Patrick Joseph Mcdonagh v Governor of Mountjoy Prison

JudgeMr. Justice Gerard Hogan,Mahon J.
Judgment Date20 March 2015
Neutral Citation[2015] IECA 71
Judgment citation (vLex)[2015] 3 JIC 2001
CourtCourt of Appeal (Ireland)
Date20 March 2015

[2015] IECA 71


Peart J.

Hogan J.

Mahon J.

Appeal No. 43 Exp/No. 2014
McDonagh v Governor of Mountjoy Prison



Crime & sentencing – Prisoner – Term of imprisonment – Whether term continues to run despite High Court order for release

Facts: The applicant had been sentenced to a term of imprisonment in his absence. He obtained a High Court order for his release on the grounds the penalty handed down with the term of imprisonment was incorrect. The respondent prison now appealed that order.

Held by Mr Justice Hogan, that the appeal could be heard despite the applicant”s arguments that the proceedings were moot. The Courts had to consider whether a particular point of law was likely to reoccur notwithstanding the fact the current proceedings may be moot before refusing to hear an appeal. Farrell v. Governor of St. Patrick”s Institution [2014] IESC 30 considered.


1. The applicant in these Article 40 proceedings, Mr. McDonagh, was convicted in his absence in the District Court on 18 th December 2013 of the offence of using marked motor fuel in his motor car, contrary to s. 102 of the Finance Act 1999 (as amended). While it appears that the District Court decided to impose a fine of €3,000 and, in default of payment, a sentence of 90 days' imprisonment, it is also agreed that the warrant which actually issued from that Court did not accurately reflect these details.


2. The applicant was originally imprisoned on 11 th October 2014 following his failure to pay the fine, but was released on temporary release. It seems that he did not comply with the conditions attaching to that temporary release and he was re-committed to prison on 31 st October 2014. Following his re-committal to prison his solicitor made an application for an inquiry under Article 40.4.2 of the Constitution into the legality of the applicant's detention on the ground that the detention warrant recorded the wrong penalty and was thereby legally infirm.


3. By order of the High Court dated 14 th November 2014 (Haughton J.) the applicant was released on the ground that the detention warrant which had been sent to the applicant carried the wrong penalty (€300 instead of €3,000). Haughton J. considered that given that the default option of prison was in juxtaposition with the monetary penalty, the accuracy of the warrant was accordingly fundamental. Haughton J. accordingly directed the release of the applicant. The respondent Governor has now appealed to this Court against that decision.


4. The first question which now arises is whether these proceedings are now moot and, even if they are, whether this Court should nonetheless hear this appeal. The applicant makes the point that the 90 day sentence has now expired by effluxion of time, so that the underlying issue as to whether any defects in the warrant rendered that detention unlawful is moot. It is accordingly contended that this Court should not hear the appeal.


5. The respondent (and appellant) Governor contends that the appeal is not in fact moot. The applicant had, in fact, served but some 28 days (approximately) of the 90 day sentence as of the date of his release by order of Haughton J. It was submitted that the operation of the sentence was arrested by the making of the order of release by the High Court under Article 40.4.2. Were that order of release to be reversed on appeal, then it was said that the applicant would have to serve out the balance of the sentence (i.e., some 62 days), less any appropriate time period for remission which might have been earned by the applicant.

Whether the sentence of imprisonment has now expired by effluxion of time?

6. It would have to be said that question of whether the making of an order of release by the High Court under Article 40.4.2 has the effect of interrupting the underlying sentence of imprisonment or whether that sentence continues to operate in the absence of the prisoner is a question of no little difficulty on which there is, it might be thought, surprisingly little authority. While it is clear that, as Ó Briain J. said in The State (Woods) v. Governor of Portlaoise Prison (1973) 108 I.L.T.R. 54, 57, a sentence of penal servitude "once commenced continues to run without cessation" and that it "cannot be stopped from running by any court", this may simply reflect one of the special features of penal servitude. This principle may not necessarily apply to a sentence of imprisonment, the abolition of the distinction between penal servitude and imprisonment by virtue of s. 11 of the Criminal Law Act 1997 notwithstanding.


7. In my view, it would be undesirable to determine this novel and difficult question for the purpose of determining whether the appeal was moot unless such was strictly necessary. Since I am of the view that, for the reasons which I will proceed to set out, this Court should hear the appeal it is not necessary to express any further views on this question.

The doctrine of mootness and Article 40 proceedings

8. Article 34.4.1 of the Constitution provides in general terms for an unqualified right of appeal to this Court from decisions of the High Court, subject only to such exceptions and regulations as may be prescribed by law. Although no such exceptions and regulations have been prescribed by law such as might apply to the present case, it is nonetheless clear that this Court will not, generally speaking, entertain a moot: see Malone v. Minister for Social Protection [2014] IECA 4, per Irvine J.


9. The mootness doctrine is, however, but a rule of judicial practice which, as I put the matter in my judgment in the High Court in Salaja v. Minister for Justice [2011] IEHC 151:

"…is designed to ensure the proper and efficient administration of justice. It thus shares a close affinity with other judicially created rules of practice, such as the rules relating to locus standi, the rule of avoidance and the doctrine of...

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10 cases
  • Freeman v Governor of Wheatfield Place of Detention
    • Ireland
    • Court of Appeal (Ireland)
    • 16 November 2016 effluxion of time. 14 The issue was considered by this Court in the judgment of Hogan J. in McDonagh v. Governor of Mountjoy Prison [2015] IECA 71, when he observed as follows, under the paragraph headed ‘Whether the sentence of imprisonment has now expired by effluxion of time?’:- ‘It w......
  • O'Brien v Moriarty
    • Ireland
    • Supreme Court
    • 12 July 2016 the Court of Appeal; (e) the doctrine of mootness is ?but a rule of judicial practice? per McDonagh v. Governor of Mountjoy Prison [2015] IECA 71; (f) the decision sought to be impugned is still a ?live issue' as the relationship between the appellant and the respondent has not yet concl......
  • Freeman v Governor of Wheatfield Prison
    • Ireland
    • Court of Appeal (Ireland)
    • 15 June 2016
    ...that sentence continues to operate in the absence of the prisoner was raised in this court in McDonagh v. Governor of Mountjoy Prison [2015] IECA 71. In his judgment in that case, Hogan J. took the view that it was undesirable in that particular case to consider whether the appeal was moot ......
  • McDonagh v Governor of Mountjoy Prison
    • Ireland
    • Court of Appeal (Ireland)
    • 17 February 2016
    ...this appeal should nonetheless proceed, if only by way of exception to the mootness doctrine: see McDonagh v. Governor of Mountjoy Prison [2015] IECA 71. The background to the application 3 In order to understand the manner in which the legal issues presented by this application properly ar......
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