Mullen v Governor of the Midlands Prison


[2014] IECA 26


Kelly J., Irvine J., Hogan J.


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

Karl Mullen
The Governor of the Midlands Prison,
The Irish Prison Service,
The Minister for Justice and Equality,
Ireland and the Attorney General

380/2014 - Kelly Irvine Hogan - Court of Appeal - 16/12/2014 - 2014 38 11038 2014 IECA 26

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

Mr. Justice Kelly

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.


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.


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. inCarroll v. The Governor of Mountjoy Prison [2005] 3 I.R. 292, where he said at 303:-

‘A fundamental requirement for any authority to detain a person in custody is that the person detaining and the person detained should know precisely the duration of such detention. There should be no room for ambiguity in that regard. The proposition that a person shall know the length of the period for which he must be deprived of his liberty and that his detainer shall also know the same with certainty, seems so obvious as to require no authority for its statement.

As stated by Haugh J. inThe State (Caddle) v. Judge McCarthy and others [1957] I.R. 359 at p. 365:-

“These warrants seem to possess a twofold purpose: when a sentenced person is still at liberty they enable the Court, through the police, to apprehend (and detain by force, if necessary) such person and to have him brought to and lodged with the governor of the appropriate gaol. When that object has been achieved, the document is then left with the governor, who gives a receipt to the police officer in the settled form.

Their second function is to inform the governor of the identity of the prisoner, the offence of which he has been convicted, and the nature and duration of the sentence.”

In the same case, Kingsmill Moore J., while concurring with the judgment delivered in that case by O'Daly J., took the opportunity to say the following at p. 379 in relation to the need for precision in the warrant as to the duration of sentence:-

“It seems to me that an authority to keep a man in prison must state with precision and without possible ambiguity the duration of the imprisonment, and that such duration and any other incident of the imprisonment stated in the warrant must correspond with the sentence legally imposed. I am not...

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