A.H. v The Governor of Castlerea Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 26 October 2021 |
| Neutral Citation | [2021] IEHC 734 |
| Docket Number | RECORD NO. 2021/1470 SS |
| Court | High Court |
In the Matter of an Application Pursuant to Article 40.4.2 of the Constitution of Ireland
[2021] IEHC 734
RECORD NO. 2021/1470 SS
THE HIGH COURT
EX TEMPORE JUDGMENT of Ms. Justice Niamh Hyland delivered on 26 October 2021
This Article 40.4.2 inquiry raises the following net issue. Does a valid committal warrant only operate to lawfully detain an applicant who is in unlawful detention immediately prior to the making or execution of same if he is first released from unlawful detention, or can it lawfully detain him even where there is no break between the execution of the warrant and the unlawful detention?
This conundrum arises in circumstances where no challenge is raised to the validity of the fresh committal warrant per se but where it is argued on behalf of the applicant that it cannot have legal effect as the applicant was not released from his unlawful detention before it was served and executed against him.
The applicant is awaiting judgment from the Special Criminal Court (“the SCC”) having had a trial that ended on 6 August. Following the end of the trial, the committal warrant remanded him up to 22 October 2021 in circumstances where judgment was fixed for that date. However, the date for judgment was extended to 8 November 2021 but in error, no committal warrant was made for the period after 22 October.
It was in those circumstances that the application was made for an order under Article 40.4.2 directing the applicant's release on the morning of 24 October.
I directed an inquiry in the morning of 24 October, and the matter was returned to that afternoon at 4pm. It appears from the affidavit of Mark Breen sworn 26 October after the hearing as directed by me that the SCC made a fresh committal order (the committal warrant of 24 October) sometime before 3.18pm which detained the applicant in lawful custody until 8 November 2021. A certificate was provided by the detainer, being the Assistant Governor of Castlerea Prison, certifying that he held the applicant in custody pursuant to the committal warrant of 24 October 2021.
Despite that change of circumstances, the application went ahead on behalf of the applicant on the basis that the detention remained unlawful as (a) the applicant ought to have been released from unlawful detention; (b) the committal warrant should then have been served upon him and (c) only at that stage could the execution of the warrant commence.
It was conceded that if those steps had been taken, the applicant could have been arrested on foot of the warrant and held pending his transfer to another prison provided the exclusive purpose of holding him was to execute the warrant.
There was also a further linked but distinct argument that holding him while waiting for the transfer to another prison was not part of the process of execution and thus not covered by the warrant.
On the other hand, while conceding the applicant's detention had been unlawful between the date of expiry of the first committal warrant and the making of the warrant of 24 October, the State argued that the applicant was in lawful detention from the time the SCC made the order issuing the 24 October committal warrant, without the necessity for a prior release of the applicant, or service of the warrant of 24 October upon him.
I asked the parties to provide relevant authorities to me. The applicant cited Hegarty v Governor of Limerick Prison [1997] IEHC 39, State (Trimbole) v The Governor of Mountjoy Prison [1985] IR 550 and Dunne v Clinton [1931] 2 JIC 1201. The respondent cited Gary Miller v Governor of the Midlands Prison [2014] IEHC 176 and McDonagh v Governor of Mountjoy Prison [2016] IECA 32.
Hegarty concerned a situation where a judge had sat as a member of the SCC notwithstanding his removal as a member of that court. The applicant had been remanded in custody at a sitting where the removed judge was a member. It was decided to release the applicant and to then immediately re-arrest him as soon as he stepped out of the prison. He was then re-charged. The applicant argued that the re-arrest was a device to impede the proper vindication of the applicant's constitutional rights.
Geoghegan J. held that the original committal warrant was invalid and therefore he was not in lawful custody. He noted:
“As he was not in lawful custody, the Applicant was entitled to have the unlawful custody terminated. But this could not give him an immunity to prosecution for the offences which he was alleged to have committed and for which he had been charged. The Director had a public duty and indeed a constitutional duty to proceed with the prosecutions. He therefore had to consider how best this could be done effectively”.
This passage is heavily relied upon by the applicant. This case is being relied upon to assert that where there is an unlawful detention, the only way a person can have the unlawful custody terminated is by being released from prison. In my view that case is not necessarily authority for that proposition. As ever, it is important to understand the context. In that case, the applicant had been in custody, had been released, had been re-arrested and the legality of his subsequent re-arrest was under challenge. The argument was not about whether he required to be released. That release had already taken place.
In Hegarty, Geoghegan J. concluded that as a consequence of the actions of the parties, the applicant was lawfully now in exactly the same position as he would have been had there been no unlawful remand by an unlawfully constituted SCC. He was therefore satisfied that the applicant was being detained in accordance with law.
The applicant also relies upon Trimbole and in particular on the passage where Finlay C.J. refers to the courts having a positive duty to protect persons against the invasion of their constitutional rights and says that, where an invasion has occurred, the court must restore as far as possible the person to the position in which he would have been in if his rights had not been invaded. In that case, there was of course a scheme deliberately involving abuse of the process of the courts.
I should highlight that part of the judgment at p.575 where Finlay C.J. observes as follows:
“It is clear that not every unlawful arrest, even though it may be classified as conscious and deliberate, gives to a person so arrested, after his necessary release from illegal detention, any immunity from the proper enforcement of due processes of law or makes him unamenable to answer to criminal offences in our courts.”
Those words “necessary release from illegal detention” might on one reading suggest there is an immutable rule that a person unlawfully held must be released before any further step can lawfully be taken to detain him or her.
However, that was not a question before the court in Trimbole. Moreover, that same statement may also be a statement of an uncontroversial proposition i.e. that when a person is unlawfully detained with no basis to justify his or her detention, they must be released. This is the very principle that Article 40.4.2 establishes. In other words, it is not necessarily contemplating the position in this case i.e. that a person who is unlawfully detained is subsequently the subject of a valid order detaining him or her, albeit without any break in the detention. For that reason, I do not treat those words as requiring release in this case.
Importantly, at p.577, Finlay C.J. observed that if the challenge to the legality of the prosecutor's detention had been based on a want of jurisdiction or if the successful challenge to the original arrest had been one of form, creating an illegality but not constituting either a conscious and deliberate violation of his constitutional rights or the abuse of a process of the court, then the orders of the district judge, having been made within jurisdiction, would justify the detention of the prosecutor irrespective of the method by which he had been brought before the court.
That seems to me an important statement as it seems to envisage some circumstances in which a prior illegality resulting in a person being brought before the court will not necessarily invalidate an otherwise valid order. It will depend upon the nature of the prior illegality.
Dunne v Clinton was also relied upon by the applicant, in particular the passage where it is asked whether it is justification for a prolonged detention or imprisonment to say that the crime is being investigated. The response was that it was not, as the principle underlying habeas corpus cannot be waived aside for the sake of some indefinite investigation within the will and determination of the police officers themselves. In my view that case has no...
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