Kennedy (application for Habeas Corpus)

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice David Barniville
Docket Number[2018 No. 9 SSP]
Date08 June 2018
IN THE MATTER OF THE CONSTITUTION
AND
IN THE MATTER OF AN APPLICATION FOR HABEAS CORPUS
AND/OR
IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BY

MARK KENNEDY AT PRESENT IN CUSTODY IN PORTLAOISE PRISON
(APPLICANT)

[2018] IEHC 334

[2018 No. 9 SSP]

THE HIGH COURT

Unlawful detention – Habeas Corpus – Constitutionality – Applicant seeking an enquiry into the legality of his detention and/or for an order of habeas corpus – Whether applicant was entitled to the benefit of the judgment in Edward Moore v Director of Public Prosecutions, Ireland and Attorney General [2016] IEHC 244

Facts: The applicant, Mr Kennedy, applied to the High Court for an enquiry into the legality of his detention in Portlaoise Prison pursuant to Article 40.4 of the Constitution and/or for an order of habeas corpus. He alleged that his detention was unlawful having regard to the decision of the High Court (Moriarty J) in Edward Moore v Director of Public Prosecutions, Ireland and Attorney General [2016] IEHC 244 in which the court found ss. 99(9) and (10) of the Criminal Justice Act 2006 to be unconstitutional. The applicant sought to distinguish his case from the case of Paul Clarke v The Governor of Mountjoy Prison [2016] IEHC 278 where the High Court (McDermott J) refused to direct an enquiry into the lawfulness of the applicant's detention following the judgment in Moore on the basis that he was satisfied that the applicant was being detained in accordance with law. The applicant submitted that in Clarke the applicant had pleaded guilty to the offences which triggered the revocation of the earlier suspended sentence whereas the applicant had pleaded not guilty to the charges for which he was convicted by the District Court on 21st September, 2015. He argued, therefore, that he was entitled to the benefit of the judgment in Moore, that his detention was unlawful and that he should be released.

Held by Barniville J that, having noted that the applicant did not raise any issue concerning the constitutionality of ss. 99(9) and (10) of the 2006 Act in the course of his appearance before the Circuit Court or the District Court and did not appeal to the Circuit Court within the time for doing so, the applicant was not entitled to rely on the finding of unconstitutionality of ss. 99(9) and (10) made by the High Court in Moore having regard to the decision of the Supreme Court in A v Governor of Arbour Hill Prison [2006] 4 IR 88.

Barniville J held that he would refuse the applicant's application.

Application refused.

JUDGMENT of Mr. Justice David Barniville delivered on the 8th day of June, 2018
1

The applicant is at present in custody in Portlaoise Prison, Portlaoise, Co. Laois.

2

On 18th October, 2011 the applicant was sentenced to imprisonment for concurrent periods of seven, five and three years, by His Honour Judge Thomas Teehan, sitting in the Circuit Court in Clonmel. The applicant had pleaded guilty to the three counts for which he was sentenced to be imprisoned. The applicant had pleaded not guilty to three other counts. Judge Teehan, suspended the sentence for a period of seven years pursuant to s. 99(1) of the Criminal Justice Act, 2006 (as amended) (the '2006 Act (as amended)') on certain conditions. The offences for which the applicant pleaded guilty were extremely serious including assaulting a peace officer, possession of a firearm with intent to commit an indictable offence and threatening to kill or cause serious harm. The applicant did not appeal the sentence or the conditions imposed.

3

Within the period of seven years for which the sentence was suspended by Judge Teehan, the applicant was charged with four further offences. The applicant pleaded not guilty to those offences in Thurles District Court on 21st September, 2015. The District Court Judge sitting in Thurles, was satisfied that the applicant was a person to whom an order made under s. 99(1) of the 2006 Act (as amended) applied (the order having been made by Judge Teehan at Clonmel Circuit Court on 18th October, 2011) and that the conviction by the District Court occurred during the period of suspension of the sentence concerned. As a result, the District Judge remanded the applicant to Limerick Prison to be detained there until the next sitting of the Circuit Court at Nenagh on 6th October, 2015. The applicant made a number of further appearances before the Circuit Court in Nenagh and Clonmel before the matter was finally dealt with by Judge Teehan sitting in Nenagh Circuit Court on 5th and 6th April, 2016. On that date, His Honour Judge Teehan made an order under s. 99(10) of the 2006 Act (as amended), that the suspension of the sentence imposed by that court on 18th October, 2011 be revoked and that the applicant serve the sentence of seven years' imprisonment imposed upon him on that date on the basis that the applicant had failed to comply with the conditions of the bond entered into by him. The Circuit Court directed that revocation of the sentence was to date from 21st September, 2015 (taking into account the period spent in custody pending the revocation of the order of 18th October, 2011).

4

The applicant was remanded back to Thurles District Court on 12th April, 2016 for sentence in respect of the offences for which he had been convicted on 21st September, 2015. The applicant was sentenced to periods of imprisonment of five months and six months' imprisonment in respect of the offences of criminal damage and assault for which he was convicted on 21st September, 2015 (with such terms being consecutive). Both of those sentences were directed to commence on the legal determination of the sentence of seven years imposed by the Circuit Court on 6th April, 2016. The District Court Judge fixed bail in respect of any appeal at €500 (on the applicant's own bond) with one independent surety in the sum of €2,500 together with a cash lodgement of €1,000 with the further condition that the accused was not to commit any offence and to be of good behaviour. The applicant did not lodge an appeal from his conviction or sentence in the District Court to the Circuit Court within the time permitted. The time for appeal to the Circuit Court under the District Court Rules expired on 26th April, 2016. As explained later, the applicant did subsequently apply for an extension of time to appeal to the Circuit Court from his conviction and sentence in the District Court. That application was made on 15th July, 2016 and the extension of time was granted by the District Court sitting at Thurles on 19th July, 2016. The appeal has not yet been heard and has been adjourned from time to time. It is now apparently to be heard by the Circuit Court on 13th December, 2018.

5

The applicant now wishes to apply for an enquiry into the legality of his detention in Portlaoise Prison pursuant to Article 40.4 of the Constitution and/or for an order of habeas corpus. He is not legally represented on this application (although he was legally represented on a previous similar application).

6

This application was received by the Registrar of the High Court on 24th May, 2018 and acknowledged on 30th May, 2018.

7

This is the third such application brought by the applicant of which I am aware. The most recent application brought by the applicant pursuant to Article 40.4 was heard and determined (following a full hearing) by Eagar J. on 23rd June, 2017. See: Mark Kennedy v. Governor of Portlaoise Prison [2017] IEHC 402. As appears from his detailed and considered judgment, Eagar J. was satisfied that the applicant was then in lawful custody and refused to direct the release of the applicant....

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