McSorley v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 16 February 1996
• Neutral Citation: 1996 WJSC-HC 1753
• Docket Number: No. 254 S.S./1996
• Court: High Court
• Date: 16 February 1996

MCSORLEY v. GOVERNOR MOUNTJOY PRISON

IN THE MATTER OF AN ENQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE

CONSTITUTION OF IRELAND

BETWEEN

PATRICK ANTHONY MCSORLEY AND MARTIN MULHOLLAND

APPLICANTS

AND

THE GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

1996 WJSC-HC 1753

No. 254 S.S./1996

THE HIGH COURT

Synopsis:

CONSTITUTION

Personal rights

Liberty - Prisoner - Conviction - Imprisonmwent - Validity -Enquiry under Constitution into lawfulness of detention - Procedure - Scope - Necessity for proof of breach of fundamental requirement of the law - Summary trial of prisoner for breach of Road Traffic Act - Conviction on plea of guilty - Sentence of six months imprisonment - Defendant without legal advice - Failure of trial judge to enquire whether defendant required assistance of solicitor - Prisoner discharged from custody - Constitution of Ireland, 1937, Article 40 - (1996/254 SS - Murphy J. - 16/2/96)

|McSorley v. Governor of Mountjoy Prison|

CRIMINAL LAW

Trial

Conduct - Fairness - Plea - Guilty - Imprisonment of defendant - Defendant not legallly representated at summary trial - Failure of trial judge to enquire about defendant's requirements - Defendant discharged from custody - (1996/254 SS - Murphy J. - 16/2/96) - [1996] 2 ILRM 331

|McSorley v. Governor of Mountjoy Prison|

NATURAL JUSTICE

Fair procedures

Offence - Trial - Defendant - Representation - Absence - Summary trial in District Court - Defendant's plea of guilty - Sentence of imprisonment imposed - Failure of trial judge to enquire whether defendant required assistance of solicitor - Breach of fundamental requirement of the law - Enquiry under Article 40 of the Constitution - Defendant discharged from custody - (1996/254 SS - Murphy J. - 16/2/96) - [1996] 2 ILRM 331

|McSorley v. Governor of Mountjoy Prison|

Citations:

CONSTITUTION ART 40.4.2

ROAD TRAFFIC ACT 1961 S112

MCDONAGH, STATE V FRAWLEY 1978 IR 131

CANNON, STATE V KAVANAGH 1937 IR 428

MCGLINCHEY V GOVERNOR OF PORTLAOISE PRISON 1988 IR 699

CONSTITUTION ART 40

CONSTITUTION ART 40.4.2

HEALY, STATE V DONOGHUE 1976 IR 325

CRIMINAL JUSTICE (LEGAL AID) ACT 1962

BYRNE V MCDONNELL 1996 1 ILRM 543

SHEEHAN V REILLY 1993 2 IR 81

1 Judgment of Mr. Justice Francis D. Murphy delivered the 16th day of February, 1996

2 The above named Applicants have complained to the High Court pursuant to Article 40.4.2. of the Constitution that they are being unlawfully detained and imprisoned in Mountjoy Prison. By Order of Mr. Justice Barron made on the 9th day of February, 1996 it was ordered that the Governor of Mountjoy Prison do produce before this Court the bodies of the Applicants and certify in writing the grounds of their detention. The Applicants have been so produced and by Notice dated the 12th day of February, 1996 the Assistant Governor of the prison has certified that he holds the Applicants in custody in Mountjoy Prison pursuant to certain Orders dated the 4th day of February, 1996 which were annexed to the said Notice. Those Orders show that Patrick Anthony McSorley was convicted on the 4th February, 1996 of being in possession of a mechanically propelled vehicle without the consent of the owner thereof contrary to Section 112 of the Road Traffic Act, 1961, as amended, and that he was ordered to be imprisoned for a period of six months. Similarly, the Order in respect of Martin Mulholland shows that he was convicted of unlawfully taking possession of a mechanically propelled vehicle contrary to Section 112 of the Road Traffic Act, 1961 aforesaid, as amended, and that he too was ordered to be imprisoned for a period of six months.

3 On the face of it, these Orders made within the ostensible jurisdiction of the District Court held at Donegal justify the detention of the Applicants in Mountjoy Prison. As O'Higgins C.J. said in The State (McDonagh) -v- Frawley, 1978 I.R. 131 at 136:-

"Where a person such as the Prosecutor is detained for execution of sentence after conviction on indictment, he is prima facie detained in accordance with law and, as was held in the High Court by Maguire P. at page 435 of the report of The State (Cannon) and Kavanagh,it would require "most exceptional circumstances for this Court to grant even a conditional Order of habeas corpus to a prisoner so convicted"."

4 Whilst an Order of a Court of limited and local jurisdiction may be challenged for more or different reasons than those of a Court of full and original jurisdiction, I see no reason to doubt that the principle enunciated by the then Chief Justice would be equally applicable to every judicial decision. The justification for detaining a citizen in prison is the Order and conviction of a Court of competent jurisdiction. Just as the general requirement that bail should be granted to persons in custody follows from the fact that they have not been so convicted and sentenced.

5 The circumstances in which the Applicants were convicted of the offences aforesaid on the 4th February of this year are set out partly in the Affidavit sworn by Mr. McSorley on his own behalf and that of his fellow Applicant as well as two Affidavits in reply, one sworn by Garda Sergeant Joseph Kyle and the other by Garda John Carr, both of Donegal Garda Station. Mr. McSorley swears that he and his fellow Applicant reside in County Tyrone in Northern Ireland. Apart from stating that he is "a gentleman aged 18 years and upwards" he does not indicate his occupation or his age or that of Mr. Mulholland. It does appear, however, from the Garda Siochana custody record that Mr. Mulholland is approximately 23 years of age and Mr. McSorley a few months younger. In his Affidavit, Mr. McSorley explains that he was arrested on the 4th February, 1996 and charged with certain offences under the Road Traffic Act, 1961, as amended. Whilst he was informed of his rights to obtain legal advice, he says that he and Mr. Mulholland "informed the Garda supervising us in the Garda Station that we wish to speak to a Solicitor" but they were told that they did not deserve Solicitors and that in any event the Solicitors were off playing golf, or were ex-directory. The 4th February was a Sunday. They were brought before Judge Liam MacMenamin in the District Court and it is common case that both of the Applicants pleaded guilty to the offences as charged. According to Mr. McSorley, Sergeant Kyle entered the witness box and told the Judge of the previous convictions of the Applicants and when the Applicants were then asked how they were pleading, they pleaded guilty. That extraordinary proposition is repudiated by Sergeant Kyle who says that information with regard to previous conviction was sought only after the Applicants had pleaded guilty and at that stage the Court was informed by Sergeant Kyle that he was not aware of any previous convictions within the jurisdiction of the Court. It is difficult to understand how those two accounts can be reconciled.

6 However, Mr. McSorley goes on to say that at no time was he or Mr. Mulholland asked by the Judge if they wished to seek the services or advice of a Solicitor. He then adds that if legal advice had been available from a Solicitor, he would have sought the same prior to the trial of the matter. In addition, he maintains that he was not familiar with the legal system in the Republic of Ireland and was not in a position to defend himself.

7 The Affidavits sworn by Sergeant Kyle and Garda Carr set out the circumstances in which the Applicants were arrested and the details relating to their detention in the Garda Station. In addition, the custody records were exhibited. In substance, it is the evidence of both Gardai that Mr. Mulholland did indeed seek the services of a Solicitor but despite the best efforts of the Gardai, no...