BOLGER v Commissioner of GARDA Síochána and Others

• Jurisdiction: Ireland
• Judge: Mr Justice O'Higgins
• Judgment Date: 15 December 1998
• Neutral Citation: [1998] IEHC 176
• Court: High Court
• Date: 15 December 1998

[1998] IEHC 176

THE HIGH COURT

O'Higgins

BOLGER v. COMMISSIONER OF AN GARDA SIOCHANA & ORS

PETER BOLGER

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SIOCHANA

THE CRIMINAL ASSETS BUREAU

THE LONDON METROPOLITAN POLICE COMMISSIONER

RESPONDENTS

Citations:

CONSTITUTION ART 40

CONSTITUTION ART 40.4.2

AG V BLENNERHASSET 67 ILTR 136

MCGLINCHEY V GOV OF PORTLAOISE PRISON 1988 IR 671

LAUNDER V GOV OF BRIXTON PRISON 1998 3 WLR 221

AMAND, IN RE 1941 2 KB 239

ZWANN, IN RE 1981 IR 395

SHEEHAN V REILLY 1993 2 IR 81

EXTRADITION ACT 1989 S11(1) (UK)

Synopsis

- [2000] 1 ILRM 136

For the purposes of this Habeas Corpus application under Article 40 of the Constitution the applicant is no longer in custody on foot of the warrant in respect of which complaint was originally made and therefore the conditional order of Habeas Corpus should be discharged. Further, the applicant is not precluded from raising his points of complaint in the District Court and the Article 40 procedure should not be used as a means of fast tracking complaints more appropriately dealt with through regular court procedures. The High Court so held in discharging the conditional order.

1 JUDGMENT of Mr Justice O'Higgins delivered the 15th day of December 1998

2 This is an application by the first named Respondents to have a Conditional Order under Article 40 of the Constitution discharged. A Conditional Order was made on the 20th October, 1998 by Mr. Justice O'Sullivan. At the time the Order was made the Applicant was being held in custody by members of the Garda Siochana on foot of extradition warrants issued on 25th June, 1998 by Bow Street Magistrates. The Applicant was admitted to bail pending the determination of the extradition proceedings on certain conditions including the condition that he surrender his passport. Later the Applicant was granted leave to seek judicial review of the proceedings pending in the District Court on the grounds that the matter pending in the District Court was res judicata. The grounds on which relief under Article 40 was sought were two fold.

3 1. That the proceedings were mala fides and as a result of a conspiracy against the Applicant and

4 2. That the matter was res judicata, extradition having been refused previously on the same charges.

5 Following an application by the Plaintiff for leave to travel outside the jurisdiction on business, the Court granted the Applicant leave to do so but required the sum of £50,000 to be placed as a bond. Mr. Forde for the Applicant sought leave for an abridgement of time by way of Notice of Motion dealing with the topic as to whether the Applicant is in custody now, because the Court did not make Order remanding him following the stay on proceedings occasioned by virtue of the leave to seek Judicial Review, I indicated that I was not prepared to deal with that matter at this stage, as I considered the point raised as entirely separate from the points at issue in the present inquiry although in the same extradition proceedings. Mr. Forde's application was for a date to deal with that particular matter and I advised him to go to the President of the High Court to look for a date.

6 The application for a discharge of the Conditional Order was based on a number of grounds. Firstly, it was contended that since the Applicant was not in custody he was not being detained and the habeus corpus procedure laid down by the Constitution does not apply, as he is on bail.

7 The second submission was that if it does apply to persons on bail the matters raised by the Applicant, namely, the alleged conspiracy and the res judicata are not proper matters to be determined on the Enquiry under Article 40. Article 40.4.2 reads:

"Upon a complaint being made by or on behalf of any person to the High Court or any Judge thereof alleging that such person is being unlawfully detained, the High Court and every Judge thereof to whom the complaint is made shall forthwith enquire into the said 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".

8 Mr. Barron submits that the words "detention" and "in whose custody he is detained" mean what they say, and, address the person in whose custody the Applicant is detained. Mr. Barron submits that the Applicant is not in custody. He referred me to a passage in the case of The Attorney General -v- Blennerhasset and Others 67 ILTR 136. In that case the Applicants were returned for trial on bail, and, referring to a paragraph which stated that the Applicants were advised by their Solicitor that they were technically in the custody of their sureties, O'Bryne J. said he did not consider that sufficient, and, in the absence of evidence that the Applicants were actually in custody he would not make an Order. Counsel for the first named Respondent also cited a passage from the Judgment of Mr. Justice Gannon in the case of McGlinchey -v- The Governor of Portlaoise Prison 1998 IR 671 at page 692.

"Whether the Special Criminal Court exceeded its jurisdiction in ruling the return for trial valid and in entering upon the trial could have been put in issue upon an application for judicial review. In my view this is not a matter upon which can be based a ruling upon an Enquiry under Article 40 that the person in whose custody Dominic McGlinchey is alleged to be unlawfully detained has failed to justify the detention. The provision of the Constitution requires that such person must have been given an opportunity of justifying the detention. It seems to me that if contraverted questions of fact require to be resolved, recourse must be had to the regular legal process prescribed by the Constitution and established by law. In my opinion Article 40 Section 4 sub-section 2 cannot be properly used as an informal means of obtaining by application: "to The High Court or any and every Judge thereof" the resolution of disputed questions of fact or law previously ruled upon or pending determination under regular Court procedure. If the person detaining the Applicant can show justification for the detention by authority ostensibly lawful, a challenge to the lawfulness of that authority must be made and met by the “authority”. There are regular Court procedures by which this can be done and I do not think the High Court or any Judge thereof would or should anticipate the result by releasing the Applicant in advance of and without the assistance of the regular process."

9 Mr Barron argues that in this case the certificate from Sergeant O'Meara in the Bridewell was produced to Miss Justice Laffoy and she held...