Breathnach -v- D.P.P. & ors, [2001] IESC 23 (2001)

Judge:Geoghegan J.
Party Name:Breathnach, D.P.P. & ors
Docket Number:233/99
 
FREE EXCERPT

THE SUPREME COURT

IN THE MATTER OF ARTICLE 40.4.2.

OF THE CONSTITUTION OF IRELAND 1937

AND IN THE MATTER OF CERTAIN PURPORTED

HIGH COURT EX PARTE PROCEEDINGS RELATING

TO RECORD NO. 2010 SS OF 1998

BETWEEN/

STIOFÁN BREATHNACH

Applicant/Appellant

and

DIRECTOR OF PUBLIC PROSECUTIONS,

ATTORNEY GENERAL AND MANAGER OF

WHEATFIELD PLACE OF DETENTION

Respondents

Judgment of Mr. Justice Geoghegan delivered 22nd day of February 2001

Notwithstanding the unorthodox and indeed impermissible title given to the proceedings by the applicant/appellant, this is quite simply an appeal from a refusal by the High Court (Carney J.) to order an inquiry under Article 40.4.2 of the Constitution into the lawfulness or otherwise of the detention of the appellant. The ruling of Carney J. reads as follows:

"The applicant is not entitled to name as intended respondents persons who by virtue of their office are not amenable to judicial review. The applicant is not a political prisoner and is not entitled to describe himself as such. The legality of the applicant's detention has been affirmed on innumerable occasions by the Superior Courts and also recently by the Court of Criminal Appeal. I find nothing in the instant application which would justify any further inquiry into the same. This application is refused."

There is no doubt that, on procedural grounds alone, Carney J. was entitled to refuse to entertain this application. With the possible exception of the last three respondents it was wholly wrong, improper and an abuse of the process of the courts to have named the other respondents in an Article 40 Application. These other respondents ought to be struck out from the title. Furthermore, the grounding affidavit contained a large number of matters which were irrelevant to the simple issue of whether the appellant was entitled to an order for his release or not. It has long been held by this Court that an Article 40 Application should be confined to that issue.

In my view it would have been open to this Court to have dismissed this appeal on similar grounds to the grounds on which the inquiry was refused by Carney J. But as the grounding papers had been drafted by the appellant himself without legal assistance and as it was made clear by counsel for the appellant that the appeal was essentially being confined to certain specified points, the Court entertained the appeal in the sense of considering the application on its merits.

FIRST POINT:

The appellant is currently serving a number of prison sentences, the longest being for fifteen years arising out of a conviction in the Special Criminal Court in November, 1993. It is argued on behalf of the appellant that the Special Criminal Court, which tried him, derived its jurisdiction to do so from a certificate of the Director of Public Prosecutions under section 47 of the Offences against the State Act, 1939, and that no proper...

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