Dean Doyle v The Governor of Cloverhill Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice Siobhán Stack |
| Judgment Date | 27 May 2021 |
| Neutral Citation | [2021] IEHC 396 |
| Date | 27 May 2021 |
| Docket Number | [Record No. 2021/752 SS] |
| Court | High Court |
In the Matter of an Application for an Inquiry Pursuant to Article 40.4 of the Constitution of Ireland
[2021] IEHC 396
[Record No. 2021/752 SS]
THE HIGH COURT
Unlawful detention – Release – Right to liberty – Applicant seeking his release – Whether the applicant’s detention was unlawful
Facts: The applicant, Mr Doyle, on 25th May, 2021, applied to the High Court for an inquiry pursuant to Article 40.4.2° of the Constitution, seeking his release on the basis that his detention was unlawful. The application was grounded on the affidavit of Ms Kelly, solicitor for the applicant, who deposed to the circumstances in which the applicant came to be remanded in custody by Dundalk District Court, and setting out the various dates on which the applicant had been remanded by that court. On each occasion, the respondent failed to produce the applicant as required. It was acknowledged in the grounding affidavit that the reason why the applicant was not produced in accordance with the court orders related to his isolation in Cloverhill Prison for reasons connected with the COVID-19 pandemic, but it was contended that no proper explanation had been provided to the District Court as to why an appearance by video link was not possible, and it was further contended that there could not be a general policy of failing to produce a prisoner by video link given that any policies put in place within the prison to deal with the legitimate concerns in relation to COVID-19 could not unduly interfere with the applicant’s constitutional rights, including his right of access to the courts. The inquiry took place over several hours on the afternoon and evening of 26th May 2021 and on the morning of the 27th, prior to the expiry of the committal warrant. Stack J determined that the detention was unlawful and ordered the release of the applicant. Stack J gave the principal reasons for her decision ex tempore and indicated that she would provide her detailed reasons in a written judgment at a later date.
Held by Stack J that the evidence was to the effect that it could not be said that it was not possible to provide for video link facilities in Block F itself and in particular, the possibility of using a mobile video link unit was not considered until the conditional order was granted on 25th May, 2021. Stack J found that at the time of the inquiry, it could not be said whether that would be possible or not, but the onus was on the respondent, the Governor of Cloverhill Prison, who had not complied with the orders to produce the applicant to court, to demonstrate that it was not possible. Stack J held that, in those circumstances, the detention was unlawful. Stack J also disagreed with the respondent’s contention that the court should not look behind the committal warrant of the 26th May, 2021 in this case. Stack J noted that the uncontroverted evidence was, in essence, that the District Judge pronounced herself dissatisfied with the reasons given for non-production by video link on that date but nevertheless purported to remand the applicant. In Stack J’s view, this was a breach of the applicant’s constitutional rights to liberty and to access to the court and this was an appropriate case, by reference to the test enunciated in Ryan v Governor of Midlands Prison [2014] IESC 54, for intervention by way of Article 40.
Stack J held that, for those reasons, she ordered the release of the applicant on the morning of the 27th May, 2021, prior to the expiry of his period of detention.
Application granted.
JUDGMENT of Ms. Justice Siobhán Stack delivered ex tempore on the 27th day of May, 2021.
This is an application for an inquiry pursuant to Article 40.4.2° of the Constitution, seeking the release of the applicant on the basis that his detention is unlawful. The application was made to me on Tuesday, 25th May, 2021, on the usual ex parte basis, grounded on the affidavit of Ms. Eleanor Kelly, solicitor for the applicant, who deposed to the circumstances in which the applicant came to be remanded in custody by Dundalk District Court, and setting out the various dates on which the applicant had been remanded by that court. On each occasion, the respondent failed to produce the applicant as required.
It was acknowledged in the grounding affidavit of Ms. Kelly that the reason why the applicant was not produced in accordance with the court orders related to his isolation in Cloverhill Prison for reasons connected with the COVID-19 pandemic, but it was contended in the grounding affidavit that no proper explanation had been provided to the District Court as to why an appearance by video link was not possible, and it was further contended that there could not be a general policy of failing to produce a prisoner by video link given that any policies put in place within the prison to deal with the legitimate concerns in relation to COVID-19 could not unduly interfere with the applicant's constitutional rights, including his right of access to the courts.
The respondent appeared at the return to the conditional order at 2 pm on Tuesday, 25th May, 2021, and the matter was put back to 4 pm on that day. On that occasion, further time was sought by the respondent, and the inquiry was listed for hearing at 2.15 pm on Wednesday, 26th May, 2021. The respondent was given general liberty to file such affidavits as he might require to rely on, and it was directed that those would be filed in the course of the following morning.
The Governor also certified in writing the grounds for the detention of the applicant, as required by Article 40.4. The certificate of 25th May, 2021 relies on a Committal Warrant of the 24th May, 2021, of the District Court in Dundalk, remanding the applicant in custody to the sitting of Dundalk District Court on 26th May, 2021, at 10.30 am. The Warrant further directs the Governor as follows:
“You shall have the said accused at the said sitting to be further dealt with according to law.”
The applicant was not produced to the District Court by video link on the morning of 26th May 2021, but was again remanded in custody. The Committal Warrant relating to that remand was produced by the respondent and time constraints dictated that the inquiry proceed before such a certificate could be prepared. However, the respondent undertook to prepare a fresh certificate reflecting the remand on 26th May 2021. The inquiry took place over several hours on the afternoon and evening of 26th May 2021 and on the morning of the 27th, prior to the expiry of the Committal Warrant, I determined that the detention was unlawful and ordered the release of the applicant. I gave the principal reasons for my decision ex tempore and indicated that I would provide my detailed reasons in a written judgment at a later date, which I am now doing.
The relevant procedural history before the District Court commences on Tuesday, 18th May, 2021. The applicant, having been arrested and charged with an offence of criminal damage contrary to s. 2 of the Criminal Damage Act, 1991, was refused bail. He thereupon pleaded guilty.
The Sergeant Court Presenter then informed the court that he did not have the DPP's directions consenting to summary disposal, and the District Judge remanded the applicant in custody overnight for the purposes of obtaining those directions — which were regarded as most likely being a formality given the nature of the case and the evidence available — for the purposes of sentencing on the following day.
On Wednesday, 19th May, 2021, the applicant was not produced. It was confirmed to the District Court that the applicant had been remanded in custody in Cloverhill Prison, rather than Dundalk garda station, which his solicitor had assumed would be the place of detention. It was also confirmed that the DPP was indeed directing summary disposal of the offence. According to the applicant's solicitor, the District Judge was unhappy that the applicant had not been produced and referred to the fact that she had intended only to remand him overnight in order to confirm the DPP's directions. She expressed her desire to sentence the applicant as soon as possible and made an order that the applicant would be produced via video link the following day for sentence. On the following day, the applicant was not produced, by video link or otherwise.
Rather than strike out the matter, the District Judge, on the basis of a “sick note” which was never furnished to the applicant's solicitor, and which appears to have been emailed directly to the court by the prison authorities in Cloverhill, remanded the applicant further to Monday, 24th May, 2021. She did this expressly on the basis that there was no sitting of the court on Friday, 21st May, 2021.
On 24th May, 2021, the applicant was not produced, by video link or otherwise. Again a document described as a “sick note” was produced. This time, however, it was furnished to the applicant's solicitor, and she exhibited it to her grounding affidavit for the purpose of the ex parte application. This “sick note” is in the most generic of terms, and it is hard to disagree with the applicant's solicitor's criticisms of it, as expressed in her grounding affidavit. It states as follows:
“The above named is medically unfit to attend court as he is currently in isolation. He is either suspected of having COVID-19 himself or of being in contact with a suspected/confirmed case of COVID-19.”
There is an illegible signature, but apparently this is the signature of a doctor within the prison.
The fundamental basis on which the ex parte order was sought was, as stated by the applicant's solicitor at para. 17 of her grounding affidavit, that no proper explanation has been provided...
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