The State (Whelan) v The Governor of Mountjoy Prison

JurisdictionIreland
JudgeMr. Justice Barrington
Judgment Date01 January 1983
Neutral Citation1982 WJSC-HC 2691
Docket NumberNo. 333 S.S./1981
CourtHigh Court
Date01 January 1983

1982 WJSC-HC 2691

THE HIGH COURT

No. 333 S.S./1981
STATE (WHELAN) v. GO v. MOUNTJOY
Note:-
For Counsel and authorities
cited See back page.
(STATE SIDE)
THE STATE (ROHAN WHELAN)
Prosecutor
.v.
THE GOVERNOR OF MOUNTJOY PRISON
Respondent
1

Judgment of Mr. Justice Barringtondelivered the 21st day of December 1981

2

This was an application for Habeas Corpus. I granted an initial order for an enquiry under Article 40 of the Constitution on Tuesday, 14th July, 1981. The matter came on for hearing on Friday the 17th July, 1981 when, having heard the submissions from both sides, I was satisfied that the prosecutor was being detained in accordance with law and accordingly allowed the cause shown and dismissed the prosecutor's application. I stated that I would give the reasons for my decision at a laterdate.

3

There was no dispute as to the facts of the case relevant to the submissions made on behalf of the prosecutor at the hearing.

4

The prosecutor was convicted at the Dublin Circuit Criminal Court on the 24th day of February, 1978 and was sentenced, inter alia, to five years penal servitude.

5

The prosecutor made an application for Habeas Corpus on the grounds that he had been arrested and detained pursuant to Section 2 of the Emergency Powers Act 1976but that he had not been charged, before a Court, with the offences of which he was subsequently convicted and in respect of which he was subsequently sentenced. Mr. Justice D'Arcy granted the prosecutor a preliminary order for an enquiry under Article 40 of the Constitution and the proceedings came on for hearing on the 11th day of January1979.

6

The principal authority on which the prosecutor relied was the decision of the learned President of the High Court Mr. Justice Finlay in the State (Brennan) .v. Mahon decided on the 13th February,1978.

7

When the matter came on for hearing before Mr. Justice D'Arcy on the 11th day of January, 1979 Counsel apparently informed the learned trial Judge that the decision of the learned President in the State(Brennan) .v. Mahon was being reviewed by the Supreme Court in a case then pending in that Court the State (Walsh) .v. Maguiresubsequently reported at 1979 Irish Reports page 372.

8

By consent the matter was accordingly adjourned to the nextlist to fix dates for non-jury cases and the prosecutor was admitted to bail. The prosecutor was, on the 11th January, 1979 represented by Counsel before Mr. Justice D'Arcy and Counsel agreed to the courseadopted.

9

Subsequently, on the 19th February, 1979, the Supreme Court gave its decision in the case of the State (Walsh) .v. Maguire in which it in effect overruled the decision of the learned President in the State (Brennan) .v. Manon. The implication of this decision was that the original detention of the prosecutor had been in accordance with law and the prosecutor was accordingly arrested and made to serve the balance of the sentence of five years penal servitude originally imposed on him.

10

The substantial point made, on behalf of the prosecutor, in the proceedings before me, was that the procedure before Mr. Justice D'Arcy on the 11th January, 1979 was unconstitutional; that properly the prosecutor should have been set free on that date; and that all subsequent proceedings including the subsequent arrest and detention of the prosecutor were illegal and unconstitutional.

11

The points made on behalf of the prosecutor in the hearingsbefore me were formulated as follows-

12

1. That the procedure laid down under Article 40 (4) (2) of the Constitution was not complied with in that neither the prosecutor nor the Conditional Order was discharged upon the return date on the 11th January, 1979.

13

2. That an adjournment upon a return date is not warranted under the provisions of Article 40 except in so far as the constitutionality of a law is raised as provided under Article 40 (4) (3).

14

3. That the inherent power to adjourn matters in the High Court is abrogated and superseded by Article 40 (4) of Bunreacht na hEireann

15

Under Article 40 Section 4 sub-section 2 the Constitution provides that upon complaint being made by or on behalf of any person that such person is being unlawfully detained, the High Court shall "forthwith" enquire into the said complaint and "may" order the...

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6 cases
  • Lanigan v Governor of Cloverhill Prison
    • Ireland
    • High Court
    • 23 Enero 2017
    ...in mind the overall requirement for urgency. As explained by Barrington J. in The State (Whelan) v. Governor of Mountjoy Prison [1983] I.L.R.M. 52: ' It appears to me also that, on an application for habeas corpus the duty of the High Court is forthwith to enquire into the legality of the ......
  • O'Farrell v Governor of Portlaoise Prison
    • Ireland
    • Supreme Court
    • 12 Julio 2016
    ...of law and fact raised in the proceedings, and to achieve the interests of justice (see The State (Whelan) v. Governor of Mountjoy Prison [1983] ILRM 52 at p.55, Barrington J.). Background Facts 13 For present purposes, a full narrative of the facts must now go back some fourteen years, to ......
  • Walsh v Governor of Wheatfield Place of Dentention
    • Ireland
    • High Court
    • 29 Septiembre 2017
    ...v. Cloverhill Prison [2015] IEHC 768 at para. 14: ' The appropriate approach has been set out by Barrington J. in The State (Whelan) v. Governor of Mountjoy Prison [1983] I.L.R.M. 52:' It appears to me also that, on an application for habeas corpus the duty of the High Court is forthwith t......
  • Grant v Governor of Cloverhill Prison
    • Ireland
    • High Court
    • 27 Noviembre 2015
    ...case in such a manner. The appropriate approach has been set out by Barrington J. in The State (Whelan) v. Governor of Mountjoy Prison [1983] I.L.R.M. 52: ‘ It appears to me also that, on an application for habeas corpus the duty of the High Court is forthwith to enquire into the legality o......
  • Request a trial to view additional results

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