O'Connor v Governor of Midlands Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 05 February 2014
• Neutral Citation: [2014] IEHC 46
• Court: High Court
• Date: 05 February 2014
• Docket Number: [2014 No. 1 SSP]

[2014] IEHC 46

THE HIGH COURT

[2014 No. 1 SSP]

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND

BETWEEN

PAUL O”CONNOR

APPLICANT

AND

THE GOVERNOR OF MIDLANDS PRISON

RESPONDENT

Detention - Legality of detention - Robbery - Search warrant - Offences Against the State Act 1939 - Section 29 - Declaration of unconstitutionality - Whether the applicant could avail of declaration

In these proceedings, the applicant, Paul O”Connor, sought an inquiry into the legality of his detention under Article 40.4.2 of the Constitution. The applicant was convicted of the robbery of over €10,000 from a bookmaker in June 2009 and received a sentence of ten years imprisonment. The key issue raised by the applicant was whether he was entitled to rely on the finding in the 2012 case of Damache v Director of Public Prosecutions that section 29 of the Offences Against the State Act 1939 was unconstitutional. Evidence obtained via a section 29 search warrant was used in the applicant”s 2011 criminal trial.

The applicant sought to add this Damache ground to his appeal at the Court of Criminal Appeal. The Court considered, in a decision of February 2013, that in light of ‘post- Damache authority’, it was clear that the applicant could not rely on it unless he raised issues regarding the constitutionality of section 29 during the criminal trial. The Court then noted that at his trial, the applicant expressly conceded that the search warrant was in accordance with law and no issue was taken as to the admissibility of evidence obtained on its basis. The Court of Criminal Appeal found that the applicant was bound by his ‘conscious choice of strategy’ to not raise the constitutionality of the section, refused to apply the Damache principle and refused the appeal. A further decision of the Court of Criminal Appeal in January 2014 refused the applicant leave to appeal against his conviction to the Supreme Court.

Held by Hogan J., these decisions were binding on him and that on its face, the search warrant was ‘good and valid’. The Court considered that the applicant benefitted from a full appeal and an application for leave to appeal to the Supreme Court. Both times, the Court affirmed the conviction and refused further leave to appeal. Hogan J. determined that the Court”s jurisdiction under Article 40.4.2 should be invoked where there was a denial of constitutional rights or jurisdictional error. However, the only issue in these proceedings was whether the applicant could retrospectively rely on Damache. It was found that save where the issue was raised at trial, declarations of unconstitutionality could not be used to upset earlier convictions. The Court concluded that the applicant was detained in accordance with law.

The Court therefore refused the application for inquiry into the legality of the applicant”s detention.

Mr. Justice Hogan

JUDGMENT of Mr. Justice Hogan delivered on the 5th day of February , 2014

1 This is an application by the applicant, Paul O”Connor, for an inquiry into the legality of his detention pursuant to Article 40.4.2 of the Constitution. This application was made by the applicant himself in writing in a very careful and considered fashion. This application was then referred to me for consideration as to whether I should direct an inquiry into the legality of that detention.

2 Mr. O”Connor was convicted of the single count of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Act 2001, on the ground that in June, 2009 he participated in the robbery of a sum of over €10,000 from a bookmaker”s premises. For that offence he received a ten year prison sentence. There is no doubt but that principal issue raised by the applicant is whether he is entitled to rely on the finding by the...