Mullen v Governor of the Midlands Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 16 December 2014
• Neutral Citation: [2014] IECA 26
• Docket Number: 380/14
• Court: Court of Appeal (Ireland)
• Date: 16 December 2014

[2014] IECA 26

THE COURT OF APPEAL

Kelly J., Irvine J., Hogan J.

380/14

In the matter of an application pursuant to Article 40 of the Constitution of Ireland

Between

Karl Mullen

Applicant

And

The Governor of the Midlands Prison,

The Irish Prison Service,

The Minister for Justice and Equality,

Ireland and the Attorney General

Respondent

Prisoner – Unlawful detention – Warrants – Applicant seeking release from detention – Whether detention is unlawful

Facts: The applicant, Mr Mullen, made an inquiry under Article 40 the Constitution into the lawfulness of his detention in the Midlands Prison. On the 31st July, 2014, the High Court dismissed the application. The inquiry had been directed on the preceding day and on foot of the primary order, the first respondent, the Governor of the prison, made a return in which he relied upon six different warrants relevant to the applicant. The applicant appealed from this decision to the Court of Appeal. The question which arose for determination in the High Court and in the appeal was what was the sentence which was being served on the 11th March, 2010, referred to in Warrant B? The High Court judge took the view that the sentences being served on that date were those imposed under Warrants E, D, and C. It was from that determination that the appeal was brought. It was said by the applicant that the trial judge was wrong to conclude that the sentence imposed under Warrant C was one which was being served on the 11th March, 2010.

Held by Kelly J that, having considered Carroll v The Governor of Mountjoy Prison [2005] 3 IR 292, in order to detain somebody, it is necessary that there be a lawful authority so to do and that lawful authority should be without ambiguity. Kelly J held that whatever may have been the intention or mindset of the sentencing judge on the 11th March, 2010, the court must have regard to what is stated in the actual warrant (Warrant B) itself. Kelly J noted that in its terms, Warrant C, of the 17th December, 2009, imposed a term of imprisonment for five years which was not to commence until the lawful determination of the sentence imposed under Warrant E. It followed, therefore, in Kelly J"s view, that the term of imprisonment directed under Warrant C had not commenced on the 11th March, 2010; the sentence of the 11th March, 2010, was to run consecutive to the sentence which was currently being served and by its very terms, Warrant C, was not at that stage operational. Kelly J held that the term of imprisonment directed by it was only to commence on the lawful determination of the sentence imposed under Warrant E; on the 11th March, 2010, the sentences imposed under both Warrants E and D, were still being served by the applicant. Accordingly, in Kelly J"s view, the High Court was not justified in treating the terms of imprisonment imposed under warrants E, D and C cumulatively so as to justify the continued detention of the applicant.

Kelly J held that the trial judge was incorrect in the view which he took and the appeal must be allowed. As such, Kelly J held that there is no basis for the continued detention of the applicant and that he must be released forthwith.

Appeal allowed.

Mr. Justice Kelly

Judgment (ex tempore) delivered on the 16th day of December 2014, by Mr. Justice Kelly

1 This is an appeal from a decision of Hedigan J. which was given on the 31st July, 2014. On that occasion he concluded an inquiry under Article 40 the Constitution into the lawfulness of the detention of the applicant in the Midlands Prison and dismissed the application. The inquiry had been directed on the preceding day and on foot of the primary order, the Governor of the prison made a return in which he relied upon no fewer than six different warrants relevant to the applicant.

2 As it transpired only four of those warrants were in fact relevant to the lawfulness of the detention of the applicant at the date of the hearing in the High Court. The other two were spent.

3 Very helpfully the parties to the appeal have given each of the four relevant warrants an identity by reference to a letter of the alphabet. The relevant warrants are B,C, D and E. It is important to look at the terms of each of these warrants with a view to ascertaining whether or not the applicant"s complaint as to the lawfulness of his detention is justified. Before looking at each of the warrants in detail, it is of course axiomatic that in order to detain somebody, it is necessary that there be a lawful authority so to do. That lawful authority should be without ambiguity. In that regard, I refer to the observations of Peart J. in Carroll v. The...