Sub judice in Geneva

toblerone

How often do you hear a politician and/or guilty party (when these are distinguishable) answer a penetrating question with: “I’m sorry, that matter is sub judice, I am not allowed to comment”?  What they are saying is that as the matter in question is before or about to go before a court, nobody can utter a word about it. More often than not, that is double-speak for: “If I answer that question, my career is over”. The sub judice rule is barely understood, and as a result is continuously abused. Finally, it is a restriction on free speech, and as such must be carefully and sparingly applied.

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On Friday 24 June 2016 Pat Swords, Dave Malone and I will be addressing the Arhus Convention Compliance Committee of the United Nations (ACCC) at the Palace of Nations (Palais des Nations) in Geneva.

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In preparation for this I have been going over our communication to the ACCC and the reply thereto by the Irish government.

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In essence we are arguing that any public consultations that have supposedly been conducted before legally binding decisions (at all levels of government) have been made by the government regarding the environment have been pro forma in that the decision had already been made, usually before the matter went out for public consultation, or despite the results of the public consultation.

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As you know, Pat Swords is conducting a case in the High Court at the moment, arguing that the NREAP is invalid, for a number of substantive reasons, including a lack of public consultation. Accordingly, a common theme in the government’s reply  to our complaint to the ACCC goes along the lines of “we can’t comment on that because the High Court is currently dealing with it” or “as the matter is before the High Court, the ACCC has no right to deal with this matter as that would undermine the authority of Irish courts” or “the Applicant’s conduct in referring to what was said in court is outrageous as such things are confidential”.

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This is a clearly a nonsense argument as we are not challenging the NREAP in the ACCC. In essence this is a sub judice / jurisdictional argument (although the State’s answer is very careful not to mention that phrase), and I thought I would examine this often-abused and misquoted sub judice rule to see whether it does actually apply in these instances.

 

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What is the sub judice rule?

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The rule is a category of the offence of being in contempt of court, where a judge can throw you in the cells without charge or trial for being in contempt of court and usually an apology and a night in the cells gets you out (once you have done what the judge wanted you to do in the first place).

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The sub judice rule was originally created to stop people from influencing a jury in their deliberations during a trial (an ‘active’ trial), and more often than not is restricted to criminal proceedings where the accused might be prejudiced by commentary about his guilt or innocence. Although in theory it can apply to all types of cases, it seldom raises its head with non-jury or civil trials. When the rule first came out, it wasn’t really about the judge at all, who was perceived to be immune to public pressure as they were not elected but appointed.

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The rule can be formally described as applying (with regard to proceedings which are “active”) to any publication which creates a risk, other than a remote one, that the course of justice in the proceedings in question would be seriously impeded or prejudiced.

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In other words, the government is arguing that the High Court judge who is presiding over Pat’s case would be unduly influenced in his decision (when it does eventually come out!) by us quoting some of the arguments that the State has put forward in that case (which are common knowledge and which the judge would know better than most people).

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The Law Commission of Ireland argued that a statutory offence of contempt for infringing the sub judice rule should be:

“a prosecution should only lie where the impugned conduct creates a substantial risk of serious interference with the administration of justice” (my emphasis).

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In other words, the bar is set quite high before a person can be said to substantially risk or seriously interfere with the administration of justice.

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It must therefore be asked: How has our complaint to the ACCC, which includes quotes of things that the government actually argued in open court, done that?

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In its decision of Laois County Council v Noel Hanrahan, Geraldine Hanrahan and Colm Hanrahan [2014] IESC 36; the Supreme Court found that the object of civil contempt is coercive; it is to enable one party to litigation to ask the court to compel another party to obey an order of court which the first party has obtained. The object of criminal  contempt, by contrast, is punitive.

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Given that Pat Swords is engaged in civil litigation with the State, exactly what form of contempt is he guilty of when he quotes portions of pleadings or repeats comments made by the State’s lawyer in open court? What form of contempt order could the State ask for?

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The short answer: none, because there has been no contempt. The sub judice rule has not been broken. Which is why the State never actually mention the rule – they just allege it is being broken without actually saying it.

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In our original communication, we referred to Pat’s case a number of times to show that the government was continuously saying one thing on one day, and the opposite on another day, depending on who they were talking to at the time. Some examples:

 

We said:

“The failures of access to justice provisions in Ireland are not limited to the ineffectiveness of the Commissioner for Environmental Information, to deal with appeals in relation to requests for information. Litigation costs in Ireland are already recognised as excessive and Irish legislation makes no allowance for the huge financial burden placed on potential litigants in environmental cases. Indeed, the case of Pat Swords, the Communicant in ACCC/C/2010/54, who brought the failure of the State to comply with the findings and recommendations of the Compliance Committee to the High Court in November 2012, is very illustrative of this fact. The State has repeatedly behaved in an obstructive fashion, the substantive issue on the Compliance Committee findings and recommendations have not been heard 18 months later. The State has repeatedly attempted to have the matter thrown out based on undue delay and is seeking more than ten days in the High Court to address the substantive issues. This represents a legal bill to the plaintiff of the order of €200,000 and as such is ‘prohibitively expensive’. The State is well aware of this, and persists in its demands for a lengthy trial, as it wants the case withdrawn at all costs.”

 

The government’s reply:

“Unfortunately, the manner in which the complaints are expressed by the Communicants is not helpful, particularly the use of broad, sweeping statements that are unsubstantiated. In particular, the Communicants place emphasis on proceedings entitled Swords v. Minister for Communications, Energy and Natural Resources 2013/4122P, proceedings which are currently before the Irish High Court. As the proceedings have not yet concluded and judgment in two preliminary matters is awaited, it is inappropriate for the Communicants to comment on the proceedings in the manner in which they have done.”

 

Exactly why is it inappropriate? Is the government arguing that Keane J. will be unduly influenced in his decision about the application for a protective costs order because we say that the State has deliberately dragged their heels in court?

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We said:

“In their Statement of Defence of the 18th November, the Chief State Solicitor’s office stated in Point 18:

  • It is denied that the NREAP is a plan or programme relating to the environment for the purpose of Article 7 of the Convention. If, which it was denied, NREAP was a plan or programme, or was alternatively a statement of policy relating to the environment, for the purpose of Article 7 of the Convention, the requirements relating to public participation in Article 7 were met by the public consultation that preceded the submission of the NREAP to the Commission.

‘So the State is contesting in the High Court that the Aarhus Convention applies to its renewable energy programme. In Point 19 of the Statement of Defence the State Solicitor further clarified:

 

 ‘If, which is denied the NREAP was a plan or programme the defendants deny that the State continues to be required to make appropriate practical and other provisions for the public to participate during preparation of NREAP, within a transparent and fair framework, having provided the necessary information to the public and complying with Article 6, paragraphs 3, 4 and 8, where applicable, as alleged at paragraph 18 of the Statement of Claim.’

Clearly there is intent not to comply with the recommendations of the Committee on ACCC/C/2010/54, which required the above measures to be adopted. Even more revealing is the position of the State in Pont 20 of the Statement of Defence:

 

‘The defendants deny that the public participation procedures provided for in the adoption of the NREAP were inadequate, as alleged at paragraph 21 of the Statement of Claim. Further, it is denied that the two-week period allowed was not a reasonable timeframe for the public to prepare and participate effectively in the adoption of the NREAP, as alleged.’

 

In other words, we are pointing out that the State is arguing in the High Court numerous points of law which are directly contradictory to the previous findings of the ACCC and show a clear intent not to comply with the Aarhus Convention:

 

“We now have a situation where the Irish State Solicitor is actively seeking to rewrite the international jurisprudence of the Convention in the High Court. It is also worth noting that during the hearing on Swords v Minister of Communications, Energy and Natural Resources 2012/920JR, which occurred in April 2013 in front of President of the High Court Justice Kearns, it was repeatedly stated by counsel for the State that the matters raised, the defendant himself and the ruling of the Compliance Committee were all “nonsense”.”

 

We are not trying to influence or argue the points in the High Court at all, we are simply saying that the Irish State is making it clear that it does not recognise the Convention nor does it have any intention of complying with it.

 

How does the government respond? Like this:

 

“These proceedings are currently pending before the High Court of Ireland and no determination as to the validity of the claims made by Mr. Swords has been issued by the High Court of Ireland. Ireland is defending the claim brought by Mr. Swords and denies the allegations made in the proceedings. … In light of the fact that these proceedings are pending before the High Court of Ireland, it would be inappropriate for this Committee to engage in any analysis of the matters that arise for consideration therein. This would amount to an impermissible interference by the Committee with proceedings that are pending before domestic courts. Strikingly, the Communicants quote (selectively) from the pleadings and affidavits filed in the High Court on behalf of the Minister to contend that in defending the proceedings Ireland is acting contrary to the Convention. It is inappropriate for the Communicants to raise complaint relating to the pleadings filed by Ireland before the High Court and seek to use these as the basis of a communication to this Committee.

In the communication, a number of allegations are made with regards to the manner in which these proceedings have been defended by the State before the High Court. It is unfortunate that the Communicants have chosen to engage in rhetoric of this nature in respect of proceedings that are currently pending and have not yet been determined. It is unfortunate that the Communicants have chosen to make wild and unsubstantiated allegations about the manner in which Ireland has dealt with the proceedings before the High Court.

In particular, it is denied that there is any intent on the part of Ireland not to comply with the recommendations of the Committee on the decision issued in ACCC/C/2010/545. As already outlined the Party Concerned in that communication was the European Union and there can be therefore no question of Ireland not complying with the decision.

It is further denied that the Irish State Solicitor is “actively trying to re-write the international jurisprudence of the Convention in the High Court”. There is no basis for such allegation to be made. Similarly, making an allegation relating to matters stated at the hearing of an application by Mr. Swords is not appropriate and the allegation made by Mr. Swords should not form part of the considerations of this Committee.

At this point in time, the allegations made by Mr Swords in the domestic proceedings have not been either legally or factually upheld by the Irish High Court and the mere fact that he has made these allegations cannot constitute evidence of non-compliance with the Convention by Ireland before this Committee. However, it is relevant in the context of Article 21 of Decision I/7 that the Communicants (of which Mr Swords is one) have made this complaint whilst at the same time invoking a domestic remedy before the national courts.

By way of general submissions, it is the position of Ireland that this Committee ought not consider any issue that relates to the Swords proceedings as this would amount to an impermissible infringement on the jurisdiction of the High Court of Ireland.”

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These arguments were made to the judge in open court in front of a public gallery. They can be reported by journalists if they wish. They can be accessed in the court file by legal researchers if they so wished. Why is it inappropriate for us to mention them in these proceedings?

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Instead of saying, “You got us lads, we’re fecked”, the government uses words like “wild and unsubstantiated allegations” to describe our quotations taken from their court papers! It is also worth noting that they do not deny that the State Solicitor used those words we quoted.

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As for the “impermissible infringement on the jurisdiction of the High Court of Ireland”, just how does that make sense? The ACCC is essentially a political body (a committee) created by another political body (the UN). It seeks compliance with a political instrument (the Aarhus Treaty/Convention). Its proceedings are described as “non-adversarial”, and the party making the complaint is a ‘communicant’, not a litigant. Adverse findings by the ACCC against the Irish government (and it is becoming quite a collection) are a political embarrassment, they are not legally binding (which is why Pat is suing them in the High Court). In other words, findings of the ACCC are most certainly not legal precedent that is binding on the Irish courts, although judges might have regard to them when it comes to interpretation of our domestic legislation. Accordingly, they can never be an infringement of the jurisdiction of a domestic court. That is pure nonsense.

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Wish us luck in Geneva – the place will be hopping.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, Law; High Court; Leave To Appeal; Environment, Legal Costs; Access to Justice; Courts, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Pat Swords and tagged , , . Bookmark the permalink.

3 Responses to Sub judice in Geneva

  1. Roderic Jamieson says:

    Best of luck to you and Pat!

    Give them hell!

  2. Pingback: Sub judice in Geneva | ajmarciniak

  3. Pingback: It’s official – nothing is happening at the High Court! | The Law is my Oyster

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