Judgment Title: Roche (also known as Dumbrell) v Governor of Cloverhill Prison
Neutral Citation:  IESC 53
Supreme Court Record Number: 319/14
High Court Record Number: 2014 1120 SS
Date of Delivery: 31/07/2014
Court: Supreme Court
Composition of Court: O'Donnell Donal J., MacMenamin J., Charleton J.
Judgment by: Charleton J.
Status of Judgment: Approved
An Chúirt Uachtarach
The Supreme Court
In the matter of an application pursuant to Article 40.4.2º of the Constitution of Ireland
Record number 2014/1120 SS
Appeal number 319/2014
Leroy Roche (also known as Dumbrell)
The Governor of Cloverhill Prison
Judgment of Mr Justice Charleton delivered on the 31st day of July 2014
1. This is an appeal against the judgment and order of MacEochaidh J, of 4 July 2014  IEHC 349, refusing the appellant an order declaring his detention in Cloverhill Prison unlawful pursuant to Article 40.4.2º of the Constitution. The appellant is accused of a criminal offence and had been granted bail on that charge. On a number of occasions, his bail had been revoked. This appeal concerns the last such revocation. Essentially, the appellant contends that in ordering that his bail be revoked on 27 June 2014, Judge Ring in the Dublin Circuit Criminal Court acted without jurisdiction, made a serious error of law and acted disproportionately. It is further argued that the order currently detaining the appellant in Cloverhill Prison does not show cause on its face.
2. The appellant is charged with an offence of violent disorder contrary to section 15 of the Criminal Justice (Public Order) Act 1994 (No. 2 of 1994). There were several bail hearings in this case. The appellant was arrested and charged on 29 November 2013 in the District Court. Bail was refused and he was remanded in custody. On application on 9 December 2013 to the High Court, bail was granted on conditions by Butler J. These conditions encompassed residing at a particular address, signing on at a named Garda station during certain hours, observing a 19.00 to 07.00 hours curfew, staying out of Ballymun, having no contact with a co-accused and there were also monetary conditions. Three months later, on 3 March 2014, bail was revoked by Butler J for breach of these conditions. Because of a legislative provision allowing for the grant of bail, the appellant sought bail again in the District Court and this was granted on 28 March. In addition, the appellant was sent forward from the District Court for trial in the Dublin Circuit Criminal Court. On 11 April, the appellant came before the Circuit Court where an application was again made to revoke bail for breach of conditions. This was granted. On 28 April, he was readmitted by the Circuit Court to bail: the same conditions as Butler J had imposed were reimposed. On 19 June, application was made before Judge Ring for a relaxation of the bail conditions so that the appellant could travel on holiday to Portugal. Airline tickets were produced by him. The application was opposed by the prosecution and a hearing date was set for 23 June. On that day the appellant pleaded not guilty to the charges and a date for trial was set for 20 April 2014. Judge Ring heard the bail application and granted the temporary variation in conditions to enable the foreign holiday. The dates sought were from 24 June to 29 June. The material part of the order, after repeating the conditions outlined above that were derived from the order of Butler J, went on: “The court doth order that bail conditions entered into on 28/4/2014 be relaxed from 24/6/2014 until Sunday 29/6/2014. Accused to sign-on on 30/6/2014 and resume bail conditions. Accused to surrender passport to Kilmainham Garda Station on 29/6/2014 on his way back from [Dublin] Airport.” The appellant went out as expected but came back early to Dublin Airport on Wednesday 25 June at 22.00 hours, apparently after a row with his girlfriend. On his return, the appellant did not return to the house where he was supposed to reside, did not go home by calling in at Kilmainham Garda Station along the way and a breach of curfew was incidental to that. In the result, a Garda officer dealing with the case applied on 26 June to the Dublin Circuit Criminal Court under section 9(4) of the Bail Act 1997 for an arrest warrant claiming breaches of the conditions attached to bail. Part of the information grounding that application claimed a very serious assault by the appellant on his girlfriend. This was alleged to have happened in Portugal. The next day, Thursday, Judge Ring heard the application to revoke bail. It is the resulting order that is in question in this appeal. The evidence in relation to the assault in Portugal was excluded by Judge Ring as hearsay. The appellant did not give any evidence at this hearing, but following on prosecution evidence, submissions were made on his behalf that the terms of the order were not breached since the conditions about residence, surrendering his passport and curfew were not operative until, under the terms of the order, the next Sunday and were as of that time “relaxed”; to quote the order. Judge Ring did not agree. She was satisfied of breaches in the bail conditions related to residence, surrendering his passport and curfew.
The Bail Act 1997
5. The Act of 1997 does not replace the full and original jurisdiction of the High Court in bail matters nor can it be read as replacing the jurisdiction of the court seised with the trial of the offence charged. The legislation does not amount to a code providing any full statement on the law on bail. The statute primarily provides for the introduction and processing of the new ground for refusal of bail while, in places, it introduces amendments to the existing common law on bail. Section 2A allows limited opinion evidence. Section 3 allows for the renewal of a bail application where there was a refusal of bail under section 2 but the trial has not occurred within four months of that refusal. Section 4 deals with the introduction of evidence of prior convictions at bail hearings by restricting the publication by the media of such testimony. This is in aid of a fair trial. Section 5 provides for payment of money into court as part of a recognisance. Section 6 deals with the conditions that may be attached to bail and these are general conditions but certain particular conditions are provided for. Section 6(3) allows a court to alter the conditions of bail and the text is thus:
10. It is appropriate now to briefly refer to the common law position on bail.
Bail at common law
" I would not agree with this submission of the applicant. There is nothing in my view either in ss. 22 or 23 of the Criminal Procedure Act 1967 or in the Rules of the District Court which either expressly or by necessary implication prevent a District Judge from altering bail conditions or indeed revoking bail on his own motion. I would be of opinion that circumstances can occur in the course of proceedings which would justify a District Judge altering bail conditions or revoking bail in circumstances where no application for that was theretofore made. A conclusion therefore that a District Judge did not have this jurisdiction would be wrong."
The view expressed by ÓNeill J in that passage reflects the agreed position of counsel that courts enjoy a common law power to revoke bail. It seems to be the position that no statutory basis for this power exists.
The jurisdiction of the District Court to grant bail in cases of remand or of the committal for trial of persons is at present governed by the provisions of s. 16 of the Petty Sessions Act, 1851 (and in Dublin by s. 23 of the Indictable Offences (Ireland) Act, 1849). Bail cannot be granted by the District Court in treason but may, at the discretion of the Court and subject to those statutory provisions, be granted in all felonies or any attempt to commit a felony and there is also a discretion in the case of certain misdemeanours which are listed in the section. It is provided that in the case of all other indictable misdemeanours the person charged shall be admitted to bail as of right. The only power in the District Court in these latter cases is with regard to the sufficiency of the bail offered and the suitability of the sureties. See also the District Court Rules, Nos. 60, 72, 79 and 80. The granting of bail in the High Court is, with one curious exception, always discretionary. The exception appears to be in misdemeanour cases falling within s. 2 of the Irish Habeas Corpus Act, 1781 (21 and 22 Geo. 3, c. 11), where apparently the Court has no discretion and is bound to admit to bail, the only questions being with reference to the sufficiency of the bail: see In the Matter of Annie Frost [4 TLR 757]. This decision refers to s. 3 of the English Habeas Corpus Act of 1679 which is identical in terms with s. 2 of the Irish Act already referred to. The section is also referred to by Hanna J in Attorney General v. Duffy  IR 529 at page 533.
It had been at one time doubted whether the jurisdiction in the High Court extended to the grant of bail to persons under remand but it was clear long before 1924 that there was no such limitation: see Short and Mellor's Crown Practice (2nd ed., 1908), at pp. 280 to 281, and Hawkins' Pleas of the Crown (7th ed., vol. 3), at p. 204, sect. 47.
15. It is for the court of trial, or for the High Court exercising its full and original jurisdiction, to arrange for the bailing or the custody of the accused on proper constitutional grounds and by exercising fair procedures. This is an essential and well-established part of the armoury of the courts in the conduct of criminal trials. It is to be noted, concerning the limited application of the Act of 1997, that section 3 thereof allows for a new application for bail to be made by an accused refused on the ground that there was a reasonable apprehension of the commission of a serious offence to reapply for bail due to a delay in trial of four months or more. Essentially this legislative provision is unnecessary. The reality is that at common law, an accused is entitled to apply to the court of trial or to the High Court for bail and is under no limitation in that regard, save perhaps that of showing a relevant and appropriately probative change of circumstances where repeated calls on that jurisdiction are made.
16. Consequently, there was no want of jurisdiction in the Circuit Criminal Court in revoking the bail of the appellant.
Breach of the order
18. In the High Court, the learned trial judge dealt with the first issue arising in the following terms:
20. As to the second point, it would be untenable to regard this error as being one which deprived Judge Ring of jurisdiction. It was not an error that entitled the applicant to immediate release under Article 40.4.2º of the Constitution. The learned trial judge in the High Court ruled on this point thus:
22. The appellant argues that any distinction between error within jurisdiction and acting without jurisdiction does not apply in bail cases. It is impossible to agree. Although some legislation refers to the jurisdiction of the High Court as appellate, this is not correct. It is a full jurisdiction that is exercised de novo and can be invoked in any bail matter by either the accused or by the prosecution. The classic statement of the limitation of the circumstances in which the High Court should exercise its habeas corpus jurisdiction derives from The State (McDonagh) v Frawley  IR 131 at 136. This is argued by the appellant to apply only where a person has been through a process of trial and has had the opportunity to exercise the full panoply of rights of fair procedures in that regard. That statement is not so confined:
The expression is a compendious one and designed to cover these basic legal principles and procedures which are so essential for the preservation of personal liberty under our Constitution that departure from them renders a detention unjustifiable in the eyes of the law. To enumerate them in advance would not be feasible and, in any case, an attempt to do so would only tend to diminish the constitutional guarantee.
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  1 I.R. 50, where a juvenile was sentenced to a term of imprisonment which was not open to the Central Criminal Court.
The question before the court on a revocation application is 'what are the consequences which flow from a breach of condition of bail if found?' In a case such as this, where the accused elects not to tell the court about the circumstances in which bail was breached, the court must react to the breach, if found, and in the absence of any evidence from the accused, is entitled to assume that the breach is not irrelevant or de minimis or accidental. Revocation is a proper result in such circumstances. Evidence from the accused, where the breach was unintended, accidental or arising from a genuine misunderstanding, might, and probably would result in a benign reaction from the Bench to an alleged breach. But this was not the case and the court was not offered the assistance of the accused as to the circumstances in which bail was said to have been breached. I therefore reject these two arguments advanced in favour of the applicant by counsel.
Error on the order of detention