Margaret Connors v Governor of Dóchas Centre and Another

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice McDermott
Judgment Date01 April 2015
Neutral Citation[2015] IEHC 243
Date01 April 2015

[2015] IEHC 243

THE HIGH COURT

[No. 478 SS/2015]
Connors v Governor of The Dochas Centre
No Redaction Needed
IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND 1937

BETWEEN

MARGARET CONNORS
APPLICANT

AND

THE GOVERNOR OF THE D ÓCHAS CENTRE
RESPONDENT

AND

MINISTER FOR JUSTICE AND EQUALITY
NOTICE PARTY

Constitution – Inquiry under Article 40.4.2 – Expired warrant – Illegal detention

Facts: The applicant was sentenced to a total of 22 months imprisonment for multiple convictions in violation of the Criminal Justice (Theft and Fraud Offences) Act 2001. The applicant was kept under detention on grounds of committal warrants issued by the Circuit Court. The respondent delayed the execution of the Circuit Court warrants in the instant case. The applicant challenged the detention and requested for an inquiry under Article 40.4.2 of the Constitution of Ireland 1937.

Mr. Justice McDermott held that the request for an inquiry under Article 40.4.2 of the Constitution of Ireland 1937 would be granted. The Court found that the delay in execution of the Circuit Court warrants in the instant case was not occasioned by the applicant's fault. The warrants were issued by the Circuit Court and therefore the limitation of execution of warrant as per the District Court Rules did not apply. The Court held that the detention of the applicant was against principles of the law. The Court directed immediate release of the applicant and ordered the respondent to pay for the costs of the proceedings to the applicant.

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JUDGMENT of Mr. Justice McDermott delivered on the 1st and 15th day of April 2015

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1. On the 7 th March, 2015, an application was made to this Court for an inquiry under Article 40.4.2 of Bunreacht na hEacute;in which it was claimed that her detention by the respondent was not in accordance with law because the warrants under which she was imprisoned had expired and were of no legal effect.

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2. On 4 th February, 2015, the applicant appeared before Cavan District Court charged with an offence contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and was sentenced to a period of 30 days imprisonment following conviction. On the 5 th February 2015, ten committal warrants extant in relation to the applicant were executed. The applicant's solicitor examined the committal warrants on foot of which she is now detained and ascertained that she had been sentenced to a total of 22 months imprisonment. Each of the warrants issued following a Circuit Court appeal. There are as follows:-

Case No.

Original District Court Date and Sentence

District Court Appeal Date and Sentence

Date on Committal Warrant

2013/88111

10 th May, 2013 (9 months imprisonment)

28 th November, 2013 (affirm District Court order)

28 th November, 2013

2013/88113

10 th May, 2013 (9 months imprisonment consecutive to the sentence imposed on 2013/88111)

28 th November, 2013 (affirm District Court order)

28 th November, 2013

2013/47906

10 th May, 2013 (4 months imprisonment consecutive to the sentence imposed on 2013/88113)

28 th November, 2013 (affirm District Court Order)

28 th November, 2013

2013/88115

10 th May, 2013 (3 months imprisonment)

28 th November, 2013 (affirm District Court Order)

28 th November, 2013

2013/88118

10 th May, 2013 (6 months imprisonment)

28 th November, 2013 (affirm District Court Order)

28 th November, 2013

2013/88120

10 th May, 2013 (6 months imprisonment)

28 th November, 2013 (affirm District Court Order)

28 th November, 2013

2013/88121

10 th May, 2013 (6 months imprisonment)

28 th November, 2013 (affirm District Court Order)

28 th November, 2013

2013/88123

10 th May, 2013 (6 months imprisonment)

28 th November, 2013 (affirm District Court Order)

28 th November, 2013

2013/88124

10 th May, 2013 (6 months

28 th November, 2013 (affirm

28 th November, 2013

imprisonment)

District Court Order)

2013/88119

10 th May, 2013 (6 months imprisonment)

28 th November, 2013 (affirm 2013 District Court Order)

28 th November, 2013

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3. A warrant in respect of Case 88115 which purported to impose a sentence of three months imprisonment upon the applicant for an offence contrary to s. 4 of the Criminal Justice (Public Order) Act 1994, as amended by s. 22 of the Intoxicating Liquor Act 2008, could not stand having regard to the maximum penalty which may be imposed for such an offence, which is a fine of €500.00.

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4. The court directed that the inquiry be conducted at 2.00pm on 27 th March and that the respondent certify in writing the grounds of detention, but since the issue arising in the case could be addressed by way of legal argument, the court did not direct the production of the applicant in court. The respondent relies upon the warrants issued by the Circuit Court as constituting lawful grounds for the applicant's detention.

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5. The applicant was convicted of using various vehicles without insurance in cases No. 88118, 88119, 88120, 88121, 88123 and 88124 on six different dates in 2011. On conviction, she was sentenced to six months imprisonment in respect of each of these offences which were not expressed to be consecutive. The applicant was also convicted in Case 88111 and sentenced to nine months imprisonment for stealing a case of Budweiser beer valued at €36.27. At the same District Court hearing the applicant was convicted in Case 88113 of stealing two crates of Budweiser valued at €30.00 on the same date and sentenced to nine months imprisonment consecutive to the sentence imposed on Case 88111. On the same date she was also convicted in the District Court of theft of a muscle whey protein valued at €43.98, and sentenced to four months imprisonment consecutive to the nine months imposed in respect of the offence under Case 88113. The total term of imprisonment to be served following the District Court convictions was 22 months imprisonment. She appealed convictions and sentence, but failed to appear at her appeal before the Circuit Court on 28 th November, 2013, and all of the convictions and sentences were affirmed.

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6. Committal warrants in respect of all ten offences were issued on 28 th November, 2013, and directed to the Superintendent, An Garda Síahána, Tallaght, Dublin 24.

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7. Counsel on behalf of the applicant submits that the committal warrants issued in respect of each of the convictions on appeal should have been renewed in accordance with the Rules of the District or Circuit Courts. Each "committal warrant after appeal" recites as follows:-

"AND WHEREAS on the hearing of an appeal by the said accused against the said order, the Circuit Court Judge for the County and the City of Dublin on 28-Nov-2013 ordered as follows:"

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No appearance, Strike out Appeal, affirm conviction and order of the District Court and ordered that the accused be imprisoned for a period of (the term imposed)..."

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8. Order 26(11) of the District Court (Criminal Justice Act 2006) Rules 2007 ( S.I. No. 203 of 2007) provides that:-

"Where a warrant, other than"

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· - a warrant for the arrest of a person charged with an indictable offence,

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· - a warrant for the arrest of a person who has failed to appear in answer to a summon respect of an offence,

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· - a bench warrant for the arrest of a person who has failed to appear in compliance with the terms of a recognisance, or

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· - a search warrant,

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is addressed, transmitted or endorsed for execution, to any person and he or she is unable to find the person against whom the warrant has been issued or to discover where that person is or where he or she has goods, such person having the execution of the warrant shall return the warrant to the court which issued the same (within such time as is fixed by the warrant or within a reasonable time, not exceeding six months where no time is so fixed) with a certificate (Form 26.4, Schedule B) endorsed thereon stating the reason why it has not been executed, and the court may re-issue the said warrant, after examining any person on oath if the court thinks fit so to do concerning the non-execution of the warrant, or may issue any other warrant for the same purpose from time to time as shall seem expedient."

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9. Order 101 of the District Courts (Appeals to the Circuit Court) Rules 2003, as amended and applicable at the time to this case, provides, inter alia:-

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2 "11. In criminal cases...where an appeal is lodged and the recognisance, if any, is entered into, and the warrant to execute the Order has not been issued, such warrant shall not be issued until the appeal is decided...if the warrant has been issued but not executed, the clerk shall forthwith notify the Superintendent of An Garda Síochána that an appeal has been lodged under a recognisance, if any, entered into, and such Superintendent shall return the warrant to such a Clerk for consideration by the Court.

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12. In every appeal, other than an appeal in a civil case, the Clerk shall sign and transmit to the County Registrar, together with the documents specified in Order 43, rule 1 of the Rules of the Circuit Court, 1950 ( S.I. No. 179 of 1950), a Certificate which shall be in accordance with Form 101.8, Schedule D.

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Execution of Orders after Appeal

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13. Where Form 101.7, referred to in rule 12 is returned with the County Registrar's Certificate duly completed thereon, and if the Circuit Judge has not caused the necessary warrant to enforce the Order to be issued, the Clerk shall forthwith prepare and the Judge of the District Court shall issue the necessary warrant or warrants and take all further steps required for the execution of the conviction or Order as confirmed, or varied and for the...

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