Bailey v Governor of Mountyjoy Prison

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Hogan
• Judgment Date: 31 July 2012
• Neutral Citation: [2012] IEHC 366
• Docket Number: [2012 No. 1468 SS]
• Date: 31 July 2012

Bailey v Governor of Mountjoy Prison

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/

GARY BAILEY

APPLICANT

AND

GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

[2012] IEHC 366

[No. 1468 S.S./2012]

THE HIGH COURT

CONSTITUTIONAL LAW

Legality of Detention

Inquiry - Jurisdiction - Practice and procedure - Whether application ought properly to have been made by way of judicial review - Whether inquiry procedure only available where unlawfulness of detention obvious - Whether distinction between patent and non patent legal errors - Whether court obliged to construe Article 40.4.2 in light of guarantees to protect person and liberty - Courts - Stare decisis - Precedent - Whether Supreme Court authority subsequently followed - Whether Supreme Court authority singular and exceptional - Whether Supreme Court authority binding - Fair procedures - Notice - Whether giving of notice fundamental to proper administration of justice - Whether conviction without adequate notice a nullity - Sheehan v Reilly [1993] 2 IR 81 and McDonagh v Governor of Cloverhill Prison [2005] IESC 4, [2005] 1 IR 394 applied; McSorley v Governor of Mountjoy Prison [1997] 2 IR 258 not followed; In Re Haughey [1971] IR 217, DK v Crowley [2002] 2 IR 744 and Dellway Investment Ltd v National Asset Management Agency [2011] IESC 14, (Unrep, SC, 12/4/2011) and The State (Royle) v Kelly [1974] IR 249 considered; The State (Quinn) v Ryan [1965] IR 70 approved - Constitution of Ireland 1937, Articles 34.1, 40.3.2 , 40.4.1 and 40.4.2 - Preliminary issue decided for applicant (2012/1468SS - Hogan J - 31/7/2012) [2012] IEHC 366

Bailey v Governor of Mountjoy Prison

Facts: The applicant had been convicted of multiple road traffic offences in January 2012, and sentenced to a term of four months in prison. He sought to appeal the conviction and was released pending that appeal. A later hearing of the Circuit Court affirmed the applicant's conviction, but the applicant contended he had not received any notice of that hearing. He now sought judicial review in relation to art 40.4.2 of the Constitution ("art 40.4.2").

Held by Hogan J, that the applicant's case raised an important point in respect of the interaction between the judicial review remedy and the provisions of art 40.4.2. The respondent contended that the applicant's case should have been brought by the former method and not the latter.

The Court considered the earlier Supreme Court cases referred to by the parties. In any case, regardless of the complexity of the facts, the key point was that notice was essential to the fair administration of justice in relation to terms of imprisonment or detention by the State. An inquiry into matters such as the instant facts fell plainly within the scope of art 40.4.2, and the respondent's contention otherwise was rejected. McSorley v Governor of Mountjoy Prison [1997] 2 IR 258, Sheehan v Reilly [1993] 2 IR 81 and McDonagh v Governor of Cloverhill Prison [2005] 1 IR 394 considered.

CONSTITUTION ART 40.4.2

MCSORLEY v GOVERNOR OF MOUNTJOY PRISON 1997 2 IR 258

SHEEHAN v REILLY 1993 2 IR 81

MCDONAGH v GOVERNOR OF CLOVER HILL PRISON 2005 I IR 394

ROYLE, STATE v KELLY 1974 IR 259

CONSTITUTION ART 34.1

HAUGHEY, IN RE 1971 IR 217

DK v CROWLEY 2002 2 IR 744

DELLWAY INVESTMENT LTD v NAMA UNREP SUPREME 12.4.2011 2011 IESC 14

QUINN, STATE v RYAN 1965 IR 70

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4.1

1 1. In this application pursuant to Article 40.4.2 of the Constitution the respondent has raised an important issue regarding the scope of this provision and its inter-action with the remedy of judicial review. The applicant maintains that he did not receive due notice of a Circuit Court hearing in May, 2012 as a result of which an earlier District Court conviction (of which he admittedly had notice) was affirmed. He contends that his arrest and detention pursuant to a committal warrant then issued by the Circuit Court is accordingly unlawful. The respondent contends, however, that this issue should more properly be determined by means of an application for judicial review of the warrant, rather than by means of an application under Article 40.4.2.

2 2. In this judgment I am now called upon to resolve this question as a preliminary jurisdictional issue. The issue arises in the following fashion.

3 3. The applicant is currently serving a sentence of four months imprisonment in respect of a series of road traffic offences, including non-display of motor tax, driving without insurance and driving without a driving licence. The summonses first came before the District Court on the 9 ^th May, 2011, whereupon the applicant was assigned legal aid. The Legal Aid (District Court) Certificate was sent to the applicant's solicitor at his business address and a copy was also sent to the applicant at 29 Finnstown Hall, Lucan, Co. Dublin.

4 4. The applicant was subsequently convicted of these offences in the District Court on the 11 ^th January, 2012, whereupon he received a sentence of four months imprisonment. The applicant appealed the conviction to the Circuit Court by filing and serving a notice of appeal and, upon entering into the appropriate recognisance in Mountjoy Prison, he was released pending that appeal. The applicant's solicitor, Simon Fleming, has sworn an affidavit saying that neither he nor the applicant received any notification of an appeal date, although it appears to be the usual practice that such notification is sent to both the appellant and his or her solicitor.

5 5. Matters came to a head on the 15 ^th July, 2012, when a relative of the applicant attended Ronanstown Garda Station where he was informed that there was a warrant in existence for the present applicant. The relative was asked to inform Mr. Bailey that he should attend at that station in order to have the warrant executed. The applicant duly attended Ronanstown Garda Station later that day, whereupon he was arrested on foot of the committal warrant. The committal warrant recites the particular of the conviction in the District Court and goes on then to provide:-

"Whereas the hearing on appeal by the said accused against the said order, the Circuit Court judge for the County and City of Dublin on the 13 ^th June, 2012, ordered as follows: no appearance, strikeout appeal, affirmed conviction and order of the District Court and ordered that the accused be imprisoned for a period of four months."

6 6. Critically, however, that warrant was addressed to the applicant at 17 Shancastle Drive, Clondalkin, Dublin 22. This is, apparently, a former address of the applicant but he has not resided there for some time. Mr. Bailey is currently residing with his mother at 34 Gurteen Avenue, Ballyfermot, Dublin 10. The essence, therefore, of the present complaint is that the applicant's detention in Mountjoy Prison is unlawful by reason of the fact that neither he, nor his assigned solicitor, received any notification of the appeal date, with the result that he did not appear for his appeal.

7 7. This initial application for an inquiry was moved on Thursday, 19 ^th July, 2002. I made an order pursuant to Article 40.4.2 requiring the respondent to certify the grounds in writing and to produce the applicant before me on the following day. On Friday, 20 ^th July, counsel for the respondent, Mr. McGillicuddy, indicated to the court that further time was necessary in order to ascertain the precise sequence of events with regard to the issue of the notification of the appeal date.

8 8. It was agreed that Mr. Bailey should be admitted to bail (on admittedly stringent terms to the following Monday, 27 ^th July). On that occasion Mr. McGillicuddy indicated that yet further time was necessary, although he hoped to have affidavit evidence on behalf of the respondent filed within a matter of days. On Thursday 26 ^th July, Mr. McGillicuddy indicated that there was still difficulties in preparing the affidavit and that it now appeared that affidavits from several different deponents would now be...