Liu v Governor of Dochas Centre

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 06 October 2011
• Neutral Citation: [2011] IEHC 372
• Court: High Court
• Date: 06 October 2011

[2011] IEHC 372

THE HIGH COURT

[No. 2009 SS/2011]

Liu v Governor of Dochas Centre

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

SHU JIE LIU

APPLICANT

AND

GOVERNOR OF D ÓCHAS CENTRE

RESPONDENT

Abstract:

Criminal law - Habeas corpus - Constitutional law - Article 40 of the Constitution - Lawfulness of detention - Offence not known to law - Acquiescence - Section 12 of the Immigration Act, 2004 as amended - Whether the applicant's detention was in accordance with the law.

Facts The applicant, a Chinese National was arrested and brought before the District Court charged with an offence contrary to section 12(1)(a) and s. 13 of the Immigration Act, 2004, as substituted by s. 24 of the Civil Law (Miscellaneous Provisions) Act 2011. The particulars of the charge as recorded on the charge sheet stated; '… being a non-national did fail to produce on demand to an Immigration Officer a member of An Garda Siochana, namely Garda Michael Byrne, a valid passport of other relevant document which establish your identity and nationality and failed to give a satisfactory explanation of the circumstances which prevented you from doing so." The applicant was subsequently remanded in custody on two separate occasions by the District Court before seeking an inquiry into the legality of her detention. It was not disputed that the particulars of the offence contained in the charge sheet were defective firstly insofar as the offences were described as being contrary to s. 12(1)(a) and (2) and s. 13 of the 2004 "as amended" by s. 34 of the 2011 Act and secondly insofar as the particulars of the charge mirrored the language of the old section 12 of the 2004 Act, which section was found to be unconstitutional by Kearns P. in Dokie v. Director of Public Prosecutions [2011] IEHC 110. The respondent, however, argued that the applicant should be deemed to have acquiesced in her current detention as no objection was raised by her to the manifest inadequacy of the particulars before the District Court prior to the making of the remand order.

Held by Hogan J. in directing the immediate release of the applicant: That the relevant provisions of the 2004 Act were not amended by s. 34 of the Act of 2011. Rather, s. 34 deleted the old s.12 and substituted the relevant sections into the 2004 Act. In the Dokie case, Kearns P. held section 12(1) of the Act of 2004 to be unconstitutional, inasmuch as it created a vague and uncertain offence. Applying the Dokie principles to the present case, it was quite impossible to separate out the actus reus of the offence for which the applicant had been charged from any possible defence. The applicant could not therefore know with the degree of precision which Article 38.1 of the Constitution required the nature of the conduct which it was said created the criminal offence. Consequently, the applicant was charged with a non-existent and patently unconstitutional offence. The task of this Court was to examine whether the applicant was presently detained in accordance with the law and therefore it was irrelevant for the purposes of this application to examine whether the prosecution could at any later stage apply to the District Court to amend the complaint under Order 38 of the District Court Rules. As the applicant's custody was predicated on the existence of a charge which, as matters presently stood having regard to the particulars of the complaint set out in the charge sheet, did not disclose an offence known to law, she was not detained in accordance with the law. The applicant did not acquiesce in the matter. The applicant only became aware of the defective nature of the particulars of the charge following the receipt of counsel's advices a few days after she was first charged. The applicant did not enjoy any form of tactical advantage by failing to take the point immediately before the District Court and the applicant did not allow the charge to proceed to the stage of finality prior to raising this point of objection.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Hogan delivered on the 6th day of October, 2011

2 1. The application under Article 40.4.2 of the Constitution arises in the following circumstances. The applicant is a Chinese national who was arrested and brought before the District Court on the 27 ^th September, 2011. She was charged with an offence contrary to s. 12(1)(a) and s. 13 of the Immigration Act 2004 ("the 2004 Act"), as substituted by s. 24 of the Civil Law (Miscellaneous Provisions) Act 2011 ("the 2011 Act"). The particulars of the charge as recorded on the charge sheet were in the following terms:-

"On the 27 ^th September, 2011, on Parnell Street, Dublin 1, in the said District Court area of Dublin Metropolitan District, being a non-national did fail to produce on demand to an Immigration Officer a member of An Garda Síochána, namely Garda Michael Byrne, a valid passport or other relevant document which establish your identity and nationality and failed to give a satisfactory explanation of the circumstances which prevented you from doing so."

3 2. Evidence of arrest, charge and caution was given by the prosecuting garda, Garda Michael Byrne, before the District Court. Garda Byrne objected to bail on the grounds that the applicant had not provided satisfactory proof of her identity and that she was, accordingly, a flight risk. The applicant was accordingly remanded in custody to appear before the District Court No. 2 in the Criminal Courts of Justice Building on the 30 ^th September, 2011. On that date the applicant was apparently still unable to provide any documentation regarding her identity and she was accordingly remanded in custody until the 7 ^th October next.

4 3. An application for inquiry was made to me pursuant to Article 40.4.2 on October 3 ^rd, 2011. I immediately directed an inquiry to be held on the following day. The respondent certified the grounds of the detention as consisting of a warrant of the 30 ^th September, 2011, whereby District Judge McLoughlin remanded the applicant in custody on foot of the charge which has been proffered against the applicant.

5 4. At the outset it is important to state that is not disputed but that the particulars of the offence contained in the charge are defective. Indeed,...