Arra v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judgment Date: 10 December 2004
• Neutral Citation: [2004] IEHC 393
• Date: 10 December 2004
• Docket Number: [2004 No. 1083 J.R.],[2004 No. 1083 JR]
• Court: High Court

[2004] IEHC 393

THE HIGH COURT

[2004 No. 1083 JR]

BETWEEN

NIKOLIN ARRA

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON, JUDGE BRADY, JUDGE COUGHLAN, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Abstract:

Immigration - Judicial review - Bail - Refugee Act, 1996 - Whether the applicant was entitled to conditional release pending the determination of judicial review proceedings

The applicant was granted leave on an ex parte basis to seek judicial review in respect of his continued detention pursuant to s. 9(8)(c) and (f) of the Act of 1996, on a number of grounds. Subsequently, the applicant sought bail for the purposes of giving effect to his release pending the trial of the matter. Notice of this application was served on the respondent.

Held by Clarke J. in dismissing the application: That the court was required to take into account a wider range of factors in determining whether the applicant should be released pending trial than would be necessary in considering an application for bail pending trial on a criminal charge. It would not be appropriate to admit the applicant to bail as it was probable having regard to an earlier attempt to escape from the Gardai, that in the event that the applicant was released he would not attend the trial of the substantive issue in this case.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Clarke delivered the 10th December, 2004.

2 I have already granted the applicant leave to seek judicial review in these proceedings in respect of his continued detention pursuant to s. 9(8)(c) and (f) of the Refugee Act, 1996, on a number of grounds. Principally the applicant challenges the consistency of the above provisions with the Constitution and the European Convention on Human Rights. Furthermore it is contended that even if the above provisions remain in force the current determination of the District Court under the above section whereby the applicant remains in prison is, it is said, flawed by reason of two matters:

• (a) the reinstatement on a subsequent hearing (that is to say the hearing of 24th November, 2004) of a specific ground which had previously been ruled inapplicable at an earlier hearing; and

• (b) that the applicant had done all that was required to establish his identity as required by the provisions of the 1996 Act.

3 Leave having been granted on an ex parte basis (the case not coming within the provisions of s. 5(1) of the Illegal Immigrants (Trafficking) Act, 2000 so as to require, amongst other things, an application on notice to the state respondents) the applicant also sought bail for the purposes of giving effect to his release pending the trial of the matter. However it seemed to me that it would be inappropriate to grant bail or otherwise release the applicant without first giving the respondents the opportunity to be heard. I therefore directed that notice be served upon the respondents so that this application was heard with the benefit of submissions and evidence from both sides.

4 The principles to be applied

5 Counsel for the applicant submitted that the grant or otherwise of bail in circumstances such as this differed in no material respect to the grant of bail pending a criminal trial so that the principles set out in The People v. O'Callaghan [1966] I.R. 31 were applicable. On that basis he suggested that the only real consideration for the court on the facts of this case was as to whether the Court was satisfied, in accordance with the principles set out in O'Callaghan, that the applicant would attend the hearing and be available to be recommitted to prison in the event that his case was unsuccessful.

6 Counsel for the respondents accepted that the question of the likelihood of the applicant attending was a material consideration but suggested that the range of matters that the court was entitled to take into account in a matter such as this were wider than those which the court would properly take into account in considering bail pending trial on a criminal charge. Counsel referred me to a short judgment of Peart

7 J. in The People (at Suit of the Director of Public Prosecutions) v. Alma Pislaru delivered on 20th August, 2004. In the course of that judgment Peart J. accepted that this court enjoys an inherent jurisdiction to grant what he correctly characterised as a conditional release. Unfortunately the brief judgment with which I was furnished contains little detail as to the circumstances which led to the refusal of the application in that case. However it certainly seems clear that Peart J. did not consider himself confined to what I might call the O'Callaghan principles in considering whether to grant conditional release.

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