Manning v Governor of Castlerea Prison (No.3)

CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date27 June 2017
Neutral Citation[2017] IEHC 411
Docket Number[2017 No. 10 S.S.P.],[2017 No. 10 SSP]
Date27 June 2017

[2017] IEHC 411


Humphreys J.

[2017 No. 10 S.S.P.]



(No. 3)

Constitution – Practice & Procedures – Art 40.4 of Constitution – Conviction under s. 6 of Criminal Justice (Public Order) Act, 1994 – Temporary release – What amounts to detention – Overlapping of grounds

Facts: Following the conviction of the applicant under s. 6 of the Criminal Justice (Public Order) Act, 1994, the applicant filed a habeas corpus application pursuant to art 40.4 of the Constitution while he was on temporary release from the Court. The present application was the applicant's fourth habeas corpus application and his earlier three similar applications were rejected for repetition of grounds. The key issue that arose for the Court's determination was as to whether the applicant could make a habeas corpus application while on temporary release. The second issue arose as to whether the defects in a summary trial were matters for habeas corpus.

Mr. Justice Richard Humphreys declined to order an inquiry for the detention of the applicant under art. 40.4 of the Constitution. The Court held that an application under art. 40.4 only lay when the person was in detention and that conditional liberty such as bail, parole or temporary release amounted to detention while considering the expansive view of the right to personal liberty. The Court found that there was repetition and over lapping of grounds in the present application and nothing new was found in the present application that would warrant the grant of an enquiry. The Court further held that the defects in summary trials were matters to be decided by the Appellate Court, which in the present case was the Criminal Court of Appeal and not by the High Court under art. 40 of the Constitution. The Court observed that the plaintiff had come to the Court without significant change or improvement in his previous application and contained the same grounds which had already been rejected by the previous judge at an enquiry stage.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 27th day of June, 2017

Dr. Manning was convicted on 23rd January, 2017 in Castlebar District Court of an offence under s. 6 of the Criminal Justice (Public Order) Act, 1994. He then appealed that conviction to the Circuit Court where once again he was convicted. He was sentenced to two months' imprisonment.


In the course of his trial in the District Court he brought three judicial review applications, each of which I refused [ Manning v. McCarthy (No. 1) and Manning v. D.P.P. ( ex tempore, 21st November, 2016) and Manning v. McCarthy (No. 2) ( ex tempore, 11th January, 2017)]. The latter decision is currently the subject of an application for leave to appeal to the Supreme Court [Record No. 2017/59].


In relation to his detention in Castlerea prison there have been four habeas corpus applications and I am now dealing with the fourth. The first application was a matter brought by Mr. Ben Gilroy on his behalf and dismissed by Noonan J. [ Gilroy v. Governor of Castlerea Prison [2017] No. 507 S.S.]. The second was an application brought on his behalf by Ms. Marguerite Corbett and Mrs. Manning which I rejected on the 17th May, 2017 [ Manning v. Governor of Castlerea Prison [2017] IEHC 348]. The third was an application brought by way of a habeas corpus prisoner application and dismissed by Binchy J. on the 18th May, 2017 [ Manning v. Governor of Castlerea Prison [(No.2)] [2017] IEHC 343]. He now brings a fourth application by way of the standard form for prisoner applications, which he completed on the 1st June, 2017, but submitted to the Courts Service under cover of a letter dated the 5th June, 2017, by which stage he had been released on temporary release and was no longer a prisoner.


On 7th June, 2017 I dismissed the application, and I now take the opportunity to set out more formal reasons for having done so. There are three key issues at this stage; the first is whether the applicant can make an application of this kind while on temporary release; the second issue is whether a simple repetition of grounds already rejected by another judge constitutes grounds warranting an enquiry; and finally there is the question of whether in any event Article 40 is an appropriate mechanism to deal with alleged shortcomings in a summary trial.

Can a prisoner on temporary release apply for habeas corpus?

On the first issue there is something of a dearth of authority. R.J. Sharpe says in The Law of Habeas Corpus, 2nd Ed., (Oxford, 1989) p. 169 that ‘ there has been virtually no consideration of the appropriateness of habeas corpus to challenge the legality of parole, probation or suspended sentence controls. An individual who is subject to such controls may be restricted as to his employment, place of residence, associates, and general daily habits.’


The learned author says that most controls of this nature would ordinarily be seen as a significant curtailment of personal freedom if only because any breach of conditions of release usually carries a sanction of immediate incarceration suggestive of the proposition that jurisdiction to apply for relief by way of habeas corpus can exist in such situations.


There is a certain analogy with the law in relation to bail. David Clark and Gerard McCoy, Habeas Corpus: Australia,...

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