Supreme Court grants Gemma O’Doherty and John Waters leave to appeal lockdown laws

On Tuesday the Supreme Court agreed to a leave for appeal made by Gemma O’Doherty and John Waters. The appeal relates to a failed High Court challenge of the state’s lockdown legislation the two former journalists made last year. In their filings they contended that the lockdown legislation was unconstitutional. 

In its determination the Supreme Court stated it’ll grant the leave to appeal “but only” in a limited manner. 

Previous cases

The Supreme Court pointed to the 33^rd Amendment to the Constitution in its determination. According to the amendment the court will hear appeals of decisions made by the Court of Appeal if it believes it’s “a matter of general public importance”. And it can also grant an appeal “in the interests of justice” if it’s “necessary that there be an appeal to the Supreme Court”. 

Drawing attention to O’Doherty’s and Waters’ initial High Court challenge, the Supreme Court referred to the ruling of Judge Charles Meenan who dismissed their claims. In his judgement he wrote:

In making their case for leave the applicants, who have no medical or scientific qualifications or expertise, relied upon their own unsubstantiated views, gave speeches, engaged in empty rhetoric and sought to draw an historic parallel with Nazi Germany – a parallel which is both absurd and offensive.

Going on, he argued that “Unsubstantiated opinions, speeches, empty rhetoric and a bogus historical parallel are not a substitute for facts”. 

Following this the pair of far-right agitators and conspiracy theorists took their case to the Court of Appeal. It also dismissed their case. In its determination the Supreme Court also referred to the judgement of Judge George Birmingham in the Court of Appeal case. The judge wrote that O’Doherty and Waters had “‘singularly failed to meet the threshold of establishing an arguable case’”. 

A limited hearing

But the Supreme Court has now agreed to hear their case. 

In their application to the court O’Doherty and Waters claim they’ve met “the threshold for general public importance”. And this is proven, they argue, by the fact that the lockdown legislation is “‘akin to martial law’” and “disproportionate”. They’ve also insisted that the laws breach or limit the right to privacy, protest, freedom of movement, and the right to practice religion, amongst others. Going on, the former journalists also maintain that the High Court and Court of Appeal “applied ‘an incorrect test of arguability concerning unconstitutionality’”. 

The Supreme Court said it agreed “At the level of principle” that the lockdown laws “are capable of having far reaching effect and are of general legal importance”. 

But it also pointed to issues with O’Doherty’s and Waters’ High Court and Court of Appeal challenges. In the determination it’s noted that neither referred to “any expert evidence dealing with the range of scientific, epidemiological and medical evidence issues” which the case would raise. 

Going on, the Supreme Court also criticised the language O’Doherty and Waters used in their leave to appeal. It described it as “generalised and often tendentious, polemical and partisan language”. The Supreme Court also rejected a number of claims made in their appeal. It disagreed that their livelihoods have been affected by the lockdown laws and that the lower courts had shown bias. 

As a result, the Supreme Court granted their leave only on the issue of whether or not the lockdown laws are proportionate and valid. It also suggested that O’Doherty and Waters engage with “a scheme by which legal representation is offered on a voluntary basis to unrepresented litigants who have been granted leave to appeal to this Court”. 

In closing, the Supreme Court directed the failed politicians that “it is appropriate to remind the parties that the proper administration of justice requires that proceedings be conducted with restraint, both in language and behaviour”. 

Legal history

O’Doherty has spent much of the last two years in and out of courts. 

In July the High Court granted Beaumont Hospital an injunction against the extremist. It came after O’Doherty had made a number of claims about the hospital as well as its staff. During one livestream she accused the hospital of “breaching international and Irish law” and of running a “drug pushing operation” by “pushing this [COVID] vaccine in this hospital”. 

Judge Senan Allen ruled that she’d no “reasonable prospect of establishing” her claims about Beaumont and its staff. As a result he made an order restraining O’Doherty from republishing her claims about the hospital, its CEO, and director of nursing.

O’Doherty was also in court in Bray in September in relation to her arrest in August 2020. Gardaí arrested her just outside Bray on a footbridge over the N11 in Kilmacanogue under the Criminal Justice and Public Order Act 1994 for failing to provide her details to a garda. She was subsequently charged with resisting arrest and intending to breach the peace.

During the hearing in Bray District Court on 29 September a judge found her guilty on all three counts. She received a two-month suspended sentence and a €750 fine. Speaking to supporters outside the court after the hearing ended she told them she’d appeal the result.

Featured image via YouTube – Screenshot