Court of Appeal Dismisses Challenge of Gemma O’Doherty and John Waters to Covid 19 Laws-9 Takeaways

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The Court of Appeal decision, delivered on 2nd March 2021, in the Gemma O’Doherty & John Waters challenge to the State dismissed their appeal against the High Court decision of May 2020 and stated that their case was without merit. 

The High Court case involved an application by way of Judicial Review procedure for an order of Certiorari declaring the enactment of legislative measures by the Oireachtas as null and void and unconstitutional.

 Some interesting observations were made in the decision of the three person Court of Appeal.

Firstly, the Court of Appeal referred to the High Court addressing the question of whether an arguable case had been made out by O’Doherty and Waters. This is a low threshold, but a threshold nevertheless. 

Justice Charleton commented previously in a 2015 case:

“Any issue in law can be argued: but that is not the test. A point of law is only arguable within the meaning of the relevant decisions if it could, by the standards of a rational preliminary analysis, ultimately have a prospect of success. It is required for an applicant for leave to commence judicial review proceedings to demonstrate that an argument can be made which indicates that the argument is not empty. There would be no filtering process were mere arguability to be the test without, at the same time, taking into account that trivial or unstatable cases are to be excluded: the standard of the legal point must be such that, in the absence of argument to the contrary, the thrust of the argument indicates that reasonable prospects of success have been demonstrated.”

These comments were approved by the Court of Appeal in this case.

Secondly, the Court of appeal agreed with the High Court that the procedure followed by O’Doherty and Waters should have been by way of plenary summons, not judicial review. If they had adopted the plenary procedure they would not have had to go through the filtering process involved in a judicial review.

“I would, though, simply observe in passing that had the applicants taken on board what was said to them, not once but on a number of occasions, about the inappropriateness of proceeding by way of judicial review and the desirability of proceeding by way of plenary proceedings, that they would have avoided the filtering process, at which stage, they in fact stumbled”

Thirdly, with regard to the administration of justice in public, members of the public and journalists could attend the virtual courtroom, and the physical courtroom subject to the physical limitation of numbers. But the measures introduced as to social distancing meant it was no longer possible to have as many members of the public physically present in a courtroom.

The Court of appeal held that these criticisms on this head were ill founded as there was no difficulty with any member of the public watching the proceedings by virtual courtroom app.

Fourthly, the High Court had held that no rights in the Constitution are absolute and the applicants argued that the limitations of right and restrictions were ‘disproportionate’. But they had failed to put forward evidence to support this assertion.

Fifthly, they also argued that the statistics from the HSE were fraudulent. 

But they did not put forward any evidence to show that the Irish statistics were different from other countries which the Court of appeal found ‘very telling’.

“At another stage, in the course of oral submissions, the applicant, Ms. O’Doherty, asserted without equivocation that there is a cure available for coronavirus in the form of hydroxychloroquine zinc and vitamin C, but that what some health services have been doing is placing patients in the intensive care unit, putting them on ventilators and actually bringing about their deaths. This, she claims, is well documented. To put it at its mildest, there is a tendency on the part of the applicants to present, as unchallenged fact, what is keenly in dispute. One is reminded of comments in another context of the existence of “alternate facts”.

In the Court of Appeal’s discussion of the case it held

 I should say, in clear and unequivocal terms, that I regard these proceedings as misconceived and as being entirely without merit. The arguments advanced might have a certain appeal if addressed to a flag-waving assembly outside the Customs House, but have no purchase when addressed to a Court of Law.

Sixthly, the Court held that it was not inconceivable that a serious challenge could be mounted to one or other of the measures introduced by the State “but what I am absolutely clear about is that the applicants have not done that”.

Sevently, the Court recognised that the views of the applicants were sincerely held but an individual disagreeing with government policy and legislation does not provide the basis for a constitutional challenge. “Bald assertions do not morph into anything more than that merely because the assertions are couched in strong, or indeed, extravagant language”.

“For my part, I must make it clear that I am afraid that the arguments advanced by the applicants in the High Court, and before this court, involve arguments that might possibly have a place in the political arena, though that is far from saying that they would carry the day there, or would have significant support there, but they are quite out of place in a court of law.”

Eightly, the political tone of the applicants’ assertions are evident in their affidavits and oral submissions. The applicants say that lockdowns, mandated masks, contact tracing and vaccines are key measures used by the State that they will reduce the spread of the virus. Yet all the assertions are based on conjecture without any basis in fact.

“The applicants go on to make various, highly contentious assertions presented as scientific fact. Notwithstanding the extravagance of the language, the applicants have failed to recognise that our constitutional architecture contemplates that it is for the executive to govern and for the legislature to enact legislation. The prerogatives of the executive and the legislature are not ousted by the fact that there are individuals who disagree with their actions”

The Court goes on to hold that

 I am firmly of the view that no remotely stateable basis for challenging the impugned provisions has been made out. Far-fetched assertions, no matter how extravagant the language, do not come anywhere close to meeting the G v. DPP threshold. The applicants’ contentions clearly failed to meet the arguability threshold

Ninthly, the Court of Appeal agreed with the High Court that the Charter of Fundamental Rights was not applicable because its relevance arises when EU law is being interpreted and implemented. There is no EU law at issue in this case.

Overall, I am of the view that these proceedings, controversial as they are and tendentious as they are, do not raise any serious legal issue which would justify the grant of leave. Quite simply, they involve the applicants claiming to know better than the government and the Oireachtas. They dismiss the advice available to the government, whether internal or international. By way of example, the first named applicant refers to the World Health Organisation as a “private corporation”

Costs

Costs follow the event is the ordinary rule in the Courts-that is, unsuccessful appellants pay the costs of successful respondents and “unless we are requested to consider departing from the ordinary rule, that is what will happen in this case”.

Justice Edwards and Justice Costello agreed with the judgment of President Justice Birmingham.Read the full decision in Gemma O’Doherty and John Waters and The Minister for Health and Ireland and the Attorney General.

Meanwhile, here is the decision.

Here is the full decision of the Court of Appeal.