Carroll v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 12 January 2005
• Neutral Citation: [2005] IEHC 2
• Court: High Court
• Docket Number: [2004 No. 2074 SS]
• Date: 12 January 2005

[2005] IEHC 2

THE HIGH COURT

No: 2074 SS/2004

CARROLL v GOVERNOR OF MOUNTJOY PRISON

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY UNDER ARTICLE 40.4. OF BUNREACHT NA H-EIREANN

BETWEEN:

DESMOND CARROLL

APPLICANT

AND

THE GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

CONSTITUTION ART 40.4

CADDLE, STATE v JUDGE MCCARTHY & ORS 1957 IR 359

PETTY SESSIONS (IRL) ACT 1851 S25

RSC O.86 r36

O'MALLEY SENTENCING LAW AND PRACTICE 2000 ED PARA 10-29

R v GOV OF LEWES PRISON EX PARTE DOYLE 1917 2 KB 254

WOODS, IN RE 1970 IR 154

EUROPEAN ARREST WARRANT ACT 2001

BLACKHALL, STATE v MANGAN 1952 87 ILTR 6

MCCARTHY, STATE v GOVERNOR OF MOUNTJOY PRISON 1997 2 ILRM 361

MCDERMOTT PRISON LAW

CRIMINAL JUSTICE ADMINISTRATION ACT 1914 S17

HOLDEN, STATE v GOVERNOR OF PORTLAOISE PRISON 1964 IR 80

WALSH v GOV OF LIMERICK PRISON UNREP LAFFOY 31.7.1996 1996/15/4789

MCDONAGH, STATE v FRAWLEY 1978 IR 131

MCNALLY, STATE v O'DONOVAN 1974 IR 272

TYNAN, IN RE 1969 IR 273

Whether court having duty to consider all issues

State (Caddle) v Judge McCarthy [1957] IR 359;

State (Holden) v Governor of Portlaoise Prison [1964] IR 80;

State(Blackall) v District Justice Mangan (1953)87 ILTR 65

State (McCarthy) v Governorof Mountjoy Prison [1997] 2 ILRM 361 followed - Constitution of Ireland 1937, art 40.4 - Habeas corpus granted

The applicant was tried and convicted in his absence on fourteen counts. He was sentenced in his absence to three terms of imprisonment and it was ordered that such sentence was to 'commence from the date of the arrest and imprisonment of the accused.' It was not stated whether the sentences were to run concurrently or consecutively. Subsequently, the applicant was arrested and detained and an application for habeas corpus was made on his behalf.

Held by Peart J. in ordering the release of the applicant from custody: 1. That the applicant's detention was unlawful by reason of the uncertainty as to the length of the period of imprisonment having regard to the ambiguity as to the date of commencement of the term. There was genuine uncertainty in this case, which could not have been cleared up by reference to the warrants themselves, or any other documents.

1 Mr Justice Michael Peart delivered on the 12th day of January 2005:

2 At the outset it is desirable to state that on 20th December 2004, an application for Habeas Corpus was made on behalf of the applicant, which was made returnable for the following day, the 21st December 2004. On that occasion, the Respondent produced the applicant to the Court and certified the grounds for his detention. I heard argument from both sides, and on the following day the 22nd December 2004 I delivered an ex tempore judgment given the fact that it was out of term, and that from the commencement of the new term until the end of January 2005, I would be out on Circuit and unable to give a written judgment at a date early enough to meet the urgency of the case. I indicated at the time that I would give an outline ex tempore of my reasons for finding that the detention of the applicant was unlawful, and that I would give a more fully reasoned judgment in due course.

3 While I am still of the view that the detention of the applicant was unlawful, my further consideration of the facts, submissions and relevant case-law has led me to conclude that this is so for a reason which is other than the reason mainly relied upon in my ex tempore ruling, albeit a reason touched upon by me and which I intended at the time to expand upon to some extent.

4 Firstly, in my ex tempore judgment I did not deal fully with one of the grounds put forward by the applicant, namely the ground relating to the lack of certainty as to the date from which the sentences were to commence. I intended to do so, but in the pressure of the moment, overlooked to a large extent that part of my reasoning. I now set out my reasons under this head of argument.

5 Secondly, following some further consideration and research which time has permitted, I am not satisfied now that what I said ex tempore, and without opportunity for adequate research, is correct in relation to the failure of the trial judge to specify whether the sentences passed were to run concurrently or consecutively. I should perhaps add that during argument the Court was not referred to authority on this aspect of the application. I will deal with that ground in more detail in due course.

6 Nevertheless, I was at the time, and still am satisfied that the detention of the applicant was unlawful for the reason appearing.

7 The applicant was tried and convicted by a jury in his absence on fourteen counts. His trial had taken place over a period of eleven days from the 22nd January 2002 to the 5th February 2002. The trial judge adjourned sentencing until the 14th March 2002, and on that date, again in the absence of the applicant, sentenced the applicant in the following terms:

"the Court...Doth Order that the accused be imprisoned for a period of nine years on Counts No.1 and 4 and for six years on Counts 2 and 5 and for three years on Counts 11,12 and 13 with Counts 3,6,7,8,9,10 and 14 taken into consideration and Doth Order that such sentence do commence from the date of the arrest and imprisonment of the accused."

8 I should immediately draw attention to the fact that it is not indicated in this document whether these sentences are to run concurrently or consecutively, and that the date of commencement is some as yet unascertained date in the future.

9 The concluding paragraph of this "Warrant for Imprisonment" states as follows:

"This is to command you to whom this warrant is addressed to arrest the said Desmond Carroll of De Largey Avenue, Dundalk, Co. Louth and lodge him in Mountjoy Prison and there to undergo the above sentence."

10 The warrant was addressed to the Superintendent, Garda Siochana, Bridewell, Dublin 7, and is signed "M O'Neill, Acting County Registrar for Dublin".

11 In this regard I would draw attention at this point to the fact that this is a warrant addressed to the Superintendent, Garda Siochana to arrest the applicant, and it is not the document which is more usually issued by the Court of trial following conviction and sentence, which is a document known as a "Return of Prisoner under Rule or Sentence" and which is addressed to the Governor of the Prison in which the convicted person is to be received for the purpose of undergoing sentence. It is something of a hybrid document created by combining elements of the normal Return of Prisoner under Rule or Sentence, with what one would find in a Bench warrant.

12 On the return of this application for Habeas Corpus before me on the 21st December 2004, the Assistant Governor of Mountjoy Prison certified that he held the applicant in custody "pursuant to warrants dated 14th October 2002", and he attached seven such warrants marked A to F inclusive, and each being in respect of a Count in respect of which the applicant was convicted and sentenced in his absence on the 14th March 2002.

13 It is immediately apparent that the warrants under which the applicant is held in custody post-date the date of sentence by seven months. The reason for this seems to be, though there is no averment to this fact, that the applicant was not within the jurisdiction for the purpose of his arrest pursuant to the Warrant for Imprisonment issued on the 14th March 2002, and the authorities sought his rendition from Northern Ireland. For that purpose it would appear that the Warrant for Imprisonment document which is signed by "M O'Neill Acting County Registrar" was not sufficient for the Northern Ireland authorities, and that in its place the seven individual warrants to which I have already referred were prepared, and which relate to each of the offences for which the applicant was convicted and sentenced, and each was signed by the trial judge rather that by the Acting County Registrar. In all other respects each warrant is in the same terms as the Warrant for Imprisonment, and are addressed to "The Superintendent, An Garda Siochana, Bridewell Garda Station, Chancery Place, Dublin 7".

14 These seven new warrants were backed in the usual way and each bears an indorsement indicating that the warrants were executed, almost two years later, by the arrest of the applicant by a member of the Northern Ireland Police at 10.15am on the 15th June 2004 at Magilligan prison. Each bears a further indorsement dated 2nd July 2004 which states:

"Executed warrant on the 2/7/04 by arresting Desmond Carroll and lodging him in Mountjoy Prison".

15 This is signed by a member of An Garda Siochana.

16 Blaise O'Carroll SC on behalf of the applicant raises a number of matters which in his submission render the detention of the applicant unlawful. These are conveniently set forth in the affidavit of the applicant sworn on the 20th December 2004, paragraph 4 thereof, as follows:

17 a " (a)...they do not authorise and/or empower the Respondent to receive and/or detain the Applicant in Mountjoy Prison, inter alia in respect of the several sentences imposed on him in his absence for the offences set out therein by the Honourable Circuit Court Judge, Frank O'Donnell on the 14th March 2002.

18 b (b)... the said warrants in the singular and severally are bad on their face more particularly in that they do not contain any words commanding the Governor of the Penal Institution, Mountjoy Prison, where the applicant is presently detained on foot thereof, to receive into his custody the Applicant named in the aforesaid Warrants.

19 (c) The said sentences imposed by the Honourable Judge of the Circuit Court on the 14th March 2002 are not clear and/or certain in respect of:

20 (i) the period of time that the applicant has been sentenced for...