State (McDonagh) v Frawley

• Jurisdiction: Ireland
• Judgment Date: 24 July 1978
• Date: 24 July 1978
• Docket Number: [1978 No. 72 SS.]
• Court: Supreme Court

Supreme Court

[1978 No. 72 SS.]

The State (McDonagh) v. Frawley

The State (at the Prosecution of Thomas McDonagh)

and

John Frawley

Cases mentioned in this report:—

¹ The State (C.) v. Frawley [1976] I.R. 365.

² The State (Royle) v. Kelly [1974] I.R. 259.

³ The Emergency Powers Bill, 1976 [1977] I.R. 159.

⁴ The State (Cannon) v. Kavanagh [1937] I.R. 428.

⁵ In re Beggs [1944] N.I. 121.

⁶ In re Featherstone (1953) 37 Cr. App. R. 146.

⁷ Athanassiadis v. Government of Greece [1971] A.C. 282.

Constitution - Personal rights - Liberty - Habeas corpus - Convicted prisoner - Minimum grounds for remedy - Prisoner's medical treatment - Constitution of Ireland, 1937. Article 40.

Habeas Corpus.

On the 20th December, 1976, the prosecutor pleaded guilty in the Central Criminal Court to a charge of receiving stolen goods contrary to s. 33, sub-s. 1, of the Larceny Act, 1916. On the 18th May, 1977, he was sentenced to a term of two years imprisonment from that date, and he was delivered into the custody of the governor of Mountjoy Prison, the respondent, pursuant to the warrant of the Central Criminal Court which was issued in execution of the sentence. On the 17th February, 1978, the prosecutor obtained from the High Court (D'Arcy J.) an order pursuant to Article 40, s. 4, sub-s. 2, of the Constitution of Ireland requiring the respondent to produce the prosecutor before the High Court and to certify in writing the cause of his detention. The prosecutor had based his application for that order on the ground that he was not receiving proper medical attention for a back-ache from which he said he was suffering.

The respondent showed cause by relying on the warrant of the Central Criminal Court and on an affidavit by the prison doctor. In his affidavit the doctor averred that the prosecutor was in the habit of attending the doctor's clinic in the hospital two or three times each week, that the prosecutor had been X-rayed but nothing abnormal had been revealed, that analgesics had been given to the prosecutor when he sought them, and that the prosecutor had received proper medical attention and treatment whicle he was in prison. At the hearing of the cause shown before D'Arcy J., the prosecutor did not adduce any medical evidence and D'Arcy J. on the 13th March, 1978, refused to order the release of the prosecutor under Article 40, s. 4, of the Constitution.

The prosecutor appealed to the Supreme Court from the order of the High Court.

Article 40, s.4, sub-ss. 1 and 2, of the Constitution provides:—

"1 No citizen shall be deprived of his personal liberty save in accordance with law.

2 Upon complaint being made by or on behalf of any person that he is being unlawfully detained, the High Court and any and every judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such court or judge without delay and to certify in writing as to the cause of the detention, and such Court or judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law."

In The State (C.) v. Frawley¹ [1976] I.R. 365. the applicant was a prisoner who had been convicted of an offence and sentenced to serve a term of imprisonment. His application to the High Court for an order of habeas corpus was dismissed on the grounds that the warrant in execution of his sentence was valid and that the only complaint made by him related to the manner and the conditions of his detention and that, even if established, such manner and conditions would not affect the legality of his detention. The applicant's appeal to the Supreme Court was allowed and that court made an order pursuant to Article 40, s. 4, sub-s. 2, of the...