P. (I) v The Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: O'Donnell Donal J.,McKechnie J.,Dunne J.
• Judgment Date: 30 November 2016
• Neutral Citation: [2016] IESCDET 145
• Court: Supreme Court
• Date: 30 November 2016

[2016] IESCDET 145

THE SUPREME COURT

DETERMINATION

O'Donnell Donal J.

McKechnie J.

Dunne J.

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

BETWEEN

P. (I)

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: On the 23rd November, 2016 the Court granted leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. Jurisdiction

1 This determination relates to an application by the Applicant in the proceedings for leave to appeal under Article 34.5.3° of the Constitution from a judgment of the Court of Appeal (Birmingham J., Mahon J. and Edwards J.) delivered on the 15th November, 2016 ( [2016] IECA 330). The order appealed against was made on the 15th November, 2016 and perfected on the 17th November, 2016. The application for leave to appeal was received in the Office of the Supreme Court on the 18th November, 2016. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the Thirty Third Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed against either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.

2 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issues permitted to be raised by the determination will in due course be disposed of in the substantive decision of the Court.

2. The proceedings

3 In these proceedings the Applicant sought an inquiry into the lawfulness of his detention at Cloverhill Prison. The Applicant was arrested under s. 5 of the Immigration Act 1999 on the 21st October 2016 and was brought to a ‘prescribed place’, that place being, in the instant case, Cloverhill Prison. An application for an inquiry under Article 40.4.2° of the Constitution was made in respect of the Applicant on the 24th October, 2016 and an enquiry was directed. Following a hearing before the High Court, Humphreys J. in a judgment dated 7th November, 2016 ( [2016] IEHC 611) refused to order the release of the Applicant. An appeal was brought to the Court of Appeal and the Court of Appeal likewise refused to order the release of the Applicant. It would be helpful to outline the steps taken in the proceedings. Following the initial application on behalf of the Applicant to the High Court, the Governor of Cloverhill Prison certified that the Applicant was held ‘pursuant to detention order’ dated the 21st October, 2016 and exhibited a ‘Notification of arrest and detention’. During the proceedings before the High Court, a complaint was made by the Applicant that the document relied on to detain him was not a warrant of detention as was contended to be required. An amended document was subsequently certified by the Assistant Governor of Cloverhill Prison, Ronan Maher, on the 26th October 2016, described as a ‘Warrant of Arrest and Detention’.

4 In his judgment, Humphreys J. was critical of the fact that no part of the original detention order described itself as a warrant but was entitled ‘Notification of arrest and detention’. The High Court concluded that it had an inherent jurisdiction to permit an amendment to that document and that it was appropriate to do so. Consequently, it was found that the Applicant was ‘now held’ on foot of the second warrant. Thus, the High Court concluded that a second amended certificate, in which it was stated that the Assistant Governor of the prison held the Applicant ‘pursuant to Warrant of arrest and detention’ dated the 21st October, 2016, despite having been backdated, was sufficient to detain the Applicant having concluded that the documentation was not invalidated by errors of such a fundamental nature that it could not be relied upon.

5 The matter was appealed to the Court of Appeal by Notice of Appeal dated the 8th November, 2016 and came on for hearing before that Court on the 14th November, 2016. The Court of Appeal, in its judgment of the 15th November, 2016, came to a different conclusion, namely, that the original detention order was sufficient to justify the Applicant's detention (on the basis that the document, while not describing itself as a warrant, did ‘everything that a warrant could be expected to do’ (at para. 22)). The Court of Appeal went on to indicate that if it was wrong in its view as to the validity of the document originally relied on, that it would have taken the same view as the High Court in relation to whether the respondent should be permitted to amend the documentation and that it was appropriate to so notwithstanding difficulties identified with the warrant of arrest and detention documents relying on the fact that there was no question that anyone involved in the matter could have been misled by the backdating. Thus the appeal was dismissed and the cross-appeal was allowed.

3. Stay

6 An order had been made in the Court of Appeal on the 8th November, 2016, pending the hearing of the Appeal, that the Respondent be restrained from deporting the Applicant until the 14th November, 2016, the date fixed for the hearing. Following the hearing in the Court of Appeal, an application was made to the Court of Appeal on the 22nd November, 2016 for a stay on the deportation order pending the...