Connors v Governor of Limerick Prison

JudgeMr Justice Edwards
Judgment Date06 July 2017
Neutral Citation[2017] IECA 218
Date06 July 2017
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2017] IECA 218 Record No : 39/16

[2017] IECA 218


Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Neutral Citation Number: [2017] IECA 218

Record No : 39/16


Judicial review - Prisons - Detention of applicant - Art 40.4.2 of Constitution - Whether applicant's detention lawful

Facts: The applicant had been charged with an offence of handling stolen property and released on bail. Due to breaches of his bail conditions, he was brought into custody. Questions were raised at his trial as to the correct state of the law in respect of joint enterprise, and the applicant offered to plead guilty following a suggestion that the Court adjourn. The Court refused his plea, and he applied to the High Court contending his detention was unlawful. The High Court had found that the applicant was unlawfully detained and the matter now came before the Court of Appeal.

The Court held that the appeal would be dismissed. The Court was satisfied that the High Court had correctly identified the relevant case law applicable, and that the District Judge had fallen into error in refusing to accept the applicant's guilty plea. The necessary exceptional circumstances which would justify such a refusal did not exist in the instant case. The Court also stated their opinion on the District Judge's jurisdiction to resume the case. Caffrey v The Governor of Portlaoise Prison [2010] IEHC 213 considered.

Appeal dismissed.

JUDGMENT of Mr Justice Edwards delivered on the 6th of July 2017.

This is an appeal against a decision and judgment of the High Court (White J) delivered on the 18th of January 2016 declaring, in the context of an inquiry under Article 40.4.2° of the Constitution, that Danny Connors (‘the applicant’) was unlawfully detained. For the avoidance of confusion Mr Connors will be referred to throughout this judgment simply as ‘the applicant’, and the Governor of Limerick Prison simply as ‘the respondent’.

The Background to the Appeal

The applicant was charged, along with two co-accused, with an offence of possession of stolen property, to wit a blue twin axle trailer to the value of €750, the property of Michael Hogan, without lawful authority or excuse, knowing that the property was stolen or being reckless as to whether it was stolen, contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.


His trial commenced on the 10th of December 2015 in circumstances where he had pleaded not guilty. The applicant had been on bail up to the 10th of December, 2015. The trial did not conclude on that date and was adjourned part heard to the 14th of January 2016 on which date it was due to be resumed. He was remanded on continuing bail to that date. However, on the 12th of January 2016, his bail was revoked on the application of the prosecution because of breaches of the conditions of his bail. Accordingly, when the applicant came before the court again on the 14th of January 2016 for the resumption of his part heard trial he was in custody.


I infer from the paperwork before us, that a component of the prosecution's case against the applicant was the establishment of his presence at a relevant scene. However, I am not aware of what other evidence, if any, there may have been to link the applicant to the alleged crime.


When the trial resumed issues were raised concerning the law on joint enterprise / common design. As noted by White J at paragraph 3 of his ex-tempore judgment in this matter, the law on joint enterprise / common design is regarded as being well settled based on the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Cumberton (unreported, Court of Criminal Appeal, Blaney J, 5th December 1994) in which that court approved of certain statements of principle in the English case of R. v Anderson and Morris [1966] 2 All E.R. 644.


However, it seems that the prosecuting member of An Garda Siochána, Superintendent Murphy, felt it important to draw the trial judge's attention to a recent decision of this Court, namely The People (Director of Public Prosecutions) v Choung Vu [2015] IECA 257, and in doing so sought to suggest that it had changed that aspect of the law on common design that says that mere presence at the scene of a crime will be insufficient, without more, to establish participation in a joint enterprise. As I understand it the Superintendent was of the belief that following this Court's decision in Choung Vu mere presence at a relevant scene in suspicious circumstances was now sufficient to establish criminal liability.


The solicitor for the applicant responded, correctly in our view, that the effect of our decision in Choung Vu is that it remains the law that mere presence alone is insufficient to allow criminal liability to be attributed on the basis of participation in a joint enterprise. However, such presence combined with other significant circumstantial evidence may be sufficient to establish such participation. Indeed, paragraph 51 of our judgment in Choung Vu makes clear that criminal liability was being attributed for the cultivation offence at issue in that case on the basis of a combination of presence at the scene of the crime (which was a cannabis grow house) and other circumstantial evidence, including the appellant's arrival at the grow house as a passenger in a vehicle that had equipment and paraphernalia used in cannabis cultivation on open display within it; the appellant's association with others who could be clearly connected to the grow house; and his evasiveness at interview and the improbability of his account.


At any rate, the trial judge's response to these exchanges was to indicate that he was going to require both sides to file formal legal submissions, and that he would further adjourn the hearing to facilitate this. The trial judge's disposition at this point was to adjourn the matter for four weeks, in order to allow two weeks for the prosecution's submissions to be filed, and a further two weeks thereafter for the defence's replying submissions to be filed.


A debate then ensued concerning the length of the proposed adjournment, the applicant's solicitor expressing concern that his client, whose bail had been revoked just two days previously, would potentially be in custody for the duration of any such adjournment. The applicant's solicitor made a fresh application for bail for his client in the circumstances, but this was refused. What happened next was that the applicant was afforded an opportunity to have a consultation with his solicitor, in the light of the refusal of the renewed bail application and the proposed further adjournment of the trial for four weeks, following which the applicant's solicitor indicated to the court that his client now wished to plead guilty.


However, the trial judge stated that he could not ‘accept the plea today’ on the grounds that he was concerned that to do so would see the applicant convicted of the alleged offence, in circumstances where it was possible that his co-accused (who had the same level of participation in the offence) might end up being acquitted on foot of the written submissions. The applicant's solicitor then asked for a shorter adjournment on the basis that he could prepare his side's submissions within a few days. In response the trial judge then adjourned the case to the 19th of January 2016, and remanded the applicant in custody until that date.


It is important to note that no issue was raised with the trial judge concerning his refusal to accept the applicant's offer to plead guilty. The applicant's solicitor did not suggest to the trial judge that he was wrong in law in refusing to accept the plea; or that the trial judge was in fact obliged to do so; or that the applicant was insistent on pleading guilty at that point with a view to being sentenced in early course; or that he wished to waive the opportunity to have the legal submissions to be advanced considered for his benefit. In addition, there was no renewal of an application for bail in the new circumstances of the applicant having offered to plead guilty, and the trial judge having refused to accept that plea.


However, on the following day, the 15th of January 2016, an application was made to the High Court on behalf of the applicant for an enquiry under article 40.4.2° of the Constitution into the lawfulness of his detention. The basis of that application was that the District Judge had been wrong in law to refuse to accept the applicant's offer to plead guilty; that this error meant that there was a flaw or defect in the proceedings before the District Court that was so fundamental as to render the proceedings thereafter unfair and a negation of the applicant's right to be tried and sentenced ‘in due course of law’; and that it further meant that the order purporting to remand him in custody from the 14th of January 2016 to the 19th of January 2016 for the purpose of ensuring his attendance to face continuing trial was bad, and that accordingly he was deprived of his liberty other than ‘in accordance with law’. It was further contended that the article 40 procedure was the appropriate one in which to seek relief, rather than judicial review, given the short period of the detention order and the impracticability of obtaining relief by way of judicial review before it would have expired.


The respondent, in certifying the basis of the applicant's detention, relied upon the remand order of the District Judge. The application was substantively opposed on the basis that not every defect or illegality attaching to a detention will invalidate that detention; that in this case the error, if any, was one made within jurisdiction; that the applicant had no merits and was likely to have been...

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2 cases
  • Dean Doyle v The Governor of Cloverhill Prison
    • Ireland
    • High Court
    • 27 May 2021
    ...conviction. 73 I am, however, able to draw guidance from the decision of the Court of Appeal in Connors v. Governor of Limerick Prison [2017] IECA 218, as the facts are much closer to the situation in this case. In that case, the applicant was on trial with two co-accused for charges contra......
  • Hill v DPP
    • Ireland
    • High Court
    • 24 April 2018
    ...Supreme Court, 4th July, 2000] and the more recent decision of the Court of Appeal in Connors v. Governor of Limerick Prison [2017] IECA 218. In the former case Denham J. (as she then was) found that the impugned order was flawed and that there had been a failure to proceed in accordance wi......

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