Gilroy v The Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 12 February 2019
• Neutral Citation: [2019] IEHC 71
• Docket Number: 2019 No. 139 SS
• Court: High Court
• Date: 12 February 2019

[2019] IEHC 71

THE HIGH COURT

Barrett J.

2019 No. 139 SS

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSITUTION OF IRELAND

BETWEEN:

BEN GILROY

AND

JERRY BEADES

Applicants

– AND –

THE GOVERNOR OF MOUNTJOY PRISON

Respondent

Order of Committal – Art. 40 application – Detention – High Court tasked with addressing whether there was any invalidity on the face of an Order of Committal – Whether the applicant’s detention pursuant to the Order was in accordance with law

Facts: The High Court, in an Art. 40 application, was tasked with addressing whether there was any invalidity on the face of an Order of Committal of 16.01.2019, certified by the Deputy Governor of Mountjoy Prison on 04.02.2019 as being the order pursuant to which the first applicant, Mr Gilroy, had been detained. The Order was addressed to the Commissioner and members of An Garda Síochána. It detailed Mr Gilroy’s criminal contempt, the operative part then providing that “You are hereby commanded to arrest…Ben Gilroy and…lodge him in Mountjoy Prison there to be detained for a period of 3 months”. Three concerns were raised concerning the face of the Order: (1) it did not mention that Mr Gilroy was to be detained by the respondent, the Governor of Mountjoy Prison; (2) it had been wrongly endorsed by the member of An Garda Síochána who brought Mr Gilroy to Mountjoy Prison; and (3) it named the wrong plaintiff. A number of further points were raised, in effect claiming a fundamental denial of justice to Mr Gilroy. Two further points arose: (4) Mr Gilroy claimed that when he was brought from the court to the Garda station on 16.01.2019, he asked whether he was under arrest and was told that he was not under arrest but neither was he free to leave; and (5) it was suggested that a different committal process used to operate before a now retired judge of the Court of Appeal (when a High Court judge). That judge, it was claimed, would allow time between the order for, and the effecting of, committal. Sometime in 2017, it was claimed, that process changed and the type of process to which Mr Gilroy was exposed came into play.

Held by Barrett J that: (1) applying Carroll v Governor of Mountjoy Prison [2005] 3 IR 292, the fact that the Order did not mention that Mr Gilroy was to be detained by the Governor of Mountjoy Prison did not fall at law to be treated as a flaw; (2) the endorsement’s mistaken reference to “17th January” had been explained away; and (3) if there was a flaw in the name of the financial institution that was party to the proceedings it was not a fatal flaw. Barrett J held that the points claiming a fundamental denial of justice to Mr Gilroy focused in part on the committing Judge’s conduct of the substantive proceedings, a matter more properly for appeal. Barrett J held that: (4) it is because a judge’s order takes effect once uttered in court that the documentation that follows is but the formalisation of such order and, as a result, the prisoner is at all times detained pursuant to a lawful court order; and (5) whatever the previous practice of another High Court judge may have been, it did not follow that a difference in approach on the part of the committing judge (a) represented a change in the law or (b) was inconsistent with law.

Barrett J held that the court was coerced as a matter of law to conclude that Mr Gilroy’s detention at Mountjoy Prison pursuant to...