White v Governor of Mountjoy Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 06 November 2017 |
| Neutral Citation | [2017] IEHC 551 |
| Docket Number | [2017 No. 882 S.S.] |
| Court | High Court |
| Date | 06 November 2017 |
[2017] IEHC 551
THE HIGH COURT
Noonan J.
[2017 No. 882 S.S.]
IN THE MATTER OF AN INQUIRY PURSUANT TO
ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND 1937
Art. 40.4.2 of the Constitution – Committal warrant – Judicial review – Detention – Jurisdiction
Facts: The applicant sought an inquiry into the lawfulness of his detention pursuant to art. 40.4.2 of the Constitution and the applicant was on bail till the pendency of the inquiry. The applicant was prosecuted in the District Court and the said Court issued a committal warrant against him in his absence. The applicant objected to the re-issuance of warrant by the District Court. The applicant contended that the District Court had no jurisdiction to re-issue the warrant, as the only basis upon which the warrant could have been re-issued was if his whereabouts were unknown.
Mr. Justice Noonan refused the relief sought by the applicant and held the detention to be valid. The Court stated that art. 40 was not an alternative remedy to judicial review and the arguments advanced by the applicant were outside the ambit of an application under art. 40 of the Constitution. The Court also stated that the applicant was not entitled to raise the issue of jurisdiction by way of an application under art. 40 and the warrant for detention was not prima facie bad and was valid.
In this matter, the applicant seeks an inquiry into the lawfulness of his detention at Mountjoy prison pursuant to Article 40.4.2 of the Constitution. He is on bail pending the outcome of the inquiry.
The applicant was prosecuted in the District Court for a number of road traffic offences including drunken driving which occurred on 12th October, 2012. On the 10th December, 2014, the applicant was sentenced to two months in prison in his absence. The background is summarised in the judgment of the Court of Appeal in White v. District Judge Watkins [2017] IECA 192:
‘[2.] Prior to the 10th December, 2014, the appellant had three times previously failed to attend for sentencing resulting in the matter being marked peremptory for the fourth occasion. The judge asked his legal representative to convey to him that the matter would proceed in his absence. On two of those occasions the appellant offered reasons, being the birth of his child and a seriously ill relative. On this fourth occasion the appellant claimed to have missed the bus and opted not to get a later bus. There were also four failures to appear prior to the plea being entered.’
Following sentencing, the District Court issued a committal warrant on 10th December, 2014.
On the 19th January, 2015, the applicant applied to the High Court for leave to seek judicial review of the order of the District Court. The essential basis of this application was that the District Court had acted without jurisdiction in sentencing the applicant in his absence. In addition to granting leave to bring the judicial review, the High Court ordered ‘that the proceedings dated the 10th day of December, 2014 hereinbefore referred to be stayed until the determination of the application for judicial review …’
Following the obtaining of this order ex parte from the High Court the applicant's solicitor wrote to the Gardaí enclosing a copy of the order, drawing attention to the stay that had been granted and seeking confirmation that the Gardaí would not attempt to execute the warrant pending the determination of the judicial review.
On 26th May, 2016, the High Court dismissed the judicial review application. The applicant appealed to the Court of Appeal and the stay was continued pending the appeal. The applicant's solicitor again corresponded with the Gardaí informing them of this fact.
On 14th June, 2017, the Court of Appeal dismissed the appeal in the judgment referred to above and continued the stay on execution of the warrant until the 31st July, 2017.
On 5th July, 2017, the prosecuting Garda, Garda Niall O'Connor, applied to the District Court to re-issue the warrant. The application was accompanied by a certificate as to non-execution of the warrant which contained a narrative section along the lines I have indicated above and attached the original warrant, the order of the High Court granting leave on the 19th January, 2015, a copy of the judgment of the Court of Appeal and the correspondence from the applicant's solicitor to which I have referred.
In the affidavit sworn by Garda O'Connor opposing the within application, he avers that all of these documents were before the District Judge and when the application was called, Garda O'Connor entered the witness box and the District Judge considered the application. Having done so, he stamped and signed the warrant and the court clerk returned the documents to Garda O'Connor.
The re-issued warrant is exhibited in the affidavit of the applicant's solicitor grounding this application. It contains a proforma stamp which is applied over some of the printing in the form so that all of it is not entirely legible. It appears to read ‘I hereby re-issue this warrant … (illegible) six months from this date.’ It is dated the 5th July, 2017 and apparently is signed by Judge Halpin, a judge of the District Court. The illegible portion of the stamp appears to contain a number of words which could be ‘for a period of’ but that is unclear.
Following expiry of the stay granted by the Court of Appeal, the re-issued warrant was executed by agreement on the 8th August, 2017, when the applicant was lodged in Mountjoy Prison.
On the 10th August, 2017, the applicant sought and was granted an inquiry into the lawfulness of his detention and he was granted bail pending the inquiry on the following day.
The applicant's fundamental contention is that the re-issued warrant is invalid and does not constitute a lawful basis for his continued detention essentially for three reasons.
First, the applicant says that the warrant fails to show jurisdiction on its face. He submits that the effect of the decision of this Court (MacMenamin J.) in Daly v. Judge Coughlan [2006] IEHC 126 is that the warrant is required to show on its face that the District Judge carried out the statutory inquiry necessary for its re-issue and in the absence of that, it is bad.
Secondly, and more fundamentally, the applicant contends that the District Court had no jurisdiction to re-issue the warrant in this case because the sole basis for re-issue is to be found in s. 33 of the Petty Sessions (Ireland) Act 1851 which provides as follows:
‘33. Whenever the person to whom any warrant shall be so addressed, transmitted, or endorsed for execution, shall be unable to find the person against whom such warrant shall have been issued, or his goods, as the case may be, or to discover where such person or his goods are to be found, he shall return such warrant to the justices by whom the same shall have been issued within such time as shall have been fixed by such warrant, (or within a reasonable time where no time shall have been so fixed,) and together with it a certificate of the reasons why the same shall not have been executed; and it shall be lawful for such justice to examine such person on oath touching the non-execution of such warrant, and to re-issue the said warrant again, or to issue any other warrant for the same purpose, from time to time as shall seem expedient.’
In support of this submission, the applicant relies on Buckley v Judge Hamill [2016] IESC 42. The applicant accordingly says that the only basis upon which the warrant could have been re-issued in this case was if his whereabouts were unknown and it is common case that they were not. As the District Court has no inherent jurisdiction being a creature of statute, it was said, there is no other basis in law for the re-issue of the warrant. This is also borne out by O. 26 of the Rules of the District Court which reflects the provisions of s. 33 of the 1851 Act and provides at r. 11:
‘11. Where a warrant, other than
—a warrant for the arrest of a person charged with an indictable offence,
—a warrant for the arrest of a person who has failed to appear in answer to a summons in respect of an offence,
—a bench warrant for the arrest of a person who has failed to appear in compliance with the terms of a recognisance, or
—a search warrant,
is addressed, transmitted or endorsed for execution, to any person and he or she is unable to find the person against whom the warrant has been issued or to discover where that person is or where he or she has goods, such person having the execution of the warrant shall return the warrant to the Court which issued the same (within such time as is fixed by the warrant or within a reasonable time, not exceeding six months where no time is so fixed) with a certificate (Form 26.4, Schedule B) endorsed thereon stating the reason why it has not been executed, and the Court may re-issue the said warrant, after examining any person on oath if the Court thinks fit so to do concerning the non-execution of the warrant, or may issue any other warrant for the same purpose from time to time as shall seem expedient.’
As can be seen from the foregoing, the Rules provide for a form of certificate to be completed explaining the failure to execute the warrant on an application to re-issue same.
Thirdly, the applicant argues that in the present case, the statutory certificate was insufficient in that it was unsigned and did not indicate the identity of the author so as to certify the information contained therein. Allied to this point, there is no sufficient evidence that the District Judge conducted the appropriate inquiry prior...
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