McGee and Another v The Governor of Castlerea Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 19 May 2023
• Neutral Citation: [2023] IEHC 248
• Court: High Court
• Docket Number: 2023 No. 642 SS

In the Matter of an Inquiry Pursuant To Article 40.4.2° of the Constitution of Ireland

Between

Michael Joseph McGee

Thomas Michael Dignam

Applicants

and

The Governor of Castlerea Prison

Respondent

[2023] IEHC 248

2023 No. 642 SS

THE HIGH COURT

Appearances

The first and second named applicants appeared as litigants in person

James B Dwyer SC and Grainne O'Neill for the respondent instructed by the Chief State Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 19 May 2023

INTRODUCTION

1 This judgment is delivered in respect of an inquiry pursuant to Article 40.4.2° of the Constitution of Ireland. The inquiry is in respect of the continuing detention of Mr. Dignam in Castlerea Prison. Mr. Dignam will be referred to in this judgment as “ the Prisoner” to distinguish him from the first named applicant.

2 The Prisoner stands convicted of an offence of harassment pursuant to the Non-Fatal Offences against the Person Act 1997. This conviction was entered following a two day jury trial in October 2022 and the Prisoner was sentenced to three and a half years' imprisonment on 2 February 2023. As explained presently, the objections which the Prisoner seeks to make in respect of his conviction are ones that are more properly raised by way of an appeal to the Court of Appeal rather than by an application for habeas corpus.

3 This judgment also addresses, pursuant to Article 40.4.3°, the constitutional validity of the legislative provision pursuant to which the Prisoner is detained, namely Section 10 of the Non-fatal Offences against the Person Act 1997.

TRIAL AND CONVICTION

4 In order to understand the arguments advanced on behalf of the Prisoner, it is necessary first to briefly rehearse the circumstances of his conviction. The conviction is in respect of an offence of harassment against Mr. Aidan Devlin. The background to the offence is as follows. In December 2018, Mr. Devlin had acted as agent for KBC Bank in connection with the execution, by the Sheriff, of a High Court order of possession in respect of a property in Falsk, Strokestown, County Roscommon. Thereafter, the Prisoner published a number of posts on the social media platform “ Facebook” referring to Mr. Devlin and his involvement in those events. These posts were published during the period 22 February 2019 to 2 November 2020. These posts ultimately came to the attention of Mr. Devlin, and he made a complaint to An Garda Síochána on 3 November 2020.

5 On 20 November 2020, the Prisoner was arrested pursuant to Section 4(3) of the Criminal Law Act 1997 for a suspected offence of endangerment under Section 13 of the Non-Fatal Offences against the Person Act 1997. The member in charge of Letterkenny Garda Station subsequently granted a request by the arresting garda to detain the Prisoner pursuant to Section 4 of the Criminal Justice Act 1984. The Prisoner was released from custody approximately three to four hours after he had been arrested.

6 While in custody, the Prisoner had been interviewed under caution. The Prisoner confirmed that he had been informed of his right to avail of the services of a solicitor but said that he did not require one.

7 During the course of the interview, the Prisoner confirmed that he had a Facebook account in the name of “ Tom Dignam”. The Prisoner was shown a printout of the profile page of that account and confirmed that it was his account and that he was the person in the profile photograph. The Prisoner confirmed that he had published the following four posts on Facebook. (The date upon which each of the respective posts was first published is indicated in parentheses).

“Here's another scumbag Aidan Devlin who should be hounded at every opportunity, be it in the Supermarket, Pub, Church etc. This scum of the earth was in charge of the eviction in Strokestown last December.”

(22 February 2019)

“Aidan Devlin the commander of the violent eviction of the McGann family last December 2018. This scumbag hired the loyalist thug Ian Gordon and his thugs with the blessing of KBC Bank. His career is over he knows it.”

(10 December 2019)

“Aidan Devlin. Is this man out of his fucking mind attempting to evict the McGann family for a second time. No amount of money from KBC is worth it, ask Ian Gordon.”

(1 November 2020)

“That fat bastard Devlin will soon know what KARMA really means.”

(2 November 2020)

8 In the case of the first three of these posts, a photograph of Mr. Devlin was included as part of the post.

9 The Prisoner was subsequently charged with an offence under Section 10 of the Non-Fatal Offences against the Person Act 1997. Given that the Prisoner now objects to the fact that the wording of the statement of charge differs from that of the indictment upon which he was ultimately arraigned on 27 October 2022, it is necessary to set out the relevant part of the charge sheet of 12 April 2021. It reads as follows:

“On various Dates between the 10 ^th of December 2019 and the 2 ^nd of November 2020 both dates inclusive within the state harassed Aiden ( sic) Devlin.

Contrary to Section 10(1) and (6) of the Non-Fatal Offences Against the Person Act, 1997.”

10 The criminal prosecution came on for hearing on 27 October 2022 before the Circuit Court (His Honour Judge Aylmer). Counsel for the Director of Public Prosecutions applied at the outset to amend the indictment. The Prisoner was arraigned on a fresh indictment as follows:

“STATEMENT OF OFFENCE

Harassment contrary to Section 10 of the Non Fatal Offences Against the Person Act, 1997.

PARTICULARS OF OFFENCE

Tom Dignam between the 10 ^th December 2019 and the 2 ^nd November 2020 (both dates inclusive) within the State without lawful authority or reasonable excuse harassed Aidan Devlin by persistently communicating with him by posting messages on Facebook.”

11 At the trial, Mr. Devlin gave evidence to the effect that his daughters and various other people had drawn his attention to the nature of the material on Facebook. Mr. Devlin further stated in evidence that he had then looked at the material himself; printed off copies of the relevant Facebook pages; and brought them to the attention of An Garda Síochána.

12 As to the references in the posts to Mr. Ian Gordon, Mr. Devlin gave evidence that there had been an attack on the security staff who were in situ at a repossessed home in Strokestown, Co. Roscommon in December 2018 and that one of “ the more serious injuries” was to Mr Gordon, who was the principal of the security company.

13 Mr. Devlin gave evidence to the effect that, as a result of the Prisoner's posts on Facebook, he became “ very concerned for the safety of” his own person. Mr. Devlin also gave evidence that he interpreted the reference to “ Karma” in the post of 2 November 2020 as meaning that there was going to be violence against him or his family at some point.

14 The Prisoner declined to have professional legal representation at his criminal trial. The Prisoner did not actively participate in his trial: he made no submissions; did not cross-examine any witnesses; and adduced no evidence. Prior to his arraignment, the Prisoner stated that the court did not have jurisdiction over him as he was a “ living man”.

15 It is apparent from the transcript that the trial judge was solicitous to ensure that all points which might reasonably have been raised on behalf of the Prisoner were raised. In particular, the trial judge carefully considered whether the prosecution had adduced sufficient evidence to allow the issue of guilt to go to the jury. The trial judge examined the elements of the offence under Section 10 of the Non-Fatal Offences against the Person Act 1997, including the concept of “ communicating with” a person. The trial judge was ultimately satisfied, having regard to the judgment of the Supreme Court in Director of Public Prosecutions v. Doherty [2020] IESC 45, that there was sufficient evidence to go to the jury on the single count on the indictment.

16 The trial judge addressed the question of whether there might be a “ reasonable excuse” within the meaning of Section 10(1) of the Non-fatal Offences against the Person Act 1997 in his charge to the jury as follows:

“Mr Dignam is entitled, as I said to you, to put up his opinions and views about things on Facebook. In doing so he has to be careful, like everybody else, not to say anything incorrect and defamatory about them and if he does, he runs the risk of getting sued. He is not entitled to put up material which is so menacing and threatening to somebody as to give rise to a situation where they're going to be distressed or alarmed or put in fear in relation to their personal safety. That's what the section directs. And there can be no reasonable excuse I suggest to you in those circumstances for putting them up. But at the end of the day reasonable excuse is what you determine it to be. You are reasonable people, ladies and gentlemen of the jury, and you'll have to determine whether there was any reasonable excuse in those circumstances for putting up the publications.”

17 The trial judge elaborated upon this at a later point of his charge as follows:

“[The Accused] describes himself as a frequent user of Facebook and a keyboard warrior. He admits that he posted several times in relation to the attempted repossession at Roscommon and he says that he has nothing to hide in relation to that and that it is, he claims, within the law. He says that the general theme is basically exposing the fraud and corruption of wrongdoers like Mr Devlin and that in his opinion the wrongdoing by Mr Devlin is in relation to the McGann's and other eviction cases when he used people from the north who were operating without a licence and he is referring there to security men I think and that they have to be exposed and that's what I do and I will continue to do.

So, while he doesn't claim any lawful authority,...