McDonagh v Governor of Mountjoy Prison

JudgeMr. Justice Gerard Hogan
Judgment Date17 February 2016
Neutral Citation[2016] IECA 32
Docket Number[C.A. No. 43 of 2014],No. 2014/43 Exp.
CourtCourt of Appeal (Ireland)
Date17 February 2016

Ryan P.

Hogan J.

Mahon J.


[2016] IECA 32

No. 2014/43 Exp.


Detention – Warrant – Documentary error – Whether detention valid – Remittal to court below

Facts: The applicant had been convicted of using marked motor fuel in his motor car, contrary to s. 102 of the Finance Act 1999. Following his failure to pay a resulting fine, the applicant was imprisoned. The applicant was released by the High Court on the ground that the detention warrant which had been sent to the applicant carried the wrong penalty (?300 instead of ?3,000, a simple administrative lapse). The respondent now appealed that decision.

Held by Hogan J, that the appeal would be allowed and the art 40 application remitted to the Court below to decide in the light of the principles set out by this Court. At that hearing, an application to amend the defective warrant could be considered. On that basis, it was not proposed to consider the validity of the applicant?s detention on the basis of the original documentation.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 17th day of February 2016

Where during the currency of an application for release under Article 40.4.2 of the Constitution the detainer accepts that the original basis for the detention is no longer valid, in what circumstances (if any) may he or she apply to the High Court to receive fresh evidence by way of order or warrant in order to justify the legality of the detention? That is essentially the question presented on this appeal from the decision of the High Court (Haughton J.) dated 14th November 2014 directing the release of the applicant.


Although it must be accepted that by reason of supervening events the appeal to this Court had become moot, this Court has already decided that this appeal should nonetheless proceed, if only by way of exception to the mootness doctrine: see McDonagh v. Governor of Mountjoy Prison [2015] IECA 71.

The background to the application

In order to understand the manner in which the legal issues presented by this application properly arise, it is first necessary to set out the factual background. The applicant in these Article 40 proceedings, Mr. McDonagh, was convicted in his absence in the District Court on 18th December 2013 of the offence of using marked motor fuel in his motor car, contrary to s. 102 of the Finance Act 1999 (as amended). While it appears that the District Court decided to impose a fine of ?3,000 and, in default of payment, a sentence of 90 days' imprisonment, it is also agreed that the warrant which actually issued from that Court did not accurately reflect these details.


According to the affidavits filed in these proceedings, it is stated that Mr. McDonagh had arrived late for the District Court, but he was informed by court officials that he had been fined ?3,000. At all events, the fine which was recorded in the Courts Service system was one of ?300 rather than ?3,000. A fines notes was later issued to Mr. McDonagh which recorded the sum which was payable as ?300.


Mr. McDonagh does not appear to have made any attempt to appeal the fine or to seek an extension in which to pay it. A committal warrant subsequently issued in June 2014. The applicant was originally imprisoned on foot of this warrant on 11th October 2014 following his failure to pay the fine, but was released on temporary release. It seems that he did not comply with the conditions attaching to that temporary release and he was re-committed to prison on 31st October 2014. Following his re-committal to prison his solicitor made an application on 10th November 2014 for an inquiry under Article 40.4.2 of the Constitution into the legality of the applicant's detention on the ground that the committal warrant recorded the wrong penalty and was therefore legally infirm. Kearns P. directed an inquiry and ordered that the matter would be returnable to him at 2 pm that afternoon.


At 2pm the matter was then assigned to Haughton J. Following discussions regarding the complaints made in the grounding affidavit, it was agreed that the applicant should be admitted to bail pending further inquiries. Haughton J. also made an order authorising the release of the Digital Audio Recording (?DAR?) of what had happened in the District Court. The requisite certificate of the grounds of detention was then filed on behalf of the Governor, but counsel stated that this was expressed to be without prejudice to any subsequent amendments which might be in contemplation once the full facts had been established.


The certificate itself exhibited the committal warrant of 5th June 2014. This warrant itself referred to the fine as being a ?300 fine rather than a ?3,000 fine. Haughton J. himself stated that he had listened to the DAR and was satisfied that the fine which had in fact been imposed was a fine of ?3,000. A further affidavit was filed by a member of the Courts Service explaining that the error was the result of a simple administrative lapse.


A further affidavit was also sworn by a Ms. Mary Kiely explaining the circumstances in which the original warrant then came to be amended by the District Court. It would seem that an application was then made on behalf of the Revenue Solicitor (i.e., the effective prosecuting authority for this Revenue offence) to District Judge Halpin to exercise the slip rule jurisdiction in order to amend the warrant. The solicitor for the applicant appears to have taken the view that an application of this kind during the currency of the Article 40 proceedings was irregular and that, in any event, neither he nor counsel could be present to meet such an application at such short notice. At all events, the order was duly amended by District Judge Halpin. It is upon this amended order that the Governor now seeks to rely in order to justify the validity of the detention.


It is, however, accepted that no application to amend the certificate was made on behalf of the Governor during the currency of the hearing in the High Court. The Governor submits that this course was both unnecessary and, in some respects, even inappropriate given that the applicant was by this stage on bail.


By order of the High Court dated 14th November 2014 (Haughton J.) the applicant was released on the ground that the detention warrant which had been sent to the applicant carried the wrong penalty (?300 instead of ?3,000). Haughton J. considered that given that the default option of prison was in juxtaposition with the monetary penalty, the inaccurate nature of the warrant was accordingly fundamental. Haughton J. accordingly directed the release of the applicant. The respondent Governor has now appealed to this Court against that decision.

The Article 40.4.2 jurisdiction and documentary error

There have been a series of recent authorities dealing with the nature of documentary error. The issue in these cases is principally concerned with whether the defects in question were either harmless or de minimis on the one hand or were so fundamental that they...

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