Doocey and Another v Murphy and Others

JudgeMr Justice Mark Sanfey
Judgment Date12 October 2023
Neutral Citation[2023] IEHC 707
CourtHigh Court
Docket Number[Record No. 2023/4282P]
Joe Doocey and Melissa Kelly
Fintan Murphy, KBC Bank, Aiden Devlin, Ian Gordon, GS Agencies Limited, Trinity Assets Management, Central Bank of Ireland, The Attorney General, The Director of Public Prosecutions, The Garda Commissioner, Martina Baxter, Minister for Justice and Equality and Governor of Castlerea Prison

[2023] IEHC 707

[Record No. 2023/4282P]


EX TEMPORE JUDGEMENT of Mr Justice Mark Sanfey delivered on the 12 th day of October 2023


The applicants in this case are Melissa Kelly and Joe Doocey. Their application is for an enquiry pursuant to Article 40.4.2 of the Constitution in respect of the continuing detention of Martin O'Toole – otherwise Martin Thomas – in Castlerea Prison.


The applicants have initiated plenary proceedings in which they seek a range of reliefs against a number of defendants including the Attorney General, the DPP, the Garda Commissioner, Her Honour Judge Martina Baxter, the Minister for Justice and Equality and the Governor of Castlerea Prison.


In the plenary summons they seek a wide range of orders. I don't propose to set out all the orders, but some of the orders which will give a flavour of what is being sought are:

(1) A mandatory injunction for the immediate release of Martin Thomas (O'Toole) to afford him his EU and International Law and Protected Justice and Due Process Rights and his constitutional right of access to the High Court which has hitherto denied or failing this in the interim an Article 40 on his detention or release on bail.

…(6) A declaration that Martina Baxter operated ultra vires and denied equal access to justice enshrined in the ECHR the Aarhus Convention and Bunreacht na hÉireann.

(7) An order for disclosure of the execution order for the property in Falsk and any records held by the defendants relating to champerty and maintenance or conflict of interest issues relating to same.

(8) An order for disclosure of all garda files relating to the property in Falsk.

…(10) An order for disclosure of the books of evidence, the trial transcripts, the bodycam footage and the various possession and execution orders.

(11) A mandatory injunction on the gardaí to investigate and on the DPP to prosecute all instances of contradictory evidence misleading the court and perjury that arose in the trial.

(12) A declaration that the right to defend your indigenous territory against unlawful invasion is a right protected by Article 42 of Bunreacht na hÉireann.


Mr Doocey describes himself in the plenary summons as “an Irishman, a journalist/activist, a founding member of the anti-corruption taskforce and the Irish Environmental Defenders” and gives his address. He says his occupation is machine driver. Ms Kelly describes herself as “an Irishwoman, a Republican and a founding member of the NGO Irish Environmental Defenders and Concerned Parents Against Government Overreach and a farmer” and she gives her address. The matter came before me on Friday 06 October 2023 in the afternoon. Mr Doocey and Ms Kelly came into court and presented the court with the plenary summons, the ex parte docket and an affidavit, an affidavit which Ms Kelly had sworn.


It was intimated to me that all the reliefs being sought on the ex parte docket in the plenary summons were being sought. I indicated that any application under plenary proceedings should proceed in the normal way on notice to the defendants.


It was brought to my attention that Article 40 habeas corpus relief was sought and an affidavit of 25 September 2023 was handed in. I was then told that the matter had been before Mr Justice O'Higgins on 20 September 2023, and that he had heard an Article 40 application on that date and put it back to the following day 21 September 2023 for the State to be put on notice and on that date Mr Justice O'Higgins refused the application.


When I looked at the affidavit of 25 September 2023 sworn by Ms Kelly it was clear that it was a very lengthy affidavit directed towards the conduct by Mr Justice O'Higgins of the hearing before him on 21 September 2023. I indicated that in those circumstances I would not entertain an application based on that affidavit as I could not act effectively as a Court of Appeal from the decision of Mr Justice O'Higgins, that the appropriate course if exception was taken to the decision of Mr Justice O'Higgins was to appeal that decision to the Court of Appeal.


After hearing submissions from Ms Kelly however, I said that I would entertain an application for an enquiry under Article 40 based on the application before Mr Justice O'Higgins and any new submissions which Ms Kelly or Mr Doocey wished to make. I indicated that that application should be on notice to the governor. Ms Kelly and Mr Doocey agreed that this was an appropriate way of proceeding and asked for and received permission to put in a further submission.


On the return date of Wednesday 11 October, counsel attended for the governor. Counsel instructed by the DPP also attended and submitted that that was appropriate in the circumstances, but the applicants indicated that they had no objection to the DPP being represented at the hearing.


I reminded the parties that the only issue before the court was whether or not an enquiry should be ordered into the detention of Mr O'Toole rather than the enquiry itself and that submissions should be restricted to whether or not an enquiry should be ordered.


I explained to the applicants that the threshold for seeking an enquiry was low. In the words of Mr Justice Barr in the case of Simeon Burke v The Governor of Clover Hill Prison [2023] IEHC 177 at para. 16, Mr Justice Barr said:

“The court is satisfied that, given the importance of the right to liberty, the threshold for seeking an enquiry into the legality of a person's detention pursuant to Article 40.4.2 of the Constitution, should be a low bar. In other words, the court should err on the side of caution when considering the application and, if in any doubt as to the possible legality of a person's detention, the court should direct that an enquiry be held.”


As we shall see, while I agree with that statement of law, it is subject to a significant qualification established in the case law as to the nature of the issue raised about the legality of the detention in question and I will come back to that. I also drew the attention of the parties to the dicta of Chief Justice Ó Dalaigh in the case of ex parte Charles Wilson, a decision delivered on 29 July 1969. At p.7 of the Chief Justice's judgment he said:

“Habeas Corpus is not a mode of reviewing alleged procedural deficiencies unless they go to the jurisdictional basis of the trial or invalidate some essential step in the proceedings leading ultimately to the conviction”.


The papers which I read in advance of the hearing are as follows:

  • — The plenary summons.

  • — The ex parte docket, which set out the same relief as the plenary summons.

  • — The affidavit of Melissa Kelly of 20 September 2023.

  • — A brief written submission by the applicants and what was called a statement of truth by Ms Kelly handed into court on the morning of the application. (This statement of truth I had given Ms Kelly liberty to lodge in advance of the hearing).


On reading those papers, one of the difficulties I had was in understanding the background to the application. It appeared that Mr O'Toole had been incarcerated as a result of a conviction in the Circuit Court. However, the affidavit of Ms Kelly did not set out the background to the trial of Mr O'Toole, the charges against him, the date of duration of the trial, the details of the conviction, the sentence given to Mr O'Toole or the basis upon which the applicants purported to represent Mr O'Toole.


At the hearing, counsel for the governor presented the court with the warrant on foot of which Mr O'Toole was incarcerated. From this it became apparent that there had been four counts of assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997 in respect of which sentences were imposed of five years. There were four counts in relation to the counts of false imprisonment contrary to s.15 of the Non-Fatal Offences Against the Person Act 1997. In respect of the first of those counts a sentence of fifteen years was granted and in respect of the second, third and fourth of those counts, a period of fourteen years was given. There was a further count of aggravated burglary contrary to s.13 of the Criminal Justice Theft and Fraud Offences Act 2001: a sentence of 13 years was given in respect of that. There were three counts of arson contrary to s.2(1)(4) and (5) of the Criminal Damage Act 1991 and a further charge of violent disorder contrary to s.15 of the Criminal Justice (Public Order) Act 1994. A sentence of eight years was imposed in respect of that. There was a charge of criminal damage contrary to s.2(1) and (5) of the Criminal Damage Act 1991: there was a sentence of five years in respect of that. There was a count in respect of animal cruelty contrary to s.12(1) and (2) and a sentence of five years was granted in respect of that.


The order of the court provided that all sentences were to run concurrently and to date from 28 July 2023 which was the date of sentence with credit being given for all the time spent in custody.


The warrant also made it clear that the date of conviction was 02 June 2023. It also said that Mr O'Toole's date of birth was 23 June 1964 which would make him 59 years of age now. The date of sentence as I have said was 28 July 2023. The matter was tried in the Criminal Courts of Justice before Her Honour Judge Martina Baxter. It being the Circuit Court, there was a jury in attendance as well.


None of those facts were alluded to in Ms Kelly's affidavit or in her oral submissions to the court. I...

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