Finnegan v Superintendent of Tallaght Garda Station

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 27 July 2017
• Neutral Citation: [2017] IECA 222
• Date: 27 July 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 222 Appeal No. 2017/137

[2017] IECA 222

THE COURT OF APPEAL

Hedigan J.

Birmingham J.

Edwards J.

Hedigan J.

Neutral Citation Number: [2017] IECA 222

Appeal No. 2017/137

Mark Finnegan

Applicant/Respondent

-and-

The Superintendent of Tallaght Garda Station

and

The Governor of Wheatfield Prison

Respondents/Appellants

Crime & sentencing – Arrest and detention – Escape of prisoner – Prisoner remaining at large for long period of time – Failure by Gardaí to apprehend – Appeal

Facts: The respondent had been convicted of a road traffic offence and sentenced to a term of imprisonment. He escaped from prison in 2009 and remained at large until 2014. He was finally arrested and returned to prison upon attending Tallaght Garda station. The High Court had found that the arrest and detention of the respondent were unlawful. The appellants now sought to challenge that decision.

Held, that the appeal would be allowed and the decision at first instance set aside. Whilst there was considerable delay caused by human error on the part of the Gardaí, this did not suffice to deny the respondent fair procedures and render his arrest and detention unlawful. Evidence before the Court suggested that the respondent had actively misled the Gardaí as to his identity, and it could not be said that the delay in his arrest was malicious or deliberate.

JUDGMENT of Mr. Justice Hedigan delivered on the 27th day of July 2017

Introduction

1 This is an appeal against the judgment and order of Niì Raifeartaigh J. of the 7th November, 2016, wherein she declared the arrest of the applicant, the respondent herein, on the 10th November, 2014, not in accordance with law. The High Court judge also declared that the respondent's detention in Wheatfield prison from the 10th November, 2014, to the 10th December, 2014, was not in accordance with law.

2 The respondent was convicted on the 19th November, 2008, for the offence of allowing himself to be carried in a mechanically propelled vehicle without the consent of the owner contrary to s. 112(1)(b) of the Road Traffic Act 1961 as amended. He was sentenced, on the 27th May, 2009, to 16 months. The first two months were spent in Wheatfield prison at which point he was transferred to Shelton Abbey Prison. He escaped from Shelton Abbey on the 31st October, 2009, and remained unlawfully at large until his arrest in November, 2014. Immediately upon his absconding, the Gardaiì at Arklow station were informed. It appears however that, due to an oversight or human error, there was no warning entry made on PULSE. His release date, had he served his full sentence, would have been the 27th September, 2010.

3 He returned to his family home in Tallaght where he had lived prior to his imprisonment. In 2011, he moved to a different address in Tallaght with his partner. He had a daughter in 2013. He collected social welfare in Tallaght. The High Court judge held that he had no Garda contact between the 31st October, 2009, and the 1st June, 2014. He presented himself at Tallaght Garda station on the 10th November, 2014, and was arrested and committed to Wheatfield prison. There was some dispute about interactions with the Gardaiì prior to the respondent's arrest and whether he denied his identity in an attempt to evade arrest and recommittal to prison.

4 The High Court judge noted that the affidavit of the Garda Inspector admitted that there was no good explanation for what happened. That the respondent took no steps to conceal his whereabouts. The delay was on the wrong side of the notional dividing line between acceptable and unacceptable delay. The arrest and detention were in breach of constitutional justice and not in accordance with law.

The appellants' submissions

5 It was submitted by the appellants that it was valid and lawful to arrest and/or detain the respondent. The trial judge erred in failing to hold that the respondent must serve out his sentence. Having escaped he may be returned to prison summarily to serve out his sentence irrespective of any delay on the part of the arresting authorities. The respondent's position that he can set up the extent and longevity of his evasion as a reason for non-enforcement is perverse. Given that the escape would be cause for seeking a separate prosecution it is insupportable to invite the Court to hold that the balance of the respondent's sentence should be dissolved as a result of his successful avoidance of being returned to custody sooner. The respondent is asking this Court to condone and reward what appears to be an unlawful and criminal act.

6 At all times, the primary and effective cause of the respondent not being in prison was his decision to abscond and not voluntarily return. It is absurd to suggest that he has no agency or responsibility in this matter and that the sole issue is whether the State ought to have done more to locate him.

7 It was submitted that the entire purpose of formulating the respondent's argument about the technical definition of a committal warrant (as a command to the Gardaiì to arrest and the governor to detain a convicted person) was to avoid any consideration of the unlawful act of the respondent giving rise to his situation. His sentence does not become ineffective merely on the basis of a highly tendentious reading of the committal warrant. Also, the respondent conflates the sentence of imprisonment with the instrument which authenticates the lawfulness of his detention.

8 The trial judge erred in equating the lack of a post hoc explanation for the delay with unfairness and/or breach of fair procedures or natural and constitutional justice in respect of the respondent's arrest at the time thereof. She further erred in finding unfairness and/or a breach of fair procedures or natural and constitutional justice in the respondent's arrest and detention when the right to fair procedures was necessarily abridged or sufficiently vindicated by no more than confirmation of his identity as someone unlawfully at large.

9 She erred in finding the arrest and/or detention not in accordance with law as a result of any breach of duty to act promptly in exercising a statutory power. Such a duty is not autonomous and not to be isolated and abstracted from the application of fair procedures generally which were afforded to the respondent.

10 The trial judge erred in not identifying objective principles or standards as a touchstone for findings of unfair delay in arresting the respondent and/or a breach of duty to act promptly in exercising a statutory power. She erred in exculpating the respondent from responsibility to serve out his sentence.

11 The trial judge deprived the people of their right or expectation that the respondent must as a rule serve out his sentence having been lawfully convicted and sentenced. The public interest in ensuring the respondent serve out his sentence is almost wholly ignored by comparison with the alleged individual unfairness for the respondent being returned to prison after some years. It is not unfair or unexpected that he would be located and made to finish his sentence. He chose to live with that risk.

12 The trial judge erred in failing to refuse the application on the grounds of ex turpi causa non oritur actio. It was submitted that the respondent was guilty of turpitude in two respects. First, he absconded from prison. Second, he misled the Gardaiì. The respondent's own conduct bars him from the relief of having his return to detention declared unlawful. It was submitted that Carrigaline Community Television Broadcasting Co. Ltd. v. Minister for Transport, Energy & Communication (No. 2) [1997] 1 I.L.R.M. 241 stresses the availability of this plea in bar. It highlights the exceptional circumstances that cumulatively must exist before the plea can be circumvented. There must exist a procedure which if adhered to might have availed the claimant and an abridgment of that procedure amounting to a breach of the claimant's constitutional rights. Further, the party with the power in law to relieve the claimant against his own illegal conduct must have known about it and elected not to take any necessary steps against the claimant in the past. Neither of these applies to the present case.

13 The judgment was tantamount to commutation or remission which is reserved to the executive. Such remission or commutation would be a breach of the separation of powers. The Court was referred to the Supreme Court's obiter dicta remarks against passing sentences with built-in reviews in The People (DPP) v. Finn [2001] 2 I.R. 25 at 45 to 46 where it was regarded as akin to remission or commutation and a breach of the separation of powers. It was submitted that those remarks apply with equal force to what is being proposed in this case.

14 It was submitted that there was overwhelming and persuasive evidence before the High Court concerning whether the respondent was forthcoming once the Gardaiì began making enquiries regarding his status. He was not forthcoming and denied on two occasions being the person of his name who escaped. The respondent's averments should have been considered against the backdrop of the fact that he had escaped lawful custody committing an indictable offence in the process. This is not altered by the relative ease of that escape. The appellants complain that the trial judge did not resolve the conflict of facts in relation to his interaction with the Gardaiì between June and November, 2014. There were several Garda affidavits and the affidavit of Garda Rooney was supported by his contemporaneous notebook entries. The respondent's contradiction was by way of bare denial. The issue of evasion of arrest was of manifest and obvious relevance. This was the most significant factual issue in the case. This creates difficulty given the emphasis which the trial judge placed on the respondent having lived openly. It...