Gibney v The Governor of Cork Prison

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Garrett Simons
• Judgment Date: 21 June 2019
• Neutral Citation: [2019] IEHC 510
• Date: 21 June 2019
• Docket Number: 2019 No. 729 SS

[2019] IEHC 510

THE HIGH COURT

Simons J.

2019 No. 729 SS

IN THE MATTER OF ARTICLE 40.4.2° OF THE CONSTITUTION

BETWEEN

DAMIEN GIBNEY

APPLICANT

AND

THE GOVERNOR OF CORK PRISON

RESPONDENT

Habeas corpus – Unlawful detention – Contempt – Applicant seeking habeas corpus – Whether detention was unlawful

Facts: The applicant, Mr Gibney, applied for habeas corpus on behalf of Mr Walsh. Mr Gibney explained to the High Court that Mr Walsh was detained pursuant to an order of conviction imposed by the Circuit Court requiring that he be detained for fourteen days for contempt in the face of the court. This precise offence and precise instance of contempt had been considered in detail by three levels of the Superior Courts. A successful application for habeas corpus was made to the High Court. That judgment was then appealed to the Court of Appeal and from the Court of Appeal, the matter was subsequently appealed to the Supreme Court. The Supreme Court gave its judgment on 25 February 2019. When asked by the High Court as to the basis for the application, the only matter offered to the court was that there had been a change in the law since the judgment of the Supreme Court in February 2019.

Held by Simons J that, on the basis of the papers before him and what was offered by way of argument, there was simply no stateable ground for saying that the detention was unlawful and, therefore, he refused to direct an inquiry.

Simons J held that the application would be dismissed.

Application dismissed.

Note of ex tempore ruling given by Mr Justice Garrett Simons on 21 June 2019.

1 This application comes before the court by way of an application for an inquiry pursuant to Article 40.4.2° of the Constitution. Applications of this type are generally referred to as an application for habeas corpus. The application is typically taken in two stages: an initial application which is made on an ex parte basis, and, if the judge is satisfied that there are any grounds for an inquiry, he or she will then direct an inquiry requiring the production of the body and the certification in writing by the detainer of the legal basis upon which the individual is detained.

2 The ex parte application in this case is made in respect of an individual known as Mr. David Walsh. I am told, but this is not clearly stated on affidavit, that Mr. Walsh is currently detained in Cork Prison.

3 The application is made on his behalf by a gentleman called Mr. Damian Gibney. Mr. Gibney has frankly admitted that he does not have any written consent on behalf of David Walsh to move the application.

4 See affidavit of Damian Gibney dated 20 June 2019.

‘2. I say that the honourable judge Noonan requested that I make this further affidavit in respect of my above application to clarify certain issues.

3. The court asked me to confirm that I have David Walsh's consent to bring this application which I can confirm to the court. Mr Walsh asked Mr Ben Gilroy to bring this application or if Mr Gilroy could not do it to get someone else known to David Walsh to bring this application.’

5 That on its own would be sufficient to refuse the application, especially in circumstances where a similar application was moved yesterday before my colleague Mr. Justice Noonan. Mr. Justice Noonan refused...