming v Ireland [2013] CASE NOTE SC

Answer 8

• SC: Held no constitutional right to die or be assisted to do so. Denham CJ said there’s nothing in the const to prevent introducing legislation to deal with cases such as this. Up to the Oireachtas to do so.
  a. Constitution: Argued part of Art.40 right to life, but held the right to life does not import a right to die.
  b. Equality: Rejected the criminal law ban on assisted suicide unfairly discriminated against F
  c. ECHR: Held ECHR already held there was no right to die that could be derived from the convention.

Question 9

2. The Right to One’s Good Name

Re Haughey [1971]:

Answer 9

]: Held if your good name is called into Q, you’ve a right to know the charge against you, get the evidence, cross-examine accusers, give rebutting evidence and address the tribunal pending.

Question 10

2. The Right to One’s Good Name

Goodman International v Hamilton [1992]:

Answer 10

]: Rejected that the publicity of the tribunal meant no later criminal trial could be fair & if brought it would be impossible to defend and clear the good name of the applicant. Held SC can’t assume they’d ruin his good name without affording Haughey rights to him.

Question 11

Access to Courts, the Right to Litigate and the Statute of Limitation

Macauley v Minister for Posts and Telegraphs [1966]

Answer 11

• s.2 Mins and Secs Act 1924: must obtain AG’s fiat to take a case arguing legislation was unconst
• Held unconstitutional on basis of a right to access the courts. Kenny J linked the personal right to litigate (Art.40.3) w Art 34.3.1 (vests full jurisdiction of all matters of law to the HC).
• Held the rights and guarantees would be worthless if citizens had no right of access to defend them

Question 12

Access to Courts, the Right to Litigate and the Statute of Limitation

Tuohy v Courtney [1994]:

Answer 12

Re a claim that a 6-year limit on non-personal injuries claims in tort was unconstitutional, the SC made the distinction, holding that such a claim concerned the right to litigate, not
the right of access. Right to litigate is the right to achieve appropriate remedy upon proof… etc.

Question 13

b. Statute of Limitations (SOL) and the Right to Litigate

Tuohy v Courtney [1994] and White v Dublin County Council [2004]

Answer 13

Setting limitation periods is ‘Balance-Striking’ which is seen in both: right to litigate causes on one
hand and on other, long delays create an unfair situation for Ds. Legislature must strike balance

Question 14

c. Discoverability Rule: Exception to SOL

Hegarty v O’Loughran [1990]

Answer 14

• SOL 1957: Tort for damages for personal injury was 3 years. Nose op in 76, deteriorated in 82
• Held the cause of action accrued at the time when provable injury capable of attracting compensation
  occurred: date it occurred not date harm was discovered/should’ve reasonably been

Question 15

c. Discoverability Rule: Exception to SOL

Tuohy v Courtney [1994]

Answer 15

The Statute of Limitations was amended in 1991 to include a Discoverability rule for PI cases only. - S.11 SOL 1957 as amended by SOL (Amend) Act 1991 says an action in tort can’t be brought 6 years from date on which the cause of action accrued (i.e. the date the tort occurred).
- Negligence allegation against solicitor in land transaction that only came to light after 6-yrs
- SC upheld s.11: Held no unconstitutionality arose. It balance-struck (considered need for finality vs right to litigate/access to courts) and considered the 6-yrs was not so contrary to reason and fairness to constitute an unjust attack on an individual’s constitutional rights.

Question 16

c. Discoverability Rule: Exception to SOL

White v Dublin County Council [2004]

Answer 16

• Revised planning application submitted but re-advertised. W left reasonably believing original app (not incl. any overlook of their prop) was rejected. Revised app did incl. overlook, but they were never notified and thus could not object within the 2-mth period. SC held unconstitutional
• Distinguished Tuohy on basis the reasoning was unique to T and longer period of time.

Question 17

c. Discoverability Rule: Exception to SOL

Re Art. 26 and ss.5 and 10 of the Illegal Immigrants (Trafficking) Bill 1997 [2000]

Answer 17

• S.5: validity of deportation orders had to be challenged by JR within 14 days. Only extended where ‘good & sufficient reasons for doing so’. Argued uncsont interference w right of access. Unsuccessful
• Note: court said they couldn’t consider less restrictive alternatives (contrary to Heaney): Tuohy

Question 18

d. Rules on Maintenance and Access to the Courts

Persona Digital Telephony Ltd v Minister for Public Enterprise [2017]

Answer 18

• SC held third party funding during proceedings to support a plaintiff unable to progress a case of immense public importance unlawful as it amounted to maintenance & champerty
• Noted difficulties in funding long and complex cases may have implications on the const right of
  access to the courts, but held the solution was best left to the legislature (calling out Oireachtas)

Question 19

e. Legal Aid

MC v Legal Aid Board [1991]:

Answer 19

Aid not available for civil cases (except family), but exceptions:

Question 20

e. Legal Aid

Stevenson v Landy [1993]

Answer 20

• Concerned wardship proceedings rather than criminal matters. Aid granted because the court said there is nothing more serious than deciding if a child should be taken from their parents and therefore the parents must be given LA in order to properly vindicate their rights.

Question 21

e. Legal Aid

Kirwan v Minister for Justice [1994]

Answer 21

Argued for legal aid where prisoners sought review of detention where it was pursuant to a ‘guilty but insane’ verdict. Bc of the required docs, held, as matter of fairness, entitled to LA to help him prep it.

Question 22

e. Legal Aid

O’Donoghue v Legal Aid Board [2004

Answer 22

Argued the failure of LAB to provide legal aid in a timely fashion breached right to FPs. Held that fair procedures and the right of access would require legal aid.

Question 23

f. Ancillary Aspects

Bula Ltd v Tara Mines [1987]:

Answer 23

Held right to litigate incl. right to be given proper opp to prove one’s case

Question 24

f. Ancillary Aspects

Fallon v An Bord Pleanala [1992]:

Answer 24

Security for costs: This rule can have an implication on access as you mightn’t want to sue then: Held in determining the amount of security, a court must bear the right
of access in mind and one shouldn’t be denied such just bc they can’t give enough security.

Question 25

g. Leave Obligations, Order 84. Rule 20 (“Substantial Grounds”)

Blehein v Minister for Health [2004]

Answer 25

Some Acts impose onerous thresholds:
- S.260 Mental Treatment Act 1945: Must obtain leave of HC to challenge detention under Act.
- ‘Leave won’t be granted except if ‘substantial grounds’ the resp acted in bad faith/w/o reas care’
- Held (1) unconst barrier on access (2) S.260 confines HC to considering 2 grounds (bad faith & reas
care) & only discretion is if either of those is substantial. Impermissible interference in judicial domain

Question 26

a. Origins in Marital Privacy, but a movement towards a general right

McGee v AG [1974] Die if pregnant again

Answer 26

• S.17 Crim Law (Am) Act 1935 banned importing contraceptives was held unconstitutional partly on basis it breached the right to marital privacy (this case established the right).
• Henchy J: It violates Art.40.3.1 guarantee to protect personal rights: violates right to privacy re marital
  relations & criminalises efforts to get contraception to ensure the integrity & wellbeing of her marriage

Question 27

a. Origins in Marital Privacy, but a movement towards a general right

Norris v AG [1984]

Answer 27

• S.61 Off Ag the P Act 1861 criminalises buggery and provides a max penalty of life in prison.
• SC held McGee was confined to marital privacy so did not support this claim, so it turned on a general question of privacy. Majority agreed a right to privacy existed, but that they couldn’t hold that the conduct of the sort under examination was ‘outside’ the power of the State to condemn:
• Held State is entitled to discourage immoral conduct harmful to state values. Right to privacy not absolute: there’s many acts done in private that state is entitled to condemn due to them being immoral

Question 28

a. Origins in Marital Privacy, but a movement towards a general right

Kennedy v Ireland [1987]

Answer 28

• Min authorised phone-tapping of journalists, publicly admitted it and that no justification for it.
• Held the nature of the right to privacy must ensure the dignity and freedom of the individual.
• But he recognised the potential for ‘justifiably’ restricting it in the interests of the common good

Question 29

a. Origins in Marital Privacy, but a movement towards a general right

I.O’T v B [1998

Answer 29

• I argued a right existed to know the identity of one’s natural mother. In considering this, the SC had to consider the relevance of the mother’s right to privacy.
• Majority held that there was such a right, but the exercise of such right may be restricted by the constitutional right to privacy and confidentiality of the natural mothers.

Question 30

a. Origins in Marital Privacy, but a movement towards a general right

Foy v Registrar of Births, Deaths and Marriages [2002]

Answer 30

• F argued the failure of the state to legislate to permit an amendment of a birth cert to reflect a gender change was a violation of her right to privacy. Rejected: Refused to believe a birth cert actually
  “meant” anything in respect of privacy. ECHR case later so had to declare inconsistent w ECHR.

Question 31

b. Surveillance

Kane v Gov of Mountjoy Prison [1988]

Answer 31

• K arrested and released, but before release gardaí heard the RUC were seeking his extradition.
• Gardaí followed him overtly on foot + in car. Chased after K, garda fell on him & charged w/ assault
• Argued the surveillance was just to get an arrest and also violated his right to privacy
• Held no breach: If over surveillance of the general type in this case was applied to a person without justification (there was here, he was connected to terrorism), it would be objectionable.

Question 32

b. Surveillance

Devoy v Dublin Corporation [1995]:

Answer 32

Argued covert tape-recording breached right to privacy and vitiated disciplinary proceedings. Rejected: compared it to production of pics of D lifting concrete w a ‘bad back’

Question 33

Surveillance

Atherton v DPP [2006] NB*

Answer 33

• A argued it was unconst for a neighbour to set up and operate video surveillance which recorded him unlawfully cutting his neighbour’s hedge for which he was prosecuted. Held no breach of privacy: it
  recorded no more/less than would’ve been visible from upstairs window. But diff if involves trespass!

Question 34

State Surveillance

Klass v Germany [1978]

Answer 34

ECHR Strictly for safeguarding + judge supervises
- Powers of secret surveillance are tolerable only insofar as it is strictly necessary for safeguarding democratic institutions & any system should be left to the supervisory control of a judge

Question 35

State Surveillance

Khan v UK [2000

Answer 35

No Act governing use of listening devices so limitation of the right wasnt in acc w law

Question 36

State Surveillance

Cogley & Aherne v RTE [2005]

Answer 36

• RTE journalist posed as nurse and covertly recorded footage in a nursing home.
• C wanted interlocutory injunction to stop the broadcast and defamation (nb: freedom of express)
• A argued the video obtained by secrete filming was a breach of right to privacy.
• Clarke J drew distinction: (1) A right to privacy in respect of info where the info was entirely private and no basis for its disclosure and (2) A right to privacy not in the info (owing to factors e.g. public interest) but where the methods used amounted to a breach of privacy.
• Held A in category 2: Referred to NZ case and noted reluctance of the courts to grant interlocutory injunctions in defamation, but held as this case was one where the info is important to an informed public debate on an issue of public importance, different criteria apply.
• Adopted the NZ case test:
  (1) Consideration of the context and circumstances in which the impugned methods were used
  (2) Any special interest considerations in favour of broadcasting the programmes; and
  (3) The adequacy of damages as an available remedy for any wrong proved at trial
• App: (1) Secret filming added to credibility, but didn’t mean its justified, (2) legit public interest issues were raised by the show and signif weight must be attached and (3) damages are adequate remedy.
• Refused interloc injunction, but willing to grant order restraining further trespass by RTE

Question 37

State Surveillance

Herrity v Associated Newspapers Ireland Ltd [2008]

Answer 37

• Articles published re H and priest + pics + quoted transcripts of phone convos bw her and priest.
• H claiming damages for breach of right to privacy and breach of s.98 Postal and Telecomm Services Act 1983 (interception of tele messages/disclosure of such message prohibited).
• A claimed the breach wasn’t unjustified due to freedom of expression + public interest in the info
• Rejected: Act expressly banned interception of messages so freedom of exp couldn’t be asserted (Act said this an exception). Articles were a deliberate, conscious and unjustified breach of H’s right to priv

Question 38

State Surveillance

Barbulescu v Romania [2017]

Answer 38

• Held covert monitoring of employee’s emails breach Art 8 right to private life. Held courts must balance bw employee’s right to privacy & employer’s right to smooth running of business.
• Employer can only monitor in accordance w a policy or by notifying the employee

Question 39

Search and Seizure and Right to Privacy

CRH & Irish Cement v Comp and Consumer Protection Commission [2017] Case Note HC

Answer 39

• High Court: CRH successfully argued the CCPC acted ultra vires in seizing the email account of third respondent containing info unrelated to the investigation (during a dawn raid).
• Held contrary to s.37 C&CP Act 2014 and outside the scope of the search warrant.
• Act gave powers of entry, search, seizure and retention of material where, in the view of a DC J, there’s reasonable grounds to believe there’s evidence of an offence under Comp Act 2002.
• HC held if C reviewed all the material, it would breach the respondent’s constitutional right to privacy and their right to private life under Art.8 ECHR. Declarations granted. Appealed.

Question 40

Search and Seizure and Right to Privacy

CRH & Irish Cement v Comp and Consumer Protection Commission [2017] Case Note SC

Answer 40

• Supreme Court: Dismissed appeal: gave declaration C acted ultra vires s.37 in breach of C’s right to privacy under the constitution and in breach of their rights under Art.8 ECHR.
• SC criticised the warrant obtained and contrasted w criminal: different circumstances re urgency, proportionality, etc. But searches under this act can be much more focused.
• Was the incursion of constitutional & ECHR rights justified & proportionate? No: warrant gave no info re timing & nature of alleged offences, simply said there’s reasonable grounds to believe there was info necessary for C to exercise powers: free of any limits of what will be searched for
• Held s.37 is v broad, but the manner it was applied was in such a way as to encroach unduly on their constitutional rights. Just bc it is broadly phrased doesn’t mean it needed to be done this way
• Noted that in a criminal search, it wouldn’t be surprising if lots of irrelevant info was obtained
• Held principle of prop must be applied: if not, words in statute may become power of ‘general search’.
• Granted injunction restraining C from reviewing/examining any info from the unlawful search

Question 41

3. The Right to Earn a Livelihood

Murtagh Properties v Cleary [1972] NB for invoking against private persons

Answer 41

• Pub picketed to prevent publicans employing 2 part-time waitresses. Publicans argued the picket interfered with the part-timers’ right to earn a livelihood.
• Held the right is informed by Art.45.2.i: M and W equally have a right to an adequate means of livelihood. Held equally = M and W to be regarded as equal. What ‘adeq means of L’ means is up to Oireachtas, but a picket to stop women being employed just bc they’re women is breach of this right

Question 42

3. The Right to Earn a Livelihood

Re Art 26 and the Employment Equality Bill 1996 [1997]:

Answer 42

The right to carry on a business and earn a
livelihood is a part of the general right to property that’s protected from “unjust attack”.

Question 43

(b) No Right to a Particular Livelihood

AG v Paperlink [1984]

Answer 43

• State monopoly on postal services. P argued it breached their right to earn a livelihood.
• Claimed advantages of it could be obtained in a less restrictive manner. Rejected.
• This right, like all rights, is not an absolute one and may be subject to legitimate legal restraints.

Question 44

(b) No Right to a Particular Livelihood

Greally v Minister for Education [1999]

Answer 44

• Argued a scheme providing for recruitment of teachers in Catholic schools was unconst: G didn’t qualify as no teaching exp in a Catholic school. Held no breach: Panel applies to all teachers just not to
  all kinds of schools. The right doesn’t incl. right to receive employment from a particular employer.
  For anything unconstitutional to have occurred, three circumstances must arise:
  (1) The conduct one seeks to protect is capable of being viewed under ‘right to earn livelihood’
  (2) There must be an attack (3) If there’s an attack, is it unjust?

Question 45

(b) No Right to a Particular Livelihood

Casey v Minister for Arts and Heritage [2004]

Answer 45

• Visitors were damaging Skellig Michael so State introduced a system of landing permits, only given to existing boar operators. C excluded, so he applied for permit but refused.
• Rejected claim that it breached his right to earn a livelihood: He only ever had a freedom to land his boat, not a right, couldn’t be said the right was under “attack”.
• Different if given permit then revoked without reasons: he has a right in this scenario.

Question 46

(b) No Right to a Particular Livelihood

Landers v AG [1975]

Answer 46

• Convicted under s.2 Prevention of Cruelty to Child Act: crime to let kind under-14 be in licenced premises singing bw 9pm and 6am. Argued s.2 breached right to earn livelihood.
• Rejected: L still had options to him. Right restricted, not totally taken away (Flimsy reasoning)

Question 47

(c) Weak Right?

Cafolla v O’Malley [1985]

Answer 47

• Gaming and Lotteries Act 1956 limited gaming machines to 2.5p stake and 50p prize. Argued infringed right: these limitations made his livelihood v unprofitable (monetary value diff now)
• Held court had no jurisdiction to hold this, only to consider if the restrictions were justifiable: held they were: ‘exigencies of common good require strict control of gaming provisions’
• Deferential approach: disregards the proportionality test: only legislative objective important

Question 48

(c) Weak Right?

Hand v Dublin Corporation [1991]

Answer 48

• Casual Trading Act 1980 prevented granting CT licence if app had two convictions under it.
• Argued it breached their right and the punishment was disproportionate to the offence committed.
• But, held the right to casually trade is given under the act: doesn’t exist without this act.
• SC held where Oir has to legislate for control of CT in public place where public have access as of right, Oir can provide strict regulation & control having regard to the exigencies of the common good.

Question 49

(c) Weak Right?

Cox v Ireland [1992] Change

Answer 49

• S.76 Offs Ag the State Act 1939: Person in State job loses job upon conviction, but only in the Spec Crim court, of certain offences in the Act. Also barred State employment for 7 years and perpetual bar on any pension entitlement accrued before conviction.
• SC noted it was a major inroad to his livelihood right, especially given the width of the field he’s now disqualified and his property rights (pension entitlements) were infringed (already earned!).
• Held State is entitled to provide onerous penalties to protect public peace and order, but held this went too far and did not satisfy the proportionality test.
• It was not warranted by the objectives the state wished to purse (eliminating terrorist offences)

Question 50

(c) Weak Right?

Re Art 26 and the Employment Equality Bill 1996 [1997]

Answer 50

• Argued the anti-age discrimination measures robbed employers of freedom to choose ppl suitable to certain tasks. SC didn’t agree: legitimate for legislature to enact measures to combat discrim
• Bill require employers to pay out to finance the integration of disabled people into the workplace, save where this would cause undue hardship.
• Held this was an unjust attack on right to earn livelihood as a property right. Acknowledged the
  hardship exception, but involved disclosing finances to outside party: held unacceptable (privacy)

Question 51

(d) Proving an Infringement

Scally v Minister for Environment [1996]:

Answer 51

Show actual impact as opposed to mere lost opportunity.

Question 52

(e) Horizontal Effect: Against private people?

Lovett v Gogan [1995]:

Answer 52

P operated Dublin-Clare service w licence. G started operating service w/o
licence. SC gave injunction to prevent an ‘unlawful activity’ that interfered w right to earn livelihood

Question 53

NVH v Minister for Justice [2017]

Answer 53

• N came to Ireland and applied for refugee status. Process was v long and was not allowed take up employment so challenged on, inter alia, constitutional grounds: right to work/earn livelihood.
• Held freedom to seek work implies negative obligation not to prevent P obtaining work, at least w/o substantial justification, but held it must be recognised work is connected to dignity and freedom of the person than the Preamble tells us the constitution seeks to promote.
• Held the issue was the complete removal by s.9(4) Refugee Act of the right to work as opposed to a mere limitation of the right: No limitation on time in which application is processed.
• Held prepared to declare contrary to constitution right to work, but instead gave suspended declaration
  of invalidity, encouraging a legislative response to resolve the issue.

Question 54

4. Right to Travel

Ryan v AG [1965]:

Answer 54

“There are many personal rights that flow from the Christian and Democratic nature of the State not mentioned in Art.40 - the right to free mvmt within the State”.

Question 55

4. Right to Travel

State (M) v Minister for Foreign Affairs [1979]

Answer 55

• M refused app by mother of child for passport. Illegit child born to Irish mother and Nigerian F.
• Min refused due to s.40 Adoption Act: Illegitimate child under 7 can’t be removed from the state without the approval of the mother and then only for purpose of living abroad w M/M’s relatives
• Legit child was allowed, but court refused to hold unconstitutional based on Art.40.1 (equality)
• Held unconstitutional on basis of right to travel: s.40(1) may have serious consequences for C needing to go abroad for medical treatment but w/o parent. S.40 gave no discretion to courts to allow removal
  in such a case, so failed to defend & vindicate the right of child to travel.

Question 56

5. Right to Bodily Integrity

Ryan v AG [1965] Established the right

Answer 56

• Concerned compulsory fluoridation of drinking water. Held there was a right to bodily integrity, but not breached: no right to un-fluoridated water supply. P could’ve removed it for low cost if she wished

Question 57

5. Right to Bodily Integrity

State (C) v Frawley [1965]

Answer 57

• C was engaging in attempts to escape including repeated swallowing of metal objects requiring surgery to remove. Evidence suggested he had a disorder and further surgery would risk his life.
• Prison said they’d no choice but to keep him in solitary confinement and restrained.
• He argued he should receive specialised medical treatment, not solitary confinement in shackles
• Held bi could prevent an act/omission of the executive that would expose a person’s health to risk
• Agreed bodily integrity included right to be free from inhuman and degrading treatment, however, held satisfied his medical requirements were met by the prison: regularly examined and visited by top consultants, no one has denied him treatment, he did this himself!

Question 58

5. Right to Bodily Integrity

State (Richardson) v Governor of Mountjoy [1980]

Answer 58

• Prisoner applied for inquiry by HC under Art.40.4 into toilet conditions in the women’s section.
• Women slopped out every morning using cold water. R said there was splash back of faeces.
• Held state had violated her rights by failing to provide her with appropriate facilities to maintain
  proper standards of hygiene and cleanliness (just declaration as the practice had stopped by then).

Question 59

5. Right to Bodily Integrity

Ireland v UK [1978]

Answer 59

Art.3 ECHR: No one shall be subjected to torture or to inhuman/degrading treatment or punishment: Complained to ECtHR re methods of UK interrogation: forcing ppl to stand spread-
eagled against wall for hrs, hood over head, deprived of sleep, food + drink. Held not regarded as torture

Question 60

5. Right to Bodily Integrity

Wainright v UK [2006]:

Answer 60

In principle strip-searches don’t violate Art 3, but did here bc degrading circs

Question 61

6. Right to Communicate

Murphy v IRTC [99]

Answer 61

Now protected under Art.40.6.1.i as part of general freedom of expression (info addressed to public). Ban on religious ad broadcast: Held right to comm is one of most basic rights of man

Question 62

7. The Right to Marry and Found a Family and Related Family Rights

Ryan v AG [1965]:

Answer 62

Held right to marry is one of the rights protected by Art.40.3.

Question 63

7. The Right to Marry and Found a Family and Related Family Rights

Murray v Ireland [1985]:

Answer 63

Held there is a right to procreate. Argued detention for murder robs you of
ability to exercise it. Rejected: Legitimacy in restricting the right when you have been sent to prison.

Question 64

8. Natural and Constitutional Justice Rights

McDonald v Bord na gCon [1965]:

Answer 64

Held constitutional & natural justice must be understood to import (1) No man shall be judge in his own cause (unbiased judge) and (2) audi alterem partem (hear the other side).

Question 65

8. Natural and Constitutional Justice Rights

Re Haughey [1971

Answer 65

FPs: Held Art.40.3 guaranteed basic fairness of procedures, and outlined the protections for civil proceedings e.g. right to be given notice, right to be heard, duty to give reasons, etc.

Question 66

8. Natural and Constitutional Justice Rights

Garvey v Ireland [1980]:

Answer 66

G was the Garda Comm and was dismissed. He brought proceedings against his dismissal. Affirmed Haughey and said the gov and its agencies are bound to uphold the right to FPs. Held
gov has wide discretion as to reasons for dismissal, but must give reasons & he must give right to be heard

Question 67

(a) Variability of the Rights

Mooney v An Post [1994]:

Answer 67

the right cannot be applied uniformly to every set of facts. Procedures that may be acceptable in one case may be far from acceptable in another.

Question 68

(a) Variability of the Rights

Flanagan v UCD [1988]:

Answer 68

F accused of plagiarism in her master’s thesis. Held due to the seriousness of the accusation, she should be entitled to notice of the accusation and given an opportunity to defend it/be
heard. Depending on the gravity of the matter, the person may be entitled to be represented.

Question 69

(1) Notice and Reply

Ryan v VIP Taxis [1989]:

Answer 69

Complaints alleged against a taxi man. Held he was entitled to the names and addresses of the complainants and specific details of the complaints (i.e. notice).

Question 70

(1) Notice and Reply

Re Haughey [1971]: Minimum set of fair procedure rights:

Answer 70

a. Right to be furnished with copy of evidence which reflected his good name
b. Right to cross-examine, by counsel, his accuser
c. Right to give rebutting evidence
d. Right to address the committee in his own defence

Question 71

(1) Notice and Reply

Dellway Investments v NAMA [2011]:

Answer 71

• Challenges to NAMA and NAMA Act 2009 by JR: should the Act be construed in accordance w principles of const justice and give borrowers a right to be heard before NAMA acquires their loans?
• Held D identified matters that would affect their rights if NAMA acquired the loans, incl. reputation
• Thus, there’s clear evidence it’ll affect their const rights and thus this triggers a right to be heard.
• Held the decision is fact-specific and is not a general right to all borrowers: the apps are directly affected (has an income stream from the property which is his livelihood).
• In general, it is not a right to an oral hearing, but to make written representations.

Question 72

(1) Notice and Reply

Shatter v Guerin [2019] Background

Answer 72

• S took JR re a report to the Taoiseach re handling of allegations by M McCabe re misconduct.
• S resigned when report came out. S claimed the report contained damaging findings about him that G included w/o giving him an opportunity to rebut or reply (never interviewed).
• The report recommended established a commission of investigation. Established and O’Higgins J was appointed. O’Higgins J exonerated S from any criticism re his dealings with Mc’s complaints
• S argued if G gave him the opp O’H did, he would’ve never had to resign.

Question 73

(1) Notice and Reply

Shatter v Guerin [2019] Decision

Answer 73

• Decision: O’Donnell J held that there is no general right to fair procedures in a preliminary inquiry with a view to making recommendations as to the establishment of a more formal inquiry.
• If S who was not the main thrust of the preliminary inquiry was entitled to such procedural protection, then all individuals potentially within the scope of the inquiry would also be.
• This would have big consequences in terms of the ppl who could demand this + procedures required
• Held certain conclusions of G re S were outside scope of task set & not subject of any notice to S
• Charleton J also held because of the publicly proclaimed negative comment, minimal fairness of procedures was required BUT only to extent of telling the person against whom comment that
  substantially affects the right to a good name or other constitutional rights.

Question 74

(2) Reasons for the Decision: NO general duty, depends on case

Rajah v Royal College of Surgeons [1994]

Answer 74

• Challenge re number of times you could sit RCSI exams before expelled (reasons why)
• Held in general, bodies that aren’t courts but exercise functions of judicial/quasi-J nature determining legal rights and obligations must give reasons for their decision.

Question 75

(2) Reasons for the Decision: NO general duty, depends on case

International Fishing Vessels v Minister for Marine [1989]

Answer 75

Act giving Min “absolute discretion”:
- IFFV’s app for a fishing licence was rejected but M refused to give reasons why.
- Held the M’s decision is still reviewable by the court, so IFFV has the right to have it reviewed.
- But by refusing to give reasons, M places a serious obstacle on that right. MUST give reasons.

Question 76

(3) Representation

Flanagan v UCD [1988]:

Answer 76

Held it was such serious accusation with far-reaching consequences for F that
fairness required she be allowed representation by someone of her choice (it was criminal in nature).

Question 77

(4) No Bias

Dublin Wellwoman Centre v Ireland [1995]:

Answer 77

Carroll J refused to excuse herself from hearing a case when reminded she’d chaired a women’s interest group supporting circulation of abortion info. SC accepted she wouldn’t actually be biased but a possible perception of bias was raised so she shouldn’t hear the case.

Question 78

(4) No Bias

Bula Ltd v Tara Mines [2000]

Answer 78

• BL alleged Barrington J and Keane J had connections with TM that’d give rise to bias.
• BJ acted as counsel for the fifteenth respondent and prepared advice for first respondent in 70s.
• KJ advised the first respondent and undertook to represent them before ABP, but didn’t have to
• Held a prior relationship of legal advisor and client did not generally disqualify a judge. Must be other
  factors e.g. (1) a long, recent connection or (2) if judge previously gave services on issues in present