THE HIGH COURT

Record No. 5813P/2003

Between:

Ann Lawrence, Patrick Lawrence, Mary Lawrence (A Minor) suing by her father and next friend Patrick Lawrence,

Bernard Lawrence (A Minor) suing by his father and next friend, Gerard Lawrence (A Minor) suing by his father and

next friend Patrick Lawrence, Ellen Marie Lawrence (A Minor) suing by her father and next friend Patrick

Lawrence, Margaret Lawrence (A Minor) suing by her father and next friend Patrick Lawrence, Cathleen Lawrence (A

Minor) suing by her father and next friend Patrick Lawrence, Patrick Lawrence (A Minor) suing by his father and next

friend Patrick Lawrence, Anne (Brigid) Lawrence (A Minor) suing by her father and next friend Patrick Lawrence

Plaintiffs

V

Ballina Town Council, The County Council of the County of Mayo, the Commissioner of an Garda Síochána, Director of

Public Prosecution (at the suit of Sergeant Anthony Lavelle) , The District Judge sitting at Ballina District Court, Ireland

and the Attorney General

Defendants

And

The Human Rights Commission Amicus

Curiae

And

The Equality Authority

Amicus Curiae

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SUBMISSIONS ON BEHALF OF THE HUMAN RIGHTS COMMISSION

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1. INTRODUCTION

1.1 The Human Rights Commission (hereinafter “the Commission”) makes the following submissions in relation to a number of issues arising in the proceedings before this Honourable Court.

1.2 The Commission’s functions are set out in the Human Rights Commission Act 2000 as amended. Section 8(h) empowers the Commission to apply to the High Court and to the Supreme Court to be joined as amicus curiae in proceedings before the Court that pertain to the human rights of any person and to appear as such on foot of an order of the Court. The term “human rights” is defined in the Act of 2000 as meaning:

“(a) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Constitution, and(b) the rights, liberties or freedoms conferred on or guaranteed to, persons by any agreement, treaty or convention to which the State is a party.”

1.3 The Commission is of the view that the proceedings herein raise certain fundamental issues pertaining to the protection of human rights. In that regard, it will address whether or not Sections 19C(1) and Section 19(F) of the Criminal Justice (Public Order) Act 1994 as inserted by Section 22 of the Housing (Miscellaneous Provisions) Act 2002 (hereinafter referred to together as “the Act of 2002”) meet the requirements of the relevant rights provisions in the Constitution and in pertinent international instruments. The Commission notes that the Equality Authority was joined as amicus curiae for the purpose of addressing the Court on Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (the

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Race Directive) and thus the Commission does not propose to address same in the course of its submissions nor at the hearing of this action. 1.4 On the 20th June 2005, the Commission applied to be joined as amicus curiae in the proceedings and that application was acceded to by O’Neill J. On the 18th day of July 2005, the matter was re-entered before O’Neill J by the Third and Fourth Named Defendants for clarification in relation to certain matters, and on that date, O’Neill J directed the amendment of the Order of the 20th June joining the Commission, to record an undertaking by Counsel for the Commission “not to duplicate submissions made by any other party herein at the hearing of the matter [and] to be as brief as possible in the making of submissions”. Thus, although the Commission herein addresses the issues with which it is concerned in the proceedings, it is to be anticipated that it will not address same before this Honourable Court to the extent that those issues are aired by the parties themselves.

2. THE RELEVANCE OF INTERNATIONAL LAW PROVISIONS

2.1 The Commission submits that, when considering the constitutionality of the impugned provisions, the interpretation and understanding of the relevant constitutional provisions ought to be informed by the provisions of international Conventions ratified by the State. In the event of any conflict between the provisions of an international convention and any provision within the domestic legal framework, effect must, of course, be given to the domestic provisions. To do otherwise would be to ignore the rule embodied in Article 29(6) of the Constitution that no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas and would also amount to disregard

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of Article 15.2.1º which confers the sole and exclusive law making power in the State upon the Oireachtas.1

2.2 Thus, any attempt to use the provisions of unincorporated international law, whether on the assertion that the provisions ought to be regarded as “generally recognized principles of international law” referred to in Article 29.3 of the Constitution or otherwise, as a basis for challenging the validity of any rule of domestic law is doomed to failure.2 Nonetheless the Courts have on a number of occasions shown a willingness, in the absence of conflict between domestic and international provisions, to consider the terms of such international instruments with a view to

11 As the Supreme Court noted in Re Ó Laighléis [1960] IR 93 wherein the Applicant sought to challenge the validity of the Offences against the State (Amendment) Act 1990, having regard to the terms of Articles 5 and 6 of the European Convention of Human Rights:

“Where there is an irreconcilable conflict between a domestic statute and the principles of international law or the provisions of an international convention, the courts administering ‘the domestic law must give effect to the statute … if this principle were not to be observed it would follow that the Executive Government by means of an international agreement might, in certain circumstances, be able to exercise powers of legislation contrary to the letter and the spirit of the Constitution”.

2 In Murphy v GM [2001] 4 IR 113 the Plaintiff argued that the provisions of the Proceeds of Crime Act 1996 infringed the European Convention on Human Rights, that the Convention ought to be regarded as part of the generally recognized principles of international law referred to in Article 29.3 and that accordingly, the Act must be considered unconstitutional. This argument was rejected by the Supreme Court, who held (at p. 158):

“this case concerns the application of domestic legislation to persons within the jurisdiction of the State. In these circumstances it is not relevant or necessary to consider the application of the ‘principles of international law’ in the case and in particular whether the provisions of the European Convention on Human Rights ought to be treated as included in those ‘principles’, as Article 29.3 of the Constitution makes clear that these general principles, whatever their content, govern relations with other sovereign states at an international level”.

Similarly, in Kavanagh v Governor of Mountjoy Prison [2002] 3 IR 97 an attempt was made to invoke Article 29.3 in support of the argument that certain principles of international law should be afforded constitutional status. In particular, the applicant sought to rely on Article 26 of the UN Covenant on Civil and Political Rights (principle of equal treatment) in support of his claim that his trial before the Special Criminal Court was not in conformity with law. The Supreme Court rejected this contention, with Fennelly J stating (at p.90):

“The obligation of Ireland to respect the invoked principles [of international law] is expressed only in the sense that it is to be ‘its rule of conduct in relation to other nations’. It is patent that this provision confers no rights on individuals. No single word in [Article 29.3] even arguably expresses an intention to confer rights capable of being invoked by individuals”.

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informing their understanding of the applicable constitutional standards.

2.3 Thus, for example, in State (Healy) v Donoghue,3 the Supreme Court had regard to the terms of Article 6 of the European Convention on Human Rights (hereinafter “the ECHR”) when considering the scope of the right to legal aid under Irish law. Although the ECHR at that time had been ratified by Ireland but not incorporated into the domestic legal system, O’Higgins CJ nevertheless stated that:

“it is sufficient to say that the existence of the Convention demonstrates clearly that it was … generally recognized throughout Europe that, as one of his minimum rights, a poor person charged with a criminal offence had the right to have legal assistance provided for him without charge”.

2.4 The Supreme Court was therefore willing to have regard to an unincorporated international instrument in the context of its interpretation of the constitutional guarantee of the right to a trial in due course of law as protected in Article 38 and of the guarantees set out in 40.3 of the Constitution. In this case, the Court saw the acknowledgement of the right to legal aid under the ECHR as significant in its confirmation of the generally recognised existence of such a right.

2.5 Similarly, in O’Leary v Attorney General,4 when considering the constitutional status of the presumption of innocence (in the context of the guarantee of a trial in due course of law pursuant to Article 38 of the Constitution), Costello J reviewed the status afforded to the presumption in a number of international instruments, including Article 6(2) of the ECHR and Article 11 of 3 [1976] IR 325.4

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the UN Universal Declaration on Human Rights 1948. Costello J then concluded (at p.107):

“by construing the Constitution in the light of contemporary concepts of fundamental rights, (as I am entitled to do: see State (Healy) v Donoghue) the plaintiff’s claim obtains powerful support.”

2.6 Further examples of such judicial willingness can be found in the judgments of the Supreme Court in Rock v Ireland5 and Murphy v I.R.T.C.6 in which the principle of proportionality (and the parameters of that principle), as expounded in the jurisprudence of the European Court of Human Rights, was adopted and employed in a domestic context prior to the incorporation of the ECHR.

2.7 Indeed, unincorporated international law provisions may have indirect effect through the operation of a presumption of compatibility of domestic law with international obligations. In State (DPP) v Walsh,7 Henchy J expressed the view that our domestic laws are generally presumed to be in conformity with the then unincorporated European Convention on Human Rights. The notion of such a presumption was endorsed by O’Hanlon J, in support of his view that the provisions of the European Convention on Human Rights, then unincorporated, ought to be considered by Irish judges when determining what public policy was: Desmond v Glackin (No.1).8 Reference is also made to the judgment of Finlay-

5 [1997] 3 IR 484.6 1999] 1 IR 12. In both cases, the Supreme Court adopted Costello J’s formula regarding the principle of proportionality in Heaney v Ireland [1994] 3 IR 593 in which he referred to the test frequently adopted by the European Court of Human Rights as set out, for example, in Times Newspapers Ltd v UK (1979) 2 EHRR 245. 7 [1981] IR 412 to the effect that our laws are generally presumed to be in conformity with the then unincorporated European Convention on Human Rights.8 [1992] 2 ILRM 490. In O Domhnaill v Merrick [1984] IR 151, Henchy J noted the submission that the Statute of Limitations 1957, enacted after the State ratified the European Convention on Human Rights, should be deemed to be in

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Geoghegan J in Nwole v Minister for Justice,9 when considering aspects of the asylum application process as it applied to minors. The learned judge stated that:

“The provisions of the Refugee Act of 1996 [regarding the processing of applications for asylum] must be construed, and its operation applied by the authorities, in accordance with the Convention on the Rights of the Child which has been ratified by Ireland.”10

2.8 It is thus clear that Finlay Geoghegan J was willing to have regard to the terms of an international agreement in her consideration of the rights of minors in the asylum process in this jurisdiction. Likewise, in Bourke v Attorney General,11 the Supreme Court, when interpreting the meaning of the term “political offence” in Section 50 of the Extradition Act 1965 placed reliance upon the meaning attributed to same in the European Convention on Extradition, and also upon the travaux preparatoires thereof.12

conformity with the Convention in the absence of any contrary intention, and should be construed and applied accordingly. However, Henchy J did not express a concluded opinion on the point as the application of the Convention had not been argued. McCarthy J in his judgment stated (at p.166) “I accept, as a general principle, that a statute must be construed, so far as possible, so as not to be inconsistent with established rules of international law and that one should avoid a construction which will lead to a conflict between domestic and international law”. 9 High Court (Finlay Geoghegan J) 31st October 2003, at p.12.10 Finlay Geoghegan J went on to consider the terms of Article 12 of the Convention on the Rights of the Child, which entitles children capable of forming their own views to “the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”. It also contained provision for the child having an opportunity to be heard in any judicial and administrative proceedings affecting the child. Finlay Geoghegan J concluded that (at p.13) “this would appear to require, at a minimum, an inquiry by or on behalf of the respondent in respect of any minor applicant for a declaration of refugee status as to the capacity of the minor and the appropriateness of conducting an interview with him or her”. 11 [1972] IR 36.12 This may be seen as an example of the principle of statutory construction referred to by the House of Lords in Garland v British Rail [1983] 2 AC 751 at 771 “that the words of a statute passed after a treaty has been signed and dealing with the subject matter of the international obligation of the State are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation and not to be inconsistent with it.”

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2.9 It is also of interest to note that the approach advocated by the Commission corresponds with the practice often adopted by the European Court of Human Rights wherein the Court has considered the provisions of relevant international law provisions when considering the meaning and parameters of rights protected under the ECHR. One clear example is to found in the judgment of the Court in Chapman v United Kingdom13 to which reference will be made in the body of these submissions. In the course of considering the relevance of Article 8 of the ECHR to the circumstances of a woman, a Gypsy, who argued that the actions of the relevant public authorities interfered with her pursuit of her right to pursue a nomadic lifestyle, the Court had considered the Council of Europe Framework Convention on the Protection of National Minorities and also to certain measures adopted by the institutions of the European Union before reaching its conclusions as to the applicability of Article 8 to claims based upon the right “to pursue a gypsy way of life”.

2.10 Thus, it is submitted that the Courts have shown a willingness to use non-binding instruments to inform the understanding of specific and consistent constitutional provision to which the non-binding international provision may be “pinned”. The international instrument may be seen both as a buttress and a guide to existing constitutional guarantees, as far as the interpretation of the statutory provision before the court is concerned. The Commission is of the opinion that it is entirely appropriate that the Constitution and the guarantees thereunder should be informed by international treaties ratified by the State, where such a state of affairs is possible, and thus endorses the above approach in the context of the proceedings herein.

13 (2001) 33 EHRR 399.

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2.11 The above argument regarding the role to be played by international law in informing our understanding of constitutional provisions applies equally in relation to the ECHR. In addition, however, to that role, direct reliance may be placed upon the ECHR in a domestic context since the implementation of the European Convention on Human Rights Act 2003. Sections 2, 3 and 5 of that Act are set out in the Plaintiff’s submissions. It is noted that the Plaintiff sought to amend the pleadings herein to take account of the implementation of this Act and also to take account of Council Directive 2000/43EC. That application was refused by Johnson J on the 28th day of February 2005 who expressed the view that it was not necessary to do so as no new facts were sought to be advanced: the points of law in issue were matters for argument at the hearing of the action and did not necessitate an amendment to the pleadings. In the draft amended Statement of Claim prepared by the Plaintiffs for the purpose of the application, two Declarations of Incompatibility pursuant to Section 5 of the Act of 2003 were sought. It is therefore to be expected that the Plaintiffs will raise arguments based upon the incompatibility of the impugned provisions with the ECHR in the course of the hearing herein. It is noted, however, that the Court may of its own motion declare a provision to be incompatible with the ECHR pursuant to Section 5 of the European Convention on Human Rights Act 2003.

2.12 In view of the fact that issues of compatibility of the impugned provisions with the ECHR may be raised and considered on a separate basis, it is proposed herein to first of all consider the constitutional dimensions of the issues which arise in the proceedings, as informed by relevant international law standards, and thereafter to consider the ECHR dimension separately, bearing in mind all the while that that dimension may also inform the constitutional understanding of the issue raised.

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3. RECOGNITION OF TRAVELLERS’ RIGHTS

3.1 It is submitted that the question of respect for Traveller identity, culture and values is at the heart of issues arising in this case as to the compatibility or lack of compatibility of the impugned legislation with domestic and international human rights norms. Travellers regard themselves as a distinct group14 within society and are so regarded by the settled community15. It is argued that the values at the core of the Constitution require respect for the right to pursue life as a Traveller and to adhere to Traveller values. The principles of dignity, autonomy and privacy are central to the constitutional order. In that regard, it is noted that in Re a Ward of Court (No. 2)16 Denham J described the right to be treated with dignity as “an unspecified right under the Constitution”. Dignity is strongly associated with the right to privacy: McGee v Attorney General,17 Norris v Attorney General,18 and Kennedy v Ireland.19

14 The Committee on the Elimination of Racial Discrimination in General Recommendation No. 08: Identification with a particular racial or ethnic group (August 22, 1990) recommended that that “such identification shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned.” 15 As Crowley notes in “Travellers and Social Policy” in Contemporary Irish Social Policy (Quin, Kennedy, O’Donnell and Kiely (eds), (University College Dublin Press 1999) at p. 244, “[T]ravellers share common cultural characteristics, traditions and values which are evident in their organization of family, social and economic life. Nomadism, in a range of forms, has been central to the development and expression of these characteristics, traditions and values. Travellers have a long shared history which, though undocumented, can be traced back before the 12th century through mention of Travellers in the law and through analysis of their language, Cant. They have a distinct oral tradition and largely marry within their own community.”? Crowley asserts that such elements have all been identified as defining an ethnic group. Likewise G. Whyte has argued that “a very strong case can be made for Traveller ethnicity”: Social Inclusion and the Legal System (IPA 2001) at p. 216. 16 [1996] 2 IR 79.17 [1974] IR 284.18 [1984] IR 36.19 [1987] IR 58. See also the dissenting judgment of Henchy J in Norris v Attorney General [1984] IR 36 where he commented (at p.71) that, having regard to the purposive Christian ethos of the Constitution, “there is necessarily given to the citizen, within the required social, political and moral framework, such a range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual in the type of society envisaged”

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The courts in recent years have placed a strong emphasis on autonomy as a constitutionally protected value which is inherent on the rights to liberty and due process and indeed it was recognised as a distinct personal right in Re a Ward of Court (No. 2). The constitutional right to travel within the State must also be borne mind in this context. The right to personal liberty, guaranteed by Article 40.4, is now commonly understood to inform this right,20

although the initial identification of the right located it within the guarantee of personal rights contained in Article 40.3. Thus, in Ryan v Attorney General,21 Kenny J gave as an example of “the many personal rights of the citizen which flow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all”, but which are latent within that Article, as the “right to free movement within the State”.

3.2 Finally, the constitutional guarantee of equality in Article 40.1 must inform the debate regarding the protection of Traveller identity. That provision envisages that:

1. All persons shall, as human persons, be held equal before the law,

2. This shall not be held to mean that that State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social functions.”

3.3 Of importance in this context is the observation of Walsh J in Quinn’s Supermarket v Attorney General22 that:

20 Described by Hogan & Whyte in the following terms: “a deprivation of liberty, although instinctively pictured in the form of imprisonment or being locked up, is essentially a deprivation of mobility”: Kelly: The Irish Constitution (LexisNexis Butterworths 2003) at p.1466. 21 [1965] IR 294.22 [1972] IR 1 at 13-14

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“[T]his provision is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individuals or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community.”

3.4 As Denham J noted in Re a Ward of Court (No.2), this concept:

“is not a restricted concept, it does not mean solely that legislation should not be discriminatory. It is a positive proposition.”23

3.5 The concept of indirect discrimination is considered at a later point in the submissions. For present purposes, however, (and despite the recognition that jurisprudence on constitutional equality is at a relatively underdeveloped stage as yet), it suffices to say that if Article 40.1 imposes an obligation to protect and promote, in a legislative context, the concept of equality between different groups within society, then it too may support the contention that the constitutional order demands that respect be afforded to Traveller culture and values.

3.6 It is submitted that the combined effect of the above provisions is to create a constitutional environment in which respect is to be afforded to Traveller values and ways of living. Indeed, there are both judicial pronouncements and legislative provisions which endorse this perspective. In Re F O’D, An Infant;

23 [1996] 2 IR 79 at 159.

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Southern Health Board v An Bord Uchtála24 a case concerning the contested adoption of a child of married Traveller parents, Denham J stated:

“There is no doubt that it is a matter of great importance to take care in placing a child in a family of different cultural ethnic background – to ensure that the child’s interests are served. These interests may include knowledge of his social, cultural and ethnic background”.

3.7 A number of legislative acknowledgements of the separate identity of Travellers also exist. The first legal definition of Travellers was found in section 13 of the Housing Act 1988 as amended by section 29 of the Housing (Travellers Accommodation) Act 1998. They are defined in that section as:

“persons who traditionally pursued or have pursued a nomadic way of life.”

3.8 The Employment Equality Act 1998 prohibits discrimination on the basis of “race, colour, nationality, or ethnic or national origin” and then separately prohibits discrimination on the basis of membership of “the Traveller community” (Sections 6(2) (h) and (i) of the 1998 Act). The Equal Status Act 2000 repeats this formula, whilst also including a definition of the “Traveller community” at s.2(1) as meaning:

“the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland.”

24 [2000] 1 IR 165.

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3.9 In view of the Commission’s contention that, in the absence of conflicting domestic provisions, the provisions of the Constitution ought to be informed by the relevant provisions of those international instruments to which the State is a party, a number of those instruments offering guidance on the recognition of the validity of the Traveller way of life and on the obligation upon states parties to protect same fall to be considered at this juncture. 3.10 The Convention on the Elimination of Racial Discrimination (hereinafter “CERD”) is a UN treaty aimed at the eradication of racism and racial discrimination worldwide.25 Ireland signed the Convention in 1968 but has thus far taken no steps to incorporate the Convention into Irish law. The State ratified the Convention in December 2000, at which time it also accepted the right of individual petition under Article 14 of the Convention.

3.11 Article 2 of CERD provides that the States Parties condemn racial discrimination and undertake to pursue by all appropriate means a policy of eliminating all forms of racial discrimination in all its forms. It is also provided, at Article 2(3), that each State Party shall:

“take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.”

3.12 At Article 5, States Parties undertake to prohibit and to eliminate all forms of racial discrimination and to guarantee the right of everyone, without distinction as to race, colour or national

25 The treaty was adopted by the UN in 1965 and came into force in 1969.

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or ethnic origin, to equality before the law in the context of the enjoyment of a comprehensive list of rights thereafter set out.

3.13 Article 1.1 of CERD provides that:

“In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

3.14 The Commission regards Travellers as an ethnic group for the purposes of this Convention and it contends that the philosophy underlying CERD is one which requires the provision of respect and protection for, amongst others, such groups.

3.15 In Ireland’s First National Report under the Convention on the Elimination of All Forms of Racial Discrimination,26 the State for the first time expressly denied that Travellers constituted a distinct ethnic group. Whilst the report asserts that the State is committed to applying all the protections afforded to ethnic minorities by CERD to Travellers, it nevertheless refuses to acknowledge that Travellers do in fact constitute such an ethnic minority group. In its response, the Committee on the Elimination of Racial Discrimination expressed its disappointment at the stance adopted by the Government in that regard.27

26 March 25, 2004.27 In the Concluding observations of the Committee on the Elimination of Racial Discrimination (April 14, 2005), the Committee stated at paragraph 20:

“Recalling its general recommendation VIII on the principle of self-identification, the Committee expresses concern at the State party's position with regard to the recognition of Travellers as an ethnic group. The Committee is of the view that the recognition of Travellers as an ethnic group has important implications under the Convention (arts. 1 and 5).”

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3.16 Likewise in its First Report to the Advisory Committee of the Council of Europe in relation to the Framework Convention on the Protection of National Minorities, the Government concluded that Travellers are not a “national minority”.28 It did, however, regard them as an “indigenous minority who have been part of Irish society for centuries and confirmed that it fully accepted the right of Travellers to their cultural identity, regardless of whether they may be described as an “ethnic group” or “national minority””.

3.17 As the Human Rights Commission noted in its Discussion Paper on Travellers as an Ethnic Minority under CERD29 at p. 4:

“the term ‘ethnic origin’ and related terms like ‘ethnic group’ or ‘ethnic minority’ have a particular meaning for the purposes of CERD and other relevant international instruments. What is meant is evidently a group that is liable to discrimination on the basis that it is different and distinct

The Committee went on to encourage Ireland to “work more concretely towards recognising the Traveller community as an ethnic group”.28 November 13, 2001. The Report provided as follows:

“[The term] "national minority" is not, as such, legally defined under Irish law. Ireland has not made a declaration on the application of the Convention to any particular national minority or minority community. In its international human rights policy, Ireland has supported the view that the designation and protection of national minorities is an integral part of the international protection of human rights and does not fall solely within the reserved domain of the State concerned. In this regard, Ireland notes General Comment 23(50) of the UN Human Rights Committee on Article 27 (rights of ethnic, religious and linguistic minorities) of the International Coherent on Civil and Political Rights that the existence/designation of a minority does not depend upon a decision by the State, but is required to be established by objective criteria. Ireland is also conscious of the right (reflected in Article 3 of the Framework Convention) of individuals and/or groups of individuals to freely choose whether or not to be treated as a recognised minority.

In order not to be at variance with these principles, which underpin the aims of the Framework Convention, this - the first report to be submitted by Ireland - gives a detailed account of how the provisions of the Framework Convention are given effect in law and practice in Ireland, without seeking to designate a specific "national minority". That is not to say that such "national minorities" may not emerge in the future.”

29 March 2004.

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from the majority in a way that is similar to, but not the same as, groups whose skin colour is different or who are clearly of a different nationality. The terms ‘ethnic origin’, ‘ethnic group’ etc are clearly intended to be used in a broad and flexible way to deal with groups who do not readily fit into the traditional categories of race and colour”.

3.18 The judgment of Lord Frazer in the House of Lords decision in Mandla v Dowell Lee30 is most instructive in so far as the classification of the term “ethnic origin” is concerned. The Judge stated that:

“the conditions which appear to me to be essential [for the identification of a distinct ethnic group] are these:(1)a long shared history, or which the group is conscious as

distinguishing it from other groups, and the memory which it keeps alive;

(2)a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.

In addition to these two essential characteristics, the following characteristics are in my opinion relevant:(3)either a common geographical origin, or descent from a

small number of common ancestors;(4)a common language, not necessarily peculiar to the group;(5)a common literature peculiar to the group;(6)a common religion different from that of neighbouring

groups or from the general community surrounding it;(7)being a minority or being an oppressed or a dominant

group within a larger community”.

30 [1983] 2 AC 548.

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3.19 Gypsies have been recognized as a distinct racial group in a number of decisions of the English courts, such as Commission for Racial Equality v Dutton31 and Hallam v Cheltenham Borough Council,32 and as a distinct ethnic group by the European Court of Human Rights in Chapman v United Kingdom, where the court stated “the applicant’s occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle”. In O’Leary & Ors v Allied Domecq & Ors33 Irish Travellers were found to constitute a “distinct ethnic group” for the purpose of the Race Relations Act 1976; this finding is of particular interest in this regard, particularly having regard to the similarity between the wording of that Act and CERD.

3.20 In light of the above, the Commission once more submits that Travellers share an ethnic origin and are an ethnic group for the purposes of the application of CERD.

3.21 It is to be noted that the definition of racial discrimination set out in Article 1.1 of that Convention, by its reference to the prohibition of measures which have the effect of interfering with the enjoyment on an equal footing of human rights and freedoms, embraces both direct and indirect discrimination. A similar prohibition is found in the International Covenant on Civil and Political Rights. Article 26 thereof provides that:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection

31 [1989] 2 WLR 17.32 [2001] UKHL 15.33 Unreported, 29 August 2000.

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against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

3.22 Unlike Article 14 of ECHR, considered below, and Article 2 of the Convention on the Rights of the Child34 Article 26 is a freestanding non-discrimination provision which is not ancillary to any other Covenant right. In General Comment 18, the United Nations Human Rights Committee provides that in its view Article 26 embraces indirect discrimination.35 A similar prohibition on indirect discrimination is to be found in the Convention on the Elimination of Discrimination against Women.36 The Irish courts have yet to have occasion to consider in any comprehensive way whether Article 40.1 embraces indirect discrimination and in such circumstances, the parameters of the constitutional guarantee may be informed by the above international law provisions.37

3.23 A further guarantee of relevance from the point of view of the recognition of Travellers’ rights can be found at Article 27 of the

34 Article 2 of the CRC provides that “States Parties shall ensure respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national or ethnic or social origin, property, disability or other status.” 35Paragraph 7 states that discrimination shall cover:…any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.

36 Ratified in this State on December 23, 1985.37 The right to equal treatment regardless of certain specified characteristics (e.g. sex, race, ethnic origin) is a general principle of EU law, and its significance in the EU legal order can be seen from the provisions of Article 21(1) of the EU Charter of Fundamental Rights, which prohibits “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.” Although this is a non-binding instrument, it has been referred to by the European Court of Justice in C540/03 Parliament v Council (unreported, June 27, 2006).

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International Covenant on Civil and Political Rights which provides that:

“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess their own religion, or to use their own language.”

3.24 The Human Rights Committee has recognised that this provision imposes positive obligations upon the States Parties to ensure that the existence and the exercise of this right are protected; at General Comment 23, it states that:

“The Committee concludes that article 27 relates to rights whose protection imposes specific obligations upon States Parties. The protection of those rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.”

3.25 Of interest in this regard is the judgment of the Human Rights Committee in Lovelace v Canada. In that case, the Applicant, a Maliseet Indian, challenged the provisions of the relevant federal legislation which provided that upon her marriage to a person not of the native American community, she lost her “Indian status” and with that lost, inter alia, the right to reside upon reserve lands. The Committee found that Canada was in violation of Article 27 by denying Ms. Lovelace the opportunity to live on the reserve, “the only place that she could practice her

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culture in community with other members of the group” of persons of which she was a member38.

3.26 Similar sentiments regarding the benefit to be derived by the entire community from the existence of such minority groups can be found in the Council of Europe’s Framework Convention for the Protection of National Minorities which was opened for signature in February 1995.39 Its Preamble expresses the view that:

“a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity.”

3.27Article 4 contains a guarantee of equality and an undertaking by the State Parties to adopt where necessary adequate measures40

in order to promote full and effective equality between persons belonging to a national minority and those belonging to the majority. At Article 5(1), the State Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture and to preserve the essential elements of their identity. Under Article 5(2), the Parties undertake to:

“refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and [to] protect these persons from any action aimed at such assimilation.”41

38 Communication R6/24 UN Doc Supp. 40 (A 36/40)(198139 The Framework Convention is considered by the European Court of Human Rights in Chapman v United Kingdom, considered infra.40 In all areas of economic, social, political and cultural life.

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4. The Protection of Travellers’ Rights under the ECHR

Article 84.1 The European Convention on Human Rights, and in particular Article 8(1), also anticipates that respect shall be afforded to a Traveller way of life. Article 8(1) which provides that “everyone has the right to respect for his private and family life, his home and his correspondence” has been invoked before the European Court of Human Rights in a considerable number of cases involving persons of nomadic culture.42 Article 8(2), which sets out the specific restrictions which may be imposed on the rights guaranteed by its earlier counterpart, is discussed in detail below. For present purposes, however, it is proposed only to consider the rights conferred by Article 8(1) for the purpose of informing our understanding of those provisions which mandate the provision of respect for Traveller culture and values. It is clear from the case law of the European Court of Human Rights that the protection of Travellers’ interests and way of pursuing life engages the right to

41 ? In its First Report on the Convention submitted to the Advisory Committee of the Council of Europe, the Government stated that

“Ireland's ratification of the Framework Convention is an integral part of the Irish Government’s overall human rights strategy to advance justice and peace on these islands. The commitment to ratify the Convention was made by the Irish Government under the Good Friday (Belfast) Agreement (1998) which contains interlocking commitments on the part of both the British and Irish Governments with respect to a wide range of human rights issues, including national minorities.”

Ireland signed the Framework Convention on February 1, 1995 and ratified it on May 7, 1999. The Framework Convention entered into force with respect to Ireland on September 1, 1999. Ireland submitted its first State Report under the Framework Convention on November 13, 2001. The Advisory Committee published its Opinion on Ireland on May 22, 2003, with Ireland’s reply to that opinion submitted on October 23, 2003. The Committee of Ministers adopted a Resolution on Ireland on 5 May 2004.Ireland submitted its Second Report on December 7, 2005.42 Connors v United Kingdom (2002) 35 EHRR 691; Chapman v United Kingdom (2001) 33 EHRR 399; Coster v United Kingdom (2001) 33 EHRR 399; Beard v United Kingdom (2001) 33 EHRR 442; Lee v United Kingdom (2001) 33 EHRR 677; Jane Smith v United Kingdom (2001) 33 EHRR 30.

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respect for private life, family life and home. As the Court noted in Connors v United Kingdom:43

“Article 8 [c]oncerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community.”

4.2 The observations of the European Court of Human Rights in Chapman v United Kingdom44 neatly encapsulate the protection afforded by Article 8(1) in the context of Travellers:

“The Court considers that the applicant's occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or by their own choice, many Gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures affecting the applicant's stationing of her caravans therefore have an impact going beyond the right to respect for her home. They also affect her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition”45 [Emphasis added]

4.3 The Court also noted in Buckley v United Kingdom that “the concept of ‘home’ within the meaning of Article 8 embraces a “caravan” and added that it is not limited to those which are lawfully occupied or which have been lawfully established46”.

43 (2002) 35 EHRR 691.44 (2001) 33 EHRR 399.45 At paragraph 73.46 (1996) 23 EHRR 101.

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4.4 While the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from acts of interference; in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. Such obligations may involve the adoption of measures designed to secure respect for private life, family life and home. In Chapman v United Kingdom47 the European Court of Human noted that:

“[A]lthough the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue

47 (2001) 33 EHRR 18.

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of Article 8 to facilitate the Gypsy way of life”48 [Emphasis added]

4.5 In considering what that positive obligation to facilitate a traveller way of life entails, the European Court of Human Rights has stopped short of imposing a general obligation under Article 8(1) to provide suitable accommodation for all travellers. The applicant in Chapman was a gypsy who had been refused planning permission to station three caravans in which she and her family could reside on land which she herself owned and who was thereafter served with enforcment notice designed to secure her removal from her lands. Mrs. Chapman alleged that her Article 8 rights had been violated. A majority of the Court rejected her claim,49 stating that:

48 In Botta v Italy (1998) 26 EHRR 241, the Court considered a claim from an applicant who was physically disabled and prevented from using beach facilities while on holiday as certain ramp and access devices had been removed. The Court reasoned that:

“… there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation.”

However, the Court held against the Applicant on the ground that the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays, concerned interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant’s private life. Nevertheless, Botta does stand as authority for the proposition that Article 8 imposes a positive obligation on the State to respect family life. In Marzari v Italy (1999) 28 EHRR CD 175, the applicant, who was disabled, claimed that Italy was obliged to provide him with an apartment suitable to his needs. The factual context was complicated by several factors: first, the applicant had been evicted from his previous apartment on account of non-payment of rent; secondly, the applicant had been very obstructive of all efforts made by the State to find a solution to his accommodation needs; and thirdly, the applicant insisted that he be allowed to live in a particular apartment and was not prepared to accept another apartment, notwithstanding that the State had undertaken to make whatever modifications were necessary to accommodate him properly therein. For these reasons, although the Court found that Article 8 was prima facie applicable to the situation, it concluded that the local authorities had discharged their positive obligations to the applicant. 49 The dissenting opinion of Judge Bonello in Chapman is set out below at paragraph 5.32.

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“The Court does no[t] accept the argument that, because statistically the number of Gypsies is greater than the number of places available in authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to the protection of minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on States.

It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not of judicial decision."

4.6 This decision was followed by the European Court of Human Rights in the admissiblity decision in Codona v United Kingdom.50

Injunction proceedings were issued against Mrs. Codona, a Gypsy, because the site on which the caravans in which she and her family resided were placed did not have the relevant planning permission. During the course of court proceedings the applicant averred that

50 Judgment delivered on February 7, 2006.

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she did not "wish to be given bricks and mortar. She has always lived in a caravan, has only spent one night in a building in her life. Mrs. Codona wishes to live in a caravan and have the support of her extended family around her". The housing authority concluded that they could only offer accommodation in a bed and breakfast establishment until it could make a final offer of accommodation. The application before the Court of Human Rights was, in essence, for relief under Article 8 as the applicant complained that the response of the housing authority did not take into account her rights as a Gypsy pursuant to that Article 8. The Court held:

"Following Chapman, the court does not rule out that, in principle, Article 8 could impose a positive obligation on the authorities to provide accommodation for a homeless Gypsy which is such that it facilitates their "Gypsy" way of life. However, it considers that this obligation could only arise where the authorities had such accommodation at their disposal and were making a choice between offering such accommodation or accommodation which was not "suitable" for the cultural needs of a Gypsy. In the instant case, however, it appears to be common ground that they were, in fact, no sites available upon which the applicant could lawfully place her caravan. In the premises, the court cannot conclude that the authorities were then under a positive obligation to create such a site for the applicant (and her extended family). Such would be to extend the positive obligation imposed by Article 8 far beyond the - limited - bounds established in previous case law. In particular, to accept that the authorities were under such an obligation would be to have the effect of imposing upon the respondent State the positive obligation to create either one or more caravan sites so as to equate supply with demand. The court recalls that this was precisely the obligation that the Grand Chamber found that the contracting states could not be

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said to owe in Chapman (para. 98). The court does not find that there are any compelling reasons in the present case to depart from the position adopted by the Grand Chamber in Chapman."

4.7 In two recent decisions, the High Court has given consideration to the application of Article 8 of the ECHR in a Traveller context. In Doherty v South Dublin County Council,51 the applicants, an elderly Traveller couple who were suffering from poor health, had been living in unsuitable caravan accommodation for a number of years and were due to be accommodated by the respondent County Council in residential caravan sites some eighteen months hence. In the interim, however, the respondent had offered apartment accommodation to the applicants who had refused it and sought the provision of a suitably adapted caravan during that period. Charleton J refused their application on all grounds, including that based upon an alleged violation of Article 852 of the ECHR. The Court noted:

“that there is no positive obligation to intervene to uphold private and family life in Article 8 and that, expressly, the text forbids “interference by a public authority with the exercise of this right.”

4.8 Nonetheless, the Court subsequently cited the above extracts from Chapman and Codona regarding the existence of a positive obligation imposed on Contracting States by Article 8 to facilitate the gypsy way of life. Charleton J thereafter appears to endorse the view expressed by the English Court of Appeal in Anufrijeva v Southwark London Borough Council53 to the effect that, while Article 8 may impose positive obligations, inaction shall only constitute a lack of respect for private and family life if there is

51 Unreported, High Court, Charleton J, January 22, 200752 The applicants also sought to invoke the prohibition on discrimination contained in Article 14.53 [2004] 1 QB 1124.

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some culpability or ground for criticising the failure to act. It is interesting to note that the Court of Appeal in Anufrijeva provided that where the domestic law of a State imposes obligations in relation to the provision of welfare support, breach of such positive obligations may suffice to provide the element of culpability necessary to establish an Article 8 violation, provided that the impact on private or family life is sufficiently serious and was foreseeable. The application of such an approach in the context of the proceedings herein would lead to the conclusion, if indeed it is established that the First and Second Named Defendants breached their statutory duty pursuant to the Housing Acts in relation to the Plaintiffs and it is furthermore established that the failure to accommodate in fact prompted some or all of the consequences alleged by the Plaintiffs in the Statement of Claim, that the failure to provide accommodation in the manner required amounted to a violation of the positive obligations imposed under Article 8. Charleton J concluded that he found it “impossible to apply the tests of culpability and of inhuman treatment where a number of offers of housing have been made, and where the best form of halting site accommodation is to be made available to the applicants within 18 months.” He added that:

“I can find nothing in any [d]ecision of the European Court of Human Rights, or of the courts in the United Kingdom or here, which would establish that the particular aspect of family life that requires to be respected in the case of a member of the Irish Traveller Community demands the provision of a new, centrally heated, plumbed caravan with electricity supply. On analysis of the relevant case law under the European Convention of Human Rights, my judgment is that the statutory entitlements of the applicants exceed any benefit that might be available to them on the basis of an interpretation of Article 8 of the European Convention on Human Rights … I would add that the

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decisions to date show a reluctance to require State authorities to intervene with forms of welfare as an aid to the exercise of rights.”

4.9 In O’Donnell v South Dublin County Council,54 however, Laffoy J found a violation on the particular facts of the case of the positive obligation of the Defendant housing authority under Article 8(1) to provide appropriate accommodation for the three Plaintiffs who were Travellers and all of whom suffered from severe physical disability. Having distinguished the case before her from the Doherty case on account of the gravity of the facts with which she had to contend and in view of the fact that in the Doherty case an offer of accommodation had been made pending the completion of the new facility for Travellers, Laffoy J noted that;

“This is not a case which is based on an assertion that the State or its organs has a positive obligation to make certain provision for every Traveller family, for instance, that the State should legislate or have an administrative scheme to provide two de luxe mobile homes for every Traveller family. This is a case about the particular circumstances of one family, which has three severely disabled members, two of whom were minors when the proceedings started who, to the knowledge of the defendant have been living in unacceptable conditions since 2005 and whose plight is not going to be alleviated until August 2008 at the earliest, if it will be then”.

4.10 As the facts before the High Court clearly engaged Article 8 of the ECHR, Laffoy J proceeded to consider whether the refusal of the respondent County Council to provide the appropriate accommodation sought constituted a legitimate restrcition thereon. She noted that:

54 Unreported, High Court, Laffoy J, May 22, 2007.

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“The general interest which has to be weighed in the balance against the effect of having to live in overcrowded, potentially unsafe and admittedly inadequate accommodation for three and a half years and, perhaps, longer, which is what the defendant’s refusal to fund the second mobile home has consigned the plaintiffs to, in the terminology of Article 8, is the economic well-being of the State. It is possible to evaluate the impact on the economic well-being of the State of providing the second mobile home for the plaintiffs: the cost will be in the region of €58,000 and the installation cost and the cost of connecting it with the services and such like.”

4.11 Having concluded that the case before her was very unusual if not unique, Laffoy J found that the refusal to provide the appropriate caravan constituted a violation of Article 8 of the ECHR.

Article 14

4.12 A further provision to be considered in the context of the recognition of the rights is the non-discrimination guarantee found in Article 14 of the ECHR. Headed “Prohibition of discrimination”, it states that:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

4.13 Whilst reference must be made to Protocol 12 to the ECHR which contains a free-standing prohibition on discrimination,55 it is 55 Article 1(1) thereof provides that “The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Article 1(2) adds that “No one shall be discriminated against by any public authority on any ground

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not proposed to consider this in detail herein as Ireland has not ratified same. Returning therefore to consider Article 14, it is useful to refer to the judgment of Lord Nicholls judgment in R (Carson) v Secretary of State for Work and Pensions56 which sets out neatly the parameters of the provision:

“… Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the courts is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.”

4.14 It is not necessary, in order for a claim under Article 14 to succeed, for an applicant to show that the State is actually in breach of another Convention right. It is sufficient for the applicant to show that the subject matter of the disadvantage “constitutes one of the modalities” of the exercise of the right, or that the treatment complained of is “linked” to the exercise of a Convention right.57 Furthermore, where there is an interference with Article 8 of the ECHR, but it is justified under Article 8(2), the interference

such as those mentioned in paragraph 1.”56 [2005] 2 WLR 1369, at paragraph 3.57 See Abdulaziz, Cabales & Balkandali v United Kingdom (1985) 7 EHRR 471; Petrovic v Austria (1998) 33 EHRR 307 at [22] and [28].

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may still be in violation of the Convention if it is discriminatory. In Marckx v Belgium,58 the European Court of Human Rights stated:

“The Court’s case law shows that, although Article 14 has no independent existence, it may play an important autonomous role by complementing the other normative provisions of the Convention and the Protocols: Article 14 safeguards individuals, placed in similar situations, from any discrimination in the enjoyment of the rights and freedoms set forth in those other provisions. A measure which, although in itself in conformity with the requirements of the Article of the Convention or the Protocols enshrining a given right or freedom, is of a discriminatory nature incompatible with Article 14, therefore violates those two articles taken in conjunction. It is as though Article 14 formed an integral part of each of the provisions laying down rights and freedoms.”

4.15 A difference in treatment will be held to be discriminatory contrary to Article 14 if it has ‘no objective and reasonable justification’. In order to prove such justification, a respondent must show that the difference in treatment pursues a ‘legitimate aim’, and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

4.16 The language of Article 14, talking as it does of the enjoyment of the rights and freedoms protected under the ECHR, itself points towards a prohibition of indirect discrimination, and as will be discussed in more detail below the European Court of Human Rights has accepted that this Article does extend to the prohibition of measures which, although facially neutral, produce effects that fall disproportionately on certain persons.59

58 (1979) 2 EHRR 330 at 343

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4.17 Despite its limitations, therefore, it appears that Article 14 can play a considerable role within the ECHR framework as far as the protection of the rights and interests of Travellers is concerned.

4.18 The Commission therefore submits that the values underlying the domestic legal regime endorse notions of protection and respect for Travellers’ rights. It follows that any measure which unduly and without justification impedes or restricts one of the central tenets of that culture shall fall foul of those constitutional provisions and of the ECHR which guarantee the provision of that respect. As with all rights, the rights associated with pursuit of a Traveller lifestyle are not unlimited and aspects thereof may be curtailed in order to protection the legitimate rights of others. Thus, as the impugned provisions will clearly impact upon the nomadic practices of Travellers, it is necessary to consider whether those provisions are a legitimate and proportionate response to the need to protect competing property interests of other members of society. Before doing so, however, it is proposed to consider the nature of the offence created by Section 19C(1).

5. SECTION 19C(1)

(A) Due Process Considerations

5.1 The Commission submits that Section 19(C)(1) gives rise to a number of due process concerns. In the recent case of McDonagh v Kilkenny County Council and others60, the applicants sought orders preventing the further prosecution of two charges pursuant to Section 19 of the Act of 1994, and in that regard, they raised, inter alia, a number of due process arguments in relation to the Section.

59 As discussed in the Belgian Linguistic Case (1979-80) 1 EHRR 252, at 10 of section 1B.

60 Unreported, High Court, O’Neill J, 24th October 2007.

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O’Neill J concluded that it was pre-emptive to raise such arguments in judicial review proceedings in advance of the criminal trial. The Court noted that;

“at this remove from the criminal trial, it cannot be ascertained whether these applicants have any locus standi to raise these issues, as it is not yet apparent what defences are available to them, or whether the aforesaid presumption [of innocence] would be relied upon at all. Therefore it is not yet clear whether or not any of the contentions sought to be raised in theses proceedings would actually affect them in the criminal proceedings.”

5.2 In CC v Ireland61, the Supreme Court, sitting as a three judge court, considered whether it was permissible for the applicant to mount judicial review proceedings in advance of the criminal trial, in which he raised arguments regarding the constitutionality and ECHR compatibility of the section under which he was charged. The Court found that it was permissible to do so in the particular circumstances before it, placing considerable reliance in so doing upon the fact that the High Court had already in that particular case made a determination on the substantive issue and thus it would be inappropriate for it to refuse to do so. In that regard, Fennelly proceeded to consider the substantive issue in the light of the particular circumstances arising therein, while stating that the Court should not approve, as a general rule, of the pursuit by applicants of a judicial review route in which the interpretation of applicable statutory provisions was raised in advance of a criminal trial. The Judge added that;

“It is [q]uite inappropriate and a usurpation of the function of the Court of trial for an accused person – or the

61 [2005] IESC 48.

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prosecution for that matter – to seek advance rulings from the High Court as to how any legal provisions should be interpreted in the course of a pending trial62”.

5.3 Geoghegan J expressed sympathy with the general proposition that the subtstantive issues ought to be raised at the criminal trial and not in judicial review proceedings, but concluded that in view of the prior determination by the High Court in that particular instance, it would be unjust and wrong in principle for the Supreme Court not to make its own decision on the issue. Denham J. reached the same conclusion as her two colleagues, but pointed to a number of bases for her conclusion. In that regard, the Judge had regard to the fact that the applications for judicial review had been brought at the preliminary stage of the criminal process; no indictment had been laid although the charges were known. 63 She then added that although the facts in the case before the Court were somewhat hypothetical, the kernel issue to be determined was clear and thus the Court was in a position to consider the law and construe the statute in question to determine the issue in question. She therefore concluded that;

“There is no doubt but that it is wholly undesirable that a criminal trial be delayed while an application for judicial review proceeds. However, I am satisfied that in all the circumstances of this case, including the judgment of the High Court on the substantive issue, the facts and the issues raised, that in these cases there were circumstances so as to

62 Page 105. The High Court came to a similar conclusion in Kennedy v Ireland (Unreported, High Court, MacMenamin J) in the context of a challenge to the constitutionality and ECHR compatibility of Section 4 of the Prevention of Fraud (Amendment) Act,2001 although this was not the section under which the applicant was charged. It should also be noted that the application before the High Court in that instance was made some three days prior to the commencement of the proposed trial. 63 Denham J noted that there is an important difference between considering an application for judicial review in the currency of a trial as opposed to an application prior to the commencement of the trial, prior to the laying of the indictment. In DPP V Special Criminal Court [1999] 1 IR 60, the Supreme Court noted that judicial review is an available remedy in principle which permitted challenges to decisions made in the course of a criminal trial, but only in the most exceptional cases.

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justify proceeding by way of judicial review. The alternative options, including an appeal to the Court of Criminal Appeal and perhaps ultimately on a point of law of exceptional public importance to the Supreme Court, or a case stated, may not enable a fair and just trial. It would be unfair to force the three applicants to endure a trial without final determination of the issue of the defences available, which goes to the core of the prosecution and the defence. It is fair and just that the applicants have a legal determination, a statutory interpretation, in all the circumstances prior to the trial. [H]owever, this decision should not be regarded as a precedent determining that an issue of statutory interpretation would routinely be circumstances such as to provide a basis for a judicial review pre-trial.64”

5.4 If the Plaintiffs herein are permitted to raise due process arguments before the Court, by reason of establishing circumstances which justify a departure from the general rule regarding the appropriate forum for the consideration of such matters or indeed by otherwise satisfying the Court of the appropriateness of arguing the said issues at this juncture, the Commission will make the following observations in relation to the substantive issues at play. Issues such as the impact which the impugned provisions have upon the right to respect for the home, private life and cultural and ethnic identity of all of the Plaintiffs herein may be of relevance for the purpose of determining whether or not the general rule ought to be adhered to in this instance.

(i) The Mens Rea Requirement

64 Pages 52-53.

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5.5 It must first of all be considered whether or not it is necessary for the prosecution to establish mens rea on the part of an accused in the context of the offence in question. Thus, is the prosecution required to prove knowledge or recklessness on the part of the accused as to whether his or her entry on the lands was without consent, or, to put the matter another way, is the accused permitted to avoid criminal liability by arguing in his defence that he was mistaken, on reasonable grounds, as to the presence or absence of consent65. The section does not provide for either of these propositions, although this is not of significance in and of itself as “it is quite a normal legislative practice not to make any reference to mens rea, however serious, even though the principle of mens rea would have long been held to apply to such offences.”66 Indeed, the Irish courts have recognised that there is a statutory presumption of mens rea in criminal offences. As Walsh J noted in People (DPP) v Murray:67

“It is well established that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, a court cannot find a person guilty of an offence against the criminal law unless he has a guilty mind.”

5.6 The judgments of the Supreme Court in CC v Ireland and PG v Ireland68 are particularly instructive in that regard. In the former case, the Court considered whether or not such a requirement arose in the context of offences contrary to the Criminal Law (Amendment) Act 1935 of having unlawful carnal knowledge of a girl under 15 years of age. In the latter case, the Court addressed the same question in the context of offences contrary to Section 2

65 The issue was thus categorized by Fennelly J in CC v Ireland, surpa n.60, when considering whether Section 1(1) of the Criminal Law (Amendment) Act 1935 (which created the offence of defilement of girl under fifteen years of age) permitted a defence of reasonable mistake as to the age of the girl in question. 66 Per Geoghegan J in CC v Ireland, supra, n.61.67 [1977] IR 360.68 Supra, n 61.

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of the Criminal Law (Rape) (Amendment) Act 1990 as amended by Section 37 of the Sex Offenders Act 2001.

5.7 The accused in that instance was facing trial on two counts of sexual assault on a thirteen year old girl and, like the accused in the CC case, wished to argue that he had made a bona fide error as to the age of the complainant, alleging that he believed her to be over the age of fifteen years. Although consent is normally a defence to a sexual assault charge, such a defence was unavailable as a result of Section 14 of the Criminal Law (Amendment) Act 1935, which precludes such a defence where a complainant is less than 15 years old. Neither Section 1(1) nor Section 14 of the Act of 1935 specifically excluded reliance by an accused upon a bona fide mistake as to age, yet while the Court found that Section 1(1) precluded reliance upon the defence of mistake, it reached a different conclusion in relation to the application of Section 14 of the Act of 1935. As far as the former was concerned, the majority of the Court concluded that while the language of the Section did not displace the presumption, recourse to the Section’s legislative antecedents revealed that it replaced a provision which did permit of such a defence and thus, the majority concluded, the intention of the Oireachtas when enacting the new provision was clearly to remove the possibility of reliance upon mistaken belief as to age. In the circumstances, the Court concluded that the statute “by necessary implication” precluded such a defence. In the context of PG’s application, however, there were no relevant historical considerations to be considered and thus the normal presumption in favour of mens rea applied.

5.8 It would appear at first glance that the mens rea requirement also applies in relation to offences pursuant to s.19C of the Act as there is no specific exclusion of that requirement in that Section nor any historical context of relevance. An issue arises, however, as

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a result of the application of Section 19G(2) of the 2002 Act which provides that:

“in any proceedings for any offence under this Part it shall be presumed until the contrary is shown that consent under this Part was not given”.

5.9 It would therefore appear that it is necessary for an accused to show that he or she actually had consent to enter onto and occupy the lands in question and he or she may not rely upon a mistaken belief, however reasonable, that such consent had been granted. This seems to have the effect of displacing the presumption of mens rea and leads to the worrying prospect that a person possessed of an “innocent mind” upon entry into and occupation of the land in question may not be protected from conviction. Issues arise regarding the compatibility of such a state of affairs with the guarantee of a fair trial pursuant to Articles 38 of the Constitution, with the right to the vindication of one’s good name and the right to liberty pursuant to Articles 40.3 and 40.4 of the Constitution respectively.

5.10 The Supreme Court considered similar issues in the second case of CC v Ireland,69 in which the applicant sought to challenge the constitutionality of Section 1(1) of the Act of 1935, in view of the finding of the Court in the earlier case that there was no requirement to show mens rea in the context of prosecutions pursuant to that section. Delivering judgment for the Court, Hardiman J relied upon the earlier decision of that Court in the case of In the Matter of Article 26 of the Constitution and In the Matter of the Employment Equality Bill, 1996.70 In the former case, the measure in question criminalised “discrimination” and “victimisation” as defined in the Bill. It also provided that anything 69 [2006] 2 ILRM 161.70 [1997] 2 IR 321.

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done by a person in the course of his or her employment should be treated for the purposes of the Act as done also by that person’s employer “whether or not it was done with the employer’s knowledge or approval”. Judgment of the Court was delivered by Hamilton CJ who said, at page 373:

“… [w]hat is sought to be done by this provision is that an employer, devoid of any guilty intent, is liable to be found guilty on indictment of an offence carrying a fine of £15,000 or a prison sentence of two years, or both such fine and imprisonment, and to be tainted with guilt for offences which are far from being regulatory in character but are likely to attract a substantial measure of opprobrium. The social policy of making the Act more effective does not, in the opinion of this Court, justify the introduction of so radical a change to our criminal law. The change appears to the Court to be quite disproportionate to the mischief with which the section seeks to deal.

In the course of his speech in Sweet v. Parsley [1970] AC 132 at 150 Reid L.J. … referred to ‘the public scandal of convicting on a serious charge persons who are in no way blameworthy’. Of course, the English Courts would have to recognise that if Parliament decreed that a person should be found guilty in those circumstances, then the legislation might be upheld because Parliament in the British system is said to be supreme.

Our situation, however, is totally different. We are governed by a Constitution with the separation of powers as its fulcrum and the two Houses of the Oireachtas are

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precluded from enacting any legislation which is in any respect repugnant to the Constitution.

The Court concludes that to render an employer liable to potentially severe criminal sanctions in circumstances which are so unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law and, therefore, contrary to Article 38, s.1 of the Constitution and also repugnant to the provisions of Article 40 s.1 of the Constitution.”

5.11 Although the offence created by the Employment Equality Bill was a vicarious one, Hardiman J noted in CC that there did not appear to be a distinction of substance between being severely penalised for an act of which one was ignorant on the one hand, and being even more severely penalised for an act of which one was aware but had no reason to think was unlawful.

5.12 Hardiman J subsequently added:

“that to criminalise in a serious way a person who is mentally innocent is indeed “to inflict a grave injury on that person’s dignity and sense of worth” and to treat him as “little more than a means to an end”, in the words of Wilson J. [in R v City of Sault Sainte Marie (1978) 85 DLR 161]. It appears to us that this, in turn, constitutes a failure by the State in its laws to respect, defend and vindicate the rights to liberty and to good name of the person so treated, contrary to the State’s obligations under Article 40 of the Constitution.”

5.13 Although the Court was concerned in CC with an offence which carried a possible life sentence, and Hardiman J did refer on a number of occasions to the seriousness of the offence in question,

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it is submitted that the same principles apply in relation to the offence created by Section 19(C) of the Act of 2002, thereby giving rise to the same constitutional concerns.71

5.14 Article 6(1) of the ECHR provides that;

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

It is clear from the jurisprudence of the European Court of Human Rights that this Article provides guarantees in relation to the procedural standards to be adhered for the purpose of ensuring a fair trial, and that the provision does not authorise the Court to engage in an evaluation of the substantive provisions of law, of which the mens rea component of Section 19(C)(1) is an example72.

71 It is generally accepted that criminal liability depends on the coincidence of a mental element appropriate to the offence together with the commission of the external elements of that offence. However, in the context of the category of cases known as strict liability offences, all that the prosecution must prove is the occurrence of the external element of the offence. Smith & Hogan draw a distinction between offences of strict liability and offences of absolute liability, the latter of which admits no defence: Criminal Law (8th ed, Oxford University Press 1996) at p.116-117. It may be argued that offences of absolute liability may be acceptable in respect of “regulatory type offences”, whilst their appropriateness in respect of “truly criminal offences” is in doubt in light of the decision of the Supreme Court in CC v Ireland, supra, n.69.72 In “The Human Rights Act and Substantive Criminal Law” [2000] Crim LR 331 at 339, Buxton comments that “To the extent that Convention jurisprudence has touched upon issues of mens rea, it has done so in the context of what is, properly understood, an issue not of substantive but of procedural law, the role and propriety of burdens and presumptions that place an obligation of proof of some osrt upon the defendant.” Ovey and White in The European Convention on Human Rights (4th ed Oxford University Press 2006) state that “Article 6 cannot be used as a vehicle to criticize the content of domestic law”; page 191 (emphasis in original).

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(ii) The Presumption of Innocence

5.15 As noted above, Section 19G(2) of the 2002 Act provides that:

“in any proceedings for any offence under this Part it shall be presumed until the contrary is shown that consent under this Part was not given”.

5.16 The presumption of innocence has been recognized as an essential constituent of a trial in due course of law as guaranteed by Article 38.1. It is also a fundamental requirement of a fair trial which is specifically referred to in Article 6(2) of the ECHR. One consequence of the presumption of innocence is that the prosecution bears the legal burden of proving every fact necessary to establish the guilt of the accused. Does Section 19G(2) have the effect of shifting the legal burden onto the accused, or is the burden which the accused must bear simply evidential in the sense of having an obligation to adduce sufficient evidence of a fact in issue to justify, as a possibility, a favourable finding on that issue?

5.17 The test for determining whether a statute shifts the legal or the evidential burden of proof was formulated by Costello J in O’Leary v Attorney General,73 where he stated:

“if the effect of the statute is that the court must convict an accused should he or she fail to adduce exculpatory evidence then its effect is to shift the legal burden of proof… whereas if its effect is that notwithstanding its terms the accused may be acquitted even though he calls no evidence because the statute has not discharged the prosecution from establishing the accused’s guilt beyond a reasonable doubt then no constitutional invalidity could arise”.74

73 [1993] 1 IR 102 (HC); [1995] 2 ILRM 259 (SC). 74 [1993] 1 IR 102, at p. 109.

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5.18 Applying this test to Section 19G(2) of the 2002 Act, it would appear that this provision cannot be regarded as shifting a legal burden, as the prosecution still bear the burden of proving the guilt of the accused beyond a reasonable doubt in respect of other elements of the offence, e.g. proof of entry onto or occupation of land, or of the likelihood of one of the five detrimental consequences set out in Section 19C(i) – (v). Furthermore, there is nothing in Section 19G(2) to prevent an accused person from testing the probative value of the presumption in a number of ways, including cross-examination. Thus, it appears to entail a shifting merely of an evidential burden.

5.19 As noted above, the presumption of innocence is expressly recognized by Article 6(2) of the European Convention on Human Rights. The leading decision of the European Court of Human Rights on Article 6(2) is Salabiaku v France.75 The European Court of Human Rights stated that it would scrutinize presumptions of fact or law in order to ensure that they did not in substance infringe the presumption of innocence, recognizing that without this element of supervision, “the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance” (paragraph 28). The Court then formulated the following statement of principle:

“Article 6(2) does not therefore regard presumptions of fact or law provided for in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence” (paragraph 28).

75 (1991) 13 EHRR 379. This case concerned a smuggling provision under the French customs code.

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5.20 Whilst the shifting of an evidential burden is not, of itself, unconstitutional or incompatible with the ECHR, it is clear from the jurisprudence of both the domestic courts and the European Court of Human Rights that in order to be ECHR compliant, the provision in question must not be a disproportionate measure. The test of proportionality requires, in particular, a consideration of the context in which the impugned legislation operates.

5.21 Thus, the fact that a statutory provision simply shifts the evidential burden is not determinative of the question of a breach of the presumption of innocence. There are a number of proportionality concerns which can be raised on behalf of the plaintiffs in the present case. An issue of inequality of arms may be raised - why could the prosecution, which has the benefit of superior resources as part of a well-equipped state apparatus, not bear the burden of proving a lack of consent? Concerns as to the proportionality of Section 19G(2) are even more pressing when considered in conjunction with the context of the impugned legislation. In O’Leary v Attorney General,76 the Court considered the proportionality of s.3(2) of the Offences Against the State (Amendment) Act 1972, which provided that the evidence of an officer of An Garda Síochána not below the rank of Chief Superintendent of a belief that an accused was at a material time a member of an unlawful organisation, “the statement shall be evidence that he was then such a member.” It is to be noted that legislation which touches upon paramilitary activities has generally been accepted by the European Court of Human Rights as pertaining to a “pressing and substantial concern in a free and democratic society”.77 Thus, the factual backdrop to that provision

76 [1993] 1 IR 102 (HC); [1995] 2 ILRM 259 (SC). 77 See Heaney v Ireland European Court of Human Rights, March 21, 2001 where the Court further noted at paragraph 56 “The Government contended that section 52 of the 1939 Act is, nevertheless, a proportionate response to the subsisting terrorist and security threat given the need to ensure the proper administration of justice and the maintenance of public order and peace. The Court has taken judicial notice of the security and public order concerns detailed

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was significantly different to that which arises in the context of this criminal trespass legislation. Finally, it ought also be borne in mind the fact that the group targeted by the legislation is already one of the most marginalized groups in Irish society. It is therefore submitted that the need to prevent trespass by Travellers can not be characterised as a “pressing and substantial concern in a free and democratic society”, which would warrant the enactment of such a provision and thus the measure in question is a disproportionate one which will interfere with the right of an accused to a trial in due course of law, of which the presumption of innocence is but one facet, as guaranteed by Article 38.1 of the Constitution and with the specific guarantee of the presumption of innocence set out in Article 6(2) of the ECHR.

(iii) Lawful Authority or Reasonable Excuse

5.22 It is the Plaintiffs’ case that they entered upon the lands in question as they had nowhere else to reside. They allege that the First and Second Named Defendants were under a statutory duty to provide appropriate accommodation and in view of the ongoing failure of the said Defendants to comply with that requirement, they entered upon the lands of those Defendants in order to make their home there. It must be considered whether those factual circumstances do, and indeed ought to, give rise to a defence to the prosecution currently pending in relation to the second named Plaintiff.

5.23 The status of the defence of necessity has not yet been tested in Irish law. It is defined by Charleton, McDermott & Bolger in Criminal Law78 at paragraph 15.01 in the following terms:

by the Government” before concluding that “the security and public order concerns relied on by the Government cannot justify a provision which extinguishes the very essence of the applicants' rights to silence and against self-incrimination guaranteed by Article 6 § 1 of the Convention.”78 (2nd Ed LexisNexis Butterworths 1999).

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“The defence of necessity involves a choice of evils, one of which the criminal law is designed to prevent. Circumstances can arise where an accused person deems it necessary to choose the outlawed evil in order to avoid a greater evil or to fulfil a human duty.”

5.24 Charleton et al submit that the defence of necessity must be accepted in Irish criminal law, having regard to the fact that “[j]ustice is the foundation of the State. The courts cannot, therefore, countenance unjust convictions being recorded.” Although there is no Irish authority on the availability of a defence of necessity in Irish law, Charleton’s analysis of the constitutional context is apposite, and having regard to the provisions of the Constitution, in particular Articles 40.3.1 and 38.1, it is submitted that a defence of necessity does exist in Irish law. However, that defence of necessity must be of very limited scope. Concerns as to the impact of such a defence on the criminal law were articulated by the Supreme Court of Canada in R v Morgenthaler79 where it was held that “no system of law can recognize any principle which would entitle a person to violate the law because on his view the law conflicted with some higher value.” In Re A (Children)80 the Court of Appeal outlined three requirements for the application of the doctrine of necessity, namely:

(i) that the act is needed to avoid inevitable and irreparable evil;

(ii) that no more should be done than is reasonably necessary for the purpose to be achieved; and (iii) that the evil inflicted must not be disproportionate to the

evil avoided.

79 (1975) 53 DLR (3d) 161.80 [2000] 4 All ER 961.

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5.25 The defence of duress of circumstance is a species of the defence of necessity. The scope of this defence was addressed by the Court of Appeal in R v Martin81 where it was held by Simon Brown LJ that the defence is available only if, from an objective standpoint, the accused can be said to have acted reasonably and proportionately in order to avoid a threat of death or serious injury. If so, then the jury should be invited to answer two questions:

“was the accused compelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious injury would result, and if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused did?”

5.26 It is thus clear that the defence of necessity arises only in exceptional circumstances, and it would appear that such defence would not assist the Second Named Plaintiff in the context of the present proceedings in particular having regard to the lack of immediacy in the experience of any evil in the sense outlined above.

5.27 Of more interest in the context of the present proceedings, however, is whether the Second Named Plaintiff may plead lawful excuse in answer to the charge before the District Court. In other words, can he seek to argue that the absence of alternative created by the failure of the First Named Defendant to provide appropriate accommodation affords him a lawful excuse for his entry and a basis for avoiding criminal liability? For the purpose of considering this question, it is instructive to consider the provisions governing the offence of criminal trespass simpliciter under Irish law. Indeed it is apposite that it is the Criminal Justice (Public Order) Act 1994

81 [1989] 1 All ER 652.

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which provided for the criminalisation of trespass under certain circumstances. Section 13 of the Criminal Justice (Public Order) Act 1994 provides:

“It shall be an offence for a person, without reasonable excuse, to trespass on any building or the curtilage thereof in such a manner as causes or is likely to cause fear in another person.” [emphasis added]

5.28 Furthermore, s.8(1)(b) of the 1994 Act provides:“Where a member of the Garda Síochána finds a person in a

public place and suspects, with reasonable cause, that such person—

(b) without lawful authority or reasonable excuse, is acting in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace, the member may direct the person so suspected to do either or both of the following, that is to say: (i) desist from acting in such a manner, and (ii) leave immediately the vicinity of the place concerned in a peaceable or orderly manner.” [emphasis added]

5.29 In view of the fact that Section 19C(1) is inserted into the Criminal Justice (Public Order) Act 1994, it is most significant that the Oireachtas did not, as in the case of the above offences, insert reference to lawful or reasonable excuse. Thus, it would appear that there is no facility for consideration by the District Court of the invidious position of persons such as the second named Plaintiff when charged with the offence of criminal trespass. It is submitted

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that in the absence of such proviso, the offence would appear to be contrary to the guarantee of a trial in due course of law and could entail the detention of a person convicted thereunder, in violation of the guarantee of liberty to be found in Article 40.4 of the Constitution.

(B) Legitimate restrictions upon the exercise of traveller’s rights

5.30 The application of Section 19C(1) in circumstances akin to those alleged by the Plaintiffs raises very real concerns as far as the protection of the constitutional rights discussed above82, which when read together may be regarded as affording recognition at a constitutional level to the right to pursue a Traveller lifestyle, are concerned. Similar concerns arise in relation to the compatibility of Section 19C(1) with various provisions of the ECHR, primarily with Article 8 thereof. While a considerable body of Article 8 case law has emerged in recent years which is of relevance in the context of Section 19C(1), the principles established therein point equally towards non-compliance with constitutional standards. Thus, although the following submissions give consideration to arguments centred on Article 883, corresponding concerns arise about compliance with constitutional standards.

5.31 If the allegations of the Plaintiffs are proven in the course of the hearing, then the First Named Defendants have breached their statutory duty by virtue of the failure to make appropriate accommodation available to the Plaintiffs. In those circumstances, it is submitted that a statutory provision which purports to 82 At Paragraphs 3.1 to 3.7.83 It is noted that the applicants in McDonagh v Kilkenny County Council and others, supra n.61, did not plead Article 8 in the pleadings before the Court. While counsel for the Applicants sought to raise arguments based on Article 8 at the hearing, O’Neill J refused to permit them to so do, as Article 8 was not among the grounds in respect of which leave to apply by way of judicial review had been granted.

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criminalise the Second Named Plaintiff for bringing the family caravan onto the lands of the said Defendant and occupying same without the consent of that Defendant landowner in circumstances where that occupation is likely to have one of the five specified effects, although that same Defendant has, by its breach of statutory duty, brought about the homelessness of the Plaintiffs, represents a prima facie breach of Article 8 and a violation of the requirement imposed upon States, as first expressed in Buckley to “facilitate the Gypsy way of life.” Thus the Commission respectfully disagrees with the obiter dictum O’Neill J in McDonagh v Kilkenny County Council84 to the effect that;

“The fact that the two sites in question are owned by the first named Respondents as local authority, coupled with the fact that the first named respondents are the housing authority who have the relevant statutory duty to provide for the accommodation of travellers is also immaterial.85 “

5.32 It is submitted, in this regard, that the observations of Judge Bonello in his dissenting opinion in Chapman v United Kingdom86

are most compelling. In that instance, the actions of Mrs. Chapman in taking her caravans onto her own land without planning permission authorising same, took place against a repeated failure of the local authorities to provide appropriate sites for her onto which she could bring her family’s caravan. The local authority then brought injunctive proceedings in a planning context, an area in which the European Court of Human Rights has traditionally afforded a considerable margin of appreciation to the States Parties. It is submitted that this factor together with the fact that the Second Named Plaintiff is being subjected to the rigours of the criminal law, ought to mean that the following observations of

84 Supra n. 60.85 At page 20 86 (2001) 33 EHRR 399, dissenting opinion of Judge Bonello at 441.

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Judge Bonello apply with even greater force in the circumstances herein;

“I believe that a public authority which is in breach of its legal obligations should not be allowed to plead that it is acting “in accordance with the law [for the purposes of Article 8(2) when restricting a right guaranteed under Article 8(1).]. The classic constitutional doctrine of “clean hands” precludes those who are in prior contravention of the law from claiming the law's protection.

A public authority has as great an obligation to comply with the law as any individual. Its responsibility is eminently more than that of individuals belonging to vulnerable classes who are virtually forced to disregard the law in order to be able to exercise their fundamental right to a private and family life – individuals who have to contravene the law due to the operation of the prior failings of the public authorities.

In the present case, both the public authorities and the individual had undoubtedly trespassed the boundaries of legality. But it was the public authority's default in observing the law that precipitated and induced the subsequent default by the individual. That failing of the authorities has brought about a situation which almost justifies the defence of necessity. Why a human rights court should look with more sympathy at the far- reaching breach of law committed by the powerful than at that forced on the weak has not yet been properly explained.

Here, we are confronted with a situation in which an individual was “entrapped” into breaking the law because a

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public authority was protected in its own breach. A court's finding in favour of the latter, to the prejudice of the former, is, I believe, a disquieting event. A human rights court, in finding that an authority, manifestly on the wrong side of the rule of law, has acted “in accordance with the law” creates an even graver disturbance to recognised ethical scales of value.”

5.33 As the impugned provisions will clearly impact upon the nomadic practices of Travellers, it is necessary to consider whether those provisions are a legitimate and proportionate response to the need to protect competing property interests of other members of society.

(i) The Constitution

5.34 The requirement that measures impacting upon the protection of rights satisfy the doctrine of proportionality is one which is well established in domestic law and in the jurisprudence of the European Court of Human Rights alike. The classic statement of proportionality in the context of Irish constitutional law is to be found in the decision of Costello J in Heaney v Ireland as follows:

“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:—

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

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(b) impair the right as little as possible, and(c) be such that their effects on rights are proportional to the objective: Chaulk v. R. [1990] 3 S.C.R. 1303 at pages 1335 and 1336”87

5.35 This formulation of the proportionality test was explicitly endorsed by the Supreme Court in Re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321.

(ii) European Convention on Human Rights

5.36 As far as rights protected by Article 8(1) of the ECHR are concerned, Article 8(2) sets out in very specific terms the bases upon which Article 8(1) rights may legitimately be restricted.

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

5.37 These countervailing interests are exhaustive, not illustrative.88 All permissible grounds of interference are to be construed strictly.89 As stated by the European Court of Human Rights in Miailhe v France,90 “the exceptions in Article 8(2) are to be interpreted narrowly and the need for them in a given case must be convincingly established”.

87 [1994] 3 IR 593 at 607.88 E.g. Golder v UK (1975) 1 EHRR 524, para 44.89 Sunday Times v UK (1979) 2 EHRR 245; Smith & Grady v UK (1999) 29 EHRR 493.90 (1993) 16 EHRR 332.

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5.38 An interference which is not in accordance with domestic law will breach the ECHR regardless of whether it is justified.91

Legality, or the requirement that interference with rights is ‘in accordance with the law’, does not merely refer back to whether interference is allowed by domestic law but it also relates to ‘the quality of the law’, requiring it to be compatible with the rule of law, a concept inherent in all articles of the ECHR.92

5.39 Once it is established that a particular interference is ‘in accordance with the law’ consideration turns to whether the measure in question has a legitimate aim and if so, whether the measure meets the ECHR’s requirement of proportionality. The prohibition on restrictive measures save those as are necessitated in a democratic society imports the proportionality concept into this, and other, provisions of the ECHR. That principle, which has long been endorsed in jurisprudence of the European Court of Human Rights, embodies the notion of minimal restraint on the exercise of protected rights and interests and the requirements of the common good in a democratic society.93

5.40 The balance between the protection of individual rights and the interests of the wider community is at the heart of the ECHR and a fair balance is achieved when interference with the individual’s rights is strictly proportionate to the legitimate aim pursued in restricting it. As Sedley LJ stated in B v Secretary of State for the Home Department:

“A measure which interferes with a human right must not only be authorised by law but must correspond to a pressing social need and go no further than is strictly necessary in a pluralistic society to achieve its permitted

91 E.g., GK v Poland, judgment of 20 January 2004.92 E.g., Dougoz v Greece (2002) 34 EHRR 61. para 55.93 In that regard, see the test of proportionality as stated by Costello J in Heaney v Ireland [1994] 3 IR 593 set out above at paragraph 5.29.

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purpose; or, more shortly, must be appropriate and necessary to its legitimate aim.”94

5.41 The requirement that a restriction on a fundamental right correspond to ‘a pressing social need’ and be ‘ necessary’ is strict; ‘necessary’ is not so flexible a term as ‘useful’ or ‘desirable’,95 and the phrase ‘necessary in a democratic society’ refers to a pluralistic, tolerant and broadminded society.96

5.42 The extent of the interference with a right is most relevant to the assessment of the proportionality of a given restriction.97 In Chapman, the European Court of Human Rights noted that an interference with one’s home is a most serious one which will require very considerable justification under the proportionality doctrine. Consideration ought also be given to whether or not there are fair procedures and safeguards against abuse in place.98 The absence of relevant and sufficient reasons for the restriction is likely to result in a finding that the restriction was not necessary or was disproportionate.99 A failure on the part of the authority in question to show the requisite reasons justifying the measure adopted and to show that a less restrictive alternative would not have sufficed will point to a lack of proportionality in the means adopted to deal with the competing interest or interests. Guidance on this important aspect of the doctrine of proportionality can be derived from the judgments of Dyson LJ in Samaroo v Secretary of State for the Home Department100 and Lord Steyn in R (Daly) v Home Secretary.101 In Samaroo Dyson LJ held that in deciding what

94 [2000] Imm AR 478.95 Chassagnou v France (1999) 7 BHRC 151.96 E.g., Dudgeon v UK (1981) 4 EHRR 149.97 Restrictions which impair the ‘very essence’ of the right will tend to be disproportionate, see for example F v Switzerland (1987) 10 EHRR 411.98 E.g., Camenzind v Switzerland (1997) 28 EHRR 458, para 45.99 Observer & Guardian v UK (1991) 14 EHRR 153, para 59; Vogt v Germany (1996) 21 EHRR 205, para 52.100 [2001] UKHRR 1150.101 [2001] 2 AC 532, 2 WLR 1622.

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proportionality required in any particular case, the issue usually had to be considered in two distinct stages:

“At the first stage the question was: could the objective of the measure be achieved by means which were less interfering of an individual's rights?The essential purpose of that stage of the inquiry was to see whether the legitimate aim could be achieved by means that did not interfere, or interfere so much, with a person's rights under the Convention. That inquiry had to be undertaken by the decision-maker.

At the second stage, it was assumed that the means employed to achieve the legitimate aim were necessary. The question at that stage was: did the measure have an excessive or disproportionate effect on the interests of affected persons?”

5.43 The application of the principle of proportionality of means was also considered in R (Daly) v Home Secretary102 where Lord Steyn said at page 1634H:

“27. The contours of the principle of proportionality are familiar. ……in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself: "whether:

(i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and

102 [2001] 2 WLR 1622.

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(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review."103

5.44 As set out at Page 26 of their Submissions, the Plaintiffs refer to the considerations which prompted the introduction of the restrictive measures in the following terms:

“The Government claimed that this legislation was to deal with large scale encampments of Travellers. In a government press release of the 25th of May 2002, it claimed the introduction of the law was necessary as the existing powers in the housing acts to remove unauthorised encampments from public places were inadequate to deal with the large encampments that we have seen in the past year or two.”

5.45 Thus, the impugned provisions are designed to protect the property rights of others, although, significantly, they are not confined to trespass upon public places, a matter which is discussed at a later point herein.104 It must then be considered whether they achieve their aim in a manner which interferes, to the

103 Lord Steyn also considered the scope and nature of review by the court when proportionality is in issue, and considered that the intensity of review is sometimes heightened where proportionality is in issue than under the traditional grounds of review in the following respects (at p.1635):

“First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight

accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights.”104 In O’Donnell v South County Dublin, supra, n.54, Laffoy J referred to the economic well-being of the State as the legitimate consideration to be weighed in the balance in the context of the Plaintiffs claim for specific caravans; page 42.

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least extent possible, with the rights and legitimate interests of the Plaintiffs.

(iii) Application of the Proportionality Test

5.46 It must now be considered whether the use of the criminal law in Section 19C(1) is a proportionate tool properly used for the purpose of protecting the property rights of others. It is submitted that if civil remedies could achieve the same end, whilst displacing to a lesser extent the rights and interests of the Plaintiffs, then recourse to criminal law and sanctions may not meet the requirements of the minimal restraint principle. 5.47 The European Court of Human Rights has acknowledged in a number of cases that procedural propriety and fairness is an important matter in weighing whether an interference with an Article 8 right is proportionate. In Buckley v United Kingdom,105 the Court stated:

“Whenever discretion capable of interfering with the enjoyment of a Convention right such as the one in issue in the present case is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.”106 [Emphasis added]

105 At Paragraph 76106 See, for example, the McMichael v United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55, para. 87).

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5.48 Similar views were expressed in Connors v United Kingdom.107 There, the Court concluded that the domestic regime pursuant to which Gypsies resident on public sites could be evicted on foot of a possession order granted by a court on a summary basis, without affording the potential evictee any opportunity to raise a substantive defence based, for example, upon the impact of that eviction, constituted a violation of Article 8 of the ECHR. The Court stated that:

“The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8….

[E]ven allowing for the margin of appreciation which is to be afforded to the State in such circumstances, the Court is not persuaded that the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family had been sufficiently demonstrated by the Government. The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community.”

5.49 The English courts also recognised in a number of decisions delivered prior to the Connors decision, that they were required by

107 (2004) 40 EHRR 189.

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Article 8 to come to their own conclusions as to the proportionality of the injunctive remedy sought and had to weigh in the balance the impact of the injunctive relief having regard to the individual circumstances of the respondents. In that regard, the judgment of Simon Brown LJ, on behalf of the Court of Appeal in South Buckinghamshire District Council v Porter108 is most instructive. He expressed the view that a judge should not grant such an injunction unless he or she was prepared, if necessary, to contemplate committing the defendant to prison, and, of more relevance to the Plaintiffs, if he or she considered for himself/herself all questions of hardship for the defendant and family if required to move. In particular, the availability of suitable alternative sites and the family’s health and education will be factors for consideration. The House of Lords confirmed the decision of the Court of Appeal. It is submitted that the approach of Simon Brown LJ represents a proper one as far as the effective protection of Article 8 rights is concerned in the context of applications pertaining to public lands.

5.50 The English Courts have now moved away from the position endorsed by Simon Brown LJ in South Buckinghamshire District Council v Porter towards a more restrictive view of the scope and impact of Article 8. In Leeds City Council v Price,109 the defendants were members of a Gypsy family who had been repeatedly moved on from locations where they had unlawfully parked their caravans. In June 2004 they moved their caravans to a park in Leeds, and two days later were served with notices for possession, whereupon they sought to prevent their removal by relying, inter alia, upon their Article 8 rights. Their application was unsuccessful and, for present purposes, it is of relevance to note that a majority in the House of Lords (which sat as a seven judge court) forcefully rejected the suggestion that the personal circumstances of a defendant could ever suffice to engage Article 8 in the context of residential 108 [2002] 1 WLR 1359.109 [2006] 2 WLR 570.

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proceedings. In the course of their judgments, the judges noted that their conclusions were not in keeping with the approach adopted by the European Court of Human Rights in Connors.110

5.51 The Commission, however, endorses the Connors approach as the correct one. If that approach were adopted, bodies such as the First and Second Named Defendants could not secure injunctive relief where the court hearing the application formed the view that the eviction and removal of the persons resident represented an undue interference with legitimate rights and interests. Thus, if the Plaintiffs herein were defending an application for an injunction, the issue of the impact upon the education of the children in the family, the lack of continuity with health services, the detrimental impact which the fear of being moved on and the enforced moves had upon the mental health of the First Named Plaintiff and the general well-being of the family would fall to be considered by a court acting in conformity with the requirements of Article 8. In effect, the “best interests” of the eight infant Plaintiffs could not be ignored and should, in fact, be a primary consideration. That principle enjoys statutory and constitutional status in this State and is also one of the central principles of the United Nations Convention on the Rights of the Child, at Article 3 thereof.111

5.52 A further vital consideration in the context of the proportionality argument is the presence or absence of alternative accommodation. Thus, in Buckley v United Kingdom,112 the European Court of Human Rights found that the availability of 110 (2002) 35 EHRR 691.111 Article 16 of the UN Convention on the Rights of the Child mirrors Article 8(1) in providing that “no child shall be subjected to arbitrary or unlawful interference with his or her privacy, home or correspondence, nor to unlawful attacks on his or her honour and reputation. The child has the right to the protection of the law against such interference or attack.” Thus, it is submitted, having regard to the submissions made at the outset of this opinion regarding the consideration of international instruments where those instruments conform with domestic standards, that the courts in this case may show a willingness to have regard to this UN Convention.112 (1996) 23 EHRR 101.

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alternative accommodation to the Buckley family (albeit an alternative site to which the family did not wish to go as they feared for their safety if moved there) was sufficient to render their eviction compatible with the requirements of Article 8. What if, however, there is no alternative, or, as the Plaintiffs allege herein, the housing authorities expressly states that they will not consider their applications in view of an outstanding debt? In Chapman v United Kingdom,113 the European Court of Human Rights considered and appeared to confirm the central nature of alternative accommodation to the entire Article 8 equation in such situations. The majority found no violation of the right114 and concluded, inter alia, that the onus was on Mrs. Chapman to show the absence of alternative accommodation. She had not done so. The minority, on the other hand, relied upon the failure of the public authority to make any finding that there an alternative site available to the applicant. As the authority had not reached such a finding, the minority asserted that there must be compelling reasons to expect her to move. Thus, while those in the minority and the majority differed on the question of on whom the obligation to show such a lack existed, both camps appeared to regard the issue as a central one. While the issue has not yet been determined conclusively, the report of a settlement into which the UK government entered with similar applicants is instructive; In Varey v United Kingdom115 the UK government paid the relatively significant sum of £60,000 sterling plus costs to the applicants, two travellers who had been subjected to proceedings before the

113 (2001) 33 EHRR 399.114 The majority of the Court found no violation of the right, being satisfied that there were adequate procedural safeguards in place to protect Mrs. Chapman’s interests before the decision to evict was made and that the authority had weighed the competing interests in a proper manner when making the said decision. It also found that the competing rights of third parties bore heavily upon the decision-makers before they made their decision and the Court also recognised the existence of a very considerable margin of appreciation to the said authorities as the matter involved a violation of the planning code, an area in which the Court has tended as a rule to afford national authorities a large degree of lee-way.115 Judgment of 21st December 2000.

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domestic courts to remove them from the site on which they resided in their caravan. While the motivation for the settlement is not, of course, clear, the reported judgment is replete with references to the lack of alternative accommodation available to the applicants.

5.53 The approach of Barron J in the context of an application for an injunction to remove a group of Travellers from the plaintiff’s site confirms the relevance of alternative accommodation. In University of Limerick v Ryan,116 the Judge summarised the essential relevant facts arising from the history of the proceedings before him as follows (at p.7):

“(1) They [the defendants] had no right to be where they were;

(2) They had nowhere else in the area where they could go;(3) The Council was unable to provide them with anywhere to

go;(4) The Circuit Court had already refused to move them because they had nowhere else to go”.

5.54 Barron J concluded that the Council’s failure to provide accommodation to the defendants in those proceedings amounted to a breach of its statutory duty under s.13 of the Housing Act 1988. He therefore concluded that the Council was required to act “as a matter of urgency [to] undertake temporary measures pending the provision of a permanent caravan site” and adjourned the proceedings to allow the Council take such steps as were required. Thus, he did not grant the injunction sought in respect of the defendant’s occupation of University lands in those circumstances in view of the Plaintiff’s default.

116 High Court unreported February 21, 1991.

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5.55 It is clear that the introduction of the offence of criminal trespass, which applies in situations previously governed by civil proceedings including injunctions, prevents a consideration of the balancing process which the principle of proportionality demands. Thus, most significantly, the offence of criminal trespass does not permit any consideration of the circumstances in which the offence came to be committed, namely as a result of the breach of duty by the local authority to provide housing. Furthermore, there is no means by which questions of hardship for the defendant and family if required to move may be considered, no facility for assessing the availability of suitable alternative sites and the family’s health and education, as indicated by Simon Brown LJ in Porter.

5.56 In the circumstances, the Commission respectfully disagrees with the conclusion reached recently by O’Neill J in McDonagh v Kilkenny County Council and others117 to the effect that, as far as persons in positions akin to the Second Named Plaintiff are concerned, no significance attaches to the fact that a landowner may now recover possession of his or her land by making a complaint to an Garda Siochana and requesting them to invoke the criminal process embodied in Section 19, as opposed to pursuing injunctive relief in the civil courts, as was the case heretofore. In that instance, the applicants contended, inter alia, that the lack of inquiry or hearing prior to the service of Section 19 notices and the attendant obligation to leave the lands in question under threat of criminal sanction, compared unfavourably with the position which pertained when a landowner sought to retrieve possession of lands by means of application for injunction. O’Neill J noted that;

“The applicants seek to illustrate the procedural deficiency of which they complain by comparing the absence of the procedure they contend for, namely of some kind of hearing

117 Supra, n. 60 at page 19 -20.

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before the invoking of the s. 19 powers, to the situation which appertained prior to the enactment of s. 19, namely where aggrieved landowners sought injunctive relief from the court to restrain trespass. In this situation, it was submitted that the trespasser had a hearing which was required by article 6(1). What was entirely overlooked in the applicant’s submission in this regard is that the circumstances now relied upon by the applicants as justifying their illegal entry would have been no defence and would have gained them no relief or concession from the court, where there was no dispute but that the entry on land was unlawful.118”

5.57 It cannot, of course, be stated that the outcome of a process designed to secure the removal from land of persons there without the consent of the owner will necessarily be different in any given case where that process is a civil one as opposed a criminal one. Nonetheless, the issues to which regard may be had are indeed different and it is submitted that recourse to the criminal process embodied in Section 19 precludes consideration of certain matters necessary to ensure the vindication of the rights of persons such as the Plaintiffs herein.

5.58 In the above McDonagh case, O’Neill J was greatly influenced by the fact that the applicants had entered and occupied the lands of the local authority without its consent. In those circumstances, the Court concluded that it was not appropriate for the applicants to seek to use the protections afforded by the relevant constitutional or ECHR provisions in order to “shield from scrutiny and redress an illegal invasion of another person’s property rights.” In those circumstances, O’Neill J did not engage in a process of weighing the competing rights of the landowners on

118 Supra, n.60 at page 21.

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the one part and of the applicants on the other, nor indeed of the proportionality of the action taken against the applicants in that instance. He noted that;

“the applicants placed a very heavy reliance upon the principle of proportionality. Needless to say, in circumstances where I have found that there has been no interference with the applicants’ rights, the question of proportionality does not arise.”

5.59 It should be noted that in that instance, the Court found that the local authority had not breached its housing duties as the applicants’ accommodation needs were properly the responsibility of another local authority. Thus, it was not a case in which it could be argued that there were competing wrongs on the part of applicants and respondent housing authorities (although O’Neill J did in any event express the view, albeit obiter, that it was immaterial that the first named respondents were a housing authority). It is submitted, with respect, that the fact of such unlawful entry by persons such as the applicants in McDonagh or the Plaintiffs herein, though a relevant consideration in the relevant decision-making process, ought not curtail or preclude assessment of the rights under the Constitution and/or the ECHR of the person or persons who have thus entered and occupied the lands in question. Indeed, as alluded to above119, the European Court of Human Rights noted in Buckley that the ““home” protected by Article 8 ECHR is not limited to those which are lawfully occupied or which have been lawfully established120”, pointing to the view that illegal entry or occupation cannot preclude assessment of the rights of that entrant or occupier .

119 Paragraph 4.3120 (1996) 23 EHRR 101.

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5.60 Indeed, O'Neill J held in McDonagh that:

“In all of the ECHR cases above mentioned … [i.e. Buckley, Chapman and Connors], the applicants in each case either owned the land in respect of which the dispute arose or had enjoyed a lawful occupation of it and hence, in my view, are clearly distinguishable from the circumstances of this case.”

5.61 Whilst the applicants in Buckley and Chapman were the lawful owners of the lands the subject of the proceedings, both cases concerned the applicants’ unlawful placement or retention of caravans on the lands in question. Both the Buckley and Chapman cases were therefore concerned with alleged unlawful or illegal activity, issues which did not preclude the potential application of Article 8. Furthermore, in Connors v United Kingdom, the applicants were neither the lawful owners of the land nor in lawful occupation of same at the material time; nonetheless, it was noted by the European Court of Human Rights that:

“The parties were agreed that Article 8 was applicable in the circumstances of this case and that the eviction of the applicant from the site on which he had lived with his family in his caravans disclosed an interference with his right to respect for his private life, family life and home.  The parties were also agreed, in the context of the second paragraph of Article 8, that the interference was “in accordance with the law” and pursued a legitimate aim, namely, the protection of the rights of other occupiers of the site and the Council as owner and manager of the site.”

5.62 The Court therefore proceeded to consider the outstanding issue of whether the interference was “necessary in a democratic society” in pursuit of that aim. The Court ultimately concluded that

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the eviction of the applicant and his family from the local authority site “was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a “pressing social need” or proportionate to the legitimate aim being pursued.” The Court accordingly found a violation of Article 8.

5.63 The Commission submits that while considerations such as lack of alternative accommodation, detrimental impact upon health and education of the infant family members etc., may not bear any real Article 8 weight in circumstances in which the person being prosecuted has entered upon and occupied or has brought an object onto privately owned lands, the Act of course applies to and criminalises such acts on certain public lands. Indeed, the Plaintiffs were clearly living on such public lands when residing in the swimming pool car park at Abbeyhalfquarter, Ballina. Thus, it is submitted that the Section is drafted in an unduly broad manner. While the constitutionally-protected property rights of a private individual, who owes no legal duty to any other person to permit them onto his or her land, ought not to be interfered with and a legislative attempt to protect such property rights by, as in this instance, criminalising the actions of the person seeking to interfere with such rights may be a legally justifiable action, it is much more difficult to sustain that argument in relation to the property of a public body, where that public body has a statutory obligation to house the accused and has failed to do so. Thus, it is argued that the section is unduly broad. It purports to criminalise persons who have no real alternative but, as in the Plaintiffs’ case, to enter upon lands and who therefore enter upon lands owned by a public housing authority, in circumstances in which that same lack

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of alternative is created by the omissions of that public authority. A proportionate legislative response would not have extended the offence to entry upon and occupation of public lands. The civil route represents the appropriate response in the event of entry upon and occupation, as the defendants could then invoke competing legitimate interests of their own and of their family in order to withstand removal from their home. At the very least, reliance ought to be placed in the context of such civil proceedings upon the absence of any alternative open to the Plaintiffs, being an absence created by the default of the housing authority.

5.64 It is therefore submitted that Section 19C(1) is a disproportionate response to the legitimate aim of protecting private owners of land from unauthorised encampments. It purports to criminalise persons who, like the applicants, have no real alternative but to enter upon lands which are owned by a public housing authority. The wrong committed by persons who enter public lands could be addressed without recourse to criminal sanction. Section 19C(1) does not, therefore, respect the notion of minimal restraint but, rather, constitutes an unnecessarily obtrusive invasion of the legitimate interests of nomadic persons seeking a place to reside.

5.65 In the Commission’s view, Section 19C(1) does not meet the standards required by Article 8 of the ECHR. In light of the inability of the Second Named Plaintiff to raise relevant matters before the District Court, it must also be doubted whether it meets the standards imposed by Article 6(1) of the ECHR. It is to be noted, in this regard, that the European Court of Human Rights has acknowledged that there is a considerable degree of overlap between the procedural safeguard requirements imposed by Article 8 and the requirements of Article 6. Thus, for example, in Connors, the applicant alleged a violation of Article 6, in addition to his

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Article 8 complaints. The Court considered that the essence of his Article 6 complaint, that his eviction was not attended by sufficient procedural safeguards, had been examined under Article 8:

“The applicant complained under Article 6 that he was unable in the summary possession proceedings to challenge the Council’s allegations of nuisance whether by giving evidence himself or calling witnesses. The applicant was at a substantial disadvantage given the terms of the licence, in respect of which he had not been in a free bargaining position. There was no equality of arms and he was denied any effective access to court against the very serious interference with his home and family.

The Court considers that the essence of this complaint, that his eviction was not attended by sufficient procedural safeguards, has been examined under Article 8 above and may be regarded, in the present case, as absorbed by the latter provision. No separate issue therefore arises for determination.”

5.66 In a constitutional context, the right of the Second Named Plaintiff to a good name which the State guarantees in Article 40.3 to uphold, and to vindicate in the case of injustice done, and his right to liberty as protected by Article 40.5 may be unlawfully infringed by this disproportionate measure which purports to criminalise him without affording him the opportunity of raising all relevant matters.

6. SECTION 19(F)

6.1 Two summonses, dated 1st May, 2003, were served upon the second named Plaintiff, on foot of which he was charged with the

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offence of entering and occupying land without the duly given consent of the second named Defendant contrary to Section 19C and 19G of the Criminal Justice (Public Order) Act 1994 as inserted by Section 24 of the Act of 2002, and with failing to comply with the direction to remove his caravans from the said place contrary to Section 19(D)(b) and 19(G) of the Criminal Justice (Public Order) Act 1994 as inserted by Section 24 of the Act of 2002. The consequences of failure to comply with such a direction are very considerable:

(a)The person failing to so comply shall be guilty of a criminal offence

(s19D);

(b)He or she can be arrested without warrant (s19E);

(c) His or her property may be removed and stored by gardaí (s19F(1));

(d)In order to recover property that has been removed, the owner can be required to pay the costs incurred in its removal and storage (s19F(4));

(e)Where property has not been recovered after one month of its removal, the gardaí can destroy it (s19F(5)).

6.2 A considerable number of concerns arise in relation to these provisions. First of all, it is submitted that as all of the above consequences stem from a purported violation of the main offence set out in Section 19C(1) of the Act, the infirmities, as described above, which attach to the main offence also apply in relation to these provisions.

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6.3 These latter provisions also, however, give rise to concerns independent of the infirmities attaching to the main offence. In that regard, it is to be noted that the very serious consequences that flow arise solely on the basis of a garda having ‘reason to believe that a person is committing or has committed an offence under subsection (1)’ and an offence under subsection (1) (i.e. Section 19C(1)) itself can be committed where a person’s conduct is ‘likely to’ adversely affect or interfere with land or amenities in a manner set out at section 19C(1)(b)(i) to (v). In other words, a person’s home can be confiscated and destroyed as a result of a ‘double conjecture’ on the part of a garda whose opinion is not subject to any independent inquiry or review. There is no requirement that the garda in question be of a certain - relatively senior - rank, nor is it necessary to show that his or her suspicion is a reasonable one. No reasons are provided, let alone examined independently, as to why the garda has ‘reason to believe’ that an offence is being, or has been, committed. He or she need not offer any justification, documentary of otherwise, to the person to whom he issues the direction for the belief that an offence is being or has been committed. Indeed, in view of the presumption that no consent to enter and occupy lands has been given, it would appear that a garda may simply rely upon the word of local persons disgruntled by the presence of Travellers on the land in question, without reverting at all to the landowner for the purpose of determining whether or not consent has been given.

6.4 When the above issues are considered in conjunction with the fact that a garda may remove a caravan there and then, without awaiting a criminal conviction of the person who refuses to comply with the direction to move, it is clear that Section 19F confers an unregulated power upon a garda of any rank who may act as judge, jury and executioner, and may furthermore do so on the basis of questionable evidence. The Section envisages that by the time the

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trial of a person accused of failing to comply with a direction to move on is conducted before the District Court, the accused may have had his or her home taken away some weeks or indeed months hence; there is no need to postpone the impounding pending the receipt of court authorisation. No role at all is envisaged for the District Court nor indeed any other body to consider, monitor and review the decision to impound. It is to be noted that there are a number of legislative equivalents in England, all of which makes provision for court review. Thus, Section 77 of the Criminal Justice and Public Order Act 1994 gives to a local authority the power to direct an unauthorised camper to move. An unauthorised camper is defined as:

“a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner’s consent.”

6.5 Failure to comply with a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrate’s court for an order authorising them to remove caravans parked in contravention of such a direction; Section 78 thereof. No such process exists under the Irish provisions.

6.6 Likewise, Section 10 of the Caravan Sites Act 1968 requires a local authority within the designated area to apply to a magistrates’ court for an order authorising it to remove caravans parked unlawfully. This provision was at the heart of the Buckley v United Kingdom case,121 considered above.

6.7 It is to be noted that the applicants in the recent McDonagh v Kilkenny County Council and others 122sought to raise constitutional 121 At paragraphs 5.42 and 5.47.122 Supra, n….

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and ECHR objections to Section 19(F). The Court, however, found that the applicants did not have locus standi to raise those issues as their home had neither been destroyed nor confiscated. In the event that the Plaintiffs herein are found to have standing to address such issues before this Court, the Commission raises the following arguments.

Constitutional Considerations

6.7 Perhaps the most obvious constitutional failing of Section 19F relates to its impact upon the guarantee set out in Article 40.5 of the Constitution to the effect that:

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”

6.8 It is well established in the jurisprudence of the superior courts that this guarantee is one of the “most important, clear and unqualified protections given by the Constitution to the citizen”.123

The courts have furthermore rejected a positivist interpretation of the term “save in accordance with law” indicating instead that the guarantee shall not be interfered with “by stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution.”124

6.9 As noted previously herein, it has been established by the European Court of Human Rights that the term “home” in Article 8 of the ECHR shall include caravans and other temporary dwellings.125 The Irish courts have not yet had occasion to consider whether or not a caravan constitutes a “dwelling”. It is noted,

123 Carney J in DPP v Dunne [1994] 2 IR 537.124 Barr J in Ryan v Callaghan, Unreported, High Court, 22nd July 1987. 125 Buckley v United Kingdom, supra at paragraph 5.42 and 5.47.

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however, that in Simple Imports Ltd v Revenue Commissioners,126

Keane J, having considered the application of Article 40.5 in the context of dwellings added, in any event, that protection against unjustified searches and seizures is not confined to the dwelling of the citizen: it extends to every person’s private property.

6.10 The Commission endorses the view espoused by Professor Casey in Constitutional Law in Ireland127 that:

“It is clear that the ‘dwelling’ protected by Article 40.5 includes any premises occupied by any person as his/her residence. It does not seem to be confined to houses or apartments, and – given its purpose – must presumably apply to a mobile home or indeed a hotel room.”

6.11 Indeed in the case of People (DPP) v Yamanoha128 a hotel room was searched with an invalid warrant and the evidence found therein was declared inadmissible. It is implicit in the judgment of the Court of Criminal Appeal that this automatic exclusion of evidence was due to the provisions of Article 40.5.

6.12 The Commission also supports the conclusions of the Constitution Review Group, which stated in its Report129 that the word “dwelling” “does cover dwellings such as trailers/caravans, tents and mobile homes”.

6.13 The Courts in this jurisdiction have often had occasion to consider the terms of Article 40.5 in the context of cases involving search warrants. A common thread runs through the case law to the effect that the power which such a warrant confers to enter and search a dwelling and to seize goods therefrom, constitutes a 126 [2000] 2 IR 243 at 250.127 (3rd ed 2000) at p.516. 128 [1994] 1 IR 565.129 At page 353.

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serious encroachment on the inviolability of the dwelling and indeed, upon the property rights of the citizen. The courts have thus sought to strictly enforce the statutory requirements for their issue. As Keane J noted in Simple Imports Limited v Revenue Commissioners:130

“Search warrant[s] entitle police and other officers to enter the dwellinghouse or other property of a citizen, carry out searches and (in the present case) remove material which they find on the premises and, in the course of doing so, use such force as is necessary to gain admission and carry out the search and seizure authorised by the warrant. These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society, but since they authorise the forcible invasion of a person’s property, the courts must always be concerned to ensure that the conditions imposed by the legislation before such powers can be validly exercised are strictly met.”

6.14 As noted above, there are no conditions imposed at all upon the exercise by a garda of the powers conferred upon him by Section 19F yet the consequences of his or her actions are, of course, far more grave than are those which arise on foot of the execution of a search warrant, in the sense that one’s home is still available to live in after the gardai have exercised the powers conferred by such a warrant. In contrast, a person may be left homeless and facing the prospect of the destruction of his or her home as a result of the exercise of the powers conferred by Section 19F of the Act of 2002. It is submitted, in the circumstances, that the provision amounts to a failure to “observe the fundamental norms postulated by the legal order of the Constitution” and a clear violation of Article 40.5.

130 [2000] 2 IR 243 at 250.

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6.15 The Commission submits that the provision, by facilitating the removal of one’s home in such an arbitrary and unregulated manner, also violates the protection afforded to private property in Article 43 and Article 40.3 of the Constitution. Article 43 provides;

“1. 1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

2. 1° The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.”

6.16 In Article 40.3, the State undertakes “to protect as best it may from unjust attack and, in the case of injustice done, vindicate the ….property rights of every citizen.” The attempts by the Courts to define the relationship between these two provisions is described in JM Kelly: The Irish Constitution131 as follows:

“the older cases looked to Article 43 as the principal guarantee of the individual’s right to a specific item of property. Then, for a brief period during the 1980’s, that

131 See Hogan & Whyte (4th ed LexisNexis Butterworths 2004) at paragraphs 7.7.38-7.7.46.

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provision was relegated to the role of the protection of the institution of private property, while Article 40.3 protected the rights of the individual to particular items of property. However, since the latter half of the 1980’s, the courts have again invoked the concepts of social justice and the exigencies of the common good, mentioned in Article 43, when considering whether restrictions on specific property rights constitute an unjust attack for the purposes of Article 40.3”132

6.17 In that regard, it is noted that in Re Article 26 and the Employment Equality Bill 1996,133 the Supreme Court considered the scope of the constitutionally permissible restrictions on private property and concluded that such restrictions must be consistent with the requirements of “social justice” within the meaning of Article 43.2.1 of the Constitution”

“In reading Article 43 of the Constitution it is important to stress the significance of the word "accordingly" which appears in Article 43, s. 2, sub-section 2. It is because the rights of private property "ought" in civil society to be regulated by "the principles of social justice" that the State may, as occasion requires, delimit their exercise with a view to reconciling it with the "exigencies of the common good". It is because such a delimitation, to be valid, must be not only reconcilable with the exigencies of the common good but also with the principles of social justice that it cannot be an unjust attack on a citizen's private property pursuant to the provisions of Article 40, s. 3 of the Constitution.”

6.18 However vague the notion of “social justice”, the Commission submits that neither it nor demands of the common good can justify 132 At paragraph 7.7.03.133 [1997] 2 IR 321.

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the summary removal of a person’s home and the rendering homeless of that person by the actions of a member of the Gardai, without the provision of any forum for raising arguments in objection. In that regard, it is noted that the Courts have also endorsed the view that the procedural adequacies or inadequacies of a provision regulating private property are crucial to the assessment of whether or a not that provision can be construed as ‘an unjust attack’ on the property rights of an individual, for the purposes of Article 40.3.134 Indeed, it is also submitted that the obvious procedural inadequacies in Section 19F violate the right to be heard before a decision is made, inherent in the right to fair procedures, also protected by Article 40.3.135 Finally, in the view of the Commission, the removal of one’s home, with the possibility of destruction thereof one month later, and the consequent rendering homeless of a person, is an affront to the right to a good name, specifically protected under Article 40.3 and to the unenumerated rights protected under that same provision to be treated with dignity, the rights of privacy and to autonomy.

Issues arising under the ECHR

6.19 It is submitted, in view of the above, that Section 19F violates in a most flagrant manner the Article 6 guarantee of a fair hearing by an impartial tribunal in the determination of the civil rights of an individual. The jurisprudence of the European Court of Human Rights has tended to focus upon the quality of the fair hearing to be provided, seeking to ensure effective participation by the relevant parties136, and thus has proceeded upon the assumption that a hearing will

134 See Clancy v Ireland [1988] IR 326; [1989] ILRM 670 and Deighan v Hearne [1990] 1 IR 440.135 See, for example, The State (Gleeson) v The Minister for Defence [1976] IR 280, Kiely v The Minister for Social Welfare (No.2) [1977] I.R. 267, Beirne v The Garda Commissioner [1993] ILRM 1 136 See, for example, Airey v Ireland (1979) EHRR 305, Langborger v Sweden (1989) 12 EHRR 416.

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be provided in the first place, an assumption that is unfortunately misplaced in the context of Section 19(F). Indeed, the comment of the Court in the case of Golder v The United Kingdom137, albeit expressed in the context of protection by Article 6 of the right to legal representation is apposite in the context herein; the Court noted that;

“one can scarcely conceive of the rule of law without there being a possibility of having access to the courts.”

6.20 It may be queried, furthermore, whether the right to an effective remedy protected by Article 13 of the ECHR is also engaged; that provision provides that;

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

6.21 The view adopted by the European Court of Human Rights in relation to Article 13, however, is such that it cannot be used as a basis for challenging the lawfulness of legislation. In Connors v United Kingdom, the Court noted that;

“Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention138”

137 (1979 – 1980) 1EHRR 524 at paragraph 34. 138 Para 109. James and others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 85; A. v. the United Kingdom, no. 35373/97, ECHR 2002-X, §§ 112-113.

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6.22 It is submitted, having regard to the parameters of Article 8(1) ECHR and the scope of the permissible restrictions under Article 8(2) as discussed above, that Section 19F is represents a clear violation of this provision. In view of the gravity of the acts of a garda pursuant to Section 19F, that it is an entirely disproportionate measure. The lack of procedural safeguards in the sub-section compounds the flaws therein, procedural propriety and fairness being important factors to be weighed when determining whether an interference with an Article 8 right is proportionate. As noted above,139 the European Court of Human Rights concluded in Buckley v United Kingdom that the presence of procedural safeguards within the equivalent English legislation was a most material consideration as far as its conclusion that the United Kingdom had acted in accordance with the ECHR was concerned.

6.23 The provision also gives cause for concern under Article 1 of Protocol 1 of the ECHR which provides that:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

139 At paragraph 5.42.

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6.24 It is clear, however, that the qualification set out in second paragraph of the above provision regarding the right of a State to enforce the laws in question cannot extend to a right to enforce laws which deprive a person of his or her possessions in circumstances which violate the ECHR itself. In those circumstances, it is submitted that Section 19F also appears to violate Article 1 of Protocol 1 of the ECHR.

7. DISCRIMINATORY IMPACT OF SECTION 19A – H?

7.1 All parts of Section 19 are considered together herein for the purpose of determining whether they, although facially neutral, violate the equality guarantee of Article 40.1 of the Constitution and the non-discrimination provision clause in Article 14 of the ECHR in view of the fact that they are indirectly discriminatory. It is submitted that the Section will inevitably have a disproportionately large impact upon the lifestyle and freedoms of persons of a nomadic disposition. Indeed, disproportionate impact upon the nomadic activities of Travellers is not only an effect of the section, it is, according to the Government press statement alluded to above,140 the aim thereof as it was stated therein that the measure sought to “deal with large scale encampments of Travellers”.

7.2 The issue of indirect discrimination has scarcely been addressed by the courts in this jurisdiction to date in the context of Article 40.1 of the Constitution. In Norris v Attorney General,141

certain members of the Supreme Court appeared to reject the concept in a number of obiter references. As noted earlier, whilst constitutional equality jurisprudence remains relatively underdeveloped in this jurisdiction, it is clearly arguable that, if 140 At paragraph 5.39.141 [1984] IR 36.

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interpreted in a manner consistent with international instruments ratified by the State, that Article 40.1 ought to embrace both direct and indirect discrimination. Indeed, the European Court of Human Rights has acknowledged that “indirect discrimination” is covered by Article 14 in the sense that it prohibits measures which, although neutral on their face between two groups, produces effects that fall disproportionately on one of the two groups. The Court accepted this relevance of effects in the Belgian Linguistic Case (No.2):142

“[T]he Court, following the principles which may be extracted from the legal practice of a large number of democratic States, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the ECHR must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.”

7.3 Similarly, in Shanaghan v United Kingdom,143 the Court stated “where a general policy or measure had disproportionately prejudicial effects on a particular group, it is not excluded that this may be considered as discriminatory notwithstanding that it is not specifically aimed or directed at that group”.

142 (1979-80) 1 EHRR 252.143 European Court of Human Rights, unreported, May 4, 2001.

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7.4 Thus, the Commission submits, as a number of provisions of the ECHR are violated by Section 19, that it will also violate Article 14 unless “objective and reasonable justification” can be found. In order to prove such justification, the respondent government or defendant public authority must show that the difference in treatment pursues a ‘legitimate aim’, and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Once discrimination is demonstrated, it is for the discriminator to establish an objective and reasonable justification for that discrimination. That onus must be especially high where, as is seen from the above case law in relation to the protection of the Gypsy way of life, the ECHR imposes a positive obligation on contracting States. Thus, in Ghaidan v Godin-Mendoza144 at paragraph 19 Lord Nicholls said:

“….where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification. The reasons must be cogent if such differential treatment is to be justified”.

7.5 In view of our earlier submissions regarding the lack of proportionality inherent in Section 19, the Commission submits that it can have no objective or reasonable justification. In the circumstances, it is submitted that the provisions thereof may also violate Article 14.

144 [2004] 2 AC 557.

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