ED v Director of Public Prosecutions at the suit of Garda Thomas Morley


Respondent/Defendant:Director of Public Prosecutions
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:25 Mar 2011
Judge:Kearns P.
Category:Detention, Refugee Law
Keywords:Asylum, Detention, Refugee, Refugee Law
Country of Origin:Liberia
Geographic Focus:Ireland

The Applicant claimed to be a national of Liberia. She arrived in Ireland in 2008 with her Nigerian daughter and two Nigerian boys unrelated to her. The group travelled on forged passports. She was arrested in Dublin Airport and charged with an offence that she, being a non-national, failed to produce on demand to an Immigration Officer or member of An Garda Síochána, a valid passport or other equivalent document which established her identity and nationality and failed to give a satisfactory explanation of the circumstances which prevented her from doing so contrary to ss. 12(1)(a) and (2) and s. 13 of the Immigration Act 2004.

The Applicant appeared before the District Court on this charge and was remanded in custody. While on remand she applied for asylum and was issued with a Temporary Residence Certificate pursuant to s. 9 of the Refugee Act, 1996. When the Applicant appeared again in the District Court, the judge decided that the initial charge was null and void. He made no order and the Applicant was released, only to be rearrested again nearly two months later for the same offence. She was granted bail by the District Court. She then applied for and was granted leave to seek by way of judicial review a permanent injunction restraining her prosecution under s. 12 of the Immigration Act 2004 and a declaration that the section is unconstitutional and incompatible with the State’s obligations under Articles 5, 6, 7 and 14 of the ECHR.

When the substantive application for judicial review was heard by the High Court (Kearns P.), the Applicant argued that s. 12 of the Act of 2004 was constitutionally objectionable on three grounds: firstly, the words purporting to create the offence were impermissibly vague and imprecise; secondly, the section was a disproportionate interference with the equality provisions of the Constitution; and thirdly, the procedure provided for under the section constituted or permitted a breach of process in that she ought to have been prosecuted under s. 11 of the Act of 2004 (which creates the offence of entering the State without a valid passport) or she ought to have been detained under s. 9 of the Refugee Act, 1996, which allows for civil detention of asylum seekers in certain limited circumstances.

The High Court held that s. 12 was not sufficiently precise to reasonably enable an individual to foresee the consequences of his or her acts or omissions or to anticipate what form of explanation might suffice to avoid prosecution. Furthermore, the Court noted that there was no requirement in s. 12 to warn of the possible consequences of any failure to provide a ‘satisfactory’ explanation. Consequently, the Court held that the offence was ambiguous and imprecise and that it lacked the necessary clarity to create a criminal offence. The Court acknowledged the potential of s. 12 to breach the Applicant’s rights, noting that it offended against the privilege against self-incrimination as recognised by the Constitution and Article 6 of the ECHR. On the issue of whether s. 12 was a disproportionate interference with the equality provisions of the Constitution, the Court held that Article 40.1 was not infringed having regard to the need in the public interest for the State to have suitably strict measures to deal with undocumented entrants into the State. The Court further stated that the Applicant could legitimately complain that s. 11 and not s. 12 should have been used in her case, and that unfairness could arise because the Applicant could be subjected to repeated prosecutions and be guilty of a criminal offence on each and every occasion.

In conclusion, the Court expressed the view that while s. 12 was designed as an immigration control mechanism, its vagueness was such as to fail basic requirements for the creation of a criminal offence, and that, as drafted it gave rise to arbitrariness and legal uncertainty. For these reasons, the Court granted an injunction restraining the Respondent from taking any further steps in the prosecution arising from the Applicant’s second arrest and a declaration that s. 12 was inconsistent with Articles 38.1 and 40.4.1 of the Constitution of Ireland.


Section 12 of the Immigration Act is inconsistent with Articles 38.1 and 40.4.1 of the Constitution

Go Back