B.L. v Governor of Castlerea Prison

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Binchy
• Judgment Date: 24 August 2017
• Neutral Citation: [2017] IEHC 569
• Docket Number: [Record No. 2017/929 S.S.]
• Date: 24 August 2017

IN THE MATTER OF AN APPLICATION UNDER AND IN ACCORDANCE WITH ARTICLE 40.2 OF BUNREACHT NA HÉIREANN

BETWEEN

B.L.

APPLICANT

AND

THE GOVERNOR OF CASTLEREA PRISON

RESPONDENT

[2017] IEHC 569

Binchy J.

[Record No. 2017/929 S.S.]

THE HIGH COURT

Art. 40.4.2 of the Constitution – Committal to prison – Failure to pay maintenance – Financial difficulty – Detention – Indefinite duration – Fundamental denial of justice – Civil contempt – Coercive intent

Facts: In the present application, there was an order directing an inquiry regarding the lawfulness of the detention of the applicant. The applicant claimed that his arrest and detention in pursuance to the order of the Circuit Court was unlawful and sought relief under art. 40.4.2 of the Constitution. The applicant contended that the Court had erred in making an order of imprisonment indefinite duration in a civil contempt case as he had no monetary means to satisfy the Circuit Court's order to pay the arrears of maintenance to his former wife. The applicant also contended that there was a fundamental denial of justice as the applicant was not represented when the order of his committal was made.

Mr. Justice Binchy refused the relief sought in the application. The Court held that the order of the Circuit Court was fair and the plea that the applicant could not pay in accordance to the terms of the order could not be made in an application under art. 40 and thus, there was no fundamental denial of justice. The Court, regarding the non-representation of the applicant, stated that the same should have been mentioned in the affidavit so as to give the respondent an opportunity to reply. The Court noted that the order of the learned Circuit Court Judge was valid on its face as the order was made with a coercive intent to make the applicant to pay the arrears of the maintenance. The Court found that the incarceration of the applicant was not indefinite but limited to such duration when he was able to discharge the said arrears. The Court stated that the applicant was entitled to appeal the order of the Circuit Court or file an application for judicial review on the issue of his inability to comply with the Circuit Court order.

EX TEMPORE JUDGMENT of Mr. Justice Binchy delivered on the 24th day of August, 2017

1 On 22nd August, 2017 this Court (Barrett J.) made an order directing an inquiry into the lawfulness of the detention of the applicant. The applicant brought forward this application on notice to the respondent and the matter came before the Court, the following day, 23rd August, 2017.

2 The applicant claims that his arrest and detention pursuant to an order of his Honour Judge Keenan Johnson of the Circuit Court made on 28th July, 2017 is unlawful and unconstitutional and seeks his release under Article 40.4.2 of the Constitution.

3 On 28th July, 2017 Judge Johnson made an order for the arrest and committal of the applicant in the following terms:-

'The Commissioner and members of the Garda Síochána are hereby requested and authorised forthwith to take the respondent B.L. in to her and their custody and to deliver him, the said B.L. to the Governor of Castlerea Prison, at Castlerea in the County of Roscommon, and the said Governor is hereby authorised and required to receive the said B.L. and safely keep him in the said prison until such time as he has been deemed by the Court to have purged his contempt for his failure to comply with the terms of the order of this Honourable Court made on 8th April, 2008 directing the payments of maintenance to the applicant now in arrears and currently standing at €41,700.00 and until such time as the said arrears of maintenance have been discharged or until he is discharged from thence by competent authority and by due process of law and for this the present warrant should be sufficient authority to all whom it may concern.'

On foot of that order, the applicant was detained and remains detained in Castlerea prison since 28th July, 2017.

4 The application is grounded on the affidavit of the applicant's solicitor, of 21st August, 2017. The applicant's solicitor deposes that the proceedings giving rise to the order for the arrest and committal of the applicant have an acrimonious history. She refers to many adverse orders made against the applicant extending back to 2008. She said that the applicant has made efforts over the years to vary the amounts payable by him by way of maintenance to his former spouse pursuant to court orders, varied. She deposes he is no longer working and is currently in receipt of €180.00 per week by way of social welfare payments.

5 She deposes that the applicant is impecunious and that he will never be able to discharge the arrears due pursuant to the order of the Circuit Court of 8th April, 2008, referred to in the order of his Honour Judge Johnson of 28th July, 2017.

6 The affidavits sworn by the applicant's solicitor refers to judicial review proceedings issued by the applicant under Record No. 2016/336 J.R., and which were the subject of a determination of White J. dated 22nd May, 2017. It appears from the papers exhibited that those proceedings had no relevance to this application and relate to an order of the Circuit Court made on 18th February, 2016. It further appears that the applicant was unsuccessful in his application to have that order quashed, and that he has appealed the decision of White J. to the Court of Appeal, and that that appeal remains extant. The decision of White J. was handed down on 22nd May, 2017.

7 Prior to the moving of this application, the applicant's partner had moved an application on behalf of the applicant and with his authority before Moriarty J. It is not clear on what date that application was moved but it was...