Habeas Corpus

Rules of the Superior Courts

Judicial Review and Orders Affecting Personal Liberty

Cases

F.X. v Clinical Director of the Central Mental Hospital

[2012] IEHC 271

JUDGMENT of Mr. Justice Hogan delivered on the 3rd day of July, 2012
1. This applicant is currently detained in the Central Mental Hospital pursuant to an order of the Central Criminal Court made on the 26th March 2012 under s. 4(5)(c)(i) of the Criminal Law (Insanity) Act 2006 (“the Act of 2006”). He now seeks his release pursuant to Article 40.4.2 of the Constitution. This application raises very difficult questions of far reaching importance concerning the scope and reach of the Article 40.4.2 procedure and the interpretation of the Act of 2006.

2. The application itself raises from tragic circumstances. The applicant was charged with a very serious criminal offence before the Central Criminal Court and he was found unfit to plead by Carney J. This medical diagnosis is that the applicant suffers from chronic paranoid schizophrenia which is resistant to treatment. The overwhelming evidence is that the applicant is seriously disturbed and that he presents a very serious threat to himself, identifiable individuals and to the general public were he to be released from custody. It is only appropriate to record here that his mother and wider family have endeavoured to support him, while recognising his acute difficulties. It is, I think, important that her dedication to his welfare in extremely difficult circumstances should be publicly acknowledged.

3. I should further record that I made an order pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008, prohibiting the identification of the applicant or any member of his family. In this regard I was satisfied that the identification of the applicant would seriously compromise his medical treatment and would draw unwelcome attention to his plight.

4. Before considering the questions of interpretation arising under the Act of 2006, it is necessary first to raise an important jurisdictional issue: can this Court grant an order of release under Article 40.4.2 where the order detaining the applicant has been made by the Central Criminal Court?
The jurisdiction of the High Court to make an Article 40 order in respect of another judge of the High Court
5. Section 11 (1) of the Courts (Supplemental Provisions) Act 1961 provides that when the High Court exercises the criminal jurisdiction with which it is invested by law it shall be known as the Central Criminal Court. It is true that the Central Criminal Court has attached to it an elite cadre of specialist judges, which, taken together with a distinct juristic tradition, identity, nomenclature and (since 2010) location, tends to mark it apart from the rest of the High Court. The fact remains nevertheless that the order made by Mr. Justice Carney is unquestionably an order of the High Court.

6. This raises the very difficult question of whether a person detained in custody pursuant to an order of the High Court can seek an order of release from this Court pursuant to Article 40.4.2. One would have to acknowledge that there are many powerful arguments against the existence of such a jurisdiction, as to hold otherwise would, on this view, be inconsistent with the judicial architecture established by Article 34.3.1 and Article 34.4.3 of the Constitution.

7. It is perfectly clear that, subject to one special exception, Article 34.3.1 established a unitary High Court with a full original jurisdiction with “power to determine all matters and questions whether of law or fact, civil or criminal.” The special exception here is provided by Article 40.4.2 itself which carefully preserves the right of every citizen to apply to the “High Court and any and every judge thereof” (my emphasis). Such an applicant can accordingly apply to a judge of the High Court (and not simply the High Court as such) of his or her choice for an initial inquiry into the legality of his or her detention: see, e.g., my own judgment in McHugh v. Minister for Justice and Equality [2012] IEHC 110. In all other respects, however, the Constitution provides for a unitary High Court, from whose decisions the only remedy is to appeal to the Supreme Court or, as the case may be, the Court of Criminal Appeal. Thus, for example, as counsel for the applicant, Mr. Fitzgerald S.C., readily conceded, one judge of the High Court cannot quash a decision of another High Court judge in Ord. 84 judicial review proceedings. As Henchy J. observed in The People (Director of Public Prosecutions) v. Quilligan (No.2) [1989] I.R. 46, 57:

“The High Court, whether sitting as the Central Criminal Court or otherwise, is not an inferior court subject to coercive orders such as mandamus.”
8. If that is so, it might be thought to be anomalous if one judge of the High Court could effectively declare pursuant to Article 40.4.2 that an applicant was in unlawful custody as a result of an order made by another judge of this Court, not least where that order could not be quashed in judicial review proceedings.
9. Nor does the matter end there. If, for example, the Supreme Court were to make an order providing for the detention of an applicant, could this Court entertain an application pursuant to Article 40.4.2, the fact that this Court is inferior in the judicial hierarchy to the Supreme Court notwithstanding? All of these consideration might be thought to suggest that this Court enjoyed no such jurisdiction under Article 40.4.2 where the practical effect of such an inquiry would be to determine the legality of an order made by another judge of the High Court or the Supreme Court.

10. These considerations notwithstanding, I nevertheless feel compelled to arrive at the opposite conclusion in view of a series of Supreme Court decisions which either tacitly or by implication acknowledge the existence of such an Article 40.4.2 jurisdiction in respect of decisions of the Central Criminal Court.

11. The first of these is The State (O) v. O’Brien [1973] I.R. 50. In that case the applicant had been convicted of murder while a juvenile following a jury trial in in the Central Criminal Court presided over by Teevan J. Section 103 of the Children Act 1908 had provided that a sentence of death shall not be pronounced against a young person but that in lieu thereof the court shall sentence the young person to be detained “during His Majesty’s pleasure”. The Supreme Court held that the trial judge had imposed an unlawful sentence, as it was not a correct interpretation of s. 103 of the Act of 1908, and, for good measure, indicated that that section had not survived the enactment of the Constitution. What is indisputable is that in the High Court O’Keeffe P. granted an order under Article 40.4.2 in respect of a sentence imposed by another judge of the High Court, Teevan J., in the Central Criminal Court and in this respect he was upheld by the Supreme Court.

12. The second example is the decision of the Supreme Court in The State (McDonagh) v. Frawley [1978] I.R. 131, a case where the applicant prisoner contended that he was entitled to be released under Article 40.4.2 by reason of what he said was inadequate medical treatment for backache. It is perhaps not surprising that O’Higgins C.J. rejected this argument ([1978] I.R. at 136-137) saying:-

“The stipulation in Article 40.4.1 of the Constitution that a citizen may not be deprived of his liberty save ‘in accordance with law’ does not mean that the convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety or even that jurisdiction has been inadvertently exceeded. For example, if the judge at a murder trial in which the accused was convicted were to impose a sentence of imprisonment for life instead of penal servitude for life as required by the statute, the resulting detention would be imposed technically without jurisdiction. But the prisoner would not be released under Article 40.4, for it could not be said that the detention was not “in accordance with law” in the sense indicated. In such a case the court would leave the matter of sentence to be rectified by the Court of Criminal Appeal; or could remit the case to the court of trial for the imposition of the correct sentence…”
13. It is perhaps significant that the example given was in relation to the imposition of a sentence by a judge of the Central Criminal Court and there was no suggestion at all that the Article 40.4.2 jurisdiction did not apply to such an order. While, of course, some of these comments were strictly obiter, the strong implication from this passage is that if a judge of the Central Criminal Court were to take a step whether in the trial or the sentencing process such that there had in fact been default of fundamental requirements, then an order for release under Article 40.4.2 might in principle be made.
14. The third example is O’Brien v. Governor of Limerick Prison [1997] 2 I.L.R.M. 349 where the Supreme Court held that the applicant’s detention had become unlawful after the expiry of a period of years because the sentence imposed by the trial judge in the Central Criminal Court could not be reconciled with the Prisons (Ireland) Act 1907 and the Rules for the Government of Prisons 1947. Here again the Court ordered the release of the applicant under Article 40.4.2. It is necessarily implicit in this finding that this Court has an Article 40.4.2 jurisdiction in respect of orders made by the Central Criminal Court.

15. The final example is a more recent one: Caffery v. Governor of Portlaoise Prison [2012] IESC 4. Here the question was whether the High Court had properly adapted an English sentence containing a tariff recommendation in respect of a murder conviction to that of life imprisonment or whether (alternatively) it provided for a form of preventative detention when that Court made an order in 2004 under the Transfer of Sentenced Persons Act 1995-1997 adapting the English sentence.

16. It is true that a majority of the Supreme Court found against the applicant, but there was no suggestion that Article 40.4.2 would not lie in respect of a High Court order of this kind. Moreover, in his dissenting judgment, Fennelly J. (with whom Murray J. agreed) agreed that Article 40.4.2 would lie if there were a “fundamental illegality in the detention” and no issue regarding the fact that the order providing for the applicant’s detention was one which had been made by the High Court actually arose. It may also pertinent to observe that Article 40.4.2 is concerned only with unlawful detention. As Mr. Fitzgerald SC pointed out, Article 40.4.2 does not exclude applications for an inquiry by reason of the identity of the body or court which made the order providing for the detention.

17. In the light of this latter consideration and these four major Supreme Court decisions, it seems to me that I am compelled to hold that the Article 40.4.2 jurisdiction extends to orders for detention made by this Court, whether sitting as the Central Criminal Court or otherwise. There must, however, be some intrinsic limits to that jurisdiction. It could not, for example, extend to the exercise of an inherent jurisdiction of this Court by a judge of the High Court or apply in respect of the exercise of a discretionary power by this Court. Moreover, absent exceptional circumstances, persons convicted by the Central Criminal Court wishing to challenge such convictions must appeal to the Court of Criminal Appeal: see, e.g., The State (Cannon) v. Kavanagh [1937] I.R. 428 and The State (McDonagh) v. Frawley [1978] I.R.131

18. Inasmuch as this Article 40.4.2 jurisdiction exists in respect of decisions of the Central Criminal Court, it is thereby confined to ascertaining whether the strict limits of a statutorily-conferred jurisdiction have been complied with on the face of the order.

19. It may be that in this- as in other respects- the jurisdiction under Article 40.4.2 is a singular one, yet if this is so, let this be its own tribute to the Constitution’s unrelenting commitment to the protection of personal liberty.
What is the legal basis for the applicant’s current detention?
20. So far as the substantive issue is concerned, the first question, therefore, is the actual basis for the applicant’s current detention. It is, to my mind, absolutely plain that I the legal basis for the applicant’s custody remains that of the order of the Central Criminal Court of 26th March 2012. Section 4(5)(c)(i) provides that where the Central Criminal Court concludes that an accused is unfit to be tried and that accused is suffering from a mental disorder and is in need of in-patient treatment, it can commit him to the Central Mental Hospital. In those circumstances, the accused remains so committed “until an order is made under s. 13 or s. 13A.”

21. Section 13A deals with the discharge of patients subject to conditions and it has no application to the present case. Section 13 deals with the review of detention by the Mental Health (Criminal Law) Review Board. In its 5th Review on 27th April 2012 the Board concluded that it was satisfied that the applicant:

“suffers from a serious mental disorder which requires in-patient in the Central Mental Hospital and which would not be available to him in prison and that he is properly detained in the Hospital and should remain so detained pending further review.”
22. There is no doubt but that the Review Board could make orders under s.13 which would have the effect of supplanting a court order for committal to the Central Mental Hospital under s. 4(5)(c). This would be especially the case where, for example, the Clinical Director of the Central Mental Hospital formed the view for the purposes of s.13(3) that the patient in question, although still unfit to plead, no longer needed in-patient care or treatment. In those circumstances, the Board would be required to inquire into the matter and, having heard evidence “relating to the medical condition of the patient given by the consultant psychiatrist responsible for his or her care or treatment”, s. 13(4) provides that the Board shall then:
“make such order as it thinks proper in relation to the patient, whether for further detention, care or treatment in a designated centre, for his or her conditional discharge under s. 113A or for his or her unconditional discharge.”
23. In the event that the Review Board made an order under this sub-section for the continued detention of the patient, then this would obviously be an example of “an order [which] is made under s.13” within the meaning of s. 4(5)(c)(i). But no such order was made by the Review Board in the present case: it rather simply reviewed the case of the patient. In these circumstances, the basis for the detention of the applicant remains, as already indicated, that of the order of the Central Criminal Court.
24. In essence, I am here endorsing the views which I expressed in relation to the parallel section of the Act of 2006 dealing with the jurisdiction of the District Court, namely, s. 4(3), in EC v. Clinical Director of the Central Mental Hospital [2012] IEHC 214. In that judgment I found myself departing with the deepest reluctance from the judgment of Peart J. in L. v. Clinical Director of the Central Mental Hospital [2010] IEHC 195. In essence, the point of difference between us concerns the construction of the words “until an order is made under s. 13 or s. 13A” as they appear in both s. 4(3)(c)(i) and s. 5(2) respectively. As I read L., Peart J. suggested that the mere fact that the Review Board reviewed the case of a patient is sufficient to supplant the judicial order of civil confinement. I respectfully disagree. In my judgment, it would be necessary to go further so that the Review Board actually made an order, such as, for example, an order under s.13(4) or, for that matter, s. 13(6).

25. Naturally, I would only depart from an earlier judgment of a colleague for strong reasons, in line with the judgment of Clarke 1. in Kadri v. Governor of Cloverhill Prison [2012] IESC 27. The issue, here, however, is fundamental and in these circumstances I do not think I would be justified in departing from my own judgment in EC. It may also be noted that these latter views also correspond with the (admittedly obiter) analysis of this issue which is contained in the judgment of Hanna J. in B. v. Mental Health (Criminal Law) Review Board [2008] IEHC 303.
The interpretation of section 4(5) of the Act of 2006
26. Turning next to issue of interpretation of s. 4(5) of the Act of 2006 (as amended by the Criminal Law (Insanity)(Amendment) Act 2010)(“the Act of 2010”), it is necessary first to set out the relevant provisions of the 2006 Act as so amended. Section 4(5)(a) first provides:

“Where an accused person is before a court other than the [District] Court charged with an offence and the question arises as to whether that person is fit to be tried the provisions of this subsection shall apply.”
27. Section 4(5)(b) then provides that the question of fitness for trial shall be determined by the judge concerned “sitting alone.”
28. Section 4(5)(bb)(as inserted by s. 4(d) of the Act of2010)) clearly gives the trial judge discretionary powers to hear the evidence from an approved medical officer for the purposes of adjourning the proceedings to facilitate the care and treatment of the accused person or for the purpose of making a determination as to whether the accused is fit to be tried or in order to commit the accused to the Central Mental Hospital for a fourteen day period for the purposes of assessment and treatment. But these powers all relate to the powers of the court prior to the making of the determination of whether the accused is fit to be tried. This sub-section accordingly has no application to the present case, where the accused has already been found unfit to be tried.

29. The present case is accordingly governed by s. 4(5)(c) of the Act of2006 (as amended). Once Carney J. had determined that the applicant was unfit to be charged, he was obliged by virtue of this sub-section to adjourn the proceedings. The trial judge also had the option of either committing the applicant to either in-patient or out-patient care.

30. Where, as here, the applicant was committed to a course of in-patient treatment in the Central Mental Hospital, the trial judge is then required to consider “the evidence of an approved medical officer adduced pursuant to subsection 6(b).” Section 4(6)(b) requires the approved medical officer to prepare a report within a time period stipulated by the court on the question of whether the applicant is suffering from a medical disorder and is need of in-patient care or treatment.

31. One might pause here to observe that the legislative history of this provision is not without interest. As originally enacted, s. 4(5)(c) provided that the trial judge was required to consider the “evidence of an approved medical officer adduced pursuant to subsection 6”. In effect, the trial judge was required first to make an order under s. 4(6)(a) providing for the accused either to be detained for a 14 day period or, alternatively, that he or she attend the Central Mental Hospital as an out-patient within that 14 day period. The trial judge who availed of either option was required to direct that the accused be examined at the Central Mental Hospital by an approved medical officer: s. 4(6)(a)(ii). It was only then that sub-section (b) came into operation, and the approved medical officer prepared his or her report for the trial judge on the issues of mental capacity and the necessity for in-patient treatment.

32. Section 4(5)(c)(i) of the Act of 2006 was amended by s. 4(e) of the Act of2010 so that the reference in the former sub-section is now to s. 4(6)(b). What was the effect of this change and what was its purpose? It is not clear that this change has had any particularly significant effects. After all, the fact that s. 4(5)(c)(i) refers now to s. 4(6)(b) (as opposed to s. 4(6) simpliciter) cannot really be regarded as having effected any really significant change, not least given that s. 4(6)(b) refers back to s. 4(6)(a)(“…the approved medical officer who examined the accused person pursuant to [s. 4(6)(a)(ii)]”), so that it would seem that s. 4(6)(b) cannot be operated if the court does not make an order under s. 4(6)(a) for either in-patient detention and subsequent assessment or for out-patient assessment.

33. If that is so, then this suggests that the object of the legislative change was largely for reasons of presentational clarity and accuracy. No evidence is capable of being adduced pursuant to s. 4(6)(a)- as distinct from s. 4(6)(b)- and by making a change which makes this clearer, the Oireachtas must therefore be understood as wishing to be more precise and accurate regarding the scope of the legislative references to the adducing of evidence in these circumstances.

34. This change nevertheless provides further evidence that the Oireachtas considered that this obligation was of some importance. If this were not so, one might ask why the Oireachtas went to the trouble which it did in order to put this matter beyond doubt. While one may readily accept that the Act of2006 should be given a paternalistic interpretation (see, e.g., by analogy the comments of McGuinness J. in Gooden v. St. Otteran’s Hospital [2005] 3 I.R. 617 and those of Kearns J. in EH v. Clinical Director of St. Vincent’s Hospital [2009] IESC 46, [2009] 1 I.R. 774, albeit that these comments were made in respect of the Mental Health Act 2001 and its predecessor), one cannot effectively re-write key procedural safeguards prescribed by the Oireachtas under the guise of paternalism.

35. If we now return to the facts of the case, it is clear that Carney J. made an order on 26th March 2012 committing the applicant to the Central Mental Hospital pursuant to s. 4(5)(c)(i). To this end, Carney J. heard the evidence of an approved Medical Officer, Dr. Brenda Wright, prior to the making of the order. Dr. Wright confirmed in her evidence that the applicant was seriously disturbed and required treatment at the Central Mental Hospital. As I have already indicated, these findings are not in doubt and there is, one imagines, very little prospect that the applicant will quickly recover from such a grievous illness.

36. The fact remains, however, that Carney J. did not consider the evidence of an approved medical officer adduced pursuant to s. 4(6)(b), since this would have required the court to make an order providing for the detention of the applicant at the Central Mental Hospital for an initial period of 14 days (s. 4(6)(a)(i)), his examination there by Dr. Wright (s. 4(6)(a)(ii)) and the subsequent presentation of a report for the benefit of the Central Criminal Court (s. 4(6)(b)). In other words, what the Oireachtas had prescribed as a two stage process seems to have been compressed through inadvertence into a single stage.

37. Following the delivery of my own judgment in EC v. Clinical Director of the Central Mental Hospital on 5th April 2012, the Director of Public Prosecutions had the matter listed before Carney J. in the Central Criminal Court who declined to make any further order. On that date, the applicant indicated that it was proposed to make an application to this Court under Article 40.4.2.
Compliance with a mandatory statutory provision
38. As thus stated, the case presents in acute form the age old problem of how the court should approach failure to comply with a mandatory statutory provision, not least where, as here, there is virtually no prospect that the result would have been any different if the evidence had actually been adduced pursuant to s. 4(6)(b) in the manner envisaged by s.4(5)(c)(i).

39. The locus classicus on this issue is, of course, Monaghan UDC v Alf-a- Bet Promotions Ltd [1980] I.L.R.M. 64. Here Henchy J., dealing with the issue of sufficient compliance with the terms of the planning regulations, stated ([1980] I.L.R.M. 64, 69):-

“In such circumstances, what the Legislature has, either immediately in the Act or mediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.”
40. Viewed from that perspective, I find it hard to characterize that which has been prescribed by the Oireachtas – and, as we have noted, recently re-affirmed in 201 0 – as trivial or peripheral or insubstantial. The Oireachtas clearly sought to add a further layer of protection for the benefit of an accused person found unfit to plead and to adapt my own language in EC v. Clinical Director of the Central Mental Hospital [2012] IEHC 214, these statutory requirements cannot be regarded as mere surplusage. Rather, they have been deemed by the Oireachtas to represent core protections for vulnerable persons. If the scope of these protections is thought to be otiose, burdensome or unnecessary, I fear that the respondents have addressed their arguments to the wrong forum.
41. Of course, I completely agree that on the facts of this particular case compliance with these requirements is most unlikely to have altered the actual result. But this does not mean that compliance with the requirements of the statute is not important or that in the context of an Article 40.4.2 application this Court can gloss over such non­compliance on discretionary grounds. Unlike the established discretion of the High Court and Supreme Court to withhold relief in judicial review proceedings in appropriate circumstances on established grounds- such that the granting of relief would serve no useful purpose- Article 40.4.2 is not a discretionary remedy, since as the language of Article 40.4.2 itself makes clear, the Court must order the release of the applicant unless it is established that he or she is in lawful custody.

42. Nor can the present case be compared with EH v. Clinical Director of St. Vincent’s Hospital [2009] IESC 46, [2009] 3 IR 774. In that case the issue was whether the patient was a “voluntary patient” for the purposes of ss. 23 and 24 of the Mental Health Act 2001, such that the medical staff could seek to restrain her leaving the hospital under these provisions if they were of the view that she was suffering from a mental disorder. The Supreme Court rejected the argument that the applicant was not a voluntary patient in this sense. Kearns J. moreover noted that any illegality which might otherwise hitherto have attached to that detention had been superseded by subsequent orders which were perfectly lawful, so that ([2009] 3 IR 774, 792-793) it was only “in cases where there had been a gross abuse of power or default of fundamental requirements would a defect in the earlier period of detention justify release from a later one.” Of course, for the reasons already given above, the present case does not involve an example of where an earlier defective order has been supplanted by a later valid order.

43. In summary, therefore, I am left with the inescapable conclusion that the applicant’s detention became unlawful after the initial fourteen day period of detention, inasmuch as the section precludes the making of an order for indefinite detention in the Central Mental Hospital (subject to the making of an order by the Review Board under s.l3 or s. 13A)) under s. 4(5)(c)(i) without the court first having heard the evidence of the approved medical officer adduced pursuant to s. 4(6)(b). This failure is apparent on the face of the order of the Central Criminal Court.
The right of appeal to the Court of Criminal Appeal
44. Section 9(1) of the Act of 2006 provides that an appeal lies to the Court of Criminal Appeal against the making of an order of committal under s. 4(5)(c). While this is principally a merits based appeal against the making of the order, s.9(4) also provides that the Court of Criminal Appeal shall also have the power “to make any such order as may be necessary for the purpose of doing justice in accordance with the provisions of this Act.” This latter section is, in my view, broad enough to enable the Court of Criminal Appeal to set aside the order of committal under s. 4(5)(c)(i) on the grounds of non­ compliance with the requisite statutory requirements.

45. While “the institutional precedence of the Court of Criminal Appeal over habeas corpus is long established” (Costello, The Law of Habeas Corpus in Ireland (Dublin, 2006) at 207), it is critical to note that these comments were made in the context of convictions. Absent quite exceptional circumstances, it is clear that Article 40.4.2 will not lie in respect of convicted persons for all the reasons set out by O’Higgins C.J. in The State (McDonagh) v. Frawley. But where, as here, the applicant has not been convicted, the mere fact that a right of appeal exists cannot take from the right of an applicant to come to this Court under Article 40.4.2.
The retrospective effect of EC
46. It remains to consider the retrospective effect of my judgment in EC. Under the declaratory theory of the common law, in my judgment in EC I did no more than declare the law as it was understood to be from its enactment and entry into force. In reality, life is not as straight forward as this and it may well be that many parties (not least those charged with the operation of the Central Mental Hospital) have altered their position in the belief that the law was otherwise than I found it to be in EC. In practice, therefore, that decision might have practical consequences of such magnitude for those charged with the welfare of persons such as the applicant that they are akin to a finding of unconstitutionality.

47. In cases of this kind, for all the reasons enumerated by Denham C.J. in The People (Director of Public Prosecutions) v. Kavanagh [2012] IECCA 65 the courts would enjoy a exceptional jurisdiction to limit the retrospective effects of such a finding. Given that the Preamble to the Constitution envisages the attainment of a “true social order”, it cannot be the case that the courts should look on helplessly were administrative chaos otherwise to ensure as a result of a judicial decision or that they are powerless to staunch the adverse consequences of such a state of affairs. While the first duty of the courts is, as Henchy J. emphasised in Murphy v. Attorney General [1982] IR 241, to secure the protection of individual rights, there are also circumstances where, as he himself pointed out in Murphy (which views were echoed and endorsed by Denham C.J. in Kavanagh) this may not prove feasible or practicable.

48. I should have thought, however, that if the respondents wished to advance arguments of this nature, it would be necessary for the foundation to be established by appropriate evidence, rather than merely by submission. In this regard, it would be at least desirable (and perhaps necessary) to advance evidence as to the number of persons affected and the implications for the administrative system of the ruling.

49. Nevertheless, it may well be that future applicants seeking to rely on the decision in EC might find that the any want of statutory vires was held to be cured by the application of the principles enunciated by Henchy J. in Murphy and by Denham C.J. in Kavanagh. This, however, is an argument which must await decision in another, more suitable case.
Conclusions
50. For the reasons just stated, I must hold that the applicant’s detention is not in accordance with law and I must further direct his release in accordance with Article 40.4.2 of the Constitution. I will, however, adjourn the making of any order (whether of release or otherwise) pending further argument as to the remedy which is most appropriate in this case, not least having regard to the applicant’s own welfare and the implications which this decision might have for other persons.

 

JUDGMENT of Mr. Justice Hogan delivered on the 8th day of July, 2012
1. This applicant is currently detained in the Central Mental Hospital pursuant to an order of the Central Criminal Court made on the 26th March, 2012, pursuant to s. 4(5)(c)(i) of the Criminal Law (Insanity) Act 2006 (“the Act of 2006”). He now seeks his release pursuant to Article 40.4.2 of the Constitution and in a judgment delivered on 3rd July, 2012, I held that for the reasons set out in detail in that judgment that the applicant’s custody was unlawful. The issue which now arises is whether I can place a stay on any order for release so as to enable either the respondent or the notice party to take steps to regularise the applicant’s detention.

2. The substantive application itself raises from tragic circumstances. The applicant was charged with a very serious criminal offence and he was found unfit to plead by Carney J. on 26th March, 2012. As I noted in my first judgment, the medical diagnosis is that the applicant suffers from chronic paranoid schizophrenia which is resistant to treatment. The overwhelming evidence is that the applicant is seriously disturbed and that he presents a very serious threat to himself, identifiable individuals and to the general public were he to be released from custody.

3. As thus presented, the Court is confronted with two choices, neither of which at first blush are terribly appealing, at least judged by reference to the facts of this particular case. The traditional view, of course, was that the Court must immediately direct the release of the successful applicant, at least if fidelity to the language, structure and purpose of Article 40.4.2 is to be maintained. On this view, the Court must adopt a quasi-Olympian air of detachment from the consequences of its order: fiat justitia, ruat caelum. This was certainly the view expressed by Finlay C.J. in The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550, 568 where he stated that the existence of such a jurisdiction to place a stay “would be inconsistent with the Constitution.”

4. Yet this view has its own limitations, not least in the present case. If the applicant were to be released unconditionally, the clear and cogent medical evidence is that he would pose a real and immediate risk to himself, identifiable individuals and to society at large. One can put this in some perspective by noting that the applicant is possibly the most seriously disturbed individual currently detained in civil confinement in the State. In this context, one might have thought that the Constitution’s objective of a “true social order” (as reflected in the Preamble), together with the State’s express constitutional duty to protect the life and person of citizens (Article 40.3.2) might come into play at this juncture.

5. The alternative approach which is urged on me here by Mr. McEnroy S.C. for the Central Mental Hospital and by Mr. McDermott for the Director of Public Prosecutions also has its own distinct drawbacks, They contend that this Court has a general discretion to stay the order of release so as to enable the authorities to take steps to regularise the legality of the applicant’s detention. This is a superficially attractive option which is certainly prompted in the present case by good intentions. But these good intentions might come with a price which, over time, could well be considerable.

6. To be blunt, the existence of such a general discretion, if unchecked, might over time serve to hollow out the core of the Article 40.4.2 remedy by converting it into a form of discretionary order. In due course, this discretion might be broadened further to the point whereby the courts tolerated the widespread illegal detention of persons with unpleasant and unappealing backgrounds simply because they were thought to pose some vague, general threat to public order. For a free society committed to the rule of law, the tolerance of a discretion of this kind might be the first step on a long path to perdition and the ultimate emasculation of the Constitution and the values that it stands for.

7. If, therefore, the courts did enjoy a discretion of this kind, it would have to be operated within confined parameters which reflected the essence of the protections afforded by Article 40.4.2. The first question to be considered, however, is whether the court is obliged in all circumstances to order the immediate release of an applicant who has been successful in the substantive Article 40 proceedings or whether the giving effect to that order can be stayed in some way.
Whether the courts enjoy a jurisdiction to stay the making of an order for release?
8. In the light of Trimbole, the accepted view was that the courts had no jurisdiction to stay the making of an Article 40.4.2 order. This view is also reflected in the judgment of Murray C.J. in N v. Health Service Executive [2006] IESC 60, [2006] 4 IR 374, 470 (which was an Article 40 application in respect of the custody of an adoptive child) where he said that:-

“A successful application pursuant to Article 40.4 concerning an unlawful detention would normally lead to an order for release of the person concerned from the unlawful detention with no further order being necessary.”
9. The Chief Justice added, however, that:
“In this case there are special circumstances, namely, the welfare of an infant of tender years, to be taken into account when determining the manner in which effect may be given to the order of this court pursuant to Article 40.”
10. Drawing on the Article 40.3 case-law, the Chief Justice went on to say ([2006] 4 IR 374, 471) that:
“In my view the court has jurisdiction, in the circumstances of a case such as this, involving a minor of a very tender age, to make ancillary or interim orders concerning the immediate custody of such [an] infant which are necessary to protect her rights and welfare pending effect being given to the substantive order of the court.”
11. In his concurring judgment, Hardiman J. expressly agreed with this approach ([2006] 4 IR 374, 534-535):-
“I regard as wholly disingenuous the submission made on behalf of the respondents that because the proceedings were brought under Article 40.4.2, the powers available to the Court were limited to the stark alternatives of refusing relief altogether, or directing an immediate, unprepared for, transfer of custody. The very starkness of these alternatives, it was argued, was an argument for refusing relief altogether.
I agree with the form of order proposed by the learned Chief Justice in this case. I am satisfied, for the reasons which he gives, that there is ample power to make an order in that form. I have no doubt that the power of the Court is not constrained in the extraordinary fashion contended for by the respondents. I am quite satisfied that the welfare of the child, in the long term and in the short term, as well the rights and responsibilities of the parties to this litigation, require that the order proposed should be made.”

12. Some of this passages were analysed by Clarke J. in J.H. v. Russell [2007] IEHC 7, [2007] 41.R. 242, which was one of the first Article 40 applications concerning a mental health patient decided in the aftermath of N. As Clarke J. observed ([2007] 4 IR 242, 263):-
“The underlying logic of the approach of the Supreme Court in both cases was that the normal rule (i.e., immediate release) might not be appropriate in all circumstances involving persons whose detention was, at least in significant part, designed for their own good. A similar situation arises in the case of involuntary patients.”
13. As Clarke J. stressed, a significant consideration here was whether it was clear that the applicant was in need of appropriate treatment or, indeed, whether the objective necessity for the continued detention of the patient was not established. In pursuance of this jurisdiction, Clarke J. placed a short stay of approximately seven hours on the order for release.
14. The approach of Clarke J. in Re JH has been consistently followed in the interval. Thus, for example, in one of the first cases to arise in the wake of JH, JD v. Director of the Central Mental Hospital [2007] IEHC 100, Finlay Geoghegan J., noting that the patient was “seriously mentally ill” and that the medical evidence showed that the patient was “a risk to other people and, in particular, to women”, stayed the making of the release order until 4pm on the following day.

15. It is not in doubt but that this practice has been consistently followed by a line of both reserved judgments and ex tempore decisions delivered by this Court in the interval. So much is not disputed by counsel for the applicant, Mr. Fitzgerald S.C. He submits rather that this line of case-law has been overruled by an ex tempore decision of the Supreme Court, SC v. Clinical Director of the Jonathan Swift Clinic, James Hospital, 5th December, 2008. Here Birmingham J. had found that the applicant was in unlawful detention in the respondent institution. Following established practice, Birmingham J. then placed a stay on the order for a day so that the respondents could take steps to ensure that the applicant was lawfully detained.

16. An appeal against the making of a stay was heard on the following day by the Supreme Court. In his approved ex tempore judgment Hardiman J. noted that there was “no evidence or even suggestion that the applicant is a danger to herself or any other person.” He then continued:-

“We do not consider it necessary, in those circumstances, to decide whether or not there may be ever a stay on an order for release from psychiatric detention. It is sufficient to say, firstly, that the Trimbole decision suggests strongly that such release must be immediate and, secondly, that evidence which goes only as far as the medical evidence of which we have been informed could not conceivably form the basis for a continuation of a detention admitted to be unlawful.”
17. The Court then lifted the stay and released the applicant. This judgment calls for a number of observations.
18. First, Hardiman J. emphatically stated that the Court did not find it necessary to consider “whether or not there may ever be a stay on the order for release from psychiatric detention.” The Court, therefore, did not have to consider what was even by then a formidable body of authority from the decision in N. onwards. Second, unlike the present case, the applicant in SC presented no risk to herself or anyone else. This was a crucial consideration which serves to distinguish that case from, e.g., the decision of Finlay Geoghegan J. in JD and, a fortiori, the present case. Third, the judgment in SC was delivered ex tempore by a three judge panel. It is seems most unlikely that the Supreme Court had intended to depart sub silentio from the general authority of post-N High Court case-law and still less from what had been said by a Supreme Court consisting of five judges in N

19. In the circumstances, and for these reasons, I do not think that SC bears the broader interpretation which Mr. Fitzgerald SC so skilfully urged upon me. All that the Court decided was that in that particular case given its facts, it was not appropriate to continue the stay.

20. There are, in any event, other contemporary developments which tend to support the approach in JH The scope, range and effectiveness of the remedies available where an unconstitutionality has been established is one, of course, of the Constitution’s great strengths. Yet recent experience has shown that, paradoxically, the very fact that these remedies are so potentially powerfully and effective itself contains one latent weakness. This was first hinted by Geoghegan J. in A. v. Governor of Arbour Hill Prison [2006] 4 IR 88 where he rejected an absolutist doctrine of pure retrospectivity in the aftermath of a finding of unconstitutionality, saying that:-

“If such was the devastating effect of a declaration of unconstitutionality in all cases, it would fly in the face of common sense, would be manifestly unjust and would be contrary to any good order in a civilised society.”
21. This hints at the nature of the problem. It amounts to this: if a finding of unconstitutionality had these “devastating” consequences for society in general and the legal system in particular which the courts found themselves unable to control, then this would inevitably impact on the practical willingness of the courts to make such a finding of unconstitutionality. This would represent a form of functional asymmetry which, absent a necessary flexibility in the manner in which these remedies are administered, might well have the effect of dissuading the courts from making a finding of unconstitutionality in the first place.
22. Thus, for example, if a court faced with a claim that an applicant prisoner’s constitutional rights were infringed by reason of inhumane prison conditions could grant no remedy other than to release the prisoner, then this might have the effect in practice of inhibiting the courts finding for the prisoner on the merits of such a claim. If, however, the relief available can include what amounts to a suspensory declaration of invalidity by giving the authorities one final opportunity to remedy the problem, then the court clearly has a freer hand: cf the reasoning in respect of this issue set out briefly in my own judgment in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235.

23. A variant of this problem was also in view in N where, as we have already seen, the argument was that if an order was made under Article 40.4.2, it must be immediate so that the adoptive child would be forthwith returned to the natural parents without delay. Since such an immediate transfer was such an unappealing prospect, with potentially significant adverse consequences for the welfare of the child, this in turn was advanced as an argument by counsel for the adoptive parents as to why in the first instance the Supreme Court should not find for the natural parents.

24. The present case also provides an example of this dilemma. The immediate release of the applicant in the present case into the general community within minutes of the delivery of the actual judgment might well have had disastrous consequences. If the Court were faced with the stark binary choice of simply ordering the immediate release of the applicant on the one hand or refusing relief on the other, then the judicial branch would be placed in an appalling dilemma. The temptation in those circumstances to opt for the practical, safe and convenient solution- refusing the grant of relief- would be well nigh irresistible for all but the most detached judges who were prepared to live with their consciences if disaster subsequently ensued. Yet judicial pragmatism of this kind often comes with a heavy price. Result oriented decisions which cannot be rationally supported by reference to earlier authority and established doctrine sap the integrity of the judicial decision-making process and undermine – often with serious consequences -public confidence in the objectivity of that decision-making process.

25. By contrast, a flexible approach in respect of the provision of remedies for constitutional breaches not only permits the courts fearlessly to examine the merits of the claim, but it also serves to promote an important dialogue between the various branches of government which enables all three branches to best work in the public interest. In the context of an application such as the present one, it enables the judicial branch to determine the legality of the detention, while allowing the executive branch a short opportunity to address difficult problems arising from that judicial finding: cf again by analogy my own judgment in Kinsella and Dr. Carolan’s analysis of these issues, “The Relationship between Judicial Remedies and the Separation of Powers: Collaborative Constitutionalism and the Suspensive Declaration of Invalidity” (2011) 46 Irish Jurist 235.

26. It follows, accordingly, that for these reasons I intend to follow the general approach articulated by Clarke J. in JH. It remains to consider how and in what circumstances the discretion to play a stay on the order for release should be exercised.
In what circumstances should the discretion to place a stay on the order for release be exercised?
27. As Clarke J. noted in JH, the option of the suspensory order under Article 40.4.2 only arises in the context of persons detained for their own good, of which involuntary patients are perhaps the most obvious category. To this may be added the comments of Hardiman J. in SC to the effect that the question of placing a stay does not arise where the patient poses no threat to himself or others. While not excluding any future development of this stay jurisdiction on an a priori basis, the question of the grant of a stay on the making of an order under Article 40.4.2 would only seem to arise where these two conditions have been satisfied, as they are in this case.

28. Of course, the discretion must be exercised in a fashion which respects the fundamental principle that there must be an order for release within a short period of the making of that decision. In the present case, when I first delivered my own judgment on Tuesday, 3rd July, 2012, I indicated that I was prepared to grant a stay in line with the JH practice. In the aftermath of the delivery of the oral judgment, Mr. Fitzgerald SC protested that this issue had not been fully argued and that I had erroneously assumed that it had been. In the end, it was agreed by the consent of all parties that the matter would be put in for further argument on the question of a stay in the afternoon of Friday, 6th July, 2012. Following the conclusion of that argument, I indicated that I would give judgment on Sunday evening, 8th July at 7pm.

29. On the hearing on 6th July Mr. McDermott indicated that the Director proposed to have the matter re-listed before the Central Criminal Court tomorrow, 9th July. I should make it clear that the Director is fully entitled to make that application and in making that application no question of any endeavour to set my judgment at naught arises. Any such application will be entirely a matter for the Central Criminal Court.

30. For his part, Mr. McEnroy SC, reserved the right of the Director of the Central Mental Hospital to apply to this Court (although perhaps not necessarily to me) for an order under the inherent jurisdiction of the Court committing the applicant afresh to detention in the Hospital. That, of course, is an entirely a matter for the Hospital and I express no view whatever in respect of this which will be a matter for the judge who hears any such application.
Conclusions
31. In the light of the foregoing, I have decided that the applicant must be released from his present custody (i.e., the order of the Central Criminal Court made pursuant to s. 4(5)(c)(i) of the Criminal Law (Insanity) Act 2006 on 26th March, 2012) at 5pm on Tuesday, 10th July, 2012. This further short delay is designed, in line with JH, to enable the authorities to take such steps as they think fit in the meantime to ensure in advance of that time and date that the applicant’s custody is henceforth a regular and lawful one.

 

Farrell v Governor of St Patrick’s Institution

 

[2014] IESC30,
Judgment delivered on the 10th day of April, 2014, by Denham C.J.
1. This is an appeal by the Governor of St. Patrick’s Institution, the respondent/appellant, referred to as “the appellant”, from the judgment of the High Court (Hogan J.) delivered on the 19th October, 2012, which declared that Michael Farrell, (also known as Regan), referred to as “the respondent”, was entitled to have been released on the 4th July, 2012.

2. At issue is whether the District Court had jurisdiction to remand the respondent in custody on the 28th June until the 5th July, notwithstanding a stay granted in the High Court (Birmingham J.) in judicial review proceedings. It was submitted on behalf of the appellant that the issue is relevant to many prosecutions, which are the subject of judicial review proceedings.

3. There is a preliminary issue as to whether the appeal is moot.
Background
4. The respondent was charged with offences before Trim District Court, two Road Traffic Act offences alleged, being dangerous driving and failing to keep a vehicle at the scene of an accident, and one alleged offence contrary to the Criminal Justice (Theft and Fraud Offences) Act, being making off without payment.

5. On the 1st May, 2012, the respondent was granted bail by Trim District Court, with bail fixed in the sum of €300 on his own bond and a further independent surety of €300. He was remanded in custody with consent to bail until the 3rd May, 2012. He was remanded on a number of further occasions, with consent to bail, to the 28th June, 2012.

6. On the 28th June the respondent was produced in custody before the District Court in Trim. The stay order which had been made by the High Court (Birmingham J.) on the 25th June was before the District Court. Counsel for the respondent submitted that the District Court had no jurisdiction to make an order remanding the respondent in custody on the charges as the proceedings had been stayed.

7. Trim District Court did not accept counsel’s submission, and the respondent was remanded in custody, with consent to bail, to Cloverhill District Court on the 5th July, 2012.

8. When the matter came before Cloverhill District Court on the 5th July, 2012, no further order was made, and the respondent was released.

9. On the 4th July, 2012, there was an application to the High Court for an inquiry pursuant to Article 40.4.2° of the Constitution, in which it was submitted that the respondent was entitled to be released on that date.

10. The issue arises in circumstances where the respondent was entitled to be released on the 4th July, 2012, unless the District Court order made on the 28th June remanding him in custody until the 5th July, 2012 is valid.
Application for an Inquiry pursuant to Article 40.4.2
11. The application for an inquiry pursuant to Article 40.4.2° of the Constitution was grounded on the affidavit of John Quinn, Solicitor, sworn on the 4th July 2012.

12. The facts deposed to by John Quinn included that on the 27th April, 2012, the respondent was convicted of an offence contrary to s. 15 of the Misuse of Drugs Act, 1977, as amended, and was sentenced to three months detention. With remission the respondent would be released from this detention on the 4th July, 2012.

13. However, there was also the warrant from Trim District Court remanding the respondent in custody until the 5th July, 2012.

14. Mr. Quinn referred to the charges set out earlier in this judgment which were pending in the District Court, reference was made to the several remands in custody with consent to bail leading up to the order of the 21st June, 2012, when the respondent was remanded in custody with consent to bail to the 28th June, 2012.

15. Certain legal issues arose in relation to the prosecution before Trim District Court. Leave was sought to apply for judicial review of matters including a refusal of legal aid, and seeking declarations in respect of the Criminal Justice (Legal Aid) Act 1962, before the High Court (Birmingham J.) on the 18th June, 2012.

16. On the 18th June, 2012, in the judicial review proceedings, the High Court (Birmingham J.) granted leave to apply for judicial review.

17. On the 25th June, 2012, a stay was sought from the High Court (Birmingham J.), in the same proceedings and it was granted.

18. The order of the High Court of the 25th June, 2012, provided, having referred to the earlier order of the 18th June, 2012, granting leave to apply for judicial review, that:-

“It is ordered that the proceedings currently pending before Trim District Court on foot of charge sheet numbers 12720972, 12720923 and 12720931 be hereby stayed pending the determination of this application for Judicial Review or until further Order in the meantime or until such time as this stay shall have lapsed by reason of the [respondent’s] failure to serve an originating Notice of Motion herein within the proper time and that the said Order and this Order be read as one.”
19. The inquiry pursuant to Article 40.4.2° came on for hearing in the High Court on the 15th October, 2012.
The High Court
20. The High Court (Hogan J.) delivered a judgment in this matter on the 19th October, 2012.

21. On the issue as to whether the matter was moot, the High Court held:-

“This is essentially why the present proceedings should be resolved, even if this is by way of exception to the mootness doctrine. It would be totally unrealistic to expect that the legal issues presented by this application could have actually been resolved within the period of July 4th/July 5th. But precisely because of the narrowness of that period and the viability of the legal system to come to a fair adjudication within that short twenty four hour period, the legality of [the respondent’s] detention during those hours would otherwise have escaped – or, at least, might escape – effective judicial oversight and review. In these special circumstances, we can now proceed to consider the merits of the application.”
22. The High Court described the critical question as: “what was the effect of the order made by Birmingham J. granting a stay?”
23. On the substantive issue the High Court held:-

“17. What, then, was the nature and effect of the stay? It was in truth a form of public law injunction restraining the District Court from taking any further steps in the matter. There are, of course, certain subtle differences between the grant of a stay and an injunction both in terms of the criteria governing the grant of these reliefs, their respective scope of operation and the addressees of such relief. As it happens, many of these matters were explored by Clarke J. in his comprehensive judgment for the Supreme Court on this issue in Okanunde v. Minister for Justice and Equality [2012] IESC 49.
18. But whatever the differences between a stay and injunction for other purposes, these differences have no bearing on the present case. What matters here is the effect of the stay and the general coercive effect of such an order cannot be in doubt. The order stayed the criminal proceedings then pending against the accused in the District Court. This means that the District Court was not entitled to take any further steps adverse to the applicant for so long as that order was in force. Of course, the existence of the stay did not mean that the District Court would not have been entitled to make no order or even to adjourn the criminal proceedings to a named date. A step of that kind is essentially neutral in nature: it is not inconsistent with a stay order to maintain the status quo pending further order from the High Court.

19. For so long as the stay was in force in the form in which it was, the District Court was not, however, entitled to make the order which was actually made, i.e., an order remanding the applicant in custody, even if there was consent to bail and even if the applicant had been previously so remanded in custody. A remand order of that kind was positively inconsistent with the nature of the stay which had been granted by Birmingham J., even if- as I am absolutely certain was the case- Judge Brennan acted perfectly bona fide and honourably in a difficult situation. The fact remains, however, that he had no jurisdiction to make the order which he did having regard to the terms of the stay.

Conclusions

20. In these circumstances, it is plain that the order of the District Court remanding the applicant in custody until 5th July was invalid. It follows in turn that there was no proper legal basis for detaining the applicant on 4th July, 2012. While the Court’s task in an Article 40.4.2 inquiry is confined to determining the legality of the detention, in these special circumstances I will simply declare that the applicant was entitled to have been released from custody on 4th July, 2012.”

Appeal
24. The appellant filed six grounds of appeal, submitting that the High Court erred in law or in fact or on a mixed question of law and fact as follows:-
“(i) Excluding from evidence the underlying Judicial Review proceedings in which the stay of the 25th day of June, 2012, was granted on the grounds that the terms of the stay sought as disclosed by the reliefs and grounds in the said proceedings was irrelevant.
(ii) Having identified that the purpose of a stay in Judicial Review proceedings was to maintain as far as practicable the status quo, the learned Trial Judge erred in law in holding that the order of the District Court of the 28th of June, 2012, failed to do so.

(iii) In holding that the effect of the stay granted by order of the 25th day of June, 2012, was to preclude the District Court from making an order further remanding the Respondent in custody, notwithstanding that there was consent to bail and/or that the Respondent had so previously been remanded in custody.

(iv) In holding that the District Court Order of the 28th of June, 2012, was not neutral in nature and/or was inconsistent with maintaining the status quo in relation to the parties in circumstances where there was no application seeking to vary the status of the Applicant/Respondent before the High Court on the 25th day of June, 2012 or on any other date or otherwise.

(v) In holding that an order remanding the Respondent in criminal

proceedings on the same terms and conditions as had previously existed, where such conditions did not form part of any application for judicial review, was inconsistent with the terms of the stay and/or failed to maintain the status quo and/or was an adverse step in the proceedings.

(vi) In holding that the detention of the Respondent had no legal basis where the District Court had remanded the Respondent in custody with consent to bail until the 5th day of July, 2012.”

Submissions on the Issue of Mootness
25. Both parties provided written submissions, including supplemental submissions in relation to the issue of mootness. In addition, the Court heard oral submissions. I shall consider first the preliminary issue as to whether the appeal is moot.
Moot?
26. On behalf of the appellant it was submitted that the Court has a discretion as to whether to hear an appeal from an Article 40.4.2° inquiry when the applicant has been released. It was submitted that where the matter is one of real concern to the State, the Court may exercise its discretion in favour of determining the matter. Reference was made to the ex tempore judgment handed down in Malony v. Member in Charge Terenure Garda Station [Unreported, Supreme Court, 18th May, 2004] and Dunne v. The Governor of Cloverhill Prison [2009] IESC 43.

27. The appellant submitted that the Court should exercise its discretion to hear the appeal on the following grounds:-

(i) There is no cross appeal by the respondent.
(ii) Should the appellant succeed the respondent can be re-charged. The effect of the judgment and order of the High Court would appear to be that any attempt to re-charge the respondent would be unlawful while the judicial review is pending. There is therefore a potentially live issue between the parties as to whether or not the respondent can be re-charged.

(iii) There are recognised exceptions to the mootness rule which should be applied in this case.

(iv) The Court should hear the appeal on the grounds that to do otherwise would be “declining to exercise its proper appellate jurisdiction” See Re Zwann [1981] I.R. 395, 401 per O’Higgins C.J.

(v) The effect of the order and judgment of the High Court is to fundamentally alter the status of the accused and to cast into abeyance the underlying criminal proceedings in circumstances where the appellant has not been heard in relation to the application for a stay.

(vi) The issues raised are of real concern to the appellant. They potentially affect a significant number of cases in relation not merely to the refusal of legal aid, but also to the injunction of prosecutions on grounds of prejudice and/or delay where the granting of a general ‘stay’ has the effect of precluding the continued remanding of an accused in custody in the District or Circuit Court in circumstances where such continuing remands do not appear to be the gravamen of an applicant’s case or matters which the judge granting leave was asked to consider. It was stated that remand prisoners are imprisoned pending trial only if they are likely to abscond, interfere with witnesses or commit and serious offence and consequently any change in their status on an effectively ex parte basis is of real concern to the appellant.

28. On behalf of the respondent it was submitted that these proceedings are moot and that it was neither practical nor desirable for the Court to hear the appeal where the detention has long since come to an end.
29. Counsel for the respondent referred to Dunne v. Governor of Cloverhill Prison [2009] IESC 43, which was an appeal against an order of Peart J. directing the release of the applicant following his arrest and recharge immediately after being released by Edwards J. in the first set of proceedings. In that case the appeal was dismissed, and it was stated:-

“The applicant is no longer in custody on foot of the new charge. That charge is inoperative. In relation to the new charge there is no live issue remaining between the parties. In the circumstances the issue of the new charge is not justiciable and scarce judicial resources should not be used to advance an academic analysis.”
That was a decision of a five judge panel of this Court and the respondent submitted that it should be followed in this case.
31. It was submitted on behalf of the respondent:-

(i) The fact that no cross appeal was brought in respect of the findings of the learned trial judge does not alter the reality that the issue is moot and that this Honourable Court must exercise its own discretion whether to entertain the appeal or not.
(ii) The ruling on mootness in the High Court did not, by definition, address the question whether the Supreme Court should entertain an appeal which has long since become moot, particularly because of the scarcity of judicial resources and the realities presented by over burdened lists at the appellate tier.

(iii) The appellant submitted that the respondent could have taken judicial review proceedings to challenge the order remanding him in custody. However, the Constitution provides a remedy which the respondent availed of. Any speculation as to what may have happened, had he sought judicial review of his incarceration, is irrelevant to the case before this Honourable Court.

(iv) It was argued that the appellant had submitted that a failure to entertain this appeal would be to “decline to exercise its proper appellate function”. In particular, the appellant submitted that the respondent, by seeking judicial review in which leave and a stay were granted on an ex parte basis, has apparently deprived the State of an opportunity to be heard. It was argued that this ignored the reality that the appellant could have sought to vary or set aside the stay, a procedure provided for under the Rules of the Superior Courts. It was submitted that it is telling that this course of action was not followed in this case.

(v) The stay granted in this case was concerned with the “criminal proceedings”, not the criminal trial. If the appellant had general concerns in relation to the form of a stay granted in ex parte proceedings, it is open to the appellant to challenge that form of stay. This case cannot be separated from the specific and special language of the stay sought and granted by Birmingham J. An infinite variety of qualifications can be placed upon a stay so as to determine its ambit.

(vi) The issues raised in this case are not of such general application as to warrant this Honourable Court departing from its policy of declining to hear appeals that are plainly moot.

Decision
33. Clearly the appeal is moot, the respondent has been released. The respondent brought an application for an inquiry under Article 40.4.2° of the Constitution. The relief which may be granted on such an inquiry is to release an applicant. The High Court granted the relief and released the applicant. Consequently, the appeal is moot.
Discretion
34. However, the Court has a discretion which it may exercise as to whether or not it will hear and determine a moot appeal. This has been considered recently by the Court in W v. Health Service Executive [2014] IESC 8, and in Lofinmakin (a minor) & Ors v. Minister for Justice, Equality and Law Reform [2013] IESC 49.

35. Applying the law well established by cases of this Court, including those referenced above and G v. Collins [2005] 1 ILRM 1, Irwin v. Deasy [2011] 2 IR 752 O’Brien v. PIAB (No. 2) [2007] 1 IR 328, Okunade v. The Minister for Justice, Equality and Law Reform & Ors [2013] 1 I.L.R.M. 1, I would hear the appeal.

36. The reasons why I would hear this moot appeal include the following:-

(i) the decision to grant a stay was made on an ex parte application, and the appellant had no opportunity to address the issue, or terms, of a stay;
(ii) the decision has an effect on criminal proceedings which are of real and reasonable concern to the appellant;

(iii) such an issue arises in circumstances which would escape review if the Court did not exercise a discretion to hear the appeal;

(iv) the decision potentially affects many criminal cases in the District Court;

(v) the decision has a systemic relevance to cases before the courts, where an application for judicial review has been granted.

A Stay
37. The substantive issue is the nature and effect of a stay in the circumstances.
Submissions on behalf of the Appellant
38. On this substantive issue written and oral submissions were made on behalf of the appellant and the respondent.

39. On behalf of the appellant it was submitted, inter alia, that the purpose of a stay in judicial review proceedings is to preserve the status quo in relation to the decision under challenge. It was submitted that the reliefs sought in the judicial review were to restrain the prosecution of the respondent unless he was afforded legal representation to enable him defend the criminal charges.

40. It was submitted on behalf of the appellant that the failure of the learned High Court judge to have regard to the meaning and effect of the stay granted by the High Court in the context of the judicial review proceedings was wrong in law and had the effect of excluding matters relevant to the effect of the stay granted by Birmingham J.

41. Further, it was submitted that the relief sought was directed towards the trial of the respondent, rather than any remand in the District Court.

42. It was submitted that the learned High Court judge erred in finding that the maintenance of the respondent’s status by the District Court, by remanding him on the same terms and conditions, was not preserving the status quo.

43. It was submitted that the learned High Court judge erred in holding that the effect of the stay was to preclude the District Court from making an order remanding the respondent in custody, notwithstanding that there was consent to bail and that the respondent had previously been remanded in custody. It was submitted that where a person has previously been remanded by a court of trial, the terms and conditions in relation to bail or custodial status of the person so remanded remain valid unless that order is impugned, and is the subject of the reliefs sought.

44. It was submitted that there was no evidence that Birmingham J. had ever been addressed, or asked to consider the issue of bail in relation to the stay. It was submitted that the consequence of the order of Hogan J. is that two distinct positions on a stay application now arise depending on whether a person is in custody or not:-

(i) in the event of a stay being granted a person on bail has the status quo preserved in that he is further remanded in the same terms and conditions as previously by the District Court;
(ii) while a person in custody on foot of a valid order is now no longer subject to such conditions.

It was submitted that this is an untenable situation.
45. It was submitted also that the High Court erred in finding that an order remanding the respondent on the same terms and conditions was an adverse step in the proceedings. A further remand on the same terms and conditions was not an adverse step, but rather preserved the situation.
Submissions on behalf of the Respondent
46. It was submitted on behalf of the respondent that the issue which arose before Hogan J. was not the merits, rights or wrongs, of how the order of Birmingham J. staying the proceedings came into existence, but rather the issue was what effect did the order of Birmingham J. have on the proceedings in Trim District Court.

47. It was submitted that the order of Birmingham J. stayed the proceedings, that it was in force on the 25th June, 2012, that it bound the District Court, and that Hogan J. could not look behind it or re-evaluate its merits.

48. It was submitted that if a respondent in judicial review proceedings takes issue with the form of a stay, they can challenge the grant of the stay.

49. Reference was made to McDonnell v. Brady [2001] 3 IR 588 , where the respondents challenged a stay granted in judicial review proceedings. Keane C.J. stated obiter, that:-

“There is no reason in logic why the applicant, where the grant of a stay is subsequently challenged, should not be under an onus to satisfy the Court that it is an appropriate case in which to grant such a stay.”
It was pointed out that no application was made to the High Court seeking to vary the stay order.
50. It was submitted that owing to the strict time limits established in law, when the respondent was produced in Trim District Court on the 28th June, 2012, he was not a person who was remanded in custody. The remand warrant requiring his production in Trim District Court on the 28th June, 2012, expired that day. He could only be further remanded in custody by a new order of the District Court. A new order would have to be made with reference to all the circumstances.

51. It was submitted that remanding a person in custody requires the invocation of the Court’s jurisdiction and as such a step in the proceedings which is prohibited by the order staying the proceedings.

52. It was submitted that incarcerating a person in pre-trial custody is not neutral, it is not maintaining the status quo.

53. It was submitted that when a Court grants leave to seek judicial review, a stay may be requested by an applicant. Order 84, rule 20 (8) (b) of the Rules of the Superior Courts, as amended by S.I. no. 691 of 2011: Rules of the Superior Courts (Judicial Review) 2011, sets out that where either certiorari or prohibition is sought then the proceedings may be stayed, by order, until the determination of the application for judicial review, and that without any further clarification a stay operates as a complete suspension of the proceedings.

54. Further, that any order invoking the jurisdiction of a Court is a step in the proceedings. It was submitted that the order in Trim District Court on the 28th June, 2012, was a step in the proceedings. Thus, in this case, the order of Birmingham J. stayed the proceedings, and the order of Trim District Court contravened that order.
Decision
55. Order 84 r 20 (8) (b) of the Rules of the Superior Courts, as inserted by the Rules of the Superior Courts (Judicial Review) 2011, S.I. 691 of 2011, provides that when the High Court grants leave to apply for judicial review the Court may:-

“… (b) where the relief sought is an order of prohibition or certiorari, make an order staying the proceedings, order or decision to which the application relates until the determination of the application for judicial review or until the Court otherwise orders.”
[emphasis added]

Key words are “staying the proceedings”.

56. On the 18th June, 2012, the High Court (Birmingham J.) granted leave to apply by way of application for judicial review for the reliefs sought in paragraph (d) in the statement of grounds.
57. The reliefs sought included inter alia:-

(i) An order of prohibition … restraining the DPP from prosecuting the respondent on criminal charges on foot of charge sheet numbers 12720972, 12720923, and 12720931 currently pending before Trim District Court, unless and until he is afforded legal aid, to include solicitor and counsel, together with a suitably appointed mentor to assist him at trial.
(ii) An order of certiorari … quashing the decision of Judge Mahon refusing the respondent legal aid on the 7th June, 2012.

(iii) An order of certiorari … quashing the decision of Judge McMahon refusing to assign the [respondent] a mentor on the 7th June, 2012, and to provide for same as part of a legal aid certificate.

58. The High Court made a further order on the 25th June, 2012, granting a stay. The terms of the order have been set out previously in this judgment. The stay order was specific. It was stated that the proceedings currently pending before Trim District Court on foot of the identified charge sheet numbers “be hereby stayed pending the determination of this application for Judicial Review.”
59. Thus, the proceedings stayed in this case are specifically identified, and the issue then arises as to the effect on the proceedings of the stay order.

60. Black’s Law Dictionary, Ninth Edition, p. 1548, defines a stay as:-

“1. The postponement or halting of a proceeding, judgment or the like.
2. An order to suspend all or part of a judicial proceeding or a judgment arising from that proceeding.”

Murdoch’s Dictionary of Irish Law, Fifth Edition, p. 1157, defines a stay of proceedings as:-
“The suspension of proceedings by a court eg (a) where the proceedings are vexatious or frivolous, (b) where there is a risk of an unfair trial due to prejudicial pre-trial publicity, or (c) where legal proceedings are instituted contrary to an arbitration agreement; or (d) where no reasonable cause of action is shown; or (e) on acceptance of a lodgement ; or (f) where a preliminary issue of law is to be decided.”
Jowitt’s Dictionary of English Law, Third Edition, p. 2170, defines a stay as:-
“A stay in a claim is a suspension of the claim or part of the proceedings as the court directs. The term is widely used in a number of contexts. […]”
61. It is clear that a stay order is not an order terminating proceedings. It is an order staying, postponing, suspending the proceedings. It is an order maintaining the status quo. Thus, the proceedings being stayed, in this case the proceedings in the District Court, are to be maintained in a holding pattern, the status quo, until the termination of the application for judicial review.
62. It is clear, therefore, that a stay does not have the effect of terminating proceedings. Rather a stay leaves the proceedings in being but prevents the proceedings from progressing in any significant way. To the extent that it might be suggested that it was appropriate that some progress might be made in the proceedings, notwithstanding a stay, then that is a matter to be addressed to the judge granting the stay. An application can be made to that judge to make the stay subject to terms which would permit whatever progress might be considered desirable. In the absence of such terms, a stay will prevent the proceedings from significantly progressing. That does not, however, mean that any orders necessary to allow the proceedings to continue in being, albeit in a “holding pattern”, cannot be made.

Thus the real question is as to whether any order sought to be made is one which is consistent with or contrary to the fact that the proceedings are stayed. Orders which are a necessary part of keeping the proceedings in being are entirely consistent with a stay for they do not progress the proceedings in any material way but simply allow the proceedings to continue in their holding pattern. On the other hand different types of orders which would have the effect of materially progressing the proceedings are contrary to a stay and cannot be made in the absence of a specific provision in the stay order qualifying the terms of the stay in such a way as to permit orders of the type in question to be made.

63. However, the granting of leave to apply for judicial review, and a stay pending the determination of the application for review, do not terminate the underlying proceedings the subject of the judicial review. The underlying proceedings are suspended pending the review.

64. Any other interpretation would have the effect that, on an ex parte application for leave to apply for judicial review where the DPP was not on notice or a party to the application, the prosecution process would be effectively terminated.

65. Consequently, the granting of a stay by the High Court on an application for judicial review postpones or suspends the proceedings relating to the criminal trial, the subject of an application for Judicial Review, but it does not terminate the proceedings, or mean that a District Court Judge could not continue to make orders while the proceedings are suspended, such as to remand an accused in the circumstances, provided that any such orders are required to maintain the proceedings in being and are not contrary to the stay. Thus, the District Court continued to have jurisdiction to make such an order, pending the determination of the application for Judicial Review.

66. Consequently, I would allow the appeal.

Judgment delivered on the 10th of April, 2014, by O’Donnell J.

1 I respectfully agree with the judgment of the Chief Justice that the stay granted by Birmingham J. did not prevent the District Court making an order remanding the applicant on the 28th of June 2012. I also agree that even if the proceedings are technically moot, this is an appropriate case to hear the appeal because of the systemic importance of the effect of a stay order granted in judicial review proceedings. However, in addition to the foregoing, I consider that the appeal is not truly moot in any sense, and wish briefly to set out my reasons for so concluding.

2 The remedy of Article 40.4 is the great remedy available to citizens and all persons with access to the jurisdiction of these courts. Its strength is its simplicity and its speed. It is meant to address – forthwith – the question of the lawfulness of the custody or detention of any individual. The order which the Court makes at the conclusion of the inquiry is either to order the release of the person, or not. The urgency with which the courts are obliged to, and do, treat such applications is itself an illustration of the importance of the Constitution attached to this remedy as a foundation of liberty within the State itself and essential component in the constitutional order created by the Constitution. Liberty, in the full meaning of the word is fundamental to both the exercise and enjoyment of the rights identified in the Constitution and the functioning of the democratic structure created by it. But the fact that such matters must be dealt with speedily by the High Court, and where necessary on appeal by this Court, can also mean that the law can develop in a staccato fashion with each individual case no more than an illustration of the reasons why the remedy was granted or refused in that case. Much of the case law has been gathered, and valuably analysed in Dr Kevin Costello’s impressive work The Law of Habeas Corpus in Ireland (Dublin; Four Courts Press; 2006), but that exercise in scholarship only illustrates the desirability of more comprehensive review by reference to principle and authority.

3 The timeline in this case is relatively simple. The applicant was in custody on other offences but due to be released on the 4th of July 2012. Separately he was charged with road traffic offences in respect of which he was remanded in the District Court from time to time, with consent to his own bail of €300 and an independent surety in the same amount. On the 25th of June 2012 an ex parte application was made to the High Court for judicial review seeking in effect, the provision of legal aid for the defence of the Road Traffic Act proceedings. Birmingham J. granted leave to seek judicial view, and as is normal in such cases, granted the stay on proceedings in the District Court. This was only logical since the applicant’s complaint was that if the trial on the Road Traffic Act offences was to proceed without legal aid it would be a breach of his constitutional rights. The terms of the stay are entirely standard, and are set out in the judgment of the Chief Justice.

4 The 28th of June is the critical day in these proceedings. The Road Traffic Act proceedings were once again before the District Court. It was now however contended on behalf of the applicant that the court could simply make no further order remanding the applicant in custody even with consent to bail because, or so it was contended, the proceedings had been stayed by the High Court. The learned District Court Judge disagreed and made an order remanding the applicant until the 5th of July. On the 4th of July his sentence on the other offences expired and an immediate application was made for an inquiry under Article 40 giving rise to these proceedings. On the 5th of July the matter came before the District Court again which made no further order with the effect that the applicant was released from custody on that day. The urgency had now been removed from the proceedings and the High Court proceedings could proceed at a more appropriate pace. The full inquiry came on for hearing on the 15th of October and the learned High Court judge delivered a judgment on the 19th of that month holding first, that the proceedings were not moot, and second, that the District Court had no jurisdiction to make any order on the 28th of June. However, the court was no longer in a position to make the order contemplated under Article 40.4 directing the release of the applicant, and accordingly made a declaration that the applicant was entitled to have been released from custody on the 4th of July 2012.

5 From that decision, the appellant appeals to this court. It is however contended that the appeal is moot. That is a claim which in these proceedings the court is required to scrutinise with some care.

6 The liberty of the citizen is vital to the constitutional order and something which the courts and every other institution are bound to vindicate without fear or favour but it should be said, that in practical terms the liberty of this citizen could have been achieved without the drama of these proceedings. First, he had been remanded in custody it is true, but with consent to bail in the sum of €300 and an independent surety in the same amount. It was not suggested that securing of this bail posed any insuperable difficulty for him and there was ample time to have any surety approved before the expiry of the sentence so that he would not have to be remanded in custody in these proceedings. Accordingly, the applicant could, with the assistance of his representatives, have secured his own release by the 4th of July and before the swiftest lawyer could have brought proceedings and the most conscientious judge made any order. Second, while the focus of this case has been the validity of the order of the District Court of the 28th of June, the key to that validity lay in the interpretation of the order granted by the High Court on the 25th. If there was real doubt or controversy as to what was meant by that order it could have been addressed with the High Court before the launching of an inquiry under Article 40. There can be little doubt that the High Court did not intend that the granting of a stay should bring the proceedings to an end, but that could have been clarified if thought necessary, by a variation of the stay. Third, any possible mootness affecting these proceedings arose from the fact that the applicant had been released from custody on the 5th of July. If such mootness existed, this frailty affected the High Court proceedings just as much as these proceedings. Once the High Court Judge decided to proceed with the hearing, then as a matter of both justice and common sense, there could be no objection to an appeal from the correctness of that determination. If it were not for the curiosity that it was the appellant who had sought to insist that the case was heard in the High Court, mootness could just as easily have been a ground of appeal as a ground for seeking to resist it. Finally, it may be that a distinction should be made between the effect of release on appeals by applicants and those by respondents. An applicant who has been released may have difficulty in explaining why it is necessary to hear an appeal in proceedings specifically directed to ordering his or her release. However mootness by reason of the fact that the applicant has now been released from custody may be an inappropriate ground to resist a respondent’s appeal under Article 40.4. Because it is considered that neither the High Court nor this Court has power to grant any stay on an order directing the release of a person there would be no way of avoiding mootness. If the release from custody rendered an appeal automatically moot then no appeal would be possible from a decision to release, no matter how erroneous. The decision would moreover remain uncorrected and available as a precedent in future cases, which if they followed the same course would themselves become unappealable on grounds of mootness. That complication does not necessarily arise here, but, in the circumstances of this case, once the hearing was embarked upon in the High Court there was no good reason not to hear the appeal, even if technically moot, and many good reasons to do so.

7 However, it seems to me that the appeal was not moot in any real sense of the word. Mootness is an issue which can arise in Article 40 inquiries when for various reasons the applicant is at liberty. There is, to put it as it lowest, some difficulty about making orders for release or non release under Article 40 of a person who has long since left custody. However here, the fact that the release had occurred before the High Court hearing meant that the court could not make any such order, and instead made a declaration that the applicant was entitled to have been released on the 4th of July. Assuming for the moment that such an order could validly be made under an Article 40 inquiry, that declaration together with a consequential order for the costs of the initial application and for 80% of the costs of the hearing of the inquiry, remains in place. It is a declaration of the legal position between the parties, which is binding upon them. As long as it remains in place, and is in any way capable of affecting the rights and obligations of the parties (and moreover providing a legal basis and justification for the order for costs) I consider that the respondent was entitled to appeal it as of right and the proceedings could not be said to be moot. If however, this is too narrow a view, I also express my agreement with the Chief Justice, that even if the appeal is considered to be moot, it is one that the court should hear and determine.

8 On the substance of the appeal, I also agree that once it was conceded that the High Court stay was not absolute, and did permit the District Court to do some things, it could not be maintained that it was not in a position to make one further remand in custody with consent to bail, which maintained the status quo. This is a conclusion I reach with some relief, since otherwise a High Court judge hearing an ex parte application for judicial review might be slower to grant a stay than might otherwise be the case, or might have to routinely require argument at which the respondent would be present, on the terms of any stay. Such a course may be necessary in cases of any complexity but it would be undesirable to have this additional time and cost incurred in routine cases.

9 Finally, I note that the argument in the High Court and this court proceeded on a shared assumption that if the stay in the High Court was to be interpreted as preventing any order being made in the District Court (and even if that went further than the High Court may have intended), the District Court would lack all jurisdiction to make any order for detention of the accused, so that the order of the District Court would not be a valid return to an Article 40 inquiry. Since that matter was not explored in argument, and is I hope unlikely to arise in practice, I express no view upon it.

 

McKevitt v The Governor of Portlaoise Prison [2014] IEHC 442

JUDGMENT of Mr. Justice Bernard Barton delivered the 1st day of September 2014
1. This is an application brought by the applicant pursuant to Article 40.4.2 of the Constitution and on foot of which he seeks an order of the court directing that he be released from custody, he being incarcerated at present in Portlaoise Prison.

2. The issue of whether the applicant’s continued incarceration is lawful was said by the applicant to be dependant upon the determination by this Court of the question as to whether or not the applicant was entitled to be granted enhanced remission of his sentence by the Minister for Justice having regard to the provisions of Rule 59(2) of the Prison Rules 2007, (hereinafter referred to as the “Rules of 2007”). The respondent, whilst contending that the decision of the Minister was valid, made rationally, and in jurisdiction, also contended that an application under Article 40.4.2 of the constitution was both unwarranted and inappropriate.
Constitutional and Statutory basis of the Minister’s power to grant remission
3. Article 13.6 of the Constitution provides:-

“The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities.”
4. Having regard to this provision of the Constitution, the Oireachtas conferred the power of remission on the Government with power to delegate to the Minister for Justice and Equality by virtue of the provisions of ss. 23 and 23A of the Criminal Justice Act 1951, as amended and more specifically by s. 35 of the Prisons Act 2007, whereby the Minister for Justice and Equality was empowered to make rules for the regulation and good government of prisons, including, inter alia, for the remission of part of a prisoner’s sentence.
5. Section 35(1) and (2) of the Prisons Act 2007, provides:-

(1) The Minister may make rules for the regulation and good government of prisons.
(2) Without prejudice to the generality of subsection (1) and to Part 3, such rules may provide for

(a) the duties and conduct of the Governor and officers of a prison,
(b) the classification of prisoners,

(c) the treatment of prisoners, including their diet, clothing, maintenance, employment, instruction, discipline and correction,

(d) the provision of facilities and services to prisoners, including educational facilities, medical services and services relating to their general moral and physical welfare,

(e) the acts which constitute breaches of prison discipline committed by prisoners while inside a prison or outside it in the custody of a prison officer or prison custody officer,

(f) the remission of portion of a prisoner’s sentence.

(g) the manner of publication of decisions of an appeal tribunal,

(h) the entry to a prison of a member of An Garda Síochana in the performance of his or her functions,

(i) photographing and measuring prisoners and taking finger prints and palm prints from them,

(j) testing prisoners for intoxicants, including alcohol and other drugs.”

6. Rule 59 of the Prison Rules 2007, provides:­
“(1) A prisoner who has been sentenced to

(a) a term of imprisonment exceeding one month, or
(b) terms of imprisonment to be served consecutively, the aggregate of which exceeds one month, shall be eligible, by conduct, to earn a remission of sentence not exceeding one quarter of such term or aggregate.

(2) The Minister may grant such greater remission of sentence in excess of one quarter, but not exceeding one third thereof, where a prisoner has shown further good conduct by engaging an authorised structured activity and the Minister is satisfied that, as a result, the prisoner is less likely to re-offend and will be better able to reintegrate into the community.”
7. As to what constitutes authorised structured activity, Rule 27 of the Prison Rules 2007, provides:-
“(2) Subject to Rule 72 (Authorised structured activity), each prisoner may, while in prison, engage or participate in such structured activity as may be authorised by the Governor (in these Rules referred to as “authorised structured activity”) including work, vocational training, education, or programmes intended to ensure that a prisoner, when released from prison, will be less likely to re-offend or better able to re-integrate into the community.”
8. The exercise of this executive power has the effect of terminating a sentence lawfully imposed by a court. The executive cannot in law determine what sentence should be served by a prisoner. That is the sole function of the courts established under the Constitution. Primacy rests with the sentence imposed by the court and any diminution of that sentence must be in accordance with the statutorily proscribed exception under the jurisdiction to grant remission.
9. It is not the function of the court to substitute its own view for that of the Minister on an application such as that before the court. The power to grant remission is one reserved to the executive.

10. The following facts pertinent to this application and these proceedings are not in dispute.

11. On or about the 6th August, 2003, the applicant was sentenced to a term of 20 years imprisonment for directing an unlawful organisation contrary to s. 6 of the Offences Against the State Act 1998. The sentence was back dated to the 29th March, 2001, being the date when the applicant was first taken into custody.

12. Pursuant to the provisions of Rule 59(2) the applicant qualifies for a quarter remission of his sentence with the effect that his expected date of release is the 26th March, 2016.

13. If the applicant had been granted a full one third remission of his sentence, he would have been due to be released on the 26th July, 2014.

14. Apart from two incidences involving disciplinary action in 2001 and 2004 respectively, the applicant has been of good behaviour while serving his sentence and he currently enjoys what is described as enhanced status.

15. The applicant has spent the entirety of his sentence in what is sometimes referred to as the republican wing or block at Portlaoise Prison and otherwise referred to as the E2 landing where republican prisoners are habitually incarcerated, a situation which has been extant for the best part of half a century.

16. The applicant has described himself as a political hostage and has always maintained his innocence. He has no known addictions nor has he any issues of a psychiatric or psychological nature.

17. The daily routine of prisoners, presently thirteen in number on the E2 landing, involves six of these being rostered each day for work duties which include amongst other things maintenance of the landing, recreation, education, cleaning, library and maintenance of the laundry. The applicant has always participated in these activities and has also taken on responsibilities for the management of food hygiene and safety.

18. In addition the applicant has, while serving his sentence, engaged in a number of academic courses covering art, speech and drama, English, creative writing, digital imaging, web design, photoshop, computer, home economics, French, music and yoga. In some of these areas, he sought and received academic qualifications, including merit awards through FETAC in computing literacy, French and digital imaging. In addition he obtained merit awards from the Leinster School of Communications and the London Guild Hall in spoken English and speaking skills and also studied creative writing with the Open University.

19. As to the applicant’s personal demeanour and relationships with his teachers whilst engaging in these educational activities, the head of the Education Unit in Portlaoise Prison, Mark Kavanagh, described the applicant as dependable, reliable, hardworking, conscientious, honest and courteous.

20. While serving his sentence the applicant has been afforded temporary release on two occasions for two days on each occasion; once in April 2004 and once in January 2012, without, it appears, any issues arising.

21. On the 14th July, 2014, the applicant formally applied to the respondent for one third remission of his sentence pursuant to Rule 59(2) of the 2007 Rules. Following an exchange of correspondence between his solicitor and the Prison Service, which included the provision of further information for consideration by the Minister in connection with his application, the Minister, by a decision made on the 11th August, 2014, refused the application.

22. During the course of the hearing the court was informed that on the same date that the Minister refused the applicants application she promulgated an amendment to the prison rules by S.I. 385/2014 known as the Prison (Amendment) (2) Rules 2014. It was agreed by the parties that these rules had no application to the issues now before the Court as they came into effect on the 15th August, 2014 and therefore post dated the decision by the Minister to refuse the application for enhanced remission of sentence.

23. Detailed written submissions, supplemented by oral submissions at the hearing, where made on behalf of both parties and have been considered by the Court.
The position of the applicant.
24. The position of the applicant simply put, was that having regard to his having been of good behaviour and having successfully completed and participated in authorised structured activities while serving his sentence, he qualified for and ought to have been granted a one third remission of his sentence. By definition it was contended that his participation in those structured activities comprised in the rule presupposed that by participation in such activities the applicant was less likely tore­ offend and be better able to reintegrate in the community upon his release and that the Minister was thereby obliged to have been satisfied that the applicant met the requirements of the rule. Had the Minister acceded to his application and granted him a full one third remission of his sentence, the applicant would have been released from custody on the 26th July, 2014, accordingly, his continued detention in Portlaoise Prison was unlawful.
The position of the respondent
25. It was clear from affidavit of Brian Murphy, Director of Operations of the Irish Prison Service and sworn on behalf of the respondent, that the process of collating information for the purposes of considering the application included all available information pertinent to the applicant’s conduct and engagement with the authorised structured activities whilst serving his sentence as well as the nature of the offence with which he had been convicted, a detailed recommendation of the Prison Service which included the view of An Garda Síochána and all with the expressed objective of enabling the Minister to determine the application and in particular enabling the Minister to form a view as to whether or not she could be satisfied that the applicant was less likely to re-offend and be better able to reintegrate with the community upon his release.

26. It was also clear from this affidavit that amongst the matters considered relevant to the application were the seriousness of the offence with which the applicant had been convicted, his continued assertion of his innocence, his absence of remorse for the criminality of his actions, or any indication of an intention to end his involvement or association with an unlawful organisation, and his failure to engage with the probation service or with the psychology service.

27. While it was acknowledged by the respondent that the intended purpose of the authorised structured activities was to make it less likely that on release the prisoner would re-offend or would be better able to reintegrate with the community it was also asserted that this would depend entirely on the prisoner engaged in the activities and the nexus between those activities and the offending behaviour of the prisoner. Moreover, it was submitted that a careful analysis of the prisoner’s circumstances, conduct, character and engagement in the structured activities, the object of which are designed to address the particular offending behaviour and said by the Prison Service to be a strong indication of a genuine intention to reduce the risk of re-offending, fall to be considered.

28. Each prisoner has to be individually assessed. In exercising her power, the Minister has a discretion to determine whether she is satisfied that the prisoner is as a result of structured activity less likely to re-offend and better integrate with the community. In order to properly consider the application, the Minister must be permitted to have regard to all relevant information if she is to be in a position to assess or ascertain the risk of a person re-offending and whether the effect of participating in authorised structural activities has had the effect of reducing the risk that the prisoner might re-offend. Amongst matters material to this particular prisoner, it was asserted that the failure of the applicant to disassociate himself from an unlawful organisation which he was convicted of directing, maintaining his innocence, and describing himself as a political hostage, were amongst the matters required to be considered by the Minister and that having taken all such matters into consideration, it was contended that she was entitled to come to the decision she did. Moreover, it was said that it would be an absurdity if, having regard to what was involved in such an application, the Minister could not have had regard to all such information as was relevant to that decision.

29. The applicant relied upon two recent decisions of this Court in support of his case and in which Rule 59(2) and Rule 27(2) and (3) fell to be considered. These are Ryan v. The Governor of Midlands Prison [2014] IEHC 338 and Farrell v. The Governor of Portlaoise Prison and Others (Unreported, High Court, 5th August, 2014).

30. Of these decisions, the facts in Farrell, bear a striking resemblance to those in this case. Farrell was also a prisoner on E landing in Portlaoise, he having been convicted of the offence of membership of an unlawful organisation contrary to s. 21 of the Offences Against the State Act 1939, as amended, and sentenced by the Special Criminal Court to a term of five years imprisonment in December, 2011.

31. In that case Hogan J. approved of and followed the judgment of Barrett J. in Ryan as to what it was that the Minister was legitimately entitled to take into account when considering an application for enhanced remission pursuant to Rule 59(2).

32. Having referred to Article 13.6 of the Constitution and the statutory provisions relating to the power to remit sentences and having considered the essential elements of Rules 59(2), Hogan J. held that the only matters which the Minister could legitimately take into account for the purposes of a Rule 59(2) application were those which arose from the rules themselves and in answer to a single question, namely whether she was satisfied by reason only of a prisoner’s participation in authorised structured activities that the prisoner was less likely as a result to re-offend and reintegrate into the community. As the purpose and object of the authorised structured activities are those which are likely to reduce the risk of re-offending, it followed that where a prisoner participated successfully in such activities for the requisite period of time in the manner ordained by Rule 27(3), the Minister would be obliged to conclude that the prisoner was less likely to re-offend and to reintegrate on his release with the result that the enhanced remission provision of Rule 59(2) would be triggered.

33. The power to remit a sentence conferred on the Minister by statute is required by law to be exercised in accordance with rules which had been promulgated by the Minister by virtue of the provisions of Prison Act 2007. That being so a central issue or question which the applicant contended fell to be determined here, having regard to the nature of the application, was whether or not that power had been exercised in a manner compatible with the rule under and by virtue of which the Minister made her decision. In short the contention of the applicant was that the exercise of the executive power in question is confined to and constrained by what is provided for in Rule 59(2) of the 2007 Rules.

34. In Farrell, the applicant had participated successfully in structured activities and by definition given that the rule presupposes that by participation in such activities, that the applicant was less likely to re-offend and to reintegrate, Hogan J. held that the Minister would be obliged to conclude that the applicant was less likely tore-offend, thereby qualifying and entitling him to enhanced remission under Rule 59(2).

35. This rule was also considered by Peart J. in his judgment in Keogh v. Governor of Mountjoy Prison delivered on the same day as the judgment in Farrell ie. the 5th August, 2014. In that case, the court was referred to and had the benefit of the judgment of Barrett J. in the Ryan decision. Peart J. distinguished Ryan on the grounds that the facts were different or at least sufficiently so as to warrant the court in not following the decision in Ryan. In Keogh, the court refused the application, there having been a lack of candour and material non disclosure of relevant facts by the applicant. Whilst not to be taken as stating or holding that in all such cases the appropriate procedure was to bring judicial review proceedings, Peart J. held that in the case before him an Article 40.4.2 application was inappropriate and that had all material facts been made known by the applicant to his solicitor it was likely that the advice which the applicant would have received was that an application under Article 40.4.2 was unlikely to have been successful and that the appropriate and proper course was to make an urgent application to the Court for leave to seek judicial review.

36. In his judgment Peart J. made reference to what he considered to be a number of deficiencies in rule 59 and made a number of recommendations or suggestions as to how the rule might be improved with a view to establishing clarity both in relation to procedures concerning such applications, the criteria to be applied in relation thereto as well as the basis upon which decisions on such applications are made. Such lacuna were also identified, albeit in a different way, in the judgments of Barrett J. and Hogan J. however, it would now seem that the State has moved to address these by virtue of the Prison (amendment) (No.2) Rules of 2014, but which it is agreed have no bearing on this application

37. The essence of the applicant’s case was that, as in Farrell, the undisputed evidence was that the applicant had successfully completed authorised structured activities during his sentence and that as his participation by definition in the rule presupposes that by doing so he was less likely tore-offend and to reintegrate with the community, the Minister was obliged to conclude that the applicant was less likely to re-offend in the sense understood by Rule 59(2) and that accordingly, the Minister was obliged to be satisfied that the applicant had met the necessary requirements of the rule thereby qualifying and entitling him to have the Minister exercise her power in favour of granting his application for one third remission of his sentence.

38. The court was referred to the case of Irish Trust Bank v. Central Bank of Ireland [1976 -77] I.L.R.M. 50, in support of the submission that this Court should follow the decisions in Ryan and Farrell which were on point in relation to the same issue and which arose from the exercise of the same power conferred by Rule 59(2) on the Minister.

39. In reply the respondent referred to a number of other authorities these being The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, Kinehan v. Minister for Justice [2001] 4 IR 454, Murray and Murray v. Ireland [1991] I.L.R.M. 465, The State (Royal) v. Kelly [1974] I.R. 259, Cirpaci v. Governor of Mountjoy Prison [2014] IEHC 76, The State (McDonagh) v. Frawley [1978] 1 I.R. 131, Byrne v. Governor of Castlerea Prison [2007] 3 IR 451 and Callan v. Ireland [2013] IESC 35, as well as the decisions in the Irish Trust Bank, Ryan and Farrell cases.

40. The respondent submitted that there was no basis for impugning the decision of the Minister to refuse to grant the applicant enhanced remission much less any basis for calling into question the lawfulness of his detention. The application had preceded on two false premises firstly that the applicant had an absolute right to enhanced remission and secondly that the Minister was bound to afford the applicant the greatest amount of remission permitted pursuant to the rule.

41. It was further submitted that, as a matter of law, the power to grant remission of sentence being conferred on the Minister and that, subject to the question of the Minister acting mala fides or without any rational basis, the role of the Court was to review by way of judicial review proceedings the procedure by which the Minister came to her decision. As to that it was contended that the decision was reasonable, made within jurisdiction, and based on sound rationale. It was submitted that there were no grounds for contending that the detention of the applicant was unlawful, moreover, it was submitted that save in exceptional cases such as an abuse of power in the rejection of an application for enhanced remission, no application such as the present should be considered under Article 40.4.2 of the constitution. No such evidence or circumstances sufficient to satisfy the “fundamental legal attributes” test enunciated in the judgment of Henchy J. in The State (Royle) v. Kelly (1974) 259 had been established by the applicant.

42. At the conclusion of the hearing in this case it became apparent that the Supreme Court was, as a matter of urgency, going to hear and determine the appeal in the case of Ryan v. The Governor of Midlands Prison. Having regard to the issues before this Court and the reliance which the applicant had placed on the decisions of this Court in Ryan and in Farrell which followed it and on foot of which, having regard to the decision of the Supreme Court in the Irish Trust Bank v. The Central Bank of Ireland case it had been submitted that this Court was required to follow those two decisions on the law there being no legal or evidential circumstances such as would warrant the Court distinguishing and departing from those decisions, I decided to reserve my judgment in this case to abide the decision of the Supreme Court in the Ryan appeal.

43. The Supreme Court delivered an ex tempore judgment on the 22nd August, 2014 and which this Court has now had an opportunity to consider. It is clear from the judgment of the Court, delivered by the Chief Justice, that the same questions or issues which are required to be determined by this Court fell to be considered by the Supreme Court.
Decision
44. As in Ryan there was no challenge by the applicant in this case to the validity of the warrant to the Governor of Portlaoise Prison dated the 7th August, 2003 and on foot of which he is detained.

45. The Supreme Court decided in Ryan that having received certification from the appellant exhibiting a valid warrant of detention that that order was sufficient to establish the validity of the detention, however, as in Ryan, the applicant in this case collaterally attacked his continued detention by arguing that the minister’s decision of the 11th August, 2014 was legally flawed.

46. The question which fell to be considered by the Supreme Court was whether the challenge to the decision of the Minister was within Article 40 of the Constitution. Following and applying the statement of the law as to appropriate procedures and remedies and the applicability or otherwise of Article 40.4.2 of the Constitution in FX v. Clinical Director of Central Mental Hospital (2014) IESC 01, Roche v. Governor of Cloverhill (2014) IESC 53, McDonagh v. Frawley (1978) 1 I.R. 131 at 136 and The State (Royle) v. Kelly (1974) I.R. 259 Denham C.J., delivering the judgment of the Court, enunciated the law in the following terms:

“Thus the general principle of law is that if an order of a court does not show an invalidity on its face, in particular if it is an order in relation to post conviction detention, then the route of the constitutional and immediate remedy of habeas corpus is not appropriate. An appropriate remedy may be an appeal, or an application for leave to seek judicial review. In such circumstances the remedy of Article 40.4.2 arises only if there has been an absence of jurisdiction, a fundamental denial of justice, or a fundamental flaw. ”

47. Whilst the law requires the Courts to enquire immediately into the grounds of any person’s detention, when called upon to do so, the Supreme Court held that this does not translate into a right to have every complaint a person may have examined under what was described as the same extraordinary procedure.

48. On the undisputed facts of this case and having regard to the absence of any challenge to the validity of the detention of the applicant under the committal warrant of the 7th August, 2003 this Court is satisfied that the decision of the Minister of the 11th August, 2014 refusing the application for enhanced remission under Rule 59 (2) is prima facie valid, furthermore, having regard to the nature of the applicants complaint in relation to the decision by the Minister and applying the law as enunciated in Ryan, it is clear that the appropriate procedure by which his complaint may be considered is in or by way of judicial review proceedings and not by way of an application under Article 40.4.2 of the Constitution.

49. Before the delivery of this judgment the Court was advised by Counsel for the applicant that accepting the inevitability that this Court would most likely follow the decision of the Supreme Court in Ryan and that in the event of this Court so doing it was the intention of the applicant to apply for leave to seek judicial review of the decision of the Minister, I will make no further observation, comment or finding in relation to the evidence adduced in this case in relation to the application for and the decision of the Minister to refuse the applicant enhanced remission of sentence under Rule 59 (2) of the 2007 rules, however, the Court will make an order dismissing these proceedings.

 

Claire Knowles v Governor of Limerick Prison

2015 2044 SS

High Court

25 January 2016

unreported
[2016] IEHC 33
Mr. Justice Richard Humphreys

January 25, 2016

In the Matter of Article 40 of the Constitution

JUDGMENT
1. By loan offer dated 21st February, 2006, ICS Building Society agreed to lend moneys to the applicant and a co-owner, secured by a first legal mortgage over her family home in Glanmire, County Cork. The borrowers defaulted on payments and full repayment was demanded by letter dated 27th October, 2009.

2. The Building Society brought proceedings against the borrowers in Cork Circuit Court on 6th October, 2011. At the hearing of those proceedings, the applicant was ordered to surrender possession of her family home by order dated 20th January, 2014. The order for possession was appealed to the High Court. That appeal was dismissed by Kearns P. on 14th July, 2014.

3. On 23rd September, 2014, Whitney Moore Solicitors came on record for the plaintiff building society in the Circuit Court proceedings. The notice of change of solicitor contained an error in the title, and a new notice was later issued with the correct title, but backdated as of the date of the original.

4. On 8th October, 2015, an order was made substituting the Bank of Ireland as a plaintiff in those proceedings.

5. On 16th October, 2015, the bank make an ex parte application to Cork Circuit Court for liberty to issue a motion for attachment and committal against the applicant for failure to comply with the order for possession. That motion came before His Honour Judge McDonagh on 27th October, 2015, who adjourned it to 8th December, 2015.

6. By order made on 8th December, 2015, His Honour Judge Ó Donnabháin directed the attachment and committal of the applicant by reason of her failure to comply with the possession order, until such time as she purged her contempt.

7. On 9th December, 2015, Mr. Ben Gilroy, a litigant in person on behalf of the applicant, applied to Binchy J. for an order under Article 40.4 of the Constitution and under the Habeas Corpus Act 1781 (that short title having been conferred by the Short Titles Act 1962) for an inquiry into the legality of her detention. The application was transferred to Barrett J. who made an order for an inquiry, which was made returnable for the 10th December, 2015, and ultimately was further transferred to me on that date.

8. In the meantime, following the application for attachment and committal, the applicant appears to have had the idea of seeking an enlargement of time to appeal the original possession order for a second time. She brought a motion dated 22nd October, 2015 in this regard, and the order was, surprisingly, granted by the Master on 10th November, 2015. Further apparently inconclusive proceedings in relation to it appear to have taken place in the High Court on 7th December, 2015 when the order was not set aside. I have not been given detailed information as to the basis for the latter development. However it can legitimately be observed as far as the Master’s order is concerned that the procedure of appealing a Circuit Court order to the High Court for a second time, after the final determination by the High Court of the first appeal, is not known to the law. There are truly exceptional circumstances where a final order can be set aside, for example, where a grave breach of natural justice has unwittingly occurred (see O’Neill v. Governor of Castlerea Prison [2004] I.R. 298), but even if such rare and exceptional circumstances arise, such an application must be specially made to the court that made the ultimate order and not by way of a second appeal ab initio. The Master’s order is clearly a nullity. It is an impermissible order in the light of the final order of Kearns P. Even if it were an order made within jurisdiction, which it is not, it provides no basis for the applicant to continue to fail to comply with the possession order.

9. Following the hearing of the present application, I indicated that I would circulate a written judgment setting out my reasons, and this is that judgment. I again wish to take the opportunity to commend the applicant for the succinct and organised manner in which she presented her case before me.

10. In the course of determining the present application I was required to decide a number of preliminary issues which I propose to record in the present judgment.

Can an applicant be represented by a lay person in habeas corpus?
11. The first issue before me was whether Mr. Gilroy could represent the applicant following the return to the order for an inquiry under Article 40.4. On 10th December, 2015, I ruled that he could not, and I now set out formal written reasons for that decision.

12. It is a fundamental principle of the operation of the legal system that, in general, an individual natural person has the right to represent themselves in legal proceedings. A person representing themselves is subject to the same procedural rules that apply to other litigants. See for example Burke v. O’Halloran [2009] 3 I.R. 809 at pp. 818-819.

13. It is possible to envisage circumstances where that right may be subject to limitations, but no such circumstances arise here. For example, a person accused of an offence does not have an unqualified right to directly cross-examine the injured party, and it could be appropriate to require such cross-examination to be carried out through the court itself or a lawyer appointed by it, where a direct cross-examination of the victim by the defendant, especially in a sexual crime or other offence against the person, would be oppressive and would amount to legalised victimisation of the injured party.

14. However, where a person is not representing themselves, it is a fundamental postulate of the legal system that they must be represented by a qualified legal professional, who in turn owes professional duties to the court. This is also true where the entity being represented is a legal rather than a natural person, and therefore by definition cannot appear directly itself (see my decision in Pablo Star Media Ltd. v. E.W. Scripps Co. [2015] IEHC 828).

15. This fundamental principle has been reaffirmed on numerous occasions, including in the habeas corpus context: see for example The State (Burke) v. Lennon [1940] I.R. 136 (where it was said that Article 40 was not to be taken as allowing an applicant to be represented by a third party where he was able to make the application himself), and Application of Woods [1970] I.R. 154, where the Supreme Court specifically and unanimously rejected the argument that another prisoner could, on behalf of the applicant, make substantive submissions following the return to a habeas corpus order. However the Supreme Court in that case did allow the prisoner in question to address it on the issue of his entitlement to represent the applicant, as I did in this case. (See also The State (Egan) v. Central Mental Hospital (Unreported, High Court, Kenny J., 27th January, 1972).

16. The principle has also been reaffirmed in cases such as Battle v. Irish Art Promotions Ltd [1968] I.R. 252 and Re Coffey [2013] IESC 11. At para. 37 of Coffey, Fennelly J. said that the general principle was subject only to “ rare exceptions ” where the general rule would cause “ particular injustice ”. Such rare exceptions include Coffey v. Tara Mines [2008] 1 I.R. 436, where Ó Néill J. allowed a wife to represent a husband, where the latter would otherwise not be able to make his case due to disabilities rendering it impossible to conduct the proceedings. The Legal Aid Board refused to assist and the plaintiff’s wife was unable to obtain a solicitor despite her best efforts. That was truly an exceptional case and furnishes no support for the argument advanced by Mr. Gilroy.

17. Representation by a family member is in a different category in any event as such representation is permitted more generally in the District Court under O. 6, r. 2 of the District Court Rules 1997 in cases of “ infirmity or other unavoidable cause ”, and so does not infringe any fundamental principle of the legal system.

18. My attention has been drawn to orders in a recent habeas corpus application, Corrigan v. Governor of Mountjoy Prison (Court of Appeal, 2015/72 SS, 17th February, 2015) ordering an inquiry on appeal from a decision of Cregan J., and a subsequent order on the return to that inquiry (High Court, (O’Malley J.), 2015/226 SS, 20th February, 2015), in which the orders of the courts concerned refer to Mr. Beades being heard by the court on behalf of the applicant. The order of the Court of Appeal is obviously consistent with the Supreme Court jurisprudence I have referred to in that Mr. Beades was heard only as to the initial application for the inquiry which includes an appeal from a refusal of an inquiry. As regards the indulgence afforded by O’Malley J. of hearing him on the return however, I can only assume, in the light of the Supreme Court jurisprudence on the issue to which I have referred, either that the court concerned considered the particular circumstances to be one of the “ rare exceptions ” envisaged by Re Coffey, for reasons which obviously do not appear on the face of the order, or alternatively heard Mr. Beades on a de bene esse basis without its attention being drawn to the caselaw on this issue. Either way, it is abundantly clear from that caselaw that there is no category of exception for Article 40 applications which would allow lay persons to represent applicants as a matter of generality, or at all, except in exceptional circumstances. O’Shea v. Governor of Mountjoy Prison [2015] IECA 101 is an ex tempore judgment of Ryan P. for the Court of Appeal in which while it was noted that Mr. Beades had made submissions on behalf of the applicant in that case, essentially as a concession, although no caselaw is referred to, the court specifically stated at para. 15 that “ the Court does not want to set a precedent” in this regard. It would appear that it is at least possible that some persons may have misinterpreted limited concessions afforded in particular cases as giving rise to a misconception that there is a general acceptance by the courts that there is no difficulty with the general principle of lay “ representation ” in Article 40 cases, thereby giving rise to unrealistically heightened expectations in that regard in subsequent cases such as the present one. To that extent, it may be that for the courts to afford such an audience in a substantive hearing (as opposed to the initial application for the inquiry) as a concession could be to create (or reinforce) more problems than it might solve, even apart from the fact that such a concession could only arise in exceptional circumstances having regard to the Supreme Court decisions referred to.

19. Mr. Gilroy argued that there were appropriate exceptional circumstances in the present case. He referred to the applicant’s right to equality of arms, fairness and justice, and under Article 6 of the European Convention on Human Rights (and could perhaps more immediately have referred to Article 5(4)). However these considerations could apply to any Article 40 application and do not constitute exceptional circumstances.

20. He also submitted that Ms. Knowles was upset by her incarceration in Limerick Prison, and was in no state to “ defend herself ”. First of all the notion of defending oneself is not relevant to an Article 40 application. The onus is on the State to justify the detention. If it fails to do so, the applicant must be released. However I made clear to the applicant that if she needed time to compose herself, this would be afforded to her, or alternatively if she wished to retain a solicitor, time would be made available to allow her to do this also.

21. Mr. Gilroy also, naturally, relied on Coffey v. Tara Mines, but as I have set out above that was itself an exceptional case and did not lay down a general rule. The general position is clear from a broader survey of the case law. He also relied on other cases where judges have allowed lay persons to represent applicants, and the same position arises there.

22. He suggested that Woods could be distinguished because in that case there was such proximity between two prisoners being in the same institution that there must have been a meeting of minds and thus no particular benefit to the applicant by allowing one prisoner to be represented by another. Imaginative though this argument is, I do not think that Woods can be distinguished on that basis. It lays down a general rule in relation to the impermissibility of representation by lay persons in Article 40 applications, and is not limited to cases involving prisoners.

23. Mr. Gilroy also argued that this was his application, in the sense that he made the ex parte application to Barrett J. He suggested that Ms. Knowles was not in a position to prosecute it for that reason. This is a misunderstanding of the nature of an Article 40 inquiry. The application must be made in the name of the detained person. If that person is of full age and capacity, it can only be progressed with their consent. This is not Mr. Gilroy’s application.

24. Having regard to the foregoing, the general rule applies, and I decided that there were no exceptional circumstances to depart from it. Mr. Gilroy (and Mr. Jerry Beades who took up the cudgels when the former was unavailable) was not permitted to address me on the substance of the Article 40 inquiry. However I did allow the applicant the opportunity to take time to seek legal advice, which she did not avail of, and I also permitted Mr. Gilroy (and in his absence Mr. Beades) to act as a McKenzie friend.

25. I should emphasise that, while it would not, in the absence of exceptional circumstances, be appropriate for a lay person to represent an applicant under Article 40 at the substantive hearing, this is not intended to take away from the possibility that a lay person could make the ex parte application on behalf of an unrepresented person in custody. However, I emphasise that to do so, the person moving the ex parte application must normally have the advance consent of the detained person, or failing that very substantial reasons for believing that they will consent to the application being made. In the present case, Mr. Gilroy indicated that he had previously assisted the applicant, and indeed on the return to the inquiry, Ms. Knowles expressly confirmed that she agreed with the application having been made and adopted it. Normally, however, the third party applicant must be expected to have secured the prior consent of the detainee either personally or through someone in direct contact with him or her.

26. It is not the case that any person can simply meddle in the affairs of another, who happens to be in custody. In the absence of either consent or substantial objective reasons demonstrating that is likely that the applicant will consent to the application being made, an ex parte application under Article 40.4 by an unrelated party should be refused.

Is the State, or the other party concerned, responsible for justifying committal for civil contempt?
27. Mr. Remy Farrell, S.C., who addressed me (as did Ms. Gráinne O’Neill, B.L.) on behalf of the respondent governor, submitted to me that in a case such as this where the imprisonment arises by virtue of an application for attachment and committal by a bank, it was not appropriate to require the State to defend the imprisonment. He submitted that either the application should be dismissed or the Bank of Ireland joined as a notice party for the purposes of justifying the detention.

28. I gave a ruling on 10th December, 2015, rejecting that argument and I now set out the reasons for it.

29. In my judgment in Grant v. Governor of Cloverhill Prison [2015] IEHC 768, I discussed the relevant caselaw and set out, at para. 99(vi), the principle that the person detaining the applicant is responsible for justifying the legality of the detention. In that judgment I dealt with the argument that other parties should be joined as notice parties and stated for reasons set out in that judgment that the decision of the Supreme Court in McSorley v. Governor of Mountjoy Prison [1997] 2 I.R. 258 is not a current statement of the law in this respect. Mr. Farrell relied heavily on the decision in Ryan v. Governor of Midlands Prison [2014] IESC 54, but that decision is also addressed in Grant and, in any event, does not provide a basis for the submission he makes.

30. He submits that the Governor has no relationship, legal or otherwise, with the Bank of Ireland. This is irrelevant. The detention of the applicant is attributable to the State. She is detained in a State facility under the control of the respondent, on foot of an order made by a judge of the Circuit Court. As it happens, Bank of Ireland, the applicant for that order, is also a statutory body, although that makes no difference to the liability of the State to justify the detention.

31. Mr. Farrell submitted that the governor is not in a position to compel witnesses or the production of documentation and that the underlying order could have been made at a geographically remote location from the prison. These are unsustainable objections. The court is required to provide fair procedures to respondents as well as to applicants and is available to lend its aid in compelling the attendance of necessary witnesses or the production of appropriate documentation. The court should not, on the return to an Article 40 application, railroad a respondent into an immediate justification of the detention if the information required to justify the detention is not reasonably to hand. In the present case, to come to a conclusion about the alleged infirmity before the Circuit Court it was necessary to have either evidence from someone who was there or access to the digital audio recording (DAR) or both. Therefore, in this case, I directed that the DAR be made available to the respondent. In a case such as this, where it is not possible or appropriate for the respondent to advance an immediate full justification for the detention without access to particular persons or documents, it would not be in the interests of justice to ramrod the inquiry to a conclusion in the absence of a reasonable opportunity for the respondent to have access to that material, subject of course to keeping in mind the overall urgency of an Article 40 application and in addition bearing in mind the possibility that in a particular case, an infirmity might appear to be so glaring as to require an immediate final order by the court on the return date.

32. In Grant, I took the view that the person detaining the applicant is the appropriate respondent to an Article 40 application and is responsible for justifying the legality of the detention, including any steps that have occurred prior to the current detention and upon which its legality depends. It is not necessary or appropriate to put on notice any other party, including an emanation of the State that made any underlying decision (para. 99(vi), citing the approach taken e.g., in McDonagh v. Governor of Cloverhill Prison [2005] 1 I.R. 394).

33. The governor of a prison is therefore required to go behind the face of the order under which a person is detained and justify the substantive legality of that order. Mr. Farrell submits that the Governor does not want to do that and that this is “ proxy litigation ” and “ a challenge to civil proceedings ”. However, that is what Article 40 requires. The person detaining a citizen is obliged to go behind the semantic surface of any order or warrant, and provide, if necessary, a substantive justification for the detention and a substantive answer to any alleged infirmity in the process leading to the order or warrant concerned.

34. The very wording of Article 40.4.2° itself makes it clear that it is the person in whose custody the applicant is that must be the respondent to a habeas corpus application.

35. The fact that it is a bank that may be in a position to provide information to defend the legality of the detention is absolutely not a basis for refusal of relief under Article 40, joining the bank as a notice party, or conversion of the proceedings into some other type of litigation, which is also impermissible.

36. The notion that the bank should be joined as a notice party to justify the detention would mean that the obligation to defend the legality of the detention of the citizen by the State would be shifted onto the shoulders of a private party, again leaving aside the status of this particular bank as a statutory entity under the Bank of Ireland Act 1781 (interestingly the very next statute after the Habeas Corpus Act 1781 on which a short title is conferred by the Short Titles Act 1962). I completely reject the notion that this is an appropriate conception of the proper implementation of Article 40.4, the Habeas Corpus Act 1781, or indeed Article 5(4) of the ECHR.

37. It is true that in a judicial review application, it would be for the other party to the underlying litigation and not the State, to stand over an order of a judge which was challenged under O. 84 (see my decision in Hall v. Stepstone Mortgage Funding Limited [2015] IEHC 737). But this is not a judicial review application, nor is there any analogy with judicial review. Article 40 carries its own specific procedural features, one of which is that the State must take on the burden of justifying the detention, through the medium of the individual State official who has custody of the applicant. It is not necessary or appropriate to join either other State agencies or private parties that may be involved in underlying litigation in order to enable this to be done. The court can, and should, ensure that fair procedures are observed by requiring any necessary witnesses and documents to be put before the court, including by directing the production of the DAR and by affording time in this regard where appropriate. The application to join the Bank of Ireland as a notice party was therefore refused, as was the application to dismiss the proceedings at that stage.

Bail
38. The court has an inherent jurisdiction to admit an applicant to bail in the Article 40 inquiry itself. Any such bail order is normally only intended to last until the Article 40 application is determined.

39. As referred to in Grant, the court does not have jurisdiction to issue a stay on release. However, in the case of a person incapable of protecting themselves, the court may structure the final order in such a way as to control the release for that person’s protection (Grant para. 99(v), citing FX v. Clinical Director of the Central Mental Hospital [2014] IESC 01 and N. v. H.S.E. [2006] 4 I.R. 374).

40. However the court is not precluded from putting a stay on the order for the re-arrest of the applicant who has been granted bail, in the event of refusal of relief under Article 40.4, if such a stay is in the interests of justice.

41. It is also important to note that the granting of bail within the context of an Article 40 inquiry does not render that inquiry moot, simply because the person is then no longer in detention. Such an interpretation of Article 40 would be absurd and self-defeating, because not only would the bail order subvert the inquiry itself, but also by doing so it would immediately nullify itself by ending that inquiry and thus ending the bail.

42. Ms. O’Neill expressly accepted this proposition on behalf of the State.

43. In the present case, I granted the applicant bail on her own bond of €100, on a number of conditions including the following:-

(i) Not to come within 100 yards of her former address at The Pines, Castle Jane Woods, Glanmire, Co. Cork.
(ii) To attend the resumed inquiry on 14th December, 2015, and from time to time thereafter.
(iii) To surrender to Limerick Prison at a time to be specified by the court, if unsuccessful in her Article 40 application.
(iv) To reside at a specified address at Church Hill, Glanmire, Co. Cork, and to give notice to Glanmire Garda Station within 24 hours of any change of address.
Can the court require a respondent to put further material on affidavit in the course of the inquiry?
44. As can be seen from the chronology set out in this judgment, a number of orders above and beyond the committal warrant exhibited in the State’s certificate justifying the detention are of relevance to the legality of this detention. In the course of the inquiry, I requested the respondent to make arrangements to put the relevant orders on affidavit. Mr. Farrell initially objected to this course on the grounds that Article 40.4 itself provided a procedure for justifying a detention, namely a certificate, and the court should not, as he put it, “ create a new procedure not envisaged by the Constitution ”, namely the supplementing of that certificate by an affidavit.

45. I think that this objection takes altogether too narrow a view of the process, for three reasons;-

(i) It is already established that a respondent can supplement the documentation originally furnished by either supplying further information or substituting a correct order for an incorrect one (see authorities discussed in Grant para. 100(v) citing O’Farrell v. Governor of Portlaoise Prison [2014] IEHC 416 (Hogan J.), Moore v. Governor of Wheatfield Prison [2015] IEHC 147 (Kearns P.), O’Neill v. Governor of Wheatfield Prison [2015] IEHC 168 (Kearns P.), Miller v. Governor of Midlands Prison [2014] IEHC 176 (Baker J.), Joyce v. Governor of Dóchas Centre [2012] 2 I.R. 666 (Hogan J.)). For the court to request or even require such further documentation to be put formally before it is consistent with the approach taken in this caselaw.
(ii) Furthermore, the Article 40 process remains an inquiry , and the court retains an entitlement to direct that certain matters be formally put in evidence.
(iii) Finally, ensuring that documents handed to the court are also formally proved, if needs be by way of affidavit, facilitates further examination of the issues should that be required in any other forum and removes the potential for procedural confusion as to what was or was not properly before the court of first instance.
46. For these reasons, I requested Mr. Farrell to reconsider his objection to putting in such an affidavit, which he then very sensibly agreed to do. I have now had the benefit of a detailed affidavit in this regard sworn by Mr. Brendan Moriarty, solicitor, which exhibits the papers in relation to the proceedings before the Circuit Court.

47. I now turn to the specific legal grounds of challenge raised by the applicant in this case.

Alleged failure to afford the applicant the chance to seek legal representation
48. The applicant complains that she was not afforded the opportunity to obtain legal representation. However this complaint must be judged in context, in particular having regard to the following:

(i) At no stage during the long course of the possession proceedings does she seem to have been formally represented.
(ii) The applicant was on notice of an application for attachment and committal since late October, 2015.
(iii) She was therefore aware, since that date, long before the impugned order of 8th December, 2015, that her liberty was at stake.
(iv) At no stage prior to 8th December, 2015 did she seek to be represented in relation to the committal motion.
(v) She was strongly advised to get legal advice by the learned Circuit Court Judge.
(vi) The learned judge also afforded her numerous other opportunities to consult solicitors or have the matter adjourned on an undertaking to comply with the court’s order.
(vii) At no stage subsequent to the events of 8th December, 2015 did she seek legal representation.
(viii) In the course of the inquiry, I offered the opportunity of an adjournment to seek legal advice, which was not taken up (which omission, I hasten to add, was perfectly within her rights).
49. Despite some desultory interactions with solicitors in court on the day, her interventions in relation to this issue on 8th December, 2015, as referred to in the transcript, are somewhat elliptical and do not amount to a direct request for an adjournment to seek legal advice. The references of particular note are:

(i) Firstly that she asked whether legal aid would be available if she sought legal advice.
(ii) Secondly there is a request for an adjournment, without a specific reason being given, still less that the reason was to get legal representation.
(iii) Furthermore, in the afternoon, she expressly told the learned Circuit Court Judge that she was not taking up his offer made that morning, which must be construed as a reference to the totality of the suggestions and advice made by the learned judge, including that she obtain a solicitor.
50. Having regard to the totality of the evidence, I draw the inference that the applicant never formed a definite intention to seek to be legally represented.

51. Furthermore, she was already on notice of the risk to her liberty. A person is not entitled to indefinite and repeated warnings as to their liability to imprisonment. The very nature of the motion for attachment and committal speaks for itself. Clearly, Ms. Knowles did not see fit to meet that application appropriately since late October either by way of an undertaking, by making submissions herself on legally recognised grounds as to why she should not be committed, or by obtaining legal representation.

52. The only reasonable interpretation of the applicant’s manner of dealing with the application was that she was prepared to deal with it herself, without legal representation: see The State (Sharkey) v. District Justice McArdle (Unreported, Supreme Court, Henchy J., 4th June, 1981) at p. 7.

53. I note in this context that the terms of the Legal Aid Custody Issues Scheme do not appear to cover applications for attachment and committal. Leaving aside the question of whether such legal aid is a constitutional or ECHR requirement, it would seem to me that it would be desirable even as a practical matter to expand the scheme to facilitate the legal representation of persons facing committal in any court. The availability of the scheme might do much to facilitate the making available of representation and to avoid problems such as occurred in this case in future.

54. The learned Circuit Court Judge, it would seem partly as a result of the applicant’s own submissions, was minded to make it a condition of any adjournment that the applicant agreed to vacate the property. This “condition” (if such it was) being attached to any adjournment to seek legal advice must be read in context; the context being that the applicant had not put forward any sustainable basis why she should not be committed. While I appreciate the effort she made to ventilate certain issues of concern to her, these did not constitute legal grounds to challenge the possession order at this stage. In another case it might be inappropriate to seek to attach conditions (relative to the substantive defence of the proceedings) to any adjournment to obtain legal advice. In the present case the point is academic because I do not consider that the applicant had any real intention to seek legal representation, was already on notice of the risk of imprisonment, and failed to put forward any stateable reason why she should not be committed.

Allegation that applicant was interrupted in making a submission
55. The applicant alleges that she was interrupted in making a submission on the afternoon of 8th December, 2015. The only interruption recorded on the DAR is at the very end of the hearing after the order was made. It is not evident that there was any other interruption. Furthermore there is no protest from Ms. Knowles that she had been interrupted in making any submission, prior to the making of the order for attachment and committal. In any event, the submission that Ms. Knowles was attempting to make appeared to amount to an allegation that the original possession order, the appeal against which was dismissed by Kearns P., was void. This is an untenable and irrelevant argument in the context of attachment and committal proceedings of this nature, given the fact that not only was the order not challenged on judicial review but it was unsuccessfully appealed to a higher court. An interruption of a manifestly irrelevant submission does not give rise to grounds to vitiate the lawfulness of the decision ultimately made. While in the criminal context, a defendant is entitled, “ however laughable his defence ”, to have it fairly presented to the jury (R. v. Marr (1989) 90 Cr. App. R. 154 at p. 156 per Lord Lane C.J.), there is not an unlimited right to make submissions without interruption to a judge sitting alone, and certainly not in a civil case (see Talbot v. Hermitage Golf Club [2014] IESC 57: “ Courts are entitled, and indeed are required, to foster their resources ” per Charleton J. at para. 47). An application for attachment and committal for coercive rather than punitive purposes, arising from civil contempt, remains a civil matter for these purposes. Having said that, the requirement that justice be seen to be done must be vindicated, not merely that it actually be done, but in the present case I conclude that this requirement was not infringed.

Errors in the documentation
56. The applicant pointed to a number of clerical errors in the Circuit Court paperwork, including the “backdated” notice of change of solicitors, which I would agree was incorrectly backdated (in that the amended notice should have been dated as of the date of the amendment rather than of the original) and the error in the heading to the committal warrant in this case (referring to the incorrect name of the plaintiff in the possession proceedings). Following the latter error being brought to the respondent’s attention, a new committal warrant was obtained and included in the State’s certificate dated 10th December, 2015. Of course, it was the original, incorrectly titled, warrant that was actually executed at the time the applicant was lodged in the respondent’s prison. The endorsement appears on the back of that incorrect warrant.

57. The error relating to the notice of change of solicitors does not go to jurisdiction. The error in the heading of the committal warrant is in principle capable of constituting a ground for an application for release under Article 40. However the practice of allowing the papers justifying the detention to be supplemented or corrected has been approved in numerous cases as referred to above. Having regard to the fact that the error has been corrected, and indeed already stood corrected at the time of the governor’s certificate, release under Article 40.4 is not appropriate in this case (see Grant, para. 100(i)).

Conclusion
58. As discussed in Grant, caselaw clearly establishes a specific threshold to be overcome in an Article 40 application, particularly one arising from an order made by a court. Any error on the face of the record must be jurisdictional or must be such that release is a proportionate response, and any infirmity not appearing on the face of the record must be an absence of jurisdiction or a fundamental flaw. In the present case, the only relevant error on the face of the record was corrected prior to the governor’s certificate (thanks, it must be said, to an intervention on behalf of the bank, by Mr. Brendan Moriarty, solicitor with Whitney Moore Solicitors, who learned of the error from Mr. Gilroy’s application for an inquiry and immediately put matters in train whereby the problem was enabled to be corrected by the time of the governor’s certificate). As regards matters not on the face of the record, I am of the view that the learned Circuit Court Judge did not fall into error in the manner in which he handled the application to attach and commit, but if I am wrong about that, it seems to me that given the particular approach taken to that application by this particular applicant, any such error does not reach the level of fundamental flaw that is the threshold for release under Article 40 in these circumstances.

59. I am therefore obliged to find that the applicant is being detained in accordance with law in the sense in which that expression is used in Article 40.4.2° of the Constitution, and I therefore declined to order her release. I directed nonetheless that her bail continue until 7pm on 16th December, 2015, in order to permit her to make an application to Cork Circuit Court to purge her contempt of the possession order. The reason I specified that time was to allow her until 4 pm to purge her contempt in Cork Circuit Court, failing which she would have 3 hours of travel time in order to be able to present herself to Limerick Prison by 7 pm. There is to be no order as to costs in the circumstances, particularly having regard to the fact that the applicant, although unsuccessful, was correct in identifying errors in the paperwork to which I have referred.

In the Matter of an Application by Cornelis Zwann and Others

1980 No. 320

Supreme Court

23 July 1981

[1981] I.L.R.M. 333
(O’Higgins CJ, Griffin and Kenny JJ)

O’HIGGINS CJ

delivered his judgment (Kenny J concurring) on 23 July 1981 saying: This is an appeal brought by the Attorney General in which he calls into question the making by Barrington J on 9 December 1980 of absolute orders of certiorari and of habeas corpus relating to the detention at the Port of Killybegs of the fishery trawler ‘Jan Maria’ and its master and crew. Both the orders of certiorari and of habeas corpus were contained in an order of the High Court dated 9 December 1980. The relevant facts appear to be as follows.

On 8 December 1980 the L E Aoife, under its commander, Commander J Deasy, a sea fisheries protection officer, arrested the ‘Jan Maria’ in Donegal Bay within territorial waters, on suspicion of fishing in contravention of the Fisheries (Consolidation) Act, 1959. Following arrest and boarding, the ‘Jan Maria’ was brought to the Port of Killybegs where it was given in charge to Garda Daniel McKeever, another sea fisheries protection officer, and its master and crew were detained. On the same day Garda McKeever applied, pursuant to the provisions of s. 233a of the Fisheries (Consolidation) Act (inserted by s. 12 of the Fisheries (Amendment) Act, 1978) for an order authorising further detention for a period of 48 hours of the boat and its crew. It is necessary to set out the provisions of this section which are as follows:

233A. Where a sea fisheries protection officer has, in the exercise of the powers conferred on him by s. 233, detained a boat and the persons on board the boat at a port, the officer shall (unless he is proceeding under s. 234), as soon as may be, apply to a District Justice or, where no District Justice is immediately available, a Peace Commissioner, for an order authorising the continued detention of the boat and those persons and the District Justice or Peace Commissioner may grant an order authorising such detention for a period of 48 hours if he is satisfied that a contravention of a provision of Chapter II or III or Part XIII of the Principal Act by a person on board the boat is suspected by the sea fisheries protection officer; upon the expiration of the period of 48 hours —

(a) the boat shall be released unless an order providing for its further detention has been made under s. 234 before the expiration of the said period of 48 hours, and

(b) each person on board the boat shall be released unless an order providing for his further detention has been made under the said section before the expiration of the said period.

As no District Justice was immediately available the application for the 48 hour order was made to Mr James O’Callaghan, a Peace Commissioner. Mr O’Callaghan having heard evidence as to the arrest of the ‘Jan Maria’ and the reasons for it, decided to grant the order sought. He then filled in certain blank spaces in a form supplied to him and signed the completed form as his order. The order so signed and completed reads as follows:

District Court Area of Killybegs — District Number 1 Order
Complainant: The Attorney General.

Defendant: Cornelis Zwann.

On 8 December 1980, at Killybegs in the said District before me James O’Callaghan, Peace Commissioner, for the time being assigned to the County of Donegal an application was made pursuant to s. 233(a) of the Fisheries (Consolidation) Act, 1978, for an order the Sea Fishing Boat Jan Maria which is a Foreign Sea Fishing Boat of which the defendant is the master, and all persons on board be detained at the Port of Killybegs by the sea fishery protection officer Garda Daniel McKeever and his assistants for a period of 48 hours from the time of the making of the said order, the said Garda Daniel McKeever having in the exercise of the powers conferred on him under s. 233 of the Fisheries (Consolidation) Act, 1959, as amended by s.11 of the Fisheries (Amendment) Act, 1978, detained the said Jan Maria and all persons on board at the Port of Killybegs, in the County of Donegal, and the said Garda Daniel McKeever being satisfied that a contravention of the provisions of Chapters II and or III of Part XIII of the Fisheries (Consolidation) Act, 1959, by a person on board the said boat is suspect.

And I do Order that the said Foreign Sea Fishing Boat Jan Maria of which the said Cornelis Zwann is the master, and all persons on board be detained at the Port of Killybegs by the sea fisheries protection officer Garda Daniel McKeever and his assistants, pursuant to s. 233 (a) of the Fisheries (Consolidation) Act, 1959 as inserted by s.12 of the Fisheries (Amendment) Act, 1978, for a period of 48 hours from 4.35 p.m. on 8 December 1980.

Signed: James O’Callaghan

(PEACE COMMISSIONER)

Dated this 8th day of December, 1980.

On 9 December 1980 an application was made in the High Court on behalf of the master and crew of the ‘Jan Maria’, to Barrington J for a conditional order of certiorari directed to the Peace Commissioner in relation to this order and for a conditional order of habeas corpus in relation to the detention of the master and crew. Other relief was also sought. The application was made on various grounds set out in the affidavit of Mr Patrick A. Dorrian, Solicitor, none of which in the events which have transpited, need now be considered. In the course of the hearing of the application ex parte, the Peace Commissioner’s order of the previous day was produced to the court. Mr McEntee who moved the application on behalf of the prosecutors, then submitted that it was a precondition to the exercise of the jurisdiction of the Peace Commissioner under the secton that he should be satisfied that a contravention of the relevant provisions of the Fisheries (Consolidation) Act was suspected by the sea fisheries protection officer. The order, he submitted, was bad on its face in that it recited that the sea fisheries protection officer and not the Peace Commissioner was satisfied that such a contravention was suspected. Barrington J accepted this submission as being correct and was of the view that the order made was bad on its face and in express conflict with the wording of the section. Being of this view he decided, pursuant to the provisions of Order 84, r. 9 of the Rules of the Superior Courts, to grant an absolute order of certiorari in the first instance quashing the order made by the Peace Commissioner on 9 December 1981. Mr McEntee then submitted as the Peace Commissioner’s order under which the prosecutors were being detained had been quashed an absolute order of habeas corpus should also issue. Barrington J again agreed with this submission and made an absolute order of habeas corpus pursuant to the provisions of Order 84, r. 2 of the Rules of the Superior Courts. It appears from his Report to this Court that the learned High Court judge in making this absolute order of habeas corpus intended to do so pursuant to the provisions of the Habeas Corpus (Ireland) Act. Unfortunately the written order expressed the order of habeas corpus as having issued pursuant to the provisions of Article 40 of the Constitution.

Following the making of these absolute orders of certiorari and habeas corpus there was some delay and confusion with regard to the communication of the fact to the authorities in Donegal. The result was that proceedings continued in the District Court under the Fisheries (Consolidation) Acts against the prosecutors. This necessitated a further application before Barrington J on 10 December for an order under the provisions of Article 40 of the Constitution directed against Garda Daniel McKeever to produce the bodies of the prosecutors before the High Court. This order was granted, returnable for the following day. In the meantime, however, the prosecutors were in fact released and the ‘Jan Maria’ with its master and crew left Killybegs. The order made under Article 40 was accordingly discharged but the costs of the application were allowed to the prosecutors.

As indicated at the outset of this judgment this appeal relates to the order made by Barrington J on 9 December and questions whether absolute orders of certiorari and habeas corpus should have been made by him on the ex parte application of the prosecutors. It is, of course, clear that the success of this appeal can now have little, if any, practical effect so far as the prosecutors or the proceedings initiated against them are concerned. Once habeas corpus issued the prosecutors left our shores and are most unlikely ever to facilitate the resumption of proceedings against them by returning to the jurisdiction of our courts. Let me say at once that I do not consider this to be any bar or obstacle to the prosecution of this appeal. It is, of course, true that this Court will not entertain questions which are purely hypothetical or academic and will not hear complaints made by persons who lack a real interest or locus standi in the question raised. This, however, is not such a case. Here the matter raised on appeal is of real concern to the Attorney General and to those charged with a duty of initiating prosecutions under the Fisheries (Consolidation) Acts. It is of no significance that the success of the appeal can now have no practical effect. If this Court on appeal is satisfied for any reason that the orders in question ought not to have been made then these orders must be set aside. If the court declined to do so merely because the orders had been acted upon and practical difficulties were thereby created, it would be declining to exercise its proper appellate jurisdiction. This view has, I think, been implicit in many previous decisions of this Court (see in particular State (Brown) v Feran [1967] IR 147 at 169; State (Dillon) v O’Kelly [1970] IR 174).

I therefore turn to a consideration of this appeal. It is apparent that the learned trial judge made the absolute order of habeas corpus because he had already granted an absolute order of certiorari quashing the detention order made by the Peace Commissioner. Had he not made this order of certiorari no question of habeas corpus could have arisen. It seems appropriate therefore in the first instance to consider whether this order of certiorari should have been made.

Barrington J in making absolute the order of certiorari in the first instance did so in exercise of the provisions of Order 84, rule 9 of the Rules of the Superior Courts. This he did because he concluded that the detention order was bad on its face and as he stated in his report to this Court ‘in express conflict with the wording of the section s. 233a of the Fisheries (Consolidation) Act). Mr O’Flaherty who has moved this appeal on behalf of the Attorney General, has submitted as a general proposition, that the circumstances in which this rule should be operated must be extremely rare and infrequent. He further submitted that the facts and circumstances surrounding this case did not justify the operation of the powers given by the order in question. In the first place he contends that it is by no means clear that certiorari lay in relation to the making of this particular order, which was administrative or ministerial in nature and which amounted merely to a holding order prior to a decision as to whether a prosecution should be initiated or not. Secondly, he submitted that, even if the order were one made judicially it was by no means clear that it was bad on its face. The insertion of the wrong name in a blank space in the preparatory recitals to the order did not of itself make the order bad on its face if it otherwise showed jurisdiction, as this order did. Finally, he contended that certiorari is a discretionary remedy and that the exercise of a discretion necessarily requires an examination and a consideration of different points of view. To make an absolute order without giving any opportunity to the Attorney Genreal to be heard was a denial of justice to the authorities concerned and a disregard of the discretion which should be exercised by a judge considering an application for certiorari. In this respect he relied on R (O’Neill) v Tyrone JJ [1917] 2 IR 96 and argued that even if the order were judicial and also bad on its face a court might well conclude that no injustice was thereby caused and might in its discretion refuse certiorari on a consideration of two points of view.

I have come to the conclusion that the general proposition put forward by Mr O’Flaherty is correct. In my view the circumstances in which an order of certiorari should be made absolute in the first instance must necessarily be extremely rare. The making of such an order on an ex parte application necessarily involves a decision to exclude audience to anyone concerned to uphold the order sought to be quashed. Since the Supreior Court Rules provide for the making of such an order I am prepared to assume that circumstances have arisen in the past which led to such a rule being regarded as desirable. The rule may be designed to deal with cases of extreme urgency where an order of a judicial nature directly affecting the legal interests of an individual has been made which is clearly and manifestly in excess of jurisdiction. There may be other circumstances also which would equally justify the exercise of this unusual power. I am convicted, however, that its exercise can only be justified in circumstances when it is impossible to conceive any reason or argument for not so doing. In this case I am of the view that the power ought not to have been exercised. It is not necessary to express any opinion on the submissions made by Mr O’Flaherty. It is sufficient to say that each is tenable and worthy of argument. For this reason alone an absolute order of certiorari ought not to have been made. I would accordingly allow the appeal in respect of the making of this order and discharge the same.

The absolute order of habeas corpus was made by Barrington J as a consequence of the quashing of the detention order made by the Peace Commissioner. Barrington J accepted the submission made on behalf of the prosecutors that as the detention order had been quashed they were entitled forthwith to their freedom and that accordingly an absolute order of habeas corpus should be made in the first instance. Since in my view, Barrington J was in error in making the absolute order of certiorari the basis for a similar order of habeas corpus disappears. It follows that in my view this order also should be discharged.

I feel, however, that some further observations are necessary. The order of 9 December 1980 which is the subject of this appeal incorporates both the absolute order of Certiorari and the absolute order of habeas corpus. As already indicated, the order of habeas corpus is recited as having been given in accordance with Article 40 of the Constitution. This, of course, could not be so since it is implicit in Article 40, s.4, sub-s. 2 that before such an order can be made an opportunity must be afforded to the detaining person to justify such detention. As the order of habeas corpus was made absolute in the first instance pursuant to the provisions of O.84, r. 2, without affording any opportunity to the Attorney General or the authorities in Donegal to justify the detention it is quite clear that it could not have been and was not intended to be made pursuant to Article 40 of the Constitution. This, Barrington J has made quite clear in his report to this Court. It must be concluded, however, that he intended in making an absolute order of habeas corpus to avail of the provisions of the Habeas Corpus (Ireland) Act. Whether this Act is part of the law which was carried over by Article 50 of the Constitution has not been argued on this appeal. At first sight and to the extent that its provisions permit, the granting of an absolute order of habeas corpus without an opportunity for justifying the detention complained of it would appear difficult to reconcile its provisions with the provisions of Article 40, s. 4, sub-s. 2 of the Constitution. In my view, the same observations apply to o.84, r. 8 of the Rules of the Superior Courts.

In the result, in my view, both orders made by Barrington J on 9 December 1980 and incorporated in the order of that date should be discharged.

GRIFFIN J

(Kenny J concurring): I agree. I wish to add some comments.

Pursuant to the provisions of o.84, r.9 of the Rules of the Superior Courts 1962, the learned trial judge granted an absolute order of certiorari in the first instance in this case. The invariable practice for obtaining orders of certiorari under O.84 is, and has been since the Rules came into force, by way of motion ex parte for a conditional order, which is made by a judge of the High Court. When the conditional order is made, it is then duly served, together with the copy of the grounding affidavit, on the person named as respondent. The latter may then show cause in which case an application must be made to the court by the prosecutor for an order making absolute the conditional order. Counsel for the Attorney General was unable to refer the court to any instance in which an absolute order was made in the first instance under O.84, r.9, and although such orders may possibly have been made, I have been unable to trace any case in which this was done. There is no corresponding provision to O.84, r.9, in the Rules of the Supreme Court (Ireland), 1905, or in the Rules of the High Court and Supreme Court, 1926, save in the case of an application for a writ of certiorari to quash an indictment under O.84, r.8 of the 1905 Rules.

The effect of making an order of certiorari absolute in the first instance is to prevent the person against whom the order is made from defending the order. In the present case, the Attorney General was given no opportunity of contending in favour of the validity of the order made by the Peace Commissioner. In my view, natural justice requires that the party affected by the order should have the opportunity of being heard before the order absolute was made. The circumstances, if any, in which an order of certiorari should be made absolute in the first instance would require to be exceptional, and in this case I cannot see any reason for departing from established procedures. In my view, a conditional order only should have been made in the first instance.

As the learned trial judge had quashed the order of the Peace Commissioner, he accepted the submission of counsel for the prosecutors that the case was one in which O. 84, r. 2 contemplated the making of an order of habeas corpus absolute in the first instance. Similar provisions were contained in O. 84 of the 1905 Rules. However, the invariable practice under the 1905 Rules was to grant a conditional order in the first instance. It was only in the case of extreme urgency, or in a case in which the granting of a conditional order would be likely to result in defeating the ends of justice, that an order absolute for the writ to issue would formerly be made in the first instance.

The order of the court recites that it was made in accordance with Article 40 of the Constitution. The learned trial judge, however, in his report stated that he intended, in making an absolute order of habeas corpus, to do so under the Habeas Corpus Act, 1782, an Act of the Irish Parliament. Although the question as to whether habeas corpus under that Act is still available, having regard to the provisions of Article 40, s. 4. s.s. 2°. of the Constitution, was not argued on this appeal, it must be a matter of considerable doubt whether the right to habeas corpus exists apart from the provision of Article 40, s. 4, s.s.2°. Under this provision, upon complaint being made by or on behalf of any person to the High Court or any judge of the High Court alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day, and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that court, and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law. It is to be noted that this provision expressly provides that before ordering the release of such person, an opportunity must be given to the person in whose custody he is detained to justify the detention. In view of this express provision in Article 40 it is difficult to see how an order for the release of a detained person may be made without hearing the person alleged to be detaining him. In my opinion, such an order should not have been made in this case.

It may be necessary to consider in an appropriate case in which the question is fully argued whether, and if so in what circumstances, an absolute order of habeas corpus may be made in the first instance.

 

X v Minister for Justice

[2010] IEHC 446

JUDGMENT of Mr. Justice Hogan delivered on the 10th December, 2010

1. In these proceedings the applicants seek to quash a decision of the Minister dated 29th September, 2009, whereby he refused an application to permit the second and third named applicants (who are respectively the mother and sister of the first named applicant) to enter and reside in the State in accordance with the provisions of the Refugee Act 1996 (“the 1996 Act”).

2. The applicants are all Somalis. The first applicant, Ms. RX, arrived in Ireland in September, 2004 and was granted refugee status here in January, 2006. She subsequently applied to the Minister for travel visas for her three children and her mother, Ms. QMA and her sister Ms. CA in accordance with s. 18 of the 1996 Act. As it happens, I need not concern myself now with the situation of the three children. Their application was originally refused in December, 2008, but following DNA testing, the Minister ultimately acceded to this application following an internal review of the original decision. Two of the children now reside in Ireland with their mother and the other has moved to Sweden where she resides with an aunt.

3. Turning now to the position of the other family members, their application was originally refused by a decision dated 8th December, 2008. Among the reasons given bearing on the position of the mother and the sister was that:

“….you have provided insufficient and unsatisfactory evidence of dependency;
you have failed to establish that QMC and CXM are suffering from a mental or physical disability to such an extent that it is not reasonable to maintain themselves fully….”

4. On 11th March, 2009, the applicants’ solicitor wrote to the Minister seeking an internal review of this decision. Documentation was then supplied to show that the mother was suffering from depression, stress, left eye poor vision and anxiety neurosis. In April, 2009 a further medical report was sent which apparently showed that the mother’s condition had deteriorated significantly to the point that she was now blind in her left eye and had poor vision in her right eye, was suffering from depression and had difficulty walking due to rheumatism. The report concluded by stating that the mother was advised:
“to continue medication regularly, have follow up every month and needs a close family support to take care of her grandchildren and she is unable to support herself and her children and operation for her eye.”
5. On 3rd April, 2009, the Minister had undertaken to review this original decision. The applicant’s solicitor then supplied the Minister with a range of further information to assist the decision-making process. This included birth certificates for the children, sister and mother and, as we have just seen, further medical certificates in respect of the mother’s medical condition.
6. The Minister very fairly agreed to bear the costs of the DNA testing of the children. These tests confirmed that the first named applicant was indeed the mother of the children and once this information was communicated to the Minister in November 2009, the appropriate visas were then issued by our Embassy in Addis Ababa.

7. So far as the mother and sister were concerned, however, matters had already come to a head with a letter from the Minister to the applicants’ solicitors dated the 29th September, 2009. Insofar as the applications of C.X.M. and K.M.A. were concerned, the letter merely stated that:-

“Having considered all of the documentation and submissions made on behalf of the applicant, I decided to uphold the Minister’s original decision not to grant family reunification to C.X.M. and K.M.A.”
8. I pause here to observe that it was common case between the parties that no reasons were given for this particular decision. In this case, nothing turns on this because, as it happens, however, the Minister wrote a further letter on 1st October, 2009, which did, in fact, advance reasons for the decision:
“Having taken all of the submissions made on behalf of the applicant and the supporting documentation submitted into account, I am of the opinion that the applicant is not in a position to support the family members applied for or that they qualify as dependent family members under s. 18(4) of the Refugee Act 1996.
I have concluded, therefore, that the Minister should not exercise his discretion, pursuant to s. 18(4) of the Refugee Act 1996, to grant permissions to the subjects named above to enter and reside in the State and that the decision not to grant family reunification should be upheld.”

9. The net issues which arise in this application for judicial review are, accordingly, first whether the reasons given in the letter of the 1st October, 2009, are sustainable and, second, if they are, did the Minister have jurisdiction to conduct an internal review of the original decision having regard to the structure of s. 18(4) of the 1996 Act, especially in the light of the judgment of the Supreme Court in Izevbekhai v. Minister for Justice, Equality and Law Reform [2010] IESC 44. I propose presently to consider these questions in turn.
Section 18 of the 1996 Act
10. The relevant statutory provisions may conveniently be described and set out at this juncture. In a case where an applicant has been given a declaration of refugee status, s. 18(1) provides that person may apply to the Minister for permission to be granted:

“to a member of his or her family to enter and to reside in the State and the Minister shall cause such an application to be referred to [Refugee Applications] Commissioner.”
11. Section 18(2) requires the Commissioner to investigate the application and to prepare a report for the Minister. It further requires that the report shall set out the relationship between “the refugee concerned and the person the subject of the application and the domestic circumstances of the person.” Where the Commissioner is satisfied that the person the subject matter of the application is a “member of the family of the refugee”, then, subject to considerations of national security or public policy, the Minister is obliged to grant that person permission to enter and to reside in the State: see s. 18(3)(a). Section 18(3)(b) defines “member of the family” for this purpose as a spouse and minor children and, where the refugee is himself or herself a minor, his or her parents. It will thus be seen that the Minister had no discretion at all in the case of the first named applicant’s children, once the parentage and identity of those children was established by the DNA tests.
12. In addition, however, to s. 18(3), s. 18(4) also permits the Minister to exercise a discretion in the case of other family members who would not otherwise come within s. 18(3). Section 18(4) of the 1996 Act provides:

“(a) The Minister may, at his or her discretion, grant permission to a dependent member of the family of a refugee to enter and reside in the State and such member shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.
(b) In paragraph (a), “dependent member of the family”, in relation to a refugee, means any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully.”

13. It will be thus seen that it is s. 18(4) which governs the application of the mother and the adult sibling.
Whether the Minister had the power to conduct an internal review
14. Although the Minister agreed to conduct an internal review of the original decision of December, 2008 to refuse to agree to family reunification, the argument now advanced by Mr. Conlan Smyth is that, in the light of the Supreme Court’s decision in Izevbekhai, there was in fact no vires to conduct such an internal review. There is admittedly something unusual – perhaps even unattractive – when a public body later argues that it had no jurisdiction to engage in the course of action it had earlier embarked on, but as the law now stands there can be no estoppel as against a statute: see the comments of Re Green Dale Building Co. Ltd. [1977] I.R. 256 at 264-265. In this regard, therefore, the fact that the Department had by its own conduct led the applicants to believe that such a jurisdiction is, therefore, irrelevant as a matter of strict law, since in view of the Supreme Court’s decision in Green Dale Building Co, the doctrine of promissory estoppel has no application. We must, therefore, turn to the question of what Izevbekhai actually decided.

15. In Izevbekhai the court held that the Minister had no jurisdiction to consider an application for subsidiary protection in respect of persons who were the subject of a deportation order made before the 10th October, 2006, the operative date so far as the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006). In his judgment for the court, Fennelly J. stressed the interlocking nature of Regulation 3, Regulation 4(1) and Regulation 4(2) of the 2006 Regulations.

Regulation 3 provides:

“3. (1) Subject to paragraph (2), these Regulations apply to the following decisions (in these Regulations referred to as “protection decisions”) made on or after the coming into operation of these Regulations:
(a) a recommendation under section 13(1) of the 1996 Act;
(b) an affirmation under paragraph (a) or a recommendation under paragraph (b) of section 16(2) of that Act;

(c) the notification of an intention to make a deportation order under section 3(3) of the 1999 Act in respect of a person to whom subsection (2)(f) of that section relates;

(d) a determination by the Minister under Regulation 4(4) or 4(5).”

16. In respect of this provision, Fennelly J. noted (at paragraph 52):
“For the purposes of the present appeal, only paragraph (c), relating to a proposal to make a deportation order, is relevant. The intention is clear: in future, that is from 10th October 2006, every subject of a deportation order which the Minister proposes to make after that date is guaranteed the right to make prior representations to the Minister that he or she runs the risk of exposure to serious harm if deported to the country of origin. On the other hand, persons against whom deportation orders have been made and notified, though not yet in fact deported are not accorded that right. The paragraph makes no provision for cases of deportation orders made before 10th October 2006, but not yet notified. Section 3(3)(b)(ii) of the Act of 1999 obliges the Minister to “notify the person in writing of his or her decision and of the reasons for it…”
17. Regulation 4 is in the following terms:
“(1) (a) A notification of a proposal under section 3(3) of the Act of 1999 shall include a statement that, where a person to whom section 3(2)(f) of that Act applies considers that he or she is a person eligible for subsidiary protection, he or she may, in addition to making representations under section 3(3)(b) of that Act, make an application for subsidiary protection to the Minister within the 15 day period referred to in the notification.
(b) An application for subsidiary protection shall be in the form in Schedule 1 or a form to the like effect.
(2) The Minister shall not be obliged to consider an application for subsidiary protection from a person other than a person to whom section 3(2)(f) of the 1999 Act applies or which is in a form other than that mentioned in paragraph (1)(b).”
18. These provisions were the subject of a detailed analysis from Fennelly J. who commented (at paras. 55 and 56 of the judgment):
“55. Regulation 4(1) imposes a positive obligation on the Minister, but its area of application is limited to cases of deportation orders which the Minister proposes to make after 10th October 2006…..it makes no provision for deportation orders already made but not notified.
56. ….. the Minister made the three deportation orders in respect of the appellants on 23rd November 2005, which was prior to the coming into operation of the Regulations. He gave notice of these orders on 29th November 2006. Section 3(3) of the Immigration Act, 1999 obliges the Minister to give notice in writing of a proposal to make a deportation order. The appellants were properly notified. Regulation 4(1)(a) of the Regulations applies only to a notification of such a proposal. The wording of that provision is capable of applying only to such notifications given after the coming into operation of the Regulations, i.e. after 10th October 2006.”

19. In passing, I would observe that this analysis lays the foundation for the court’s ultimate conclusion, because Fennelly J. here made it clear that any arguments based on the existence of some residual ministerial discretion would be inconsistent with the overall structure of the Regulations. This is, in any event, put beyond any doubt by the following subsequent passages:
“75. In my view, Regulation 3 is crucial and clear in its own terms. It limits the scope of application of the Regulations. It provides that the Regulations “apply to the following decisions,” which it then specifies. For the purposes of the present case, it is crucial that it limits the scope of the Regulations to cases described in Regulation 3(1)(c) where “the notification of an intention to make a deportation order under section 3(3) of the 1999 Act in respect of a person to whom subsection (2)(f) of that section relates” is communicated after 10th October 2006.
76. That limitation is itself closely related to the content of Regulation 4(1)(a) which obliges the Minister to give a specific type of notice to persons to whom he communicates notifications of the kind mentioned on Article 3(1)(c).

77. Leaving aside the question of the scope of Regulation 3, and looking at the wording of Regulation 4(2) itself, one must ask by what words that provision confers on the Minister the discretion to consider applications from persons other than those affected by the decisions listed in Regulation 3, or other than persons expressly entitled to notice from the Minister pursuant to Regulation 4(1)(a).

78. To begin with, it seems obvious that Paragraphs (1) and (2) of Regulation 4 must be read together. Paragraph (1) deals with a notification being given to a person to whom section 3(2)(f) of the Act of 1999 applies. It obliges the Minister to include in that notification notice of the right to make an application for subsidiary protection. Paragraph (2) adds that the Minister is not obliged to consider an application for subsidiary protection from any person other than one to whom that provision applies. The same applies pari passu to the provision regarding persons who have not completed the form provided in Schedule 1 and referred to in Regulation 4(1)(b). This appears to me to be a clear, complete and logical scheme. The three provisions interlock and complement each other.

79. I can find no language in Regulation 4(2) conferring on the Minister, either expressly or implicitly, any discretion to consider applications for subsidiary protection in cases not provided for. The paragraph is negative in form: it says what the Minister is not obliged to do.”

20. Of course, Regulation 4(2) provides that the Minister “shall not be obliged” to consider an application for subsidiary protection by persons not falling within its scope. If the language of Regulation 4(2) was looked at entirely in isolation, one might, perhaps, have been forgiven for thinking that it conferred an implicit discretion. As we have seen, Regulation 4(2) states that the Minister “was not obliged” to consider an application for subsidiary protection from a person not falling within the terms of Regulation 4(1) and, starting from that point, the argument could well be made that while the Minister was under no obligation in that regard, he nonetheless had an implicit discretion to consider such application.
21. Fennelly J. held, however, that Regulation 4(2) could not be read in isolation and that the combined effect of Regulation 3 and Regulation 4 was, in effect , to create an implicitly closed category of cases, so that the Minister could only consider an application for subsidiary protection where the deportation order had been made after the operative date in November, 2006.

22. As Fennelly J. pointed out (at para. 76) the wording of Regulation 4(1)(b) imposed a particular obligation on the Minister to give a particular notification in respect of an application for subsidiary protection to persons the subject to a deportation order after 29th November, 2006. Thus, any interpretation of the Regulations that the Minister retained an implicit discretion in respect of orders made prior to that date would have been inconsistent with the scheme posited by Article 3 and Article 4. The Minister’s discretion with regard to subsidiary protection was made conditional on the notification which was required to be sent to any person who was the subject of the deportation order and that specific notification only applied to deportation orders made after the operative date. That, in my view, is the true ratio of Izevbekhai.

23. Furthermore, it may also be important to note that the Supreme Court was not here addressing any other statutory power. In addition, the court was interpreting Regulations which were designed to transpose a particular Directive. As Fennelly J. explained (at para. 73):

“73. I propose to consider, in the first instance, whether the Regulations confer a right upon persons such as the appellants to apply to the Minister for subsidiary protection. Put otherwise, do the Regulations oblige the Minister to consider such an application for subsidiary protection? It is important to emphasise that these appeals arise solely in the context of the Regulations of 2006 and, to the extent that it is relevant, the Council Directive which they transpose. The appeals are not related in any way to the exercise of any other statutory power, such as that conferred by s. 17(7) of the Refugee Act, 1996….. Nor, it should be emphasised does this appeal concern the exercise through the Minister by the State of the general executive or sovereign power of the State with regard to the admission of persons of other nationality into the State. I will express no views on these matters.”
24. What, then, is the significance – if any – of Izevbekhai so far as the present case is concerned? It would appear to be this: that the courts will not imply any statutory power which would be inconsistent with the statutory scheme. This in itself is not a novel proposition (see, e.g., McCarron v. Kearney [2010] IESC 28 ), although, of course, the application of that principle can – as here – give rise to difficulties.
25. I cannot, however, agree that this means that a statutory power can be exercised once and only once. After all, s. 22(1) of the Interpretation Act 2005 provides that:

“(1) A power conferred by an enactment may be exercised from time to time as occasion requires.”
26. The real question is whether the existence of an internal review would be inconsistent with the statutory scheme, as Mr. Conlan Smyth strenuously contended. To recapitulate, it may be recalled again that each application for family reunification had to be transmitted to the Refugee Application Commissioner who was then required to prepare a report: see s. 18(1) and s. 18(2). If, “after a consideration of a report of the Commissioner submitted to the Minister under subs. (2)”, the Minister is satisfied that the applicant is the spouse or child of a refugee, then the Minister is obliged to grant permission to that person to stay in the State: see s. 18(3). Finally, the Minister has a discretion under s. 18(4)(a) to grant permission to dependent members of the family.
27. If the decision to exercise the s. 18(4)(a) discretion was inextricably intertwined with the referral of the matter to the Refugee Application Commissioner, then, I think, the argument that an internal appeal would be inconsistent with Izevbekhai would be well founded. But is it so intertwined?

28. It is, of course, true that the entire s. 18 process starts with a reference to the Commissioner. The Minister is also required by section 18(2) to consider the Commissioner’s report. But the Commissioner’s report is fundamentally there to assist the Minister’s deliberations. If, for example, the Commissioner’s report were to contain a fundamental error, is to be suggested that the Minister could not receive additional evidence from an applicant to establish something as fundamental as the existence of a family tie? Surely not.

29. In my view, while the Commissioner’s report is an essential starting point, it does not preclude the Minister receiving additional submissions or further evidence. If this is correct, then it follows that, once the Minister has the Commissioner’s report, he can exercise the s. 18 powers from time to time as he sees fit.

30. It follows, therefore, that the Minister did not act ultra vires in conducting an internal review.
Are the reasons given by the Minister sustainable in law?
31. We may now turn to the question of whether the reasons actually given by the Minister are sustainable in law. Before answering that question, it is, perhaps, appropriate to note that this in turn raises the antecedent question of whether the first applicant’s constitutional rights have been potentially affected or engaged by the Minister’s decision to refuse to permit family re-unification. If the answer here is in the affirmative, then this has implications for the adequacy of these reasons: see, e.g., the comments of Murray C.J. in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3.

32. I would pause here to add that the references in asylum and immigration case-law to Article 8 ECHR have become such a common place, that it is perhaps easy to overlook the fact that even in this area, the ECHR merely supplements or enhances the role of the Constitution. Such is made clear by the Long Title to the European Convention of Human Rights Act 2003, and, in any event, the Supreme Court has confirmed that where there is an overlap between constitutional rights and rights deriving from the Convention, it is the former which, generally speaking at least, must be considered first: see, e.g., Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71. The Convention comes into play only where the Constitution does not provide an adequate remedy in its own right.

33. Certainly in cases involving questions of the constitutionality of a statute or common law rule, s. 5(1) of the European Convention of Human Rights Act 2003, makes it clear that the Convention can only come into play only where it has been established that the Constitution does not provide an adequate remedy in its own right, a point which, in any event, is put beyond doubt by Carmody. But it seems to me that this principle must also apply by analogy where the issue concerns the application of a fundamental right and where the right in question is protected by both the Constitution and the Convention. As Murray C.J. observed in Carmody:

“It hardly needs to be said that the provisions of the Act of 2003 cannot compromise in any way the interpretation or application of the Constitution, a principle which is acknowledged in the long title to the Act which states that the effect of the Act is “subject to the Constitution”.
34. Of course, it is equally scarcely necessary to recall that this Court has long since rejected the argument that fundamental rights protected by the common law could be invoked in order in some way to supersede or qualify the fundamental rights provisions of the Constitution. As Martin Maguire J. said in The State (Walsh) v. Lennon [1942] I.R. 112 at 114:
“The authority of the Constitution enacted by the People is paramount. Its clear provisions must be given effect to even though the rights, or some of them, now asserted were to some extent covered by the Common Law.”
35. The Oireachtas has, of course, decided to give legal effect in the manner contemplated by the 2003 Act to the European Convention of Human Rights in accordance with Article 29.6 of the Constitution. The Convention is, of course, a central feature of the European legal patrimony and the jurisprudence of the European Court of Human Rights serves – among other things – as a salutary warning to the dangers of legal parochialism in matters of fundamental rights. But, as both Murray CJ and Fennelly J. pointed out in McD v. L., the Convention provisions do not have direct effect in our domestic law. Nor did the Oireachtas intend – and could not constitutionally have intended – to create a form of parallel Constitution via the 2003 Act. Rather, the whole thrust of the 2003 Act was to provide a form of failsafe mechanism to deal with those – hopefully rare – cases where it has been actually established that the Constitution does not meet the international obligations to which we have solemnly committed as a State.
36. It may be accepted that the 2003 Act makes this clearer with regard to the declarations of incompatibility under s. 5(1), since this remedy (such as it is) is available only where no other remedy is available to the plaintiff. What, however, is the position where (as here) the case involves a straightforward challenge to the validity of an administrative decision which does not involve a challenge to the constitutional validity or Convention compatibility of statute or common law rule?

37. In my view, it would be anomalous and at odds with the appropriate and established system of legal norms if, for instance, Article 8 ECHR came to be regarded de facto as the primary guarantee of family life with the result that Article 41 of the Constitution came to be effectively replaced or supplanted in such cases. This would, however, be the practical consequence of permitting litigants to invoke the ECHR as a first resort, instead of – as I believe the Oireachtas clearly intended with the 2003 Act – as a last resort.

38. It accordingly follows that, by analogy with the Supreme Court’s reasoning in McD v. L, even in straightforward challenges to the validity of an administrative decision where fundamental rights are at stake, the most appropriate course is for the court to examine the pleas made with reference first to the fundamental rights provisions of the Constitution. It is only where such contentions prove to be unavailing, that the court should move to the consider arguments based on the ECHR. Again, none of this is to suggest for a moment that ECHR authorities cannot be invoked by way of argument in a purely constitutional context, much as has happened for the last fifty years or so, ever before the 2003 Act was enacted.

39. In the present case, therefore, the question which first arises is whether the guarantees of family life and the protection of the marriage which are contained in Article 41 can potentially extend to grandparents and to siblings. It is true that Article 41.3.1 commits the State to the protection the institution of marriage “upon which the family is founded”. But that does not mean that the grandparents and siblings cannot, at least, for certain limited purposes and in certain special situations, come within the ambit of the protection of the family for the purposes of Article 41.

40. In my view, it cannot have been intended by the People in 1937 that the family contemplated by Article 41 should be confined exclusively and for all possible purposes to what nowadays would be described as the nuclear family of parents and children. The fact that marriage was (and, of course, is) regarded as the bedrock of the family contemplated by the Constitution does not mean that other close relatives could not, at least under certain circumstances, come within the scope of Article 41. In this regard, it must be borne in mind that grandparents and adult siblings form part of many family units which are (or, at least, were originally) formed by married couples and this was probably at least as true in 1937 as it is today.

41. Indeed, it is probably salutary to recall in this context that the principal political architect of the Constitution was himself raised for most of his formative years by his grandmother, uncle and aunt: see, e.g., Ferriter, Judging Dev (Dublin, 2007) at 26. While, of course, the purely subjective beliefs and personal life experiences of even the most pre-eminent personage associated with the drafting of the Constitution cannot in itself determine the proper interpretation of Article 41, I mention this historical fact merely to show that the drafters could not have intended that close-knit relatives by blood and marriage looking after children in the absence of their married parents would never come within the scope of the constitutional definition of the family.

42. Putting this yet another way, a household consisting solely of a grandparent who was rearing a dependent grandchild would have been generally regarded as a “family” in 1937. It would be unthinkable that to suppose that the People would have assented to a state of affairs where, in circumstances where parents who had married and were deceased or otherwise absent from the child’s life, the Oireachtas could have, for example, through legislation compelled a grandparent to yield up custody of the child to the State authorities, at least in the absence of some compelling justification for such a step. Yet unless the grandparent and grandchild were regarded as a “family” for this purpose, the Constitution would seem to have placed no impediment to the enactment of such legislation.

43. None of this is to take in the slightest from the fact that when the Constitution speaks of the family, it normally contemplates that the family will consist solely of married parents and children and such is evident from the language of both Article 41 and Article 42: see, e.g. The State (Nicolaou) v. An Bord Uchtala [1966] I.R. 567. It is, however, to say that there can be no a priori rule which automatically excludes grandparents and adult siblings from being within the scope of a “family” for the purposes of Article 41.

44. It is true that in Caldaras v. Minister for Justice Equality & Law Reform, a case concerning the proposed deportation of the grandparents of Irish born children, O’Sullivan J. concluded that:

“I cannot see in them any warrant for extending the concept of ‘family’ as considered in those judgments in [L & O v. Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1] to include grandparents within the concept of ‘family’ as guaranteed by Article 41 of the Constitution or indeed otherwise . . . I do not think that as a result of the L & O decision in the Supreme Court, the meaning of the word ‘family’ in section 3(6)(c) of the Act of 1999, has been widened to include grandparents.”
45. As a matter of strictness, all that Caldaras decided was that L & O was not an authority for the proposition that grandparents came within the scope of Article 41. That is indisputably correct, since that issue was simply not before the Supreme Court in L & O. Insofar, however, as Caldaras is to be taken as having decided that grandparents cannot ever come within the scope of Article 41, I would decline to follow it and would respectfully prefer instead the reasoning of Edwards J. in M v. Minister for Justice, Equality and Law Reform [2009] IEHC 500.
46. Thus far we have been dealing with the question of whether there was any a priori rule of constitutional interpretation by which grandparents (and, by extension, adult siblings) were excluded from the scope of the family life envisaged by Article 41. For such persons to come within the scope of the constitutional protection, it is, however, necessary to demonstrate that they have such ties of dependence and inter-action with other family members that they would come within the rubric of that family and that the family itself is based on marriage. This normally pre-supposes that a person such as a grandparent would share the same house as the other family members in question and that they would have an active role in the comings and goings of the family in question. A grandparent could not, for example, be regarded as a family member simply by reason of ordinary social courtesies or even by reason of regular visits to the grandchildren’s family home. While each case must turn on its own facts, something further than the ordinary inter-action between a grandparent and a grandchild or other family member would generally be required. This, as it happens, is also the position of the European Court of Human Rights with regard to Article 8 ECHR: see, e.g., Marckx v. Belgium (1979) 2 EHRR 330, Boughanemi v. France (1996) 22 EHRR 228.

47. The facts of the present case may be thought, however, to provide a paradigm example of where, exceptionally, perhaps, it would be appropriate to regard a grandparent and an adult sibling as coming within Article 41. The first named applicant, Ms. RX, came to Ireland in September, 2004. As the Refugee Appeal Tribunal found in its decision of 6th September, 2005, granting her refugee status, she was enslaved, raped and brutally treated by marauding clans. She managed to flee to Ethiopia and travelled on from there to Ireland. At the time she was forced to leave her three young children (then aged 5 and 2 and nine months respectively) in the care of her mother and sister in Addis Abba. While the mother and sister have no income – they are themselves Somali refugees living in Ethiopia – it is not in dispute but that the children were cared for by the mother and sister while being in receipt of remittances from Ireland from the children’s mother, Ms. RX , during the period from 2006 to 2009. During this period, the children must have regarded their grandmother and aunt as their de facto parents.

48. Against this particular and special background, I am of the view that the grandmother and aunt came within the scope of Article 41. Even if I am wrong on this point, it is incontestable that the grandmother and the adult sibling would form a family for the purposes of Article 8 ECHR: see, e.g., the judgment of Edwards J. in M and that of Hedigan J. in G.O. & Ors v. Minister for Justice, Equality and Law Reform [2008] IEHC 190. In that case, Hedigan J. accepted that family life within the meaning of Article 8 of the Convention did exist between the first named applicant and her grandchildren, having regard to the circumstances of that case. He stated (at para. 26 of the judgment):

“It is my view, having considered these authorities, that family life does exist between G.O and her grandchildren. I would place particular emphasis on the fact that G.O. lives with her grandchildren and is heavily involved in their upbringing. While cohabitation may not always be essential in order for ‘family life’ to exist, the fact that G.O. lives with her grandchildren strengthens the family ties between them. The cohabitation under one roof of the family members involved and extent of their daily contact add an extra dimension to the normal relationship between grandmother and grandchildren. This sets the present applicant apart from the normal level of contact that exists between grandparent and grandchild which was present, for example, in Caldaras.
That said, this view by no means disposes of a consideration in this case of Article 8. The existence of ‘family life’ between G.O and her grandchildren does not, of itself, mean that the State cannot deport her. The right to family life under Article 8(1) is not absolute and the State is not compelled to abstain from interference with Article 8 rights. Rather, it falls to be considered whether such interference is justified in accordance with Article 8(2)….”

49. The significance of this is that given that the decision impacts on constitutional rights (and, for that matter, ECHR rights), the reasoning should, in the words of Murray C.J. in Meadows, “at least disclose the essential rationale on foot of which the decision is taken.” But before examining the adequacy of that reasoning, it is important first to examine the language of s. 18(4).
50. The words “dependent member of the family” in s. 18(4)(a) is defined in section 18(4)(b). The Oireachtas chose to use the word “means”, a word “which is prima facie at once explanatory and restrictive, exhaustive and exclusive”: see O’Neill v. Murphy [1948] I.R. 72 at 84, per Kingsmill Moore J.

51. There are, therefore, two elements of the definition: the family member in question must either be (i) “dependent on the refugee” or (ii), suffering from a mental or physical disability to such an extent “that it is not reasonable for him or her to maintain himself or herself fully”.

52. If we start with the second criterion and apply it to the case of the mother, it is hard to see how the decision can stand in view of the reasons actually given. Although it is true that the mother’s medical position appears to have deteriorated between the first medical report of September, 2008 and the second report of April, 2009 – a fact which was the subject of some comment at the hearing – the reasons given by the Minister never suggested that the medical reports were unreliable or lacked authenticity. It must be recalled here that the second medical report in particular had concluded that the mother was suffering from blindness, chronic rheumatism and depression and needed close family support.

53. In these circumstances, one is frankly at a loss to understand how the Minister could have concluded that the mother was not suffering from a mental or physical disability such that it was not reasonable for her to maintain herself fully. The reasoning here is defective on Meadows grounds, since there is no explanation at all as to how this conclusion could possibly have been arrived at in the teeth of the available evidence. Another way of looking at this is to say – if you prefer – that this part of the decision itself so far as it concerns the mother is manifestly unreasonable.

54. So far as the dependency criterion is concerned, the key words of s.18(4) (“….who is dependent on the refugee…”) refer to dependency in fact. The evidence here establishes dependency in fact, inasmuch as it is clear that the mother and the sister – who lived in abject poverty in Addis Ababa – depended for financial survival on the remittances transmitted by Ms. RX, even though she in turn was (and is) dependent on social welfare payments as her principal (if not, indeed, exclusive) source of income. That is a somewhat different thing from saying – as the Minister did in the letter of 1st October, 2009 – that Ms. RX was not “in a position to support the family members applied for”. But this is not quite the test which s. 18(4) actually posits.

55. Of course, the dependent family member who is the subject of the family reunification application in question will, by definition, be living abroad. In the nature of things, it is likely that the majority of applicants will be residing in a developing country where both the cost of living and living standards generally will be significantly below those prevailing in this State, even in these economically difficult and challenging times. One may readily conjecture a situation where the family member in question is actually financially dependent on the person who has been given refugee status at the date of the application for family reunification, even though – having regard to the higher living costs here – the refugee might not necessarily be in a position to support the other family members in the State.

56. Indeed, that is probably the situation here in that the mother and daughter were dependent in Ethiopia on the remittances from Ireland, even though one might wonder how Ms. RX could support her mother and sister if they were in fact to come to Ireland. Section 18(4) does not, however, posit a test of whether the refugee could afford to support the family members if they were to come to Ireland. It rather addresses itself to the somewhat different question of whether the family members were dependent on the refugee at the date of the application. The evidence available to the Minister would appear to admit of no conclusion other than that the mother and the daughter were so dependent.

57. In these circumstances, I am driven to the conclusion that so far as the dependency criterion is concerned, the Minister applied the wrong legal test. It follows that this aspect of this decision must also be quashed: see, e.g., Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218, White v. Dublin City Council [2004] IESC 35, [2004] 1 IR 545.

58. For these reasons, I propose to quash the decision of 1st October, 2009, and to remit the matter to the Minister so that a fresh decision on the application can now be made.

The State (Rogers) v Superintendent Galvin

1980 No. 300

Supreme Court

2 July 1982

[1983] I.L.R.M. 149
(O’Higgins CJ, Henchy and Griffin JJ)

 

HENCHY J

delivered his judgment on 2 July 1982 saying: Peter Rogers (‘the prisoner’) appeared before the Special Criminal Court on the morning of Saturday 18 October 1980. This exceptional sitting on a Saturday morning was to be a preliminary and purely formal sitting. It was for the purpose of charging the prisoner with the capital murder of a member of the Garda Siochana and with an offence contrary to s. 15 of the Firearms Act, 1925 (as amended). It was obviously the expectation of the prosecution that, once evidence of arrest and charge had been given, the prisoner would be remanded in custody. The prisoner was represented by solicitor and senior counsel, the prosecution by the deputy assistant Chief State Solicitor. The hearing was the sort of routine but necessary step in the prosecution that would normally be over and done with in a matter of minutes.

One can easily imagine, therefore, the stir that was caused when, after Superintendent Galvin had given formal evidence of arrest, counsel for the prisoner applied to the presiding judge, who happened to be a judge of the High Court, to sit on his own as a judge of the High Court, to hear an application on behalf of the prisoner for an order of habeas corpus under Art. 40.4.2°, of the Constitution, on the ground that the prisoner’s arrest and consequent detention were unlawful. The judge acceded to the application for such a hearing.

Parol evidence was then given by the prisoner’s solicitor and by the prisoner, and they were each cross-examined by the solicitor who was presenting the case for the prosecution. Then the judge asked the solicitor for the prosecution (that is, for the DPP) if he wished to call any evidence in the habeas corpus application. He called Superintendent Galvin, in whose custody the prisoner was then claimed to be by the prosecution. After the superintendent had been examined and cross-examined, the judge, without giving the superintendent, who had no separate legal representation, any opportunity of stating in writing his grounds for the detention of the prisoner, forthwith ordered the absolute release of the prisoner. That is to say, instead of granting under Art. 40.4.2°, what is commonly called a conditional order of habeas corpus, he granted an absolute order of habeas corpus. The question arising in this appeal by the superintendent is whether the judge had jurisdiction to make such an order.

There is no doubt that, once the complaint of unlawful detention had been made, the judge was bound to enquire forthwith into the lawfulness of the detention. Art. 40.4.2°, as well as making the enquiry mandatory on the judge in question, provides that he:

may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.

As was held by this Court in The State (M. Woods) v Kelly [1969] IR 269, the provision for the production before the High Court on a named day of the body of the detained person is merely the conferment on the court of an enabling power. For a proper judicial enquiry to be carried out in certain cases, it may be necessary to exercise that power. But it cannot be said that in all cases its exercise is a necessary preliminary to an order of release from custody. Certainly, in a case such as the present, when the detained person was already in court, the exercise of that power would be plainly superfluous.

The provision that the detainer may be ordered to certify in writing the grounds of the detention would, if it stood alone, also suggest that this is an enabling or discretionary power. But it does not stand alone. Art. 40.4.2°, proceeds to say that an order of release may be made by the High Court ‘upon the body of such person being produced [actually or notionally] before the court and after giving the person in whose custody he is detained an opportunity of justifying the detention’. This opportunity of justifying the detention is always treated as including an opportunity of justifying the detention by means of a certificate in writing. It cannot be treated as a merely enabling or dispensible preliminary. It is mandatory. It lies at the heart of the jurisdiction to grant a release by habeas corpus. It is a constitutional recognition of the rule of natural justice expressed in the maxim audi alter am partem . It guards against the risk that, on an ex parte application, or on an application in which the detainer has not had a proper opportunity of countering the detainee’s complaint, an unjustified order of release from custody may be made. It gives constitutional form and shape to what had been for centuries an essential prelude to release by means of the writ of habeas corpus.

Art. 40.4.2°, postulates two stages of enquiry before the detained person may be released. First, there is to be an order, if the court thinks it necessary, that the body of the detained person be produced in court on a named day and that the detainer certify in writing the grounds of detention. So much of the court proceedings may be ex parte. Secondly, upon the actual or notional production of the body on the named day, the detainer is to have the further opportunity, in the light of all the then available evidential material, of justifying the detention. It is only then, if the detainer fails to satisfy the court that the detention is ‘in accordance with the law’ (as that expression has been judicially interpreted) that release from custody may be ordered.

The order of release made in this case misapprehended the constitutional requirements. It telescoped into a single hearing what should have been a two-part hearing. The detainer was in court, but only as a Garda officer acting in connection with what was expected to be but a formal court hearing on a Saturday morning. Without the detainer being legally represented, without his having an opportunity of getting legal advice, and, above all, without his being accorded an opportunity of certifying in writing the grounds of detention, an order was unexpectedly made whereby the prisoner, who was before the Special Criminal Court on a charge of capital murder, was summarily released from detention.

What was done by the judge could have been done only if the superintendent had, with full authority, knowledge and intention, waived his constitutional right under Art. 40.4.2°, to certify in writing the grounds of detention. Such a prerequisite has to be read into O.84, r.2, of the Rules of the Superior Courts to make it possible (as that rule purports to do) to grant an absolute order of habeas corpus in the first instance; just as the consent of all potential respondents is necessary, under O.84, r.9, for the grant of an absolute order of certiorari in the first instance: see The State (Aherne) v Governor of Limerick Prison [1981] ILRM 169.

In line, therefore, with the decision of this Court in In the Matter of Zwann [1981] ILRM 333 a case where the detainer was not given any opportunity of being heard, I would hold that because the superintendent, although he was in court and was examined and cross-examined, was not given any real or effectual opportunity of presenting his side of the case and, more particularly, because he was denied his constitutional right to certify in writing the grounds of detention, the judge acted without jurisdiction in ordering the release of the prisoner.

The superintendent’s appeal, should, in my view, be allowed and the order of release set aside.