Stokes v Governor of Cloverhill Prison
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 29 July 2009 |
| Neutral Citation | [2009] IEHC 376 |
| Date | 29 July 2009 |
| Court | High Court |
| Docket Number | [2009 No. 1250 SS] |
[2009] IEHC 376
THE HIGH COURT
Between:
And
OFFENCES AGAINST THE STATE ACT 1939 S30
CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S17
DCR O.16
DCR O.16 r1
CRIMINAL JUSTICE ACT 1984 S4(2)
WALSH CRIMINAL PROCEDURE 2002 PARA 4.85
CRIMINAL JUSTICE ACT 1984 S10(1)
WALSH CRIMINAL PROCEDURE 2002 PARA 4.87
DPP v COONEY 1997 3 IR 205 1998/4/846
CRIMINAL JUSTICE ACT 1984 S10(2)
WALSH CRIMINAL PROCEDURE 2002 PARA 4.93
WALSH CRIMINAL PROCEDURE 2002 PARA 4.100
WARD & CUMMINS v DPP & ORS 2007 1 IR 421 2005/58/12149 2005 IEHC 383
DPP (MCTIERNAN) v BRADLEY 2000 1 IR 420 1999/6/1506
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2
TRIMBOLE, STATE v GOVERNOR OF MOUNTJOY PRISON 1985 IR 550 1985 ILRM 465
MCDONAGH, STATE v FRAWLEY 1978 IR 131
CRIMINAL LAW
Arrest
Application for inquiry into lawfulness of detention - Arrest warrant issued in respect of same charge on foot of which applicant previously arrested, charged and released from detention - Re-arrest on foot of new warrant - Remand in custody - Whether any statutory or other lawful basis for re-arrest - No further or new information or facts which justified issue of warrant leading to re-arrest- Whether any lawful basis for detention of applicant on foot of warrant - People (DPP) v Cooney [1997] 3 IR 205, Ward v DPP [2005] IEHC 383, [2007] 1 IR 421, DPP (McTiernan) v Bradley [2000] 1 IR 420, State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550 considered; State (McDonagh) v Frawley [1978] IR 131 distinguished - Offences Against the State Act 1939 (No 13), s 30 - Criminal Justice Act 1984 (No 22), ss 4 and 10 - District Court Rules 1997 (SI 93/1997), O 16 - Release ordered (2009/1250SS - Peart J - 29/7/2009) [2009] IEHC 376
Stokes v Governor of Cloverhill Prison
Mr Justice Michael Peart delivered on the 29th day of July 2009:
The events leading to the present applicant for an inquiry into the lawfulness of the applicant's detention since he was arrested on the 24 th July 2009 at 7.40am at his home on foot of a warrant which issued from the District Court in Dundalk on the 23 rd July 2009 are not in dispute. Those events are contained in an affidavit of the applicant's solicitor, Conor MacGuill, sworn to ground this application on the 27 th July 2009. From that affidavit it is evident that the following has occurred.
On the 14 th July 2009 the applicant was arrested and detained under the provisions of s. 30 of the Offences Against the State Act, 1939 at Dundalk Garda Station, and thereafter was charged with an offence set forth on Dundalk Charge Sheet number 9253994, namely that on the 7 th July 2009 at a specified address he, with a view to gain for himself made an unwarranted demand of the sum of €70,000 from a named person with menaces, contrary to s. 17 of the Criminal Justice ( Public Order) Act, 1994, and on the following day the 15 th July 2009 was produced before the District Court at Dundalk.
On the said 15 th July 2009 evidence of arrest, charge and caution was given by the prosecuting Garda officer, and thereafter the applicant was remanded in custody (an application for bail having been refused) to appear again on Wednesday 22 nd July 2009. The District Judge granted legal aid and indicated that he was refusing jurisdiction in relation to the charge. Mr MacGuill avers that when actually pronouncing this remand in custody he stated that he was remanding the applicant "in custody to appear at a sitting of Cloverhill District Court on Wednesday the 22 nd July 2009".
However, the Committal Warrant which was signed by the learned District Judge commanded the detention of the applicant in Cloverhill Prison "to be detained by the governor thereof until the time of adjournment ......... when you shall have the said accused at the said sitting to be further dealt with according to law", having recited:
"whereas the hearing of the said charges has been adjourned to a sitting of the District Court at DUNDALK, THE COURTHOUSE, DUNDALK, CO. LOUTH ...". (my emphasis)
In accordance with the command in this Committal Warrant the applicant was duly produced in custody at Dundalk District Court on the 22 nd July 2009. According to Mr MacGuill's affidavit the case was not listed at Cloverhill District Court where he had arranged for a colleague to appear, believing that the applicant had been remanded to appear at Cloverhill District Court as orally pronounced by the District Judge on the 15 th July 2009.
He goes on to state that the case was in the list of cases listed before Dundalk District Court on the 22 nd July 2009, but that it was not called, and that neither was the judge sitting there on that day "invited to make any order", and he exhibits a copy of the court's list of cases for the 22 nd July 2009 and the applicant's case appears at No. 27 thereon.
He further states that "shortly before 1.00 p.m. it was indicated to the escorts of Mr Stokes that he should be brought to Cloverhill Court and was duly escorted". Mr MacGuill understands, as a result of enquiries which he made of the District Court Office at Cloverhill that a copy of the charge sheet was faxed to Cloverhill District Court, and that by 3.15pm that court had the faxed copy before it, but that since neither the applicant nor the prosecuting Garda were in attendance at Cloverhill District Court, the District Judge sitting at Cloverhill made no order, and neither did he make any further enquiry about the matter.
Having ascertained this, he made further enquiries of the respondent's office and learned that as of that time the applicant had not been returned to Cloverhill Prison, and further that in the absence of any order remanding the applicant back to Cloverhill Prison he could not be received back there. At this point Mr MacGuill was unaware of where the applicant was and had concerns about the lawfulness of his continued detention. He wrote to the District Court Clerk at Dundalk outlining his concerns, and copied that letter to the District Court Clerk at Cloverhill, the respondent, and the Superintendent of An Garda Siochána at Dundalk.
He received a telephone call at 5.15pm on the same day from a Garda officer at Dundalk Garda Station stating that the applicant was being held there "for the purpose of being charged" and that it was intended to bring the matter before Dundalk District Court on the following day, the 23 rd July 2009. However he received another telephone call at 8 pm on the 22 nd July 2009 advising him that the applicant had been released from custody and that he had returned home and was at liberty.
Mr MacGuill attended at Dundalk District Court on the morning of the 23 rd July 2009. He made no further enquiry about the willingness of the applicant to attend there voluntarily, and it was not intimated to him by anybody that any application was to be made.
It appears that on the 24 th July 2009 the applicant was arrested at 7.40am at his home and conveyed to Drogheda District Court. He was apparently arrested on foot of a warrant which was issued by a different District Judge sitting at Dundalk on the 23 rd July 2009 and on foot of an Information sworn before that judge on that date. At about 12.30 pm, the matter was called at Drogheda District Court and that the prosecuting Garda proceeded to give evidence to the effect that the applicant had been arrested and held on the 14 th July 2009 pursuant to the provisions of Section 4 of the Criminal Justice Act 1994 (presumably intended to read "1984) ("the 1984 Act") at Dundalk Garda Station. The applicant suggests that this is an error and that in fact he had been arrested under s. 30 of the Offences Against the State Act, 1939 ("the 1939 Act") as stated by D/Inspector Duffy in his sworn Information on foot of which the warrant was issued on the 23 rd July 2009.
Having outlined the events which I have already set forth, he stated that a mistake had been made by the Courts Service at Dundalk District Court and that the applicant ought to have been brought to the District Court at Cloverhill on the 22 nd July 2009 and not Dundalk District Court, and that by the time he had been conveyed to Cloverhill District Court by 2 pm on that date, the Court had risen, and the Court was therefore not in a position to make any order, and that after the Director of Public Prosecutions had been consulted, the applicant had been released from detention. He proceeded to describe how on the following day, the 23 rd July 2009 an application for a warrant was made to the District Court at Dundalk, and that he was arrested on foot of that new warrant on the 24 th July 2009 at 7.40 am as described, following which the applicant was remanded once more in custody to appear at Cloverhill District Court on the 30 th July 2009.
Having had an opportunity of cross-examining the prosecuting Garda, from which nothing particularly arises for inclusion in this judgment, Mr MacGuill informed the sitting Judge, when asked what order he was seeking to have made, that he was asking that no order should be made as in his submission the applicant was not in lawful custody. However, it appears that the learned District Judge stated that he would not accede to that request and he proceeded to remand the applicant in custody to appear at Cloverhill District Court on the 30 th July 2009.
It is against these facts that the present application for release is made to this Court on the basis that following the release from custody of the applicant in the...
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