Clarke v Governor of Portlaoise Prison
| Jurisdiction | Ireland |
| Judge | Denham J. |
| Judgment Date | 23 May 2006 |
| Neutral Citation | [2006] IESC 32 |
| Docket Number | [S.C. No: 350 of 2005] |
| Court | Supreme Court |
| Date | 23 May 2006 |
and
and
[2006] IESC 32
THE SUPREME COURT
EXTRADITION:
Habeas corpus
Unlawful arrest - Consent to extradition - Re-extradition - Presumption of compliance - Cruelty - Inhuman treatment - Whether arrest in precinct of court lawful - People(DPP) v O'Shea [1996] 1 IR 556 followed - Whether arrest colourable device or fiction - Whether consent of the Netherlands required for onward extradition - Whether refusal of early release abuse or cruelty - Prisons Act1898 (61 & 62 Vict, c 41), s 11 - Extradition Act 1965 (No 17) - European Arrest Warrant Act 2003 (No 45), ss 4A, 22 - European Convention on Extradition 1957, article 15 - European Council Framework Decision 2002/584/JHA - Applicant's appeals dismissed (350 & 369/2005 - SC -23/5/2006) [2006] IESC 32
Clarke v Governor of Portlaoise Prison
Facts: The applicant appealed from the order of the High Court refusing his release pursuant to an application for habeas corpus and appealed against the order of the High Court pursuant to s. 16 of the European Arrest Warrant Act 2003 (as amended). The applicant raised issues arising on the consent from the Netherlands, allegations of delay, oppression and inhuman treatment by the authorities of the State in delaying his release, the escape issue, the production order, the arrest, whether the arrest was, if necessary, cured by the order of committal of MacMenamin J., the fact that these last three issues were not raised before MacMenamin J., Article 26 and deduction of time in custody from sentence and the submitted abandonment by the UK of the application at an earlier date.
Held by the Supreme Court (Denham, Geoghegan and Kearns JJ) in dismissing both appeals that reviewing all the grounds raised by the applicant, there were no grounds upon which the appeals could succeed.
Reporter: R.W.
CONSTITUTION ART 40.4.2
EUROPEAN ARREST WARRANT ACT 2003 S16(1)
EUROPEAN ARREST WARRANT ACT 2003 S16(C)
CONSTITUTION ART 26
PRISONS ACT 1898 S11
CRIMINAL ADMINISTRATION ACT 1914 S43(8)
MINISTERS & SECRETARIES ACT 1924 S15(3)
PRISONS ACT 1898 S11(1)
DPP v O'SHEA 1996 1 IR 557
EUROPEAN CONVENTION ON EXTRADITION 1957 ART 15
EUROPEAN ARREST WARRANT ACT 2003 S4(A)
Judgment delivered on the 23rd day of May 2006 by Denham J.
1. Thomas Clarke, hereinafter referred to as “the applicant”, has brought two appeals to this Court, which appeals were heard together. This single judgment relates to both appeals.
The first appeal brought by the applicant, which relates to an application for habeas corpus, is from the judgment and order of the High Court (Gilligan J.), of the 31st August, 2005, which found that the detention of the applicant was lawful.
2 2.1 The learned High Court Judge held that the order for production was made in the interests of justice and that at the time the Minister was not acting in any quasi judicial capacity, and that it could not in any way be considered to be a committal order. Regarding the applicant's contention that the arrest was a fiction and a colourable device and that there was no physical taking into custody, the High Court held that the arrest had the characteristics of a formal arrest and that there was no substance in the applicant's contention that there was a fundamental flaw in the procedures relating to the production order and the arrest.
3. The applicant has appealed against the order of the High Court. The grounds for the appeal are that the High Court erred:
• in law in not granting a release under Article 40.4.2 of the Constitution of Ireland, 1937 to the applicant;
• in law or in fact in deeming the detention of the applicant by the respondent to be lawful;
• in law in finding that the Ministerial Order directing the applicant's production before the High Court was valid and fair and sound procedure;
• in law in finding that the applicant's purported arrest in the precinct of the High Court was lawful and of fair and sound procedure.
The second appeal before the Court is from the order and judgment of the High Court (Hanna J.) of the 15th September, 2005. It is an appeal from an order made pursuant to s. 16 (1) of the European Arrest Warrant Act, 2003 for the surrender of the applicant to the United Kingdom. The surrender sought is to complete a sentence of imprisonment imposed in 1994.
2 4.1 In the High Court, the applicant raised six grounds of opposition. However, Hanna J. ordered that the applicant be surrendered to the person duly authorised to receive him on behalf of the United Kingdom, pursuant to s.16 (c) of the European Arrest Warrant Act, 2003 and the applicant was committed to prison pending the carrying out of the order.
3 4.2 In the High Court it was accepted, regarding the sixth ground raised, which related to the Ministerial order to produce the applicant before the Court, that it was res judicata because of the decision of Gilligan J. on the 31st August, 2005, in the habeas corpus application, the subject of the first appeal in this judgment.
5. The applicant filed an appeal to this Court. The grounds of appeal submitted that the learned High Court judge erred:
(i) in ruling that the applicant had not been subjected to inexcusable delay, oppression and to inhumane and degrading treatment by the authorities of the State in delaying consideration of his early release for the purpose of his extradition to the United Kingdom;
(ii) in ruling that the Irish State did not engage in a cat and mouse game which undermined the principles of sentencing as laid down by the judicial authority of the State and thereby vitiated the lawfulness of the custody of the applicant;
(iii) in failing to rule that the applicant was not in the lawful custody of the Governor of Frankland Prison (in UK) at the time of his transfer to hospital in 1995 and/or failing to require proof that the applicant was in lawful custody at that time;
(iv) in ruling that the Dutch State had furnished its consent to the proposed extradition/surrender of the applicant requested by the United Kingdom under the provisions of the European Arrest Warrant Act, 2003.
On these matters coming on for hearing before this Court, counsel for the applicant addressed issues arising on the consent from the Netherlands, allegations of delay, oppression, and inhuman and degrading treatment of the applicant by the authorities of the State in delaying his release, the escape issue, the production order, the arrest, whether the arrest was, if necessary, cured by the order of committal of MacMenamin J., the fact that these last three issues were not raised before MacMenamin J., Article 26 and deduction of time in custody from sentence, and the submitted abandonment by the United Kingdom of the application at an earlier date.
Before I consider the issues arising on these appeals, for the record I refer to an application for adjournment sought by counsel for the applicant on the morning of the hearing, which was refused. The application was based on two broad factors, (a) that counsel had recently come into the case and he sought further time to prepare, and (b) a production order was sought to produce the applicant before the Court.
This is an appeal from High Court orders of the 31st August, 2005, and the 15th September, 2005. There is a duty on solicitors, counsel and the Courts to deal with these matters expeditiously. The cases were listed in the priority list of the Supreme Court. On Friday 24th February, 2006, the date for the appeal was set and the solicitors were notified that afternoon. It was ordered that the applicant's submissions be filed by 1st March, 2006, but they were not filed as of the hearing date on the 6th March, 2006. The State was to file submissions by the 2nd March, 2006, and did so. The Books of Authority were not joint books, the State's book was available on the 6th March, 2006. Counsel for the applicant said that he had come into the case at the weekend. In addition, there had been some matter of the applicant contemplating a change in solicitor.
In all the circumstances, which included the advance notice of the hearing date, the advance requirements as to submissions, the expediency required in an application under the European Arrest Warrant legislation, and the obvious clear comprehension of the case by senior counsel, the Court refused this application.
An adjournment was also sought to enable a production order be made for the applicant. This is a case where the issues on appeal are matters of law, the date had been set well in advance and was known, it is an application requiring expediency, and no application was made at any earlier time for a production order. In all the circumstances the Court refused the adjournment sought on this basis also and the case proceeded.
i 8.1 (i) In the first appeal, the applicant has raised the issue of the production order. A production order is an administrative order made by the Minister in relation to a person in prison to secure their production at a specified time and place, where the interests of justice so require.
ii 8.1 (ii) Legal authority is found in s.11 of the Prisons Act, 1898, which provides:
2 "(1) [A...
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