Healy v Governor of Cork Prison

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 01 January 1998
• Neutral Citation: 2000 WJSC-SC 3757
• Docket Number: [S.C. No. 138 of 1997]
• Court: Supreme Court
• Date: 01 January 1998

HEALY v. GOVERNOR CORK PRISON

AN CH ÚIRT UACHTARACH

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION

FRANCIS HEALY

Applicant/Appellant

.v.

THE GOVERNOR OF CORK PRISON

Respondent

2000 WJSC-SC 3757

(138/97)

THE SUPREME COURT

Synopsis

[1998] 2 IR 93 - [1997] 2 ILRM 357

Citations:

CONSTITUTION ART 40

DCR 1948 r78

MCCARTHY, STATE V GOV OF MOUNTJOY PRISON UNREP O DALAIGH 20.10.1967

SHIELDS, REX V JUSTICES OF TYRONE 1914 2 IR 89

1 28th day of April, 1997, by O'Flaherty J. [nem diss]

2 This is an appeal brought on behalf of Francis Healy from the judgment and order of the High Court (Mr.Justice Shanley) of the 2nd April last refusing his application for release under Article 40 of the Constitution.

3 The background facts of the case are recited in an affidavit sworn on behalf of the appellant by his solicitor Mr. Frank Buttimer. He tells us that on the 17th January, 1996, at Kanturk, Co. Cork, District Court Mr. Healy was convicted of an offence of breaking a glass window valued at £220.50, the property of the Bank of Ireland, on the 2nd January, 1995. He was sentenced to a term of six months imprisonment on that charge and then he was also sentenced in respect of other charges which have not been specified to any degree. This hearing took place before District Judge Clifford in the absence of the accused (it appears that the case was adjourned on a pervious occasion to suit his convenience) and on the 23rd January a warrant of execution was issued by that district judge.

4 It was not purportedly executed until the 23rd December, 1996, when the appellant was arrested and transported to Cork prison. When he, and his escort, got to Cork prison he was not received because the governor observed that the warrant at this stage was a stale warrant. Then on 15th January, 1997, the warrant was re-issued and that simply took the form of writing on the warrant " re-issued. 15th January, 1997," and then Judge Clifford signed below the legend re-issued. On the 9th March, 1997, the appellant was arrested on foot of the re-issued warrant and lodged in Cork prison.

5 There was an argument advanced before the learned trial judge that there was undue delay in the case. However, Mr. Giblin expressly told us, at the outset of his submission, that he was not relying on any point of delay.

6 Therefore, we are down to a consideration of what is the situation of the actual warrant in its re-issued condition. The relevant rule is that contained in Rule 78 of the District Court Rules, 1948, which provides as follows:-

"Whenever any warrant, other than a warrant for the arrest of a person charged with an indictable offence, is addressed, transmitted or endorsed for execution, to any person, and he is unable to find the person against whom the warrant has been issued, or to discover where that person is, or where he has goods, he shall return such warrant to the Justice for the District in which the same was issued within such time as is fixed by the warrant (or within a reasonable time, not exceeding six months, where no time is so fixed), with a certificate (Form 19) endorsed on it stating the reason why it has not been executed, and the said Justice may reissue the said warrant, after examining any person on oath, if he thinks fit to do so, concerning the non-execution of the warrant, or may issue any other warrant for the same purpose from time to time as shall seem expedient."

7 Now it is quite clear that if the person to whom the warrant is addressed is in a position to execute it straightaway, and knows where the accused is, he should execute it as promptly as possible. It is his duty under the general law to make sure that orders of courts are...