Leroy Roche aka Dumbrell v Governor of Cloverhill Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice Colm Mac Eochaidh |
| Judgment Date | 04 July 2014 |
| Neutral Citation | [2014] IEHC 349 |
| Court | High Court |
| Date | 04 July 2014 |
[2014] IEHC 349
THE HIGH COURT
BETWEEN
AND
CONSTITUTION ART 40.4.2
CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S15
BAIL ACT 1997 S9(4)
INSPECTOR OF TAXES v KIERNAN 1981 IR 117
CIRPACI v GOVERNOR OF MOUNTJOY PRISON UNREP HOGAN 25.2.2013 2014 IEHC 76
HEGARTY v DPP UNREP KELLY 29.11.1996 1997/4/1175
BAIL ACT 1997 S2
BAIL ACT 1997 S9(7)
BAIL ACT 1997 S9(1)(B)
BAIL ACT 1997 S9(1)(B)(I)
BAIL ACT 1997 S9(1)(B)(II)
BAIL ACT 1997 S9(1)(B)(III)
BAIL ACT 1997 S9(1)(B)(IV)
MAGUIRE v DPP 2004 3 IR 241 2005 1 ILRM 53 2004/29/6791 2004 IESC 53
BAIL ACT 1997 S2(2)
RICE v JUDGE MANGAN & 2009 3 IR 1 2004 IEHC 258
Bail – Conditions – Variation – Breach – Revocation – Constitutional Law – Bunreacht na hÉireann 1937 Article 40 – Bail Act 1997 s. 9.
Facts: The applicant had been arrested and charged with violent disorder in November 2013 . After intially being refused bail in the District Court, he appealed to the High Court and was granted bail subject to conditions in December 2013. This was revoked in March 2014 when it came to light that the applicant had breached the conditions. Whenever the applicant came forward for trial he again applied for bail which was granted at the end of March 2014. This too was revoked in April 2014 but he once again was able to obtain bail at the end of April. At the beginning of June the applicant applied for a variation in his bail conditions so that he could go on holiday but this was opposed by the prosecution. After he came back before the court to enter a plea of not guilty, and after a date for trial had been set, the applicant again applied to vary the conditions of bail in order to go on holiday. This variation was granted but subsequently bail was revoked whenever the applicant breached the variation by returning home early, failing to reside at a required address and by failing to surrender his passport. Consequently, the applicant brought these proceedings pursuant to article 40 of the Constitution in order to obtain release from custody.
Held by Mac Eochaidh J., that his function was not that of an appellate judge. He had to decide if the revocation of bail constituted a breach of the applicant”s constitutional rights. He acknowledged that there is a general presumption for those who have been accused to get bail and that any ambiguity in the conditions of bail should be resolved in favour of the accused.
However, he found that there was nothing in the conditions of bail, permitting the applicant to go on holiday, that could be construed as ambiguous. The conditions were varied only for the time that the applicant spent abroad so when he returned earlier than expected the bail conditions were breached.
In addition it was stipulated that when revoking bail, it was unnecessary for the judge to consider both the breach of conditions and the appropriateness of a revocation order. In addition, the applicant in this case proffered no information regarding the breach of conditions and as such it was possible to assume that the breach had not been accidental.
Finally, Mac Eochaidh J. refused to accede to the applicant”s argument that s. 9 Bail Act 1997 should be interpreted to confine the courts sanctions for breach of bail conditions to that of estreatment or forfeiture. He found that the court through the common law had been given the power of revocation which it could invoke of it”s own motion.
JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 4th day of July 2014
This is an application pursuant to Article 40.4.2 of the Constitution. The background facts, which are uncontested, are as follows.
The applicant is accused of violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994. He was arrested and charged with this offence on 29 th November 2013. He was refused bail in the District Court. On appeal to the High Court, Butler J., on 9 th December 2013, granted bail subject to the following conditions:
(i) That he reside at 57, Emmet Road, Inchicore;
(ii) That he sign on daily between 9.00am and 6.00pm in Kilmainham garda station;
(iii) That he observe a curfew between 7.00pm and 7.00am;
(iv) That he stay out of Ballymun;
(v) The he have no contact with the co-accused;
(vi) Independent surety of €3,000, €1,000 to be lodged or €3,000 cash lodgement and his own bond of €100.
On 3 rd March 2014, a bail revocation application was heard by Butler J. who found that the applicant had breached the curfew condition of his bail on at least five occasions. Bail was consequently revoked and the applicant was remanded in custody.
On 28 th March 2014, the applicant was sent forward for trial. When such an event happens, there is a statutory right to apply for bail again. Such an application was made and the applicant was readmitted to bail on the same conditions as had been imposed by Butler J. in the High Court.
On 11 th April 2014, the applicant's case came before the Dublin Circuit Criminal Court for mention. Again, evidence was heard that the applicant had breached the curfew condition of his bail and the applicant was remanded in custody until the 28 th April 2014, when he was readmitted to bail on the same conditions as had been imposed by Butler J. An arraignment date of 23 rd June 2014 was set.
On 19 th June 2014, lawyers for the applicant requested that the applicant's case be listed in the ex parte section of Judge Ring's list in order to hear an application to vary the terms of bail. The variation was to permit the applicant to travel to Portugal on holiday and tickets were produced showing that the applicant intended to travel on 21 st June 2014 and to return on 29 th June 2014. The application was opposed by the prosecutor and the matter remained listed for 23 rd June 2014.
On 23 rd June 2014, the applicant entered a plea of not guilty and a trial date of 20 th April 2015 was set. Following the trial date, a further application for a variation of bail was moved. This time Judge Ring varied the conditions of bail by relaxing curfew, signing on and place of residence conditions until the date of the applicant's proposed return from Portugal. In addition, a new condition was added, that the applicant was to return home from the airport, on Sunday 29 th June 2014, via Kilmainham garda station, and there, he was to surrender his passport.
The applicant went with his girlfriend to Portugal but he came home prematurely on 25 th June 2014, arriving in Dublin Airport at 10pm. There had been a row with his girlfriend and it is not denied that when he came home, he did not return to the place where he was due to reside and he did not go home via Kilmainham garda station and surrender his passport. Nor is not denied that he was in breach of the curfew, if it still applied.
The following day, at about 1.15pm, Detective Garda Ronan McMurrow made an ex parte application pursuant to s. 9(4) of the Bail Act 1997 for an arrest warrant arising from alleged breach of bail conditions. Evidence was given in that application of a very serious assault which had been perpetrated on the applicant's girlfriend in Portugal.
Later in the day, the applicant, apparently having heard of the application by the prosecutor, presented in Judge Ring's court and was noted to be in attendance there. Various representations were later made by his counsel that no conditions of bail had been breached. It was urged upon the court, and Judge Ring acceded to the application, that any evidence in the affidavit of Detective Garda McMurrow with respect to the alleged assault in Portugal was hearsay and inadmissible. Judge Ring agreed with that and no part of her decision, therefore, was based upon the inadmissible hearsay evidence. That evidence remains inadmissible hearsay evidence and there is no attempt by anyone to refer to it or use it in this present application.
Judge Ring was satisfied that the terms of the bail had been breached by the failure of the applicant to observe a curfew, to surrender the passport and to reside at the given address.
The matter comes to this court following the revocation of bail by Judge Ring and the taking into custody of the applicant. This court is now asked to release the applicant from custody on the basis of legal errors attaching to the decision of Judge Ring.
It is urged upon the court that Judge Ring acted without jurisdiction in finding that conditions of bail had been breached because there was no evidence as to this. It is also urged upon the court that the facts demonstrate that no breach of the conditions actually occurred. It is further said that if the conditions of bail are ambiguous, ambiguity must be resolved in favour of the applicant.
A number of authorities were opened to the court in support of the arguments made by counsel. The well-known case of Inspector of Taxes v. Kiernan [1981] I.R. 117, is advanced in favour of the proposition that rules which impose liability ambiguosly must be strictly construed. At p. 122 Henchy J. says:
"Secondly, if a word or expression is used in a statute creating a penal or taxation liability, and there is looseness or ambiguity attaching to it, the word should be construed strictly so as to prevent a fresh imposition of liability from being created unfairly by the use of oblique or slack language."
Though I am not certain that the dicta in Kiernan, which dealt with the interpretation of statutes, apply in a similar way to court orders, I am of the view that the proposition that ambiguity should...
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Roche (also known as Dumbrell) v Governor of Cloverhill Prison
...Charleton delivered on the 31st day of July 2014 1 This is an appeal against the judgment and order of MacEochaidh J, of 4 July 2014 [2014] IEHC 349, refusing the appellant an order declaring his detention in Cloverhill Prison unlawful pursuant to Article 40.4.2° of the Constitution. The ap......