Supreme Court dismisses ‘polemical’ challenge by Gemma O’Doherty and John Waters of lockdown laws

Supreme Court dismisses ‘polemical’ challenge by Gemma O’Doherty and John Waters of lockdown laws

The Supreme Court has dismissed Gemma O’Doherty’s and John Waters’ challenge of Ireland’s pandemic legislation. In a decision delivered earlier today the seven judges, with one dissent, concluded that both the High Court and Court of Appeal were correct to dismiss the claims of the two former journalists. O’Doherty and Waters failed to show that the government’s lockdown measures were disproportionate or that the legal onus had shifted from them to the state.

It’s not known what financial costs, if any, O’Doherty and Waters will now face.  

“Lack of evidence” and “polemical arguments”

After hearing arguments in March the court ruled today in an 80-page decision that the earlier court rulings against the conspiracy theorists were correct. Agreeing with a 2020 High Court decision against O’Doherty and Waters, the Supreme Court wrote that evidence of “lack of proportionality” in the state’s lockdown legislation is “an essential requirement”. Their case had a “critical defect” though. According to the judgement O’Doherty and Waters claimed the COVID legislation “was based, in part, on a global conspiracy to undermine the rights of citizens and even the administration of justice, in pursuit of a global joint venture involving foreign states and substantial enterprises”. In her submissions to the court which the judges called “extreme”, O’Doherty contended that the legislation was

introduced as part of a global lockstep orchestration by governments and supranational bodies, on the sole basis of predictive models which were on their face absurd (and were subsequently demonstrated to be so), without due diligence, without a correct application of the proportionality principle, with but the merest token of democratic discussion.

And this, she insisted, “resulted in the unnecessary deaths of thousands of Irish people”. In the judgement it’s also revealed that O’Doherty and Waters didn’t take advantage of access to free legal advice offered by the Law Society and Bar Council for cases in which the Supreme Court has granted leave to appeal.

For his part Waters argued along similar lines to O’Doherty, saying that not only was the lockdown legislation “a disproportionate interference with constitutional rights”, it was also illegitimate “because it was the produce of a conspiracy”. He called PCR tests “very unsafe” and described death tally of COVID-19 victims as “very suspicious”. Waters insisted there was no pandemic and believed they could prove as much in a full hearing. 

The court disagreed, highlighting that the claims “required some plausible foundation in evidence, and none was provided” by O’Doherty and Waters. Going on, the judges noted that they “sought to include a range of information supporting their contention that, among other things, Covid-19 was no more than a seasonal flu”. And therefore the state’s COVID-19 laws were “illogical”. 

But this information, the Supreme Court contended, “was not evidence in any sense, and the attempt to put it before this Court in the guise of legal submissions only highlighted the lack of any evidence before the High Court”. What’s more, “the case was hampered, to some extent, by the fact that it had been commenced by wide-ranging claims and supported, sometimes, by more polemical argument”.

In his dissent Justice Hogan said he would’ve granted leave to appeal but only in a limited matter. He drew attention to the government’s lockdown laws apparently conflicting with the right to protest and restrictions on movement only being justifiable for a period of roughly three months. He also considered the limits on home visits to be questionable given “the inviolability of the dwelling home and the right of association with relatives, friends and others” in the constitution. 

Previous court appearances

The pair of failed politicians turned far-right extremists initially sought to take on the government’s response to the pandemic in the High Court in May 2020. Justice Charles Meenan argued that their case had no merit and dismissed it. From here O’Doherty and Waters went to the Court of Appeal. Last March Justice George Birmingham wrote that the two agitators “‘singularly failed to meet the threshold of establishing an arguable case’”, agreeing with and upholding the High Court’s decision. 

Then in November 2021 the Supreme Court agreed to hear an appeal from O’Doherty and Waters of their earlier court losses. When initially granting leave to appeal the Court highlighted the 33rd Amendment to the Constitution. This gives it leeway to hear appeals of decisions made by the Court of Appeal if it believes it’s “a matter of general public importance” or “in the interests of justice”.

In June 2021 the High Court granted Beaumont Hospital an injunction against O’Doherty who had accused the hospital of covering up deaths caused by the COVID-19 vaccine. She also described the hospital as a “death camp”. Ruling in favour of Beaumont, Justice Senan Allen made an order “restraining” O’Doherty from republishing her claims about the hospital and its staff. He called her accusations “utterly devoid of substance”.

Also in September last year a Bray court found O’Doherty guilty of resisting arrest, intending to breach the peace, and refusing to provide her name and address to gardaí. Gardaí arrested her while she was livestreaming from a footbridge over the N11 in Kilmacanogue near Bray on 23 August 2020. O’Doherty has contested the verdict and Bray Circuit Court will hear her appeal on 17 October.

Featured image via Screenshot

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