Donovan v Governor of Midlands Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 26 May 2016 |
| Neutral Citation | [2016] IEHC 287 |
| Court | High Court |
| Docket Number | [2016 No. 548 S.S.] |
| Date | 26 May 2016 |
IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4.2° OF THE CONSTITUTION OF IRELAND
[2016] IEHC 287
[2016 No. 548 S.S.]
THE HIGH COURT
Constitution – Practice & Procedures – Article 40.4. 2 of the Constitution of – Unlawful detention – Format of committal warrants – Remand in custody – S. 3 of the Non- Fatal offences against the Person Act, 1997 – Minor offence – Summary trial
Facts: Following the sentence of the applicant for the offence contrary to s. 3 of the Non- Fatal Offences against the Person Act, 1997, the applicant was detained in custody pursuant to the execution of the committal warrant. The applicant now filed an application under art. 40.4.2 of the Constitution alleging that his detention was unlawful on the basis of some defects in the said warrant. The applicant's first contention was that the warrant was bad on its face for failure to recite that the relevant offence was a minor offence and thus, it was fit to be tried summarily. The second contention of the applicant was concerning failure in the warrant to recite the extent to which consideration of community service should be given.
Mr. Justice Richard Humphreys dismissed the application of the applicant in relation to the first contention. The Court, however, adjourned the other part of the present application for being tried by another judge. The Court observed that a warrant for a sentence of imprisonment for a summary-only offence would be in Form 25.1 and that form did not recite either a finding that the offence was minor or that the D.P.P. had consented to the summary disposal. The Court further observed that the offence of the applicant was type B1 and was triable either way but without the consent of the accused. The Court cited with approval the decision of the Supreme Court in The State (Gleeson) v. Connellan [1988] I.R. 559 that a statement that the offence was a minor offence did not have to be set out expressly and could be deprived or inferred from the nature of the penalty imposed. The Court observed that in the present case, an error on the face of the warrant was that it purported to be form 25.1 which applied to summary-only offences referred to as Type A. The Court held that such an error was not of a jurisdictional nature or one which justified an order for release. The Court suggested that a clearer definition of the types of execution warrant with the specific forms and types of offences should be given consideration while declining the relief sought by the applicant.
In Grant v. Governor of Cloverhill Prison [2015] IEHC 768 (Unreported, High Court, 27th November, 2015) I considered the difficulty and confusion surrounding the format of committal warrants issued by the District Court for persons remanded in custody. The present application now raises the separate but related issue of confusion and difficulty regarding the forms of warrants of execution where the District Court sentences a person to a term of imprisonment. It might seem surprising that such bread-and-butter issues regarding the work of the District Court - work that carries on tasks entrusted to courts of summary jurisdiction on this island for centuries (justices of the peace being given statutory mention as far back as the Forcible Entry Act 1634, so far as statutes currently in force are concerned) – remain the subject of confusion. As I did in Grant, I might take the opportunity to respectfully suggest to the Oireachtas and the District Court Rules Committee that greater clarity be introduced in this regard.
It is admitted (the applicant having ultimately pleaded guilty in this regard) that on 23rd February, 2015 the applicant committed the offence of assault causing harm contrary to s. 3 of the Non-Fatal Offences against the Person Act 1997.
The applicant was duly charged and appeared in Kilkenny District Court on a number of dates, initially 15th September, 2015, and 13th and 20th October, 2015. On the latter date, a trial date was fixed.
On 10th May, 2016, the applicant, as noted above, pleaded guilty and was sentenced to imprisonment for a period of six months. Recognisances were fixed but these were not taken up. A warrant of execution was issued by Kilkenny District Court, and the applicant was detained in the Midlands Prison.
On the morning of Friday, 13th May, 2016, an application under Article 40.4 of the Constitution was moved on behalf of the applicant before Haughton J. I am told by Mr. Mícheál P. O'Higgins S.C. (who appeared with Mr. Karl Monahan B.L.) for the applicant that this concluded around 3pm or 3.30 p.m. An order directing an inquiry was made, returnable for approximately 4 p.m. or 4.30 p.m. that afternoon.
I am further informed that when the matter returned to Haughton J., the applicant sought a direction that all matters would proceed together at that point, whereas the respondent sought time to consider the issues further. Two categories of issues were identified, an allegation that the warrant was bad on its face for failure to recite that the District Court found the offence to be a minor offence fit to be tried summarily, and another alleged infirmity regarding the extent to which consideration of community service should be recited on the face of the warrant. I am told that the respondent was particularly anxious for time to deal with the latter issue.
The order made by Haughton J. on its face simply adjourned the matter to Monday, 16th May, 2016, at 2 p.m. However, I am informed by the parties what was, in fact, directed was that the first issue, namely the alleged error on the face of the warrant due to a failure to recite that the offence had been found to be minor, should proceed as a discrete and separate issue for hearing on the date so fixed, and the remaining issue would be tried at a later date. Thus, essentially, the direction was that the Article 40 application be tried in a modular manner. When the parties appeared before me (the matter having come on before me during the Whit vacation as duty judge assigned to sit on 16th May, 2016), it was on the basis that they had prepared for the hearing of that first issue alone.
I canvassed with the parties whether they wished to maintain this modular approach or whether it would be preferable to have all matters heard together on the same date by the same judge, but in the light of their responses to that query, I considered that the most appropriate course and the one best in keeping with the wishes of the parties was to maintain the modular approach as already directed by Haughton J., which was the basis on which they had prepared for the hearing on 16th May, 2016.
On that date I, therefore, dealt with the single identified issue referred to above. I indicated following the hearing that I was dismissing the application insofar as it dealt with that point and that I would give more detailed reasons at a later stage; which I now do. I also adjourned the balance of the Article 40 application to the duty judge sitting on Friday, 20th May, 2016, in an endeavour to balance the requirement or expedition with the need to ensure natural justice for the respondent and to permit reasonable preparation time for what are said to be novel points of law in that regard. I appreciate that, on one view, it would be more desirable if the same judge could deal with all aspects of a single Article 40 application (which was one of the reasons motivating my query to the parties already referred to). However, the outcome of the situation is essentially a consequence of the order already made by Haughton J., which, in effect, was intended to direct a modular trial of the application. Ideally, I would have liked to deal with the second ‘module’ myself but I was not available on 20th May, 2016 and the requirement of expedition appeared to me to militate in favour of giving the applicant an early hearing of the remaining issues, even if that had to be before another judge.
At one level it seems surprising that there could still be doubt or confusion as to the number of categories of criminal offences that could be the subject of warrants of execution, or as to the appropriate form of such warrants. Could it be the case that matters as basic as these can still be the subject of debate? Apparently it could.
It is not possible to assess the challenge to the warrant of execution in this case without first endeavouring to systematise the types of criminal offences and the forms of warrant in each case. At the most basic level, it seems to me that there are three categories of criminal offences:
(a) offences that are summary only;
(b) offences triable either way; or
(c) offences that are indictable only.
As regards offences that are summary only, these are relatively straightforward and are inherently minor offences. Order 25, rule 1 of the District Court Rules provides a number of forms of warrants of execution, but does not specifically spell out which warrants apply to which categories of offences. However, it seems to me that the appropriate warrant for a sentence of imprisonment for a summary only offence is Form 25.1. That form does not recite either a finding that the offence is minor or that the D.P.P. has consented to summary disposal. Those omissions are consistent only with the form being applicable to summary only offences.
Offences ‘triable either way’ constitute Type B. While Mr. Conor Power S.C., for the respondent used the expression ‘hybrid offence’ in a very refined and special sense in his argument, I did not find that attempt at...
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