M (T) v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 26 July 2011
• Neutral Citation: [2011] IEHC 336
• Court: High Court
• Docket Number: [2011 No. 1423 SS]
• Date: 26 July 2011

[2011] IEHC 336

THE HIGH COURT

1423 SS/2011

M (T) v Governor of Mountjoy Prison

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4 BUNREACHT NA ÉIREANN 1937

BETWEEN

T. M.

APPLICANT

AND

THE GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

CONSTITUTION ART 40.4

CRIMINAL JUSTICE ACT 1960 S6

CRIMINAL JUSTICE ACT 1960 S2

CRIMINAL JUSTICE (TEMPORARY RELEASE OF PRISONERS) ACT 2003 S1

CRIMINAL JUSTICE ACT 1960 S7

DPP v MURRAY 1977 IR 360

AIR NAVIGATION & TRANSPORT ACT 1973 S2

AIR NAVIGATION & TRANSPORT ACT 1973 S1

AIR NAVIGATION (NATIONALITY & REGISTRATION OF AIRCRAFT) ORDER 1963 SI 88/1963 ART 7

AIR NAVIGATION (NATIONALITY & REGISTRATION OF AIRCRAFT) ORDER 1963 SI 88/1963 ART 7(2)

AIR NAVIGATION (NATIONALITY & REGISTRATION OF AIRCRAFT) ORDER 1963 SI 88/1963 ART 7(3)

AIR NAVIGATION & TRANSPORT ACT 1973 S3

AIR NAVIGATION & TRANSPORT ACT 1973 S14

AIR NAVIGATION & TRANSPORT ACT 1973 S5

AIR NAVIGATION & TRANSPORT ACT 1973 S6

AIR NAVIGATION & TRANSPORT ACT 1973 S7

AIR NAVIGATION & TRANSPORT ACT 1973 S8

AIR NAVIGATION & TRANSPORT ACT 1973 S9

AIR NAVIGATION & TRANSPORT ACT 1973 S11

IMMIGRATION ACT 1999 S5(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10(B)

IMMIGRATION ACT 1999 (DEPORTATION) REGS 2005 SI 55/2005

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S5(2)

IMMIGRATION ACT 2004 S1

IMMIGRATION ACT 2004 S5

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 2004 S4(3)

AHERNE, STATE v COTTER 1982 IR 188

OLADAPO v GOVERNOR OF CLOVERHILL PRISON 2009 2 ILRM 166 2009/43/10766 2009 IESC 42

MURPHY, STATE v KIELT 1984 IR 458

CONSTITUTIONAL LAW

Legality of detention

Temporary release - Deportation - Whether lawful to detain after deportation fails through no fault of prisoner - Whether breach of temporary release order - Whether arrested on return to State after aborted deportation - Whether still detained pending deportation - The People v Murray [1977] I.R. 360 applied - Criminal Justice Act 1960 (No 27), ss 6 and 7 - Air Navigation and Transport Act 1973 (No 29), ss 1, 2, 3, 5, 6, 7, 8, 9 and 11 - Immigration Act 1999 (No 22), s 5 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 10 - Immigration Act 2004 (No 1), s 4 - Constitution of Ireland 1937, Article 40.4 - Detention found unlawful (2011/1423SS - Charleton J - 26/7/2011) [2011] IEHC 336

Vanga v Governor of Mountjoy Prison

Facts The applicant, whom originally came to Ireland from the Congo was sentenced in May 2011 to imprisonment by the Circuit Criminal Court in Dublin and his earliest release date was 9 January 2012. However, a deportation order had been made in respect of the applicant and consequently it was necessary to deport him from prison. In order to effect the applicant's deportation a temporary release order was made by the governor of Mountjoy Prison on 13 July 2011 and it informed the applicant he was being released from prison for the period from 14.00 on 13 July 2011 to 23.59 on 9 January 2012 for the purpose of removal from the State. The release was subject to conditions including a condition that the applicant be removed from the State and a note was appended to the order indicating that a breach of any of those conditions was an offence contrary to section 6 of the Criminal Justice Act, 1960 and was punishable on conviction by imprisonment for a term not exceeding six months. The applicant was duly removed from prison and placed on a flight to Africa. However, the pilot was refused leave to fly across Algerian airspace and so the airplane was forced to turn around over the Mediterranean Sea and return to Ireland. Upon arrival at Dublin Airport the applicant was told that he was being returned to Mountjoy Prison to complete his sentence. The respondent sought to justify the detention of the applicant firstly, on the basis that he was in effect arrested for breach of the temporary release order, secondly, he must be taken to be continuing to serve his sentence as the purpose of the temporary release order was not fulfilled, and thirdly, that the airplane on which he was travelling had never left the jurisdiction of Ireland and that he was, in effect, awaiting deportation under the deportation order as facilitated by the temporary release order and could be detained pending such deportation. It was also submitted that the court was not entitled to grant habeas corpus in this case because the applicant was a convicted prisoner. The applicant sought an inquiry into the lawfulness of his detention.

Held by Charleton J. in declaring the applicant to be in unlawful custody: That the period for which the applicant had been temporarily released had not expired and so the issue was whether a condition to which his release was made subject had been broken. A further issue arose as to whether 'broken' in this sense meant that it had not been fulfilled or whether it required some wilful act on the part of the applicant. The offence provided for in section 6 of the Act of 1960 was not a regulatory offence and required some wilful element or some purposive conduct on the part of the alleged offender. Having considered the Air Navigation and Transport Act 1973 and the Immigration Acts 1999 and 2004, the reality of this case was that the applicant, as a non-national, left the State in the airplane and once outside Irish airspace he was not in Ireland and was not subject to Irish civil jurisdiction. His subsequent return to Ireland was not wilful on his part and he could not have been guilty of an offence under section 6 of the Act of 1960. Furthermore, once the aircraft left Irish airspace the members of An Garda Siochana on board had no power in terms of their authority beyond acting under the jurisdiction of the commander of the aircraft. The applicant was not arrested on arrival in this State pursuant to an application for a permission to land and a refusal for good reason by an immigration officer. Nor was he arrested for not presenting himself to an immigration officer. The situation of a convicted prisoner serving a sentence and complaining about the conditions of imprisonment was not parallel to what was in issue in this case. Had the applicant not been granted temporary release there would be no doubt that he would be in lawful detention. However, the applicant was granted temporary release. That temporary release order remained unrevoked and the applicant was not currently under arrest for anything. Consequently his detention in Mountjoy jail was unlawful.

Reporter: L.O'S.

1 Judgment of Mr. Justice Charleton delivered ex tempore on 26th day of July 2011

2 1. Since this is a habeas corpus application and under Article 40.4 of the Constitution I am obliged to consider the legality of the detention of the applicant forthwith, I propose to give judgment straight away.

3 2. The background to this case is that the applicant came to Ireland from the Congo when he was about twelve years of age. I presume, though I do not know, that he applied for asylum and was refused refugee status. A deportation order was eventually made against him. Approximately a year ago in May 2011, when he was twenty-two years of age, he was sentenced to imprisonment by the Circuit Criminal Court in Dublin in respect of serious assaults. As I understand it, he would be released from his sentence in the event of ordinary remission on the 9 ^th January 2012. Whatever process was gone through in relation to the applicant's deportation, I have to assume that the procedure in that regard was gone through in full by the Minister and his officials. No complaint is made in that regard. A deportation order having been made, the difficulty which arose, and which is in sharp focus in this case, is that because the applicant was in prison, he had to be deported from there. A special procedure was followed in order to seek to lawfully effect that process. This procedure was, according to the evidence of Inspector Joe Dignam of the Garda National Immigration Bureau ("GNIB"), whose testimony I accept fully, what has become the normal procedure in the circumstances. In accordance with this procedure, a temporary release order was made by the governor of Mountjoy Prison on 13 ^th July 2011. I now want to refer to a portion of that temporary release order. It informed the prisoner, the applicant, that he was being released from Mountjoy Prison for the period from 14.00 on the 13 ^th July 2011 to 23.59 on the 9 ^th January 2012, the date of release assuming normal remission on his sentence, for the purpose of removal from the State. According to the document addressed to the applicant, this release was to occur "following your handover to the Garda National Immigration Bureau and that your release is subject to the following conditions with which you are obliged to comply during the period of your release." These conditions included that he "be removed from the State" and others such as that he maintain sober habits, keep the peace and is to be "handed over to the GNIB at Mountjoy Prison". The document is signed by the Governor of Mountjoy Prison. A note appended to the temporary release order indicates that a failure to return on or before the expiration of the period of temporary release, or a breach of any of the conditions attached to the period of temporary release, is an offence under s. 6 of the Criminal Justice Act 1960, punishable on conviction by imprisonment for a term not exceeding six months.

4 3. I assume the applicant acknowledged the terms and conditions of his temporary release and I assume as well that the applicant speaks very good English. On the 13 ^th July 2011, the members of An Garda Síochána, under the command of Inspector Dignam, went to Mountjoy Prison and took custody of the applicant pursuant to the terms of the temporary release order. On that day, a charter flight was leaving Dublin...