A. v The Governor of Arbour Hill Prison, [2006] IEHC 169 (2006)

Docket Number:2006 694SS
Judge:Laffoy J.
 
FREE EXCERPT

THE HIGH COURT

2006 NO. 694 SS

IN THE MATTER OF ARTICLE 40, SECTION 4, SUB-SECTION (2)

OF BUNREACHT NA hÉIREANN

A.

APPLICANT

AND

THE GOVERNOR OF ARBOUR HILL PRISON

RESPONDENT

Judgment of Miss Justice Laffoy delivered on 30th May, 2006.

Sub-section 1 of Article 40, s. 4 of the Constitution provides that no citizen shall be deprived of his personal liberty save in accordance with law. Sub-section 2 mandates a judge of the High Court to whom a complaint is made that a person is being unlawfully detained to forthwith enquire into the complaint. The judge is empowered to order the production of the person detained before the court and that the person in whose custody he is detained certify in writing the grounds of detention. On production of the person, the court is mandated to - "… after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law."On 26th May, 2006, on the application of the applicant, I ordered that in accordance with sub-s. 2 of Article 40.4 the applicant be produced before the court yesterday, 29th May, 2006, and that the respondent certify in writing the grounds of his detention. The respondent complied with that order and certified that he held the applicant in custody in Arbour Hill Prison pursuant to a warrant dated 24th November, 2004, a copy of which he exhibited.

The warrant discloses that the applicant was convicted in the Circuit (Criminal) Court on 15th June, 2004 on a plea of guilty of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935 and that, subsequently, on 24th November, 2004 he was sentenced to be imprisoned for a period of three years, the sentence to date from 8th November, 2004. It is common case that the indictment on foot of which the applicant was charged was a one-count indictment.

The basis on which the applicant contends that his detention is unlawful is that on 23rd May, 2006 the Supreme Court declared that s. 1(1) of the Act of 1935 is inconsistent with the provisions of the Constitution in C.C. v. Ireland, The Attorney General and The Director of Public Prosecutions. It is of significance that in that case the Supreme Court declared s. 1(1) to be inconsistent with the Constitution in toto, rejecting an argument made on behalf of the State parties that a declaration of inconsistency should be couched in terms that s. 1(1) "cease to have force and effect to the extent that it precluded an accused from advancing a defence of reasonable mistake …" ( per Hardiman J. at p. 38).

What I have to decide on this application, having heard submissions on behalf of the applicant and the respondent yesterday, is whether I am satisfied that the applicant is being detained in Arbour Hill Prison in...

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