THE RIGHT TO LIBERTY AND OTHER CURIOUS NOTIONS
– DEVELOPMENTS IN HABEAS CORPUS LAW
Bar Council CPD Programme
Wednesday, 13 March 2013
Micheál O’Higgins SC
__________________________________________________________
1.
Daisy Hopkins was born in Ely in England in 1874. She came with her
parents to live in Cambridge when she was 13. At that time, policing in the
University and also in the nearby town was attended to by officials called
Proctors who were responsible for enforcement of university regulations and
security within the university grounds and environs. One proctorial duty in
Cambridge was to patrol the streets of the town, watching out for women
who might be engaging in sexual relationships with students. Once arrested
by a Proctor, women could be taken to a workhouse called The Spinning
House and held there until the Vice Chancellor himself decided their fate – to
be released or imprisoned for anything up to a few months.
2.
On 3rd December, 1892 Daisy, who was then aged 17, was convicted by the
Vice-Chancellor of Cambridge University of the offence of “walking with a
member of the University”. This genteel form of words was used to denote a
darker offence, that of engaging in prostitution with an under-graduate.
Daisy was arrested by virtue of the power conferred upon the Proctors by
James I. Whilst there was some evidence that Daisy was skilled in pursuits
of the flesh, there was little evidence that she was soliciting at the time of
her arrest and nor was the under-graduate concerned, a Master Thompson,
wearing his regulation academic dress. Despite the efforts of the local
solicitor who was asked to defend her, Daisy was found guilty and sentenced
to 14 days confinement in the Spinning House. Daisy’s friends and family
bestirred themselves and local and London papers were full of the unfairness
of the case. Townsfolk sought contributions to a fund for her legal costs.
Habeas Corpus proceedings followed and some 8 days later the proceedings
came before a Court consisting of the Lord Chief Justice (Lord Coleridge) and
Smith J. Daisy’s challenge succeeded and the proceedings against her were
quashed and she was set free. As the Lord Chief Justice observed:-
“Nobody would suppose that a person simply walking with a member of the
University, who might be that member’s mother, or sister, or wife, or friend,
was guilty of an offence against the law which would justify the ViceChancellor
in
imprisoning
him
or
her.”
The Attorney General had argued that, as everybody knew, the substance of
1
the charge was that the prisoner had been “walking for an immoral purpose”.
He had to concede, however that the charge as laid, in itself, did not disclose
an offence. In reality, Daisy was being tried for what Lord Coleridge called
“the far greater charge of her being a person of immoral character and for
having been guilty of immoral conduct”. The Court found that the conviction
could not be sustained. The detention was declared unlawful and Daisy was
freed on habeas corpus.
3.
Those were great days for habeas corpus. Notwithstanding the strict mores
of the time, unappealing reputational issues did not prevent the rule of law
being observed. Though the case was ultimately decided on a narrow issue
(whether the charge as laid actually existed), justice was not only done but
was seen to be done. These were heady days for habeas corpus: the
University was represented by two Silks, a Junior and a Solicitor, Daisy had to
make do with one Senior and Junior. History does not record whether there
was an application to rule the costs.1
4.
Over a hundred years before Daisy’s case we have the celebrated habeas
corpus of James Sommersett2. The Sommersett ruling of 1772 concerned a
slave’s liberty and status as property. James Sommersett was a slave owned
by a Boston Customs Official called Charles Stewart. James was brought to
England by his “owner” but two years later he escaped. He was recaptured
in November 1771 and was forced on to a ship bound for Jamaica. With help
from Granville Sharp, a humanitarian anti-slavery campaigner, a writ of
habeas corpus was granted by Lord Mansfield, the Lord Chief Justice, who
ordered the Captain of the ship on which the slave was incarcerated to
produce Mr. Sommersett before a Court.
The case was repeatedly
adjourned. Sommersett’s legal team argued that although slavery was
tolerated in the colonies, the Court of Kings Bench was bound to apply the
laws of England. Lord Mansfield’s historic finding was that slavery was so
odious that only positive law could support it, and that in England there was
none. He is said to have concluded his judgment with the words “The black
must be discharged”.
Variety and Breadth of Article 40 Cases
5.
The situations in which an Article 40 application can or may be brought are
many and varied. As we have seen, the procedure has been used to free a
slave3, to question extradition proceedings, to free a convicted prisoner, to
free a suspect being under questioned under s.30 of the Offences Against the
State Act, to remedy the misuse of police power4, to correct an illegal and
excessive sentence, to litigate a prisoner’s living conditions in prison5, to
1
The case is reported as ex-parte Daisy Hopkins (1891) 61 LJQB 240
Sommersett’s case (1772) 20 ST Tr 1
3
Sommersett’s case (1772) 20 ST Tr 1
4
Trimbole, Unreported, Supreme Court (Egan J.) 5th February, 1985
5
Kinsella –v- Governor of Mountjoy Prison and Ireland (2011) IEHC 235
2
2
remedy the denial of access of legal advice to a prisoner in custody6, to free
a patient from a Mental Institution, to obtain the release of a child from the
custody of a Health Board, to prevent the imprisonment and deportation of a
refugee7, to challenge the Bush administration’s treatment of detainees in
Guantanamo Bay8 to challenge the validity of an arrest9 to remedy a breach
of natural justice, to remedy a defect occurring in the course of a bail
hearing10 and to free prisoners held on foot of bad warrants.11
Habeas Corpus in Ireland
6.
In this paper, I will not attempt even an outline history of the habeas corpus
procedure in this jurisdiction. Much better to consult such texts as Kevin
Costello’s The Law of Habeas Corpus in Ireland12 or Gerard Hogan’s The
Origins of the Irish Constitution 1928 - 194113. Instead, in this short paper, I
propose to concentrate on some recent procedural developments on the
habeas corpus side, particularly during the years 2011 and 2012 and the first
part of 2013. Before we look at those procedural themes, it might be
worthwhile saying a few words about the procedure set out Article 40 of the
Constitution itself. Having developed as a common law remedy, habeas
corpus was put on a statutory footing in the Habeas Corpus (Ireland) Act,
6
Lavery-v- Member in Charge Carrickmacross (1999) 2 I.R. 390
DM –v- Governor of Mountjoy (Charleton J.) (2011) IEHC 336, Unreported, High
Court, 26th November, 2011.
8
The United States Supreme Court intervened in a range of cases involving “Enemy
Combatants” detained in Guantanamo Bay in Cuba including Rasul –v- Bush, US
Supreme Court, 10th November, 2003, Hamdan –v- Rumsfeld, US Supreme Court 29th
June, 2006, Al Odah –v- Bush and Boumediene –v- Bush US Supreme Court 12th June
2008.
9
See Jin Liang Li –v- Governor of Cloverhill Prison, Unreported, High Court, (Hogan J.)
28th November, 2012
10
The right to bring an Article 40 following an unfair/unlawful bail hearing is now well
established. See for instance the Supreme Court’s decision in McDonagh –v- Governor of
Cloverhill Prison (2005) 1 IR 394, Peart J’s recent decision in Galvin –v- Governor of
Cloverhill Prison (2012) IEHC 497, MacMenamin J’s decision in Nasiri –v- Governor of
Cloverhill Prison, Unreported, High Court, 14th April, 2005 and Hedigan J’s important
decision in Heinullian –v- Governor of Cloverhill Prison, Unreported, High Court, 20th
May, 2010.
11
See the Supreme Court’s important decision in Ejerenwa –v- Governor of Cloverhill
Prison (2011) IESC 41, Hogan J’s decision in Louise Joyce –v- the Governor of the
Dochas Centre (2012) IEHC 1, Peart J’s two decisions in JOG –v- Governor of Cork
Prison (2007) 2 IR 203, Macharia –v-Governor of Cloverhill Prison (2011) 3 IR 472 and
Hogan J. decision in EC –v- Clinical Director of the Central Mental Hospital,
Unreported, High Court, 5th April, 2012.
12
Costello - The Law of Habeas Corpus in Ireland, MPG Books 2006
7
13
The Origins of the Irish Constitution 1928 – 1941 – Royal Irish Academy 2012
3
1782. Whilst this statute remains on the statute books, the modern day
reality is that applications for a person’s release from custody or detention
are now always brought pursuant to the provisions of Article 40.4 of
Bunreach na hEireann.
4. 1° No citizen shall be deprived of his personal liberty save in
accordance with law. 2° Upon complaint being made by or on behalf of
any person to the High Court or any judge thereof alleging that such
person is being unlawfully detained, the High Court and any and every
judge thereof to whom such complaint is made shall forthwith enquire
into the said complaint and may order the person in whose custody such
person is detained to produce the body of such person before the High
Court on a named day and to certify in writing the grounds of his
detention, and the High Court shall, upon the body of such person being
produced before that Court and after giving the person in whose custody
he is detained an opportunity of justifying the detention, order the
release of such person from such detention unless satisfied that he is
being detained in accordance with the law.
3° Where the body of a person alleged to be unlawfully detained
is produced before the High Court in pursuance of an order in that
behalf made under this section and that Court is satisfied that
such person is being detained in accordance with a law but that
such law is invalid having regard to the provisions of this
Constitution, the High Court shall refer the question of the validity
of such law to the Supreme Court by way of case stated and may,
at the time of such reference or at any time thereafter, allow the
said person to be at liberty on such bail and subject to such
conditions as the High Court shall fix until the Supreme Court has
determined the question so referred to it.
4° The High Court before which the body of a person alleged to
be unlawfully detained is to be produced in pursuance of an order
in that behalf made under this section shall, if the President of the
High Court or, if he is not available, the senior judge of that Court
who is available so directs in respect of any particular case,
consist of three judges and shall, in every other case, consist of
one judge only.
5° Nothing in this section, however, shall be invoked to prohibit,
control, or interfere with any act of the Defence Forces during the
existence of a state of war or armed rebellion. 6° Provision may
be made by law for the refusal of bail by a court to a person
charged with a serious offence where it is reasonably considered
necessary to prevent the commission of a serious offence by that
person.
4
Straightforward Procedure
7.
The great thing about Article 40 applications is that the procedure is actually
set out in the Constitution itself. So no amount of parliamentary or judicial
meddling, and all the S.I.’s in the world, cannot alter the Article 40 procedure
which is largely set out in black and white, step by step in the Constitution
itself.
8.
The procedure under Article 40 is straightforward. The complaint is usually
made by way of an ex-parte application grounded on an affidavit setting out
the facts. However, an affidavit is not always mandatory because a
complaint may be made simply on foot of a letter.14 Once a Judge decides
that an inquiry is warranted, the Court may make an order for production of
the body and will require the Respondent to certify in writing the grounds of
the detention. So if an application for inquiry is made, say at 11 in the
morning, often times it is made returnable for later that afternoon, by which
time the detainer will be obliged to turn up in court and produce the body of
the applicant and justify the legality of the detention. At this stage, known
as the return stage, argument will take place concerning the legality of the
detention. If satisfied that the detention is lawful, the court will discharge
the preliminary order directing the inquiry. Otherwise, the court will direct
the release of the person detained. The wording of Article 40.4.2 appears to
indicate that the onus is upon the detainer to justify the validity of the
detention. Article 40.4.2 provides that the High Court Judge is to order the
release of the person “unless satisfied that he is being detained in
accordance with law”.
9.
In recent times the practice has grown up of mentioning the Article 40
application in the President’s list in Court 4, to see whether a Judge might be
available and at what time. Indeed some High Court Registrars (and possibly
some Judges!) regard this as a procedural requirement, in default of which
the application may not be entertained. However, the law appears to be
clear: an application for an enquiry under Article 40 can be moved before any
High Court Judge15.
10.
Nor is it essential that the affidavit grounding the application should be filed
prior to seeking the enquiry, and a record number obtained. If time does not
permit of a visit to the Central Office in advance of moving the application,
the action can be given an “intended action” number. It is normal in such
circumstances for the applicant’s solicitor to give an undertaking to file the
papers prior to the inter-partes application coming on for hearing.
14
Kenny “Informality in Modern Irish Habeas Corpus Practice” 1974, 9 Irish Reports NNS(67) – See
Cahill .v. Governor of Military Detention Barracks, Curragh Camp 1980 IRLM 191, 201
15
See the judgment of Hogan J. in Louise Joyce –v- Governor of the Dochas Centre
(2012) IEHC 1
5
11.
There has always been a strong convention that a habeas corpus application
should be taken at the commencement of the Court’s business. Regrettably,
this rule is not universally followed. It may have something to do with the
increased number of Article 40 applications coming before the Courts, but
that should not dilute the principle. The reason why Article 40’s should be
taken at the top of the list is three-fold: first, it accords due respect to an
application which is provided for in the Constitution itself. Second, it involves
something so important as a person’s liberty. Third, for reasons of
practicalities, if it is intended to return the enquiry to the same afternoon, the
sooner the ex-parte application is taken the better, so that State Authorities
and Gardai can be given as much notice as possible. All the more so, where
the prisoner the subject of the application is being detained outside of
Dublin.
12.
Article 6 of the 1922 Free State Constitution had set out the applicable
This was reproduced pretty well verbatim in
Article 40.4.2 of Bunreacht na hEireann as originally enacted by the people in
1937. However, significant changes were made to Article 40 by means of the
second amendment to the Constitution Act, 1941, which was inserted into
the Constitution by legislation enacted by the Oireachtas in 1941, rather than
by the People in a Referendum. Article 51.1 of the Constitution allowed for
the amendment of the Constitution by means of ordinary legislation at the
time, for a transitional 3-year period from the date on which the first
President of Ireland took office. 16
habeas corpus procedure.
13.
For reasons of time, I propose to focus on just a few important themes on
the habeas corpus side, identified in some of the recent cases.
Right to make repeated applications for Habeas Corpus
14.
For students of history, there is a very interesting judgment from Hogan J.
which deals with the interesting question as to whether an applicant who has
been refused an inquiry under Article 40 can renew that application before a
different High Court Judge, and possibly thereafter make repeated
applications to other High Court Judges, until such time as a positive
outcome is achieved and an inquiry into the legality of the detention ordered.
Hogan J. considered this issue in some depth and embarked on an in-depth
study of the origins of the constitutional provision in question and the
development of the rule allowing successive applications. He posed the
16
Save where, in accordance with Article 51.2, the President of Ireland took the view that the proposed
amendment was “of such a character and importance that the will of the people thereon ought to be
ascertained by referendum before its enactment into law”. President Hyde took office on 25th June, 1938,
the transitory period ended some 3 years later and the Constitution can now only be amended following a
referendum. For a very interesting history on the origins of the Article 40 procedure and for an in-depth
analysis of the Rule that an applicant for a release order under Article 40 can make repeated ex-parte
applications before different Judges of the High Court, see the recent decision of Hogan J. in Louise Joyce
.v. Governor of the Dochas Centre 2012 IEHC 1 Unreported, High Court, 11th July, 2012
6
question as to whether it was to be suggested that repeated applications to
scores of different High Court Judges should really be permitted if the legal
system was not to fall into disorder. 17
15.
The Judgement is something of a historical tour de force. The question of
successive applications for habeas corpus is traced back to two major
decisions from the time of the War of Independence – Egan .v. Macready18
and R .v. Allen19. In the celebrated case of Egan .v. Macready, Sir Charles
O’Connor M.R. who was a Judge of the Chancery division of the High Court
held that the Restoration of Order in Ireland Act, 1920 had limited the power
of the British Government to establish military tribunals. It arriving at this
conclusion, he disagreed with the different views expressed by the Kings
Bench Division of the High Court in a judgment delivered a few months
previously, in R .v. Allen. When the Master of the Roles was told by Patrick
Lynch K.C., counsel for the applicants, that General Macready, the General
Commanding Officer of the British Forces in Ireland, did not intend to comply
with the Order of habeas corpus, O’Connor M.R. cited General Macready for
contempt. According to the judgment, the controversy was defused when
the British Government agreed to release the prisoners on the following day.
16.
The historical narrative that ensued is described by Hogan J. in the following
terms:-
“9. As it happens, Egan had been captured in May 1921 just before the end of the
War of Independence. While a truce was to be declared in mid-July 1921, by
the time of habeas corpus hearing in early July he was still under sentence of
death. His counsel had certainly availed of the common law right to apply to a
High Court judge of one's own choice, because it is hard to see any
application for habeas corpus to a judge of the Chancery Division rather than
to a judge of the King's Bench Division as being other than strategic in the
circumstances. In February 1921 the King's Bench Division had, after all,
expressly upheld the powers of the British Forces to have drum-head military
tribunals in R. v. Allen and the applicant in that case was later executed on
28th February 1921: see [1921] 21.R. 243, 273.
10. O'Connor M.R. had, however, concluded his judgment with the following
stirring words ([1921] 11.R. 265, 279):"I have not lost sight of the fact that in giving the judgment I do, I am
acting at variance with the unanimous judgment of the King's Bench
Division in Allen's case [1921] 2 I.R. 244, reaffirmed by subsequent
decisions. I hope that my action will not be construed as indicating any
17
Louise Joyce .v. Governor of Dochas Centre [2012] IHC 1 pg. 10, para. 22. There are now 36 Judges of
the High Court, whereas back in 1936, there were only 6.
18
Egan .v. MacReady [1921] I I.R. 265
19
R .v. Allen [1921] 2 I.R. 244
7
disrespect of my colleagues or any overweening opinion of my own. I
fully recognise that they have a wide knowledge and experience of
criminal law and that I cannot pretend to any. My practice at the Bar and
my life as a Judge of the Chancery Division have left me unqualified for
criminal cases; and I say unfeignedly I cannot confidently set up my
opinion against the experienced and learned Judges of the King's Bench
Division. But, as has been more than once pointed out by the late Lord
Chief Baron and by the most eminent English Judges, it is the right of the
subject under arrest to apply to any Judge of the High Court for the writ
of habeas corpus, and, if the writ is refused, to proceed from judge to
judge; and that it is the duty of each judge to form his independent
opinion and act upon it. This does not mean that he is to disregard the
opinions of other judges. It is the duty of the deciding judge to take such
guidance as he can from other judgments. It only means that he not
absolutely bound by them as in ordinary cases, and that if he is in his
own mind is unable to follow them, he is bound to dissent."
11. Over the years a certain sentimentality seems to have attached itself to that
judgment, not least perhaps because Egan's counsel (Patrick Lynch, Hugh
Kennedy and John A. Costello) all later assumed prominent positions in the
public life of the State and the striking circumstances of the case appears to
have made a dramatic impression on all of them. All three later played a role
in either the drafting of and discussion on (variously) Article 6 of the 1922
Constitution, the 1937 Constitution or (as the case may be) the Second
Amendment of the Constitution Act 1941 ("the Act of 1941").
12. It is, perhaps, little wonder, therefore, that to these men and others who
endured the bitterness and the hardships of the struggle for independence,
traditional rights associated with habeas corpus- namely, the right to apply to
"any" judge and to move successive applications for ex parte orders - should
be cherished and protected. It was, after all, the reason why Allen perished
and Egan lived. “
17.
20
Moving through the decades, Hogan J. goes on to consider a similar
controversy which arose towards the end of 1939 in the State [Burke] .v.
Lennon20. In September 1939 the Minister for Justice issued a warrant
pursuant to section 55 of the Offences Against the State Act, 1939 directing
the arrest and internment of James Burke. In November 1939 James Burke’s
brother, Raymond, swore an affidavit which grounded an application for
habeas corpus. The applicant’s counsel Albert Wood KC (known by
colleagues as “the Thunderer”) was successful in obtaining a conditional
order from Gavin Duffy J. The inter-partes application was due to be heard
by a three member divisional court consisting of Maguire P. and Justices
State [Burke] .v. Lennon [1940] I.R. 136
8
O’Byrne and Gavin Duffy. However, in a remarkable display of advocatory
courage, counsel declined to move the substantive application before the
divisional court on the basis – counsel submitted - it would interfere with the
Constitutional right of the applicant to choose a Judge of his own choice. Mr.
Wood presumably felt that Gavin Duffy J. would be out-voted 2 : 1 on the
divisional court, hence his insistence that the matter be heard before Gavin
Duffy J. alone. Counsel had his way and, four days later, the substantive
habeas corpus application was duly heard by Gavin Duffy J. sitting alone as a
High
Court
Judge.21
18.
Not alone was the application ultimately successful and the applicant
released, but having conducted a full hearing Gavin Duffy J. declared that
Part VI of the Offences Against the State Act, 1999 under which section the
applicant had been detained and interned, was unconstitutional. In a stirring
judgment, he held that section 55 violated an internee’s right to personal
liberty,
stating
that:-
“A law for the internment of a citizen, without charge or hearing, outside the
great protection of our criminal jurisprudence and outside even the special
courts, for activities calculated to prejudice the State, does not respect his
right to personal liberty and does unjustly attack his person; in my view, such
law does not defend his right to personal liberty as far as practicable, first,
because it does not bring him before a real Court and again because there is
no impracticability in telling a suspect, before ordering his internment, what
is alleged against him and hearing his answer, a course dictated by
elementary
justice.”22
The Supreme Court subsequently held that no appeal lay from that decision
of Gavin Duffy J.23
Significance of the Joyce Decision
19.
It appears to be clear from the cases mentioned in Joyce that the
Constitution has preserved the right of an applicant to apply for the initial exparte application to “any” Judge and to make successive ex-parte
applications for such an Inquiry to “any and every Judge” of the High Court.
However, the inter-partes decision on the actual legality of the detention is a
decision of the High Court itself. The inter-partes outcome cannot be
revisited before other Judges. If dissatisfied with the outcome at the inter-
21
For a detailed description of the application and of the frank exchanges between Bench
and counsel, see Gerard Hogan’s text “The origins of the Irish Constitution 1928 –
1941”, page 670 and onwards.
22
1940 I.R. 136, 144, 154
23
The Supreme Court’s decision in the State (Burke) .v. Lennon is reported at 1940 I.R. 136
9
partes stage, the applicant’s remedy is to appeal to the Supreme Court, not
to go before a different Judge of the High Court.
20.
Having found that Ms. Joyce’s renewed application before a different Judge
was permissible (and not an abuse of process), Hogan J. went on to opine
that the right to make successive applications must be construed in a realistic
and sensible fashion and adjusted to contemporary realities. Noting that the
High Court consisted of 6 Judges in 1937 and only 5 Judges in 1941, but
today numbers some 36 Judges, Hogan J. concluded that it is only in certain
specified circumstances that an application can properly be renewed before a
second Judge without that second application being regarded as abusive. As
for the possibility of an applicant making a third and successive applications,
he concluded that such a possibility must be regarded in principle as being
per se abusive.
21.
Hogan J. imposed qualifications on the undoubted right to make a renewed
application before a different Judge. However, those qualifications should
perhaps be regarded as obiter. The issue before the Court was whether
there could be a second ex-parte application, not a third. Moreover, having
carefully tracked the historical provenance of the constitutional wording
which allows ex-parte applications for an Inquiry to be made to “any and
every Judge” in Article 40.4.2, it is difficult to see why that right should be
diluted so suddenly, even in the context of a second or third application.
Hogan J. decided that the true meaning of Article 40.4.2 was that, whilst it
allowed for successive applications, the object of the provision was really
designed to operate as a failsafe in favorem libertam, in case something was
overlooked with the first application. The Court felt that it was in those sort
of circumstances that an application could properly be renewed before a
second Judge, without the second application being regarded as abusive. He
felt that one would normally expect that the fresh application would turn on
some new authority or perhaps even new facts coming to light.
22.
Whilst it goes without saying that counsel would be obliged to immediately
bring to the attention of the second Judge that an earlier Judge has refused
the ex-parte application, it is not clear why a second application should be
permissible only when new facts come to light, or new case law identified.
Certainly, the express wording of the Constitution, while clearly preserving
the right to make successive applications, imposes no such impediment.
10
23.
As to the outcome, the case had a happy ending for Mrs. Joyce:
notwithstanding the initial refusal by a different High Court Judge to even
order an inquiry and notwithstanding the State opposing the application at
the inter-partes stage, Hogan J. declared the warrant holding the applicant to
be defective and directed her immediate release. The warrant failed to set
out any details of the underlying charges. In doing so, he based his decision
on a very important decision of the Supreme Court from last summer 12
months entitled Ejerenwa .v. Governor of Cloverhill Prison and The Minister
for Justice and Equality24, to which we will now turn our attention.
Supreme Court Decision in Ejerenwa
24.
Every so often a case comes along which revitalises a particular area of the
law. The Supreme Court’s decision in Ejerenwa is one such decision,
revitalising the field of habeas corpus law25 governing the validity of
Ministerial and Court warrants. The case had its origins in immigration law.
The case speaks well for both counsel and the judiciary. It was heard before
Ryan J. in the High Court on 9th August, 2011. To justify the detention, the
State produced affidavits and a warrant/detention order signed by a member
of the Garda National Immigration Bureau.
The warrant/order was
addressed to the Governor of Cloverhill Prison and it stated as follows:-
“In exercise of the powers conferred on me by Section 5(2) of the Immigration
Act, 2003, I direct that pending the making of arrangements for his/her removal
from the State, that:Gerard Ejerenwa, DOB 28/10/1978
Be detained in Cloverhill Prison, a prescribed place for the purpose of Section
5(2)(a) of the Immigration Act, 2003 in the custody of such officer of the Minister
for Justice or member of An Garda Siochana for the time being in charge of that
place”.
25.
Having referred to the 1935 case of State (Hughes) .v. Lennon26, the old
1845 English case of Gossett .v. Howard27and the less ancient authority of
24
Ejerenwa .v. Governor of Cloverhill Prison and The Minister for Justice and Equality [2011] IESC 41
Unreported decision, Supreme Court, 28th October, 2011.
25
Ejerenwa .v. Governor of Cloverhill Prison and The Minister for Justice and Equality [2011] IESC 41.
The significance of the Ejerenwa decision might perhaps be compared with the impact of the Supreme
Court’s earlier decision from 2005 in McDonagh .v. Governor of Cloverhill Prison [2005] I IRLM 340
which revitalised Article 40 applications brought on foot of unfair or irregular District Court hearings (see
also Hedigan J.’s important decision in Heinullian .v. Governor of Cloverhill Prison, Unreported, High
Court 20th May, 2010)
26
State (Hughes) .v. Lennon & Ors. [1935] IR 128
27
Gossett .v. Howard [1845] 10 QB 411
11
Civil Imports Limited .v. Revenue Commissioners28, Denham C.J. who gave
the judgment of the Court overturned the High Court’s conclusion that the
detention was valid, declared the warrant to be defective and ordered the
applicant’s release.
26.
The Supreme Court heard the appeal (and presumably broke off from their
holidays for what, it should be remembered, was a case about the wording of
a warrant) during the Long Vacation on 26th August, 2011. They indicated
that the reasons for the decision would be given at a later date and the
judgment stating those reasons was delivered on 28th October, 2011.
27.
Denham C.J. gave as the reasons for directing the applicant’s release, the
following:-
“31. A document, such as in issue here, should contain clear information on its
face as to the basis of its jurisdiction. This information is required so that it be
available to, for example, (a) the person in custody, such as the appellant; (b) the
Governor of the Prison, or any other, who is holding a person in custody; and (c)
the Court which is requested to inquire into the custody pursuant to Article 40 of
the Constitution.
32. In this case the document of 2nd August refers only to s.5(2)(a) of the
Immigration Act, 2003, referred to as “the Act of 2003”. That is insufficient to
show jurisdiction. The document is defective because it does not state on its face
the reason for the arrest and detention of the appellant. Section 5(2) confers on
an officer or member of the Garda Síochána a power of arrest and detention of “a
person to whom this section applies”. Thus it is necessary to see what, if any,
provision of s. 5(1) applied to the appellant. Detective Garda McGovern, in his
affidavit, swore that the appellant was “refused leave to land”. He thus invoked
paragraph (f) of s. 5(1), which was inserted by s. 16(8) of the Immigration Act,
2004. As a result of that amendment, s. 5(1) applies to a non-national who has
been refused a permission under s. 4(3) of the Act of 2004, provided that the
garda had the additional suspicion, mentioned in s. 5(1) of the Act of 2003, that
the appellant had been unlawfully in the State for a continuous period of three
months. Section 4 of the Act of 2004 made new provisions for application for
permission to land or to be in the State. Section 4(3) lists, at paragraphs (a) to (k)
reasons why a person may be refused such permission. Detective Garda McGovern
appears to have relied on three of them: (e) not having a valid Irish visa; (g) not
being in possession of a valid passport; (h) having the intention to travel to Great
Britain of Northern Ireland. However, it was the fact of having refused permission
to land or be in the State, for whatever reason, which triggered the power
pursuant to s. 5(2) of the Act of 2003 to arrest and detain. The Detention Order of
28
Civil Imports Limited .v. Revenue Commissioners [2000] 2 I.R. 243
12
the 2nd August 2011 should have recited the fact of that refusal by Detective
Garda McGovern and that, with reasonable cause, he suspected that the appellant
had been unlawfully in the State for a continuous period of less than three
months. It was not necessary to state the reasons for that refusal. The appellant
had been given those reasons in writing, as was required by s. 4(4) of the Act of
2004. They were open to challenge by judicial review, if there were grounds.
However, the defect in the Detention Order was the failure to state that the
appellant had been refused permission to land and, as required by s. 5(1) of the
Act of 2003, that Detective Garda McGovern had “with reasonable cause
suspecte[d]” that the appellant had been “unlawfully in the State for a continuous
period of less than three months.
33. As these facts were not on the document of the 2nd August, 2011, this Court
released the appellant on the 26th August, 2011. “
28.
The law now appears to be clear that a custody warrant must, on its face,
show clear information as to the gaoler’s jurisdiction to detain. If a person is
being held on a sentence, the “cause” or charge should be clearly stated.
This can take the form of stating the charge and the section of the statute
which creates the offence, or alternatively simply attaching a copy of the
relevant charge sheet. The Joyce case makes clear that a warrant which
makes no reference to the underlying charge will be regarded as deficient
and not such as to authorise a detention.
Article 40 must be treated as an Article 40 and cannot be turned into anything
else
29.
29
30
For a time during the 1990s, the utility of the Article 40 procedure had been
somewhat curtailed. A decision of the Supreme Court entitled McSorley29 had
effectively confined orders of release to cases involving highly exceptional
facts. In that case, the applicants had pleaded guilty before the District
Court to Offences under the Road Traffic Acts and were sentenced to terms
of imprisonment.
The applicants were subsequently detained by the
respondent Governor pursuant to warrants of execution issued by the District
Court. The applicants’ argument was that at no time were they offered the
services of a solicitor in the District Court. The High Court had ordered the
release of the applicants on the basis of a failure of the District Judge who
proposed to impose a custodial sentence to advise the Accused of his
constitutional right to legal aid. The High Court held that that failing
amounted to a denial of justice so as to render the convictions void. In so
ruling, the High Court Judge felt bound by the decision of the Supreme Court
in an earlier case of Sheehan .v. District Judge Reilly30. On appeal by the
respondent in McSorley, it was held by the Supreme Court, in allowing the
McSorley [1997] 2 I.R. 258
Sheehan .v. District Judge Reilly [1993] 2 I.R. 81
13
State’s appeal, that since neither the District Judge nor the DPP had been
given an opportunity of making their case, there was a fundamental breach
of the requirement of audi alterem partem. O’Flaherty J. who gave the
judgment of the Court concluded that where the District Judge’s conduct on
the proceedings was being called into question, the correct course for the
High Court Judge would have been to give leave to apply for judicial review,
rather than proceed by way of Article 40, so that the District Court Judge and
the DPP would have been given an opportunity to make their observations.
So in short, the Supreme Court decision in McSorley held that Article 40 was
inappropriate, and that instead judicial review was the proper remedy, where
the complaint implicated the conduct of some party other than the actual
detainer.31
30.
Over time, commentators had come to criticise the Supreme Court’s decision
in McSorley on a number of grounds. However, it remained very much on
the books and was frequently invoked by State counsel when opposing
Article 40s at the return stage.
31.
However, it may now be said, with considerable conviction, that the decision
in McSorley has now been cast into the history books and should no longer
be regarded as representing good law. Whilst the position is put more gently
by the author of the recent judgment I am about to describe, the case of
Gary Bailey .v. Governor of Mountjoy Prison32 makes clear that the logic in
McSorley has been overtaken by the later Supreme Court decision in
McDonagh .v. Governor of Cloverhill Prison33.
32.
In Bailey, the applicant’s complaint was that he was in unlawful detention
because his District Court appeal had been struck out in his absence in
circumstances where he maintained he did not receive due notice of the
Circuit Court hearing whereby the earlier District Court conviction was
affirmed.
The State raised a preliminary issue and argued that the
applicant’s complaint should more properly be determined by means of an
application for judicial review of the warrant, rather than by means of an
application under Article 40. The State relied upon the Supreme Court’s
decision in McSorley in that regard. Hogan J.’s judgment in Bailey addresses
that sole preliminary jurisdictional issue.
31
The implications of the Supreme Court decision in McSorley and weaknesses in the logic underpinning
the case are discussed in some detail in an article by O’Higgins in the Bar Review, 9th May, 2006, entitled
The King of Swaziland’s tenth wife, habeas corpus and the Irish experience
32
Gary Bailey .v. Governor of Mountjoy Prison, Unreported, High Court (Hogan J.) 31st July, 2012
33
McDonagh .v. Governor of Cloverhill Prison [2005] 1 I.R. 394
14
33.
Hogan J. found it difficult to reconcile Sheehan and McDonagh on the one
hand and McSorley on the other, not least because all three cases involved
imputations on the conduct of the District Judge in question. Noting that the
McSorley decision was not referred to in the Supreme Court’s 2005 decision
in McDonagh, Hogan J. concluded that McSorley should be regarded as being
a singular and exceptional case which was effectively confined to its own
special facts. Hogan J. concluded that insofar as McSorley established any
wider rule – that Article 40 is available only where the unlawfulness of the
custody is obvious – such a rule had not been applied by the Supreme Court
either before or since that decision. Since the preponderance of Supreme
Court authority leaned heavily against such a rule, Hogan J. firmly rejected
the correctness of any such rule, stating:-
“Such a rule would dramatically reduce the scope, power and effect of Article 40.4.2,
even though the availability of this remedy is central to the workings of a free society.
Any one who dealt such a proposition really need look no further than the famous
opening lines of Kafka’s great novel - The Trial – (“Someone must have been telling lies
about Joseph Kay for, without having done anything wrong, he was arrested one fine
morning”) or, indeed, for that matter, its closing, despairing lines (“Where was the
Judge he had never seen? Where was the High Court he had never reached?”)”
Releasing the Mentally Disturbed
34.
In two recent landmark judgments, the High Court considered Article 40
applications brought on behalf of mentally disturbed patients. The two cases
are E.C. v. Clinical Director of the Central Mental Hospital34 and F.X .v.
Clinical Director of the Central Mental Hospital and the DPP35. Whilst both
cases were appealed by the State to the Supreme Court, it is my
understanding that the State have withdrawn their appeal in E.C., but
maintained their appeal in F.X. It is perhaps not accidental that the State
has elected to proceed with the appeal involving “possibly the most seriously
disturbed individual currently detained in civil confinement in the State” and
who was charged with murder (F.X.) and have abandoned their appeal in
E.C. where the applicant’s disturbed state was less marked and the charges
were in the District Court.
34
E.C. .v. Clinical Director of the Central Mental Hospital [2012] IEHC 152, Unreported, High Court,
Hogan J., 5th April, 2012
35
F.X. .v. Clinical Director of the Central Mental Hospital and the DPP [2012] IEHC 271, Unreported,
High Court, Hogan J., 3rd July, 2012. I am indebted to Colman Fitzgerald S.C. and Niall Nolan BL for
bringing the implications of both cases to my attention.
15
35.
There were, in fact, two judgments delivered in F.X.:
(i)
The first was delivered on 3rd July, 2012. It is the substantive ruling in which
Hogan J. ruled that a High Court Judge hearing an Article 40 application has
jurisdiction to make an Article 40 release order in respect of a detention
order made by another Judge of the High Court. Apart from the substantive
import of the case, Hogan J.’s decision in the first judgment has considerable
procedural significance in that he unashamedly came down in favour of the
argument that the Article 40.4.2 jurisdiction extended to orders for detention
made by the High Court, whether sitting at the Central Criminal Court or
otherwise. Accordingly, notwithstanding that Carney J. in the High Court had
issued the detention order concerned, Hogan J. concluded that he had
jurisdiction to consider whether that order was validly made for the purpose
of assessing whether the applicant’s detention was lawful.
(ii)
The second reason the first judgment in F.X. is significant arises from what it
says about the workings of the Criminal Law (Insanity) Act, 2006. The facts
of the case were that Carney J. had made an order on 26th March, 2012
committing the applicant to the Central Mental Hospital pursuant to Section 4
of the 2006 Act. To that end, Carney J. heard the evidence of an approved
medical officer, prior to the making of the order, that the applicant was
seriously disturbed and required treatment at the Central Mental Hospital.
However, Hogan J. concluded that Carney J. did not consider the evidence of
an approved medical officer adduced pursuant to Section 4.6(b ) of the
statute, since this would have required the Court to make an order providing
for the detention of the applicant at the Central Mental Hospital for an initial
period of 14 days, his examination there by the approved medical officer and
a subsequent presentation and report for the benefit of the Central Criminal
Court. In other words, what the Oireachtas had prescribed as a two-stage
process, Hogan J. found had been compressed through inadvertence by
Carney J. into a single stage. It didn’t matter, Hogan J. concluded, that
Carney J. had made his order on foot of uptodate medical reports.
36.
Following the delivery of the substantive decision, declaring the detention to
be invalid, both the Court and the parties were presented with something of
a crisis, with the imminent and possible release of a seriously disturbed
mentally unwell patient. The DPP had the matter listed before Carney J. in
the Central Criminal Court for the purpose of asking Carney J. to make a
fresh committal order to the Central Mental Hospital. However, Carney J.
declined to make the order sought. The matter was subsequently mentioned
before Hogan J. who could not act because he had not been assigned to the
Central Criminal Court. It was later mentioned before Kearns P. and
ultimately before Sheehan J., who was assigned to the Central, and who
ultimately made the fresh remand order, returning the prisoner to the Central
Mental Hospital.
16
37.
That issue as to whether a stay should be granted formed the subject matter
of the second hearing a few days later. The Court had to consider the
question whether the Article 40 Court is obliged in all circumstances to order
the immediate release of an applicant who has been successful in the
substantive Article 40 proceedings or whether the giving of effect to that
order can be stayed in some way. This discreet issue is the subject matter of
the second of the two judgments in F.X., delivered 5 days later on 8th July,
2012.
38.
The traditional view was that the Court had no jurisdiction to stay the making
of an Article 40.4.2 order36.
39.
In J.H. v. Russell37, Clarke J. sitting in the High Court made the following
observations in a case concerning a mental health patient:-
“The underlying logic of the views of the Supreme Court in both cases was that
the normal rule (i.e. immediate release) might not be appropriate in all
circumstances involving persons whose detention was, at least, in significant part,
designed for their own good. A similar situation arises in the case of involuntary
patients.”
40.
The choice facing Hogan J. on the stay question was stark indeed. The
overwhelming evidence was that the particular applicant was seriously
disturbed and represented a very serious threat to himself, to identifiable
individuals and to the general public, were he to be released into society
from custody. The applicant was stated to be the most seriously disturbed
individual currently detained in civil confinement in the State. He was
already charged with a very serious criminal offence in the Central Criminal
Court. He had been found unfit to plead by Carney J. The medical diagnosis
was that he suffered from chronic paranoid Schizophrenia which was
resistant to treatment. Having carried out an extensive review of the
relevant authorities, Hogan J. concluded as follows:-
“24. The present case also provides an example of this dilemma. The immediate
release of the applicant in the present case into the general community within
minutes of the delivery of the actual judgment might well have had disastrous
consequences. If the Court were faced with the stark binary choice of simply
ordering the immediate release of the applicant on the one hand or refusing relief
on the other, then the judicial branch would be placed in an appalling dilemma.
The temptation in those circumstances to opt for the practical, safe and
convenient solution- refusing the grant of relief- would be well nigh irresistible for
all but the most detached judges who were prepared to live with their consciences
if disaster subsequently ensued. Yet judicial pragmatism of this kind often comes
with a heavy price. Result oriented decisions which cannot be rationally supported
36
37
See the judgment of Murray C.J. in M .v. Health Service Executive [2006] 4 I.R. 374, page 470
J.H. .v. Russell [2007] 4 I.R. 242
17
by reference to earlier authority and established doctrine sap the integrity of the
judicial decision-making process and undermine - often with serious consequences
-public confidence in the objectivity of that decision-making process.
25. By contrast, a flexible approach in respect of the provision of remedies for
constitutional breaches not only permits the courts fearlessly to examine the
merits of the claim, but it also serves to promote an important dialogue between
the various branches of government which enables all three branches to best work
in the public interest. In the context of an application such as the present one, it
enables the judicial branch to determine the legality of the detention, while
allowing the executive branch a short opportunity to address difficult problems
arising from that judicial finding: cf again by analogy my own judgment in Kinsella
and Dr. Carolan's analysis of these issues, "The Relationship between Judicial
Remedies and the Separation of Powers: Collaborative Constitutionalism and the
Suspensive Declaration of Invalidity" (2011) 46 Irish Jurist 235.
26. It follows, accordingly, that for these reasons I intend to follow the general
approach articulated by Clarke J. in JH. It remains to consider how and in what
circumstances the discretion to play a stay on the order for release should be
exercised.”
38
41.
As to the outcome, in the judgment of 8th July, 2012, Hogan J. concluded
that he would postpone the release of the applicant until 5 pm on 10th July (2
days later). That further short delay was designed, in line with the relevant
case law, to enable the authorities to take such steps as they thought fit in
the meantime to ensure in advance of the release time and date that the
applicant’s custody would thence forth be regular and lawful.
42.
As a postscript, it is my understanding that on the following day, 9th July, the
DPP made an application before the Central Criminal Court (Sheehan J.) for a
fresh committal order to be made under the Criminal Law (Insanity) Act.
That application was granted and the applicant was committed back to the
Central Mental Hospital. In the meantime, the rule of law was upheld.
43.
As noted elsewhere, the State’s appeal against Hogan J.’s decisions in F.X.
remains in being. Accordingly, the substantive issue under the Criminal Law
(Insanity) Act and also the very important issue of the jurisdiction to grant a
stay following a successful Article 40 application remains to be authoritively
decided by the Supreme Court. It may be that when that appeal comes on
for hearing, the Supreme Court may regard as relevant a decision made by
that Court as recently as last May in the case of Kadri .v. Governor of
Wheatfield Prison38, the next case which we will consider in this whistle-stop
tour of recent habeas corpus developments.
Kadri .v. Governor of Wheatfield Prison [2012] IESC 1, Unreported, Supreme Court, 10th May, 2012
18
Nazih Kadri .v. Governor of Wheatfield Prison
44.
Kadri too is an important decision as it emphasises that, even with deeply
unappealing facts, if an applicant for Article 40 relief can establish noncompliance with a statutory process involving personal liberty, an order for
release pursuant to Article 40 will ordinarily be granted.
45.
In Kadri, members of the Garda National Immigration Bureau went to
Cloverhill Prison for the purposes of transporting the applicant to Dublin
Airport as the first stage of his repatriation to Algeria. The applicant
physically resisted in the most extreme way the efforts of the Gardaí. He
resisted all Garda attempts to move him; he shouted that he would be killed
and asked the Gardaí to shoot him; he threatened to kill himself; he forced
himself to vomit on the Gardaí in the Garda car; he attempted to injure
himself by bashing his head against a car window and then on the ground in
the airport. The arresting Garda concluded that it would have been
impossible to deport the appellant. It was obvious that he would not travel
unescorted from Gatwick to Algers as had been the plan. The Garda had no
alternative but to convey him back to Wheatfield Prison where they
completed and signed a new notice of detention in accordance with the
relevant provision of the Immigration Act, 1999.
46.
The problem for the State was that, because of the appellant’s violent and
objectionable actions he had successfully thwarted the efforts of repatriating
him back to Algeria, the 8-week period for detaining the prisoner provided for
under the legislation had expired, by the date of the applicant’s application
pursuant to Article 40 which came before the High Court (Bermingham J.) on
11th May, 2012. The relevant section, Section 5(6) of the Immigration Act,
1999 provided for a maximum aggregate period of detention of 8 weeks.
47.
In the Supreme Court, Fennelly J. observed that there was no doubt but that
the egregious behaviour of the appellant in resisting lawful arrest had
resulted in the 8-week time period elapsing. But that, concluded Fennelly J.,
was not the point. The fact was there was nothing in the relevant legislation
to permit a Court to extend or prolong the 8-week period on the grounds of
new acts of resistance. The 8-week aggregate limit was expressed in
unqualified terms. Fennelly J. put the matter thus:-
“The Court cannot accept a flexible or purposive interpretation of a
provision designed to protect personal liberty. All the more so when such
an interpretation would do violence to the clear language of the
Oireachtas. I agree with the judgment about to be delivered by Clarke J.
insofar as it discusses Section 5 of the Interpretation Act, 2005. It is
clear that the appellant was not lawfully detained on 11th April, 2012,
which was more than 8 weeks from 8th February, 2012. The Court
therefore directed his release…
A solution to the practical problems
19
arising from this judgment more fully discussed by MacMenamin J., can
only be legislative. It cannot be achieved by judicial contravention of the
clear statutory mandate”.39
Release Orders Non-Discretionary
48.
The primacy of the habeas corpus procedure in the constitutional order has
been reasserted in recent years. Recent cases have emphasised the nondiscretionary nature of the Article 40 jurisdiction: if the detention is unlawful,
well then the detention is unlawful and the prisoner should be released.
Discretionary issues such as delay or acquiescence should not come into it.
Denham CJ. in Caffrey –v- Governor of Portlaoise Prison40 affirmed the nondiscretionary approach of Charleton J. in the High Court where the Chief
Justice stated:
“The issue for the Court was whether the appellant was lawfully detained or
not. The appellant could not be lawfully detained on the basis of his consent
or acquiescence; it is a question of law.”
49.
Peart J’s ruling in the bail/Article 40 case of Galvin is to like effect, as are the
Supreme Court’s own judgment in Kadri41 and the Supreme Court’s decision
in O’Keeffe –v- Connellan42 where the Supreme Court rejected the notion that
relief ex-debito justitiae had fallen out of favour and reaffirmed the principle
that a conviction entered in excess of jurisdiction should be quashed,
irrespective of unappealing background facts or issues of acquiescence or
waiver43.
50.
So it seems clear that a prisoner who can show his detention is unlawful is
entitled to habeas corpus ex-debito justitiae. The traditional and long held
view has been that relief by way of habeas corpus is a mandatory, not a
discretionary remedy.44 Questions as to the merits or otherwise of the
applicant’s behaviour ought not to be taken into account in determining
whether he is to be released. This is one of the major procedure advantages
which the habeas corpus procedure enjoys over other forms of procedure.
Evening Time Applications
51.
For some time, practitioners have been calling for a dedicated after-hours
facility for evening time Article 40’s. The Bar Council raised this issue
39
Kadri .v. Governor of Wheatfield Prison [2012] IESC 1, page 9, para. 31
Caffrey –v- Governor of Portlaoise Prison (2012) IESC 4
41
Kadri .v. Governor of Wheatfield Prison [2012] IESC 1
42
O’Keeffe –v- Connellan
43
O’Keeffe was a judicial review, not a habeas corpus, but the principle remains the
same.
44
R –v- Pentonville Prison Governor Exp. Azam [1974] AC 18 at 32
40
20
previously with the Courts Service, but unfortunately it remains close to
impossible to organise an evening time Article 40. Relying on the good will of
over-worked Judges and Registrars, on the happenstance that they may be
working late in the building, is unfair to neither. Resources should be put in
place so that Registrars, Courts and Judges are available to deal with urgent
applications that arise in the evening time, just as there is currently available
a duty Judge facility for a Saturday sitting. At the moment, when a solicitor
rings the after-hours number for a mid-week evening application, the phone
number rings out. This is not an acceptable state of affairs. In days gone by
it used to be possible to bring urgent applications in the evening time,
sometimes at a Judge’s home. One would have thought that the prospect of
a citizen remaining in unlawful custody overnight ought be a sufficient reason
for a proper after-hours facility being put in place. Apart altogether from the
risk of an injustice occurring, the possibility of an increased damages claim
against the State for wrongful detention should by now have concentrated
minds.
Conclusion
52.
We will finish where we started, with Daisy Hopkins. Emboldened by her
stunning success in her habeas corpus application, Daisy brought a civil suit
against the Reverend Mr. Wallis, Pro-Proctor of Trinity Hall, Cambridge
arising from her unlawful imprisonment in the Spinning House. The civil
action, like the habeas corpus, received quite considerable newspaper
coverage including the 25th March edition of the New York Times in 1892.
According to that article, the Daisy Hopkins suit for £1,000 damages against
the Reverend Mr. Wallis, Pro-Proctor of Trinity Hall, Cambridge, came on for
hearing before the Ipswich Assizes before Mr. Justice Matthew and a special
Jury. The civil case for damages arose from Daisy’s unlawful incarceration in
the Spinning House, at the hands of the University Proctors. The newspaper
report indicates that a Mr. Murphy QC appeared for Daisy and the Attorney
General, Sir Richard Webster, Mr. Arthur Cohen QC, standing counsel to the
University of Cambridge and a Mr. Rawlinson for the Pro-Proctor. Sadly,
things did not turn out so well for Daisy in the damages action.
53.
Daisy’s account was that on the night of her arrest she was taken to the
Spinning House at a late hour and only cold water given to her to drink,
nothing to eat. She was ill during the night and called the under-matron who
was very cross and stated that she could not be called prior to her trial
before the Vice-Chancellor. She was given dry bread and tea after her trial.
She received for dinner a piece of coarse meat and two un-skinned potatoes
and some cold water. For supper at 7 pm, she was given some weak tea.
That was the average diet every day of her confinement. The bed she had to
sleep upon was a coarse matting hammock slung from the walls. She was
compelled to wash at the pump and although she complained of being ill, she
was made to scrub out the court and an out-house with cold water and a
brick. She complained that she was made a public show of and that a lady
visitor insulted her by suggesting that she was a notorious character and was
21
suffering from the evil effects of her life. The house adjoining the Spinning
House, occupied by the Head of Police overlooked the premises and the
servants there made objectionable remarks to the prisoners, it was
contended.
54.
Mr. Murphy QC, opening the case perhaps a little high, maintained that the
plaintiff was a girl of exemplary reputation and that she had been arrested
illegally on wrongful suspicion. Daisy herself gave evidence that the Proctor’s
man had wantonly seized her in the street, was violent towards her and had
torn her dress in arresting her. The defendants adopted the modern day
tactic of ignoring the legal issue and tearing into her reputation. Playing the
woman and not the ball, they set about proving that she was, indeed, a
prostitute and the trial was turned into an assessment of her moral character.
This tactic appeared to work as the action for damages was dismissed.
Notwithstanding the outcome, later public town meetings expressed
indignation and anger that the University could yield such unfair power over
Cambridge residents. Subsequently in 1894, the University’s right of “arrest
and expulsion of lewd women” was abolished and in 1901 the St. Andrew
Street Spinning House was demolished and replaced with a police station,
now apparently used as council offices.
55.
In the 140 years since Daisy Hopkins’ case, the habeas corpus procedure has
undergone considerable revision and development. Under our own law, the
Article 40 procedure remains the ultimate remedy. As we have seen, it enjoys
very considerable procedural advantages over its judicial review counterpart,
does not require prior leave to commence the proceedings, enables the
applicant to apply to any Judge of the High Court, who is then required
forthwith to enquire into the complaint. It requires the Court to permit the
production of the applicant and the certification of the grounds for the
detention and, being a non-discretionary remedy, constitutes a relief as of
right. If the initial ex-parte application is refused by a Judge, an applicant is
entitled to renew the same application before a different Judge, irrespective
of whether there has been a change of circumstance. A greater example of
the immediacy of the Constitution at work, is difficult to describe. Set deep
into the foundations of the Constitution itself, the Article 40 procedure is
immune from judicial or parliamentary tampering. As cases and
developments over the last number of years clearly show, the Article 40
procedure remains a prized resource.
ENDS
Micheál O’Higgins SC
12th March, 2013.
22