Byrne v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 10 June 2008
• Neutral Citation: [2008] IEHC 184
• Court: High Court
• Docket Number: Record Number: No. 792 SS/2008
• Date: 10 June 2008

Byrne v Governor of Mountjoy Prison

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT

TO ARTICLE 40.4.2 OF BUNREACHT NA H-EIREANN 1937

BETWEEN:

JAMES BYRNE

APPLICANT

AND

THE GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

[2008] IEHC 184

Record Number: No. 792 SS/2008

THE HIGH COURT

CONSTITUTIONAL LAW

Liberty

Lawfulness of detention - Fair procedures - Ex parte application for re-issue of warrants - Remand on bail - Consent to bail - Immediate re-arrest - Whether application for re-issue for warrants without notice and consent to bail in knowledge of possibility of immediate re-arrest amounted to breach of fundamental rights - Deprivation of opportunity to contradict contents of certificate - Absence of evidence regarding contrary information available - Whether obligation to inform solicitor of intended application - Distinction between courtesy and obligation - Brennan v Windle [2003] 2 ILRM 50 and Daly v Coughlan [2006] IEHC 126 (Unrep, McMenamin J, 10/3/2006) distinguished; State (McDonagh) v Frawley [1978] IR 131 considered - Constitution of Ireland 1937, art 40.4.2 - District Court Rules 1997 (SI 93/1997), O 26 - Application refused (2008/792SS - Peart J - 10/6/2008) [2008] IEHC 184

Byrne v Governor of Mountjoy Prison

Facts: The applicant was arrested and remanded on bail. Four unexecuted warrants existed in respect of the applicant and the District Court was asked to re-issue them. In a different courtroom immediately thereafter a different judge remanded the applicant on bail and the prosecuting Garda gave no indication that the warrants had been re-issued. The applicant alleged that the manner in which Garda conducted himself by re-issuing a warrant without notice to the applicants’ solicitor and consenting to bail knowing that there was a doubt about the address of the applicant and that he would arrest the applicant on foot of the warrants, amounted to an abuse of process. The applicant alleged that his fundamental rights had been breached and that his detention was lawful.

Held by Peart J. that the detention of the applicant was in accordance with law and that the reliefs sought would be refused.

Reporter: E.F.

CONSTITUTION ART 40.4.2

DCR O.26 r 11

DCR SCHED B FORM 26.4

BRENNAN v WINDLE 2003 2 ILRM 520

DALY v COUGHLAN UNREP MACMENAMIN 10.3.2006 2006/14/2935 2006 IEHC 126

CONSTITUTION ART 40.4

CONSTITUTION ART 40

STATE (MCDONAGH) v FRAWLEY 1978 IR 131

Judgment of

Mr Justice Michael Peart

1 The applicant was arrested in the early hours of the 26^th May 2008 by Garda Paul Oates attached to Blanchardstown Garda Station, in relation certain alleged offences, and later that morning was brought before Judge Brian Smyth sitting in District Court 44 at the Bridewell, Dublin 7. A solicitor was duly assigned to represent him and following evidence of arrest, charge and caution, he was remanded on bail to appear again before that court on the 3^rd June 2008.

2 On the same occasion, Garda Oates, having become aware also that there were four unexecuted warrants in respect of the applicant, all of which had not been executed within the required time, asked Judge Smyth to re-issue these warrants, whereupon it appears the judge declined to do so since there was no certificate accompanying the application which set forth the basis on which the judge was being asked to exercise his discretion to so re-issue them. That application was made while the solicitor appointed under the Legal Aid Scheme to represent the applicant, was still present in court, and it appears that she submitted to that judge that in the absence of such a certificate the warrants could not be re-issued. The evidence of Garda Oates has been that he is inexperienced but that a sergeant in the court on that occasion advised him that the required certificate was that prescribed by Order 26, rule 11 of the District Court Rules 1997 at Form 26.4 in Schedule B thereof

3 By the 3^rd June 2008, he had prepared such a certificate and had also ascertained from a colleague, Garda Petrie, that the whereabouts of the applicant had not been known for some time and that he had been moving between addresses. He has stated that the certificate so indicated as the reason for the need for re-issue of the warrants. It appears that the address for the applicant in these warrants is an address of an aunt of the applicant, and Garda Petrie had confirmed to him that her inquiries with this aunt in the past had satisfied her that the applicant as not welcome at that address.

4 The evidence before me has been that on the 3^rd June 2008 the applicant's cases before Judge Smyth in Court 44 were put back for a short while, during which period, and without notification, formal or informal, to the applicant's solicitor, Garda Oates attended before Judge Mary Collins in Court 52, Richmond Courts, being the Court which had originally issued three of four the warrants sought to be re-issued, the last being a warrant issued from Edenderry District Court, and made application for the re-issue of all four warrants. Garda Oates has stated in evidence before me that he produced the required certificate in respect of each warrant, sought their re-issue, informing Judge Collins that the applicant was at that time present in Court 44. Thereupon, Judge Mary Collins granted the applications having asked him if what was contained in the certificates was correct. None of these certificates has since been located by the District Court office between that date and when this application came before me on the 6^th June 2008. They appear to have become mislaid.

5 Having had these warrants re-issued by Judge Collins, Garda Oates returned to Court 44 where Judge Smyth was sitting. The applicant's cases were called, and he was remanded on bail to the 1^st July 2008, Garda Oates indicating to the Court that there was no objection to bail. No indication was given either to that Court or to the applicant's solicitor that in fact these four warrants had been re-issued and that Garda Oates intended arresting the applicant outside the Court following his being further remanded on bail. Garda Oates has stated that once the applicant left the Court he spoke to the applicant and explained that he was then arresting the applicant on foot of these warrants and did so and handed copies of the warrants in question to the applicant. In cross-examination Garda Oates conformed that at the time he made the application to renew these warrants on the 3^rd June 2008 he knew that the applicant was legally represented, and also that he did not inform Judge Smyth when consenting to bail on that date that there was some concern about the address at...