Walsh v Governor of Wheatfield Place of Dentention
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 29 September 2017 |
| Neutral Citation | [2017] IEHC 680 |
| Date | 29 September 2017 |
| Court | High Court |
| Docket Number | [2017 No. 1066 SS] [2017 No. 1079 SS] |
IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION
[2017] IEHC 680
[2017 No. 1066 SS]
[2017 No. 1079 SS]
THE HIGH COURT
Constitution – Art. 40.4.2 of the Constitution – Legality of detention – Conviction and sentence for robbery and assault – Errors in committal warrant – Certificate of amendment of court order – Refusal of Circuit Court to amend the warrant under slip rule – O. 65, r. 3 of the Circuit Court Rules – Fair procedures
Facts: The applicant filed an application under art. 40.4.2 of the Constitution challenging the validity of his detention on the basis of errors in the committal warrant, following which the High Court had ordered for amendment of the said warrants by the Circuit Court under slip rule and liberty to the applicant to apply for bail. Subsequently, the respondent produced five amended certificates. The present proceedings dealt with the applicant's art. 40 application along with the bail application. The issue arose as to the place of detention of the applicant and the form of the amended fifth certificate. The applicant argued that there was undue delay in making the said amendments and that the Court should not have accepted the fifth amended certificate as it also contained irregularity.
Mr. Justice Richard Humphreys held that the detention of the applicant in the Wheatfield Place of Detention was lawful. The Court refused the applicant's applicant under art. 40. The Court made no order on the bail motion. The Court noted that either the Governor of the prison or any appropriate person holding the management position could sign the certificate of amendment. The Court directed that it was appropriate to produce the original court orders with the initial certificate rather than in the amended certificate as it was essential to hold an inquiry under art. 40. The Court observed that the seven days' delay in making the required amendments was not an excessive delay. The Court held that minor typographical errors, though many, would not be a ground to release a convicted person. The Court, however, allowed the applicant to recover his costs for retaining the solicitor and two counsels; the senior counsel and the refresher for that senior counsel.
The applicant was convicted on 5th April, 2017 on two charges, count one being robbery and count two being assault causing harm. He was sentenced on 27th July, 2017 by Her Honour Judge Karen O'Connor to two and half years on count one and three and a half years on count two, with, in each case, 20 months suspended. The committal warrant was issued on 27th July, 2017 to the Governor of Mountjoy Prison. It contained a number of errors as it referred to a suspension of the sentence (singular) rather than the sentences (plural), and it also referred to an incorrect period of detention on count two. On 23rd August, 2017 there was a transfer request within the Irish Prison Service to move the applicant from Mountjoy to Wheatfield Place of Detention. On the 24th August, 2017 he was so transferred.
An order of Creedon J. ordering an inquiry under Article 40.4 of the Constitution was made on 22nd September, 2017. That was returnable for 11 a.m. on 25th September, 2017. Just before the return time, at 10 a.m. on 25th September, 2017 the D.P.P. applied to Her Honour Judge Melanie Greally in Dublin Circuit Court for an order to amend the warrant under the slip rule. However Judge Greally did not do so because of what seems to have been a perceived weakness in the rules of court. While O. 28 r. 11 of the Rules of the Superior Court refers to amendments by ' the court', thus allowing any one judge to correct errors in orders made by any other judge, O. 65 r. 3 of the Circuit Court Rules refers to correction of errors by ' the judge or the country registrar as appropriate'. Whether this is an absolute bar to any other judge utilising the slip rule does not need to be determined now but it may be that that the possible implied inflexibility is something the Circuit Court Rules Committee might wish to consider. The upshot was that it was felt appropriate that the application to correct the warrant under the slip rule should be made to Judge O'Connor.
At 11 a.m. the matter came before me, and in the course of the hearing on that and subsequent occasions I have heard from Mr. David Conlan Smyth S.C. (with Mr. Karl Monahan B.L.) in an able submission for the applicant and Mr. Michael L. O'Higgins S.C., Mr. James Devlin S.C. and Ms. Grainne O'Neill B.L. (all of whom addressed the court) for the respondent.
There was no certificate produced to the court at 11 o'clock and it was indicated that a further application would be made in the Circuit Court. I let the matter stand and in the meantime application was made to Judge O'Connor at around 12 o'clock to amend the warrant under the slip rule. The warrant was amended and the matter was back before me after 2 o'clock where a first certificate was produced exhibiting the original warrant and the order of amendment.
However in the course of the hearing, it emerged that there was an error in the amending order which referred to the sentence commencing in 2006 rather than 2016. I let the matter stand again and a further application was made to Judge O'Connor at around 5.30 pm. The Article 40 application resumed before me at around 7 pm when a second certificate was produced.
I received in the course of the inquiry a number of affidavits from the applicant's solicitor and I also heard oral evidence from Governor Frances Daly of the Irish Prison Service (IPS). Governor Daly was fairly robustly cross-examined on a number of occasions and in my view, having seen and heard her, she stood up well to this and was an impressive witness. There were some corrections and clarifications as between her various trips to the witness box on points of technical detail but I am of the view that she gave honest evidence and that any points and issues that needed clarification arose through simple human error and misunderstanding given the somewhat technical situation that pertains in relation to the legal position in the prison campus versus the situation on the ground.
Governor Daly is the Deputy Campus Governor of the West Dublin Prison Campus which comprises Cloverhill Prison and Wheatfield Place of Detention. She was appointed to that position by Mr. Michael Donnellan, Director General of the Irish Prison Service on 28th September, 2016. The campus governor, Governor Martin O'Neill holds the grade of Governor I and reports to the Director General. A Deputy Campus Governor such as herself is grade Governor II.
It became clear in the course of the hearing that the correct name for the institution in which the applicant was detained was Wheatfield Place of Detention, not Wheatfield Prison. Consequently it appeared that the certificate at that point was incorrect on a number of points but particularly in that it referred to Wheatfield Prison. The matter then resumed on the 28th September, 2017, at which point the Governor requested permission to recall Governor Daly and also sought to put in an amended certificate which is the third certificate. Given the nature of the proceedings as an inquiry I allowed Governor Daly to be recalled. She confirmed that the campus governor was Governor Martin O'Neill. She produced an appointment letter for him indicating he was appointed to the position of prison campus governor and that the Minister was assigning her to the West Dublin campus with governing responsibility for Cloverhill and Wheatfield Place of Detention. She confirmed that she is governor II deputy campus governor with responsibilities mirroring those of the campus governor and she says a prisoner (such as the applicant) is in the custody of the campus governor, Governor O'Neill, or in his absence herself.
She clarified that there was a separate governor for the somewhat vestigial institution of ' Wheatfield Prison', Governor Healy. Wheatfield was redesignated as a place of detention in 2013 because minors were being transferred to it under S.I. No. 511 of 2013. However a small part of the prison was not so designated, namely the Gate Lodge which remains Wheatfield Prison. The underlying rationale is that a number of outstanding warrants need to be executed and therefore it was decided to leave the Gate Lodge as the place where members of the Garda Síochána could come and execute warrants addressed to the governor of Wheatfield Prison. Such prisoners are then immediately transferred to the place of detention – no-one is actually detained in the rump institution that technically is ' Wheatfield Prison'.
Under cross-examination Governor Daly said that her letter of offer refers to an assignment to West Dublin campus but does not mention specifically the institutions in that campus. She described Governor O'Neill as the ' governing governor' (which seems to be an in-house IPS term) of Cloverhill Prison and Wheatfield Place of Detention and said that Governor Healy was assigned as the Governor of Wheatfield Prison. She said she had a delegation of functions from the campus governor in relation to Wheatfield Place of Detention and that her functions included management, day to day running of the prison, attending governor's parades, meeting staff and prisoners and dealing with disciplinary matters. On the transfer of the applicant to Wheatfield Place of Detention the warrant would have been checked by the assistant chief officer; she herself was not involved. There are no prisoners serving sentences in Wheatfield...
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...J. at pp. 5-6). 13 This power was also considered by the High Court (Humphreys J.) in Walsh v. Governor of Wheatfield Place of Detention [2017] IEHC 680 where Humphreys J. considered s. 17(2) of the 1914 Act and held that committal to one prison is committal to any provided that the Prison......
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...be had to all of the circumstances. By way of an example in a different area, in Walsh v. The Governor of Wheatfield Place of Detention [2017] IEHC 680 [2017] 9 JIC 2903 I recently held that to allow five versions of a certificate justifying detention under Article 40.4 was not an excessive......