Burke v The Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 12 February 2023
• Neutral Citation: [2023] IEHC 177
• Court: High Court
• Docket Number: Record No. 2023 / 522 SS

In the Matter of an Application Pursuant to Article 40.4.2 of the Constitution of Ireland 1937

Between:-

Simeon Burke

Applicant

and

The Governor of Cloverhill Prison

Respondent

[2023] IEHC 177

Record No. 2023 / 522 SS

THE HIGH COURT

Inquiry – Unlawful detention – Standing – Applicant seeking an inquiry into the legality of his detention – Whether the applicant's sister had locus standi to make the application for an inquiry on behalf of the applicant

Facts: An application to the High Court was brought on behalf of the applicant, Mr Burke, for an inquiry into the legality of his detention in Cloverhill prison. That detention was based upon the remand committal warrant issued by the District Court on 7th March, 2023 and continued thereafter from time to time. That detention was based on the legality of the original arrest in respect of the alleged offence contrary to s. 6 of the Criminal Justice (Public Order) Act 1994 (as amended). The application was moved before the High Court by the applicant's sister, Ms Burke. It was grounded upon an ex parte docket which was undated and unsigned and on an unsworn affidavit, which was purportedly the account that the applicant wished to put before the court. The background to the applicant's complaints in relation to the legality of his detention in Cloverhill prison arose out of the events which took place in the Four Courts, Dublin 7, on 7th March, 2023.

Held by Barr J that, in appropriate circumstances, it is permissible for third parties to make an application seeking the direction of an inquiry into the legality of a person's detention; the wording of Article 40.4.2 of the Constitution makes that clear when it provides that such an application may be made “by or on behalf of” a detained person. Accordingly, Barr J found that Ms Burke had locus standi to make the application on behalf of her brother. Barr J held that the fact that the applicant was offered bail when first brought before the District Court, on condition that he provide his own bond of €200 and on condition that he should stay away from the Four Courts, until the trial, which was due to be heard on 17th April, 2023, did not prevent the applicant seeking an inquiry into the legality of his detention in Cloverhill prison. Barr J held that the fact that the applicant could bring that detention to an end by agreeing to the conditions on which bail was offered to him did not deprive him of the right to challenge the legality of his continued detention, citing McMahon v Leahy [1984] IR 525. Barr J was satisfied that, given the importance of the right to liberty, the threshold for seeking an inquiry into the legality of a person's detention pursuant to Article 40.4.2 of the Constitution should be a low bar. It seemed to Barr J that having regard to the matters that were averred to in the unsworn affidavit produced in the name of the applicant, he had raised matters on which the High Court should inquire into the legality of his continued detention in Cloverhill prison.

Barr J directed that an inquiry be held into the legality of the applicant's continued detention by the respondent, the Governor of Cloverhill Prison. Barr J directed that that inquiry would be held at 11.00 hours on 13th April, 2023, or at such time thereafter as may be directed by the vacation judge dealing with the list. Barr J made an order directing that the respondent produce the applicant before the High Court in the Four Courts on 13th April, 2023 at 11:00 hours.

Application granted.

JUDGMENT ofMr. Justice Barrdelivered extempore on 12th April, 2023.

1 . This is an application brought on behalf of the applicant for an inquiry into the legality of his detention in Cloverhill prison. The application was moved before the court by the applicant's sister Ms. Ammi Burke. It was grounded upon an ex parte docket which was undated and unsigned and on an unsworn affidavit, which was purportedly the account that the applicant wished to put before the court.

2 . The background to the applicant's complaints in relation to the legality of his detention in Cloverhill prison, arises out of the events which took place in the Four Courts, Dublin 7, on 7 ^th March, 2023. At 14:00 hours that day, the applicant and other members of his family had attended in the Court of Appeal to hear its judgment in a case that concerned the applicant's brother.

3 . The applicant states that he was present in the courtroom taking notes. He stated that during the delivery of the judgment of the Court of Appeal, after several objections had been raised by members of his family during the delivery of the judgment, the court rose to deliver its judgment electronically. Thereafter, the applicant alleges that he was seized by members of An Garda Síochána, who grabbed him forcibly around the neck and other parts of his anatomy. He states that he was dragged out of the courtroom and out of the Court of Appeal building. He states that he was dragged across the interior yard of the Four Courts and was then put out onto the public footpath. He states that his clothing was torn and he was injured, was bleeding and was in shock.

4 . The applicant alleges that he was then bundled into a Garda vehicle and was removed to the Bridewell Garda station. He alleges that in breach of the Garda Custody Regulations, he was not informed of the offence or matter for which he had been arrested. He stated that he did not know why he was being detained. He states that he was put into a cell in the police station.

5 . The applicant states that approximately one hour later, at 16.20 hours he was taken out of the cell and was charged by Sgt David O'Leary with an offence contrary to s. 6 of the Public Order Act 1994 (as...