THE COURT OF APPEAL
CIVIL
Irvine J.
Sheehan J.
Mahon J.Appeal No.: 2015CA520
Jake Freeman
Respondent/Appellant
- and -
The Governor of Wheatfield Place of Detention
Appellant/Respondent
Judgment of Mr. Justice Mahon delivered on the 15th day of June 2016
1. This is an appeal against the order and judgment of the High Court (Noonan J.) of 9th October 2015, following an Inquiry under Article 40.4.2 of the Constitution, in which both parties in the proceedings participated. The High Court order is to the effect that “the said return to the said order dated the 7th October 2015 is insufficient to satisfy the detention of the Applicant as aforesaid doth order that the Applicant be released forthwith from such detention”.
2. No stay was placed on the order, and costs were awarded against the Respondent (the appellant in this appeal).
Background facts
3. Mr. Freeman was convicted of an offence under s. 15 of the Misuse of Drugs Act 1997 (as amended) in the District Court (the Children Court) on 28th September 2015. He was sentenced to four months imprisonment. The warrant on foot of which Mr. Freeman was committed to prison made no reference to the determination of the DPP that the matter be tried summarily.
4. Mr. Freeman was released from custody on foot of the High Court order of 9th October 2015 having served approximately two weeks of the four month sentence at that point in time. Had the four month prison sentence run its course, Mr. Freeman would have completed serving his sentence by the end of January 2016, or indeed prior to that date in the event of being granted parole in accordance with normal practice.
The grounds of appeal
5. The appellant’s grounds of appeal are as follows:-
(i) The learned High Court judge erred in law in determining that the Director of Public Prosecutions conferred jurisdiction on the District Court in respect of offences which can be prosecuted either summarily or on indictment at the election of the Director of Public Prosecutions (i.e. hybrid offences) where the District Court’s jurisdiction to try such offences is proscribed by statute;
(ii) the learned High Court judge erred in law in determining that absent the District Court being informed in express and specific terms as to the Director of Public Prosecution’s decision whether to proceed summarily or on indictment there is no jurisdiction vested in the District Court in respect of the offence referred to in the relevant committal warrant herein i.e. an offence contrary to s. 15 of the Misuse of Drugs Act 1977;
(iii) the learned trial judge erred in law in determining that the failure to recite on the relevant committal warrant the fact that the Director of Public Prosecutions had elected to proceed summarily rendered the committal warrant bad on its face;
(iv) the learned High Court judge erred in determining that the detention was unlawful.
The grounds of opposition
6. This appeal is opposed on the following grounds:-
(i) The High Court judge correctly determined that the absence of a recital on the face of a committal warrant to the effect that the Director of Public Prosecutions had directed / consented to the summary trial of the applicant in respect of a hybrid offence (in this instance an offence contrary to s. 15 of the Misuse of Drugs Act 1977 as amended) rendered same insufficient to authorise the lawful detention of the applicant and correctly ordered his release;
(ii) The High Court judge was correct in determining that it was a pre-requisite to the jurisdiction of the District Court to sentence the applicant in respect of this charge that that there would be a decision of the Director and that the Court be informed of the Director’s decision to try/sentence the applicant summarily in respect of the offence;
(iii) The trial judge’s determination was correct.
7. The central issue in the case relates to the warrant which committed Mr. Freeman to prison on foot of the four month prison sentence imposed in the District Court, and whether such warrant was fatally flawed because it did not make any reference on its face to the determination of the DPP that the matter be tried summarily, thereby resulting in the unlawful detention of Mr. Freeman.
Article 40.4.2
8. Article 40.4.2 provides:-
“Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.”
The proceedings in the District Court
9. Section 27 of the Misuse of Drugs Act 1977, as amended, provides that persons charged with an offence under s. 15 of the 1977 Act may have different penalties imposed on them depending on whether they are tried summarily in the District Court or on Indictment in the Circuit Criminal Court. The issue as to whether an accused person is to be tried in the District Court or in the Circuit Criminal Court is a matter for the Director of Public Prosecutions. In the event of the Director directing summary trial in the District Court, it only remains that the District Court judge must be satisfied that the offence is a minor one. If, notwithstanding the decision of the Director, that the case is fit to be tried in the District Court, the District Court judge decides that it is not a minor case, he then sends forward the case for trial in the Circuit Criminal Court.
10. In this case the matter was dealt with summarily in the District Court. Mr. Freeman pleaded guilty and he received a four months prison sentence. It is accepted that the Director directed that the case be tried summarily, and that the District Court judge considered the offence to be a minor one and proceeded to deal with the matter in the District Court on that basis. No issue therefore arises as to the jurisdiction of the District Court to determine the case, nor does any issue arise as to the manner in which the case was conducted in the District Court or as to the penalty imposed on the respondent. Mr. Freeman did not appeal his conviction or his sentence to the Circuit Court.
The warrant
11. The substantive issue in this case relates to the warrant dated 28th September 2015, signed by the District Court judge and which directed that the respondent be lodged at St. Patrick’s Institution, and there be detained by the Governor / Person in Charge, for the period of four months.
12. The warrant is silent as to the direction of the Director of Public Prosecutions that the case be tried summarily. The appellant maintains the absence of any such reference constitutes a fatal flaw on the warrant which goes to jurisdiction, and renders it bad on its face. The learned High Court judge decided that the warrant was fatally flawed for this reason and directed the release of the respondent. In the final paragraph of his judgment, Noonan J. stated the following:-
“For these reasons, therefore, I am of the view that the failure to record on the face of the warrant, in this case, the decision of the Director to proceed by summary trial is a fatal flaw which renders the warrant bad. I must, therefore, order the release of the applicant.”
13. Mr. Freeman was duly released from custody. Had he not been released the four months sentence imposed in the District Court would have expired within the month of January 2016, some months prior to this appeal coming on for hearing.
The mootness issue
14. It is contended by Mr. Freeman that the case now before this court by way of appeal is moot because the appellant did not seek a stay on the order made in the High Court, (or at any time subsequently) and that this has resulted in the four month prison sentence imposed by the District Court on 28th September 2015 continuing to run, and duly expiring by effluxion of time by late January 2016. It is contended that on this basis the case is now moot and that this court should decline to entertain the appeal on this basis.
15. The issue of whether the making of an order of release by the High Court under Article 40.4.2 has the effect of interrupting the underlying sentence of imprisonment, or whether that sentence continues to operate in the absence of the prisoner was raised in this court in McDonagh v. Governor of Mountjoy Prison [2015] IECA 71. In his judgment in that case, Hogan J. took the view that it was undesirable in that particular case to consider whether the appeal was moot as it was not strictly necessary for that to be done.
16. In his judgment (at p. 6) Hogan J. stated:-
“The fact, however, that a particular appeal is moot is not necessarily the end of the matter. The rule in relation to mootness is, as we have already noted, simply a rule of practice designed to conserve the exercise of the judicial power to its proper sphere of application. In recent years the Supreme Court has stressed that this general rule must yield on occasion to the greater imperative of resolving issues which, while moot, are apt to recur or where there are other compelling reasons why such an appeal should be entertained.”
17. Also in his judgment, Hogan J. referred to comments made by Denham C.J. in Farrell v. Governor of St. Patricks Institution [2014] IESC 30 in which she identified five reasons why the Supreme Court in that case should hear what it decided was a moot appeal. These included the following three reasons
• such an issue arises in circumstances which would escape review if the Court did not exercise a discretion to hear the appeal;
• the decision potentially affects many criminal cases in the District Court;
• the decision has a systemic relevance to cases before the courts, where an application for judicial review has been granted.”
18. As to whether the case is indeed moot I do not express any definite view. In order to do so it would be appropriate to have further and more detailed submissions from both sides. If indeed the appeal is moot, I nevertheless believe it appropriate that this court should make a determination in relation to the substantive issue raised in the appeal particularly because that issue potentially affects other warrants issued on foot of District Court convictions, and it is therefore in the public interest that a determination be made in relation thereto.
General discussion
19. The central issue in this case is the absence from the warrant on foot of which the respondent was committed to prison of a reference to the determination made by the Director that the matter be tried summarily, and whether or not such absence invalidates the warrant.
20. The warrant in question is dated 28th September 2015. It is entitled “Warrant of Execution (Detention as Punishment) Section 142 Children Act 2001 as amended”. The warrant identified the accused person, and the person who is the subject of the warrant to be Mr. Freeman. It states his age, address, date of conviction and duration of sentence. It states that Mr. Freeman was before the Children’s Court and that he had been charged “with the offence that he on 23rd day of June 2015 at Longdale Terrace, Ballymun, Dublin 11 within the court (area and) District of aforesaid did as set out on the attached copy charge sheet / summons”. Attached to the warrant is the charge sheet identifying the charge, and stipulating the statutory offence involved namely s. 15 and s. 27 of the Misuse of Drugs Act 1977 as amended.
21. The warrant committing Mr. Freeman to prison to serve the four months prison sentence imposed on him by the District Court did not recite on its face the fact that the Director of Public Prosecutions had elected or consented to prosecute him summarily. It is contended by Mr. Freeman that the absence of this recital on the warrant renders it bad on its face. The learned High Court judge agreed that the warrant was invalid for this reason and ordered Mr. Freeman to be released from custody. Both parties in the case accept that the Director did in fact elect that the case be tried summarily, and that the conduct of the case in the District Court and the sentence imposed by the District Court were lawful and are therefore not impugned. The appellant maintains that such a recital on the committal warrant is unnecessary in order to provide the District Court judge with jurisdiction to try the case and sentence Mr. Freeman. The appellant submits that the District Court had jurisdiction by reason of the Director preferring the summary charge, and that no further positive decision was necessary by the District Court to accept jurisdiction. It is maintained that a decision by a District Court that a case is not a minor one and which can therefore not properly be dealt with in the District Court is, when taken, simply an act of refusing jurisdiction which was otherwise present by virtue of the Directors decision to try the case summarily.
22. Warrants committing individuals to prison on foot of court orders are not merely pieces of paper containing information of a formal nature. The fact that a warrant acts to deprive an individual of his liberty for a prolonged period renders it an important document.
23. In Ejerenwa v. The Governor of Cloverhill Prison and the Minister for Justice and Equality [2011] IESC 41, the Supreme Court considered the validity of a warrant of detention under the Immigration Act 2003. In the course of her judgment, Denham C.J. quoted, with approval an extract from the judgment of Sullivan P. in The State (Hughes) v. Lennon and Others [1935] IR 126 at p. 142:-
"I did not think there could be any doubt about that matter. And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specially appears to be so, and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged: Peacock v. Bell (1 Saund. R.74d.) In the case of special authorities given by statute to Justices or others acting out of the ordinary course of the Common Law, the instruments by which they act, whether warrants to arrest, commitments, or orders, or convictions, or inquisitions, ought, according to the course of decisions, to show their authority on the face of them by direct averment or reasonable intendment. Not so the process of Superior Courts acting by the authority of the Common Law, per Parke B: Gosset v. Howard (10 Q.B. 411, at pp 452, 453). This principle was recognised and reaffirmed by Palles C.B. in the course of his judgment in R. (Boylan) v. Londonderry JJ., ([1912] 2 I.R. 374) in which he refers (at p. 381) to 'the more general rule that not only an order to imprison, but any order made by any authority, no matter how high, not known to the Common Law or although known to it, not acting in pursuance of it, must upon the face of it show the facts which give the jurisdiction to make it."
24. Peart J. in his judgment in the case of Macharia v. The Governor of Cloverhill Prison [2009] IEHC 42 said, referring to a committal warrant:-
“.. Such an important document - an authorisation for the deprivation of the liberty of the applicant - must be properly and carefully prepared. Great care must be taken not only to enable the detainor to be aware of the authority under which he is to detain the person, but so that the detainee can by inspecting the document be aware of precisely the lawful authority under which he is held.”
25. The offence with which Mr. Freeman was charged is known as a “hybrid” offence. A simple, perhaps overly-simple, definition of a hybrid offence is one which is capable of being tried summarily or on indictment, on the election of the Director of Public Prosecutions, subject to the District Court judge satisfying himself or herself that the offence is of a minor nature, and an offence which does not require the election of the accused as to whether he or she should be tried summarily or on indictment.
26. There is a further and separate category of offences which are also capable of being tried summarily or on indictment. These, for the most part, are scheduled offences under the Criminal Justice Act 1951, and it is provided in respect of such offences that the District Court “may” exercise jurisdiction if three conditions pursuant to s. 2 of the Criminal Justice Act 1951 are satisfied. These are:-
(i) the District Court is of the opinion that the facts if proved would constitute a minor offence fit to be tried summarily;
(ii) the accused, on being informed of his right to be tried by a jury, does not object to being tried summarily; and
(iii) the DPP consents to the accused being tried summarily for such an offence.
27. The essential difference therefore between the hybrid offence and the other category of offence is that the latter requires the election of the accused person to be tried summarily rather than on indictment.
28. It is settled law that a District Court judge has no jurisdiction to try a scheduled offence unless and until the court has informed the accused of his right to be tried with a jury and the accused, following being so informed, indicates his agreement or lack of objection to being tried summarily.
29. In The State (Kernan) v. The Governor of Mountjoy Prison (Unreported High Court, Finlay J., 19th February, 1973) the issue concerned was that the order of the District Court and the warrant based on it were bad on their face because neither contained recitals of the opinion of the District Court that the offence was one fit to be tried summarily, and did not refer to the objection by the accused having been informed of his rights to being so tried.
30. In the course of his judgment Finlay J. (as he then was) said:-
“If the absence of objection by the accused must in order to make a valid order be recited in it, as the case of State (Brown) v. D.J. Ferron so clearly decides, I can see no reason why precisely the same principle does not apply to a recital of the consent of the Attorney General.”
31. It is submitted by the appellant that:-
“The jurisdiction of the District Court to try such offences as vested in it by reason of the Statute creating the offence and the statutory jurisdiction of the District Court to try summary offences, the decision to try summarily is for the Director, not the District Judge, though the District Judge may refuse jurisdiction. The consent of the accused is not necessary.”
“Offences that in and of themselves carry different penalties depending on whether they are tried either on Indictment or summarily do not involve the same jurisdictional pre-condition.”
32. The appellant places particular significance on the following extract from the judgment of Barron J. in The State (Comerford) v. Kirby (High Court Unreported 23rd July 1986:-
“The real issue in these proceedings is one of jurisdiction. If the matter is brought by way of complaint before the District Justice as a matter of summary jurisdiction, he does not lose jurisdiction to hear the matter because there is no evidence before him of the election of the Director to such procedure. Equally, in the absence of such evidence the Circuit Court will not lose jurisdiction if the procedure adopted is to seek a return for trial to that court.”
33. It is contended by the appellant that the jurisdiction of the District Court to hear the offence does not derive either from the prosecution or the judge; it is inherent in the offence, and is not determined by choice or election of any party. In this way, it is argued that, it is fundamentally and demonstrably different to the mechanism that applies to scheduled offences under the Act of 1951, and certain other offences created since that Act.
34. For his part, Mr. Freeman contends that if the consent of the Director is required for a scheduled offence under s. 2 of the Act of 1951, and other similar enactments dealing with the trial of summary offences, as the authorities suggest, then there is no difference between these enactments and the situation that pertains in respect of the so called hybrid offence, such as an offence contrary to s. 15 of the Misuse of Drugs Act 1977, as amended.
35. Put in very simple terms, it is argued by the appellant that a warrant relating to a hybrid offence, which fails to show on its face, that either the Director directed or consented that the offence be tried summarily or that the District Court judge was satisfied that it was a minor offence and therefore fit to be tried summarily is valid, while accepting, at the same time, that in the case of a scheduled type offence, a warrant would be invalid if it failed to show on its face that the accused person had been put on election as to whether he wished to be tried on Indictment or summarily. It is the appellant’s contention that in the former, the direction or consent of the Director to try the case summarily does not grant jurisdiction to the District Court to try the case, whereas in the latter the election of the accused person is a pre requisite to that court having jurisdiction.
36. In The State (McEvitt) v. Delae [1980] IR 125, the Supreme Court considered an issue arising from the commission of an offence under s. 3 of the Prohibition of Forcible Entry and Occupation Act 1971. In the course of his judgment, Henchy J. stated (at p. 132):-
“The offence in question here was created by s. 3, sub-s. 1, of the Act of 1971. Section 7 of the Act provides that every person who commits an offence under the Act shall suffer certain prescribed penalties on summary conviction and certain other (more serious) prescribed penalties on conviction on indictment. It follows that a person who is charged with an offence under s. 3 of the Act of 1971 will fall to be tried either summarily in the District Court or on indictment in the Circuit Court; the line of distinction between the one court and the other is necessarily the gravity of the offence. If, as is the case here, the circumstances of the offence charged plainly show it to be a minor offence, it must be assumed from the provisions in the Act of a penalty for a summary conviction that the legislature intended that the District Justice will try the case summarily as part of the exercise of the constitutional jurisdiction of the District Court to try minor offences, rather than send it forward for trial as if it were not a minor offence.” (emphasis added).
37. Henchy J. also said:-
“In the absence of such a statutory option, I would infer that it was the legislative intention that the trial of an offence under s. 3 of the Act of 1971 is to be a summary one when the District Justice duly determines that the offence is a minor one, and that otherwise the trial is to be on indictment. Therefore, the decision as to the mode of trial lies with the District Justice on the due exercise of his judicial appraisal of the relevant factors. This means that when, as in this case, the circumstances plainly and by common consent show the offence charged to be a minor one, the District Justice had no option but to rule that it should be tried summarily.”
38. The statutory option referred to in the above extract relates to the option by an accused person to be tried by a jury. No such option arises in the case under appeal.
39. In The State (Comerford) v. District Justice Kirby (Unreported, High Court, 23rd July 1986, Barron J.) the issue concerned an offence under s. 112 of the Road Traffic Act (as amended), and the possibility of trying such an offence summarily or on indictment. At p. 4 Barron J. stated:-
“The real issue in these proceedings is one of jurisdiction. If the matter is brought by way of complaint before the district justice as a matter of summary jurisdiction he does not lose jurisdiction to hear the matter because there is no evidence before him of the election by the Director to such procedure. Equally, in the absence of such evidence the Circuit Court will not lose jurisdiction if the procedure adopted is to seek a return for trial to that court.”
40. In The State (Gleeson) v. District Justice Connellan [1988] IR 559, the subject matter concerned s. 3 of the Misuse of Drugs Act 1977 (the unlawful possession of a controlled drug). In the course of his judgment, Griffin J. stated (at p. 563):-
“The third ground on which the learned trial judge held that the conviction was bad on its face was that it did not determine that the offence was a minor offence. The offence created by s. 3 is one which is trialable summarily or on indictment. This is a choice to be made by the complainant or the prosecution (see The State (Clancy) v. Wine [1980] I.R. 228 per Finlay P., (as he then was), and The State (McEvitt) v. Delap [1981] I.R. 125 (Supreme Court). The prosecution in this case elected for summary trial and the maximum penalty was therefore £300. The penalty imposed was £150. The question of determination by the district justice as to whether this offence was a minor offence did not arise; the fine of £150 which was imposed marks the offence as a minor one, as would the maximum fine of £300 if it had been imposed. See the decision of this Court in The State (Rollinson) v. Kelly [1984] I.R. 248. The failure to state on the conviction that the district justice determined that the offence was a minor one did not in any way invalidate the order.”
41. In Dillon v. Judge David McHugh and the DPP [2013] I.R. at p. 430, Denham J. observed as follows:-
“In further clarification, a hybrid offence, i.e. one which may be prosecuted either summarily or on indictment, does not alter its nature on the election of a method of prosecution. For example, if an election is made to prosecute such an offence summarily, it does not then become a summary offence. It may then be prosecuted summarily, as long as no intervening factor arises, such as a District Court Judge determining it to be a non-minor offence. On the choice of prosecution, the nature of a hybrid offence does not change. It retains at all times the nature of an offence which may be prosecuted summarily or by way of indictment.”
42. It is long accepted that a warrant if it is to be deemed valid, must show on its face sufficient information to establish the jurisdiction of the court from which it emanates. The purpose of this rule is to enable the detainer to satisfy himself that the person named in the warrant is lawfully being placed in detention under his custody for a stated period of time, and to enable the detained person to satisfy himself of, and understand the lawfulness of his detention. How much attention is actually paid by prison Governors to the technical information contained in warrants of the nature under scrutiny in this case is unknown to this court. However, what is clear is the Governor of St Patrick’s institution expressed no concerns as to his authority to detain Mr Freemen on foot of the warrant. It is likely, that in reality, little attention is paid by either party to the technical information contained within it, such as the relevant statutory provisions, or the legal technicalities necessary to show jurisdiction. As is the case here, it is usually the lawyers of the party committed to prison who will closely examine the warrant on the off chance that some technical information is absent, or there is a failure of some legal technicality, and in the small number of cases where such deficiencies are identified, (or believed to have been identified) move to seek the release of the detained person from detention.
43. In O’Driscoll v. the Governor of Cork Prison [1989] I.L.R.M. 239, the warrant showed an incorrect date of the relevant court order, but otherwise correctly stated the content of the order. The High Court held that this did not provide a ground for quashing it. A mere technical defect will not normally defect the validity of the warrant. In Walsh v. the Governor of Limerick Prison [Unreported High Court July 31st 1996] Lefoy J. held that where a warrant issued by the Special Criminal Court was challenged for failing to show jurisdiction on its fact, the facial absence of jurisdiction, while rendering the warrant defective, was not so fundamental as to justify a release of the applicant under Article 40 of the Constitution.
44. In Macharia the issue concerned the signature on the warrant being that of a District Court Clerk, rather than the District Court judge, in circumstances where it was required to be signed by the District Court judge. There was absent on the face of the warrant in that case proof that the District Court judge and not the District Court clerk, had directed the detention of the applicant.
45. In Simple Imports Limited v. The Revenue Commissioners [2000] 2 I.R. 243, the respondents challenged the validity of warrants issued by District Court judges on foot of which officers of the Revenue Commissioners entered and searched a number of premises and seized goods which were alleged to be prohibited and in contravention of Customs and Excise legislation. It was submitted that it was clear on the face of the warrant that the District Court judge had not satisfied himself that there was reasonable cause or grounds for the suspicion of the officer concerned, that there were uncustomed or prohibited goods relating to them in the premises, and that the warrants were thus bad on their face and should be quashed on that ground alone. In his judgment, Keane J. (as he then was) stated, at p. 255:-
“I am satisfied that the submission on behalf of the respondents that, in a case where the warrant itself states that it is being issued by the district judge on a basis which is not justified by the statute creating the power, the invalidity of the warrant can be cured by evidence that there was in fact before the district judge evidence which entitled him to issue the warrant within the terms of the statute is not well founded. That proposition seems to me contrary to principle and unsupported by authority. Given the necessarily draconian nature of the powers conferred by the statute, a warrant cannot be regarded as valid which carries on its face a statement that it has been issued on the basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed.”
Conclusion
46. I am satisfied that the warrant in this case was not defective. It is accepted that the Director of Pubic Prosecutions directed that the offence with which Mr Freemen was charged be heard and determined in a summary fashion in the Ditrict Court. For the warrant to be valid it was not necessary that it recite that direction . Even if it was strictly necessary to so recite this on the face of the warrant (and which I do not believe to be the case), such a failure was, in the circumstances, of such a technical nature that its absence could not invalidate what was otherwise a perfectly good warrant. In particular, the warrant identified the statutory offence in respect of which the respondent stood convicted and sentenced. It was not essential that the warrant identify the fact that the case had been tried summarily by direction of, or with the consent of, the Director of Public Prosecutions, nor was it required to identify the fact that the District Court judge had been satisfied to deal with the matter summarily on the basis that it constituted a minor offence. These facts could reasonably be assumed by reference to the information contained on the face of the warrant on the basis that the District Court judge had convicted the respondent and had imposed a sentence within the sentencing limits relevant to convictions in the District Court.
47. In Moore v. The Governor of Wheatfield Prison [2015] IEHC 147, the issue in the case concerned the validity of a committal order made for the jailing of the appellant in the case, a water charges protester, arising from breaches of a High Court order. In a postscript to his judgment, Kearns P. observed as follows:-
“As already indicated in this judgment, this Court is most unhappy at the idea of a procedural technicality trumping substantive justice. The notion of justice being frustrated on a technicality is damaging to the concept of justice itself and gives rise to public unease and disquiet. That is particularly the case when all parties in this case, including the water rates protesters themselves, agree that the trial judge conducted the hearing with exemplary fairness and no appeal has been brought against any part of his order.
Obviously - and as described by Denham C.J. in FX v. Clinical Director of the Central Mental Hospital [2014] IESC 01 (at para. 53), — the right to apply to court for release from detention under Article 40 may be seen as ‘the great remedy” which has “deep roots in the common law’. It has a special place in our Constitution and is a right jealously - some might say zealously — fostered and protected in this jurisdiction.
That should not however lead to a situation where technical errors on the face of the record, even errors of more than a trivial kind, can be relied upon in every instance to set aside committal orders in the absence of any prejudice or injustice being demonstrated by an applicant in circumstances where he has been properly tried, convicted and sentenced. That was the view expressed by O'Higgins C.J. in (McDonagh) v. Frawley [1978] I.R. 131, a view with which this Court strongly concurs. Ideally, hearings of inquiries under Article 40 should permit rectification of the record during the course of that inquiry, such as, for example, by permitting the filing during the hearing of a long form warrant with all appropriate information. It is clear from the decisions of Hogan J. in Joyce v. Governor of the Dóchas Centre [2012] 2 I.R. 666 and, more particularly, of Baker J. in Miller v. Governor of the Midlands Prison [2014] IEHC 176 that considerations of this sort featured in those cases. This Court would venture to suggest that the status of Article 40 is enhanced by such an approach.”
48. In the circumstances of this case, I would allow the appeal.
