A man seeking leave to challenge the result of last month’s abortion referendum has failed to get court orders requiring the State to provide him with registers of voters and their dates of birth.
The president of the High Court, Mr Justice Peter Kelly, said the material sought was neither necessary, relevant nor proportionate for the hearing next week of Charles Byrne’s application for leave to bring a petition challenging the result.
Next week’s application is a leave application only and if Mr Byrne, of College Rise, Drogheda, Co Louth, meets the legal criteria necessary to allow him bring a petition he could seek discovery then, the judge indicated.
The Referendum Act requires, before any petition can be brought, an intended petitioner must show prima facie evidence of matters likely to “materially” affect the referendum outcome.
Mr Byrne's application for permission will be heard next Tuesday alongside a separate application by Joanna Jordan of Upper Glenageary Road, Dun Laoghaire.
A third application to bring a petition was initiated by Ciaran Tracey, a retired public servant of Leitrim village, but he has told the State he is not proceeding with his application.
On Thursday, Mr Justice Kelly heard an application by Mr Byrne for discovery of the original and supplemental electoral registers, plus the marked register of the referendum, to include voters’ dates of birth.
Mr Byrne said he needed the material so a public administration expert could digitally analyse it in the context of Mr Byrne’s concerns of irregularities in the conduct of the referendum.
His counsel Kenneth Fogarty SC said this was the “most important” referendum in the history of the State and the people were entitled to know whether it was properly conducted.
Mr Byrne’s concerns include that persons, including nuns, were allegedly excluded from the register; two polling cards were issued to the same person; persons permanently living abroad voted when, he claims, they were not entitled to do so; excess numbers of people were registered and volunteer tallies suggested turnout figures in some locations of more than 100 per cent.
The State respondents - Ireland, the Attorney General and referendum returning officer Barry Ryan - opposed discovery, saying they do not have the registers of voters, local authorities hold those, and any member of the public can get them from local authorities for a “modest fee”.
They also said it would be a “highly onerous” exercise to reduce, as Mr Byrne sought, 30,000 pages of marked electoral registers from the referendum, currently stored in sealed sacks in the Custom Hose, to Excel format.
Frank Callanan SC, for the State, expressed concern the proposed digital analysis of the register material by Mr Byrne’s expert could be of “potentially indefinite duration”.
There were further concerns digital analysis of the marked register would disclose names of those who had and had not voted, which some electors might consider was personal information.
In his ruling, Mr Justice Kelly noted 1,429,981 people voted to repeal the Eighth Amendment while 723,632 voted against, leaving a clear majority of 706,349 in favour.
He described the basis for Mr Byrne’s request for discovery as “speculative” as it was intended to analyse the register data to see if there were anomalies in the voting. It was “putting the cart before the horse” to carry out an analysis to try and look for material to support an assertion of wrongdoing.
The State respondents had shown the material sought is not in its possession or control and it would make “no sense at all” to order them discover documents they do not have and which do not contain the dates of birth sought, he said.
The judge said it was not necessary, for this application, to decide whether the marked registers contain personal information of registered electors.
There was no single copy of one marked register so he could not order discovery of a non-existent document. He accepted it would be a highly onerous undertaking to require the State produce such a document when that was not necessary for the purpose of deciding the leave application.
He also awarded costs against Mr Byrne of the discovery application.
