The Supreme Court dismissed Joanna Jordan’s referendum petition and related plenary proceedings challenging the result of the 2012 Children referendum. In a judgment delivered on 24 April 2015, Mr Justice John MacMenamin agreed with the judgments and orders proposed by the Chief Justice, Mr Justice O’Donnell and Mr Justice Clarke.
The court had previously ruled in McCrystal that the government’s information campaign for the referendum breached constitutional requirements of fairness, equality, impartiality and neutrality. That ruling, delivered two days before polling, concerned public spending on a government booklet, website and advertisements. The present proceedings sought to annul the referendum result and require a new vote. Jordan also argued that the Referendum Act 1994 set an unconstitutional and effectively impossible burden of proof.
The High Court had granted leave for the petition to proceed, finding prima facie evidence of a serious issue under the Act. After a 14-day hearing, however, the trial judge was not satisfied on the balance of probabilities that the government campaign materially affected the referendum result as a whole. The Supreme Court upheld that assessment.
The referendum passed by 58 per cent to 42 per cent, a margin of about 180,000 votes. The Supreme Court said the margin was not conclusive, but was an obstacle to the challenge. It also reviewed evidence from voters and experts about the campaign’s possible effects. The trial judge had preferred evidence for the State and found the available survey data insufficient to establish that receiving the government booklet caused people to vote yes. The Supreme Court held that the evidence did not meet the applicable threshold.
Jordan also alleged that the State’s response after the McCrystal ruling interfered with the referendum, including by failing to postpone polling and by ministers’ statements about the ruling. The trial judge found no evidence that ministers or the government obstructed or interfered with the vote. The Supreme Court declined to disturb those findings, noting the ruling received extensive media coverage and that distribution and advertising of the impugned material were stopped or withdrawn.
The court rejected the arguments that the 1994 Act required a lower leave threshold, shifted the burden of proof to the State, mandated an inquiry process, or was unconstitutional. It held that the petitioner carried the burden of proving material effect on the balance of probabilities. The judgment stressed the constitutional weight due to the electorate’s vote and said that the required evidence was demanding but not impossible to obtain. The court dismissed both proceedings.