Lanigan v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: MR JUSTICE MICHAEL PEART
• Judgment Date: 19 October 2016
• Neutral Citation: [2016] IECA 293
• Date: 19 October 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 293 RECORD NO: 2015 NO. 488 RECORD NO: 2015 NO. 527

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION AND IN THE MATTER OF SECTION 16(6)(b) OF THE EUROPEAN ARREST WARRANT ACTS 2003 AND 2012

BETWEEN:

FRANCIS LANIGAN

APPELLANT

- AND -

GOVERNOR OF CLOVERHILL PRISON, MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2016] IECA 293

Neutral Citation Number: [2016] IECA 293

RECORD NO: 2015 NO. 488

RECORD NO: 2015 NO. 527

THE COURT OF APPEAL

(CIVIL)

Unlawful detention – Application for release – Inquiry – Appellant seeking to appeal against the refusal by the High Court to direct an inquiry into the lawfulness of the appellant’s detention – Whether the point being raised was sufficient to require the Court of Appeal to direct an inquiry in order to satisfy itself as to whether or not in these circumstances the ongoing detention was in accordance with law

Facts: The appellant, Mr Lanigan, appealed to the Court of Appeal against the refusal by Barrett J on the 17th September 2015 of his application for release following an inquiry into the lawfulness of his detention under Article 40.4 of the Constitution. The appellant also appealed against the refusal by Noonan J on the 15th October 2015 to direct an inquiry under Article 40.4 into the lawfulness of the appellant’s detention, but on different grounds than the application heard by Barrett J.

Held by Peart J that, having considered the first appeal (488/2015) against the judgment and order of Barrett J dated 17th September 2015, Article 40 must not become a mechanism whereby a person in respect of whom an order for surrender has been made, and who has been refused leave to appeal, may yet seek to circumvent those events by throwing up arguments, not for the purpose of seeking to impugn the lawfulness of the detention ordered, but rather to try and gain a space in which to ventilate points either not argued on the European Arrest Warrant Act 2003 s. 16 application, or on which his arguments failed. Peart J feared that in this case the appellant has grasped at s. 16(6) of the Act by invoking Article 40.4 but on grounds which could never truly speak to the unlawfulness of detention. Peart J hesitated to describe such tactics as an abuse of process, but noted that they had all the appearance of seizing upon Article 40 as a life raft to assist a collateral purpose, but upon grounds that have little to say in relation to the lawfulness of detention. Peart J believed that Barrett J was correct to reject the arguments put forward and to dismiss the application made under Article 40.4 of the Constitution. Having considered the second appeal (527/2015) against the judgment and order of Noonan J dated 15th October 2015, the point being raised was sufficient to require the Court to direct an inquiry in order to satisfy itself as to whether or not in these circumstances the ongoing detention was in accordance with law, given the removal of the protection claimed to exist for the benefit of the respondent under s. 16 (4) and (5) as substituted. Peart J did not agree with the trial judge that the High Court lacked jurisdiction to so inquire for the reasons he stated. Peart J held that detention is detention, and it must be in accordance with law; if it is not, the High Court is required by Article 40.4 of the Constitution to release the applicant.

Peart J held that he would allow the second appeal and remit the matter to the High Court for an inquiry into the lawfulness of the detention in the light of the stay granted by Butler J.

Appeal allowed in part.

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 19TH DAY OF OCTOBER 2016:

1 There are two appeals before this Court. The first is Mr Lanigan's appeal against the refusal by Barrett J. on the 17th September 2015 of his application for release following an inquiry into the lawfulness of his detention under Article 40.4 of the Constitution. The second is his appeal against the refusal by Noonan J. on the 15th October 2015 to direct an inquiry under Ar. 40.4 of the Constitution into the lawfulness of the appellant's detention, but on different grounds than the application heard by Barrett J. For that reason each appeal will be addressed separately in this judgment. I should mention perhaps that the respondents to each appeal are common, but were heard only on the first appeal, the second being an ex parte appeal.

Factual chronology

2 There is a lengthy and somewhat complicated factual background which it is necessary to summarise so that the context of the appellant's applications for his release can be properly understood.

3 The authorities in Northern Ireland sought the surrender of the appellant on foot of a European arrest warrant so that he can be prosecuted there on charges of murder and possession of a firearm in May 1988. He was arrested here on foot of that warrant on the 16th January 2013. He was brought before the High Court in accordance with the provisions of the Act and was remanded from time to time in custody until the application for his surrender under s. 16 of the Act eventually came on for hearing before Ms. Justice Murphy on the 30th June 2014. Having completed that hearing on 4th July 2014 she reserved her judgment.

4 Several issues had been raised by the appellant in his Points of Objection filed prior to the hearing. For the moment it is necessary to refer to just one of them, namely his contention that if he was surrendered his life would be at risk, and that his surrender was therefore prohibited under s. 37 of the European Arrest Warrant Act, 2003 as amended (‘the Act’). His fear was based on his previous experience in Northern Ireland, and his belief that if surrendered, the prison authorities would be unable to provide him with sufficient protection while in custody. The Minister on the other hand considered that his present fears are based on facts and events that occurred back in the 1980s, and could not form the basis for his current opposition to surrender. The appellant had filed an affidavit in which his fears were set forth, and a corroborating affidavit was also filed on his behalf.

5 In the lead up to the s. 16 hearing the High Court directed that any replying affidavit that the Minister might wish to file in answer to the appellant's affidavit should be filed not later than the 24th April 2014. An important factor in the context of later events is that the Minister filed no such affidavit prior to that deadline. However, just before the hearing commenced it appears that some communications from the UK authorities had been received and were exhibited in an affidavit sworn by Hugh Dockery of the Chief State Solicitor's Office. In addition, at the hearing counsel for the Minister sought to adduce into evidence a letter from the Northern Ireland Prison Service which purported to address the appellant's concerns as to the risk to his life if surrendered. The appellant had objected to material being given to the Court in this informal and unsworn manner. On the final day of the hearing this letter was exhibited in an affidavit sworn by Mr. Davis of the Central Authority and provided to the Court in this way as an exhibit. Again, this manner of providing evidence to the Court in answer to the sworn evidence of the appellant was strenuously objected. These objections were not upheld. An application for leave to cross-examine Mr. Davis on his affidavit was refused, as was an application for discovery.

6 At that hearing, the appellant argued that in the absence of any affidavit being filed by the Minister his own averments as to the basis for his belief that his life would be at risk if surrendered to Northern Ireland were uncontroverted and therefore had to be accepted by the Court, thus mandating a refusal of the application for surrender on the basis that it was prohibited under s. 37 of the Act.

7 Having reserved her judgment at the conclusion of the hearing on the 4th July 2014, Murphy J. gave a preliminary ruling on the 17th November 2014 in which she referred to the non-adversarial nature of the hearing on an application for surrender, and stated that when considering, inter alia, whether or not surrender was prohibited under Part III of the Act (which includes s. 37) ‘the Court must be satisfied regardless of the urgings of the parties before making a decision to surrender’. In that respect she mentioned that no replying affidavit had been filed to contradict or in any way dispute the facts set out by the appellant in his grounding affidavit in support of his belief that his life would be put at risk by his surrender to Northern Ireland. She was not satisfied about the provenance of the letter that had been provided to the Court by way of exhibit to Mr Davis's affidavit.

8 The High Court judge concluded, however, that because of the non-adversarial and “sui generis” nature of the Courts' inquiry on an application for surrender under the Act, and also because s. 20 of the Act specifically enables the Court of its own motion to seek such additional information as it felt necessary in order to perform its function, she would do so in this ca se because she was satisfied that in accordance with the test set out inMJELR v. Rettinger [2010] IEHC 206 the appellant had adduced sufficient evidence in affidavit form in relation to threats to his life ‘such as to put the Court on inquiry both as to the nature of any threats and the capacity of the Northern Ireland authorities to protect his right to life’. She went on to state that such information as was received did not have to be in the form of sworn evidence.

9 Murphy J. therefore exercised her power under s. 20 and directed the Minister, as the Central Authority under the Act, to seek information from the Northern Ireland authorities in relation to the matters raised by the appellant and as to the capacity of those authorities to adequately protect him against...