Lanigan v Governor of Cloverhill Prison and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 17 September 2015
• Neutral Citation: [2015] IEHC 574
• Court: High Court
• Date: 17 September 2015

[2015] IEHC 574

THE HIGH COURT

1415 SS/2015

Lanigan v Governor of Cloverhill Prison & Ors

IN THE MATTER OF ART. 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

Applicant

- and -

GOVERNOR OF CLOVERHILL PRISON, MINISTER AND JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

Respondents

Extradition – Art. 40.4 of the Constitution – S. 16 (6) (b) of the European Arrest Warrant Acts 2003 – Art. 267 on the Functioning of European Union Fair Procedures – Estoppel – Nemo Iudex in causa sua

Facts: The applicant had challenged the lawfulness of the order of the Court remanding him in custody pending his surrender to the United Kingdom pursuant to s. 16 of the European Arrest Warrant Act 2003. The applicant contended that since the scheme provided for under the Framework Decision and the said Act of 2003 was sui generis and established an inquisitorial procedure, it was a violation of fair procedures. The applicant alleged that the Court should refer the present case to the Court of Justice of the European Union on various questions as he had been left with no judicial remedy under national law after the refusal of the Court to grant him the certificate of appeal to the Court of Appeals.

Mr. Justice Max Barrett refused to grant an order to the applicant to the effect that his detention was unlawful. The Court held that there was no fundamental denial of justice or fundamental flaw in the impugned decision of the Court that warranted the invoking of art. 40 of the Constitution. The Court found since the applicant had already initiated an appeal against the impugned order for his detention in custody, he could not now claim that his case should be referred to the Court of Justice as questions raised for reference were irrelevant and even if the correct application of the law of the European Union was to be applied, the result was so obvious that there existed no room for reasonable doubt.

1 JUDGMENT of Mr Justice Max Barrett of 17th September, 2015.

PART I: INTRODUCTION AND BACKGROUND.

2 1. Mr Lanigan challenges the lawfulness of the order that the court (Murphy J.) made on 4 ^th September, remanding him in custody pending his surrender to the United Kingdom pursuant to s.16 of the European Arrest Warrant Act 2003, as amended (the "Act").

3 2. Mr Lanigan is wanted for trial in Northern Ireland on a count of murder and a related charge of unlawful possession of a firearm. A detained person, he is entitled to apply for enquiry under Article 40 of the Constitution. The court has before it a certificate from the Governor of Cloverhill Prison certifying in writing the grounds for detention of Mr Lanigan and exhibiting the relevant order for detention. There is nothing wrong on the face of the order, yet Mr Lanigan persists in his application. The reason he does ultimately depends upon the decision of the Supreme Court in FX v. Clinical Director of the Central Mental Hospital [2014] IESC 1, where it was stated as follows by Denham C.J., at para. 66:

"An order of the High Court which is good on its face should not be subject to an inquiry under Article 40.4.2° unless there has been some fundamental denial of justice. In principle, the remedy is an appeal to an appellate court, with, if necessary, an application for priority. Thus, the remedy under Article 40.4.2° may arise where there is a fundamental denial of justice, or a fundamental flaw, such as arose in State (O) v. O'Brien [1973] 1 I.R.50, where a juvenile was sentenced to a term of imprisonment which was not open to the Central Criminal Court." [Emphasis added].

4 3. For reasons considered hereafter, Mr Lanigan claims in effect that there has been "a fundamental denial of justice, or a fundamental flaw" that affords him the opportunity of remedy under Article 40.

5 4. During the course of the hearing of this application, mention was made, in addition to the FX case, to the decision of the Supreme Court in Ryan v. Governor of Midlands Prison [2014] IESC 54. There, Denham C.J., for the Supreme Court, affirmed the correctness of that court's decision in FX, and, following a consideration of that and other case-law, indicated as follows, at para. 18:

"[T] he general principle of law is that if an order of a court does not show an invalidity on its face, in particular if it is an order in relation to post conviction detention, then the route of the constitutional and immediate remedy of habeas corpus is not appropriate. An appropriate remedy may be an appeal or an application to seek leave for judicial review. In such circumstances, the remedy of Article 40.4.2° arises only if there has been an absence of jurisdiction, a fundamental denial of justice, or a fundamentalflaw."

6 5. Notwithstanding that the decision in Ryan is consistent with that in FX, it is in reliance on FX that Mr Lanigan truly sought to proceed, and thus it is by reference to the terminology of that case that this Court now proceeds. However, the same result would in any event be achieved were the court to utilise the terminology employed by the Chief Justice in Ryan.

7 6. Mr Lanigan contends that insofar as the Act has introduced a so-called 'inquisitorial' and sui generis form of procedure, it permits what he contends is a departure from fundamental norms of fair procedure and/or unfairly restricts rights of appeal, and thus is repugnant to the Constitution and contravenes the European Convention on Human Rights and the EU Charter on Fundamental Rights and Freedoms. In consequence, Mr Lanigan contends, his present detention pursuant to the Act is unlawful.

PART II: MISCONCEIVED PROCEEDINGS.

8 7. Mr Lanigan's application is essentially flawed in its construction and substance. The essential flaw is this: all of his pleadings constitute a collateral challenge to, and impermissible parallel attack upon, the conduct of the European Arrest Warrant proceedings, the jurisdiction of the High Court in those proceedings, and the judicial and procedural integrity of those proceedings. Shortly put, his application comprises an attempt to re-litigate much if not all that transpired before Murphy J., using the shield of Article 40 as a means of concealing the essential flaw in the foundation of his case. But even that shield is inadequate. In FX the Chief Justice offered as an example of a "fundamental denial of justice, or...fundamental flaw" that would justify the High Court granting Article 40 relief in the context of a High Court order for detention, the situation that presented in State (O) v. O'Brien: there a juvenile was sentenced to a term of imprisonment that was not open to the Central Criminal Court to impose. Nothing of that sort presents here: the shield does not work; the whole foundation of these proceedings is fatally flawed; and Mr Lanigan's application must therefore fail.

PART III: GENERAL ALLEGATIONS OF UNCONSTITUTIONALITY AND DENIAL OF HUMAN RIGHTS.

9 8. Mr Lanigan contends that:

10 (i) parts of the Act are unconstitutional, contravene the European Convention on Human Rights and also the EU Charter on Fundamental Rights, and also that there is a breach of Article 267 of the Treaty on the Functioning of the European Union arising.

11 (ii) if he is surrendered to the United Kingdom pursuant to the order made by Murphy J. (a) he will have been denied a right to a reference under the Treaty on the Functioning of the European Union (such a reference having been sought of, but refused by, Murphy J.), (b) he will have been denied his right of access to the courts since surrender would render such constitutional proceedings as he seeks to bring moot, and (c) if he were successful in such proceedings he would have been surrendered in breach of s.37(1) of the Act.

12 (iii) Murphy J. was aware that Mr Lanigan intended to make the above-mentioned arguments as to the constitutionality, etc. of the Act, and should have deferred making the surrender order until the court had ruled on such arguments and that her judgment does not offer any reason for her decision not to defer making that order.

13 9. Point (ii) has been overtaken somewhat by the fact that the court heard Mr Lanigan's constitutional law contentions as part of the challenge to the lawfulness of his detention made in the within Article 40 proceedings. Subject to that, the court considers that each of the contentions at (i) to (iii) fails for the reasons stated in para.7 and for such other reasons as are identified hereafter. There is, to borrow from the phraseology of the Chief Justice in FX no "fundamental denial of justice, or a fundamental flaw" identified in this application which would justify the High Court granting a remedy in these Article 40 proceedings in respect of a detention order previously made by the High Court.

PART IV: ALLEGED ABANDONMENT OF FUNDAMENTAL NORMS OF PROCEDURE.

14 10. In her judgment in The Minister for Justice, Equality and Law Reform v. Piotr Sliczynski [2008] IESC 73, 10, Macken J observed: "It is a well established principle of European Arrest Warrant law that the scheme provided for under the Framework Decision, and in turn under the Act of 2003, is a scheme sui generis". Mr Lanigan contends that this sui generis and inquisitorial procedure established by the Act has seen the abandonment of fundamental norms of fair procedure. In this regard, counsel for Mr Lanigan contended a number of times during the hearing of the within application that: (a) the procedures established under the Act sit uneasily with historical practice in Ireland, and (b) there has been a trend in some European Union member...