Mulreaney v Director of Public Prosecutions & ors, McGrath v Director of Public Prosecutions & ors (Approved)

Factual and Procedural Background

Two individuals (hereafter “Appellant 1” and “Appellant 2”) travelled from The United Arab Emirates (“the UAE”) to Ireland in March 2021, shortly after the UAE had been designated a “high-risk” country under the Health (Amendment) Act 2021 (“the 2021 Act”). Upon arrival the appellants refused to enter a designated hotel for the mandatory quarantine required by section 38B of the Health Act 1947 as amended. They were arrested, charged with resisting quarantine, spent one night in custody, were released on bail, and ultimately completed the quarantine period.

Each appellant subsequently sought:

• Orders prohibiting their pending criminal trials;
• Declarations that the Minister’s designation of the UAE was an unconstitutional delegation of legislative power;
• Declarations that the statutory “Designated Appeals Officer” review mechanism amounted to an unconstitutional exercise of judicial power.

The High Court rejected all relief (High Court Record [2023] IEHC 347). The Supreme Court granted a direct (“leap-frog”) appeal and delivered judgment on 11 November 2024.

Legal Issues Presented

1. Whether section 38E(1) of the Health Act 1947 (power of the Minister for Health to designate states for hotel quarantine) constitutes an impermissible delegation of the Oireachtas’s exclusive law-making power under Article 15.2.1° of the Constitution.
2. The relevance, if any, of the “sunset clause” (automatic expiry after three months unless renewed) to the constitutionality of that delegation.
3. Whether the statutory review of quarantine by a “Designated Appeals Officer” is an unconstitutional exercise of the judicial power contrary to Article 34.1.
4. Whether the availability of habeas corpus under Article 40.4 cures any constitutional defect in the regime.

Arguments of the Parties

Appellants’ Arguments

• The Minister’s written designation of the UAE created a criminally enforceable deprivation of liberty; such “normative rules” must issue only by primary legislation or at least by regulation laid before the Oireachtas.
• Section 38E grants the Minister an excessively broad discretion (e.g. wide policy factors in s.31A(2)); under O’Sullivan v Sea Fisheries and DPP v McGrath this breadth is unconstitutional absent close parliamentary control.
• The sunset clause monitors the scheme in bulk, not each designation, and therefore does not supply the requisite legislative oversight.
• The review officer decides whether an individual must remain detained; decisions on personal liberty are inherently judicial (analogy drawn with bail).
• Availability of Article 40 or judicial review cannot convert a non-judicial detention review into a constitutional one.

State Respondents’ Arguments

• The 1947 Act deliberately distinguishes between “regulations” and “designations”; the latter need not be laid before the Houses.
• The Minister’s choice is tightly bounded by statutory purposes, required consultations, and the overarching sunset clause; thus no abdication of legislative power (Bederev, NECI, Conway cited).
• The review officer does not impose or extend detention; quarantine arises automatically by statute. The function is analogous to remission or executive release, not bail, and therefore is non-judicial. Even if judicial in nature, it is “limited” and permissible under Article 37.
• Article 40 and judicial review supply additional safeguards if an unlawful detention ever arises.

Director of Public Prosecutions’ Arguments

• Agreed that the review officer’s task is non-judicial; bail is an inapt comparator because bail decisions occur before any lawful deprivation of liberty, whereas quarantine is imposed directly by statute.
• If the review officer lifts quarantine no further legal consequences follow, unlike bail conditions that secure attendance at trial.

Table of Precedents Cited

Court's Reasoning and Analysis

Delegation issue (Art. 15.2.1°): The Court held that section 38E merely “activates” a detailed quarantine regime already enacted by the Oireachtas. The Minister’s choice—whether to add or remove a country—is tightly guided by statutory factors, mandatory consultations, publication requirements and the overall three-month sunset clause. Applying Bederev, NECI and Conway, the Court found no abdication of legislative authority; parliamentary scrutiny, while relevant, is not a constitutional necessity for every form of delegated legislation. The fact that other COVID-19 measures were made by regulation did not transform section 38E into an unconstitutional anomaly—the legislature consciously provided two different mechanisms.

Judicial-power issue (Art. 34.1): Loss of liberty is not ipso facto a judicial function. The detention here arises directly by statute, not by order of the review officer. Citing historical examples (mental-health detentions, Garda arrests, executive remission), the Court emphasised that preventive or protective confinement has long been imposed or reviewed outside the courts. The review officer’s task—speedy verification of statutory criteria or humanitarian grounds—is administrative, narrow, and non-final; it lacks the hallmarks of the “administration of justice” as reformulated in Zalewski. The bail analogy failed because bail operates within criminal proceedings to secure attendance for trial, whereas quarantine review merely determines whether an already-imposed statutory obligation should cease. Consequently, Article 37 considerations did not arise.

Other points: Availability of Article 40 habeas corpus and ordinary judicial review further underpins the legality of the regime but was not determinative. Because the constitutional challenges failed, the Court refused to stay or prohibit the appellants’ criminal prosecutions.

Holding and Implications

APPEALS DISMISSED.

The Supreme Court upheld the constitutionality of both (i) the Minister’s power to designate high-risk states without laying regulations and (ii) the Designated Appeals Officer review mechanism. The immediate consequence is that the appellants’ criminal trials for breaching quarantine requirements may proceed. The judgment affirms a flexible, multi-factor approach to delegated legislation and clarifies that not every state-imposed deprivation of liberty requires judicial decision-making. No new precedent was set, but the Court consolidated and applied recent delegation jurisprudence (NECI, Conway, Zalewski) to pandemic-related public-health powers.