Duncan v Governor of Portlaoise Prison
| Jurisdiction | Ireland |
| Judgment Date | 01 January 1998 |
| Date | 01 January 1998 |
| Docket Number | [1958SS/1996, |
| Court | High Court |
High Court
Criminal Law - Detention - Arrest - Prisoner in unlawful custody - Decision by Minister for Justice to release prisoner - Decision of Director of Public Prosecutions to re-arrest prisoner - Prisoner re-arrested while on prison property - Whether re-arrest tainted by illegality.
Practice - Inherent jurisdiction of court - Subpoena - Whether court has inherent jurisdiction to set aside subpoena.
Each of the applicants was, on various dates prior to the 6th November, 1996, remanded in custody pursuant to orders of the Special Criminal Court. These orders were invalid as one of the three judges comprising the Court was, at the time of the making of the remand orders, no longer a serving member of the Court.
The situation came to the attention of the authorities on the 6th November, 1996, as a result of which they took certain steps. At that time, the first four applicants were detained at Portlaoise Prison and the fifth applicant was detained in Mountjoy Prison. At the direction of the Director of Public Prosecutions, arrangements were made to release all of the applicants from their unlawful detention. All of the applicants were re-arrested on prison property immediately following their release. The fourth applicant claimed that he had not been freed from handcuffs or the restraint of the prison staff prior to his re-arrest. Each of the applicants sought an order pursuant to Article 40 of the Constitution directing their immediate release from custody.
It was submitted on behalf of the applicants that as they had not been released from unlawful custody the re-arrest was also unlawful and, that the unlawful custody was merely continued by the arrest. It was further contended that there was a conspiracy between the respondents and the notice parties to keep the applicants in unlawful custody so as to bring about a situation where there would be no genuine release. During the hearing it was conceded that there was insufficient evidence to involve the Minister for Justice or her officials or the Attorney General in the alleged conspiracy.
Early in the course of the proceedings, a subpoena was issued at the suit of the applicants directed to the Attorney General. Counsel on behalf of the notice parties applied to set aside thesubpoena on the basis that there was no relevant evidence which the Attorney General could give which would not be protected by legal professional privilege. This application was acceded to by the learned trial judge.
Held by the High Court (Kelly J.) in refusing the relief sought, 1, that each applicant had been released from custody at the time of re-arrest and accordingly, the arrest was lawful. Even if the applicants had not been released at the time of the arrests, the arrests were still lawful in as much as they had been permitted by the respondent. The fact that the arrests took place on prison property did not affect their validity.
Hegarty v. Governor of Limerick Prison [1998] 1 I.R. 412; In re Ó Laighléis ó laighléis[1960] I.R. 93; The People v. Kehoe[1985] I.R. 444 considered. In re Singer (No. 2)(1960) 98 I.L.T.R. 112 followed.
2. That the fact that the arrests were effected after a period of unlawful detention did not affect their legality or validity.
The People (Director of Public Prosecutions) v. Colm O'Shea [1981] 2 Frewen 57 applied.
3. That there was no evidence of any agreement on the part of the State authorities to do something unlawful or to do something lawful by unlawful means in respect of the release and subsequent re-arrest of the applicants.
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Hegarty v. Governor of Limerick Prison [1998] 1 I.R. 412followed.
4. That it was not the function of the court to mark its displeasure at the incompetence on the part of the State by directing the release of the applicants.
5. That the High Court had an inherent jurisdiction to set aside a subpoena. On the basis of the documents exchanged between the parties and the issues defined in them, there was no relevant evidence that the Attorney General could give, and even if there was, such evidence would be protected by legal professional privilege. Accordingly, the subpoenadirected to the Attorney General should be set aside.
Cully v. Northern Bank Finance Corporation Limited [1984] I.L.R.M. 683;R. v. Lewes JJ., Ex p. Home Secretary[1972] 1 Q.B. 232;Senior v. Holdsworth, Ex p. I.T.N.[1976] Q.B. 23;S.P.U.C. v. Grogan (No. 3)[1992] 2 I.R. 471considered.
Cases mentioned in this report:-
Cully v. Northern Bank Finance Corporation Limited [1984] I.L.R.M. 683.
Hegarty v. Governor of Limerick Prison [1998] 1 I.R. 412.
In re Ó Laighléis ó laighléis [1960] I.R. 93; (1957) 95 I.L.T.R. 92.
O'Hagan v. Governor of Portlaoise Prison (Unreported, High Court, Kelly J., 30th May, 1997).
The People v. Kehoe [1985] I.R. 444; [1986] I.L.R.M. 690.
The People (Director of Public Prosecutions) v. Patrick McCann (1981) 2 Frewen 57.
The People (Director of Public Prosecutions) v. Colm O'Shea (1981) 2 Frewen 57.
R. v. Lewes J.J., Ex p. Home Secretary [1972] Q.B. 232; [1971] 2 W.L.R. 1466; [1971] 2 All E.R. 1126.
Senior v. Holdsworth, Ex p. I.T.N. [1976] Q.B. 23; [1975] 2 W.L.R. 987; [1975] 2 All E.R. 1009.
S.P.U.C. v. Grogan (No. 3) [1992] 2 I.R. 471.
In re Singer (No. 2) (1960) 98 I.L.T.R. 112.
The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550; [1985] I.L.R.M. 465.
Inquiry pursuant to Article 40.4.2 of the Constitution.
On the 13th November, 1996, following a...
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