Judgment Title: Cirpaci -v- Governor of Mountjoy Prison
Neutral Citation:  IEHC 76
High Court Record Number: 2014 187 SS
Date of Delivery: 25/02/2014
Court: High Court
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 76
THE HIGH COURT
[2014 No. 187 SS]
IN THE MATTER OF AN APPLICATION
PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION
GOVERNOR OF MOUNTJOY PRISON
JUDGMENT of Mr. Justice Hogan delivered on 25th February, 2014
1. In this application for an inquiry into the legality of the applicant’s detention pursuant to Article 40.4.2, the court is once again called upon to examine the scope of this jurisdiction. Mr. Cirpaci was arrested on 10th December, 2013, and charged with the offence of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (“the 2001 Act”). He later appeared before the District Court on that day when evidence of arrest, charge and caution was given. The court was informed that the Director of Public Prosecutions had consented to summary disposal of the case and the District Judge accepted jurisdiction on the basis that the offence in question was a minor one. The accused pleaded not guilty on 17th December, 2003.
2. The case itself was heard in the District Court on 28th January, 2014. The applicant was convicted and a sentence of six months imprisonment was imposed. It is important to stress that the applicant was legally represented at all times. Yet, critically however, it is accepted that the applicant was never informed by the District Court of his statutory right to elect for jury trial.
3. Section 53(1) of the 2001 Act provides:-
(b) The accused, on being informed by the Court of his or her right to be tried by a jury does not object to being tried summarily;
(c) The Director of Public Prosecutions consents to the accused being tried summarily for the offence.”
5. It is further admitted that the recital in the committal warrant to the effect that the applicant was informed of his right to elect for jury trial is erroneous, but it is submitted by Ms. O’Neill, counsel for the respondent, that although this error appears on the face of the record, it does not affect the validity of the warrant.
6. In the end, the issue in the present proceedings comes down to whether the applicant should have proceeded by way of judicial review to apply to quash the conviction or whether he was entitled to apply to this Court pursuant to Article 40.4.2 for an order of release. Counsel for the applicant, Mr. O’Higgins S.C., maintained that the applicant was entitled to choose the remedy which best vindicated his rights. He pointed to the safeguards provided for in Article 40.4.2 itself, including the judicial obligation to inquire “forthwith” into the legality of the applicant’s detention, the fact that the onus rests on the detainer to establish the legality of that detention, the right to apply to any judge of the High Court of one’s choosing for an order to directing an inquiry and the right (in principle, at least) to go from judge to judge to seek such an inquiry. The remedy provided for under Article 40.4.2 is, of course, not a discretionary remedy. Judicial review was, by contrast, inevitably slower and was a discretionary remedy.
7. Ms. O’Neill, on the other hand, contended that in the light of the decision of the Supreme Court in FX v. Clinical Director of the Central Mental Hospital  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. In the light of these latter submissions, it seems necessary once again to examine the text, history and tradition of Article 40.4.2.
Text, history and tradition of Article 40.4.2
The distinction between legal errors which are patent and those which are not is not one, moreover, which is drawn by the language of Article 40.4.2 itself. Article 40.4.2 is rather solely concerned with the legality of the detention, irrespective of the nature of the legal error which infects the detention. Thus, the detention may be wholly illegal, even though the order grounding the detention may be perfectly valid on its face. The Supreme Court's judgment in McDonagh v. Governor of Cloverhill Prison  IESC 4,  1 IR 394 itself provides a good illustration of this.”
10. Second, the language of Article 40.4.3 provides further clear textual evidence that the jurisdiction of the High Court could not be – and is not - confined in the manner urged by Ms. O’Neill. Article 40.4.3 expressly provides for those cases where this Court concludes that the detention of the applicant is in accordance with law save that the law under which the applicant is being detained is itself unconstitutional. Article 40.4.3 provides for a special case-stated of that issue to the Supreme Court, while the applicant may be admitted otherwise to bail “until the Supreme Court has determined the question so referred to it.” But of course in those particular circumstances the warrant detaining the applicant would ex hypothesi be good on its face, as the Court would have upheld the legality of the applicant’s detention save for the unconstitutionality of the impugned law. As the law itself would enjoy a presumption of constitutionality and (adapting here the famous words of Lord Radcliffe in Smith v. East Elloe RDC  AC 736, 769) as it would bear “no brand of invalidity upon its forehead”, it could therefore never be said that the committal warrant (or other detaining order) was anything other than perfectly regular on its face. The unconstitutionality of the statute in question could therefore only be established by the applicant going behind the warrant in order to establish that latent unconstitutionality.
11. Third, the fact that the drafters of the Constitution took great care to ensure that Article 40.4.2 embodied the traditional common law remedies of habeas corpus is itself a striking fact which must inform any interpretation of its terms. Of course, at the date of the enactment of the Constitution common law courts had been looking behind warrants by way of habeas corpus for well over well 200 years. Moreover, as I ventured to point out in Joyce v. Governor of the Dóchas Centre  IEHC 326,  2 I.R. 666, the experience of habeas corpus during the War of Independence and the Civil War was fresh in the minds of many associated with the actual drafting of the Constitution in 1937 and the debates in the Oireachtas in both 1937 and later in 1941 in the lead-up to the enactment of the Second Amendment of the Constitution Act 1941. As I pointed out in Joyce ( 2 I.R. 666, 671-673):
The procedure whereby the applicant was effectively allowed to select his own judge, not only in respect of the ex parte application, but also the full hearing following an ex parte order for an inquiry, in a case of huge importance and sensitivity evidently caused considerable concern in official circles and clearly influenced the drafting of the present version of Article 40.4.2, Article 40.4.3 and Article 40.4.4 (the latter two sub-Articles being entirely new with no earlier counterparts either in Article 6 of the 1922 Constitution or in Article 40.4.2 as originally enacted)…
As a matter of constitutional history, therefore, it seems indisputable that in 1941 the drafters intended to preserve the right of the applicant to apply for the initial ex parte application to any judge and to make successive ex parte applications for such an inquiry (hence the reference in Article 40.4.2 to "any and every judge" of the High Court), while providing thereafter the subsequent decision on the actual legality of the detention should be that of the High Court itself. This latter change - which was effected through the altered and more extended version of Article 40.4.2 along with (the entirely new) Article 40.4.4 - was in order to guard against a possible repetition of the precise sequence of events in The State (Burke) v. Lennon.”
14. This is especially so given that the common law in relation to successive applications for an inquiry was re-stated in codified - if, perhaps, nonetheless slightly modified - form in Article 40.4.2. The drafters were accordingly well capable of modifying aspects of the common law of habeas corpus, but there is but nothing in either the text of the Constitution or the complicated drafting history of these provisions between 1937 to 1941 which suggests that the power to go behind a warrant which was good on its face was to be curtailed in some implied fashion.
15. Some further textual evidence is supplied by Article 40.4.4 which expressly empowers the President of the High Court to direct that the High Court which is hearing the Article 40.4.2 application shall consist of three judges. As I pointed out in Bailey, why, it might be asked, should the Constitution trouble itself with such details if the High Court is confined to the relatively straightforward task of ascertaining whether the order forming the basis for the detention is good on its face or (as was argued in Bailey) that the illegality of the detention is obvious?
The decisions in FX and O’Connor
17. It is important to recall that the facts of FX were quite singular. In that case the Central Criminal Court had made an order committing the applicant to the Central Mental Hospital on the ground of unfitness to plead without complying with the two-stage procedure specified in the Criminal Law (Insanity) Act 2006. Although that error was manifest on the face of the order of committal, it also raised the difficult and troubling question as to whether the High Court could grant an order under Article 40.4.2 in respect of an order of the Central Criminal Court, which, of course, is the statutory name for the High Court exercising its criminal jurisdiction.
18. The Supreme Court held that the High Court could grant an order under Article 40.4.2 in respect of a decision of a co-ordinate court, albeit that this jurisdiction was confined to those cases where the order of the Central Criminal Court was either bad on its face or had violated fundamental constitutional principles. Denham C.J. stressed that whereas at common law habeas corpus did not, save possibly in exceptional circumstances, extend to review a decision of a court of co-ordinate jurisdiction, the jurisdiction conferred by Article 40.4.2 was broader:
20. Having quoted with approval from Brennan the Chief Justice then continued:
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  I.R. 50, where a juvenile was sentenced to a term of imprisonment which was not open to the Central Criminal Court.”
22. Accordingly, the test remains that articulated by Henchy J. in The State (Royle) v. Kelly  I.R. 259, 269:
24. In O’Connor the applicant contended that evidence had been admitted at his trial in July 2011 pursuant to a search of his dwelling which had been conducted pursuant to s. 29 of the Offences against the State Act 1939. Section 29 was, however, held to be unconstitutional by the Supreme Court in Damache v. Director of Public Prosecutions  IESC 11,  2 I.R. 266 in a judgment delivered in February 2012. The applicant had, however, never objected to the admissibility of that evidence at his trial and, indeed, through his counsel, had made something of a virtue of the fact that no such objection was being raised. On appeal following his conviction the Court of Criminal Appeal later determined that in those circumstances he could not raise the Damache point and, indeed, in a reserved judgment, later refused the applicant leave to appeal to the Supreme Court.
25. I held that I was bound by the decision of the Court of Criminal Appeal which had fully considered these issues. It followed that I was then compelled to hold that the applicant was in lawful custody. I then continued:
In these circumstances since it is manifest that the applicant is being detained in accordance with law, I cannot see that there is any further matter which requires an inquiry by this Court.”
The conviction in the present case
28. In Hastings the applicant had been convicted by the District Court of the offence of occasioning actual bodily harm. This, however, was a scheduled offence for the purpose of the 1951 Act and the District Judge was empowered to try the offence in a summary fashion only where the Court had informed the applicant of his entitlement to jury trial and he or she elected not to avail of that right. As Davitt P. observed ( I.R. 134, 138):
The District Court has no jurisdiction to try a scheduled offence apart from the statute. Its gets the jurisdiction subject to the conditions imposed by the statute. If it does not comply with the conditions it has not got the jurisdiction.”
31. It is agreed that this particular defect could not be cured by availing of the right of appeal since this would not afford the applicant his right to elect for jury trial.
32. It is clear from the terms of s. 53 of the 2001 Act that the District Court only had jurisdiction to try the case once the applicant had been informed of his right to jury trial and he had elected nonetheless for summary disposal. Since it is agreed that he was never afforded that right, a finding that the ensuing conviction was entirely without jurisdiction merely amounts to a statement of the obvious. To require in those circumstances that the applicant proceed by way of judicial review rather than to avail of the remedy which the Constitution expressly provides for unlawful detention would amount to a repudiation of the text, tradition and history on which Article 40.4.2 rests. It would, moreover, further circumvent the particular safeguards which Article 40.4.2 so carefully protects. These, after all, were the safeguards to which the drafters gave the most careful attention in both 1937 itself and perhaps especially again in 1941.