Grant v Governor of Cloverhill Prison

JudgeMr. Justice Richard Humphreys
Judgment Date27 November 2015
Neutral Citation[2015] IEHC 768
Docket Number[2015 No.1797 SS]
CourtHigh Court
Date27 November 2015

[2015] IEHC 768


Humphreys J.

[2015 No.1797 SS]


Constitution – Art. 40.4.2 of the Constitution – Arrest and detention – Refusal of bail – Legality of detention – Habeas corpus – Legality of Committal warrants – S. 21 of the Criminal Procedure Act 1967 – S. 5(1) and s. 5(2) of the Criminal Justice (Miscellaneous Provisions) Act 1997 – Flight risk – O. 19 of the District Court Rules – Whether refusal of bail was essential for ensuring presence of accused at trial – Nature of inquiry under Art. 40.4 of the Constitution

Facts: Following the refusal of bail by the District Court, the applicant applied for an order under art. 40.4.2 of the Constitution challenging the legality of his detention. The applicant contended that the committal orders of the District Court were fundamentally flawed and thus warranted his release.

Mr. Justice Richard Humphreys declined to grant an order for the release of the applicant. The Court found that the three committal warrants relating to the detention of the applicant arising under s. 21 of the Criminal Procedure Act 1967 and s. 5(1) and s. 5(2) of the Criminal Justice (Miscellaneous Provisions) Act 1997 were flawed as they failed to comply with the provisions of o. 19, r. 1 of the District Court Rules. The Court held that it was not appropriate to refer both Acts of 1967 and 1997 in heading or body of all committal warrants and there was a clear demarcation between a remand made under the 1967 Act to the Court of the same jurisdiction and the remand made to the alternative Court in another jurisdiction under the 1997 Act. The Court opined that notwithstanding the fundamental defect in the first two warrants having been spent, the current warrant could be sustained in the eyes of law and the current valid detention would not cure a previous invalid warrant. The Court held that it had no jurisdiction to order the release of the applicant under art. 40.4.2 of the Constitution on the basis of prior invalid warrants in the absence of parallel judicial review proceedings to that effect and the alternative remedy that was left was to apply for the correction of the earlier warrants under the slip rule. The Court held that under art. 40, a Court could investigate any infirmity that could be examined under judicial review and an error on the face of the record; however an art. 40 application could not be converted into any form of procedure and the applicant had to initiate another application in tandem with the art. 40 application to claim the desired relief.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 27th day of November, 2015

On 6th November, 2015, the applicant was arrested in connection with particular offences against property, which it is not necessary to set out in detail for the purposes of this judgment.


He came before Judge McLoughlin in the District Court sitting in Monaghan on 7th November, 2015. Ms. Irene Sands, B.L, instructed by Ms. Paula Tiernan, Solicitor, of P. Tiernan & Co. Solicitors, made an application for bail on his behalf, which was objected to by the prosecution.


There are three circumstances in which such an objection to bail may be made:

(i) on the basis of s. 2 of the Bail Act 1997;

(ii) that refusal of bail is necessary to ensure attendance of the accused at the trial ( The People v. O'Callaghan [1966] IR 501); or

(iii) on the basis that refusal of bail is necessary to prevent interference with witnesses, evidence or jurors (the other, less frequently encountered, ground recognised in O'Callaghan).


Given the nature of evidence at bail hearings generally, and the general non-reporting of such evidence, I canvassed with Mr. Colman Fitzgerald S.C. who appeared (with Ms. Sands) for the applicant, whether the present judgment should either be redacted or should pass over any express statement of the nature of the objection to bail. Mr. Fitzgerald has asked me not to redact it in any way and indeed to state expressly which of the three headings of objection arose in this case lest there be any speculation as to other grounds of objection. The applicant personally confirmed to his solicitor that there would be no subsequent objection from him being raised in the context of his possible forthcoming trial to my having followed his counsel's proposal. There was no objection from Mr. Kieran Kelly B.L. for the respondent. This having been clarified, I will do as requested by Mr. Fitzgerald.


However, it needs to be stated immediately that the applicant in this case is and at all material times was entitled to the presumption of innocence. The fact that there was a garda objection to bail or indeed that bail was refused by the District Court is not a matter that can be in any way taken into account or held against him for the purposes of his eventual trial.


In the present case, there was no question of s. 2 of the Bail Act 1997, coming into play, and nor was there any allegation of an intention to interfere with witnesses, evidence or jurors. The sole ground of objection to bail was that refusal of bail was necessary to ensure his attendance at the trial. Such an objection can be supported by a number of evidential matters which have been identified in caselaw, being matters which can be taken into account as relevant the overall test of whether refusal of bail is necessary to ensure attendance. For example, one of the matters relied on in the present case was the fact that the accused resides outside the State (in Northern Ireland). That a court might be satisfied as to one or more of these evidential matters does not in itself require refusal of bail, as there is an overall test in this regard that the court must consider. It is not necessary for the purposes of the present judgment to set out the specific evidential matters relied on in this case, other than to emphasise that the only possible relevance they had to the bail hearing was limited to the single question of whether refusal of bail was necessary for the purpose of ensuring the attendance of the accused at his trial.


A transcript of the Digital Audio Recording of the hearing has been prepared and put on affidavit in this case, so it is not necessary for me to recite the sequence of events at the hearing in full. However, I will make one immediate preliminary observation which is that it is very clear that the learned judge made every effort to be absolutely fair to the applicant. Having heard submissions he did not give an immediate decision, but adjourned a consideration of the matter for ten minutes to consider his ruling. Furthermore, after that adjournment, he asked both sides whether they had anything that they wished to add and only then did he proceed to give his decision.


There are two passages in the transcript that are of particular relevance. The first relates to the legal submission made by Ms. Sands on behalf of the applicant, which set out a perfectly correct statement of the presumption of innocence and the objection she had to meet, namely the suggestion by the prosecution that refusal of bail was necessary to ensure the attendance of the applicant at his trial. In the argot of criminal law this issue is often referred to as ‘ flight risk’.


This category of objection is also often referred to in shorthand as an O'Callaghan objection, although given that the O'Callaghan case also encompasses less frequently encountered objections relating to interference with the trial process, in a case where those sort of objections arose, there might need to be greater specificity of language as to which limb of O'Callaghan was at issue. This was not such a case, and therefore insofar as O'Callaghan was referred to, it was not necessary to be more specific because such references must be taken as concerning the question of securing attendance at trial.


Ms. Sands made an entirely correct submission to the learned judge as follows:

‘… the court will be familiar with the case of DPP v. Mulvey of this year which indicates that the State, when they're opposing bail, need to hang their hat, if I could put it colloquially, Judge, to a particular objection. My understanding, although the Sergeant wasn't particularly clear on that, is that the flight risk is the primary concern, if I can put it that way, or certainly that's what I would deem it to be.’


Immediately after Ms. Sands had correctly stated the nature of the flight risk objection that she had to meet, the learned judge made a somewhat unhappy intervention as follows:-

‘That's not my understanding Ms. Sands, I listened to all the evidence and that's not what I heard.’


Following the conclusion of submissions, the short adjournment and the opportunity to make further submissions which I have referred to above, the learned judge gave his ruling which it is probably best to set out in full, in the following terms:-

‘Firstly I'll state from the outset, Ms. Sands is correct in stating that, there is a presumption of innocence in relation to the defendant regarding the charges that are before the Court, but notwithstanding that the State are still entitled to make an application to have bail refused to the Defendant.

The application to deny bail has been made by the State pursuant to the principles governing bail that were enunciated in the case of the The People (Attorney General) v O'Callaghan. In that case, Mr. Justice Walsh stated that there was a fundamental test, and there were quite a number of matters set out in his judgment, set out at pages, between 503 and 504. He said that the test may be determined amongst others by reference to the following criteria:

The nature of the accusation or the seriousness of the charge;

The nature of the evidence;

The likely sentence to be imposed upon...

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