Cully v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 99
• Date: 01 January 1998
• Court: High Court
• Docket Number: [1996 No. 2023 SS]

CULLY v. GOVERNOR OF PORTLAOISE PRISON

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TOARTICLE 40.4.2 OF THE CONSTITUTION

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO THE HABEAS CORPUS(IRELAND) ACT, 1782

BETWEEN

MICHAEL CULLY

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON

RESPONDENT

AND

IN THE MATTER OF A CRIMINAL PROSECUTION ENTITLED THEPEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS)

PROSECUTOR

AND

MICHAEL CULLY

ACCUSED

AT PRESENT PENDING BEFORE THE SPECIAL CRIMINAL COURT

BETWEEN

CULLY v. GOVERNOR OF PORTLAOISE PRISON

MICHAEL CULLY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE MEMBERS OFTHE SPECIAL CRIMINAL COURT

RESPONDENTS

AND

THE MINISTER FOR JUSTICE IRELAND AND THE ATTORNEYGENERAL

NOTICE PARTIES

[1997] IEHC 99

Record Nos. 1996 2023 S.S. and 1996 LO337 J.R.

THE HIGH COURT

Synopsis:

Constitutional

Habeas corpus inquiry; release and re-arrest; whether arrest on prison property valid; whether failure to prove direction by D.P.P. that applicant be charged before Special Criminal Court; whether Special Criminal Court entitled to substitute new charge for charges extant before the Court Held : Detention valid; application for release dismissed High Court: Kelly J.18/06/1997

Cully v. Governor of Portlaoise Prison

[1998] 1 IR 443

Citations:

HEGARTY V GOV OF LIMERICK PRISON 1998 1 IR 412

O'HAGAN V GOV OF PORTLAOISE PRISON UNREP 30.5.97

DUNCAN V GOV OF PORTLAOISE PRISON 1998 1 IR 433

SINGER (NO 2), IN RE 1964 98 ILTR 112

DPP, PEOPLE V O'SHEA 1981 2 FREWEN 57

TRIMBOLE, STATE V GOV OF MOUNTJOY PRISON 1985 IR 568

OFFENCES AGAINST THE STATE ACT 1939 S47

PROSECUTION OF OFFENCES ACT 1974 S4(2)

PROSECUTION OF OFFENCES ACT 1974 S4(3)

PROSECUTION OF OFFENCES ACT 1974 S4(4)

OFFENCES AGAINST THE STATE ACT 1939 S41(1)

DPP, PEOPLE V MCCANN 1981 1 FREWEN 57

CONSTITUTION ART 40

1 JUDGMENT of Mr. Justice Kellydelivered the 18th day of June, 1997

2 The Applicant seeks two reliefs from the Court. The first is an absolute Order of Habeas Corpus directing his release from custody. The second is an Order of Prohibition restraining the members of the Special Criminal Court from proceeding with his trial on charges of unlawful possession of an explosive substance with intent to endanger life and possession of an explosive substance under such circumstances as to give rise to a reasonable suspicion that he did not have that substance in his possession for a lawful object. As part of this second relief he also seeks Orders quashing Remand Orders made by the Special Criminal Court on the 7th and 8th November, 1996.

3 This judgment should be read in conjunction with the judgment of the Divisional Court in the case of Hegarty v. The Governor of Limerick Prison ( unreported 26th February, 1997) and my own judgments in O"Hagan and Others v. The Governor of Portlaoise Prison ( unreported 30th May, 1997) and Duncan and Others v. The Governor of PortlaoisePrison ( unreported 9th June, 1997).

4 In common with the Applicants in those cases, this Applicant was on a date prior to 6th November, 1996 remanded in custody pursuant to an Order of the Special Criminal Court. That Order was invalid. Such was the case because one of the three Judges who comprised the Special Criminal Court on the relevant date was, unknown to himself, no longer a serving member of that Court. He had been removed from membership of that Court at his own request by a decision of the Government made on the 1st August, 1996. That decision was not communicated to the Judge in question and he continued to sit as a member of the Special Criminal Court in the belief that he was entitled so to do.

5 The authorities became aware of this very unsatisfactory situation on 6th November, 1996. Upon becoming so aware they took the steps which have been described in some detail in the three judgments to which I have already referred.

6 The authorities originally appeared to believe that a total of fifteen prisoners were affected by the invalid Orders made by the Special Criminal Court. These fifteen prisoners were released from Limerick, Portlaoise and Mountjoy jails in the early hours of 7th November, 1997. There was however, a sixteenth prisoner who was also affected by an invalid Order made by the Special Criminal Court and that was the Applicant. The fact that he was so affected was not realised until later on 7th November. Once the authorities became so aware they moved with speed on the matter. By 11.15 a.m. Mr. Donoghue, the Governor of Portlaoise prison, faxed the warrant holding the Applicant to Mr. Sean Aylward in the Department of Justice for his directions. Mr. Aylward contacted the Governor by telephone and informed him that legal advice was being sought in relation to the matter. By 12.10 p.m. a direction had been given by Mr. Aylward to release the Applicant because he was being held on foot of a bad warrant. The Governor went to the prison with Chief Officer Dormer. He informed the prisoner's spokesman that the Applicant was being released and he explainedexplained the reasons for such release. Chief Officer Dormer arranged the release of the Applicant and he was released from Portlaoise Prison at 12.50 p.m. on 7th November, 1996.

7 By the time of the Applicant's release the Director of Public Prosecutions had given provisional directions to the effect that if he was released he should be re-arrested at common law and be brought before the next sitting of the Special Criminal Court.

8 Immediately after the Applicant's release from custody Detective Sergeant Patrick Sears arrested the Applicant at common law on suspicion of having committed a felony. He was arrested outside the main gate of Portlaoise Prison and was taken from there to the Special Criminal Court were he arrived at 2.10 p.m. that afternoon.

9 At the Special Criminal Court on that afternoon Detective Sergeant Sears gave evidence of his having arrested the Applicant. It is clear from the evidence which was given to the Special Criminal Court on that occasion that the Applicant was arrested in the same location at Portlaoise Prison as were the other Applicants the subject of the judgments already referred to. The Applicant was then charged with the same offences as had formed the original charges before the Special Criminal Court earlier in 1996. The Applicant had no legal representation before the Special Criminal Court on the 7th November, 1996. That was not as a result of any fault on the part of his legal representatives but because he had been brought straight from Portlaoise Prison to the Special Criminal Court on that afternoon. Recognising that unsatisfactory state of affairs the Special Criminal Court remanded him to the following day. The presiding Judge on the 7th November, 1996 made it clear that the entire procedure which had been gone through before that Court on the 7th November, 1996 would be repeated on the following day in the presence of the Applicant's legal advisers.

10 On the 8th November, 1996 the Applicant was again before the Special Criminal Court. Again evidence was given by Detective Sergeant Sears. He was cross-examined by Mr. Mill-Arden S.C. It is clear from the evidence which was given thatthe Applicant was arrested on prison property and in circumstances where he did not have access to the public thoroughfare. To obtain such access a number of locked gates would have to be passed through.

11 The first point which is made on the Applicant's behalf is that this arrest by Detective Sergeant Sears on the 7th November, 1996 wasunlawful.

12 It is said that it was effected at a time when the Applicant had not been released from the unlawful detention of the Governor of Portlaoise Prison. On the evidence in this case I find that in fact he had been released from the custody of the Governor of the Prison. But even if I am wrong in so concluding it does not appear to me to affect the validity of the arrest. This point is fully covered in the judgments of the Divisional Court and in my own judgments to which I have already referred. The arrest in this case was clearly carried out at a time when all the actions taken by the Governor were indicative only of his complying with the Ministerial Order to release the Applicant. Even if I am incorrect in my view that the Applicant had been released from the Governor's custody at the time of his arrest, it cannot be denied but that the Governor permitted the arrest to take place. That was sufficient to render the arrest lawful. The fact that the arrest took place on prison property does not affect its validity either. This point has also been fully covered in the earlier judgments to which I have referred and in particular by the views expressed by Walsh J. in the case of In Re Paul Singer No. 2 (1964) 98 ILTR 112 the relevant passage from which I have cited in my judgment in Duncan's case.

13 It has also been argued on behalf of the Applicant that the unlawful custody in which he was, up to the 7th November, 1996 was merely continued by this new arrest and that therefore that arrest was invalid and the Applicant's detention continues to be unlawful. I do not accept this contention. It is clear from the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) -v- Colm O'Shea (1981) 2 Frewen 57 that itis well established that a detention which may initially have been illegal can, in certain circumstances, be legalised and there are many circumstances in which a valid arrest at law can be made immediately after the release of a person from a custody which had been, for one reason or another, illegal. I do not accept that the unlawful custody in which the Applicant found himself up to...