Joyce v Governor of The Dóchas Centre

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hogan
Judgment Date11 July 2012
Neutral Citation[2012] IEHC 326
Docket Number[2012 No. 1359 SS]
Date11 July 2012
Joyce v Governor of the Dochas Centre
BETWEEN/
LOUISE JOYCE
APPLICANT

AND

GOVERNOR OF THE D ÓCHAS CENTRE
RESPONDENT

[2012] IEHC 326

[No. 1359 SS/2012,]

THE HIGH COURT

CONSTITUTIONAL LAW

Detention

Application for inquiry - Abuse of process - Repeated applications - Whether further applications for inquiry pursuant to Article 40.4.2 could be made to different judges where initial application for inquiry refused - Whether decision on legality of detention final - Re McDonagh (Unrep, Henchy J, 24/11/1969) and The State (Gallagher) v Governor of Portlaoise Prison (Unrep, SC, 25/7/1983) followed; The State (Dowling) v Kingston (No 2) [1937] IR 699 considered; GE v Governor of Cloverhill Prison [2011] IESC 41, (Unrep, SC, 28/10/2011) applied, Ex parte Terraz (1878) 4 Ex Div 63 and Gosset v Howard (1845) 10 QB 411 followed - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Supreme Court of Judicature Act (Ireland) 1877 (40 & 41 Vict, c 57) - Constitution of Saorstát Éireann, article 6 - Second Amendment of the Constitution Act 1941 - Constitution of Ireland 1937, Articles 34.1, 40, 40.4.2 , 40.4.3 , 40.4.4 , 51.1 and 51.2 - Inquiry carried out and release directed (2012/1359SS - Hogan J - 11/7/2012) [2012] IEHC 326

Joyce v Governor of the Dóchas Centre

Facts: The applicant was charged and convicted of an offence under s 4 of the Criminal Justice (Theft Offences) Act. She was committed to prison for a term of 9 months. In the particular rural court where she was convicted, a "short form" committal warrant was drawn up following conviction with the intention that this would be subsequently followed by a full warrant containing details of the offence. This process was believed to have not completed, which resulted in only a "short form" committal warrant. The applicant submitted this short warrant was not sufficient to detain her.

An application for an inquiry under art 40 of the Constitution ("art 40") had been made the previous day to another High Court judge where the application was refused. Shortly thereafter, the applicant made the same application to another High Court judge (which forms the basis of these proceedings). The second issue that therefore arose was whether this was an abuse of the Article 40.4.2 procedure.

Held by Hogan J that the wording of art 40.4.2 distinguished between an initial application for an inquiry into whether the detention of a person was legal and the subsequent hearing of that inquiry. Due to this distinction, there was therefore a right to make successive applications for the initial application (albeit with certain qualifications), to allow for tackling matters which may have been overlooked with the first application. Jurisdiction to hear the inquiry in the present case was accepted.

The Court stated that a warrant must contain relevant information with would allow a satisfactory examination as to jurisdiction. With this in mind, it was held that the applicant's warrant under which she was currently detained, was bad on its face in that it did not disclose the offence of which she was convicted, therefore her detention was not in accordance with law. GE v Governor of Cloverhill Prison [2001] IESC 41 considered.

CONSTITUTION ART 40.4.2

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

EGAN v MACREADY 1921 1 IR 265

RESTORATION OF ORDER IN IRELAND ACT 1920

R v ALLEN 1921 2 IR 244

CONSTITUTION 1922 ART 6

CONSTITUTION 1937

CONSTITUTION ACT 1941

CONSTITUTION ART 51.1

CONSTITUTION ART 51.2

DOWLING, STATE v KINGSTON (NO 2) 1937 IR 699

JUDICATURE ACTS 1873

SUPREME COURT OF JUDICATURE ACT (IRL) 1877

HASTINGS (NO 2), IN RE 1959 1 QB 358 1958 3 WLR 768 1958 3 AER 625

DOWLING, STATE v KINGSTON 1937 IR 699

BURKE, STATE v LENNON 1940 IR 136

OFFENCES AGAINST THE STATE ACT 1939 PART VI

CONSTITUTION ART 40.4.3

CONSTITUTION ART 40.4.4

CONSTITUTION ART 1922 ART 6

CONSTITUTION ART 40.4.2

COSTELLO THE LAW OF HABEAS CORPUS IN IRELAND 2006 27-38

GALLAGHER, STATE v GOVERNOR OF PORTLAOISE PRISON UNREP SUPREME 25.4.1983 1983/9/2592

RICHARDSON, STATE v GOVERNOR OF MOUNTJOY PRISON 1980 ILRM 82

CONSTITUTION ART 34.1

E (G) v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 28.10.2011 2011/20/5060 2011 IESC 41

RSC O.84

GOSSET v HOWARD 1845 10 QB 411

TERRAZ, EX PARTE 1878 4 EX DIV 63

1

1. The applicant, Ms. Louise Joyce, applies for an order of release under Article 40.4.2 of the Constitution in circumstances that are, or, at least, have become, somewhat unusual. It is first necessary to set out the key facts which attend the merits of the application, even if these facts are rather scant.

2

2. The applicant was convicted of an offence in the District Court on the 4 th March, 2011. She then appealed to the Circuit Court where the conviction was affirmed on 9 th May, 2012. It is agreed that there is no separate conviction order, but merely a committal warrant. The applicant is currently held in detention on this warrant which contains a record number and is headed "The Circuit Court, Eastern Circuit, County of Louth".

3

3. The warrant states that the applicant has been committed to prison for nine months following a decision of the Circuit Court which "heard and determined" a District Court appeal. The order does not record the offence of which the accused was convicted, but simply refers to the "above mentioned Criminal case". The order is dated 9 th May, 2012 and it is signed by the County Registrar.

4

4. I should interpose here to say that during the Article 40 hearing I was informed that the applicant was convicted of an offence under s. 4 of the Criminal Justice (Theft Offences) Act 2001, but no further particulars as to the nature of the offence or how it is said to have been committed were at hand. It appears that it was the practice in this particular rural circuit for a "short form" committal warrant to be drawn up immediately following conviction and this would be subsequently followed by the preparation of a fuller warrant containing appropriate additional details. Apparently, the office in question has closed in the interval, with the business transferred to another office and, whether by reason of oversight or otherwise, the preparation of the fuller warrant was not attended to. The essence of the applicant's case is that the warrant is fatally flawed by reason of these omissions.

5

5. What renders the present application unusual is that counsel for the applicant, Mr. Michael O'Higgins SC originally made an application for an inquiry under Article 40 to my colleague, Mr. Justice Hedigan, yesterday morning, 10 th July, 2012. It would appear that, following a relatively short hearing, the application for an inquiry was refused. Shortly thereafter, Mr. O'Higgins SC sought to move the application afresh to me. He very properly drew my attention immediately to the fact that he had moved the application before Hedigan J. and that it had been refused.

6

6. Although I voiced concern lest any question of an abuse of the Article 40.4.2 procedure might arise, I ultimately agreed to hear the application for an inquiry later that afternoon in circumstances where the State authorities were put on notice of the application. At that hearing, counsel for the respondent, Mr. Kennedy, expressly accepted that Article 40.4.2 meant that, so far as the initial ex parte application is concerned, one has the right to make successive applications to individual members of the High Court if the initial ex parte application for an inquiry is refused. If, however, the applicant is adjudged to be in lawful custody following the holding of such an inquiry, then that is a decision of the High Court and the only remedy for the unsuccessful applicant is to appeal to the Supreme Court.

7

7. In response to a specific inquiry from me on the abuse issue, Mr. Kennedy accepted that no question of abuse arose in the present case, although his own client, the Attorney General, expressly reserved her position on this question so far as future applications of this nature were concerned. As Hedigan J. had merely refused an application for an inquiry. Mr. Kennedy submitted that the applicant was entitled to move the application by virtue of Article 40.4.2. At that point it was then agreed that the application would thereafter proceed (without prejudice to ultimate resolution of the jurisdictional issue) on the basis that an order for an inquiry had been directed by me and that this was the full hearing of that inquiry under Article 40.4.2.

Successive applications for an inquiry under Article 40.4.2
8

8. The question of successive applications for habeas corpus forms the background to two major decisions on this topic, both of which decisions obviously influenced the drafting of the present Article 40.4.2. The first is the celebrated case from the War of Independence, Egan v. Macready [1921] 1 I.R. 265, where Sir Charles O'Connor M.R. (a judge of Chancery Division of the High Court) held that the Restoration of Order in Ireland Act 1920 had limited the power of the British Government to establish military tribunals and in arriving at this conclusion he had disagreed with the different views expressed by the King's Bench Division of the High Court in R. v. Allen [1921] 2 I.R. 244 in a judgment delivered a few months previously. When the Master of the Rolls was told by Patrick Lynch K.C., counsel for the applicants, that General Macready, the General Office Commanding of the British Forces in Ireland, did not intend to comply with the order of habeas corpus, O'Connor MR cited General Macready for contempt. The controversy was defused when the British Government agreed to release the prisoners on the following day.

9

9. As it happens, Egan had been captured in May 1921 just before the end of the War of...

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