Myerscough v Governor of Arbour Hill Prison
| Jurisdiction | Ireland |
| Judge | Denham C.J.,Charleton J.,O'Malley J. |
| Judgment Date | 26 July 2017 |
| Neutral Citation | [2017] IESCDET 89 |
| Court | Supreme Court |
| Date | 26 July 2017 |
[2017] IESCDET 89
THE SUPREME COURT
DETERMINATION
Denham C.J.
Charleton J.
O'Malley J.
IN THE MATTER OF THE CONSTITUTION
This an application for leave to appeal to this Court against the decision of the Court of Appeal delivered on the 25th November, 2016, (see Myerscough v. The Governor of Arbour Hill Prison [2016] IECA 357). The Court dismissed the applicant's appeal against the dismissal in the High Court of his application for an order directing his release pursuant to Article 40.4 of the Constitution.
The background to the Article 40.4 application is as follows.
On the 29th February, 2016, the High Court (Donnelly J.) made an order for the applicant's detention and surrender to the United Kingdom on foot of a European Arrest Warrant. As required by the terms of the European Arrest Warrant Act 2003 as amended, he was informed of his right, pending his surrender, to seek his release under Article 40.4.
By virtue of s.16(11) of the Act as amended an appeal against the decision of the High Court is permitted only if the trial judge grants a certificate. Donnelly J. refused an application for a certificate on the 11th March, 2016. The applicant then sought an Article 40.4 inquiry by application made on the 21st March, 2016. The stated grounds were that s.16(11) was repugnant to the Constitution, as the applicant had been denied a right of appeal.
The Article 40.4 application was initially adjourned to the following day, the 22nd March, 2016, for the respondent and notice parties to be put on notice. Directions were then given as to the exchange of affidavits and submissions and the matter was further adjourned.
The Act sets out time limits within which surrender must take place. If the time limit is breached the matter must be brought back to the Court that made the order. Separately, it provides that a person may not be surrendered while an application for an order under Article 40.4 is in being. Because of these considerations the respondent applied on the 23rd March, 2016, (during vacation) to the duty judge of the High Court (Twomey J.) for a stay on the order of surrender and on the ancillary orders required by the Act.
The applicant's lawyers were undoubtedly given short notice of this application, and it is accepted that his counsel arrived in court after Twomey J. had risen to consider the application that had already been made by counsel for the respondent. However, according to the affidavit of a solicitor from the office of the Chief State Solicitor, counsel for the respondent (a) informed the judge that she had spoken to junior counsel for the applicant and that he was objecting, and (b) Twomey J. sat again to hear counsel when he arrived. He had then canvassed with counsel from both sides the issue of the duration of the proposed stay, and had concluded that it was not possible to ascertain the date upon which the Article 40.4 proceedings would be determined. The solicitor specifically averred that the form of the order was discussed with counsel including the applicant's counsel. Ultimately, the order as drawn up stays the orders made by Donnelly J. ‘pending further Order herein’.
The Article 40.4 inquiry was conducted by McDermott J.
McDermott J. delivered a written judgment on the 14th June, 2016, (see Myerscough v. The Governor of Arbour Hill Prison [2016] IEHC 333), in which he rejected all arguments made by the applicant. On the facts of the case, he considered that the applicant had not shown that any issue raised or argued before the trial judge gave rise to any arguable or stateable ground of appeal, much less one that would reach the statutory threshold to warrant a certificate of leave. In those circumstances he was satisfied that no injustice arose, and that he should follow the decision of McKechnie J. in O'Sullivan v. Irish Prison Service [2010] 4 I.R. 562 (where a constitutional challenge to s.16(11) was rejected).
On the issue concerning the stay, the judgment records the finding that very little notice had been given of the proposed application before Twomey J., but that both sides had been heard and that the application had been urgent in the circumstances. As a matter of law a person who made an application under Article 40.4 should not be surrendered pending determination of that application. The order made by Twomey J. was an exercise of the jurisdiction of the High Court to ensure that the applicant's position was secured and that no action could be taken on foot of the order of surrender pending the determination of the Article 40.4 application.
No appeal was taken in relation to this decision. The order of McDermott J. was perfected on the 24th June, 2016. On that date the applicant sought a fresh Article 40.4 inquiry based on the fact that no step had been taken by the Minister to lift the stay granted by Twomey J. The applicant argued that the order made by Twomey J. was in the Article 40.4 proceedings and that the stay had expired with the delivery by McDermott J. of his judgment on the 14th June, 2016. On that basis, it was argued that the statutory time limit for surrender had expired.
The certificate of the respondent produced in this second inquiry stated that the applicant was held in custody pursuant to a High Court committal warrant of the 29th February, 2016, (the order made by Donnelly J.) and the High Court orders of the 23rd March, 2016, (the order containing the stays) and the 14th June, 2016, (the order of McDermott J. as perfected on the 24th June 2016).
In an ex tempore decision on the 27th June, 2016, McDermott J. held that the applicant remained in lawful custody. The order made by Twomey J. was still extant, since no application had been made to remove it and it could not be removed by some ‘self-executing event’. As a matter of logic, the plain meaning of the words ‘pending further order herein’ and the sequence of the orders meant that the stay was in respect of the order of Donnelly J. in the EAW proceedings. It was also observed by McDermott J. that the State should exercise caution in relation to bringing an application to lift such a stay, having regard to the right of the applicant to appeal against his decision in the first Article 40.4...
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