‘Reckless’ attempt to appeal abortion referendum result dismissed

A Dublin woman’s attempt challenge to the result of May’s abortion referendum has been dismissed by the Court of Appeal.

Joanna Jordan, from Upper Glenageary Road, Dún Laoghaire, had appealed a ruling by High Court President Mr Justice Peter Kelly, who last month said she had not met the necessary legal test set by the Referendum Act before a court can permit a petition to be brought.

Charles Byrne, a piano teacher and musician, of College Rise, Drogheda, Co Louth, had initially sought to challenge the outcome, but opted not to appeal the High Court’s decision.

In a decision handed down on Monday morning, Mr Justice George Birmingham, Ms Justice Mary Irvine and Mr Justice Gerard Hogan found that Mr Justice Kelly was “entirely correct in refusing leave to Ms Jordan to present the petition” to challenge the referendum result.

Mr Justice Birmingham said the court “would go even further” than the High Court ruling and held that the presentation by Ms Jordan, based as it was on such flimsy and slender grounds, amounted to a frustration of the democratic process in relation to referendums and might in other circumstances amount to an abuse of process. The appeal was opposed by the State.

Irregularities

In her appeal, which was opposed by the State, Ms Jordan alleged there had been irregularities in the conduct of the referendum and registration of voters. She also complained about statements made by Taoiseach Leo Varadkar and Minister for Health Simon Harris during the referendum campaign.

Giving the courts decision, Mr Justice Birmingham said it was clear that Government Ministers were perfectly free to campaign as they saw fit in the course of a referendum campaign.

It was not a breach of the Government’s duty to uphold the Constitution by campaigning for change since a mechanism for constitutional change was itself provided for in the Constitution, he added.

He said Ms Jordan had not advanced any sustainable argument or evidence to demonstrate that the effect of any supposed irregularities in relation to the electoral register could possibly have affected the result. Even taking her claims to their absolute height, and making every possible allowance in her favour, all that could be shown was that at most a handful of votes had been affected.

The court agreed with Mr Justice Kelly’s “considerably restrained comments” that much of what Ms Jordan claimed in regards to irregularities with the electoral register were general assertions, speculation or inadmissible hearsay.

Her claims included that people entitled to vote did not get polling cards, potential no voters were deregistered including convents of nuns and nursing home residents, and that thousands of young Irish people who were paid to return to vote were not questioned at the polling stations about their time of residency abroad.

‘Reckless’

Mr Justice Birmingham said the Court of Appeal would go further to say Ms Jordan’s assertions were “so entirely devoid of substance that we can only conclude they were made with reckless and irresponsible abandon”.

The court noted that out of a total valid poll of approximately 2.15 million people on May 26th last, 1.4 million voted in favour of deleting Article 40.3.3 of the Constitution, protecting the right to life of the unborn.

In any exercise of mass democracy it may be expected there would be occasional errors, irregularities and omissions as far as the electoral register was concerned that would cancel each other out, he said.

Mr Justice Birmingham said the margin by which the referendum was carried meant it could be said with absolute certainty that these issues did not materially affect the result.

After dismissing the appeal the court placed a stay on its decision pending an appeal to the Supreme Court until Friday. It is understood Ms Jordan intends appealing the court’s decision.

The court also said that Ms Jordan must pay the legal costs incurred by the State for contesting the appeal. No exceptional issue had been raised by her that would allow the court depart from the normal position and not award costs in favour of the successful party.

Ms Jordan’s lawyers had argued she had raised an issue of general public importance that she had not brought the action for any personal gain and that costs should not be awarded against her.