Ward v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: MR JUSTICE MACMENAMIN
• Judgment Date: 31 July 2006
• Neutral Citation: [2006] IEHC 297
• Docket Number: [No. 426 SS/2006]
• Court: High Court
• Date: 31 July 2006

Ward v Governor of Portlaoise Prison

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Law Library, Dublin

00247969

BETWEEN

FRANK WARD

PLAINTIFF

-and-

THE GOVERNOR OF PORTLAOISE PRISON

DEFENDANT

[2006] IEHC 297

[No. 426 SS/2006]

THE HIGH COURT

CONSTITUTIONAL LAW

Legality of detention

Warrant - Certificate - Earlier certificate withdrawn - Whether certificate defective - Whether new certificate can be relied upon - Whether any particular form provided - Constitution of Ireland 1937, Article 40.4.2 - Detention found to be lawful (2006/426SS - MacMenamin J - 31/7/2006) [2006] IEHC 297

Ward v Governor of Portlaoise Prison

: The applicant successfully applied for relief pursuant to Article 40.4.2 of the Constitution and the decision as appealed to the Supreme Court, which was dismissed. However the Supreme Court remitted to the High Court matters relating to the return on behalf of the governor and the time since the applicant was last placed in custody. The applicant contended that he had been deprived of sight of the return and the opportunity to make meaningful observations. A newly authenticated copy of the warrant for the detention of the applicant was also challenged. The applicant had been placed in custody in 2003.

Held by MacMenamin J. that the warrant had merely been subject to technical rectification. The Governor of a prison was not required to attend in court. There had been no major departure from the rules of natural justice here.

Reporter: E.F.

CONSTITUTION ART 40

CONSTITUTION ART 40.4.2

STATE (HUGHES) v LENNON 1935 IR 128

CONSTITUTION ART 6

ZWANN, IN RE 1981 IR 395

ROGERS, STATE v GALVIN 1983 IR 249

A (A) v MEDICAL COUNCIL UNREP SUPREME 19.12.2003 2003/1/49

WOODHOUSE v CONSIGNIA 2002 2 AER 737 RCC O.4 RCC O.67 r15

R v BUTLER 1860 2 LTNS 730

STATE (DOWLING) v BRENNAN & KINGSTON 1937 IR 483

MCDONAGH (STATE) v FRAWLEY 1978 IR 131

EX TEMPORE JUDGMENT OF

MR JUSTICE MACMENAMIN

delivered on the 31st day of July 2006

1 In view of the fact that this is a matter of some importance, I think it is important now to deliver judgment. In of order to put this judgment in context it is necessary to recite something of the history of what has occurred to date. By order of the High Court on the 4th of May, Mr Justice Lavan directed that the applicant be produced before the court to certify in writing the grant of his detention. The proceedings were returned before Mr Justice Quirke and a hearing took place on the 8th of May 2006 in the nature of an inquiry under Article 40.

2 At that stage a return to the Article 40 was handed in to court consisting mainly of a certificate signed by the assistant governor of the Portlaoise Prison, Mr Pat O'Toole to which was scheduled a copy of the warrant which Mr O'Toole indicated was the basis for the applicant's detention. That warrant was a warrant at committal of her Honour, Circuit Judge Catherine Delahunt dated the 24th of April 2006.

3 Mr Justice Quirke refused the applicant's application for relief under Article 40.4.2 of the constitution and delivered a written extempore judgment setting out the basis for that determination. The applicant appealed Mr Justice Quirke's order to the Supreme Court. This appeal came on on the 21st of June 2006. As in the High Court, the applicant represented himself. The Supreme Court delivered its reserve judgment the following week on the 30th of June 2006.

4 Mr Ward's appeal was dismissed in relation to the grounds identified in the course of that judgment. However, the court remitted to the president of the High Court five grounds dealt with at paragraph 10 of the Supreme Court judgment. Those grounds relate, broadly, to two matters.

5 The first of these was the return on behalf of the Governor and, second, the issue of the time since the applicant was placed in custody. The first of these arose because the applicant contended that he had not been granted an opportunity of having sight of the return in the High Court and, therefore, had been deprived of making any submissions thereon.

6 The second was in regard to the period of time which arose since the applicant was placed in custody originally in the year 2003. It is only fair to point out that since that time a number of procedural steps have taken place and that also orders of the High Court have been made on applications which were brought by the applicant on issues which are not germane to these proceedings.

7 This matter came before the president of the High Court having been remitted from the Supreme Court. At that stage it was indicated that the respondent proposed to rely on a new certificate to which was scheduled the District Court warrant dated the 12^th of October 2004 which obviously is distinct from that of Judge Delahunt's order and what was stated to be a newly authenticated copy of Judge Delahunt's warrant from the Circuit Court.

8 It was indicated that the latter document, that is, the warrant from the Circuit Court, was the same document as before, save that it now carried the signature of the County Registrar of the Dublin Circuit Court and also the seal of the Circuit Court. The respondents contend that both warrants on their face mandate the detention of the applicant. When the matter came before the President, Mr Justice Finnegan, he stated that the time of delay alleged to have occurred since date of arrest and date of trial was a matter which more properly should be dealt with by way of judicial review rather than by Article 40 application. As it was not possible to hear the matter on that occasion, the matter was adjourned and the matter next came before me on the 19^th of July 2006 at which point the applicant represented himself.

9 It was indicated at that stage by counsel acting for the respondent that there would be no objection to the court assigning the applicant legal representation under the Attorney General scheme. That was done and Garrett Sheehan and Partners Solicitors were assigned to represent the applicant and thereafter junior and senior counsel were retained on behalf of the applicant. Those acting for the applicant in these proceedings were Ms Aileen Donnelly, senior counsel and Ms Marian Berry and those appearing on behalf of the respondent were Mr Paul O'Higgins and Mr Mícheál O'Higgins. I should mention in passing that I am particularly grateful to counsel on both sides for the submissions which have been put before the court. They have considerably expedited the work of the court and, indeed, in my view, have had the effect of reducing what very likely would have been a two or three-day case to being one which could be dealt with within the compass of one day.

10 The matter was adjourned on the 19th of July 2006 until the 26th of that month. On that occasion the applicant was represented by solicitor and counsel. It had not been entirely clear as to what were the wishes of the applicant regarding the disposition of the two matters prior to that date. However, on that date Ms Donnelly, senior counsel, on behalf of the applicant, submitted that the issues which arose in the Article 40 application were discrete ones and should be dealt with as soon as possible. The court, therefore, acceded to this application and put the matter in for hearing with agreement of the parties for today, that is, the 31st of July 2006.

11 In the interim period two further certificates have been served upon the applicant. The first of these was signed by the assistant governor of Portlaoise Prison, Mr Pat O'Toole. However, he did not endorse either his signature or his initials on the warrants attached to that certificate and, therefore, a fresh certificate had to be prepared. The final certificate is that of the Governor of Portlaoise Prison, Mr Dooley. And the latter document has, it has been said, been prepared as a precaution and will only become relevant if required.

12 The respondents contend that the certificate signed by Assistant Governor O'Toole, a sufficient answer to the plaintiff's claim for release under Article 40. It is now necessary to touch on the Supreme Court order for remittal of these proceedings. In its order of the 30th of June 2006, that court set out in its final paragraph:

"And it is ordered that the issues set out in paragraph 10 of the judgment herein relating to (i) the return on behalf of the governor and (ii) the time since the applicants was placed in custody be remitted to the High Court for a full hearing."

13 The applicant's case is that it can only be that the Supreme Court was remitting the return, which is the only issue this court must consider in the inquiry as constituted before it on the 21st of June 2006. It is submitted that it is not conceivable that the court could have remitted any other return for it is submitted there was no other return in being.

14 In essence the applicant says that the parameters of the Article 40 inquiry had already, therefore, been set in stone. The applicant had made his complaint; the respondent had made his justification and the court had given his determination. The applicant states that it cannot be argued that the Supreme Court order gave the respondent liberty to put forward a justification for the applicant's detention on a basis materially different from that relied upon before the Supreme Court. The applicant contends that if the respondent recognised the difficulties presented in seeking to rely on the certificate of the Assistant Governor of the 8th of May 2006 exhibiting, as it did, what is stated to be an invalid circuit court order, it was inappropriate to circumvent the applicant obtaining relief under Article 40 in the manner in which the respondent has attempted to do so. The court, it is submitted, must be permitted to conduct its inquiry into the grounds for detention which the State submitted to this...