Wilkinson v The Governor of Midlands Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 24 June 2016
• Neutral Citation: [2016] IECA 190
• Docket Number: 2016/206
• Court: Court of Appeal (Ireland)
• Date: 24 June 2016

[2016] IECA 190

THE COURT OF APPEAL

Birmingham J.

2016/206

Birmingham J.

Sheehan J.

Mahon J.

JOHN WILKINSON

APPELLANT

V

THE GOVERNOR OF MIDLANDS PRISON

RESPONDENT

Detention – Release from custody – Stay of execution – Appellant seeking an order directing his release from custody – Whether appellant?s detention was legal

Facts: The appellant, Mr Wilkinson, on the 20th January, 2016, was convicted at the District Court in Carlow of an offence of assault causing harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. He received a sentence of nine months imprisonment. Recognisances for the purpose of an appeal were fixed as follows: the appellant?s own bond of ?1,000 and a cash lodgement of ?250. No appeal was lodged in the immediate aftermath of the conviction and sentence and he began to serve the sentence imposed. On the 13th April, 2016, while still in custody serving the sentence imposed in Carlow, the applicant appeared in the District Court in Athlone where he was convicted of driving without insurance and was sentenced to three months imprisonment. That sentence was to be consecutive to the sentence of nine months imposed in Carlow. No appeal against the Athlone sentence was ever lodged. On a date subsequent to the imposition of the Athlone sentence, a notice of appeal against the Carlow sentence was lodged. Were it not for the Athlone sentence, Mr Wilkinson would have been entitled to be released from custody at that stage. The appellant contended that having appealed the Carlow sentence, he was entitled to be at liberty, notwithstanding the Athlone sentence. The authorities disputed this and said that a sentence of imprisonment was validly imposed in Athlone which had never been appealed and must be served and which provides a lawful basis for his continued detention. On the 3rd May 2016, the High Court (White J) refused the application of the appellant for an order pursuant to Article 40 of the Constitution directing his release from custody. The appellant appealed to the Court of Appeal against that decision.

Held by Birmingham J that, whatever the outcome of this appeal, a new instrument, whether of the Circuit Court or of the District Court would issue to enforce the decision. Birmingham J agreed with the High Court judge that appealing one of two sentences in issue does not have the effect of staying the sentence that is not appealed; appealing the first in time of two sentences, but not the second has the effect of bringing forward or triggering the commencement date of the second sentence. That being so Birmingham J held that it followed that Mr Wilkinson was and had at all times been in lawful custody.

Birmingham J held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Birmingham delivered on the 24th day of June 2016

1 This is an appeal from a decision of the High Court (White J.) of the 3rd May 2016, refusing the application of the appellant for an order pursuant to Article 40 of the Constitution directing his release from custody.

2 The basic facts giving rise to this application and now to this appeal are that on the 20th January, 2016, the appellant was convicted at the District Court in Carlow of an offence of assault causing harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. He received a sentence of nine months imprisonment (hereinafter the Carlow sentence/the nine months sentence). Recognisances for the purpose of an appeal were fixed as follows: the applicant's own bond of ?1,000 and a cash lodgement of ?250. No appeal was lodged in the immediate aftermath of the conviction and sentence and he began to serve the sentence imposed.

3 On the 13th April, 2016, while still in custody serving the sentence imposed in Carlow, the applicant appeared in the District Court in Athlone where he was convicted of driving without insurance and was sentenced to three months imprisonment (the Athlone sentence/the three months sentence). This sentence was to be consecutive to the sentence of nine months imposed in Carlow. The warrant of the 13th April, 2016, in respect of the Athlone conviction, ordered that the applicant be imprisoned for a period of three months to be served on the legal expiration of the sentence of nine months imposed in case No. 2015/109689 in Carlow on the 28th January, 2016. No appeal against this Athlone sentence has ever been lodged.

4 On a date subsequent to the imposition of the Athlone sentence, a notice of appeal against the Carlow sentence was lodged. Were it not for the Athlone sentence, Mr. Wilkinson would have been entitled to be released from custody at that stage. Indeed, the appellant contends that having appealed the Carlow sentence, he was entitled to be at liberty, notwithstanding the Athlone sentence. The authorities dispute this and say that a sentence of imprisonment was validly imposed in Athlone which has never been appealed and must be served and which provides a lawful basis for his continued detention.

Information put before the High Court

5 An affidavit sworn on the 29th April, 2016, was put before the High Court by the Governor of the Midlands Prison stating that the appeal against the nine months was processed on the 28th April, 2016, that the three month sentence began to be served on that day and that the applicants' release date was the 4th July, 2016.

The information that was before the High Court corrected

6 A further affidavit, this time of the 8th June, 2016, sworn by the same deponent who swore the affidavit on the 29th April, 2016, has been put before this Court. This affidavit states that a number of errors occurred in the earlier affidavit. An apology is tendered for the errors which it is asserted were unintended. The errors, it is sworn, arose from human error on the part of the prison staff in dealing with the issues involved, leading to the prison Governor being misinformed as to the correct state of affairs which in turn resulted in the High Court being provided with wrong information.

7 The earlier affidavit of the 29th April, 2016, does not refer to the fact that a further and separate warrant was lodged in Midlands Prison by gardaí on the 27th April, 2016, in respect of Mr. Wilkinson. That warrant had been issued on the 29th March, 2016, by Judge Colin Daly in Carlow District Court and it commanded that Mr. Wilkinson be detained for 60 days (the 60 day warrant). The expiry date for that warrant was the 10th June, 2016. Had the existence of this warrant been known, it would have provided a complete answer to any request for an order for the release of Mr. Wilkinson. Indeed had the existence of the 60 day warrant been appreciated, it is inconceivable that there would have been any application for an inquiry under Article 40.

8 The second affidavit, that of the 8th June, 2016, also explains that the High Court was misinformed when told that the appeal against the nine month sentence had been processed by the prison authorities on the 28th April, 2016, when in fact this did not happen until the 26th May, 2016. Only after that did the appellant begin to serve the three month Athlone sentence with the result that the appellant's release date with remission is the 25th July, 2016.

9 To explain this in a little more detail, the situation is that if the appellant wished to secure his release pending an appeal, he ought to have lodged ?250, signed a notice of appeal and entered into a...