‘Temples of the Truth’1
Niall Nolan, Barrister
July 2014
Introduction
Delivering judgment in Jeffrey Mr. Justice Max Barrett so described our courts. He
did so in the context of a decision of particular interest to criminal practitioners. The
case involved a claim for damages for negligence and breach of duty in circumstances
where, Mr. Jeffrey having been convicted of certain road traffic offences, a garda
gave evidence that he had been convicted of a number of serious offences. However,
these convictions related to another individual of the same name. Regrettably
however, despite the fact that the mistake was corrected during the course of the
hearing, the erroneous list of convictions was reported prominently in local media.
After protracted correspondence a “Statement of Regret” was eventually extracted
from An Garda Siochana. Mr. Jeffrey was not sated and launched the aforesaid
proceedings. He lost. Judge Barrett helpfully set forth the principles to be gleaned
from the relevant case-law: “12. It appears to the court that the following key principles can be gleaned
from the above cases:
- first, any perceived damage that appears to arise for an individual as a
result of what transpires at or before court proceedings must be balanced
against the obligation of the courts to administer justice in cases coming
before them, an obligation which requires that witnesses be free to give
evidence without fear of consequences;
- second, in instances of “flagrant abuse”, to borrow from the judgment of
Barrington J. inLooney, there may be some bounds to the privilege; however,
this requires malicious and wanton behaviour of a type that was not present in
the Looney case and also does not arise in the present case;
- third, whatever form of action is sought to be derived from what was said or
done in the course of judicial proceedings is generally barred by the long
1
Per Barrett J., Jeffrey v. MJE & Ors [2014] IEHC 99
1
standing rule which protects witnesses in their evidence before the court and
in the preparation of the evidence which is to be so given.”
And with that memorable phraseology the judgment concludes: “13. The courts are temples of truth. That, at least, is the ideal. Within their
confines there should be a minimum of circumspection on what can be said so
that the truth can be determined and justice done. Were matters to be
otherwise, were witnesses to be exposed to the threat of any form of litigation
for what they said in court, truth would soon be the victim of unreal
expectations and our system of court-administered justice would quickly
founder. For this, and for the reasons identified above, the plaintiff’s action in
this case must fail.
What is the truth about the state of application of the judicial review jurisprudence
insofar as it is transacted in the arena of criminal practice? That is a question beyond
the reach of the writer, but what is true is that the dynamism of the case-law continues
to surprise, innovate and fascinate. Moreover it has also been recently decided that the
truth, albeit in a very discrete sense can form a particular basis for the granting of
judicial review relief.
Truth as a ground of review
In Richard McCann v Judge Anthony Halpin & The Director of Public
Prosecutions2 the Applicant sought judicial review on a number of grounds in the
context of a District Court hearing which bears some similarity no doubt to those
which many of us have had to contend with. It was marked one might say by
confrontation, hostility and no small amount of confusion.
The allegation was of criminal damage. Grounds based on inadequate reasoning and
interruptions of counsel were dismissed by Mr. Justice Cross. Relief was however
granted, firstly, on the basis of objective bias. In this regard the Court inter alia stated
at paragraph 38: “38. Here, I accept that the first named respondent appears to have entirely
misunderstood the nature of the submissions and also the nature of the role of
the defence and prosecution in this case. The prosecution witness had given
evidence of seeing a white taxi from which the applicant had allegedly
alighted which remained at the scene. Counsel was entitled to make
submissions and question the witness as to the unlikelihood of this. The first
2
[2014] IEHC 276
2
named respondent then erroneously suggested that there was no evidence that
the vehicle was a taxi when clearly there was some evidence and indicated
that in effect he would not accept that the vehicle was in fact a taxi unless the
defence produced a disc with the taxis badge number. It is, of course, never
incumbent upon the defendant to prove any aspect of the matter and I believe
that a reasonably informed observer might have on those exchanges in
relation to the taxi alone have formed the view there was Objective Bias in this
trial.”
The second basis upon which relief was granted was the finding that the “trial was
rendered unfair by reason of the failure of the prosecution authorities inadvertently to
disclose the true nature of their knowledge of the circumstances of the night in
question”.3
In this regard the judgment is also of particular procedural note as the Court allowed
the applicant to amend his grounds, as late as the hearing date, because the interest of
justice allowed it (para.55). The added ground for relief which ultimately found
favour with the court was “(d) the inadvertent failure by the prosecution to indicate to
the court that they had the evidence in support of the applicant when he stated under
cross examination that at a particular time he was in fact in custody and could not
have committed the crime if had occurred at that time was such to render the trial
unfair.”
Reasons – “No need to elaborate on the obvious”4
Two notable decisions have been delivered recently. Dismissing Mr. Kenny’s appeal
from the expansive judgment of the now retired Judge Iarlaith O’Neill delivered in
Kenny v Judge Coughlan & The DPP5, the Supreme Court has emphasised that
context is everything. The case concerned a conviction for a speeding offence
following a contest. Delivering the judgment of the Court Chief Justice Denham
stated: “24. As the case-law of the European Court of Human Rights indicates, and as
also stated earlier in this judgment, the degree and extent to which a decision
of the District Court must be explained by giving reasons will depend in turn
on the nature and circumstances of the case. In some cases it may be
necessary to succinctly but fully explain the reasons for the decision so that
the parties have a proper understanding of the reasons upon which it was
based. In this case the offence was simply that of speeding and the mode of
trial was summary. This was one of hundreds of such cases that come before
the District Court routinely every day of the week. There had been a clear
presentation of the issues by the parties, in adversarial proceedings. The
District Court Judge indicated that he preferred the evidence given on behalf
3
para.60
Per Denham CJ in Kenny v Coughlan & DPP
5
[2014] IESC 15
4
3
of the prosecution. The District Court Judge said that he was accepting the
evidence of the prosecution. In the circumstances that was sufficient reason.
There was no requirement for the trial judge in such a situation to elaborate
on the obvious.”
The second case of note is the decision of the Supreme Court delivered in Thomas
Murphy v Ireland & Ors6 delivered just a few days after Kenny. In this case Mr.
Murphy pursued inter alia a declaration that Section 46(2) of the Offences Against
the State Act 1939 (as amended) was repugnant to the Constitution of Ireland. It was
with recourse to this section that the DPP had certified that the prosecution of Mr.
Murphy with regard to certain revenue matters should take place not before a Jury,
but rather the Special Criminal Court. Numerous detailed alternative pleas were raised
by the Plaintiff. In this regard the refusal to give reasons for the decision to send the
case to the Special Criminal Court was complained of.
A number of important matters of procedure and substance were dealt with in the
single judgment of the Court, delivered by Mr. Justice Donal O’Donnell. In the first
instance and in the context of how constitutional challenges may be pleaded, the
Court stated as follows at paragraph 9: “9. It is not necessary that every challenge to the constitutional validity of an
Act of the Oireachtas be commenced by plenary summons. Such a course is
preferable where it is anticipated that a significant amount of oral evidence
will be necessary and where the process of exchange of pleadings can then
identify the issues to which evidence may be directed, and refine the legal
issues in dispute. In this case it is worth recalling that no evidence was called
at all. But where plenary procedure is adopted, then it is essential that the
matters be prosecuted with urgency and with a timetable which ensures that
the matter is determined promptly so as to occasion the shortest possible delay
to any pending criminal trial, and indeed to ensure that the state of
uncertainty which must necessarily effect other trials on the same offence, or
by the same procedure, is resolved, one way or another, as soon as possible.
The superior courts are over burdened and significantly under resourced but
they should, and do, give priority to cases of systemic importance or which are
causing delays in criminal trials. However, to accomplish this, the courts must
be aware of the case and its importance for other cases. There is a clear
obligation on the parties to bring the matter to the courts’ attention and to
seek expedition at the earliest possible stage. Furthermore, I do not consider
that it should be taken for granted that a trial, and indeed any subsequent trial
in which the same point can be said to arise, should be allowed to be
adjourned as a matter of course pending the outcome of the challenge. That
would be to give an applicant the benefit of an injunction without any
application to, or consideration by, a court. Such an acceptance could involve
in effect the suspension or disapplication of law enacted by the Oireachtas and
entitled to the presumption of constitutionality. Prima facie, the bringing of
this prosecution was a compliance with the law which continues to be binding
6
(Unreported O’Donnell J., 11th of March 2014)
4
unless declared repugnant to the Constitution by the only courts with
constitutional power to do so. If the law is not enforced over a protracted
period, but subsequently the challenge is rejected, there will have been great
damage to the system of law enforcement that is not capable of calculation or
repair. It is necessary for both parties to such a case to understand the
constitutional values in issue and to cooperate in agreeing a speedy timetable
to ensure the case is disposed of as soon as possible.”
In an illuminating passage on the standards that apply not only to jury trials but also to
prosecutions in the District Court, that is to say summary proceedings, the Court
stated:
“15. Article 38 is part of the section of the Constitution dealing with the courts
and the administration of justice. The provisions of Article 38.1 are absolute
and are not qualified by the succeeding sub-articles. Any person who is tried
on a criminal charge must be tried “in due course of law” whatever the court
in which that person is tried. The concept of “due course of law” comes with
an impressive lineage in the common law tradition. It undoubtedly imposes
limitations on the manner in which courts may be established, procedures
adopted and cases tried. For present purposes the important sub articles are
2, 3 and 5. Again, there can be no doubt that the Constitution intended that
trial by jury would be the standard template by reference to which all criminal
trials are to be measured. The constitutional importance of trial by jury
transcends the fact that such trials are very much the exception rather than the
norm today. Most criminal trials are summary trials in the District Court and
even the majority of trials on indictment are resolved by pleas of guilty. But in
summary trials the standards applied are those derived from trial on
indictment before a jury. Trial by jury is both an important constitutional right
of the citizen and a constitutional obligation on the State. It derives its
constitutional importance not just from its impressive place in the history of
the common law, but also because it provides for the direct involvement of the
people in the administration of justice.
To my mind, this passage underscores the solemnity and care that must attend the
disposal of criminal business before the District Court in terms of fundamentals such
as notice, disclosure, representation and inviting and considering submission etc.. As
this judgment serves to emphasise, there is no half-way house as regards the duty on
District Judges to act fairly and ensure fairness.
Returning to and elaborating upon the concept of context Judge O’Donnell stated at
para.31: “The question of an entitlement to reasons is intertwined with the availability
of judicial review. The requirements of procedural fairness are dictated by the
particular circumstances: there is no one size fits all. It cannot be said that the
5
decision of the Director of Public Prosecutions in relation to prosecutions
generally, or when deciding on a trial in a non-jury court, is beyond the scope
of judicial review. By the same token, that review, and any consequent
obligation to provide reasons, is limited. There is here, as in other areas of the
law, a tension between supposed demands of logic, and those of pragmatism
and experience. That is normally a healthy tension which encourages a review
of the solution reached and at times, incremental changes in the balance fixed
by the law. But any solution which does not at least recognise and address the
values on each side of the balance, can only achieve the comfort of such
clarity and certainty at the price of forfeiting respect.”
The Court’s section on ‘Reasons’ bears setting out in full, but of some substantial note
is that, although the various claims for declarations of invalidity were dismissed, the
Court nonetheless pronounced at para.42 that certain obligations rested on the DPP in
the context of the discussion of the subject matter and essential feature of the appeal.
In this regard the Court stated: “Reasons
39. In Mallak v. The Minister for Justice, Equality & Law Reform [2012]
IESC 59 (hereinafter “Mallak”) Fennelly J. sought to identify a rule of
general application in administrative decision making. In an elegant passage
at paragraphs 66 and 67 he said as follows:
“In the present state of evolution of our law, it is not easy to conceive of a
decision-maker being dispensed from giving an explanation either of the
decision or of the decision-making process at some stage. The most obvious
means of achieving fairness is for reasons to accompany the decision.
However, it is not a matter of complying with a formal rule: the underlying
objective is the attainment of fairness in the process. If the process is fair,
open and transparent and the affected person has been enabled to respond to
the concerns of the decision-maker, there may be situations where the reasons
for the decision are obvious and that effective judicial review is not precluded.
Several converging legal sources strongly suggest an emerging commonly
held view that persons affected by administrative decisions have a right to
know the reasons on which they are based, in short to understand them.”
40. However, the decision in Mallak was rather more nuanced than a simple
citation that these paragraphs would suggest. The judgment points to s.18(2)
of the Freedom of Information Act 1997 which introduced in to Irish law a
statutory entitlement to reasons. However, the Director of Public Prosecutions
is not subject to that Act in respect of prosecutorial
decisions. Mallak undoubtedly brings the common law on the duty to give
reasons into line with the obligations of statute, but it does not address the
question whether the common law requires decision makers to go further than
the statutory requirement. Put another way, the considerations which
underpin the limitation and the scope of the statutory right to reasons may
6
also be effective at common law. The decision in Mallak refers, without
disapproval, to the decision in Eviston v. The Director of Public
Prosecutions and also to The State (Lynch) v. Cooney where there was limited
right of review and no reasons were provided until the High Court hearing.
Perhaps most notably, the decision inMallak contemplated the possibility at
paragraph 77 that a decision maker could comply with the requirements of the
law not by disclosing reasons but rather by “providing justification” for
refusing to do so.
41. The obligation to give reasons is, as has been observed, dependent upon
and a reflection of, the reviewability of the decision and the scope of that
review. The decision made here is at the end of the spectrum where review is
most limited and attenuated. This is because of the subject matter of the
decision, the sensitivity of the matters routinely considered, and the fact that
the end result of a decision to prosecute will be a trial in open court pursuant
to the dictates of Article 38.1. The category of reasons which apply in the
context of the Offences Against the State Act are reasonably well known. They
are in part contained in the decision of the government to bring Part V into
operation on the grounds that the ordinary courts are inadequate to secure the
effective administration of justice and the preservation of public peace and
order, and also in the Director of Public Prosecution’s certificate that those
conditions mean that the administration of justice and preservation of peace
and order cannot be secured in the individual case. There is, as Barrington J.
observed, in Kavanagh, certain logic to these matters not being the subject
matter of a court decision. Casey in The Irish Law Officers observes at page
302:
“Since the Constitution expressly contemplates the establishment of special
criminal reports, there can be no question as to their validity. Given this, it is
necessary to provide some means of selecting the cases to be tried in those
courts. It is obviously impossible to draw up a list of “Special Criminal Court
offences”. The scheduled offences goes some way in that direction but since
virtually any offence may be committed for political reasons … there must be
some way of segregating appropriate cases and directing their trial in the
Special Criminal Court. It is difficult to see how this can be done otherwise
than by vesting discretionary authority in the public prosecutor”.
42. It also follows from the decision of the government and the certificate of
the Director of Public Prosecutions that it is highly likely that the reason why
the Director of Public Prosecutions considered that the ordinary courts are
not adequate to secure the administration of justice in the particular case must
relate to the connections of the individual with organisations which are
prepared to interfere with the administration of justice. Nevertheless, trial by
jury is a constitutional requirement in those cases to which it applies. A
decision which has the effect of removing a case which would otherwise be
tried by a jury to be tried by a judge or judges alone is a decision which must
comply with the dictates of the Constitution. Accordingly, the Court considers
that it is necessary in such a case that the Director of Public Prosecutions, if
requested, should either give such reason, or, as contemplated in Mallak,
7
justify a refusal to do so. While this, in most cases, may be an entirely
predictable step, it is nevertheless an important one in an area where there is
a significant limit on the jurisdiction of the courts and it is desirable that such
an obligation should be required where that duty to give reasons can be
complied with without damage to the other public interests involved.
43. Where the Director is making a decision that is subject to only limited
review by a court and has the result that a trial which would otherwise take
place before a jury would be heard without a jury, then the Director is under a
duty to give reasons for that decision which extends to why he or she considers
that the ordinary courts are not suitable for a trial of this accused. As
indicated in Mallak, in an appropriate case it may be sufficient to state that no
reason can be given without impairing national security. A statement of
reasons that the Director of Public Prosecutions believes the accused to be a
member of, or associated with, an organisation that is prepared to interfere
with the administration of justice, or even justifying the non-delivery of such
reasons, will be sufficient unless the accused challenges the decision and
provides sufficient information to the court, to presumptively undermine the
Director’s reasons. As, for example occurred in The State (Lynch) v. Cooney,
it may be permissible at that stage for the Director to amplify and explain any
reasons if thought desirable. It follows however that the entitlement to obtain
such reasons does not carry with it any right contended for by the plaintiff to
obtain the gist of information grounding such a decision, or to have a hearing
or to make submissions before a decision is made. The facts and argument in a
case such as this lie in a fairly narrow compass. The question in any case is
whether the Director of Public Prosecutions was entitled to consider that the
ordinary courts were inadequate to secure the administration of justice in a
particular case. Review of such a decision should be the exception and never
the routine, and only when an accused person can put forward a substantial
case that the decision making process has miscarried. The legal position
outlined above balances the desirability of reasoned decision making to
strengthen the administration of justice with the necessity to ensure that the
process is tightly controlled to avoid routine disclosure and review which
could undermine it.” (Underlining added)
Article 40.4.2 of The Constitution 1937
The most recent Supreme Court pronouncements on the constitutional remedy for
unlawful detention were delivered recently by the Chief Justice and Mr. Justice
O’Donnell in Farrell v The Governor of St. Patricks Institution7. The case concerned
whether a stay granted at the leave stage in a judicial review application prevented a
District Court making a further order remanding an accused in custody. Mr. Justice
Hogan in the High Court believed it did. The Supreme Court disagreed.
7
[2014] IESC 30
8
Mootness and it’s scope and ambit in the context of the application and judgments
loomed large. Given the systemic importance of the issue, the Supreme Court pressed
on with the substantive issues. In his judgment Mr. Justice O’Donnell opened
emphasising the importance and singularity of the jurisdiction: “2 The remedy of Article 40.4 is the great remedy available to citizens and all
persons with access to the jurisdiction of these courts. Its strength is its
simplicity and its speed. It is meant to address – forthwith – the question of the
lawfulness of the custody or detention of any individual. The order which the
Court makes at the conclusion of the inquiry is either to order the release of
the person, or not. The urgency with which the courts are obliged to, and do,
treat such applications is itself an illustration of the importance of the
Constitution attached to this remedy as a foundation of liberty within the State
itself and essential component in the constitutional order created by the
Constitution. Liberty, in the full meaning of the word is fundamental to both
the exercise and enjoyment of the rights identified in the Constitution and the
functioning of the democratic structure created by it. But the fact that such
matters must be dealt with speedily by the High Court, and where necessary
on appeal by this Court, can also mean that the law can develop in a staccato
fashion with each individual case no more than an illustration of the reasons
why the remedy was granted or refused in that case. Much of the case law has
been gathered, and valuably analysed in Dr Kevin Costello’s impressive
work The Law of Habeas Corpus in Ireland (Dublin; Four Courts Press;
2006), but that exercise in scholarship only illustrates the desirability of more
comprehensive review by reference to principle and authority.”
On the substantive issue the Chief Justice stated inter alia: “61.
It is clear that a stay order is not an order terminating proceedings. It is
an order staying, postponing, suspending the proceedings. It is an order
maintaining the status quo. Thus, the proceedings being stayed, in this case
the proceedings in the District Court, are to be maintained in a holding
pattern, the status quo, until the termination of the application for judicial
review.
62. It is clear, therefore, that a stay does not have the effect of terminating
proceedings. Rather a stay leaves the proceedings in being but prevents the
proceedings from progressing in any significant way. To the extent that it
might be suggested that it was appropriate that some progress might be made
in the proceedings, notwithstanding a stay, then that is a matter to be
addressed to the judge granting the stay. An application can be made to that
judge to make the stay subject to terms which would permit whatever progress
might be considered desirable. In the absence of such terms, a stay will
prevent the proceedings from significantly progressing. That does not,
however, mean that any orders necessary to allow the proceedings to continue
in being, albeit in a “holding pattern”, cannot be made.
9
Thus the real question is as to whether any order sought to be made is one
which is consistent with or contrary to the fact that the proceedings are
stayed. Orders which are a necessary part of keeping the proceedings in being
are entirely consistent with a stay for they do not progress the proceedings in
any material way but simply allow the proceedings to continue in their holding
pattern. On the other hand different types of orders which would have the
effect of materially progressing the proceedings are contrary to a stay and
cannot be made in the absence of a specific provision in the stay order
qualifying the terms of the stay in such a way as to permit orders of the type in
question to be made.
63. However, the granting of leave to apply for judicial review, and a stay
pending the determination of the application for review, do not terminate the
underlying proceedings the subject of the judicial review. The underlying
proceedings are suspended pending the review.
64. Any other interpretation would have the effect that, on an ex
parte application for leave to apply for judicial review where the DPP was not
on notice or a party to the application, the prosecution process would be
effectively terminated.
65. Consequently, the granting of a stay by the High Court on an application
for judicial review postpones or suspends the proceedings relating to the
criminal trial, the subject of an application for Judicial Review, but it does not
terminate the proceedings, or mean that a District Court Judge could not
continue to make orders while the proceedings are suspended, such as to
remand an accused in the circumstances, provided that any such orders are
required to maintain the proceedings in being and are not contrary to the stay.
Thus, the District Court continued to have jurisdiction to make such an order,
pending the determination of the application for Judicial Review.”
In FX v the Clinical Director of the Central Mental Hospital8 the Supreme Court
appeals essentially concerned the processes by which Mr. X was sent, from the
Central Criminal Court to the Central Mental Hospital, having been found unfit to be
tried. The Court identified four issues that required resolution namely:-
“(i) Whether the High Court had the jurisdiction to conduct an Article 40.4.2
inquiry into the lawfulness of a detention ordered by the Central Criminal
Court.
(ii) Whether the High Court, satisfied that the detention of the respondent was
unlawful, was permitted to place a stay upon the order for release under
Article 40.4.2 of the Constitution.
8
[2014] IESC 01
10
(iii) Whether s.4(5)(c)(i) of Criminal Law (Insanity) Act 2006, as amended
required the Central Criminal Court, once satisfied that the accused was unfit
to be tried, to adjourn the proceedings in order to consider the evidence of an
approved medical officer adduced pursuant to s.4(6)(b) of the Act of 2006.
(iv) Whether the decision of the Review Board dated 27th April, 2012
replaced the order of the Central Criminal Court dated 26th March, 2012 as
the basis of the respondent’s continued detention.”
The Court answered the questions as follows:(i)
Yes (upholding the High Court ruling on the point)
(ii)
Quotation from Denham C.J. –
“79. There is no provision in the Constitution for a stay. Consequently,
any order, such as was made in N. v. HSE, is made in the process of
controlling the release, for the purpose of protecting the person who is
incapable of protecting themselves.”
(iii)
Quotation from Denham C.J. –
“82. The High Court held that the Oireachtas had added a layer of
protection for the benefit of an accused person found unfit to plead and
had established core protections for vulnerable persons. The learned
High Court judge acknowledged that in this case compliance with the
two stage procedure would have been most unlikely to have altered the
result. However, he held:“43. In summary, therefore, I am left with the inescapable conclusion
that the [respondent’s] detention became unlawful after the initial
fourteen day period of detention, inasmuch as the section precludes the
making of an order for indefinite detention in the Central Mental
Hospital (subject to the making of an order by the Review Board under
s. 13 or s. 13A) under s. 4(5)(c)(i) without the court first having heard
the evidence of the approved medical officer adduced pursuant to s.
4(6)(b). This failure is apparent on the face of the order of the
Central Criminal Court.” (emphasis in original)
83. I agree with the statutory interpretation given by the learned trial
judge, and would affirm the judgment of the High Court on this aspect
of the case.”9
9
Essentially what had happened was that a final order had been made by the Central Criminal Court committing
Mr. X for treatment to the CMH in circumstances where steps that should have been taken prior to such a final
order had not been taken, this is to say committal to the CMH in the first instance for the purposes of
examination, assessment and report to the criminal court, in this case the Central Criminal Court, which then,
having considered such report, could make the order committing Mr. X for in-patient care, subject to review
pursuant to S.13 of the Act
11
(iv)
Given the circumstances of the case, the Court did not find it necessary
to address this question
The guidance the judgment offers on the vexed question of whether, when parties are
confronted with illegality, the appropriate remedy is appeal, judicial review or an
application pursuant to Article 40 of The Constitution is of particular assistance. In
this regard the Supreme Court, with Chief Justice Denham delivering the sole
judgment of the 5 member Court stated:
“65. In general, if there is an order of any court, which does not show an
invalidity on its face, then the correct approach is to seek the remedy of appeal
and, if necessary, apply for priority. Or, if it is a court of local jurisdiction,
then an application for judicial review may be the appropriate route to take. In
such circumstances, where an order of the court does not show any invalidity
on its face, the route of the constitutional and immediate remedy of habeas
corpus is not the appropriate approach.
66. An order of the High Court which is good on its face should not be subject
to an inquiry under Article 40.4.2 unless there has been some fundamental
denial of justice. In principle the appropriate remedy is an appeal to an
appellate court, with, if necessary, an application for priority. Thus, the
remedy under Article 40.4.2 may arise where there is a fundamental denial of
justice, or a fundamental flaw, such as arose in The State (O.) v.
O’Brien [1973] 1 I.R. 50, where a juvenile was sentenced to a term of
imprisonment which was not open to the Central Criminal Court.
67. In Costello, the Law of Habeas Corpus in Ireland, it is stated that “The
institutional precedence of the Court of Criminal Appeal over habeas
corpus is long established.” (Four Courts Press, 2006, p. 207). In The State
(Cannon) v Kavanagh [1937] I.R. 428, Maguire P. dismissed an application
for habeas corpus where the applicant could appeal to the Court of Criminal
Appeal. In the The People (A.G.) v. Edge (1942) 76 ILT & SJ 199, an
application for habeas corpus by a prisoner convicted of the offence of
kidnapping, which he subsequently established was not known to the law, was
adjourned until the appeal in the case was determined by the Court of Criminal
Appeal. In Kelleher v. The Governor of Portlaoise Prison (30th October,
1997, Hamilton, O’Flaherty, Murphy JJ.) while accepting that in exceptional
circumstances the court could entertain a point under a complaint under
Article 40.4.2 while there was an appeal pending, this Court, in an ex tempore
decision, dismissed the application. It was stated:“If there is any validity in the submissions made by [counsel for the applicant]
in this regard the proper venue for the determination of these issues is the
Court of Criminal Appeal which the [applicant] has already applied for leave
to appeal against his conviction and sentence. It is submitted by [counsel for
the applicant] that there are exceptional circumstances in the case which
would justify this Court directing the High Court to conduct a full inquiry into
12
the lawfulness of the detention… These are questions that occur regularly in
the course of proceedings in the Criminal Courts and before the Court of
Criminal Appeal and in my opinion there is nothing exceptional about the
circumstances of this case.”
68. The existence of an appeal procedure capable of correcting errors is itself a
part of the due course of law. In The State (McDonagh) v. Frawley [1978]
I.R.131, O’Higgins C.J. observed that when a person is detained for execution
of sentence after a conviction on indictment he is prima facie detained in
accordance with law, and:
“The stipulation in Article 40, 5.4, sub – 5.1, of the Constitution that a citizen
may not be deprived of his liberty save ‘in accordance with law’ does not
mean that a convicted person must be released on habeas corpus merely
because some defect or illegality attaches to his detention. The phrase means
that there must be such default of fundamental requirements that the detention
may be said to be wanting in due process of law.”
69. In cases involving detention under the Act of 2006, orders of detention
may be subject to appeal under s.9 of the Act to the Court of Criminal Appeal
which may consider the evidence and make any order which was open to the
court of trial to make.”
In Cirpaci v The Governor of Mountjoy Prison10 these dicta fell for
consideration by the High Court, the Respondent contending:
“that in the light of the decision of the Supreme Court in FX v. Clinical
Director of the Central Mental Hospital [2014] IESC 1 an applicant who had
been convicted by a lower court could normally only proceed by way of an
Article 40.4.2 applicant in cases where the warrant was not good on its
face”
Rejecting this proposition the High Court (Hogan J.) stated as follows:
“26. It follows, therefore, from a consideration of this case-law that the Article
40.4.2 jurisdiction remains a broad and flexible one. It is, however, not as
confined as the respondents suggest. It is rather the case that Article 40.4.2
shines as a beacon of liberty which will never deny refuge to an applicant
who can show a fundamental breach of constitutional rights or the existence of
some other significant defect attaching to the warrant or order providing for
his or her detention.”
The “broadness and flexibility of the Article 40.4.2 jurisdiction” was also emphasised
in the decision of Mr. Justice Barrett delivered very recently in Ryan v Governor of
Midlands Prison11 which will be referred to in greater detail below.
10
11
[2014] IEHC 76
(Unreported 2/7/14)
13
In Byrne (A Minor) v Director of Oberstown School12 the application for release
centred on the failure of our laws to provide remission of sentence for those sent to
the detention school at Oberstown. A charge of unconstitutional discrimination was
levelled against the State given that other prisoners in the system received the benefit
pursuant to statutory provision. Mr. Justice Hogan found that there existed an
“unconstitutional lacuna” and concluded and ordered as follows: -
“52. In summary, therefore, I have found that the language and structure of
the 2001 Act entirely negative the argument that detention at a children
detention school such as Oberstown is essentially different in law to detention
at another juvenile detention facility such as St. Patrick’s Institution. In those
circumstances, any objective justification for the markedly different treatment
of young offenders detained at Oberstown by denying to them the benefit of the
remission rules which apply, for example, to offenders detained at St.
Patrick’s Institution simply falls away. It follows, therefore, that the failure to
afford such offenders with the benefit of the remission rules amounts to a plain
breach of the constitutional command contained in Article 40.1 of equality
before the law.
53. Had Rule 59 of the 2007 Rules been applicable to the applicant he would
have been entitled to be released from Oberstown on 26th November 2013. Yet
any continuing detention beyond that date amounts to a continuing violation
of his constitutional rights by failing to afford him the remission entitlements
available to similarly situated juvenile offenders: see here by analogy the
judgment of O’Flaherty J. in O’Brien.
54. In these circumstances it must be adjudged that by reason of the continued
application to him of this unconstitutional legislative omission, the applicant’s
continued detention at Oberstown is not in accordance with law. In
accordance, therefore, with the requirements of Article 40.4.2 of the
Constitution, it follows that I must direct his release from that custody.”
AB v The Commissioner of An Garda Siochana13 concerned a situation where the
Central Mental Hospital refused – it seems because of a waiting list - to comply with a
District Court order that it receive and assess Mr. B over a period of 14 days before
reporting to the court as to whether in-patient or out-patient care might be appropriate.
This was following a finding of the Court that Mr. B was not fit to be tried. Mr. B was
taken back to the District Court and asked by the Hospital’s counsel to reconsider it’s
order. It refused to do so. Mr. B ended up in Garda custody. MacEochaidh J ruled
inter alia as follows:
12
13
[2013] IEHC 562
[2013] IEHC 88
14
“22. An Garda Siochana are not entitled, much less obliged, to detain a
person in the position of A.B. indefinitely in the hope that a bed becomes
available in the Central Mental Hospital as this would involve the indefinite
detention of a potentially very unwell person in the unsuitable surrounds of a
Garda station.
23. In view of the impossibility of executing the warrant I decided that the
custody of A.B. in the hands of An Garda Siochana was without lawful
authority.”
By virtue of the fact that the applicant was still suffering from mental ill-health, the
Court was troubled as to what the effect of immediate and unsupervised release would
be. It dealt with this aspect of the case as follows:
“31. The solution which the court, with the cooperation of counsel for the
applicant, counsel for An Garda Siochana and other parties present, devised
was to order A.B.'s immediate release, but with the comfort that An Garda
Siochana would, shortly after his release, take him into civil custody under s.
12 of the Mental Health Act 2001 for the purposes of securing medical
attention for him"
A number of successful Article 40 applications have been moved in recent times on
the grounds of defects in committal warrants. In this regard the case of Louise Joyce v
The Governor of the Dochas Centre14 applying the decision of the Supreme Court in
GE v The Governor of Cloverhill Prison15- delivered in the immigration context - to
the criminal detention context, is perhaps the most significant for present purposes.
Directing release Mr. Justice Hogan ruled:
“..it seems to me that I am obliged to conclude that the warrant by reference
to which the applicant is currently detained is bad on its face in that it does
not disclose the offence of which she was convicted. In the light of the
Supreme Court's decision in G.E. v. The Governor of Cloverhill
Prison [2011] IESC 41, (Unreported, Supreme Court, 28th October, 2011), I
must therefore direct the applicant's release pursuant to Article 40.4.2ø as I
am not satisfied that she is detained in accordance with law.”
An unusual case in this line is provided by the decision of Ms. Justice Baker in Gary
Miller v. The Governor of Midlands Prison16. In this case an Article 40 application
was pursued and an enquiry directed on the basis that a short form committal warrant
which issued following a Circuit appeal was defective in the “Louise Joyce” sense. At
the return to the enquiry the Respondent attempted to distinguish the cases by citing
“unique signifiers” appearing on the “Miller” warrant and the fact that it detailed the
actual sentences imposed. Moreover at the return a “long form warrant” was produced
which recited the required full details. This was produced in the knowledge that an
Article 40 application had been commenced. An ancillary argument from the
14
[2012] 2 IR 666
[2011] IESC 41
16
[2014] IEHC 176
15
15
Respondent was that one could pool available documentation which, when read
together, could provide a lawful basis for detention.
The Court found the “short form” warrant defective.
On the pooling of documentation the Court further ruled:
“27. These judgments clearly point to the court having a jurisdiction to hear
evidence which can explain the facts in the warrant and are authority for that
proposition. The jurisdiction of the court, however, is discretionary and
in McMahon v. Leahy [1984] 1 I.R. 525 , McCarthy J., at p. 547, was not
prepared to "overlook the careless approach and lack of attention to detail"
which he found in what was, in that case, an extradition warrant. The court
indicated that one might overlook "patent errors in a printed document" but
that there were circumstances when this would not be exercised in favour of
the respondent. I am not satisfied that there exists any unusual or special
circumstances that might require me to exercise my discretion in this case not
to admit the additional evidence, especially as I can do so without any oral or
extrinsic evidence or any explanation which cannot be gleaned from the face
of the documents offered by the respondent
Application of the law to the facts: the question of the joinder of documents
28. In the case of the short form warrant, I am of the view that it is possible
without hearing any extrinsic evidence or making any extrapolation of fact to
directly link the short form warrant, which contained express individual
signifiers, to the Circuit Court orders themselves as certified by the County
Registrar, and these orders contain the same records numbers as appear on
the face of the short form warrant.
29. In the circumstances, and having regard to clear authority on the subject
that the court may seek and find clarification and assistance in the records of
the court to assist in interpreting the grounds for detention, my view is that the
short form warrant when taken together with and joined to the Circuit Court
orders form a sufficient basis for the detention of the applicant. I say this
expressly because it is possible to join these documents without having to
engage with any extrinsic evidence and because the short form warrant
16
contains, on its face, sufficient and unique signifiers which enable the link to
be made..”
The “long form warrant” which was produced was also found to be in order and
would have rendered the detention lawful but the postscript to the judgment explains
that this was not so. The Judge directed release because the documentation placed
before her and which seemed to justify detention never got to the Governor until an
inordinate amount of time post legal argument in the case.
Some slight retrenchment from the advanced position of “warrant law” to secure
release occurred in the case of MC v Director of Oberstown Detention School17 .In
this case Mr. Justice McDermott refused to order release. On the warrant point the
Court ruled as follows: “18. The Warrant is also challenged. It is on its face said to be a
“COMMITTAL TO REMAND CENTRE ON REMAND” under s. 88(1)(c) of
the Children Act 2001. The incorrect sub-section of the Act is relied upon. The
original s. 88 was substituted by a new s. 88 under s. 135 of the Criminal
Justice Act 2006, concerning the requirements applicable to the remand in
custody of a child. The wording of the substituted s. 88(1)(a) is identical to
that of the former section 88(1)(a). The remainder of the substituted section
contains a number of changes to the provisions applicable to a child who is
remanded in custody. It is claimed that the words “as substituted by” should
appear on the face of the Warrant. I am satisfied that this is not necessary. It
is also submitted that there is a more fundamental defect in that s. 88(1)(c)
was relied upon in the heading of the Warrant rather than the correct section
88(1)(a). Section 88(1)(c) refers to a situation when the court decides to
remand a child in custody “in respect of whom the court has postponed a
decision”. This is clearly not such a case. The citation of the subsection is
inappropriate- but is it fatal to the warrant? I do not consider that it is. A want
of form, ambiguity or error may be corrected or resolved by reference to other
documentation or to what actually transpired at a hearing (see The State
(Brien) v. Kelly [1970] I.R. 69 and In re Tynan [1969] I.R 273).For that
reason the slip rule exists and an error such as that which occurred in this
case might be easily corrected by application under the District Court Rules in
that regard. There is in fact no ambiguity or uncertainty as to the order which
the learned District Judge intended to make. It is abundantly clear on the face
of the order. The applicant was being remanded in custody to Oberstown
School, Lusk, County Dublin to appear before Court No. 2, Criminal Courts of
Justice, Dublin 7 at 10.30 a.m. on the 22nd April to be further dealt with in
accordance with law in respect of the two charges attached.”
Judge McDermott also refused relief on a ground that the District Judge failed to take
17
[2014] IEHC 222
17
into account certain matters he was required to consider under S.2(2) of the Bail Act
1997. As part of his rationale for so doing he stated:“I do not consider that the failure to utter the words that he was taking
account of the likely sentence that may be imposed establishes such a default
of requirements as to render his decision fundamentally flawed.”
Missing Evidence
The two most significant recent cases both involve Supreme Court appeals.
The first in time is Wall v The DPP18. The Supreme Court split 4:1. Mr. Justice
Hardiman, the sole dissenting voice who would have stopped the trial from
proceeding, commenced his lengthy judgment putting the issues as follows: “In my view, this is a case of very great importance. It is about whether the
Gardaí can prosecute a citizen on a serious charge, based on eye witness
testimony alone, without taking what is said to be an obvious step to gather
forensic evidence (fingerprints) which has the potential to contradict the eye
witness testimony. No explanation has been given of the failure to take
fingerprints, or of the destruction of the sole item from which the prints could
have been taken, without even informing the defendant of what was alleged
against
him.
The appellant, Jason Wall, is a young man from South County Dublin. He has
no previous convictions. He was a back seat passenger in a Honda car driven
by a young woman on her first provisional licence. The car went on to its
wrong side of the road and struck an oncoming vehicle. The front seat
passenger, another young woman, was tragically killed in the impact. The
party in the Honda were returning from a christening celebration in a public
house, about half past midnight one night in mid-August.”
He concluded same inter alia disavowing a proposition that seems to have influenced
his colleague, Mr. Justice O’Donnell, to withhold relief. This proposition had to do
with the role of “culpability”. In this regard Mr. Justice Hardiman stated: “At para. 24 of the same judgment my colleague remarks that:
“There is no doubt that if a fingerprint examination had been
carried out, or the vehicle retained, that these arguments could
not have been made, but the question whether a trial should be
prohibited depends on an analysis of the culpability of the
18
[2013] IESC 56
18
omission, and the materiality of the evidence which was not
obtained in the context of the case as a whole.”
I wish entirely to disavow the notion of an analysis of the “culpability” of the
failure to carry out a fingerprint test or failure to retain the vehicle.
Culpability for these things could only be culpability of the Gardaí. There is
no support whatever in the existing jurisprudence for the view that this
jurisdiction exists to police the Gardaí, and I wish to disavow that proposition
entirely. The Gardaí are already subject to the ordinary criminal law, their
own disciplinary code and in some sense to the Garda Inspectorate: another
forum of responsibility is hardly needed. On the contrary, on the existing
authorities, the entire focus of these cases must be whether it has been shown
that the defendant has incurred a real risk of an unfair trial. One cannot
analyse with any precision, either, “the materiality” of evidence which has
been lost or destroyed without examination: as I have said supra, that is why a
“real risk” of prejudice is all that can possibly be shown. The defendant is not
responsible for the loss of the item which should have been examined before
the Gardaí allowed it to be destroyed.”
In the course of his own lengthy and expansive treatment of the issues, Judge
O’Donnell queried why the substantive questions require to be litigated by judicial
review. He stated:
““Why is the issue of missing evidence (and/or delay) dealt with by
way of judicial review?
7. Scrutiny by way of judicial review in anticipation of a trial has obvious
practical and unhelpful consequences both in terms of the delay of any trial,
and the consequential increase in burden upon the Superior Courts. It thus
requires to be justified. However, even assuming a perfectly resourced system
both in trial and appellate courts –and that is an ideal unlikely ever to be
achieved in practice – there are other significant problems with the system of
judicial review when used to determine issues relating to missing or lost
evidence. Judicial review is a system designed, or at least intended, to provide
a speedy determination of issues relating to the jurisdiction of inferior courts.
It is well adapted to determine precise issues of law. It is poorly adapted for
the resolution of factual matters, particularly when those issues are to be
determined in advance of a trial and through the imperfect lens of affidavits
necessarily drafted by professional advisers and which, perhaps
understandably, seek to maximise that party’s case while exercising caution
about revealing testimony capable of being deployed against the party in the
event that a trial might ensue. Looked at from the vantage point of function
and efficiency, it might be thought that the examination of facts and the impact
of the presence or absence of such facts upon the fairness of a trial should
take place in the trial court with the possibility of review on appeal. However,
19
currently, such claims are addressed by judicial review. If the Constitution or
more general principles of fairness demands that this be so, then it must
indeed be so. But it is a process which, at a minimum, requires justification.
8. The doctrinal source of what appears to be a jurisdiction unique to Ireland,
whereby questions of missing and lost evidence are adjudicated in advance
through the mechanism of judicial review, is a single short passage in the
judgment of this court in The State (O’Connell) v. Fawsitt [1986] I.R. 362.
That case involved a challenge to a case then awaiting trial in Cork Circuit
Court not on grounds of missing evidence but because of the undue delay in
securing a trial date, and a consequent alleged prejudice caused by the
absence and unavailability of witnesses. The context of the case, it appears,
was a lack of resources and growing delays in particular at Circuit Court
level rather than any more general principle.
9. In the High Court Murphy J., having carefully reviewed the case and case
law both domestic and international, refused prohibition. He considered it
important that the delay in question was largely located in the delay in having
a case listed for hearing and therefore, only occurred after adjournment
applications made to, and considered by, the trial court. It followed therefore
that the delay was at least being monitored by the court. He expressed the
view that the trial court should, at least in the first instance, deal with the
question of the impact on the case of such delay. He continued:
“… not only would the judge have been conscious of these factors but he
would have been well aware of the powers which a trial judge would have had
to give appropriate warnings or direction to the jury to prevent any injustice
arising as a result of any such defect. Indeed in granting any application for
an adjournment or in permitting the trial to continue at any time in the future
a judge of the Circuit Court has the same duty as this court to recognise and
vindicate the constitutional rights of the accused. Accordingly, if the learned
Circuit Court judge is satisfied that, in all of the circumstances of the case as
established before him, that the delay was excessive or unduly prejudicial to
the prosecutor, it would be the right and duty of the Circuit judge to dismiss
the pending charges and I have no reason to doubt that he will adopt that
course if it is appropriate so to do. In recognising the rights, powers and
duties of the trial court I do not intend in any way to abdicate the functions or
duties of this court. Rather I am concerned that the case made on behalf of the
prosecutor involves a combination of arguments and propositions some of
which involve differences of emphasis if not indeed disputes of facts; others
are based upon problems which are anticipated but either may or may not
materialise or may be resolved at or prior to the trial. It is only the delay
which is an undisputed objective fact and even in relation to that I believe that
it would be preferable for the court which granted the adjournments from time
to time to deal with the matter in the first instance at any rate.” (p. 374)
10. The Supreme Court reversed the High Court decision and allowed the
appeal. In a short judgment, Finlay C.J. (with whom Walsh, Henchy, Griffin
and McCarthy JJ. agreed) quoted a portion of the judgment of Murphy J.,
including the passage set out above up to the words “I have no reason to
20
doubt that he will adopt that course if it is appropriate so to do”. The essence
of the decision of the Supreme Court is to be found in a subsequent paragraph
of the judgment which it is desirable to set out in full:
“I have come to the conclusion that, in this portion of the judgment, the
learned trial judge was in error. I am satisfied that if a person’s trial has been
excessively delayed so as to prejudice his chance of obtaining a fair trial,
then the appropriate remedy by which the constitutional rights of such an
individual can be defended and protected is by an order of prohibition. It may
well be that an equal remedy or alternative remedy in summary cases is an
application to the justice concerned to dismiss because of the delay. In the
case of a trial on an indictable charge, however, I am not satisfied that it is
correct to leave to the trial judge a discretion as to whether, as it were, to
prohibit himself from letting the indictment go forward or whether to let the
indictment go forward. A person charged with an indictable offence and
whose chances of a fair trial have been prejudiced by excessive delay should
not be put to the risk of being arraigned and pleading before the jury.”
(emphasis added) (p. 379)
11. It is not apparent why the uncontroversial conclusion that judicial review,
is capable of being an appropriate remedy in cases of missing evidence or
delay, should necessarily lead to the conclusion that it is the exclusive remedy.
Furthermore, the rejection by the Supreme Court of the High Court’s
reasoning in The State (O’Connell) v. Fawsitt relying on the capacity and
indeed duty of the trial judge to guarantee the fairness of the trial, is not easy
to reconcile with subsequent repeated statements in this court emphasising the
role of the trial judge in ensuring such fairness: See for example Dunne v.
Director of Public Prosecutions [2002] 2 I.R. 305, p. 336, per Fennelly J.;and
D.C. v. Director of Public Prosecutions [2005] 4 I R. 281, p. 283, per Denham
J.; and indeed the judgment of Finlay C.J., in Daly v. Director of Public
Prosecutions (11th April 1994) in which he appeared to endorsed similar
observations made by the High Court judge in that case as to the duty of a
trial court to ensure fairness. Nor is it readily apparent what logical
justification there is for the distinction drawn between trials in the District
Court and trials on indictment, both of which are required to adhere to the
constitutional standard of trial in due course of law.
12. The logic of the decision in The State (O’Connell) v Fawsitt, in identifying
judicial review as the exclusive remedy, also leads to an unusual situation
where it is sought to challenge trials occurring in the Central Criminal Court
on the grounds of missing or lost evidence or indeed delay. Since the basis of
judicial review is the power of the High Court to exercise control over inferior
courts and tribunals acting in excess of jurisdiction, such review is not
available in respect of decisions of the High Court itself. Accordingly it has
become the practice that an applicant in such a case seeks instead to prohibit
the Director of Public Prosecutions from continuing with such a trial. But at
least from a conceptual level, this seems to blur the distinction between the
prosecutor and the trial court.There is much to be said for the observation
that prosecutors prosecute cases, trial courts try cases, appeal courts hear
21
appeals, and the Superior Courts have a residual power of review whether by
way of prohibition in advance, or certiorari afterwards, and it is unhelpful to
confuse those roles. It is the court not the prosecutor which has the obligation
and the jurisdiction to conduct the trial.
13. Indeed, while it is not necessarily a touchstone for the correctness of any
result, I consider that if the trial courts had a jurisdiction to dismiss an
indictment or stay a prosecution on grounds of missing or lost evidence, that
could also be in the interests of all parties including potential defendants.
There is much to be said for a situation where the decision as to whether or
not a trial can be conducted fairly is made by the very person under a duty to
ensure that if such trial proceeds it will be fair in fact, and not just in theory,
and who furthermore can keep that decision under review as a case develops.
Also, the division of function which the current law permits between Superior
Courts exercising what is now recognised as exceptional jurisdiction in
advance of trial, and a residual jurisdiction in a trial court, can be unhelpful.
A trial court, when or if, it comes to address questions of unfairness by reason
of the absence of evidence, may feel constrained by the prior determination on
the judicial review. There is much therefore, to be said at both a practical and
theoretical level, for the trial court having the initial jurisdiction to determine
the impact on the trial of the absence of evidence.
14. Since I agree that the experience of other common law jurisdictions can
shed valuable light on issues which are required to be determined by this
court, it is, I think, significant that in other jurisdictions, such as, Northern
Ireland (R v. Mc Nally and Mc Manus (2009) N.I.C.A. 3; R v Glen [ 2003]
NIJB 99), England and Wales (R (Ebrahim) v. Feltham Magistrates
Court [2001] E.W.H.C. Admin 130), Australia (Jago v. District Court of
NSW (1989) 168 C.L.R. 23 and The Queen v. Edwards [2009] H.C.A. 20),
New Zealand (Hazlewood v. The Queen [2013] N.Z.C.A. 406) and of course
the United States of America (Brady v. Maryland 373 U.S. 83
(1963), California v. Trombetta 467 US 479 (1984) and Arizona v.
Youngblood 488 U.S. 51 (1988)), it appears that the issue is addressed by
motion or application at or in the trial, and then is subject to appeal in the
ordinary way. Irish law however, requires the matter to be addressed
primarily and almost exclusively, through what might be thought to be the
imperfect and ill adapted lens of judicial review on the basis of affidavit
evidence alone. That position, in my view, requires detailed analysis careful
scrutiny and justification.”
Mr. Justice Clarke endorsed Mr. Justice O’Donnell’s comments stating:
“2. However, I also wish to indicate my agreement with the observation of
O’Donnell J. to the effect that the jurisprudence in this area deserves, as he
puts it, “a comprehensive re-examination”.
3. While this case can, for the reasons advanced by MacMenamin J., be dealt
with without any such re-examination and while, therefore, I would leave to
22
another case where any such re-examination might prove decisive, a final
judgment as to what the results of any such re-examination should be, I
nonetheless would record my agreement with the analysis of the authorities
both in this jurisdiction and others engaged in by O’Donnell J.”
Lest it be thought however that Wall sounded the death-knell for judicial review
applications on such matters, Mr. Justice MacMenamin, who was part of the majority
in Wall and who delivered his own detailed judgment on the issues, delivered last
February the unanimous judgment of the Court in Stirling v Judge Collins & The
DPP19 where because of missing evidence the trial was stopped. The Court stated: “18. This is not just a case where prejudice and, therefore, risk is probable,
but rather it is inevitable. The entire essence of the prosecution and defence
must be identification; the only objective verifying evidence has become lost
through neglect and failure to preserve the material.”
Strike out
In DPP v Judge Martin Nolan & Brendan Reynolds20 Mr. Justice Hedigan quashed
the decision of the Respondent Judge to strike out the proceedings due to the failure
of the investigating Garda to attend a sentence hearing. The Notice Party Mr.
Reynolds had been returned for trial. He had pleaded guilty and been remanded in
custody for sentence. Judge Nolan subsequently rejected an application to re-enter.
The Court stated: “My sympathies lie with the trial judge in this case. It is entirely
unacceptable that an apparently cavalier attitude on the part of the
prosecution side resulted in their being unable to proceed with the
sentencing of the notice party who had at that stage been in custody
for over a year…
I am however satisfied, that the learned judge did not have the
power to quash the return for trial or the indictment because of the
delay involved. I do not think he thought that he did. But by refusing to
let the matter be re-entered before him that, in effect, is what he is
doing. All that he can do in such circumstances in my view is to strike out
the proceedings before him”.
19
20
[2014] IESC 13
(Unreported 29/72013)
23
This decision’s significance lies not least in it’s apparent confirmation that a form of
strike out jurisdiction is there to be exercised by Circuit Judges dealing with sentences
on indictment. The precise parameters of this jurisdiction, and it’s interaction with
the availability of judicial review, may very well fall to be considered again.
Pitfalls & the exercise of discretion
Illustrative of the care and attention that must accompany the planning and
presentation of an application for judicial review are the decisions in McDonagh v
Watkins & Ors21 and Farrell v District Judge Reilly & The DPP22 . McDonagh
concerned a challenge to a decision not to revoke a bench warrant which had issued in
circumstances where the defendant was not present at first call. In the case of Lado,
mentioned in Kearns P.’s decision, a somewhat similar factual scenario had warranted
relief. In McDonagh however the President distinguished Lado.
The DPP resisted relief inter alia on the grounds of material non-disclosure of
relevant facts. In this regard Ms. McDonagh failed to refer in her papers to the fact
that the bench warrant had in fact been executed before the ex parte leave application
was moved.
The President refused relief on the merits stating: “Again, I am satisfied that the respondent judge, obliged as all judges of the
District Court are, to ensure that bail conditions are adhered to, was acting
within her jurisdiction and not irrationally in making the particular
determination which she did make. Another judge might have taken a different
course, but I do not think the proportionality requirement in
the Meadows case can be relied upon to convert this application into an
appeal on the merits. It must be a clearly disproportionate decision when seen
in context and in the light of the judge’s own need to manage and dispose of
her list efficiently. To put it another way, a district judge’s working day should
not be consumed by applications to revoke warrants where defendants have
failed to turn up to court at the appointed time with the inevitable consequence
that a warrant issued.”
But he was also moved to conclude with the following: -
21
22
[2013] IEHC 582
[2014] IEHC 228
24
“While that disposes of the case in itself, I am also of the view that the court
should not exercise its discretion to make any form of declaration in this case
for reasons of culpable nondisclosure by the applicant herself of material
facts. In so concluding I would repeat that I am not attributing mala fides or
lack of candour to the applicant’s legal advisors. Nonetheless, there was a
non-disclosure which was of a very serious type and which arose from a lack
of seriousness on the part of both the applicant and her solicitor about the
process being undertaken. The failure to approach this application with due
care and regard for the process further warrants in my view the decision to
refuse to grant the relief now sought.”
Farrell concerned a challenge to the imposition of a driving ban. The positions
adopted by the applicant and respondent were put as follows in the judgment
delivered by O’Neill J.: -
“6. Counsel for the applicant argues that the decision of the first named
respondent and the sentence imposed on the applicant was based on a
fundamental mistake as to fact i.e. the first named respondent operated on the
basis of the applicant having a previous conviction for driving with no
insurance when this was not correct. As a result, the applicant submits that he
was given a mandatory two-year disqualification and was denied the
opportunity to present special reasons to the court which he would otherwise
have been able to do in relation to a first conviction. It is contended by the
applicant that once he put Garda Noonan on notice that the 2003 conviction
was in dispute, it was the duty of the garda, as prosecutor, to bring this to the
attention of the District Judge before sentencing, and to provide specific proof
of this offence. The applicant submits that the matter should be remitted for a
full rehearing in which the applicant is treated as having no previous
conviction for driving without insurance, thus enabling the District Judge to
consider the full range of sentencing options in exercising her discretion
pursuant to s. 65 of the Road Traffic Act 2010.
7. Counsel for the respondent submits that the applicant’s claim, as set out in
his initial statement of grounds, is fundamentally different to the case that has
been made to this court, and for that reason, the relief sought should be
refused. It was submitted that there are a number of material inaccuracies in
the applicant’s affidavits as well as a lack of candour warranting the
dismissal of the applicant’s case. In addition, counsel for the respondent
submits that the first named respondent did not fall into error, either of law or
fact, and did not exceed her jurisdiction. It is further submitted that the
applicant acquiesced to the evidence of the prosecuting garda and that he
subsequently failed to avail of an alternative remedy. For those reasons, the
respondent contends that the relief sought should be refused.”
Essentially O’Neill J. withheld relief on the bases advanced by the DPP. In relation to
the doctrine of ‘acquiescence’ or waiver, a common battle- round in judicial review,
he stated (para.42):
25
“42. The final question which arises is whether the applicant acquiesced in the
manner in which the case was dealt with in the District Court, so that he
cannot now be heard to complain about that to which he acquiesced. There is
no doubt that the applicant was made aware in advance that Garda Noonan
was going to raise the previous conviction. There is equally no doubt the
applicant did not mention to the first named respondent any concern or
dispute concerning this conviction as he had apparently done outside the
Court to Garda Noonan. It is also clear he was given an ample opportunity by
the first named respondent to speak on his own behalf and, specifically, to tell
her of his personal circumstances. It is difficult to understand why it is, that if
he really wished to dispute this conviction, or if he merely had a real concern
as to whether it applied to him, that he did not say to the first named
respondent that this conviction did not relate to him, or that he believed that to
be the case. If he had made that very simple utterance, it is highly probable
that first named respondent would not have proceeded to impose a penalty,
but would have adjourned the matter so that that issue could be clarified. In
my opinion, the applicant’s silence in these circumstances amounted to
acquiescence in the manner in which the matter was dealt with by the first
named respondent and would be a further factor moving this Court to exercise
it’s discretion against granting the relief sought.”
Legal aid and decisions made to withhold same often form the basis for judicial
review applications. In this regard and notwithstanding the decision in Olesja
Cerkovska v Minister for Justice & Ors23 arose in the context of European arrest
warrant proceedings, the basis upon which relief was withheld should be of note to
those at the criminal bar.
Ms. Cerkovska was aggrieved because she could not get pre-sanction covering the
payment of an expert (psychologist) report via the Attorney General’s Scheme and
later when that scheme was replaced by the Legal Aid (Custody Issues) Scheme.
However as is normal at the commencement of EAW proceedings, the Applicant had
intimated a desire that the Court recommend payment under the scheme. The Court
had confirmed it’s intention to grant the necessary recommendations for payment.
A number of preliminary objections were put up by the Minister essentially relating to
arguments that the Applicant’s case was premature and not evidence based.
Dismissing the application for judicial review Mr. Justice Edwards stated inter alia: “There is simply no evidence that the respondent has been unable to retain an
appropriate expert on account of the terms of the Legal Aid (Custody Issues)
Scheme. There is no evidence concerning either the number of experts that
were approached or as to their identities. We are not told if such experts as
were approached were informed of the terms of the Legal Aid (Custody Issues)
Scheme. Neither are we told whether they were requested to provide their
23
(Unreported Edwards J., 21/5/14)
26
services on the basis and understanding that payment for same would be
contingent upon, and subject to, a recommendation being obtained in that
regard from the Court at the end of the case under Article 13 of the scheme,
and authorisation of payment by the third named respondent following such
recommendation. There is no indication that any expert approached declined
to provide his services on that basis. Moreover, the evidence of the solicitor as
to her belief that she will have to personally fund the outlays involved in order
to obtain the necessary report(s) is not backed up. She does state any basis for
that belief. She provides no evidence to suggest that any expert approached
has sought to insist on payment of his or her fees “up front”. Moreover, she
does not state that she herself has felt compelled to enter a contractual
relationship with an expert in the interests of her client and has actually done
so. Neither does she state that she has incurred any actual outlays to date on
her client’s behalf in connection with the obtaining of expert evidence.
Finally, although counsel for the applicant has spoken about what he
characterises as “the profoundly disincentivising effect” of the provision
complained of, there is no evidence that the applicant in this case has been
disincentivised. There is no suggestion that she does not intend to pursue her
Article 8 based s. 37(1)(a) objection on account of any perceived obstacle in
her way.
In summary, there is no evidence that the applicant has suffered, is suffering
or will as a matter of likelihood suffer, actual prejudice on account of any
alleged unlawfulness in either the structure or operation of Legal Aid
(Custody Issues) Scheme. Moreover, in circumstances where the applicant has
not been refused payment of an expert’s fees by the third named respondent, a
prior recommendation having been obtained from the Court that such fees
should be paid, she cannot make the case that the respondents have fettered
their discretion in some unlawful manner. The correspondence from the Chief
State Solicitor quoted earlier in this judgment could at most create an
apprehension in the mind of the applicant that a problem might conceivably
arise at some point in the future if and when a request for payment were to be
made on foot of a recommendation obtained from the Court. However,
notwithstanding the somewhat infelicitous and strident terms of some of the
representations made by the Chief State Solicitor’s office, in particular those
contained in the e-mail of the 23rd of July 2012, account has to be taken, in
assessing the reality of any such apprehension, of the evidence of Mr
Gilheaney adduced by the respondents. His evidence is emphatically to the
effect that claims for payment of expert’s fees are, and will continue to be,
assessed by the third named respondent in a fair and open minded manner and
that due regard will be had by the Legal Aid Board to any recommendations
by the Court including any specific recommendations in relation to any expert
reports. These representations and assurances are proffered on behalf of all of
the respondents, including the second named respondent who is the senior law
officer in the State. Assurances were previously given to the Supreme Court on
behalf of the second named respondent in Minister for Justice, Equality and
Law Reform v Olsson [2011] 1 IR 384 concerning the manner in which the
then Attorney General’s Scheme operated, and would continue to be operated,
and were readily accepted. The Court sees no reason to doubt the sworn
27
representations of Mr Gilheaney, and therefore any apprehended future
problem with payment of an expert’s fees must be regarded as theoretical at
best, and on the evidence presently before the Court that the risk apprehended
is more perceived than real.
In conclusion, the Court’s view is that the applicant’s proceedings are indeed
premature in as much as she cannot establish that she has suffered, or will
inevitably suffer, or will suffer even as a matter of likelihood, any actual
unfairness or breach of her rights in the circumstances that she puts forward.
The evidential deficit identified by counsel for the respondents is real and
incontrovertible in this Court’s determination. In the circumstances the
preliminary objections must be upheld and applicant’s claim must therefore be
dismissed in limine. It not necessary, or appropriate, that the Court should
proceed with any further examination of the applicant’s claims.”
Cases Stated
“High Court casts doubt on a number of speeding summonses”24
Road traffic prosecutions appear still to make up the majority of cases referred to our
High and Supreme Courts for answers to discrete questions of law. The most recent of
note, and a judgment which both emphasises once more that penal statutes must be
construed strictly and serves to illustrate the growing role and prevalence of
presumptions in prosecutions of this kind, is that provided by DPP v Michael
Gilvarry25.
The accused was prosecuted for a speeding offence. His solicitor raised an issue over
service of the image provided by the prosecution. She also raised an issue over the
contract between the Minister and the Go Safe Company and over enhancement of the
images. As a result of the various arguments put to Judge Devins, as outlined in the
judgement, she decided to consult the High Court and raised the following questions
for consideration: 1. Was there evidence before the court that the permanent visual record
referred to in section 81(2)(ii) of the Road Traffic Act 2010 was served on
the accused as required by section 81(3) of the same Act?
2. Is it a necessary proof for the prosecution in a case such as this to
hand in a copy of the contract between Go Safe and the Minister for Justice
or is it sufficient to give evidence of the existence of the contract?
3. Is the permanent visual record produced tainted by virtue of the fact
that it is enhanced after downloading to the server?
It was held by the President that the questions be answered as follows:
24
25
Rte.ie 11/7/14
(Unreported Kearns P., 11/7/14)
28
1. No. - However, he went on to say that the evidential shortfall could be
easily remedied if the statutory declaration of service of the summons was also to
state that the summons "together with permanent visual record attached" have been
served on the defendant prior to trial.
2. No. It is sufficient that some evidence of the existence of the contract
be given.
3. Does not arise.
Prison
In Connolly v Governor of Wheatfield Prison26 Mr. Justice Hogan posed the question
for determination as follows:
“Is the detention of the applicant under conditions of what amounts to solitary
confinement for all but one hour in the course of a day such a manifest
contravention of the State’s duty to protect the person under Article 40.3.2 of
the Constitution such as would entitled him to immediate release? That, in
essence, is the question posed in the course of these Article 40.4.2
proceedings.”
Mr. Connolly was a prisoner who feared homophobic victimisation. He opted for a
“restricted regime” because of personal concerns for his own safety. 23-hour lock –up
was a consequence.
In elegant and eloquent terms Mr. Justice Hogan discussed “Article 40.3.2 and the
protection of the person” against which the Article 40.4.2 application was considered:
“14. Here it must also be recalled that the Preamble to the Constitution seeks
to ensure that the “dignity and freedom of the individual may be assured.”
While prisoners in the position of Mr. Connolly have lost their freedom
following a trial and sentence in due course of law, they are still entitled to be
treated by the State in a manner by which their essential dignity as human
beings may be assured. The obligation to ensure that the dignity of the
individual is maintained and the guarantees in respect of the protection of the
person upheld is, perhaps, even in more acute in the case of those who are
vulnerable, marginalised and stigmatised.
26
[2013] IEHC 334
29
15. While due and realistic recognition must accordingly be accorded by the
judicial branch to the difficulties inherent in the running of a complex prison
system and the detention of individuals, many of whom are difficult and even
dangerous, for its part the judicial branch must nevertheless exercise a
supervisory function to ensure that the essence of these core constitutional
values and rights – the dignity of the individual and the protection of the
person – are not compromised: see, e.g., Creighton v. Ireland [2010] IESC 50,
per Fennelly J.
16. The obligation to treat all with dignity appropriate to the human condition
is not dispensed with simply because those who claim that the essence of their
human dignity has been compromised happen to be prisoners. That, in
essence, is the basis for the decision of Barrington J. in The State
(Richardson) v. Governor of Mountjoy Prison [1980] I.L.R.M. 82 where the
judge found that the presence of human excrement in the basin in which
prisoners were expected to wash and clean their teeth. Barrington J. found
that the applicant’s “rights under the Constitution and the law [had] been
violated”: [1980] I.L.R.M. 82, 93. This would, I think, now be classified as a
case where the substance of the applicant’s right to the protection of the
person in Article 40.3.2 had been violated, certainly as read in conjunction the
Preamble’s guarantee in respect of the protection of the dignity of the
individual. What could be more undignified – indeed, degrading - than the
obligation to wash in the presence of the human excrement?
17. For even though prisoners may have strayed from the path of
righteousness and even though – as with the case of Mr. Connolly – they may
have severely and wantonly injured other persons, the protection of the dignity
of all is still a vital constitutional desideratum. This is because the
Constitution commits the State to the protection of these standards since it
presupposes the existence of a civilised and humane society, committed to
democracy and the rule of law and the safeguarding of fundamental rights.
Anyone who doubts these fundamental precepts need only look at the
Preamble, Article 5, Article 15, Article 34, Article 38 and the Fundamental
Rights provisions generally.
18. All of us are, of course, sadly aware of the great failures of the past and
the present where these rights seemed and seem like hollow platitudes. But
this is not quite the point, since it is by upholding these values and rights that
we can all aspire to the better realisation of the promise which these noble
provisions of the Constitution hold out for us as a society.
19. In Kinsella I held that the essence of these constitutional rights had been
compromised in that case given the conditions of the applicant’s custody
([2012] 1 I.R. 467, 470-472):
“So far as the present application is concerned, it is the State’s duty to
protect and vindicate the person of Mr. Kinsella which is principally
engaged here, although I do not overlook the fact that the applicant’s
present conditions of confinement also arise, in part, at least, from the
30
State’s duty to protect his right to life and, perhaps, the life of other
persons as well. Yet it is undeniable that detention in a padded cell of
this kind involves a form of sensory deprivation in that the prisoner is
denied the opportunity of any meaningful interaction with his human
faculties of sight, sound and speech - an interaction that is vital if the
integrity of the human personality is to be maintained. I use the term
“a form of sensory deprivation” advisedly, because it is only fair to
say that confinement in such conditions as Mr. Kinsella has had to
experience is nonetheless very far removed from the “five techniques”
of sensory deprivation - such as intentionally subjecting the prisoner to
constant “white” noise, sleep deprivation and the hooding of prisoners
- condemned by the European Court of Human Rights in Ireland v.
United Kingdom (1978) 2 EHRR 25 as inhuman and degrading
treatment and, hence, a breach of Article 3 ECHR.
By solemnly committing the State to protecting the person, Article
40.3.2 protects not simply the integrity of the human body, but also the
integrity of the human mind and personality. Counsel for the
Governor, Mr. McDermott, observed in argument that no expert
evidence had been led by the applicant with regard to the
psychological harm which he might suffer. That is true, but it must be
recalled that this application is one which of necessity was made as a
matter of considerable urgency, so that the possibility of
commissioning such an expert report within the short time period was
probably not a realistic possibility. Moreover, one does not need to be
psychologist to envisage the mental anguish which would be entailed
by a more or less permanent lock-up under such conditions for an
eleven day period. Nor, for that matter, does one need to be a
psychiatrist to recognise that extended detention over weeks under
such conditions could expose the prisoner to the risk of psychiatric
disturbance.
While making all due allowances for the exigencies of prison life and
the difficult and unenviable task of the prison service in making
complex arrangements for a wide variety of different prisoners with
different needs and who often must be protected from one another, it is
nonetheless impossible to avoid the conclusion that a situation where a
prisoner has been detained continuously in a padded cell with merely a
mattress and a cardboard box for eleven days compromises the
essence and substance of this constitutional guarantee, irrespective of
the crimes he has committed or the offences with which he is charged.
This is not to suggest that such a cell might never be used. Clearly
somewhat different considerations may well arise in the case of
disturbed prisoners or where other prisoners need to be
accommodated on a temporary emergency basis for perhaps a day or
two. But detention in such conditions for well over a week fails to meet
the minimum standards of confinement pre-supposed by the
31
constitutional guarantee in relation to the protection of the person
contained in Article 40.3.2. I accordingly find that the conditions
under which Mr. Kinsella have been detained constitute a violation of
his constitutional right to the protection of the person and that the
State has failed to vindicate that right in the manner required by
Article 40.3.2 of the Constitution.””
The Court however found that Mr. Connolly was detained in accordance with
law on the following bases: -
“…it is sufficient to say that the placing of prisoners in solitary confinement
(or, as here, something approaching solitary confinement) must generally be
regarded as an exceptional measure which requires monitoring and regular
review by the prison authorities. As illustrated by Kinsella, complete sensory
deprivation - such as, as happened in that case, by placing the prisoner in a
padded cell with no access to any facilities whatsoever or to any natural light
– will generally be held to compromise the essence of the prisoner’s Article
40.3.2 rights if this were to continue beyond a matter of days.
25. As we have already noted, the applicant’s own personal conditions are
immeasurably better than those of the applicant in Kinsella. In that respect, he
has not suffered anything like the almost complete sensory deprivation which
was a feature of the latter case. It is also clear that Mr. Connolly’s case is kept
under regular review and that the prison authorities are anxious that he would
leave the present restricted regime and re-enter the general prison population.
It is also clear from the extensive clinical notes that the professional
psychologists attached to the various prisons have shown him considerable
care and attention and seem totally devoted to his welfare.
Conclusions
26. In these circumstances, it cannot presently be said that the circumstances
of Mr. Connolly’s present detention violate the substance of the guarantees of
Article 40.3.2 to protect the person, even if he is denied effective access to
human contact for 23 out of 24 hours. Mr. Connolly has, however, now been
so detained – even if it has been at his own request – under these conditions
for the best part of three months. Doubtless the longer Mr. Connolly is so
detained the more carefully and intensely his case will be considered and
reviewed by the prison authorities who, it may be assumed, will be on guard
for signs of psychological or psychiatric distress.
27. Yet if Mr. Connolly’s detention under these conditions were to continue
indefinitely for an extended period of months with no sign of variation, the
point might very well come in which the substance of these constitutional
guarantees would quickly be compromised and violated. It would, however, be
32
premature just yet to anticipate what might yet materialise at some future time
or in some future case.
28. Nevertheless in these present circumstances and based on the particular
facts of the present application, I must find that the applicant is detained in
accordance with law for the purposes of Article 40.4.2 and I must accordingly
refuse the application for his release.”
In Wayne Dundon v The Governor of Cloverhill Prison & Others27 the
applicant challenged roughly a 5 month period whereby he claimed that in
breach of Rule 62 of the Prison Rules 2007 he was removed by the Governor
from structured activities, communal recreation and association with other
prisoners. He claimed that throughout the relevant period he was, as a matter of
fact, detained in conditions envisaged by Rule 62, without however having the
benefit of the procedures and safeguards provided by the Rule.
In response mootness was pleaded by the Respondents. In this regard they
claimed Rule 62 was formally invoked prior to the moving of the leave
application and that the applicant had been transferred to a different prison.
They also pleaded and argued that there impugned actions were in any event
lawful.
Mootness is a recurrent theme in judicial review applications, whatever the
locus of the litigation. As we saw above, it featured greatly in the Supreme
Court decisions in Farrell. The concept also received detailed analysis in the
Supreme Court decision in Lofinmakin (A Minor) v MJELR28.
Delivering the judgment of the Court in Dundon Ms. Justice O’Malley was clear
that the proceedings could not be considered moot stating: -
“Conclusions on mootness
61. It is clear that the policy of the courts is to decline to hear cases
which are purely hypothetical or academic. It is, however, equally
clear that a case is not moot if the controversy still affects or
potentially affects the rights of the parties.
62. The applicant in this case is still a prisoner and is still subject to
the provisions of the Prison Rules in whichever institution he is
27
28
[2013] IEHC 608
[2013] IESC 49
33
detained. He has a real and ongoing interest in the manner in which
they are applied to him. Having regard to the history of the case, it
may be said that the possibility that he will again be subjected to
restrictive conditions is not, to use the language of 0'Brien v PIAB, so
remote as to be purely hypothetical.
63. It also seems that this is the sort of situation where, if the court
does not relax the strict rules of the doctrine, this important issue
might not be capable of being determined. In this regard I have in
mind the fact that the Governor in this case has told the court that he
invoked Rule 62 as a "pragmatic" reaction to the initiation of
litigation, hoping to thereby save the time and expense involved. (From
the respondents' point of view it was necessary to establish this as a
fact lest it be thought that there was any concession involved as to the
lawfulness of the previous regime.) I do not want to be taken as
deciding in this case that that was necessarily improper but it points to
the possibility that in cases such as this the issue is one that may
"evade capture", in the American phrase, if an overly strict view is
taken of mootness.”
On the merits Ms. Justice O’Malley was equally clear that some form of judicial
review relief was merited, stating: -
“…The question is whether a Governor may restrict the normal life of
a prisoner, as envisaged by the Rules, without recourse to the
provisions of the Rules that specifically permit such restriction.
79. In Devoy, it was accepted by the respondent, and held by Edwards
J. that there is a "presumption" arising out the combination of Rules
27 and 62 in favour of a prisoner being permitted to associate with
other prisoners. On the authority of Devoy I conclude that where a
restriction on such association reaches the point at which Rule 62
becomes applicable, it should be invoked so that the notification and
oversight provisions take effect.
80. For the avoidance of doubt it should be made clear that the courts
have no role in the micro-management of these issues. It is also
accepted that a prison setting is fluid. Prisoners come and go, whether
by way of release or transfer, movement to another part of the prison
or travelling to court or hospital etc. The status of a prisoner
remaining in the unit does not alter with each such development.
However, it may be of assistance to recall that Rule 62 requires a
weekly review. It seems to me that where a prisoner's situation is de
facto akin to a Rule 62 regime for a period of days approaching that
length of time, and does not appear likely to change within it,
consideration must be given to formalising the regime.
34
81. The situation in this case appears to have been that the applicant
was placed in a high security part of the prison and I see no reason to
criticise the Governor's decision in that regard. While in there he
could associate only with other prisoners similarly placed. I also
accept that, within the context of that placement, there was likely to be
a degree of change from time to time, as prisoners came and went.
There were times during the period in question when the applicant had
the company of a number of other men. However, the fact that stands
out is that for much of the period he had association with only one
other prisoner on a continuous basis, with some contact with one other
man. During such times, he seems to have been in a comparable
position with the applicant in Devoy, if not slightly worse given that he
had no educational activity. I consider it to be highly relevant that the
applicant's situation did not change in any material way after the
formal decision to place him on Rule 62, whatever the motivation for
that decision was.
82. It may well be that the applicant asked for education only at
inopportune times from the point of view of the authorities, but it
appears from the Governor's affidavits that in any event nothing would
have been available until September, and no guarantee could be given
that he would receive anything then. This is a material consideration
when one is examining the potential effect on a prisoner of restrictions
in relation to association and recreation.
83. It seems to me that where a Governor maintains a high security
unit of this nature, it is necessary to monitor the situation of prisoners
in it. Where, as in this case, the numbers in the unit drop and a
prisoner is not authorised to engage in education, work or training, it
is incumbent on the Governor to consider either relaxing the regime to
which the prisoner is subject or invoking Rule 62 if the conditions for
such invocation exist. Assuming, from the way that this case ran, that
the Governor was unwilling to do the former, I conclude that he should
have made a formal decision in relation to the latter - on the evidence
presented, he had grounds for so doing from at least the 9th May,
2013. This would have conferred upon the applicant the protection
involved in regular review and notification and, if the situation
continued for more than three weeks, the oversight of the Director of
the Prison Service.
84. It was urged upon the Court that the applicant had access to
generous family visits and could have had more, had he made
application in the proper way. I should perhaps state here that I do not
consider that the applicant has made out any legitimate complaint in
relation to family visits. However, the Rules concerning structured
activities and association are separate to those relating to family visits.
35
85. I should also say that, for the same reasons as in Devoy, I do not
consider that the applicant has established any breach of his
constitutional rights.
86. I will hear the parties further as to the content of the declaration to
be made.”
Remission
We start and finish with judgments delivered by Mr. Justice Max Barrett. On the
2nd of July 2014 he delivered the judgment of the High Court in Edward Ryan v
Governor of Midlands Prison29. Mr. Ryan sought release pursuant to Article
40.4.2 of The Constitution 1937. His case concerned a challenge by Mr. Ryan to
the decision of the executive not to afford him additional remission. 23
conclusions led to his release: -
“(1) under Rule 59(2) of the Prison Rules 2007, the Minister for Justice and
Equality is empowered to grant additional remission to prisoners when a
prisoner has shown good conduct by engaging in authorised structured
activity and the Minister is satisfied that, as a result, the prisoner is less likely
to re-offend and will be better able to reintegrate into the community following
release;
(2) the Minister is required to use that power in a manner consistent with the
purpose of the statutorily grounded remission regime;
(3) the policy behind Rule 59(2) appears to be one of seeking to incentivise
and reward engagement by prisoners in a pro-active manner in authorised,
structured, voluntary activity, with a view to ensuring that they are less likely
to re-offend and better able to reintegrate into the community following
release;
(4) the information put to the Minister for Justice and Equality prior to his
determining, pursuant to Rule 59(2), whether or not to grant additional
remission to Mr. Ryan, was largely deficient;
29
[2014] IEHC 338
36
(5) Mr. Ryan has engaged in various authorised, structured, in-prison
activities;
(6) Mr. Ryan has not engaged in certain authorised, structured, in-prison
activities because they coincide in time with, or are less attractive to him as an
individual than, others;
(7) all authorised structured activities, it is clear from Rule 27(2) of the Prison
Rules, have as their equal object making a prisoner “when released from
prison, less likely to re-offend or better able to re-integrate into the
community”;
(8) despite this equality of object, it appears from the argument and evidence
in these proceedings that some authorised structured activities are viewed by
the authorities as better than others when it comes to ensuring that a prisoner
is less likely to re-offend and better able to reintegrate into the community
following release;
(9) the fact that some authorised structured activities are apparently so
preferred was never advised to Mr. Ryan, nor does it appear that this fact has
ever been advised to the general prison population;
(10) there is no suggestion that any one of the many authorised structured
activities offered by the Prison Service is in any way deficient as regards
ensuring that a prisoner is both less likely to re-offend and so better able to
re-integrate into the community following release;
(11) the exercise of a jurisdiction to commute or remit sentence is a
constitutionally reserved function which, by virtue of statute, rests with the
Minister for Justice and Equality, and the Minister’s views as to the status and
merits of a prisoner will typically determine the issue of whether a prisoner
should be granted remission and also the extent of any such remission;
(12) the control and management of the nation’s prison system, and of
prisoners within that system, has been entrusted by the Oireachtas to the
Executive and is an area in which the Executive enjoys a wide discretion,
subject of course to the Constitution and the law;
(13) the Minister in reaching his decision on Mr. Ryan’s application for
additional remission had before him deficient information to which he ought
not to have had regard, and also did not have regard to certain information
(the full truth as to Mr. Ryan’s participation in authorised, structured, inprison activities) to which he should have had regard;
(14) the Minister, in stating, as he did, that he would only exercise his power
under Rule 59(2) “sparingly and in the most exceptional cases”, has imposed
a pre-condition to, or fetter on, the exercise of his discretion that is irrational
in circumstances where the purpose of Rule 59(2) is to encourage as many
prisoners as possible to avail of the opportunities provided by authorised
37
structured activities so that they may rehabilitate themselves and so lessen the
chance of their re-offending, and better their prospects of reintegration, postrelease;
(15) by viewing the application of the Rule 59(2) discretion as something to be
exercised exceptionally, the Minister has in effect re-written Rule 59(2) so that
the facility of up to one-third remission thereunder is now reserved for an
undefined class of prisoners who meet some vague standard of exceptionality;
this ‘re-writing’ distorts, and may largely obviate, the availability of remission
under Rule 59(2) notwithstanding that a prisoner satisfies the various
requirements of same;
(16) to the extent that the Minister has (i) acted irrationally or (ii) fettered his
role or (iii) preferred one form of authorised structured activity over another
when such preference was never previously advised to Mr. Ryan or, it
appears, the general prison population, the court considers that this case
presents with that capriciousness, arbitrariness or, at the very least,
unjustness, to which McCarthy J. refers in Murray v. Ireland [1991] I.L.R.M.
465 at p.473, his judgment in this regard later being referred to with approval
by Hardiman J. in Kinahan v. Minister for Justice [2001] 4 I.R. 454 at p.459;
(17) a decision-maker in its actions can achieve such capriciousness,
arbitrariness or unjustness aforesaid, notwithstanding that somewhere in the
spray of reasons offered by a decision-maker there are drops of rationality;
(18) if one winnows away any deficient information on which the Minister
relied and has regard to such correct information on which he ought to have
relied, there is only one possible logical conclusion that the Minister could
have reached pursuant to Rule 59(2), namely that Mr. Ryan had participated
in various authorised, structured, in-prison activities, which activities have the
aim and, it appears not to be disputed, the effect of reducing recidivism or
facilitating post-imprisonment reintegration into the community; thus through
his participation in those courses it could only be that Mr. Ryan was less likely
to re-offend and so better able to reintegrate into the community;
(19) in this last regard the court is not substituting its opinion for the opinion
of the Minister; rather it is recognising the logical reality that if the Minister
had regard to the correct information that ought to have been before him and
did not have regard to the deficient information that was in fact before him, he
could only have arrived at the above-stated conclusion;
(20) the fact that there is a discretionary element under Rule 59(2) as to the
extent of the remission to be applied (being up to one-third of the total
sentence) does not alter the conclusion that a degree of remission earned but
irrationally and unjustly refused taints the balance of the term of
imprisonment with illegality; certainly the entirety of the balance of sentence
remaining cannot be lawful;
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(21) the fact that Mr. Ryan elected to avail of the broadness and flexibility of
the Article 40.4.2˚ jurisdiction, rather than seek adjudication on his complaint
by way of judicial review proceedings, is not a matter with which the court
finds fault;
(22) there is no legal or other pre-requisite to habeas corpus applications that
a party who considers that he is being unlawfully detained, or his advisors,
should engage in potentially protracted correspondence with the Executive
during the period of that alleged illegal detention so that he can gauge more
accurately whether his suspicions as to the legality of his continuing detention
are in fact correct;
(23) as the remainder of Mr. Ryan’s continued detention at Midlands Prison
cannot be said to be in accordance with law, the court must in accordance
with the requirements of Article 40.4.2˚ of the Constitution, direct his release
from custody.”
Conclusion
As we know it is extraordinarily difficult to keep up with developments in not
just judicial review but in all areas of practice. Statute, statutory instrument and
case-law change, contort, advance and reverse positions which we had taken for
granted. The one thing one can say of certainty is that quite often it is not as
certain as we might have thought.
What is certain however is that it is a most worthwhile effort to attempt to keep
abreast of developments, both domestic and international. Clients can only hope
to benefit from such endeavour and the demands of the profession require us to
do no less.
Judicial review and the checks and balances it provides remains essential to the
running of our State. In this regard, no doubt everyone would agree with the
words recently stated by the President of the United Kingdom Supreme Court on
a recent appearance before the House of Lords constitution select committee: “If you don’t have a healthy and accessible judicial review function for
the courts then you don’t have a satisfactory modern democratic
society”
Niall Nolan, Barrister
July 2014
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