Application of McLoughlin

• Jurisdiction: Ireland
• Judgment Date: 15 May 1970
• Docket Number: [1968. No. 334 SS.]
• Date: 15 May 1970
• Court: Supreme Court

Supreme Court

[1968. No. 334 SS.]

Application of McLoughlin

Application of NICHOLAS McLOUGHLIN

Criminal Law - Warrant - Second warrant - Prisoner's sentence altered by Court of Criminal Appeal - Whether that court should issue its own warrant in execution of altered sentence - Whether original warrant of Central Criminal Court sufficient - Transfer of prisoner to second prison - Transfer order authorised by statute - Whether statute authorised transfer of prisoners sentenced to penal servitude - General Prisons (Ir.) Act, 1877 (40 & 41Vict., c. 49), s. 3 - Criminal Justice Administration Act, 1914 (4 & 5 Geo. 5,c. 58), s. 17(3) - Courts of Justice Act, 1924 (No. 10 of 1924), s. 34.

Habeas Corpus.

By letter dated the 7th December, 1968, the applicant, who was serving a term of penal servitude in Portlaoise Prison, wrote to the High Court seeking an order of habeas corpus. The application was heard and refused by the High Court (Henchy J.) on the 16th December, 1968. The applicant then brought an appeal ex parteto the Supreme Court. On the 15th January, 1969, the Supreme Court directed that notice of the proceedings should be served on the Attorney General; counsel for the applicant and counsel for the Attorney General first appeared before the Court on the 7th February when the proceedings were adjourned. The appeal was heard on the 17th and 18th February, 1969.

The applicant had been sentenced in the Central Criminal Court to ten years penal servitude and he was imprisoned in Mountjoy Prison pursuant to a warrant of that court in execution of his sentence. The Court of Criminal Appeal reduced the sentence to six years penal servitude, and did not issue a warrant in execution of the reduced sentence. Subsequently, the applicant was transferred to Portlaoise Prison on the authority of an order of the Minister for Justice which was made under s. 17(3) of the Criminal Justice Administration Act, 1914. On appeal by the applicant from a refusal of the High Court to make an order of habeas corpus it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Budd and FitzGerald JJ.), in dismissing the appeal, 1, that, as the applicant had been in custody before the Court of Criminal Appeal, there had been no necessity for that court to issue any warrant in execution of its order.

Demer v. Cook (1903) 88 L.T. 629 considered.

2. That s. 17(3) of the Act of 1914 applies to prisoners who have been sentenced to terms of penal servitude.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

The applicant, who appeals against an order of the High Court refusing habeas corpus, is at present detained in Portlaoise Prison. This Court directed that notice of this application should be served on the Attorney General and he has produced to the Court three documents upon which he relies to justify the detention of the applicant. These documents are:—

• 1. A warrant of the Central Criminal Court dated the 17th May, 1966, and addressed to the Governor of Mountjoy Prison. This warrant, in the usual form, is annexed to a"Return of Prisoners" under s. 27 of the Convict Prisons (Ireland) Act, 1854. It appears on the Return that the applicant was convicted on three counts of robbery and burglary and that he was sentenced to 10 years penal servitude on each count—the sentences to date from the 17th May, 1966.

• 2. An order of the Court of Criminal Appeal dated the 13th December, 1966, adjudging that the order of the Central Criminal Court of the 17th May, 1966, be varied by the reduction of each of the three concurrent terms of penal servitude imposed thereby from ten to six years, and in all other respects affirming the said sentence.

• 3. An order of the Minister for Justice dated the 19th December, 1966, made under s. 17 of the Criminal Justice Administration Act, 1914 (as modified and adapted) transferring the applicant from Mountjoy Prison to Portlaoise Prison.

On the applicant's behalf two points were advanced by counsel,

neither of which is a challenge to the validity of the order under which the applicant is required to serve a sentence of six years penal servitude.

The first point is that the applicant's present detention is unlawful because a new warrant, issued under the authority of the Court of Criminal Appeal and stating the duration of the reduced sentence, has not been substituted for the original warrant of the Central Criminal Court. This point is taken in the knowledge that, if valid, it can only avail the applicant for such brief interval, if any, as may occur until a new warrant is prepared. The point taken is a novel one and it calls in question the correctness of the practice of the Court of Criminal Appeal which has existed since the year 1928. Where it alters a sentence, it has not been the practice of that court to issue a fresh warrant. Instead, in compliance with the provision of Order 86, r. 29(1), of the Rules of the Superior Courts, notice of the result of the appeal (in Form No. 25—Appendix U) is given by the registrar of the court to, inter alios, the governor of the prison. That notice reads as follows:—"Take notice that the Court of Criminal Appeal has this day given judgment to the effect following viz.: . . ." The only instance, under the present practice, in which a new warrant issues is where the defendant is on bail pending the hearing of his appeal.

The argument of counsel for the applicant was that there is a fundamental division of powers between the Courts and the Executive; that this requires that there must be some link between the Courts and the Executive who are to carry out the orders of the Courts; and that no one will, or can, take action on foot of a court order unless the court calls on the Executive to execute it. The order of the Central Criminal Court, counsel added, had been superseded by the order of the Court of Criminal Appeal and the latter order should have been supplemented by a warrant. The absence of such warrant, counsel said, constituted an essential defect. Counsel called attention to the Rules of the Circuit Court, 1950, which (in respect of appeals from the District Court) provide at Order 43, r. 6, that in the case of imprisonment either the county registrar or the District Court clerk may issue the warrant.

Counsel cited the passage in Paley on Summary Convictions, 7th edition, at pp. 267-8. Counsel also referred to a number of cases and in particular to Demer v. Cook13 and to R. v. Fitzgerald.14Neither of these cases bears on the question whether, in the case of a prisoner who is not on bail, a court of appeal which varies a prison sentence is required, short of statute or of rule, to issue a

fresh warrant to give effect to its order. The passage cited from Paley and from Fitzgerald's Case15 points to what counsel has called "the link" which must be established between the Courts and the Executive to ensure that a court order is carried out. This link was established when the Central Criminal Court issued its warrant of the 17th May, 1966, directed...