Sharma v Member in charge of Store Street Garda Station
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 07 November 2016 |
| Neutral Citation | [2016] IEHC 611 |
| Date | 07 November 2016 |
| Court | High Court |
| Docket Number | [No. 2016/1153 SS] [No. 2016/1163 SS] [No. 2016 1155 SS] |
[2016] IEHC 611
[No. 2016/1153 SS]
[No. 2016/1163 SS]
[No. 2016 1155 SS]
THE HIGH COURT
Constitution – Art. 40 of the Constitution – S. 5 of the Immigration Act 1999 – Errors in original certificate of detention – Release of the detainee – Principle of proportionality – Amendment of certificate.
Facts: The applicants in each case challenged their detention and filed separate applications for release under art. 40 of the Constitution. The applicants contended that the documents, under which the applicants were detained, were in contravention of the compliance of the Immigration Act 1999. The key issue that arose for the consideration of the Court in each was as to whether the original certificates of detention contained errors. Further issues that arose for the Court's consideration were whether the erroneous certificates could be subjected to amendments and whether such amended certificates justify the detention of the applicants. Another issue that arose for determination was whether the original certificates, if found to contained errors, could be supplemented by the amended certificates.
Mr. Justice Richard Humphreys refused the application for release under art. 40 of the Constitution in each case. The Court found that it had jurisdiction to permit the respondent to amendment of the certificates and granted an order to that effect. The Court ordered that the respondent had the liberty to file and rely on an amended certificate. The Court found that in each case, the original certificates filed under art. 40 of the Constitution were the notification of arrest and detention rather than the warrant of arrest and detention, and thus, those were erroneous. The Court held that the errors were minor in the overall context and did not permit release as per the principle of release being proportionate to the range of errors identified. The Court found that the respondent in each case had the liberty to file an amended certificate primarily because the detention of the applicants should correctly reflect the statutory scheme, which the amended certificates did largely than the original.
In his recent judgment in O'Farrell v. Governor of Portlaoise Prison [2016] IESC 37 (unreported, Supreme Court, 12th July 2016), McKechnie J. referred at para. 101 to 'the rather ill-defined power to retroactively validate a defective warrant in habeas corpus proceedings'. The present application now throws up the question of whether, when and on what basis the court can properly permit rectification of such defective grounding material in the course of an Article 40 application.
Each of the applicants for release under Article 40.4 of the Constitution has been arrested under s. 5 of the Immigration Act 1999. In accordance with that section, they have been taken to a 'prescribed place', being either a prison or a Garda station. Each applicant complains that the document under which he is detained is not in compliance with the Act.
It has been clear since the decision in R. v. Davison (1699) 1 Ld. Raym. 603 that bail may be granted in habeas corpus proceedings, with the prisoner being required to return to custody if the application fails and fully discharged if it succeeds. In accordance with this approach, I made an order permitting Mr. Sharma to be released on bail in the Article 40 proceedings, but I declined to grant bail to the other two applicants having regard to my conclusion having heard evidence in each case that there was a likelihood that they would not attend if released on bail and that that likelihood could not be attenuated by any conditions that I could impose.
In its original form, s. 5 of the Immigration Act 1999 provided that the arresting officer could detain the arrestee in a prescribed place, which was suggestive of what Ms. Rosario Boyle S.C. (with Mr. Anthony Lowry B.L., who also addressed the court) in a very able argument for the applicant called a 'personal obligation' on the arresting officer, namely to directly cause the detainee to be placed in the prescribed place.
That approach is somewhat reflected in the Immigration Act 1999 (Deportation) Regulations 2005, Reg. 7 of which provides that where the immigration officer or member ' proposes to detain the person in a prescribed place', he or she must ' inform' the member in charge or governor of the arrest and 'direct' that the person be detained.
As against that, Edwards J. in Darchiashvili v. Governor of Mountjoy Womens Prison [2011] IEHC 264 (unreported, High Court, Edwards J., 23rd June 2011) held that the scheme of the Act did allow for a certain degree of transfer of delegation of the power to detain.
However the permissibility of such transfer was more expressly reflected in the revised s. 5 (1) of the 1999 Act, as amended by the International Protection Act 2015 s. 78, which provides that ' a person so arrested may be ...detained in the [prescribed] place'. By the use of the passive voice, it is made express that the detention is not necessarily by the arresting officer.
This is reflected in an amendment to reg. 7 of the 2005 Regulations effected by the Immigration Act 1999 (Deportation) Amendment Regulations 2016, effective from 10th March 2016. The new reg. 7 provides that a person arrested under s. 5 may ' be taken by an immigration officer or member of the Garda Síochána to a prescribed place' and may 'be detained ...in the prescribed place under warrant of the immigration officer or member of the Garda Síochána who arrested him or her'.
Thus the amended regulations provide for a warrant of the arresting officer, rather than, as previously under the original 2005 regulations, a notification and direction. Within the system, this has been informally called a 'detention order' although Edwards J. in Darchiashvili referred to it as a ' so called"detention order"', illustrating that this phrase is not to be found in statutory language. In my view the phrase 'detention order' is unhelpful and confusing. What is at issue, and what is required for a lawful detention under these provisions, is a warrant.
It is agreed by Ms. Boyle and Mr. Anthony Moore B.L. for the respondents that the following issues arise:
(i.) Whether the original certificates of detention contain errors
(ii.) If so, whether the errors are sufficiently minor as not to warrant release
(iii.) Alternatively whether the certificates can be supplemented by amended certificates and
(iv.) If so whether the amended certificates justify the detentions.
In each case the certificates originally filed under Article 40.4 set forth documents which purport to be in each case a 'notification' of arrest and detention. Mr. Moore has applied for liberty to file amended certificates which refer to a 'warrant' of arrest and detention, without prejudice to his submission that the original certificates are not erroneous.
But they are erroneous. To validly justify detention under the legislation, a warrant of the arresting officer must be produced, not a document purporting to be a notification. This issue cannot be dismissed as a mere heading.
The heading to a document is often an integral part of it. Without knowledge of extrinsic facts, the heading may be all that distinguishes a draft document from a final document, for example a Bill from an Act. Furthermore, the heading may be all that distinguishes an original document from a copy of the document or a notification or exemplification of that original.
If one turns to statutory examples of the form of a warrant, it is notable that every form of warrant scheduled to the Indictable Offences Act 1848 is headed ' warrant' of one kind or another, and includes as an operative expression language such as that ' these are therefore to command you the said constable... to take and safely convey the said A.B. to the said [house of correction] at ..., in the said [county], and there to deliver him to the keeper thereof, together with this precept, and I hereby command you the said keeper to receive the said A.B. into your custody and the said house of correction, and him there safely to keep until he shall be thence delivered by due course of law' (Schedule (H)). Similar language occurs mutatis mutandis for other types of warrant.
Similarly in the District Court Rules 1997, warrants are generally headed as such, e.g. form no. 34.12 ' search warrant'; form 19.1 ' committal warrant', and so on.
Even the ' European Arrest Warrant' set out in the annex to Council Framework Decision of 13th June, 2002, 2002/584/JHA, is headed as such.
The only personal-liberty related warrant that came immediately to hand that did not use 'warrant' in its title is in the case of administrative detention under the Offences against the State (Amendment) Act 1940. The schedule to that Act sets out the form of a warrant for such detention, and while the heading to the warrant does not include the word 'warrant' (it is headed ' Offences against the State (Amendment) Act 1940 s. 4') the wording of the warrant uses that term in that it provides ' I...Minister for ...do by this warrant order the arrest and detention of the said ...under the said s. 4'.
By contrast, in non-liberty related matters, there is less consistency in headings. The heading ' general warrant' is used in relation to collection rates in form 47 attached to the Public Bodies Order 1925 (S.R. & O. No. 46 of 1925). Similarly the heading ' warrant of the land...
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...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 no......
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