McGlinchey v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 20 July 1988
• Neutral Citation: 1989 WJSC-SC 1904
• Court: Supreme Court
• Docket Number: [1987 No. 288 S.S.],39840/88
• Date: 20 July 1988

MCGLINCHEY v. GOV PORTLAOISE PRISON

STATE (McGLINCHEY)

v

THE GOVERNOR OF PORTLAOISE PRISON

1989 WJSC-SC 1904

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

39840/88

THE SUPREME COURT

Synopsis:

SPECIAL CRIMINAL COURT

Establishment

Validity - Composition - Selection of judges - Administrative decision - Membership - Qualifications - Duration - Member judge qualified on appointment as barrister or solicitor not disqualified on retirement as judge - Fundamental breach of requirements of law necessary to justify release of convicted prisoner serving sentence - Offences Against the State Act, 1939, s. 39 - Constitution of Ireland, 1937, Article 40 - (39, 40/88 - Supreme court - 20/7/88) - [1988] I.R. 671

|McGlinchey v. Governor of Portlaoise Prison|

CONSTITUTION

Personal rights

Liberty - Imprisonment - Legality - Enquiry by High Court - Scope - Convicted prisoner - Breach of fundamental requirement necessary to justify release, pursuant to Article 40.4 of the Constitution, of convicted person serving term of imprisonment imposed on him - (39, 40/88 - Supreme Court - 20/7/88) 1988 IR 671

|McGlinchey v. Governor of Portlaoise Prison|

Citations:

CONSTITUTION ART 40

FIREARMS ACT 1925 S15

OFFENCES AGAINST THE STATE ACT 1939

MCDONAGH, STATE V FRAWLEY 1978 IR 131

CANNON, STATE V KAVANAGH 1937 IR 428

BEGGS, IN RE 1944 NI 121

FEATHERSTONE, RE 1953 37 CAR 146

CONSTITUTION ART 40.4.1

OFFENCES AGAINST THE STATE ACT 1939 S39(3)

1 JUDGMENT delivered on the 20th day of July 1988by FINLAY C.J. [NEM DISS]

2 This is an application made by way of appeal from a decision of the High Court in an enquiry under Article 40 of the Constitution. The Applicant who is before the Court, Mr. McGlinchey, is a person who had been convicted in the Special Criminal Court on the 11th March 1986 of two offences. One was for possession of firearms contrary to Section 15 of the Act, that is to say, with intent to endanger life, and the other of which was shooting with the intention of resisting apprehension.

3 In respect of the first offence he was sentenced to ten years"imprisonment to date from the date on which the offence was committed, namely, the 17th March 1984, and in respect ofthe second offence he was sentenced to ten years" penal servitude to commence from the date on which his conviction and sentence were imposed. He applied to the High Court in 1987 for an enquiry as to the legality of his detention, setting forth a number of matters which he alleged were matters which would lead to a conclusion that his detention was illegal. That application to the High Court was refused and if he was aggrieved by that under the procedures of the Courts his right and his obligation if he wanted to pursue that grievance, would have been to appeal to this Court. He did not appeal to this Court, but he brought a further identical application to the High Court and that was refused on the grounds on that occasion, which would have been correct in law, that an identical application had already been dealt with and had been adjudicated in the High Court. Against the second refusal he appealed to this Court and this Court heard that appeal which, of course, was an ex parte appeal on the 27th July of 1987. This Court decided that notwithstanding the significant irregularity in the procedure that it should entertain and look at the matters which were submitted to it and it is, I think, relevant for the purpose of deciding this caseto quote from the judgment of this Court which was delivered on the 27th July of 1987 because it identifies the matter which was before the Court and identifies the approach of the Court to that matter. It starts:

"This application for an inquiry under Article 40 of the Constitution as to the legality of the detention of Dominick McGlinchey was dismissed by Mr. Justice Egan in the High Court on the grounds that an identical application had been dismissed on the merits by Mr. Justice Johnson in the High Court. That decision was, in my view, correct in law, and what should have been done was not to renew the identical application to Mr. Justice Egan in the High Court but to have renewed by way of appeal, and that is the description of it in law to this Court, the application brought before Mr. Justice Johnson. In such a fundamental matter as a complaint made by a person in detention that he is unlawfully detained, even such an important procedural error should not, in my view, prevent this Court enquiring into the question as to whether there are any grounds for holding an inquiry into the legality of the detention of the applicant. The Court has therefore considered the entire of the papers submitted to it containing challenges under very many headings to the legality of the detention of the applicant. The function of this Court on appeal from the dismiss of an application under Article 40 of the Constitution for an inquiry as to the legality of the detention of a detainee is toinquire into the complaints made and if any one of them should appear arguable then to remit the matter to the High Court to hold an inquiry. The Court need not and, in my view, should not, on an ex parte application, either reach a concluded view or express it as to whether a heading of complaint identified by it is arguable is in fact a valid challenge to the legality of the detention. The High Court should not in a case where an inquiry is ordered by this Court on a specific arguable issue assume from that that this Court holds any such concludedview."

4 The Court then identified as an arguable point the fact that the judge presiding over the trial of the Applicant in the Special Criminal Court had at the time of the trial retired on age as a High Court judge. The Court concluded that that raised an issue with regard to the interpretation of the relevant provisions of the Act of 1939, that is the Offences Against the State Act 1939, and it is of some importance that the Court then went on in...