Georghe Cirpaci v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 25 February 2014
• Neutral Citation: [2014] IEHC 76
• Court: High Court
• Docket Number: [2014 No. 187 SS]
• Date: 25 February 2014

[2014] IEHC 76

THE HIGH COURT

[No. 187 SS/2014]

Cirpaci v Governor of Mountjoy Prison

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

GEORGHE CIRPACI

APPLICANT

AND

GOVERNOR OF MOUNT JOY PRISON

RESPONDENT

CONSTITUTION ART 40.4.2

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S53(1)

X (F) v CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL UNREP SUPREME 23.1.2014 2014 IESC 1

BAILEY v GOVERNOR OF MOUNTJOY PRISON 2012 2 IR 391 2012/3/751 2012 IEHC 366

CONSTITUTION ART 40.4.3

SMITH v EAST ELLOE RURAL DISTRICT COUNCIL 1956 AC 736 1956 2 WLR 888 1956 1 AER 855 1956 6 P & CR 102

JOYCE v GOVERNOR OF THE DOCHAS CENTRE 2012 2 IR 666 2013 2 ILRM 366 2012/19/5564 2012 IEHC 326

SECOND AMDT OF THE CONSTITUTION ACT 1941

DOWLING, STATE v KINGSTON (NO 2) 1937 IR 699

CONSTITUTION ART 40.4.4

O'CONNOR v GOVERNOR OF MIDLANDS PRISON UNREP HOGAN 5.2.2014 2014 IEHC 46

CONSTITUTION ART 40

BRENNAN v GOVERNOR OF PORTLAOISE PRISON 2008 3 IR 364

ROYLE, STATE v KELLY 1974 IR 259

OFFENCES AGAINST THE STATE ACT 1939 S29

DAMACHE v DPP & ORS 2012 2 IR 266 2012 2 ILRM 153 2012/9/2413 2012 IESC 11

VOZZA, STATE v DISTRICT JUSTICE O FLOINN & JUDGE MCCARTHY 1957 IR 227

HASTINGS, STATE v REDDIN 1953 IR 134 1955 89 ILTR 98

CRIMINAL JUSTICE ACT 1951

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S53

Crime – Theft – Committal warrant - Legality of detention - Option to elect for a jury trial - Indictable offence tried summarily - Application for release under Article 40.4.2 of the Constitution of Ireland - Habeas Corpus - Criminal Justice (Theft and Fraud Offences) Act 2001

Facts: The applicant was charged and convicted in the District Court of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 ('the 2001 Act'), and sentenced to six months imprisonment on the 28 ^th January 2014. The applicant then brought an application for an inquiry into the legality of the applicant"s detention pursuant to Article 40.4.2 of the Constitution of Ireland, which he claimed was unlawful because he had not been informed he had a statutory right of electing for a jury trial. It was undisputed that this was the case.

It was argued that s. 53(1) of the 2001 Act made it clear that the District Court could only try summarily a person charged with an indictable offence under the Act after he or she had given their consent. The respondent did not argue against this contention but said that the applicant should have proceeded by way of judicial review to apply to quash the conviction instead of applying under Article 40.4.2 for an order of release. In this regard, it was said that an application under Article 40.4.2 was only applicable to sentences of imprisonment in the lower courts when the relevant warrant was not good on its face. The applicant averred that he was entitled to seek the remedy that best vindicated his rights.

Held by Hogan J. that the respondent"s contention on the use of Article 40.4.2 applications as a legal remedy was incorrect because the case of Bailey v. Governor of Mountjoy Prison [2012] IEHC 366 made it clear that the High Court"s only task in such applications is to determine whether the applicant 'is being detained in accordance with law.' It was also pointed out that the High Court"s jurisdiction to deal with such applications could not be limited to cases where the relevant warrant was not good on its face because Article 40.4.3 provides for those cases where the Court concludes that the detention of an applicant is in accordance with law save that the law under which the applicant is being detained is itself unconstitutional. Finally, it was said that previous judicial interpretation of Article 40.4.2 found that it embodied the traditional common law remedies of habeas corpus, which would clearly include the right to examine the underlying legality of the detention whether the warrant for detention was good on its face or not.

The respondent had relied on the case of F.X. v. Clinical Director of the Central Mental Hospital [2014] IESC 1 in support of their contention on the use of Article 40.4.2 applications. However, it was found that that case clearly showed that this legal remedy was available to anyone who could show a fundamental breach of constitutional rights or the existence of some other significant defect attaching to the warrant or order providing for the detention.

It was further held that s. 53(1) of the 2002 Act, as well as the relevant case law, made it clear that the District Court could only try summarily a person charged with an indictable offence under the Act after he or she had given their consent. There was no doubt that this option had not been given to the applicant; therefore, his detention was in breach of Article 40.4.2 of the Constitution.

Order made directing the release of the applicant.

1 1. In this application for an inquiry into the legality of the applicant's detention pursuant to Article 40.4.2, the court is once again called upon to examine the scope of this jurisdiction. Mr. Cirpaci was arrested on 10 ^th December, 2013, and charged with the offence of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 ("the 2001 Act"). He later appeared before the District Court on that day when evidence of arrest, charge and caution was given. The court was informed that the Director of Public Prosecutions had consented to summary disposal of the case and the District Judge accepted jurisdiction on the basis that the offence in question was a minor one. The accused pleaded not guilty on 17 ^th December, 2003.

2 2. The case itself was heard in the District Court on 28 ^th January, 2014. The applicant was convicted and a sentence of six months imprisonment was imposed. It is important to stress that the applicant was legally represented at all times. Yet, critically however, it is accepted that the applicant was never informed by the District Court of his statutory right to elect for jury trial.

3 3. Section 53(1) of the 2001 Act provides:-

"The District Court may try summarily a person charged with an indictable offence under this Act if -"

(a) The Court is opinion that the facts proved or alleged constitute a minor offence fit to tried summarily;

(b) The accused, on being informed by the Court of his or her right to be tried by a jury does not object to being tried summarily;

(c) The Director of Public Prosecutions consents to the accused being tried summarily for the offence."

4 4. In these circumstances, given that it was a prerequisite to the District Judge's jurisdiction to conduct a summary trial of this offence that the applicant be first informed of his right to elect for jury trial, the respondent has all but conceded that the detention is bad in law. It is indeed hard to see how the respondent could have taken any different view

5 5. It is further admitted that the recital in the committal warrant to the effect that the applicant was informed of his right to elect for jury trial is erroneous, but it is submitted by Ms. O'Neill, counsel for the respondent, that although this error appears on the face of the record, it does not affect the validity of the warrant.

6 6. In the end, the issue in the present proceedings comes down to whether the applicant should have proceeded by way of judicial review to apply to quash the conviction or whether he was entitled to apply to this Court pursuant to Article 40.4.2 for an order of release. Counsel for the applicant, Mr. O'Higgins S.C., maintained that the applicant was entitled to choose the remedy which best vindicated his rights. He pointed to the safeguards provided for in Article 40.4.2 itself, including the judicial obligation to inquire "forthwith" into the legality of the applicant's detention, the fact that the onus rests on the detainer to establish the legality of that detention, the right to apply to any judge of the High Court of one's choosing for an order to directing an inquiry and the right (in principle, at least) to go from judge to judge to seek such an inquiry. The remedy provided for under Article 40.4.2 is, of course, not a discretionary remedy. Judicial review was, by contrast, inevitably slower and was a discretionary remedy.

7 7. Ms. O'Neill, on the other hand, contended that in the light of the decision of the Supreme Court in FX v. Clinical Director of the Central Mental Hospital [2014] IESC 1 an applicant who had been convicted by a lower court could normally only proceed by way of an Article 40.4.2 applicant in cases where the warrant was not good on its face. In the light of these latter submissions, it seems necessary once again to examine the text, history and tradition of Article 40.4.2.

Text, history and tradition of Article 40.4.2

8 8. First, so far as the text is concerned of Article 40.4.2 is concerned it is worth observing that the text of the Constitution itself makes no distinction between warrants which are good on their face and those which are not or between persons who have been convicted and those who have not been so convicted. As I noted in Bailey v. Governor of Mountjoy Prison [2012] IEHC 366, [2012] 2 I.R. 391, 397:

"If, however, the jurisdiction of this Court under Article 40.4.2deg; was confined to those cases where the illegal nature of the detention was obvious, why, then, it might be asked, should this Court have the role and function of conducting such an inquiry and, indeed, why should this elaborate role be spelt out by the Constitution in such meticulous detail?"

The distinction between legal errors which are patent and those which are not is not one, moreover, which is drawn by the language of Article 40.4.2 itself. Article 40.4.2 is rather solely concerned with the legality...