Clarke v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 12 May 2011
• Neutral Citation: [2011] IEHC 199
• Court: High Court
• Docket Number: [2011 No. 868
• Date: 12 May 2011

[2011] IEHC 199

THE HIGH COURT

[No. 868 SS/2011]

Clarke v Governor of Cloverhill Prison

IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND

BETWEEN

MARK CLARKE

APPLICANT

AND

GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

CONSTITUTION ART 40.4.2

BAIL ACT 1997 S6(5)

BAIL ACT 1997 S6(6)

BAIL ACT 1997 S6(8)

BAIL ACT 1997 S1

ADAMS v DPP & ORS 2001 2 ILRM 401 2000/1/52

BAIL ACT 1997 S6A

CRIMINAL JUSTICE ACT 2007 S10

AG, PEOPLE v O'CALLAGHAN 1966 IR 501

DPP v MCLOUGHLIN 2010 1 ILRM 1 2009/18/4254 2009 IESC 65

HAUGHEY, IN RE 1971 IR 217

MAGUIRE & ORS v ARDAGH & ORS 2002 1 IR 385

MCKEON v DPP UNREP SUPREME 12.10.1995 1998/25/9920

DPP v MCGINLEY 1998 2 IR 408 1998 2 ILRM 233 1998/16/5791

VICKERS v DPP 2010 1 IR 548 2009/57/14546 2009 IESC 58

CRIMINAL LAW

Bail

Evidence - Hearsay evidence - Informer's privilege - Whether recognised evidential basis for admission of hearsay evidence from anonymous source - Whether strictly necessary - Revocation of bail - Whether District Judge personally satisfied as to adequacy of objections - Whether District Judge failed to exercise independent judgment - Whether order for revocation of bail may only be made by Judge who made the order admitting the person to bail - People (DPP) v McLoughlin [2009] IESC 65, [2010] 1 IR 590, McKeon v DPP (Unrep, SC, 12/10/1995) and Vickers v DPP [2009] IESC 58, [2010] 1 IR 548 applied; Adams v DPP [2000] IEHC 45, [2001] 2 ILRM 401 and People (Attorney General) v O'Callaghan [1966] IR 501 followed - Bail Act 1997 (No 16), s 6 - Constitution of Ireland 1937, Article 40.4.2 - Release refused (2011/868SS - Hogan J - 12/5/2011) [2011] IEHC 199

Clarke v Governor of Cloverhill Prison

1 1. In these proceedings the applicant moves the Court for an order of release pursuant to Article 40.4.2 of the Constitution. In essence, the principal question is whether the District Court was acting within jurisdiction in admitting certain hearsay evidence in the course of an application to revoke bail. The applicant additionally maintains that in the course of revoking bail previously granted the District Court judge hearing the application failed to exercise an independent judgment.

2 2. This application arises in the following way. The applicant is presently charged with the possession for the purposes of sale or supply of significant quantities of the controlled drug diamorphine, contrary to the provisions of the Misuse of Drugs Act 1977, and the regulations made thereunder. The applicant was originally charged with these offences when he appeared before District Judge Clyne on 27 ^th April, 2011, having been arrested by Garda Bracken of Carberry Station. He was admitted to bail on his own bond of €10,000 with no lodgement required. There was, however, a stipulation that the applicant reside at his own address and that he sign on twice daily with Leixlip Garda Station. Following a further appearance in the District Court, the applicant was remanded on continuing bail to 1 ^st June, 2011.

3 3. In late April or early May 2011 Garda Lee of Mountjoy Garda Station was approached by a confidential source who is well known to her as a reliable informant. This source informed her that the applicant was to be given a passport and money to enable him to leave the State. Garda Lee gave evidence to the effect that the applicant's circumstances were not previously known to her and she simply passed on this information to her Garda superiors.

4 4. This information was duly passed on to Garda Bracken who then applied ex parte on foot of a sworn information to the local District Court on 4 ^th May, 2011, for a warrant. The applicant was then arrested pursuant to the warrant and appeared before District Judge Zaidan on 6 ^th May, 2011. Both Garda Bracken and Garda Lee gave evidence before Judge Zaidan to the effect that the circumstances had now changed in the light of this new information and that there was now a risk that the applicant would leave the jurisdiction.

5 5. The applicant also gave evidence whereby he rejected the suggestion that he would breach his recognisance. He pointed out that he was wholly reliant on disability allowance and had no other source of income. Furthermore, he stated that he suffered from a medical condition which militated against him fleeing with ease. In addition, his passport was with the Gardaí and all his family ties were with this State. It is not in dispute but that the applicant complied fully with the terms of his bail conditions.

6 6. At the close of the hearing which lasted over an hour District Judge Zaidan retired to his chambers for some ten to fifteen minutes. At that point, he returned to deliver his decision whereby he revoked the applicant's bail, having overruled certain jurisdictional objections. He stated that he "would refuse bail on the basis of the evidence", adding that:-

"....clearly the allegation is serious [and that] it was evident that at first the State did not object to bail [but] it was now objecting to bail on the basis of a trustworthy and reliable informant and there was now a concern that he would leave the jurisdiction. Bearing in mind these concerns and the alleged seriousness and nature of the offence, I will refuse bail."

7 7. During the hearing before me it was contended that after the delivery of the ruling the judge had engaged in an exchange with the prosecuting Garda, Inspector Dolan, whereby he queried whether it would have been possible to reach an accommodation between the parties whereby the applicant remained on bail, albeit subject to more onerous conditions. When this was put to the two Garda witnesses in cross-examination, they accepted that an exchange of that sort might have taken place, but they either did not hear or could not recall what was said, since they were probably focussing on the question of the taking of the applicant back into custody.

8 8. Garda Lee also gave evidence - which I fully accept - that when waiting for arrangements to be made for the applicant to be conveyed to Cloverhill Prison the applicant spontaneously admitted that he had been offered the facility of a passport and money, but that he had rejected the offer. However, at the hearing before District Judge Zaidan the applicant had been asked in evidence whether he "was being" offered such facilities, but he had denied this. At the hearing before me it was suggested that the applicant's statement to Garda Lee was not necessarily inconsistent with his evidence, since there was a difference of tense - "had been offered" as distinct from "was being offered" - between the two statements. While a grammarian would doubtless assent to this proposition, the difference is nonetheless somewhat nuanced. At all events, I do not propose to rely on this informal conversation, since it was not before Judge Zaidan. This exchange nevertheless tends to bear out the accuracy of Garda Lee's source.

The jurisdiction of the District Court

9 9. Section 6(5) of the Bail Act 1997 ("the 1997 Act") provides that:-

"Where a person charged with an offence is admitted to bail by a court on his or her entering into a recognisance with or without a surety or sureties, the court may, on the application to it in that behalf by a surety or sureties of the accused person or of a member of the Garda Síochána and upon information being made in writing and on oath by or on behalf of such surety or member that the accused is about to contravene any of the conditions of the recognisance, issue a warrant for the arrest of the accused person."

10 10. Section 6(6) allows a Garda to effect an arrest in such circumstances. Section 6(8) then provides:-

"A person arrested pursuant to subsection (6), shall, as soon as practicable, be brought before the court that made the order directing that the recognisance be entered into."

11 11. The word "court" is defined by s.1 of the 1997 Act as meaning "any court exercising criminal jurisdiction but does not include court martial".

12 12. Counsel for the applicant, Mr. Greene SC, contended that the effect of this provision was that the applicant must be returned to the judge who made the order admitting the applicant to bail. This contention would, if accepted, mean that Judge Clyne rather than Judge Zaidan had exclusive jurisdiction in the matter. It is, however, perhaps significant that the word used is "court" rather than "judge." It seems to me that that the Oireachtas plainly intended that where the accused was arrested pursuant to this provision that he or she be brought back before the court which made the order, as distinct from the individual judge who made the order. Any other conclusion would lead to manifest convenience and even absurdity.

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