Walsh v Minister for Justice and Equality

JudgeMr. Justice Richard Humphreys
Judgment Date13 June 2016
Neutral Citation[2016] IEHC 323
CourtHigh Court
Docket Number[2016 No. 638 S.S.]
Date13 June 2016





[2016] IEHC 323

Humphreys J.

[2016 No. 638 S.S.]


Constitution – Art. 40 of the Constitution – Contempt of Court – Arrest and Detention – Exclusion from courtroom – Right of audience of layperson

Facts: Following the arrest of the applicant for the contempt of Court, a third person on behalf of the applicant sought an inquiry under art. 40.4 of the Constitution in relation to the detention of the applicant. The third person claimed the right of audience before the Court on behalf of the applicant.

Mr. Justice Richard Humphreys refused the application by the third person to address the Court and ordered the release of the applicant. The Court, in line with various Supreme Court rulings on multiple occasions, noted that a layperson would not have any legal entitlement to represent himself before the Court except in exceptional circumstances. The Court observed that a layperson could apply for an inquiry of a detained person at an ex parte stage but not after the inquiry had been ordered and the detainee had appeared in the Court. The Court held that possession of the power of attorney did not entitle the layperson to have a right of audience. The Court observed that it was not appropriate to punish the contemnor by way of arrest or detention if the disciple in the Court could have been made simply by asking the contemnor to leave the courtroom or in the alternative making his exit by using appropriate force. The Court found that it appeared from the digital recordings that the impugned order was made amid a lot of disruption in the courtroom, which could have caused difficulty to the applicant to comprehend the warnings given by the learned judge to the applicant before making the impugned order. The Court held that the applicant being a layman had not intended to wilfully cause any disruption and thus, in those circumstances, his detention was not lawful.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 13th day of June, 2016

This application under Article 40.4 of the Constitution arises out of repossession proceedings before Waterford Circuit Court on 21st May, 2016 between Bank of Ireland Mortgage Bank, plaintiff and Feana Walsh, defendant, record number 2014/00438.


On that date Her Honour Judge Alice Doyle heard an application on behalf of the bank for possession of a property of Ms. Feana Walsh, a sister of the applicant.


Ms. Walsh did not in fact appear in court on that occasion, but the applicant did, and sought to address the court on her behalf. In that regard he relied on an instrument under the Powers of Attorney Act, 1996. Judge Doyle rejected his entitlement to address the court, whether by virtue of the power of attorney or otherwise, and in that regard she was absolutely right to do so. Save in exceptional circumstances, there is no provision in law for ‘lay advocacy’, for solid reasons of public policy which are discussed in case law to which I will refer later. The execution of a power of attorney does not in any way confer a right of audience before a court where none otherwise exists.


Unfortunately, the applicant declined to accept the undoubtedly correct ruling of Judge Doyle in this regard and continued to seek to address her, thereby disrupting the business of the court. He was warned by the learned judge ‘ that a continuation of your interruption of this court will result in you being found in contempt’ (p. 12 of transcript). He disregarded this warning and was then found in contempt. The learned judge then said ‘ you are to be arrested and taken out of the court’ (p. 13 of transcript).


Prior to sentence, he was advised that he might avail of legal advice and that a solicitor would be appointed under the legal aid scheme. He stated that he did not wish to have a solicitor. Furthermore he was given the opportunity to apologise to the court, which he failed to do. He was then sentenced to two weeks' imprisonment.


He was then brought back to the court and given ‘ a final opportunity’ to apologise to the court, to which he replied ‘ but I haven't done anything wrong’. The sentence therefore stood.


On 2nd June 2016, Mr. Jerry Beades applied for an order for an inquiry under Article 40.4, on behalf of the applicant. Barrett J. made that order, which was to be returnable for 3rd June, 2016.


On the latter date the matter came before Noonan J., who directed that the digital audio recording be made available, and the substantive hearing of the matter was then transferred to me that afternoon.


At the hearing, Mr. Seán Gillane S.C. (with Ms. Gráinne O'Neill B.L.) appeared for the third and fifth respondents. The applicant appeared in person. Mr. Beades attempted to address the court on his behalf, a matter I will deal with further below.

The detainer is the appropriate respondent in an Article 40 application

As I previously ruled in Knowles v. Governor of Limerick Prison [2015] IEHC 33 (Unreported, High Court, 25th January, 2016), the person detaining an applicant is the appropriate respondent to an Article 40 application. Thus I struck out the first to fourth named respondents, leaving the Governor of Cork Prison as the sole respondent to the application.

Save in exceptional circumstances, a lay person does not have a right of audience on behalf of an applicant at the hearing of an Article 40 application

As discussed in my decision in Knowles (paras. 11 to 26), the Supreme Court has laid down on multiple occasions that in the absence of exceptional circumstances (or statutory provision to the contrary), the only capacity in which a person can appear to represent another in court proceedings is that of a professional advocate: see The State (Burke) v. Lennon [1940] I.R. 136 (Sullivan C.J.); In re application of Woods [1970] I.R. 154 (Walsh J.); Battle v. Irish Art Promotions Ltd [1968] I.R. 252 (Ó Dálaigh C.J.); and In re Coffey [2013] IESC 11 (Unreported, Supreme Court, Fennelly J., 26th February, 2011) at para. 37.


This does not take away from the entitlement of a lay person to apply for an inquiry on behalf of a detained person at the ex parte stage. But once the inquiry has been ordered and the detained person is himself or herself before the court, no lay person has a right to act as an advocate for that person, save in extraordinary circumstances. To hold otherwise would be to set the scene for courtroom anarchy. It would be to allow persons who know little or nothing of law or of obligation to the court, and still less of codes of discipline or professional standards, to hold themselves out as advocates, to the destruction of the rights of the citizen. Indeed Mr. Beades' attempt at ‘advocacy’ in this case provided abundant exemplification of why such a procedure is unacceptable.


Mr. Beades appeared to be in possession of some form of power of attorney from the applicant. Such a document is irrelevant to a right of audience and could not conceivably have any effect of conferring such a right. To allow a power of attorney to confer a right of audience would simply be to drive a coach and four through the public policy rationale for requiring advocacy to be conducted on a professional basis, as discussed by the Supreme Court in In re Coffey.


Secondly, Mr. Beades claimed incorrectly that he was the applicant in the matter. Again this was a proposition which I have considered and previously rejected in Knowles. While a lay third party may apply on behalf of a detained person at the ex parte stage, that application must be made in the name of, and with the actual or presumed consent of, the detained person, who is and at all times remains the applicant. Mr. Beades is not the applicant.


Mr. Beades appeared to have quite some difficulty initially in accepting my ruling that he was not entitled to a right of audience at the substantive stage, and he went to some lengths to express the posture of rejection he adopted in that regard. It is perhaps true at one level that a certain amount of irreverence towards officeholders serves an important public policy function, as the ancient and venerable institution of the Court Jester or Fool illustrates. However, what prevents the irreverence of the Fool from descending into intolerable insolence is that it is mitigated by wit, moderation, subtlety, intelligence and at least superficial courtesy. These are qualities that did not unduly trouble Mr. Beades in this case. The approach adopted did little to assist the applicant or indeed the court.

A previous decision on a point of law adverse to an applicant does not constitute bias

In the course of his application for a right of audience, Mr. Beades asked me to recuse myself because I had previously rejected the concept of a right of audience for a ‘lay advocate’ in Knowles. This application was without merit. Merely having made a decision on a point of law adverse to the position that a particular applicant is seeking to make does not constitute bias. ‘It must be clearly understood that one adverse ruling, or even a series of adverse rulings, by a court is not, without significantly more, to be regarded as grounds for claiming either subjective or objective bias’: Tracey v. Burton [2016] IESC 16 (Unreported, Supreme Court, 25th April, 2016) per MacMenamin J. (Denham C.J. and Charleton J. concurring) at para. 45 (for some of the limitations of...

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