Hegarty v Governor of LImerick Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 39
• Docket Number: [1996 No. 2009
• Court: High Court
• Date: 01 January 1998

[1997] IEHC 39

THE HIGH COURT

Geoghegan J.

Kelly J.

Smyth J.

Record No. 2009 SS/1996

HEGARTY v. GOVERNOR OF LIMERICK PRISON

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY UNDER ARTICLE

40.4.2 OF THE CONSTITUTION

AND IN THE MATTER OF AN APPLICATION UNDER THE HABEAS CORPUS

(IRELAND) ACT, 1781

BETWEEN

MICHAEL HEGARTY

APPLICANT

AND

THE GOVERNOR OF LIMERICK PRISON

RESPONDENT

AND

THE MINISTER FOR JUSTICE, THE COMMISSIONER OF AN GARDASIOCHANA, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEYGENERAL

NOTICE PARTIES

Citations:

CONSTITUTION ART 40

OFFENCES AGAINST THE STATE ACT 1939 S30

TRIMBOLE, STATE V GOV OF MOUNTJOY PRISON 1985 IR 550

R V COTRONI 45 CCC 1

PAPALIA V REG 45 CCC 1

CONNOLY V LOCHNEY & MCCARTHY 1953 87 ILTR 49

DPP, PEOPLE V KENNY 1990 2 IR 110

DPP, PEOPLE V KEHOE 1985 IR 444

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S27

EXTRADITION ACT 1965 S26

QUINN, STATE V RYAN 1965 IR 70

AG, PEOPLE V O'BRIEN 1965 IR 142

DPP, PEOPLE V MADDEN 1977 IR 336

DPP, PEOPLE V LYNCH 1982 IR 64

Synopsis:

[1998] 1 IR 412

1 Judgment of Mr. Justice Geoghegandelivered the 26th day of February, 1997.

2 The Applicant has applied for this Article 40 Inquiry with a view to establishing that he is currently in the unlawful custody of the Respondent. The Respondent detains the Applicant in purported pursuance of a Committal Warrant issued by the Special Criminal Court. It is common case that there is no defect on the face of the Warrant but the Applicant claims that the Warrant relates to charges made before the Special Criminal Court following upon both a conspiracy unlawfully to deprive the Applicant of his constitutional right of liberty and an unlawful arrest which was itself a deliberate and conscious violation of the same constitutional right. The Respondent and the Notice Parties maintain that the Applicant is in lawful custody pursuant to the said Warrant. The circumstances in which the Applicant makes his claim are highly unusual and can be summarised as follows.

THE FACTS

3 The Applicant was arrested on the 10th November, 1995 under Section 30 of the Offences Against the State Act, 1939and brought the following day before the Special Criminal Court where he was charged with unlawfully possessing explosives. It is not in issue in this case that he was lawfully charged before the Special Criminal Court on that occasion. There were then a number of lawful remands culminating in a remand to the 15th October, 1996. On that date a further Committal Warrant was purportedly made by the Special Criminal Court. In fact the Court was not properly constituted in that His Honour Judge Dominic Lynch, a Judge of the Circuit Court, sat as a member of it on that day notwithstanding that he was no longer a member of the Court having been removed (at his own request) by the Government as a member of that Court on the 1st August, 1996. Neither Judge Lynch nor the other two Judges who were lawful members of the Court or the Registrarof the Court or the Director of Public Prosecutions or anybody connected with the case had any knowledge that Judge Lynch was no longer a member of the Court. The removal of Judge Lynch from the Special Criminal Court was gazetted in Iris Oifigiuil on the 9th August, 1996 but this notice had not been read by any person relevant to the proceedings involving the Applicant in the Special Criminal Court. It is not necessary or relevant to set out in this Judgment the steps or lack of steps which were taken to promulgate the Government decision for the removal of Judge Lynch. Nor is it necessary to review the letters passing from the Attorney General to the Department of Justice as a consequence of the Attorney General becoming concerned lest Judge Lynch had sat on the Special Criminal Court after being removed. It is accepted that all persons relevant to the proceedings against the Applicant in the Special Criminal Court were ignorant of the removal of Judge Lynch or the effect thereof on those proceedings until the 6th November, 1996. I will briefly outline the circumstances under which matters came to light on that day.

4 On that date the Minister for Justice, the Director of Public Prosecutions and the Attorney General became aware that the Committal Warrant under which the Applicant was then held in Limerick Prison had been made by a Special Criminal Court not properly constituted. As a consequence, the Minister made a decision later than evening for the release of the Applicant from Limerick Prison and in accordance with instructions the Governor released the Applicant. The Director of Public Prosecutions having been made aware of the possibility of an impending release, directed the Garda Siochana to arrange in such an event for a common law arrest of the Applicant following upon his release and that he be charged again before a properly constituted Special Criminal Court on the same charges on which he had previously been before the Court. These events came to pass and the Applicant is at present detained pursuant to a Committal Warrant in respect of thesubstitutedthough identical charges. The Applicant argues that the re-arrest for the same offences was unlawful and an abuse of the process of the Court but he goes further and alleges a conspiracy between the Respondent and each of the Notice Parties to deprive him of his constitutionalrights.

5 In the light of these arguments it is important to consider the activities of the relevant organs of State on the 6th November, 1996 under separate headings. I will therefore separately deal with the Chief State Solicitor's office, the D.P.P.'s office, the Department of Justice, the Governor and staff of Limerick Prison and the GardaSiochana.

The Chief State Solicitor's Office

6 I start with this office because it was there that the problem was first appreciated. As a consequence of conversations within the office, the details of which it is unnecessary to recount, Mr. Brendan Counihan the Solicitor in the office in charge of the Special Criminal Court prosecutions began to have some concerns relating to the status of Judge Lynch on the evening of the 5th November, 1996. He requested information from the Registrar of the Special Criminal Court, Mr. Morrissey. The latter telephoned him back at 4.20 p.m. on the 6th November informing him that he had obtained a copy of an extract from Iris Oifigiuil confirming the removal of Judge Lynch from the Special Criminal Court. At 4.30 p.m. Mr. Counihan telephoned Mr. Barry Donoghue of the D.P.P.'s office to inform him of the problem. A faxed copy of the Iris Oifigiuil was not available until about 5.15 p.m.. In the course of telephone conversations between Mr. Counihan and Mr. Donoghue, it was agreed between them that the validity of all Orders made by the Special Criminal Court which included Judge Lynch since his removal were in doubt. Mr. Donoghue was informed by Mr. Counihan that the Applicant was on remand pursuant to one of the doubtful Orders and thatthere was a scheduled sitting of the Special Criminal Court at 11.00 a.m. on the following morning. Mr. Donoghue took the matter up fromthere.

The Office of the D.P.P.

7 The earlier role of Mr. Donoghue has already been outlined. Following on receipt of Mr. Counihan's information, Mr. Donoghue passed it on to the D.P.P. himself. He also telephoned Mr. Noel Synott, the Principal Officer in charge of the Courts Division in the Department of Justice, who confirmed that Judge Haugh had been appointed to the Special Criminal Court in substitution for Judge Lynch. The significance of this is that there had been an assumption in some quarters that Judge Haugh had replaced Judge Buchanan, a recently retired Circuit Court Judge. When Mr. Donoghue had marshalled the relevant facts, the D.P.P. himself contacted the office of the Attorney General. In discussions between the D.P.P. and Mr. Jim Hamilton, Senior Legal Assistant in the office of the Attorney General, the Director made it clear that in his view the continuing custody of the relevant remand prisoners was a matter for the Minister and the prison Governor and that it was not appropriate for his office to give "formal" advice to the Department on the matter. Mr. Hamilton concurred with this opinion.

8 The significance of the word "formal" was probed by Counsel for the Applicant. I am satisfied, however, that the only reason that that word was used was because at some stage the D.P.P. had informally expressed the view that as the prisoners were remand prisoners they ought not to be released by executive order but only under Order of a Court. Indeed this point was debated before this Court and I will return to it later.

9 It is quite clear, however, that the Minister for Justice and the Department took all decisions on foot of advice from the Attorney General and his office and did not in any way act on the advice of the D.P.P. or his office.

10 On the other hand the D.P.P. from the moment that he realised that there might be a release, applied his mind to the problem of how in that event he could still effectively prosecute the released prisoners for the offences for which they had already been charged. As mentioned, the D.P.P. decided that if released the prisoners should be arrested at common law and brought before a lawfully constituted Special Criminal Court to be charged with the same offences and to the intent that the new repeat charges be treated as substituted charges. The necessary instructions were given to the Guards at some time between 6.30 p.m. and 7.00 p.m.. As will become clear, everything happened according to plan. The role of the D.P.P. does not stop at that point however. The Secretary of the Department of Justice, Mr. Tim Dalton, first learnt of the problem when travelling that evening in a car from Baldonnell Airport to where he had flown following on talks all day in Belfast in the company of...