Roche (also known as Dumbrell) v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 31 July 2014
• Neutral Citation: [2014] IESC 53
• Court: Supreme Court
• Date: 31 July 2014

In the matter of an application pursuant to Article 40.4.2° of the Constitution of Ireland

Between

Leroy Roche (also known as Dumbrell)

Applicant/Appellant

and

The Governor of Cloverhill Prison

Respondent/Respondent

[2014] IESC 53

O”Donnell J, MacMenamin J, Charleton J

Record number 2014/1120 SS Appeal number 319/2014

An Chúirt Uachtarach The Supreme Court

Bail – Conditions – Variation – Breach – Revocation – Constitutional Law – Bunreacht na hÉireann 1937 Article 40 – Bail Act 1997 s. 9.

Facts: The applicant had been arrested and charged with violent disorder in November 2013 . After intially being refused bail in the District Court, he appealed to the High Court and was granted bail subject to conditions in December 2013. This was revoked in March 2014 when it came to light that the applicant had breached the conditions. Whenever the applicant came forward for trial he again applied for bail which was granted at the end of March 2014. This too was revoked in April 2014 but he once again was able to obtain bail at the end of April. At the beginning of June the applicant applied for a variation in his bail conditions so that he could go on holiday but this was opposed by the prosecution. After he came back before the court to enter a plea of not guilty, and after a date for trial had been set, the applicant again applied to vary the conditions of bail in order to go on holiday. This variation was granted but subsequently bail was revoked whenever the applicant breached the variation by returning home early, failing to reside at a required address and by failing to surrender his passport. Consequently, the applicant brought these proceedings pursuant to article 40 of the Constitution in order to obtain release from custody.

Held by Mac Eochaidh J., that his function was not that of an appellate judge. He had to decide if the revocation of bail constituted a breach of the applicant”s constitutional rights. He acknowledged that there is a general presumption for those who have been accused to get bail and that any ambiguity in the conditions of bail should be resolved in favour of the accused.

However, he found that there was nothing in the conditions of bail, permitting the applicant to go on holiday, that could be construed as ambiguous. The conditions were varied only for the time that the applicant spent abroad so when he returned earlier than expected the bail conditions were breached.

In addition it was stipulated that when revoking bail, it was unnecessary for the judge to consider both the breach of conditions and the appropriateness of a revocation order. In addition, the applicant in this case proffered no information regarding the breach of conditions and as such it was possible to assume that the breach had not been accidental.

Finally, Mac Eochaidh J. refused to accede to the applicant”s argument that s. 9 Bail Act 1997 should be interpreted to confine the courts sanctions for breach of bail conditions to that of estreatment or forfeiture. He found that the court through the common law had been given the power of revocation which it could invoke of it”s own motion.

Mr Justice Charleton

Judgment of Mr Justice Charleton delivered on the 31st day of July 2014

1 This is an appeal against the judgment and order of MacEochaidh J, of 4 July 2014 [2014] IEHC 349, refusing the appellant an order declaring his detention in Cloverhill Prison unlawful pursuant to Article 40.4.2° of the Constitution. The appellant is accused of a criminal offence and had been granted bail on that charge. On a number of occasions, his bail had been revoked. This appeal concerns the last such revocation. Essentially, the appellant contends that in ordering that his bail be revoked on 27 June 2014, Judge Ring in the Dublin Circuit Criminal Court acted without jurisdiction, made a serious error of law and acted disproportionately. It is further argued that the order currently detaining the appellant in Cloverhill Prison does not show cause on its face.

Background

2 The appellant is charged with an offence of violent disorder contrary to section 15 of the Criminal Justice (Public Order) Act 1994 (No. 2 of 1994). There were several bail hearings in this case. The appellant was arrested and charged on 29 November 2013 in the District Court. Bail was refused and he was remanded in custody. On application on 9 December 2013 to the High Court, bail was granted on conditions by Butler J. These conditions encompassed residing at a particular address, signing on at a named Garda station during certain hours, observing a 19.00 to 07.00 hours curfew, staying out of Ballymun, having no contact with a co-accused and there were also monetary conditions. Three months later, on 3 March 2014, bail was revoked by Butler J for breach of these conditions. Because of a legislative provision allowing for the grant of bail, the appellant sought bail again in the District Court and this was granted on 28 March. In addition, the appellant was sent forward from the District Court for trial in the Dublin Circuit Criminal Court. On 11 April, the appellant came before the Circuit Court where an application was again made to revoke bail for breach of conditions. This was granted. On 28 April, he was readmitted by the Circuit Court to bail: the same conditions as Butler J had imposed were reimposed. On 19 June, application was made before Judge Ring for a relaxation of the bail conditions so that the appellant could travel on holiday to Portugal. Airline tickets were produced by him. The application was opposed by the prosecution and a hearing date was set for 23 June. On that day the appellant pleaded not guilty to the charges and a date for trial was set for 20 April 2014. Judge Ring heard the bail application and granted the temporary variation in conditions to enable the foreign holiday. The dates sought were from 24 June to 29 June. The material part of the order, after repeating the conditions outlined above that were derived from the order of Butler J, went on: ‘The court doth order that bail conditions entered into on 28/ 4/2014 be relaxed from 24/6/2014 until Sunday 29/6/2014. Accused to sign-on on 30/6/2014 and resume bail conditions. Accused to surrender passport to Kilmainham Garda Station on 29/6/2014 on his way back from [Dublin] Airport.’ The appellant went out as expected but came back early to Dublin Airport on Wednesday 25 June at 22.00 hours, apparently after a row with his girlfriend. On his return, the appellant did not return to the house where he was supposed to reside, did not go home by calling in at Kilmainham Garda Station along the way and a breach of curfew was incidental to that. In the result, a Garda officer dealing with the case applied on 26 June to the Dublin Circuit Criminal Court under section 9(4) of the Bail Act 1997 for an arrest warrant claiming breaches of the conditions attached to bail. Part of the information grounding that application claimed a very serious assault by the appellant on his girlfriend. This was alleged to have happened in Portugal. The next day, Thursday, Judge Ring heard the application to revoke bail. It is the resulting order that is in question in this appeal. The evidence in relation to the assault in Portugal was excluded by Judge Ring as hearsay. The appellant did not give any evidence at this hearing, but following on prosecution evidence, submissions were made on his behalf that the terms of the order were not breached since the conditions about residence, surrendering his passport and curfew were not operative until, under the terms of the order, the next Sunday and were as of that time ‘relaxed’; to quote the order. Judge Ring did not agree. She was satisfied of breaches in the bail conditions related to residence, surrendering his passport and curfew.

The Bail Act 1997

3 The sixteenth amendment to the Constitution introduced Article 40.4.6° providing for the refusal of bail to prevent serious crime. The text reads:

Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person.

4 The legal provision consequently made was the Bail Act 1997 (No. 16 of 1997) which has subsequently been amended, hereafter referred to as: the Act of 1997. This Act, with the aid of the Law Reform Commission website, is quoted as amended: principally by the Children Act 2001; the Courts and by the Court Officers Act 2002; the Criminal Justice Act 2007; and by the Criminal Justice Miscellaneous Provisions Act 2009. Section 2 of the Act of 1997 provides for a court with seisin of a criminal case to refuse bail in words mirroring that of Article 40.4.6°. It also provides for regard to be had to various factors, including how serious the offence charged is, how serious the apprehended sentence may be, the likely cogency of proposed evidence on the existing charge, any record of offences already committed while on bail, any prior convictions, any other offences awaiting trial and, where one of these factors applies, an additional factor of addiction to drugs can also be taken into the balance. The precise terms are not in contest here. As this indicates, however, the Act of 1997 introduced a new ground for refusal of bail whereas, up to that legislation, bail might only be refused where there was a probability that the accused would abscond instead of facing trial or would interfere with the trial processes; essentially evidence or witnesses. Counsel for the appellant argues that the Act of 1997 constitutes, in effect, a complete code for the disposal of bail matters by courts and further argues that the invocation of section 9(4) in order to bring the appellant before Judge Ring had...