Oladapo v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 20 May 2009
• Neutral Citation: [2009] IESC 42
• Court: Supreme Court
• Date: 20 May 2009

[2009] IESC 42

THE SUPREME COURT

Murray C.J.

Denham J.

Fennelly J.

52/09

Oladapo v Governor of Cloverhill Prison

Between

COLLINS B. OLADAPO

APPLICANT/APPELLANT

-v-

THE GOVERNOR OF CLOVERHILL Prison

RESPONDENT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

NOTICE PARTY

CONSTITUTION ART 40.4

IMMIGRATION ACT 2003 S5(2)

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 2004 S4(3)(E)

IMMIGRATION ACT 2004 S4(G)

IMMIGRATION ACT 2004 S4(1)

IMMIGRATION ACT 2004 S16

IMMIGRATION ACT 2004 S5(1)

IMMIGRATION ACT 2004 S5(3)

IMMIGRATION ACT 2004 S12

IMMIGRATION ACT 2004 S13

IMMIGRATION ACT 2004 S12(1)

IMMIGRATION ACT 2004 S12(2)

IMMIGRATION ACT 2004 S13(1)

IMMIGRATION ACT 2004 S13(2)

DPP, PEOPLE v MADDEN 1977 IR 336

DPP, O'BRIEN v O'BRIEN 2005 2 IR 206

MCDONAGH, STATE v FRAWLEY 1978 IR 131

DPP, PEOPLE v PRINGLE 2 FREWEN 67

CRIMINAL LAW

Arrest

Purpose of arrest - Initial arrest and course of detention - Whether any bona fide intention of charging applicant with offence arrested for - Whether initial arrest unlawful - Purpose of charging applicant - Ulterior purpose of arrest - Re-arrest - Whether decision to issue warrant for detention in prison tainted by unlawfulness of initial arrest - Relevant statutory provisions - Whether deliberate unlawful arrest and detention - Whether fundamental breach of due process of law - People (DPP) v Madden [1977] IR 336 applied - People (DPP) v O'Brien [2005] IESC 29, [2005] 2 IR 206; State (McDonagh) v Frawley [1978] IR 131; People (DPP) v Pringle [1981] (2 Frewen) considered - Constitution of Ireland 1937, Article 40.4 - Immigration Act 1999 (No 22), s 3 - Immigration Act 2003 (No 26), s 5(2) - Immigration Act 2004 (No 1), ss 4(1), 4(3), 5(2), 13 and 16 - Order for immediate release made (52/2009 -SC - 20/5/2009) [2009] IESC 42

Oladapo v Governor of Cloverhill Prison

section 5 of the Immigration Act 2003 provides, inter alia, that “a non-national to whom leave to land has been refused…may be arrested by…a member of the Garda Síochána and detained under warrant…until such time as he is removed from the State…”. Section 13 of the Immigration Act 2004 provides, inter alia, that “a member of the Garda Síochána may arrest without warrant a [non-national] whom he reasonably suspects to have committed an offence” of failing to “produce on demand without a satisfactory explanation of the circumstances which prevent him from so doing, a valid passport or other equivalent document…which establishes his identity and nationality” . The applicant had been arrested and detained in a garda station pursuant to section 13 of the Act of 2004. Whilst in detention thereunder he was denied permission to land pursuant to section 4 of the Immigration Act 2004 and arrested pursuant to section 5 of the Act of 2003 and further detained thereunder. A warrant was then issued for his detention in Cloverhill prison pending the making of arrangements for his removal from the State. The High Court refused his application for habeus corpus, which had been made on the basis that his initial arrest and detention under section 13 of the Act of 2004 had been unlawful, having been made for an ulterior purpose, namely his arrest and detention under section 5 of the Act of 2003 which, in turn, vitiated the lawfulness of that subsequent arrest and detention. The applicant appealed to the Supreme Court.

Held by the Supreme Court (Murray CJ; Denham and Fennelly JJ concurring) in allowing the appeal that a person could only be lawfully arrested on a criminal charge where there was a bona fide intention of charging that person with that offence. As the initial arrest and detention pursuant to section 13 of the Act of 2004 constituted a fundamental breach of due process of law, having been made for the ulterior purpose of subsequently arresting and detaining him pursuant to section 5 of the Act of 2003, the re-arrest of the applicant pursuant to section 5 of the Act of 2003, even if it would otherwise have been lawful, was dominated and brought about by the initial unlawful deprivation of liberty and was thereby unlawful. The applicant ought to have been first freed from his unlawful custody before any such step was taken.

DPP v Madden [1977] IR 336 applied

Reporter: P.C.

1 JUDGMENT of Murray C.J. delivered on the 20th day of May 2009

2 Judgment delivered by Murray CJ (nem diss) -(Reasons stated for decision of the 26 ^th March 2009 allowing the appeal)

3 This is an appeal from the order of the High Court which refused an application by the appellant, pursuant to Article 40.4 of the Constitution, for his release from Cloverhill Prison where he was detained in the custody of the respondent.

4 At a hearing before this Court on the 26 ^th day of March 2009, the appeal was allowed and an Order made directing the release of the appellant pursuant to Article 40.4 of the Constitution. It was stated that the reasons for that decision would be given later. In this judgment I set out the reasons why I considered that the appeal be allowed and the order pursuant to Article 40.4 made.

5 The appellant was detained by the respondent on foot of a detention order made by Garda Philip McGovern on the 15 ^th February 2009 pursuant to s. 5(2) of the Immigration Act 2003. The detention order was made on the grounds that the appellant had been refused permission to enter the State and he was detained pending the making of arrangements for his removal from the State.

Background Facts

6 The grounds upon which the appellant claims that his detention was unlawful are referred to later. First of all I wish to summarise the most relevant background facts.

7 The appellant is a Nigerian national. He first came to Ireland in August 2002. He resided in Dundalk, Co. Louth, with his wife and a daughter who was born in Ireland in February 2002. Since then they have had two further children born in Ireland in 2003 and 2008. Both the appellant and his wife applied for asylum on their arrival in Ireland. Both withdrew their applications for asylum and instead made separate applications for residency pursuant to the "Irish Born Child Scheme" put in place by the Minister. The appellant's wife was granted residency under that scheme (IBC 05) in March 2005. The application made by the appellant, who had returned to Nigeria for a period, was made after the deadline for the submission of such applications under the scheme and could not be considered. Since the time of his first arrival in the State the appellant has left the State on a number of occasions including returns to Nigeria as well as leaving the State to go to Northern Ireland from time to time. When in Nigeria in 2007 he wrote to the notice party confirming that he had "settled down permanently in Nigeria and [was] currently engaged in business". The most recent period which he spent in Nigeria was from Summer 2007 until November 2008. During the latter month he returned to Ireland via Northern Ireland and took up residence again with his wife and children. On February 13 ^th 2009 the appellant had made a submission to the notice party pursuant to s. 3 of the Immigration Act, 1999 as to why he should be permitted to remain in the State.

8 For present purposes it is sufficient to state that since his return to Ireland in 2008 he has been, and remains, by virtue of s. 5(2) of the Immigration Act 2004, unlawfully present in the State as a non-national without a permission given to him by or on behalf of the Minister to be in the State.

9 On the 14 ^th February 2008 the appellant left the State by crossing the border and going to Northern Ireland for the purpose of doing some shopping. Having completed his shopping he re-entered the State, driving his own car, with the intention of returning to his home in Dundalk. His car was stopped in a housing estate in Dundalk by Garda Philip McGovern to whom the appellant admitted that he had been in Northern Ireland shopping. Garda McGovern requested the appellant to produce a valid passport and visa and, with regard to his entry into the State that day, to produce a Garda National Immigration Bureau card. The applicant failed to produce either a passport or a Garda National Immigration card.

10 The garda member then arrested the appellant pursuant to s. 13 of the Immigration Act 2004 and took him to Dundalk garda station. Some time later he was denied permission to land by Garda McGovern who for the purpose of the Immigration Acts was also an immigration officer. That refusal was made pursuant to s. 4(3)(e) and (g) of the Immigration Act 2004. A "permission" to land is an authorisation to a non-national to land or be in the State and such permission may be given to the non-national in a document or placed on his or her passport or other equivalent document with an inscription authorising the person to land. (See s. 4(1) of the Immigration Act 2004).

11 Following upon the refusal to grant permission to land to the appellant Garda McGovern arrested him in the garda station pursuant to s. 5(2) of the Immigration Act 2003 as amended by s. 16 of the Immigration Act 2004.

12 The appellant was detained overnight in the garda station at Dundalk and on the following day, 15 ^th February 2009, Garda McGovern issued a warrant pursuant to the aforesaid provisions for the detention of the appellant in Cloverhill Prison pending the making of arrangements for his removal from the State. Since then he had been detained in Cloverhill Prison on foot of that warrant.

13 The appellant having applied to the High Court for an inquiry into the lawfulness of his detention pursuant to Article 40.4 of the Constitution the respondent justified the lawfulness of the appellant's detention by producing and relying on the warrant issued by Garda McGovern. In...