On Friday last, March 25th 2011, in ED v DPP the High Court ruled that section 12 of the Immigration Act 2004 was unconstitutional. Section 12 provided that non-national persons (other than those born in Ireland or under the age of 16) shall on the demand of an immigration officer or member of the Garda Síochána, produce (a) a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and (b) in case he or she is registered or deemed to be registered under the Act, his or her registration certificate. Failure to produce the required documentation without providing a satisfactory explanation of the circumstances which prevented the person from so doing was deemed an offence punishable by a fine of up to €3000 or imprisonment for up to 12 months or both.
While the judgment itself is as yet unavailable, the Irish Times reports that the finding of unconstitutionality by the High Court centred on the vagueness and uncertainty of the legislative provision, rather than on the concept of requiring the production of identification documents in and of itself. Kearns P. noted that there was a “manifest need” for effective measures to regulate the entry into the State of undocumented non-Irish nationals and declined to deem s.12 a disproportionate measure. He did, however, hold that the vagueness of the section was “such as to fail basic requirements for the creation of a criminal offence.” He considered that the failure to define the term “satisfactory explanation” created vagueness, uncertainty, and “considerable potential” for arbitrary applications of the term by gardaí and he held that the provision was insufficiently precise to reasonably enable a person to foresee the consequences of their acts or anticipate what form of explanation would suffice to avoid prosecution.
While vagueness seems to have been at the centre of the High Court’s judgment, some stronger remarks of Kearns P. were also reported in the media, to the effect that a) the section omitted any requirement for a garda to hold a reasonable suspicion that a non-Irish national was behaving unlawfully before requiring them to produce a satisfactory explanation for the absent documents, and b) the section had potential to breach the right to self-incrimination protected under both the Irish Constitution and the European Convention on Human Rights given that a silent response to a request for the production of the relevant documentation equated to a failure to provide a satisfactory explanation.
The constitutional challenge to s.12 arose in the context of a prosecution under the section, which Kearns P. then made an order to prevent. The Irish Human Rights Commission, as provided for under s.8(h) of the Human Rights Commission Act 2000, acted as Amicus Curiae in the case, i.e. a “friend of the court”, who furnishes the court with information to assist in the decision to be made in the case and it has welcomed the decision handed down by Kearns P. The decision has also been welcomed by other organisations such as the Irish Refugee Council and the Migrant Rights Centre Ireland.
Figures compiled by the Central Statistics Office, and reproduced in last Saturday’s Irish Times, show the number of people convicted for failing to produce ID under s.12 of the 2004 Act was 3 in 2005, 144 in 2006, 250 in 2007 and 291 in 2008. There is also some suggestion that the section facilitated a certain level of racial-profiling with at least some Irish citizens being asked to produce identification documentation and being detained at garda stations until their citizenship was proven, based on their skin colour. Again in the Irish Times, Siobhán O’Donoghue of the Migrant Rights Centre Ireland is quoted as saying that demanding ID from non-nationals is discriminatory given that no equivalent demand can be made of Irish citizens, and suggesting that gardaí or immigration officers make judgments on the status of an individual (non-national or otherwise) “based on colour, accent and appearance”.
The Department of Justice is currently considering how to go forward, including the possibility of an appeal to the Supreme Court.