Fogarty v The Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 27 March 2020
• Neutral Citation: [2020] IEHC 154
• Docket Number: [2020 No.241 SS]
• Court: High Court
• Date: 27 March 2020

IN THE MATTER OF ARTICLE 40.4.20 OF THE CONSTITUTION

BETWEEN

JAMES FOGARTY

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE CHIEF STATE SOLICITOR

NOTICE PARTIES

[2020] IEHC 154

Mary Rose Gearty J.

[2020 No.241 SS]

THE HIGH COURT

Unlawful detention – Committal warrant – Unfair trial – Applicant seeking an enquiry under Article 40 of the Constitution – Whether the applicant’s detention was unlawful

Facts: The applicant, Mr Fogarty, applied to the High Court seeking immediate release from prison having made an application for an enquiry under Article 40 of the Constitution. He was serving a sentence for assault causing harm. He argued that he was the victim of an offence but that the offender had never been punished and that, due to a catalogue of errors, collusion and malfeasance, the applicant himself was convicted of an assault on the true wrongdoer and the applicant was wrongfully imprisoned as result. The applicant submitted that so many aspects of his detention rendered it unlawful, from the initial investigation and arrest, to the appointment of a legal representative who was not a qualified solicitor, to the form of the committal warrant in accordance with which he was imprisoned, that even if he failed on one or more of the arguments he made, it was appropriate to order his immediate release nonetheless due to the manifest unfairness of the trial process, which included a period of pre-trial incarceration in addition to the sentence of 4 years and 6 months which he was serving.

Held by Gearty J that only one ground truly addressed the concerns of the Article 40 application; the committal warrant ground. She held that the committal warrant was good on its face. She held that the remaining grounds did not contain prima facie evidence of any breaches of constitutional rights such as would deprive the Circuit Court of jurisdiction. She held that the weight of the evidence at trial appeared to have been strongly in favour of the prosecution.

Gearty J held that the application would be refused.

Application refused.

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 27th day of March, 2020

1. Introduction

1.1 This Applicant seeks immediate release from prison having made an application for an enquiry under Article 40 of the Constitution. He is currently serving a sentence for assault causing harm. He argues that he was the victim of an offence but that the offender has never been punished and that, due to a catalogue of errors, collusion and malfeasance, the Applicant himself was convicted of an assault on the true wrongdoer and the Applicant is wrongfully imprisoned as result.

1.2 The Applicant submits that so many aspects of his detention render it unlawful, from the initial investigation and arrest, to the appointment of a legal representative who was not a qualified solicitor, to the form of the committal warrant in accordance with which he was imprisoned, that even if he fails on one or more of the arguments he makes, it is appropriate to order his immediate release nonetheless due to the manifest unfairness of the trial process, which included a period of pre-trial incarceration in addition to the sentence of 4 years and 6 months which he is currently serving.

1.3 There are three preliminary matters. Firstly, the issue of representation is addressed in circumstances where it was submitted that the Applicant was incapable of presenting his own case. Secondly, the difficulties which can arise when a litigant in person prepares and presents multiple complex arguments are outlined. Thirdly, the law in relation to the Article 40 remedy is summarised. Thereafter, each argument is dealt with in turn after a recital of the relevant facts.

2. Professional Lawyers, McKenzie Friends and Representation by a Family Member

2.1 As a preliminary issue, the Applicant requested that his son be permitted to represent him in this enquiry. While it is often essential that an initial application under Article 40 be presented by a third party, when the enquiry is ordered, the Applicant is usually represented by professional lawyers. He may also represent himself during the inquiry but may not be represented by an unqualified third party in any but the most exceptional circumstances. A McKenzie friend is a term used to describe an unqualified person who is permitted to assist a litigant in court, but such an assistant is not permitted to address the court. That is not what was proposed in this case.

2.2 It is a fundamental and important rule that those who do not choose to represent themselves must be represented by a qualified lawyer. This was confirmed by the Supreme Court in Coffey & Ors v Birmingham & Ors, [2013] IESC 11, where a Mr. Percy Podger sought to represent thirteen separate litigants in their proposed judicial review cases. Mr. Justice Fennelly ruled that this could not be permitted. An unqualified representative has no duty to the court, or indeed to the litigant, unlike the professional lawyer who not only owes duties to her client and to the court but may be sanctioned by the regulatory body of her profession if she is found to have breached any one of these duties. These are vital safeguards in ensuring that the courts can trust what is submitted in argument and in pleadings by professional lawyers and can administer justice more efficiently. These safeguards are, manifestly, in the public interest. One of the best illustrations of the importance of the professional lawyer and the recognition of her vital role in the administration of justice and protection of civil liberties is the fact that when a person is accused of a crime and his liberty is at stake, the State agrees to pay his lawyers if he cannot afford legal advice, so that his constitutional right to a fair trial is vindicated. Similarly, in all but the most unmeritorious applications under Article 40, the legal fees arising are paid by the State. Thus, the constitution rights of the citizen are not only acknowledged, they are given real and effective protection.

2.3 Representation was the sole issue in the case of Coffey. Mr. Justice Fennelly quoted, with approval, the comments of Sir Donaldson M.R. in Abse & Ors v Smith, [1986] 2 W.L.R. 322, at pages 326 to 327, where he referred to the limitation of rights of audience to qualified persons:

“These limitations are not introduced in the interests of the lawyers concerned, but in the public interest. The conduct of litigation in terms of presenting the contentions of the parties in a concise and logical form, deploying and testing the evidence and examining the relevant law demands professional skills of a high order. Failure to display these skills will inevitably extend the time needed to reach a decision, thereby adversely affecting other members of the public who need to have their disputes resolved by the court and adding to the cost of the litigation concerned. It may also, in an extreme case, lead to the court reaching a wrong decision.”

2.4 Fennelly J. not only endorsed these comments but added (at paragraphs 29 and 30) remarks that clarify the important role of the professional lawyer which are worth repeating even as the Court considers permitting an unqualified person to present an application under Article 40:

“It would be inimical to the integrity of the justice system to open to unqualified persons the same rights of audience and representation as are conferred by the law on duly qualified barristers and solicitors. Every member of each of those professions undergoes an extended and rigorous period of legal and professional training and sits demanding examinations in the law and legal practice and procedure, including ethical standards. Barristers and solicitors are respectively subject in their practice to and bound by extensive and detailed codes of professional conduct. Each profession has established a complete and active system of profession discipline. Members of the professions are liable to potentially severe penalties if they transgress.

There would be little point in subjecting the professions to such rules and requirements if, at the same time, completely unqualified persons had complete, parallel rights of audience in the courts. That would defeat the purpose of such controls and would tend to undermine the administration of justice and the elaborate system of controls.”

2.5 Fennelly J. acknowledged that this general principle was, notwithstanding its importance, subject to rare exceptions where a particular injustice would otherwise be caused. In Coffey v. Tara Mines, [2007] IEHC 249, Mr. Justice O'Neill permitted a wife to represent her husband due to a disability which made it impossible for him to conduct the case. Finally, in the case of Knowles v Governor of Limerick Prison, [2016] IEHC 33, Mr Justice Humphries pointed to O. 6, r. 2 of the District Court Rules of 1997, which permits representation by family members in cases of infirmity or other unavoidable cause as affording support for the proposition that a family member may be in a different category to those representatives who might be termed serial McKenzie friends, for want of a better description. The proposition of relying on the terms of the District Court Rules was mentioned in the context of the decision of O'Neill J., and was obiter dicta, as the Knowles case involved a proposed representative with no particular connexion to the litigant in question, no legal qualifications and a history of having made similar applications. The application in Knowles was refused, unsurprisingly.

2.6 In this case, the Applicant has provided medical evidence from his general practitioner (in a letter dated 31st August, 2017) which confirms an acquired brain injury arising from an accident in 1995. This led his doctor to conclude that he was a vulnerable person who should be...