THE COURT OF APPEAL
Neutral Citation Number:  IECA 71
Appeal No. 2014 No. 43 Exp
IN THE MATTER OF AN APPLICATION
PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION
PATRICK JOSEPH McDONAGH
GOVERNOR OF MOUNTJOY PRISON
JUDGMENT of Mr. Justice Gerard Hogan delivered on 20th day of March 2015
1. The applicant in these Article 40 proceedings, Mr. McDonagh, was convicted in his absence in the District Court on 18th December 2013 of the offence of using marked motor fuel in his motor car, contrary to s. 102 of the Finance Act 1999 (as amended). While it appears that the District Court decided to impose a fine of €3,000 and, in default of payment, a sentence of 90 days’ imprisonment, it is also agreed that the warrant which actually issued from that Court did not accurately reflect these details.
2. The applicant was originally imprisoned on 11th October 2014 following his failure to pay the fine, but was released on temporary release. It seems that he did not comply with the conditions attaching to that temporary release and he was re-committed to prison on 31st October 2014. Following his re-committal to prison his solicitor made an application for an inquiry under Article 40.4.2 of the Constitution into the legality of the applicant’s detention on the ground that the detention warrant recorded the wrong penalty and was thereby legally infirm.
3. By order of the High Court dated 14th November 2014 (Haughton J.) the applicant was released on the ground that the detention warrant which had been sent to the applicant carried the wrong penalty (€300 instead of €3,000). Haughton J. considered that given that the default option of prison was in juxtaposition with the monetary penalty, the accuracy of the warrant was accordingly fundamental. Haughton J. accordingly directed the release of the applicant. The respondent Governor has now appealed to this Court against that decision.
4. The first question which now arises is whether these proceedings are now moot and, even if they are, whether this Court should nonetheless hear this appeal. The applicant makes the point that the 90 day sentence has now expired by effluxion of time, so that the underlying issue as to whether any defects in the warrant rendered that detention unlawful is moot. It is accordingly contended that this Court should not hear the appeal.
5. The respondent (and appellant) Governor contends that the appeal is not in fact moot. The applicant had, in fact, served but some 28 days (approximately) of the 90 day sentence as of the date of his release by order of Haughton J. It was submitted that the operation of the sentence was arrested by the making of the order of release by the High Court under Article 40.4.2. Were that order of release to be reversed on appeal, then it was said that the applicant would have to serve out the balance of the sentence (i.e., some 62 days), less any appropriate time period for remission which might have been earned by the applicant.
Whether the sentence of imprisonment has now expired by effluxion of time?
7. In my view, it would be undesirable to determine this novel and difficult question for the purpose of determining whether the appeal was moot unless such was strictly necessary. Since I am of the view that, for the reasons which I will proceed to set out, this Court should hear the appeal it is not necessary to express any further views on this question.
The doctrine of mootness and Article 40 proceedings
9. The mootness doctrine is, however, but a rule of judicial practice which, as I put the matter in my judgment in the High Court in Salaja v. Minister for Justice  IEHC 151:
11. It follows that the doctrine of mootness may be said to constitute a sub-set of the broader locus standi rules, since if a legal dispute has been resolved and the issue thereby becomes moot, the litigants no longer have any proper interest in seeking to have the issue judicially resolved, even if they had such an interest at some point in the proceedings. In such instances, the public interest generally requires that the judicial branch should refrain from deciding such questions. As Henchy J. remarked in the context of the general locus standi rules in Cahill v. Sutton  I.R. 269, 283:
13. The decision in Dunne arose from an appeal from a decision of the High Court in Article 40.4.2 application which directly raised the issue of mootness. The applicant had been originally released by order of the High Court (Edwards J.) pursuant to Article 40.4.2, which decision was successfully appealed to the Supreme Court. In the meantime, the applicant had been re-arrested on foot of a different charge. Peart J. in turn ordered his release pursuant to Article 40.4.2 and the State sought to appeal that decision as well. By the time that latter appeal reached the Supreme Court, the applicant was no longer in custody on that second charge and, indeed, the charge had been dropped. In her judgment for the Supreme Court Denham J. held that the matter was moot:
15. These contemporary developments are well illustrated by the Supreme Court’s decision in Farrell v. Governor of St. Patrick’s Institution  IESC 30,  2 I.L.R.M. 341. In that case the applicant sought and obtained an order ex parte from the High Court (Birmingham J.) granting leave to apply for judicial review in respect of a pending trial. A stay was also granted restraining any further prosecution of that offence in the District Court. The District Judge nonetheless subsequently remanded the applicant in custody for a short period of a few days.
16. An application was then made to me as a judge of the High Court under Article 40.4.2. By the time the application was ultimately heard the stay had long since expired. I took the view that although the matter was now moot, given the shortness of the time period in question, the legality of that detention might otherwise escape effective judicial oversight and review, it was appropriate that the merits of the case should be addressed. I then held that the remand in custody which had been made by the District Court judge was inconsistent with the earlier stay which had been granted by Birmingham J. and made a declaration to that effect.
17. A majority of the Supreme Court held that the respondent’s appeal from my decision was now moot by reason of the effluxion of time, but the Court unanimously took the view that even if this were so, it should nonetheless proceed to hear the appeal. The Court then proceeded to hold that I had been incorrect in granting the declaration which I had.
18. So far as the mootness issue was concerned, Denham C.J. pointed out ( 2 I.L.R.M. 341, 348-349) :
(ii) the decision has an effect on criminal proceedings which are of real and reasonable concern to the appellant;
(iii) such an issue arises in circumstances which would escape review if the Court did not exercise a discretion to hear the appeal;
(iv) the decision potentially affects many criminal cases in the District Court;
(v) the decision has a systemic relevance to cases before the courts, where an application for judicial review has been granted.”
20. For the reasons, therefore, I consider that it is appropriate that this Court should exercise its discretion to hear the appeal, even if the appeal were otherwise moot.
22. In these circumstances I believe that the Court should now proceed to hear the merits of the appeal.
Peart J. I agree with the judgment of Hogan J.
Mahon J.: I also agree with that judgment.