O'Neill v Governor of Wheatfield Prison

JurisdictionIreland
JudgeKearns P.,SUSAN DENHAM
Judgment Date12 March 2015
Neutral Citation[2015] IEHC 168
CourtHigh Court
Date12 March 2015

[2015] IEHC 168

THE HIGH COURT

[No. 348 SS/2015]
No 8118 P/2014
No 12
O'Neill v Governor of Wheatfield Prison
IN THE MATTER OF AN APPLICATION FOR AN ENQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND 1937

BETWEEN

DAMIEN O'NEILL
APPLICANT

AND

THE GOVERNOR OF WHEATFIELD PRISON
RESPONDENT
"Order 44, rule 2
ORDER OF COMMITTAL IN CASES OTHER THAN JUDGMENT DEBTORS
GMC/SIERRA LIMITED
PLAINTIFF

AND

COLIN MCGETTRICK DEREK BYRNE MARK LANGELLA STEVEN STOUT AUDREY CLANCY MARK EGAN AUSTIN DWYER LISA O'LOUGHLIN LEAVEY AND MICHAEL BATTY
DEFENDANTS

Unlawful detention – Inquiry – Ar. 40.4 of the Constitution of Ireland 1937 – O. 44 r. 2 of the Rules of the Superiors Courts – Significant omissions in committal order

Facts: The applicant was arrested following contempt of court orders and sent to prison. The applicant challenged his imprisonment on the ground that the procedure as mandated by law was not followed.

Mr. Justice Kearns P. held that the order of the committal pursuant to which the applicant was arrested and lodged in jail was invalid as it lacked the information as mandated by o. 44 r. 2. The Court directed the release of the applicant.

1

JUDGMENT of Kearns P. delivered on the 12th day of March, 2015

2

BY ORDER THE HONOURABLE SUSAN DENHAM CHIEF JUSTICE OF IRELAND THE 19TH DAY OF FEBRUARY 2015

3

This case arises out of the jailing of the applicant, a 'water rates protester', in connection with breaches of a High Court order which prevents persons having notice thereof (a category which included the applicant) from transgressing a 20 metre exclusion zone at sites where agents of GMC/Sierra were installing water meters.

4

On the 2 nd October, 2014, in proceedings entitled GMC/Sierra Ltd v. McGetttrick & Others [2014/8118P], GMC/Sierra Ltd. obtained an injunction ordering that nine named defendants and "all persons to whom knowledge of this order might come be restrained from assaulting, harassing, intimidating, endangering or otherwise unlawfully interfering with or obstructing any person working on behalf of the plaintiff and who is lawfully installing water meters in the Dublin City region".

5

By notice of motion returnable for the 21 st October, 2014, GMC/Sierra Ltd. sought the attachment and committal of ten individuals, including the applicant, for breach of the aforementioned injunction (hereinafter referred to as the "first set of attachment and committal proceedings"). These individuals were not the original defendants to the plenary proceedings. This interlocutory matter was adjourned to the 5 th November, 2014 and was subsequently adjourned on many dates thereafter. On the 16 th January, 2015, this motion was adjourned generally by GMC/Sierra Ltd.

6

On the 5 th November, 2014, Gilligan J. ordered that the defendants, the respondents to the aforementioned notice of motion, including the applicant, and all persons having knowledge of the order be restrained from approaching closer than 20 metres to the workstations where the water meters were being installed, and from obstructing the access and egress of the work vehicles of GMC/Sierra Ltd.

7

By notice of motion returnable for the 19 th November, 2014, GMC/Sierra Ltd. sought the further attachment and committal of four individuals, including the applicant, for breach of the interlocutory order of Gilligan J. of the 5 th November, 2014 (hereinafter referred to as the "second set of attachment and committal proceedings"). That matter was heard on the 24 th November, 2014 and determined by the court on the 26 th November, 2014.

8

By notice of motion returnable for the 18 th December, 2014, GMC/Sierra Ltd. sought the attachment and committal of seven individuals, including the applicant, for breach of the interlocutory order of Gilligan J. of the 5 th November, 2014 (hereinafter referred to as the "third set of attachment and committal proceedings"). This matter was adjourned to the 16 th January, 2015 for mention.

9

On the 16 th February, 2015, the applicant appeared before Court 21 in the Criminal Courts of Justice, Parkgate Street, Dublin 8 in respect of attachment and committal proceedings instituted by GMC/Sierra Ltd. for alleged breaches of an interlocutory order of Gilligan J. dated the 5 th November, 2014. GMC/Sierra Ltd. alleged that the breaches of said order occurred on the 5 th, 8 th and 9 th December, 2014. On the 19 th February, 2015, after a hearing which all parties agree was conducted with exemplary fairness by Gilligan J., the applicant was found to have breached the order of the 5 th November, 2014 on the 8 th and 9 th December, 2014.

10

The applicant and Mr. Paul Moore were sentenced to 56 days imprisonment. Ms. Bernie Hughes, Mr. Derek Byrne and Mr. Michael Batty were sentenced to 28 days imprisonment. A stay was placed on the committal order concerning Mr. Michael Batty as he was not present but had indicated, via his solicitor, that he would provide an undertaking to the court to abide by its orders.

11

Immediately thereafter, the applicant was arrested on foot of the committal order herein and lodged in Mountjoy Prison on the 19 th February, 2015. On the 20 th February, 2015, the applicant was transferred to Wheatfield Prison.

12

By order of the High Court (Haughton J.), made on the 6 th March, 2015 it was ordered that an inquiry under Article 40 of the Constitution be held into the detention of the applicant in Wheatfield Prison and that the Governor produce in this Court the body of the applicant and certify in writing the grounds of his detention.

13

It is appropriate at this stage to refer to the terms of the order of committal in this case:-

14

To the Commissioner and members of An Garda Síochána, greeting.

15

Whereas lately in the High Court it was adjudged that Damien O'Neill for default by his failure to comply with the Order of the High Court the 5 th November 2014 was guilty of contempt of the High Court and do stand committed to prison for the said contempt

16

You are hereby commanded to arrest the said Damien O'Neill and thereupon to lodge him in Mountjoy Prison there to be detained for 56 days

17

And in what manner you have executed this order make appear to the High Court immediately after the execution hereof and have you then and there this order.

18

(Signed by Registrar)

19

REGISTRAR

20

This order was issued by Eames & Co Solicitors for the Plaintiff"

PRELIMINARY POINT RE JURISDICTION OF THIS COURT
21

While no point was taken on behalf of the respondent on this issue, the Court would of its own volition wish to give expression to its reluctance to review the procedures adopted in another division of the High Court, particularly when, in the instant case, there has been universal acceptance that the trial judge dealt with this matter with great fairness and efficiency and where no appeal was brought from either the conviction or sentence. That reluctance derives from the comity which exists between courts exercising co-ordinate jurisdiction. However, that such a jurisdiction exists was made plain by the Supreme Court in FX v. Clinical Director of the Central Mental Hospital (2014) IESC 1, and is explained in passages in the judgment of Denham C.J. from paras. 52 - 70.

22

The Court draws some solace from the following passage in Costello ( The Law of Habeas Corpus in Ireland (Four Courts Press 2006) at p 237:-

"In In re AiKin (1881) 8 LR IR 50,53, Fitzgerald J. dismissed a habeas corpus challenge made to the Queen's Bench Division against an order of attachment made by the Lord Chancellor: 'The present case comes before us as a division of the High Court of Justice, and there is a comity between the several divisions of the High Court of Justice exercising co-ordinate jurisdiction which ought to lead (the court) in the present case from questioning the procedure or practice of another Division.' It is, as we have seen earlier, arguable that an analogous prohibition against the use of Article 40.4.2 to review orders of detention made by the High Court has been perpetuated under the Constitution. But even if this is so, two exceptions to the general prohibition against habeas corpus review of High Court-directed committal may be identified. Firstly, the principle appears not to apply where the ground of challenge relates, not to the actual decision of the High Court, but to the subsequent execution of that order. A complaint which is concerned with the subsequent administration of the order does not trespass on the correctness of the decision of the committing High Court judge, and is therefore outside the rationale of the rule."

23

The present case is likewise one which does not trespass on the correctness of the decision of Gilligan J. and therefore the Court is satisfied it has the appropriate jurisdiction to address the issues raised.

SUBMISSIONS
24

The various submissions on behalf of the applicant may be summarised as follows:-

25

It is submitted that the sole instrument forming the basis for the detention is lacking in material respects required by Order 44, rule 2 of the Rules of the Superior Courts. Order 44, rule 2 requires that the order of committal shall be in the Form No. 12 in Appendix F, Part II thereof and thus requires that the contemnor "shall be lodged in prison until he purge his contempt and is discharged pursuant to further order of the [High] Court." (Emphasis added). It was submitted that the order which commits the applicant to Mountjoy Prison does so for a definite period of 56 days without any reference to the option of purging contempt and thereby fails to reflect the requirements set out within Order 44, Rule 2 of the Superior Court Rules, whereby the contemnor may purge his contempt and secure his discharge by a subsequent order of the court.

26

It was argued that Gilligan...

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2 cases
  • Grant v Governor of Cloverhill Prison
    • Ireland
    • High Court
    • 27 November 2015
    ...[2014] IEHC 416 (Hogan J.), Moore v. Governor of Wheatfield Prison [2015] IEHC 147 (Kearns P.), O'Neill v. Governor of Wheatfield Prison [2015] IEHC 168 (Kearns P.), Miller v. Governor of Midlands Prison [2014] IEHC 176 (Baker J.). See also Joyce v. Governor of Dóchas Centre). (vi) The fore......
  • Knowles v Governor of Limerick Prison
    • Ireland
    • High Court
    • 25 January 2016
    ...[2014] IEHC 416 (Hogan J.), Moore v. Governor of Wheatfield Prison [2015] IEHC 147 (Kearns P.), O'Neill v. Governor of Wheatfield Prison [2015] IEHC 168 (Kearns P.), Miller v. Governor of Midlands Prison [2014] IEHC 176 (Baker J.), Joyce v. Governor of Dóchas Centre [2012] 2 I.R. 666 (Hogan......

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