Patrick Brennan and Others v The Governor of Portlaoise Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Neill |
| Judgment Date | 09 November 2007 |
| Neutral Citation | [2007] IEHC 384 |
| Court | High Court |
| Docket Number | [No. 1588/1587/1586/1584/1585 SS/2007] |
| Date | 09 November 2007 |
[2007] IEHC 384
THE HIGH COURT
BETWEEN
AND
CONSTITUTION ART 40
O'BRIEN v SPECIAL CRIMINAL COURT & DPP 2008 4 IR 514 2008 1 ILRM 510 2007/45/9603 2007 IESC 45
OFFENCES AGAINST THE STATE ACT 1939 S30
CRIMINAL JUSTICE ACT 1997 S4
OFFENCES AGAINST THE STATE ACT 1939 S30A(3)
DPP v KEHOE 1986 ILRM 690
COURTS OF JUSTICE ACT 1924 S29
SHEEHAN v REILLY 1993 2 IR 81
CONSTITUTION ART 40.4
MCSORLEY v GOVERNOR OF MOUNTJOY PRISON 1996 2 ILRM 331
MCDONAGH, STATE v FRAWLEY 1978 IR 131
STATE, ROYLE v KELLY 1974 IR 259
GORMAN v JUDGE MARTIN & ORS UNREP SUPREME 29.7.2005 2005/28/5734 2005 IESC 56
A v GOVERNOR OF ARBOUR HILL PRISON UNREP SUPREME 10.7.2006 2006/1/19 2006 IESC 45
DPP v GILLIGAN UNREP CCA 8.8.2003 2003/16/3514
COURTS
Jurisdiction
Special Criminal Court - No objection made on first appearance before court - Whether necessary to challenge jurisdiction at first available opportunity - Whether detainee entitled to challenge legality of detention after appeal process exhausted - McSorley v Governor of Mountjoy Prison [1997] 2 IR 258 distinguished; State (Byrne) v Frawley [1978] IR 326, People (DPP) v Kehoe [1985] 1 IR 444 and Sheehan v Reilly [1993] 2 IR 81 followed - Constitution of Ireland 1937, Article 40.4 - Relief refused (2007/1584SS, 1585SS, 1586SS, 1587SS & 1588SS - O'Neill J - 9/11/2007) [2007] IEHC 384
Brennan v Governor of Portlaoise Prison
JUDGMENT of Mr. Justice O'Neilldelivered on the 9th day of November, 2007
In this case I directed an inquiry under Article 40 of the Constitution into the legality of the detention of all five Applicants, I also joined the Director of Public Prosecutions to the proceedings for the purposes of that inquiry.
The returns to the proceedings or the certificates which have been furnished by Respondents certify that all five Applicants are detained pursuant to warrants from the Special Criminal Court requiring the Respondents to detain the Applicants for the duration of the sentences imposed upon each of them, that is to say four years from the 21st February, 2005 with the last two months suspended. The same sentence was imposed in respect of all five Applicants.
Notwithstanding the ostensible legitimacy of those warrants and, I suppose, the ostensible legitimacy of the detention on foot of them the Applicants maintain this challenge to the legality of their detention because of the Judgment of the Supreme Court given in the case of O'Brien v. The Special Criminal Court and The DPP, in which judgments were delivered on the 24th October of this year and in which the Supreme Court held that the Special Criminal Court had no jurisdiction to try Mr. O'Brien. All five Applicants in this application contend that the circumstances of their arrest and detention under Section 30 of the Offences Against the State Act and their re-arrest under Section 4 of the 1997 Criminal Justice Act were identical to Mr. O'Brien's circumstances and they contend that following upon the judgments of the Supreme Court in the O'Brien case the detention of all of the Applicants is nowunlawful.
The facts of this matter may be briefly summarised. All five Applicants were arrested in 2002 and they were brought before the Special Criminal Court in 2002 and they were remanded a number of times, it is not clear how many, until December 2004. At the point at which they were about to be arraigned all five Applicants challenged the jurisdiction of the Court to try them.
In the meantime Mr. O'Brien was arrested at a later time, he was arrested in 2004 and charged before the Special Court, but when he was charged he raised this point of jurisdiction and the Special Criminal Court fixed the trial of that issue for 13th December, 2004.
The Applicant's trial was due to commence on 9th December, 2004 and, when they were arraigned they too raised this jurisdiction point. With the agreement of the Court, the preliminary point, as it may be described, as to jurisdiction, both in respect of these five Applicants and Mr. O'Brien, was tried by the Special Criminal Court on 13th December, 2004 and the Court gave its judgment on that preliminary issue on the 14th December, 2004 and it rejected the submissions which had been made by all six, I suppose, Applicants at that stage.
Essentially, the case that was being made is that the arrest which was made under section 4 of the Criminal Law Act 1997was unlawful, that the only possible form of arrest that was contemplated under the Offences Against the State Acts 1939- 1998for the purposes of bringing somebody lawfully before the Special Criminal Court was an arrest under the statutory scheme of The Offences Against the State Acts and hence the ordinary or general power of arrest as contained in section 4 of the Act of 1997 wasn't available and on that ground the arrest and subsequent bringing of these Applicants before the Special Court was illegal.
It was furthermore contended that even if that wasn't correct that Section 30(a)(3) of The Offences Against the State Act 1939, as introduced by the 1998 Act, required that upon arrest or re-arrest after a detention under Section 30 they had to be brought forthwith before the Court and charged, or forthwith charged and that was notdone.
As to these two points, in the course of the hearing before the Special Criminal Court the State relied upon The DPP v. Kehoe [1986]ILRM. 69 to say that insofar as these five Applicants were concerned, as they had not raised the point on their first appearance before the Court the point was now spent and they couldn't rely upon it. The Special Criminal Court did not deal with that point but rejected the submissions made on the other two points.
Following upon that the trial of the Applicants proceeded before the Special Court for 25 days and in due course they were convicted on 21st February, 2005 and each of them sentenced to four yearsimprisonment.
In the meantime, Mr. O'Brien had taken judicial review proceedings, which came on for hearing before the High Court, before Mr. Justice MacMenamin, who rejected his case. He appealed to the Supreme Court and the Supreme Court on the 24th October of this year allowed his appeal and declared that the Special Court did not have jurisdiction to try Mr.O'Brien.
I should say, to complete the history, that after their conviction by the Special Criminal Court these Applicants appealed to the Court of Criminal Appeal and I am satisfied that as part of their appeal they did rely upon the jurisdictional point and, again, the question of whether their right to do so was spent did arise but was not decided by the Court of Criminal Appeal. But it is quite clear from Judgment of the Court of Criminal Appeal that their contention in relation to the legality of their re-arrest was rejected in that Court.
Now, the issues which arise on this application are essentially two. First of all, there is a jurisdictional issue. For the State, Mr. Collins contends that these proceedings are misconceived, that the complaint that the Applicants make in relation to their detention are not the proper subject matter of an Article 40 inquiry, that other avenues of procedure ought to be availed of, such as judicial review or, indeed, a return to the Court of Criminal Appeal to seek a Section 29 certificate in order to bring an appeal to the Supreme Court. Needless to say, these contentions by the State, the DPP, are vehemently resisted by all five Applicants, who assert that, relying upon the line of authority stemming from the case of Sheehan v. DPP, District JusticeO'Reilly [1993] 2.IR 81 that they are entitled to make this application in the manner in which they have so done.
The issue, therefore, which arises is: What is the appropriate choice of procedure in circumstances such as have arisen here, where, as it were, late in the day there is a judgment of the Supreme Court, to the effect that the Special Court did not have jurisdiction to try Mr.O'Brien?
Having read the affidavits, I am satisfied that insofar as the jurisdiction of the Special Court is concerned there is no difference between the circumstances of Mr. O'Brien's case and of these five Applicants and in all material respects their circumstances were identical and I don't think there is really any dispute aboutthat.
In general, whether or not one should proceed by Article 40 inquiry in these circumstances is a topic which has been, I suppose, subject to considerable academic and indeed forensic debate over a number of years. But it would seem to me that there are a number of things that need to be stressed and the reason they need to be stressed is because of nature of the Article 40.4 relief and, indeed, of the right which is sought to be protected, namely the right to liberty. There is no doubt in my mind that where the question of the legality of someone's detention arises and where on an ex parte application sufficient material is put before this Court to cause this Court to have a concern as to the legality of the detention there must thereafter proceed an urgent inquiry to establish that the detention is either legal or not legal. I have no doubt, and indeed some stress has been given to this in the authorities, in particular in the Sheehan case, that this is an inquiry that requires urgency first of all. The procedure which is envisaged by Article 40 has been described as an informal one, that is to say no particular procedure has been laid down, and it is a matter for the Court to adapt such procedure, on an inquisitorial basis it would...
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