THE HONORABLE SOCIETY OF KINGS INNS
ENTRANCE EXAMINATION
AUGUST 2009
Examination:Irish Constitutional Law
(Paper A)
Date:Thursday 20 August 2009
Time:10.00 a.m. – 1.00 p.m.
Internal Examiner:Mr T John O’Dowd
External Examiner:Dr Gerard Hogan SC
Instructions
Candidates must answer Question 1AND any other TWOof the remaining questions.
Question 1 carries 50 marks.
All other questions carry 25 marks each.
A copy of the Constitution of Ireland, 1937 and a copy of Article 10 of the European Convention of Human Rights are supplied.
1.(An answer to this question is compulsory)
Emily is 14. She believes her father Charlie died in 1996.Joyce, whom she believes to be her mother, died last year.By will, Joyce named her second husband, Desmond, asEmily’ssole guardian. Emily’sonly sibling,Maggie, committed suicide two years ago, aged 25. Emilysuffers frommultiple myeloma (a cancer of the plasma blood cells), which isunresponsive to treatment, and from clinical depression. Herlast realhope is a bone marrow transplant; without one, she is likely to die within six months. The side effects of immunosuppressive drugs would seriously harm her quality of life anda transplanthasat best only a 20% chance of success. Her doctors do not recommend inflicting such pain and stress for this low probability of a benefit. No blood relative has been found to be a suitable donor.
Desmondbelieves that Charlie is alive; he knows that hewent to England in 1996 and got an English divorce from Joyce in 2000. Desmond believesthat familyliedabout these mattersbecause Emilyis actuallyMaggie’s daughter, conceived through incestuous abuse by Charlie,as a result of whichJoyce kickedCharliehim out and claimedEmilyas her own daughter. Maggie’s depression and suicide, Desmond believes,were related to her abuse. He has no direct knowledge whether Charlie abusedMaggie; he trustswhat Joycetold him. DesmondbelievesCharliedoes notknowanyonesuspects him of incest.
Desmondwants to getCharlie, who has the best chance of being a good tissue match,to donate bone marrow. He has no idea how to contactCharlie,who probablyhas a new name and identity. Heproposes to use the mass media in Ireland and the UK (without disclosing the family’s secrets) to alert Charlie to his daughter’s plight and to appeal for his help. Desmonddoes not intendto tellEmilythat he believes that her father committed incest or to make any complaint to the Gardaí. Desmondtells Gerard, Emily’s psychiatrist, about his beliefs and plans.In Gerard’s professional opinion, it would not be in Emily’s best interests to have any contact with Charlie or to be given even the slightest reason tosuspect that she was conceived through incest. If she came to believe that she had been, he thinksthat there is a significant risk that she would attempt suicide. The hospital treatingEmily applies to courtto makeher a ward of court and for directionsprohibiting—
(a) any person direct or indirect disclosing to Emily that Charlie is or may be still alive or that Maggiemay have been her mother, as a result of incest or otherwise;
(b) any person making direct or indirect contact with, or responding to any contact from,orcommunicating with,any media organisation or its representatives,concerning any aspect of Emily’s health,medical care or family circumstances;
(c) any transplantation of Charlie’s tissue into Emily, except by order of the Court.
The hospital contends that these directions are needed to prevent Emily’s learning of Desmond’s beliefs about her parentage.Although the last direction merely clarifies what is implicit inEmily’s status as award, the hospital claims it would remove any incentive to manipulatepublicityconcerninghercase to make a bone marrow transplant from Charlie more likely. Advise Desmond: could he successfully rely on the Constitution to resist Emily being made a ward of court or to resist any of the three directions being given in the form sought? (50 marks)
2.(1) (a) A person shall not use or take possession of a mechanically propelled vehicle without the consent of the owner thereof or other lawful authority.
(b) Where possession of a vehicle has been taken in contravention of this subsection, a person who knows of the taking shall not allow himself to be carried in or on it without the consent of the owner thereof or other lawful authority.
(2) A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable—
…
(b) on conviction on indictment, to a fine not exceeding [€2,539.47] or, at the discretion of the court, to imprisonment for a term not exceeding five years or to both such fine and such imprisonment.
…
(5)Where a person is charged with an offence under this section, it shall be a good defence to the charge for him to show that, when he did the act alleged to constitute the offence, he believed, and had reasonable grounds for believing, that he had lawful authority for doing that act.
Road Traffic Act, 1961 s 112(1)-(2), (5) (as amended)
On searching Jack’s lock-up garage, Gardaí found a motor car taken six months previously without the owner’s consent.The fingerprints of Jack’s friend, Robby,were foundunderneath the front passenger seat.As there was nothing suspicious in the car’s appearance or mechanical condition, after three months the Gardaí released it to the owner, without carrying out any other forensic examinations or tests. The owner, finding the interior of the car badly soiled and burned, removed the seat and floor coverings, completelystripped and re-sprayed the internal paintwork and fitted entirely new upholstery. Robby was arresteda month ago.When interviewed, he admitted toallowing himself to be carried in the car, knowingit had been taken without the owner’s consent. However, he says thathis friend Billwasseriously wounded in a gun attack and Jack had taken the car, in order to bring Bill to a hospital, withRobby’shelp.Robby claims that they left Bill at the accident and emergency department;he then made off on foot while Jack drove away. Robby claims that he later helped Jack remove all visible bloodstains from the car’s interior; he has no idea what happened to it after that. Hospital records confirm that personsunknown depositedBill at the relevant time; he died of his wounds shortly thereafter. A surveillance video tape showing exactlywhat happened was accidentally erased by a hospital employee, before the Gardaí could copy it. Jackis missing; a usually reliable source has told the Gardaí that he is dead.No forensic tests can now be performed on the car toconfirm or contradict Robby’s story. Robby has been sent for trial in the Special Criminal Court, on a charge under section 112(1)(b). Advise the Director of Public Prosecutions: canRobby successfully rely on the Constitution to thwart or hamper this prosecution? (25 marks)
3.Deirdre, a property developer, is the managing director and a major shareholder in a company which has proposed to build and operate a major hotel and golf resort development in a remote and economically-depressed Gaeltacht area. The land on which the development would take place has the appropriate zoning, but the company’s application for planning permission was granted by the planning authority only subject to the condition that a second, separate hotel be established as part of the resort, in which the predominant working language of the staff would beIrish and which would employ fluent Irish speakers only (giving preference to persons fluent in the specific dialect of Irish spoken locally) unless no suitably-qualified Irish speaker were available for the post. In the council’s view, without such a condition, the influx of resort guests and staff would swamp the population of this small, isolated Gaeltacht community and be a threat to the survival of the Irish language there. An Bord Pleanála upheld the council’s decision to impose this condition. Deirdre’s company is reluctant to proceed with the development on this basis.Itclaims that, due to the decision to uphold the imposition of the condition, the value of the company’s interest in the land to which the decision relates has been reduced. As a general rule, the company would therefore be entitled to be paid by the planning authority by way of compensation such amount as represents that reduction in value (whether fixed by agreement with the authority or by arbitration.) (Planning and Development Act 2000 s 190) However, such compensation is not payable (ibid s 191(3)) if the condition imposed on the granting of permission to develop land, involves—
8. Any provision relating to the protection of the linguistic or cultural heritage of the Gaeltacht. (ibid Fifth Schedule, par 8)
Deirdre seeks your advice. Can she, her company, or both, claim that the imposition of the planning condition or the exclusion of the company from the right to compensation in respect of the effect of that condition on the value of the land breach constitutional rights? (25 marks)
4. Josephbelongs to a small religious group with a strong belief in avoiding involvement with political or governmental affairs (including voting.) They also believe thatthe sin of idolatry includes saluting, endorsing, acknowledging or showing allegiance to any governmental or political image, emblem, flag or other symbol. Joseph has decided, after muchreflection and prayer, that he should vote in Dáil elections. Without agreeing with him, most of his fellow believersacknowledge that this decision is one for each person’s conscience. However, Joseph has a strong religious objection to marking his preferences on a ballot paper containing photographs of candidates and party emblems. For him, this way of voting isa form of idolatry.His group has no clear view about this, since very few of them vote. Under the Electoral Act, 1992 section 88(2)(cc) (as amended)—
(cc) a ballot paper may include a photograph of each candidate and the emblem of the candidate’s political party registered in the Register of Political Parties in accordance with the requirements prescribed in regulations which may be made by the Minister (and such regulations may provide for the modification of the form of the ballot paper for that purpose and the purposes of Part 3 of the Electoral (Amendment) Act 2001)
The Fifth Schedule to the Electoral Regulations 2007 fixesthe form of the Dáil ballot paper as containing a photograph of each candidate, his or her party’s emblem (provided thathe or she is the candidate of a party which has an emblem) and this instruction to the voter “Write 1 in the box beside the photograph of the candidate of your first choice, write 2 in the box beside the photograph of the candidate of your second choice, and so on.”
Josephrequested that the Minister for the Environment, Heritage and Local Governmentinvokesection 164(1) of the Act under which he“may, in any case in which it appears to him that there is an emergency or special difficulty, by order make such adaptation or modification of any statute, order or regulation relating to … the conduct of Dáil elections, … as may in his opinion be necessary to enable … such election … to be duly held, subject to compliance with the principles laid down in the relevant Acts taken as a whole.”) Joseph wants a second form of ballot paper, without photographs or emblems, for use bythose voters who request it. Given thepractical difficulties of having two types of ballot papers at polling stations,Joseph suggests that those who request a “text only” paper should vote by post. He points to the special provisions which are often made to give postal votes topersons whose religious beliefs preclude secular activitieson the particular day fixed as polling day at an election (eg Supplement to Postal Voters List (Special Difficulty) Order 2007.)The Minister considers that if only a tiny number of voters (perhaps only one) useda distinct form of ballot paper, it would bealmost impossible to uphold the secrecy of the ballot for them. For that reason, and due to the disproportionate cost and inconvenience of complying, he refusedJoseph’s request. Advise the Minister:couldhis decision be open to successful challenge?(25 marks)
5.Answer either (a) or (b) below, but not both.
(a)“ …[I]t would be neither consistent with the principles of fairness nor the separation of powers that non-judicial persons should be permitted to exercise judicial powers with such far-reaching effects as striking a solicitor off the roll.”
Constitutional Review Group Report (1996) p 153 (majority view)
In your view, is thisclaim as persuasive in 2009 as it may have been in 1958 or 1996?(25 marks)
or
(b)“While the reluctance or refusal of courts to try issues which are abstract, hypothetical or academic and thus fall within the notion of mootness, is common to most systems of law, the breadth of that concept, its rigid or discretionary application … is often informed by national judicial policy.”
O’Brien v Personal Injuries Assessment Board (No 2) [2007] 1 IR 328 (SC) 333 Murray CJ.
Explain, with specific reference to the relevant case law, the main features of “national judicial policy” in Ireland in respect of the notion of mootness.(25 marks)
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