Brady v Judge Haughton and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 22 July 2003
• Neutral Citation: [2003] IEHC 99
• Court: High Court
• Docket Number: [No. 181/J.R. 2002]
• Date: 22 July 2003

BRADY v. JUDGE HAUGHTON & ORS

Between

JASON BRADY

Applicant

-and-

DISTRICT JUDGE GERARD HAUGHTON, THE COMMISSIONER OF AN GARDA SÍOCHÁNA and THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent

[2003] IEHC 99

[No. 181/J.R. 2002]

THE HIGH COURT

Synopsis:

JUDICIAL REVIEW

Certiorari

Leave - Order made in absence of applicant or legal advisors - Whether violation of constitutional rights - Criminal Justice Act, 1994 section 51 - Police Property Act 1897 (2002/181 - O Caoimh J - 22/7/2003)

Brady v Haughton - [2004] 1 ILRM 321

This was an application for an order quashing the order of the District Judge in purported compliance with the terms of s. 51 of the Criminal Justice Act 1994 concerning certain items of clothing and the property of the applicant. The grounds upon which relief was sought was inter alia that the order had been made in the absence of the applicant or his legal advisors and the property was the subject of a Police Property Act 1897 application.

Held by Ó Caoimh J. in refusing the application that the application under s. 51 did not involve the administration of justice and there was no requirement for such an application to be made before any court and that it was permissible for the application to be made by a person designated under law to perform the function of receiving evidence and having same transmitted to the Minister.

Citations:

CRIMINAL JUSTICE ACT 1994 S51

CONSTITUTION ART 40

POLICE PROPERTY ACT 1897 S1(1)

CRIMINAL JUSTICE ACT 1994 PART VII

CRIMINAL JUSTICE ACT 1994 51(1)(A)

CRIMINAL JUSTICE ACT 1994 S51(1)(B)

CRIMINAL JUSTICE ACT 1994 S51(2)(A)

CRIMINAL JUSTICE ACT 1994 S51(2)(B)

MCDONALD V BORD NA GCON 1965 IR 217

SALINAS DE GORTARI V SMITHWICK (NO 2) 2000 2 IR 553

QUINLIVAN V GOVERNOR PORTLAOISE PRISON 1998 2 IR 113

MULLINS V HARNETT 1998 4 IR 426

CRIMINAL JUSTICE ACT 1994 SCH II

PETTY SESSIONS (IRL) ACT 1851 S13

PETTY SESSIONS (IRL) ACT 1851 S13(1)

PETTY SESSIONS (IRL) ACT 1851 S13(5)

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959

DPP V HEALY 1990 2 IR 73

CRIMINAL JUSTICE ACT 1994 S55(3)

CRIMINAL JUSTICE ACT 1994 S55(10)

PROTOCOL TO THE MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1978

CRIMINAL JUSTICE ACT 1984

CRIMINAL PROCEDURE ACT 1967

POLICE PROPERTY ACT 1897 S1(2)

KEEGAN V DE BURCA 1973 IR 223

DILLON V O'BRIEN & DAVIES 1887 20 LR IR 300

MURPHY V DPP 1989 ILRM 71

JENNINGS V QUINN 1968 IR 305

EAST DONEGAL CO-OPERATIVE V AG 1970 IR 317

CRIMINAL JUSTICE ACT 1994 S52

CRIMINAL JUSTICE ACT 1994 S51(1)

CRIMINAL JUSTICE ACT 1994 S51(2)

CRIMINAL JUSTICE ACT 1994 S51(3)

CRIMINAL JUSTICE ACT 1994 S51(4)

CRIMINAL JUSTICE ACT 1994 S51(5)

CRIMINAL JUSTICE ACT 1994 S51(5)(2)

CRIMINAL JUSTICE ACT 1994 S51(6)

COURTS ACT 1971 S14

POLICE PROPERTY ACT 1897 S1(1)

1 Leave to seek judicial review by way of certiorari quashing the order of the first named respondent herein made on the 25 ^thMarch, 2002 sitting at District Court No. 50 in purported compliance with the terms of s.51 of the Criminal Justice Act 1994concerning certain items of clothing the sole property of the applicant herein, photographs, fingerprints and confidential medical records, of the applicant.

2 An order by way of interim relief restraining the second named and third named respondents their servants and agents from dealing in any way with the said property, photographs, fingerprints and confidential medical records of the applicant now in the possession of both or either of them that might result in the said property being removed from or made unamenable to the jurisdiction of the District Court pending further order of this Court.

3 Leave to seek by way of further interim relief an order directing the second named and third named respondents their servants and agents to refrain from interference with and to retain safely and in their care and custody and without any interference whatsoever they said photographs, fingerprints and confidential medical records of the applicant, clothing, the property of the applicant and the subject matter of the said order of the first named respondent herein made the 25 ^th March, 2002.

4 An order providing for the costs of these proceedings.

5 Judicial review by way of a declaration that s.51 of the Criminal Justice Act 1994is repugnant to the Constitution.

6 Judicial review by way of a declaration that the order of the first named respondent herein made on the 25 ^th March, 2002 sitting at District Court No. 50 in purported compliance with the terms of s.51 of the Criminal Justice Act 1994failed to respect personal rights of the Applicant guaranteed by Article 40 of this Constitution.

7 Judicial review by way of declaration that proceedings before the District Court pursuant to s.51 of the Criminal Justice Act are judicial proceedings and accordingly subject to the constitutional imperatives and safeguards which inhere thereby.

8 Judicial review by way of a declaration that the seeking and procuring of the said order in the circumstances that obtained by the second and third named respondents, in so far as they acted in concert, failed to respect the constitutional rights of the applicant.

9 Judicial review by way of an order prohibiting further conduct of the said proceedings until further order of the Court.

10 Damages.

The grounds upon which this relief is sought are as follows:

1 The first named respondent's order was made in the absence of the applicant and without any or any due notice to him or his legal advisers.

2 The said order was made in respect of items of clothing which the respondents each well knew were the subject of a Police Property application pursuant to the Police Property Act, 1897 to be made to the District Court on the 26 ^th March, 2002, due notice of the said application having been given by the applicant to the second named respondent and the relevant District Court Clerk on or about the 5 ^th March, 2002.

3 The first named respondent's order was made in the absence of the applicant, the requirement of fair procedures and in particular the absence of any due notice to the applicant or his legal representatives.

4 In the circumstances the order made was a deliberate and conscious violation of the applicant's constitutional rights to fair procedures and constitutional rights in relation to private property and to fair procedures.

5 The first named respondent did not act in judicial manner, although purporting to do so, in permitting the application to proceed in the absence of notice to the applicant.

6 The said order was sought by or behalf of the second or third named respondents or either of them when both of them or one of them had previously been put on express notice that the applicant was in the course of applying to the District Court for a remedy provided to him by statute in relation to the said clothing and when both of them or one of them were aware that the grant to the said order would inhibit the applicant and frustrate him in his approach to the District Court the said respondent failed to respect the constitutional rights of the applicant and was a perversion of the course of justice.

7 The proceedings and subsequent order of the first named respondent herein made on the 25 ^th March, 2002 sitting at District Court No. 50 pursuant to s.51 of the Criminal Justice Act 1994are breaches of the rules of natural and constitutional justice and the principles of Audi alterem partem and Nemo tenetur se ipsum accusatare.

8 The proceedings and subsequent order of the first named respondent herein made on the 25 ^th March, 2002 sitting at District Court No. 50 pursuant to s.51 of the Criminal Justice Act 1994are breaches of the applicant's right to private property, to privacy, to bodily integrity, to trial in due course of law, the right to prior notice and legal advice and representation in relation to judicial proceedings, to his liberty and to justice and fair procedures.

9 In so far as the said s.51 provides a means to alienate in whole or in part to other States the conduct or control of security and home affairs, namely the maintenance and promotion of criminal justice, it is inconsistent the Constitution.

10 In all the circumstances, the said investigation is in breach of the applicant's constitutional rights.

The applicant complains that the order of the first respondent was made in his absence and without any notice to him or his legal advisors. The applicant also complains that the order was made in circumstances where he had pending in the District Court a Police Property Act application due to be made on the following date, the 26 ^th March, 2002 in circumstances where it is stated that notice of this application was given to the second respondent and the District Court on or about the 5 ^th March, 2002.

In these circumstances it is pleaded that the impugned order was made in deliberate and conscious violation of the applicant's constitutional rights to fair procedures and contrary to his rights to private property and to fair procedures. It is complained that the second respondent did not act in a judicial manner, although purporting to do, so, in permitting the application to proceed in the absence of notice to the applicant.

The application is grounded upon an affidavit of the applicant's solicitor who deposes to the fact that the applicant is currently serving a prison sentence at Mountjoy Prison. It is stated that certain items of the plaintiff's clothing were seized and retained at Ballymun Garda Station when he was detained there in the month of December, 2001, apparently in the context of a criminal investigation within the State. It is stated by the applicant's solicitor that he is instructed that the applicant had been in England prior to that date and returned voluntarily to Ireland in December, 2001.

The case is made that on the 25 ^th January, 2002 the applicant was...