The State (Whelan) v The Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-HC 2691
• Docket Number: No. 333 S.S./1981
• Court: High Court
• Date: 01 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...