P. O. I. v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 20 December 2017
• Neutral Citation: [2017] IESC 78
• Docket Number: [S.C. No. 130 of 2016]
• Court: Supreme Court
• Date: 20 December 2017

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN

P.O.I.

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

[2017] IESC 78

THE SUPREME COURT

Asylum & immigration - Detention of Nigerian national - Intention to deport - Notification of arrest and detention - Immigration Act 1999 (Deportation) Regulations 2005 - Art 40.4 Constitution

Facts: The applicant was a Nigerian national detained with a view to his deportation. At the time of his arrest for detention, a document was prepared by the arresting garda detailing the exercise of his powers under the Immigration Act 1999 (Deportation) Regulations 2005. The applicant contended this document was deficient as it related to the Regulations before their amendment. The High Court had permitted the amendment of the certificate of detention and accompanying document and refused to order the release of the applicant. The Court of Appeal also dismissed his (and other applicants') appeals and the matter now came before the Supreme Court.

Held by Dunne J, that the appeal would be dismissed. A document such as the document in the present case was not required to be labelled as a "warrant" to be valid. In respect of enquiries under art 40.4 of the Constitution, amendments were permitted for certificates and warrants, but such amendments could not be made where any mistake or ambiguity was serious in nature. Finally, where deportation orders were live, it may be suitable to grant a short stay to permit applications for leave to appeal to the Supreme Court if said applications were made promptly.

Judgment of Ms. Justice Dunne delivered the 20th day of December 2017

Introduction/background

1 The appellant is a Nigerian national and is the subject of a valid deportation order. The appellant was arrested on the 21st October, 2016 for the purpose of his removal from the State and he was then detained in Cloverhill Prison. At the time of his detention, the arresting garda prepared a document headed 'Notification of arrest and detention'. This document was addressed to the Governor of Cloverhill Prison, the respondent herein. It contained the following statement:

'In exercise of the powers conferred on me by s. 5 of the Immigration Act 1999 as amended, and by the Immigration Act 1999 (Deportation) Regulations 2005 ( S.I. No. 55 of 2005) as amended on (Day) Friday the (Date) 21st October 2016 I arrested P.O.I. dob 01/01/1972 and I direct that the said P.O.I. be detained in Cloverhill Prison, a prescribed place of detention for the purpose of s. 5(3) of the Immigration Act 1999 (No. 22 of 1999) as amended.'

(My emphasis).

2 The said Notification which sets out the basis for the arrest and detention of the appellant was date-stamped the 21st October, 2016 and stated that the appellant had spent 'zero days' in detention. It also stated that the Notification had been executed by lodging the person of the appellant at 17.08 on that date at Cloverhill Prison. It was signed by the arresting Garda, Detective Sergeant Stratford. An inquiry pursuant to Article 40.4.2 of the Constitution was directed on the 24th October, 2016 in relation to the detention of the appellant. The inquiry was heard in conjunction with two other inquiries raising similar issues. The respondent duly certified in writing that the appellant was held in custody 'pursuant to detention order dated the 21st October, 2016'. The Notification as previously described was annexed.

The High Court proceedings

3 The appellant in the course of the proceedings before the High Court complained that the Notification was not and did not purport to be a ' warrant of detention' within the meaning of the Immigration Act 1999 (Deportation) Regulations 2005 ('the Regulations') (as amended in 2016) but was a document intended to comply with the notification requirements contained in the Regulations prior to their amendment. The nature of this complaint will become clearer shortly when I set out the relevant Regulations.

4 By way of response, it was argued on behalf of the respondent that the detention order did show jurisdiction on its face but the respondent was given permission, without prejudice to that contention, to amend the certified grounds of detention. The new/amended certificate of detention certified that the respondent held the appellant in custody 'pursuant to warrant of arrest dated the 21st day of October 2016'. Annexed to this certificate was a new document entitled 'Warrant of arrest and detention'. The respondent confirmed to the High Court through counsel that this new 'warrant' had been signed by the arresting officer on 25th October, 2016. However, the document itself is dated and stamped 21 October, 2016, and purports to have been signed by the arresting garda on that date. It is addressed to the respondent and also purports to have been executed by 'lodging the person of the [appellant] on Friday 21 October 2016 at 17.08pm in Cloverhill Prison'.

5 Complaint was then made by the appellant that, in circumstances where the document was dated and purportedly executed on a date when it did not exist, it was misleading to a fundamental extent and defective on its face. In any event, it was contended that the new document could not retrospectively validate the period of time that the appellant had been detained on foot of the original, defective notification and an order for the release of the appellant was therefore sought.

6 The High Court, in a judgment entitled in the name of one of the other parties making a similar application, Sharma v. Member in charge of Store Street Garda Station [2016] IEHC 611, declined to reach a conclusion on whether the error in the original certificate, namely the description of the document relied on as a notification of arrest and detention as opposed to using the phrase 'warrant' either in the heading or the body of the document, was fatal, given that the learned trial judge (Humphreys J.) was of the view that it was appropriate to permit the respondent to amend the certificate and the underlying document. He stated (at paras. 53 and 54) as follows:

'An amended certificate is generally by way of addition to the material before the court, rather than complete substitution, in the sense that the original certificate remains as part of the record of the court, and all documents can be read together to understand the sequence of events. Both are part of the material before the court, although the amended certificate is in a sense the operative document.

In the present case, I conclude that I have jurisdiction to permit the amendment, and that it is appropriate to do so, because the primary consideration in terms of the rule of law is that the documentation underlying the detention of the applicants (and other similarly situated persons) should correctly reflect the statutory scheme, which the amended certificates do to a greater extent than the original (although they do not do so perfectly, an issue to which I now turn), and there is no pressing reason of public policy not to permit the respondent to do so.'

7 Accordingly the learned trial judge declined to release the applicants before him, including the appellant herein.

8 The applicants then brought an appeal to the Court of Appeal and those appeals were heard together. Judgment was delivered by the Court of Appeal (Birmingham J., Mahon J. and Edwards J.) on the 15th November, 2016 by Birmingham J. ( [2016] IECA 330).

9 Birmingham J. noted that, in essence, the appellants in each case complained that the documents the detainers sought to rely on were not in fact and did not purport to be warrants of detention. He went on to note that the respondent made the point that there was no basis for the criticism of the original detention orders, but sought, on a without prejudice basis, to amend the certified grounds of detention. It was further noted by Birmingham J. that the judge's finding that it was necessary that a document relied on should actually describe itself as a warrant was the subject of a cross-appeal by the respondents. Having considered the judgment of the High Court and the relevant statutes and regulations, he concluded that:

'... the document originally relied on does everything that a warrant could be expected to do. It might well have been better had the document been headed 'Warrant for detention', but the fact that the document might have been and perhaps ought to have been drafted differently, does not provide a basis for condemning the document. Neither the Prison Governor or Member in Charge to whom it is addressed nor the person in respect of whom it was issued could have been left in any doubt whatever about what the impact of the document was. There is absolutely no question of anyone being mislead. In those circumstances I am of the view that the documentation originally brought into existence provided a valid basis for justifying the detention and on this aspect I would allow the cross appeal by the Prison Governor and Member in Charge.'

10 Birmingham J. went on to conclude that in the event that he was wrong in relation to his view on that issue he would have taken the view that there was jurisdiction to permit the amendments and that it was appropriate to do so. He indicated that had it been necessary to do so he would have allowed the amendments and would not have felt constrained from doing so by reason of the difficulties identified with the 'warrant of arrest and detention documents'. Accordingly, the Court of Appeal dismissed the appeals of the applicants including the appellant herein and allowed the respondent herein to succeed in his cross-appeal.

The issues before this Court

11 An application for leave to appeal to this Court was then submitted on behalf of the appellant in this case. The application for leave and notice of appeal was filed with the...