Casey v Governor of Cork Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 13 September 2000
• Neutral Citation: [2000] IEHC 64
• Court: High Court
• Date: 13 September 2000

[2000] IEHC 64

THE HIGH COURT

No. 1180 SS/2000

CASEY v. GOVERNOR OF CORK PRISON

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

DEAN CASEY

APPLICANT

AND

THE GOVERNOR OF CORK PRISON

RESPONDENT

Citations:

FORGERY ACT 1913 S7

CRIMINAL JUSTICE ACT 1984 S13

CUNNINGHAM V GOV OF MOUNTJOY PRISON 1987 ILRM 33

DUTTON V O'DONNELL 1989 IR 218

DALTON V GOV OF TRAINING UNIT GLENGARRIF PARADE 1999 1 ILRM 439

O'DRISCOLL V GOV OF CORK PRISON 1989 ILRM 239

FLYNN V GOV OF MOUNTJOY PRISON UNREP BARRON 6.5.1987 1987/2/653

MCCARTHY, STATE V GOV OF MOUNTJOY PRISON UNREP SUPREME 20.10.1967

CONNORS V DELAP 1989 ILRM 93

Synopsis:

Criminal Law

Criminal; lawful detention; delay in the execution of warrants for the committal of a person to prison; constitutional right to have the warrant for committal to prison served as soon as is reasonably possible; whether satisfactory explanation for delay offered; whether delay due to evasion on the part of the convicted person; whether delay in executing the warrants was excessive and impermissible and consequently an infringement of the applicant's constitutional rights; Article 40.4.2 of the Constitution.

Held: Relief granted; delay was excessive and unfair to Applicant and constituted a denial of his constitutional right to fair procedures.

Casey v. The Governor of Cork Prison - High Court: Herbert J. - 13/09/2000

Warrants for the committal of the applicant had been issued in 1997 and the applicant was eventually arrested and lodged in prison in May 2000. The applicant brought a habeas corpus application claiming that there had been an impermissible delay in the execution of the warrants which amounted to a breach of fair procedures as set out under the Constitution. Herbert J was satisfied that part of the delay in the execution of the warrants arose out of an administrative breakdown in the relevant Garda station. The delay in question was of a magnitude which was altogether excessive and constituted a denial of the applicant’s right to fair procedures. The relief sought by the applicant was accordingly granted.

1 Judgment of Mr. Justice Herbert delivered the 13th day of September 2000.

2 The undisputed facts relevant to this Application are as follows. On the 2nd May 1997 the Applicant was convicted at the District Court for Limerick City on charges relating to Section 7 of the Forgery Act, 1913 and Section 13 of the Criminal Justice Act, 1984and was sentenced to two concurrent periods of imprisonment of 10 months and 3 months. The Applicant lodged an Appeal against this Order and having entered into a recognisance to prosecute this Appeal was released on bail. On the 7th October 1997 the Appeal came on for hearing before Limerick Circuit Court. The Applicant did not appear and the Appeal was struck out and the Order of the District Court affirmed.

3 On the 31st October 1997 two warrants for the committal of the Applicant to prison were signed by a Judge of the District Court and directed to the Superintendent of An Garda Siochána at Henry Street Garda Station Limerick. These warrants were stamped, "Received" at Henry Street Garda Station on 3rd November 1997. The warrants were not executed and on the 18th June 1998 were reissued for six months from that date by a Judge of the District Court. The Applicant was arrested and lodged in Limerick Prison on the 11th of May 2000.

4 It is clear from the authorities that excessive delay in the execution of such warrants for the committal of persons convicted to prison is prima facie a breach of the right of such a person to fair procedures as guaranteed by Article 40.4.2 of the Constitution of Ireland, 1937. Such warrants must be executed as soon as is reasonably possible, (Cunningham -v- The Governor of Mountjoy Prison (1987) ILRM, 33 per, Egan, J., Dutton -v- District Justice Aidan O'Donnell and Others (1989)IR218 per, Barron J., Dalton -v- The Governor of the Training Unit Glengarriff Parade, Dublin and Others, (1999) 1ILRM 439 per, Morris P.,). What amounts to excessive and impermissible delay will depend upon the facts of each individual case, (Cunningham -v- The Governor of Mountjoy Prison,(above cited), Dulton -v- District Justice Aidan O'Donnell and Others, (above cited).

5 In determining in each case whether there has been delay in the execution of warrants for the committal of a person to prison and whether that delay has been excessive the Court is entitled to take into account any explanation properly offered in evidence by the Executive for that delay and to consider whether such explanation is satisfactory to excuse the delay, entirely or in part, having regard to the convicted persons constitutional right to have the warrant for committal to prison served upon him or her as soon as is reasonably possible. (Cunningham -v- The Governor of Mountjoy Prison (above cited), O'Driscoll -v- The Governor of Cork Prison (1989) ILRM239 per, Lynch J., Dutton -v- District Justice Aidan O'Donnell and Others, (above cited), Dalton -v- The Governor of the Training Unit, Glengarriff Parade, Dublin, (above cited). The Court is also entitled to take into account any admissible evidence that the delay in the execution of the warrant for committal to prison was due to evasion on the part of the convicted person, (The State at the prosecution of Bernard Flynn -v- The Governor of Mountjoy Prison (The High Court, 1986 No. 572, S.S.), (6th May 1987), 653, per Barron J.,), or that the delay was contributed to in some other way by the conduct of the convicted person, (O'Driscoll -v- The Governor of Cork Prison,(above cited), Dalton -v- The Governor of the Training Unit, Glengarriff Parade, Dublin, (above cited).

6 It was argued by Counsel for the Respondent that if the Applicant is to succeed in this Application he must prove, not only that there was delay in the execution of the warrants for committal to prison and that this delay was excessive, but must also prove that he has suffered prejudice as a result. It is argued that because the Applicant was at liberty between the date of conviction and the date of execution of the warrants he has not suffered any prejudice and therefore should not succeed at this Application. In my Judgment a sufficient answer to this argument is to be found in the Judgment of Barron J., in the case of State (Flynn) -v- The Governor of Mountjoy Prison. (to which I have previously referred), in a passage cited with approval by Morris, P., at page 443 of his Judgment in the case of Dalton -v- The Governor of the Training Unit, Glengarriff Parade, Dublin, (to which I have also previously referred), and is as follows:-

"it is implicit that a warrant should be issued there and then when the sentence is to be imposed, and where the sentence is imposed on Appeal, as soon as reasonably possible. Likewise, once it has issued, it must be executed as soon as is reasonably possible. If not, then a Defendant sentenced to a term of imprisonment may find himself or herself serving such sentence at a future date merely through a failure of administrative processes. The term of sentence is not its only feature; its commencement date is equally important. If it is likely to be delayed, then there can be no certainly as to the sentence imposed; and if it is delayed, then the sentence served may well not be the sentence imposed".

7 It has not been argued before this Court that the two warrants for the committal of the Applicant to prison were spent on the 11th May 2000 and that accordingly the terms of imprisonment to which they relate could not have been validly enforced. If the warrants were reissued on the 4th May 2000 the validity of the reissue of the warrants has not been challenged and accordingly as execution of the warrants was effected on the 11th May 2000 it cannot be said that the execution was excessively delayed, (State (Flynn) -v- The Governor of Mountjoy Prison, (above cited), per Barron J., at page 659).

8 Photocopies of the warrants dated 31st October 1997, (the originals of which were not before the Court and could not be furnished on the hearing of this Application), were put into evidence before the Court at the hearing of this Application at Exhibit, "B" in the Affidavit of the Applicant sworn on the 18th July 2000 and at Exhibit, "A" in the Certificate of the Governor of Cork Prison as to the Grounds for the Detention of the Applicant...