The State (Dillon) v Kelly

• Jurisdiction: Ireland
• Judgment Date: 05 March 1970
• Date: 05 March 1970
• Docket Number: [1968. NO. 267 SS.]
• Court: Supreme Court

The State (Dillon) v. Kelly

THE STATE (at the Prosecution of JOSEPH DILLON)

and

EDMOND J. KELLY and THE MINISTER FOR JUSTICE

[1968. NO. 267 SS.]

Supreme Court

Criminal Law - Warrant - Second warrant - First warrant superseded by second warrant - Transfer of prisoner to second prison - Transfer order invalid being based on first warrant - Habeas corpus - Unlawful detention in second prison - Re-execution of second warrant - Warrant issued by Court of Criminal Appeal - Criminal Justice Administration Act, 1914 (4 & 5Geo. 5, c. 58), s. 17(3) - Constitution of Ireland, Article 40.

The prosecutor had been sentenced in the Central Criminal Court to serve five years penal servitude and he was imprisoned in Mountjoy Prison pursuant to a warrant of that court in execution of his sentence. The sentence was reduced to three years penal servitude by the Court of Criminal Appeal and that court issued its own warrant, directed to the Governor of Mountjoy Prison, in execution of the reduced sentence. Subsequently, the prosecutor was transferred to Portlaoise Prison pursuant to an order of the Minister for Justice made under s. 17(3) of the Criminal Justice Administration Act, 1914. The transfer order described the prosecutor as being detained in Mountjoy Prison pursuant to the warrant of the Central Criminal Court for the purpose of serving the reduced sentence. At the hearing in the High Court of habeas corpus proceedings, it was conceded by the respondents that the transfer order should recite the warrant which authorised the prosecutor's imprisonment but it was contended that the warrant of the Central Criminal Court was still effective, subject to the variation of the sentence by the Court of Criminal Appeal.

Held by Henchy J. that the transfer order was invalid as it was based on a warrant which had been superseded by the warrant of the Court of Criminal Appeal and that, therefore, the detention of the prosecutor in Portlaoise Prison was not a detention in accordance with the law.

2. That the prosecutor should be released from his detention in Portlaoise Prison in accordance with the provisions of Article 40, s. 4, sub-s. 2, of the Constitution and that, as there did not appear to be any difficulty in giving effect to the warrant of the Court of Criminal Appeal, the court would not order the re-arrest of the prosecutor and his conveyance to Mountjoy Prison to serve the residue of his sentence.

In the event the prosecutor was set at liberty by the warder from Portlaoise Prison, having custody of the prosecutor, without there being any warder or police officer present to re-arrest the prosecutor in further execution of the warrant of the Court of Criminal Appeal. On appeal by the respondents against the refusal of the High Court to order the re-arrest of the prosecutor, it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and Budd JJ.), in allowing the appeal, 1, that where the High Court orders the release of a prisoner on the ground that the place of his detention (as distinct from the fact of his detention) is not in accordance with the law, it is the duty of the court to ensure that he is re-arrested and lodged in a lawful place of detention to...