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Topic 10- General Principles of Constitutional Rights (Protection of the…
Topic 10- General Principles of Constitutional Rights
Balancing of Rights
Sometimes rights come into conflict
e.g. right to good name v FOE
Courts try and adopt 'harmonious interpretation'
May require ranking them
a) on case by case basis
b) No fixed hierarchy (except life)
Quinns Supermarket v AG
: Religious freedom ranked above prohibition on discrimination
DPP v Shaw
Facts: man questioned beyond detention period, one woman was still missing
Gardai felt her life was at risk without continued questioning
HELD: Her right to life outweighed suspect's right to liberty
No fixed hierarchy, balance rights on case by case basis
AG v X
Finlay J applied 'priority of rights' between mother's right to travel and right to life of unborn
Harmonious interpretation came first
Only then came hierarchy- right to life came firs
Citizen
Extent to which non-citizens can rely on such constitutional rights
Position not clear
Established that citizens and non-citizens may not always enjoy same constitutional rights
Re Article 26 the Illegal Immigrants (Trafficking) Bill 1999
SC held- non-citizens entitled to same degree of natural justice and fair procedures as applied to citizens and had right of access to the Courts
Nottinghamshire CC v KB:
O'Donnell J
Would be necessary to consider the constitutional text, several decisions and a number of different fac situations including qus as to the significance of citizenship, residence, or fleeting presence in the jurisdiction
Notes: A 40.1 (equality) has not featured in debate to date
NVH v MJE
:
Facts: Burmese national arrived in 2008
In 2013 his refugee status had not been determined
Living in direct provison
Issue: Received job offer and sought temporary permission to reside, Minister refused (felt bound by s9(4) of Refugee act)
Challenged constitutionality of that section
Court of Appeal: Held:
Non-citizens rights
are not always the same as citizens
stutus in state is relevant consideration
No right to earn livelihood
Agreed with Illegal Immigrants Bill Case
-Cited Nottinghamshire
Hogan J- DISSENTING: 'in principle' non-citizens enjoy same rights as citiens but state would be entitled to prescribe statutory conditions or other formalities in the case of non-citizens which might not be justifiable in case of citizens
Exclusion of applicant from work for such a long period of time breached his constitutional right
APPEAL SC: allowed
O'Donnell: Constituion uses the words 'citizen' and 'person' inconsistently
0 As issue not fully argued in the case he didnt come to conclusion finding BUT STATED 'PREPARED TO HOLD' A40.1 my provide a useful insight
Oblgation to hold persons equal before the law 'as human persons' means that non-citizens may rely on constitutional right
where those rights relate to their status as human persons
That, however, does not mean citizens and non-citizens cannot be treated differently if there is legitimate reason for doing so
Held: Right to seek employment was part of human personality = breached
Difficulty: no time limit for processing application
Right to Bodily Integrity
First unenumerated right to be discoverd
-
Ryan v AG
Meaning of this right developed over the years
Now includes bodily integrity and psychological integrity
More recent case law has found a textual basis for right
Hogan J refers to the 'person' in A40.3.2.
Ryan: HC defined as 'the prevention of the mutilation of the body or protection from harmful processes
SC- found unnecessary to define right
State (C) v Frawley
:
Facts: Challenge to detention as it violated right to bodily integrity
Difficult prisoner with serious mental health diffs, frequently attempted to escape, record of swallowing metal objects
Usually kept in solitary confinement or in handcuffs
No available treatment for his particular condition
Held: Right applied to the exposure of one's health to a risk or danger
on facts not breached as no duty to provide special psychiatric unit
Restraints were there to protect him from swalling more objects and attempting dangerous escapes
State (Richardson) v Governor of Mountjoy Prison
Facts: Female prisoner complained about slopping out
16 prisoners emptied chamber pots into one tolie
Some people emptied in sink instead
Held: State obliged to protect he health of persons detained in prison
Practice= breach of right to bodily integrity due to the risk to her health
McGee v AG: Walsh J made similar comments saying State has positive obligation to protect health
Protection of the person
Hogan J in a few decisions has referred to the 'protection of the person'
A v Refugee Appeals Commissioner
: Hogan J quashed decision to deport a 6 year old girl to Nigeria on basis that there was risk she would be subjected to female genital mutilation if returned
HELD: subjection of any female to FGM would be an open assault on her person
Kinsella v Governor of Mountjoy Prison
Facts: Prisoner kept in small padded cell for 11 days due to overcrowding
Applied for release from prison (A40)
Held: Hogan J held A40.3.2 protects not only the integrity of the human body but also
one's mind and personality
Conditions of detention do no usually render detention unlawful
Savickis v Governor of Castelera Prison
Facts; Civil action where applicant was assaulted by prison staff
Jury in HC found applicant 95% contributory negligent
Court of Appeal- Found no contributory negligence
Also awarded exemplary damages for breach of constitutional rights- for protection of person and
associate right
of bodily integrity
Extension beyond physical integrity has been endorsed by other HC Judges
McDonnell v Governor of Whatefield Prison
:
Facts: Prisoner kept in solitary confinement for 1 year
Done for own protection (applicant denied he was at risk in prison)
Held: Breach of right to bodily integrity **and psychological
and mental integrity**
AG v Damache:
HELD: Donnelly J refused to extradite Damache to USA as he would be confined to long perios of solitary confinemen
SF v Director of Oberstown Children DC:
Facts: 4 minors detained in Oberstown
Background incident where number of people gained access to roof
Emergency services had to be called
Issue: Kept in solitary confinement for 3 weeks after
Held: Rights breached due to
No daily exercise
No contact with family during separation
No procedural safegaurds
Held: Detention per se not unlawful (proportionate to continued threat)
100 awarded in damages for breach of rights