Ward v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 30 June 2006
• Neutral Citation: [2006] IESC 39
• Docket Number: [S.C. No: 212 of 2006]
• Court: Supreme Court
• Date: 30 June 2006

WARD v GOVERNOR OF PORTLAOISE PRISON

In the matter of Article 40.4.2 of the Constitution

Between

Frank Ward

Applicant/Appellant

and

The Governor of Portlaoise Prison

Respondent

[2006] IESC 39

[S.C. No: 212 of 2006]

THE SUPREME COURT

CONSTITUTIONAL LAW:

Personal rights

Liberty - Detention - Habeas corpus - Whether detention lawful - Whether committal warrant was spent - Whether ambiguity on face of warrant rendered detention unlawful - Whether failure to be tried within a reasonable time breach of articles 6 and 13 of European Convention on Human Rights - Whether failure of governor to appear before court, to prove certificate in open court, to sign certificate or to provide applicant with copy of certificate and whether failure to seal warrant or of judge to sign warrant rendered detention unlawful - Appeal dismissed in part - Issues pertaining to Governor's certificate and to time of trial remitted for determination of High Court(212/2006 - SC - 30/6/2006) [2006] IESC 39 Ward v Governor of Portlaoise Prison

CONSTITUTION ART 40.4.2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

CCR O.4

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

WARD & CUMMINS v DPP UNREP DUNNE 15.6.2005 2005/58/12149

Denham J.

1 Frank Ward, the applicant/appellant, and hereinafter referred to as the applicant, brings this appeal against the decision of the High Court given on the 8th May, 2006 on his application for an inquiry into his detention pursuant to Article 40.4.2 of the Constitution.

2 The applicant is awaiting trial in the Dublin Circuit (Criminal) Court on charges of robbery, causing serious harm to a named person, and firearms possession.

3 On 4th May, 2006 the High Court (Lavan J.) made an order pursuant to Article 40.4.2 of the Constitution that the respondent do produce before the High Court at 10.30 a.m. on 8th May, 2006 the body of the applicant and do certify in writing the grounds of his detention.

4 The applicant appeared before the High Court on 8th May, 2006. On behalf of the respondent it was certified that the grounds for the detention of the applicant was an order of the Circuit Court (Delahunt J.) dated 24th April, 2006.

5 There is a note of the judgment of the High Court which was delivered on the 8th May, 2006. I shall return to this determination at a later stage.

6 The applicant filed a notice of appeal setting out the following grounds:

7 (i) That the High Court erred in all legal respects in not granting him the relief sought.

8 (ii) That the High Court erred in law and fact in not conducting a proper constitutional enquiry in accordance with Article 40.4.2 of the Constitution of Ireland 1937.

9 (iii) That no warrant authorising his detention, nor other written certification of his detention, was proven in open court by the respondent John Dooley the Governor of Portlaoise Prison, nor by anyone from this prison in person in open court in his presence.

10 (iv) That the respondent John Dooley the Governor of Portlaoise Prison, did not appeal in court on the 8th May, 2006 to personally justify his continued detention, contrary to the finding of fact by the High Court.

11 7. On this appeal the applicant appeared in person as a lay litigant. The respondent was represented by counsel.

12 8. At the hearing of this appeal the applicant presented his case on seven grounds. I shall follow the same sequence, and refer back also to the four grounds of appeal filed in the notice of appeal, which broadly cover the same grounds.

13 The seven grounds advanced were:

14 (i) The Governor did not appear personally in the High Court, and that this was a breach of the order of Lavan J., in that the Governor had not certified the grounds on which he detained the applicant, and that if the Governor was not signing the certificate then whomever did so would need a power of attorney.

15 (ii) That the applicant was not afforded a fair hearing as he was not given time to argue his third ground, which was,inter alia, that there was a breach of the European Convention on Human Rights Act, 2003 as he had not been tried within a reasonable time of his original charging. The applicant also submitted that the trial judge had cross examined him on his application but that at no time did counsel for the State challenge his grounds of complaint.

16 (iii) That the enquiry was not conducted in accordance with Article 40.4.2 but in anad hoc fashion and that the conditions required of such an enquiry were not met. Specifically the applicant submitted that the conditions were not met in that the certificate and warrant were not proved in open court and that he was not given or shown the certificate or warrant. He stated, again, that the Certificate should have been signed by the Governor himself. The applicant referred to Order 4 of the Rules of the Circuit Court, 2001 and submitted that on the face of the warrant it was in breach of this order, that there was no embossing seal. He also queried the signature and submitted that the warrant should have been signed by the judge.

17 (iv) The applicant submitted that there should be strict conformity with the requirements of Article 40.4.2 of the Constitution. Thus, the Certificate should have been signed by the Governor himself as he is required to justify his detention.

18 (v) That the learned trial judge has erred in law in holding that the committal warrant was spent on 12th October, 2004.

19 (vi) That the learned trial judge erred in determining that there was an ambiguity on the face of the return for trial, that it was in fact non-compliance with the law. That he had been held on a defective warrant prior to being brought to Cloverhill District Court and that therefore the court order was unlawful.

20 (vii) The applicant submitted that he had not been given a trial within a reasonable time as he has been in custody continuously since 6th October, 2003. He submitted that this was a breach of Article 6 of the European Convention on Human Rights. Further that it was also a breach of Article 13 of the European Convention on Human Rights, as he has been denied an effective remedy to date by the courts. The applicant referred toWard v. The Governor of Portlaoise Prison, Record No: 2004 No. 1252 SS and said he had not received a decision on the matter. The applicant also submitted that he had not been granted bail and that this was a breach of the European Convention also.

21 9. According to the note of the judgment, the High Court addressed two...