Amicus Curiae - Non-identification as a criminal offence
E.D. v Director Public Prosecutions
In July 2009, the IHRC applied to the High Court to appear in this case as amicus curiae and was granted leave.
The case concerned a challenge to Section 12 of the Immigration Act 2004, which requires foreign nationals to produce a passport or equivalent identity document on demand being by the Gardaí or to provide an adequate explanation for not doing so. A conviction under the section can lead to a prison term up to one year and/or a fine of €3,000.
The case was heard over 3 days 8-10 February 2011 by the President of High Court Mr Justice Kearns.
The IHRC's written and oral submissions addresssed two key areas:
1. The question of fair procedures and natural justice as protected by Articles 38.1 and 40.4 of the Constitution, including trial in due course of law and the right to liberty and as also protected by Articles 5 and 6 of the European Convention on Human Rights. These principles have relevance to the nature of the offence, the requirement for legal certainty and the requirement for proportionality of the offence to the legitimate aim of the State sought to be achieved.
2. The particular situation facing undocumented asylum seekers under the provisions of the Constitution, the ECHR and under Articles 27 and 31 of the 1951 Convention relating to the Status of Refugees ("Refugee Convention"). In this latter respect, although the Refugee Convention does not have the force of law in the State, the Commission argued that its provisions should inform the Constitutional interpretation. The relevant provisions are Article 27 and 31 of the Convention require States to safeguard the rights of refugees in terms of issuing refugees with identity documents and prohibits the imposition of penalties on those asylum seekers who enter a State without authorisation.
On 25 March 2011 the President of the High Court delivered Judgment and struck down S.12 of the Immigration Act 2004 as being unconstitutional. In doing so, the President adopted a number of the arguments advanced by the IHRC in its submissions, finding that the legislation was impermissibly vague.