High Court of Ireland Decisions

1. The Applicant seeks two reliefs from the Court. The first is an absolute Order of Habeas Corpus directing his release from custody. The second is an Order of Prohibition restraining the members of the Special Criminal Court from proceeding with his trial on charges of unlawful possession of an explosive substance with intent to endanger life and possession of an explosive substance under such circumstances as to give rise to a reasonable suspicion that he did not have that substance in his possession for a lawful object. As part of this second relief he also seeks Orders quashing Remand Orders made by the Special Criminal Court on the 7th and 8th November, 1996.

2. This judgment should be read in conjunction with the judgment of the Divisional Court in the case of Hegarty v. The Governor of Limerick Prison (unreported 26th February, 1997) and my own judgments in O'Hagan and Others v. The Governor of Portlaoise Prison (unreported 30th May, 1997) and Duncan and Others v. The Governor of Portlaoise Prison (unreported 9th June, 1997).

3. In common with the Applicants in those cases, this Applicant was on a date prior to 6th November, 1996 remanded in custody pursuant to an Order of the Special Criminal Court. That Order was invalid. Such was the case because one of the three Judges who comprised the Special Criminal Court on the relevant date was, unknown to himself, no longer a serving member of that Court. He had been removed from membership of that Court at his own request by a decision of the Government made on the 1st August, 1996. That decision was not communicated to the Judge in question and he continued to sit as a member of the Special Criminal Court in the belief that he was entitled so to do.

4. The authorities became aware of this very unsatisfactory situation on 6th November, 1996. Upon becoming so aware they took the steps which have been described in some detail in the three judgments to which I have already referred.

5. The authorities originally appeared to believe that a total of fifteen prisoners were affected by the invalid Orders made by the Special Criminal Court. These fifteen prisoners were released from Limerick, Portlaoise and Mountjoy jails in the early hours of 7th November, 1997. There was however, a sixteenth prisoner who was also affected by an invalid Order made by the Special Criminal Court and that was the Applicant. The fact that he was so affected was not realised until later on 7th November. Once the authorities became so aware they moved with speed on the matter. By 11.15 a.m. Mr. Donoghue, the Governor of Portlaoise prison, faxed the warrant holding the Applicant to Mr. Sean Aylward in the Department of Justice for his directions. Mr. Aylward contacted the Governor by telephone and informed him that legal advice was being sought in relation to the matter. By 12.10 p.m. a direction had been given by Mr. Aylward to release the Applicant because he was being held on foot of a bad warrant. The Governor went to the prison with Chief Officer Dormer. He informed the prisoner's spokesman that the Applicant was being released and he explained the reasons for such release. Chief Officer Dormer arranged the release of the Applicant and he was released from Portlaoise Prison at 12.50 p.m. on 7th November, 1996.

6. By the time of the Applicant's release the Director of Public Prosecutions had given provisional directions to the effect that if he was released he should be re-arrested at common law and be brought before the next sitting of the Special Criminal Court.

7. Immediately after the Applicant's release from custody Detective Sergeant Patrick Sears arrested the Applicant at common law on suspicion of having committed a felony. He was arrested outside the main gate of Portlaoise Prison and was taken from there to the Special Criminal Court were he arrived at 2.10 p.m. that afternoon.

8. At the Special Criminal Court on that afternoon Detective Sergeant Sears gave evidence of his having arrested the Applicant. It is clear from the evidence which was given to the Special Criminal Court on that occasion that the Applicant was arrested in the same location at Portlaoise Prison as were the other Applicants the subject of the judgments already referred to. The Applicant was then charged with the same offences as had formed the original charges before the Special Criminal Court earlier in 1996. The Applicant had no legal representation before the Special Criminal Court on the 7th November, 1996. That was not as a result of any fault on the part of his legal representatives but because he had been brought straight from Portlaoise Prison to the Special Criminal Court on that afternoon. Recognising that unsatisfactory state of affairs the Special Criminal Court remanded him to the following day. The presiding Judge on the 7th November, 1996 made it clear that the entire procedure which had been gone through before that Court on the 7th November, 1996 would be repeated on the following day in the presence of the Applicant's legal advisers.

9. On the 8th November, 1996 the Applicant was again before the Special Criminal Court. Again evidence was given by Detective Sergeant Sears. He was cross-examined by Mr. Mill-Arden S.C. It is clear from the evidence which was given that the Applicant was arrested on prison property and in circumstances where he did not have access to the public thoroughfare. To obtain such access a number of locked gates would have to be passed through.

10. The first point which is made on the Applicant's behalf is that this arrest by Detective Sergeant Sears on the 7th November, 1996 was unlawful.

11. It is said that it was effected at a time when the Applicant had not been released from the unlawful detention of the Governor of Portlaoise Prison. On the evidence in this case I find that in fact he had been released from the custody of the Governor of the prison. But even if I am wrong in so concluding it does not appear to me to affect the validity of the arrest. This point is fully covered in the judgments of the Divisional Court and in my own judgments to which I have already referred. The arrest in this case was clearly carried out at a time when all the actions taken by the Governor were indicative only of his complying with the Ministerial Order to release the Applicant. Even if I am incorrect in my view that the Applicant had been released from the Governor's custody at the time of his arrest, it cannot be denied but that the Governor permitted the arrest to take place. That was sufficient to render the arrest lawful. The fact that the arrest took place on prison property does not affect its validity either. This point has also been fully covered in the earlier judgments to which I have referred and in particular by the views expressed by Walsh J. in the case of In Re Paul Singer No. 2 (1964) 98 ILTR 112 the relevant passage from which I have cited in my judgment in Duncan's case.

12. It has also been argued on behalf of the Applicant that the unlawful custody in which he was, up to the 7th November, 1996 was merely continued by this new arrest and that therefore that arrest was invalid and the Applicant's detention continues to be unlawful. I do not accept this contention. It is clear from the judgment of the Court of Criminal Appeal in the People (Director of Public Prosecutions) -v- Colm O'Shea (1981) 2 Frewen 57 that it is well established that a detention which may initially have been illegal can, in certain circumstances, be legalised and there are many circumstances in which a valid arrest at law can be made immediately after the release of a person from a custody which had been, for one reason or another, illegal. I do not accept that the unlawful custody in which the Applicant found himself up to the time of his release from the custody of the Governor of Portlaoise Prison on the 7th November, 1996 was continued. In my view a period of legal detention began from the time of his arrest by the Detective Sergeant on that date. Finally, in so far as this aspect of the case is concerned, I reject the submission which has been made that the arrest in this case amounted to a deliberate and conscious violation of the Applicant's constitutional rights. In my view the arrest was lawful. I furthermore reject any attempt which is made to rely upon the decision of the Supreme Court in Trimbole's case as providing a ground for suggesting that the continued detention of this Applicant is unlawful. In common with the earlier cases decided both by the Divisional Court and myself I find that this case on its facts is far removed from the situation which obtained in Trimbole's case. The principles established in that case cannot be relied on in the present case because there is no comparison between the facts in the two cases.

13. The next point which is taken on behalf of the Applicant was described by

14. Mr. Mill-Arden as being a very technical one. It is indeed so. The point made by Mr. Mill-Arden concerns the direction which was given by the Director of Public Prosecutions that the Applicant be charged before the Special Criminal Court rather than before a District Court. It is not denied but that the Director of Public Prosecutions gave such direction pursuant to the provisions of Section 47 of the Offences Against the State Act, 1939. But it is asserted that once such a direction is given it must be proved before a Court by the best evidence. In the present case it is said that there was a failure so to do both before the Special Criminal Court and indeed before this Court as part of the return made to the primary Article 40 Order.

15. When the Applicant was charged before the Special Criminal Court on the 7th November, 1996, Mr. Charleton S.C., who appeared on behalf of the Director of Public Prosecutions, said this:-

16. The transcript of what took place in the Special Criminal Court on the 7th and 8th November, 1996 has been adduced in evidence before me. Furthermore, Mr. McGuinness S.C. has confirmed to me in open Court during the course of this hearing that the Director gave the necessary direction under Section 47 so as to bring about the charging of the Applicant before the Special Criminal Court. Not merely that but there is sworn testimony before this Court concerning the giving of such a direction by the Director of Public of Prosecutions in the case of this Applicant. (See for example paragraph 9 of the affidavit of Assistant Commissioner O'Toole).

17. I am of opinion that the provisions of Section 4 of the Prosecution of Offences Act, 1974 constitutes a complete answer to this argument advanced on behalf of the Applicant. Sections 4(3) and 4(4) read as follows:-

18. The evidence establishes that when the matter was before the Special Criminal Court on the 7th November, 1996, Counsel on behalf of the Director of Public Prosecutions made the necessary statement of fact to that Court in clear terms to the effect that the Director of Public Prosecutions had given the appropriate direction. Furthermore, Mr. McGuinness, on behalf of the Director of Public Prosecutions, so informed this Court. Having regard to the subsection which I have quoted, that, in my view, puts the matter beyond doubt. Even if Mr. McGuinness had not so informed me, I would have been satisfied on the basis of the affidavit evidence that such a direction had been given and was properly communicated both to this Court and to the Special Criminal Court. I therefore reject the Applicant's submissions made under this heading of complaint.

19. The next argument advanced on behalf of the Applicant concerns what took place before the Special Criminal Court on the 7th and 8th November, 1996. It is submitted that the Special Criminal Court had no power to charge and remand the Applicant. The basis for this argument is as follows. The Applicant was first arrested on the 20th June, 1996. He was charged before the Special Criminal Court on the 22nd June, 1996. Those charges were remanded from time to time and were dealt with on the 15th October, 1996 by an invalidly constituted Special Criminal Court. The remand made on that occasion was void but Mr. Mill-Arden contends that whilst the remand might have been void, nonetheless the charges were still validly before the Special Criminal Court. Such being the case, he argues that the Special Criminal Court could not then purport to recharge a person with a charge which was still validly on its books. It is said that when the Applicant was charged on the 7th November, 1996 the Special Criminal Court was not informed that the charges were in substitution for those already made. Whilst that may be so, there can be no doubt but that that Court was certainly informed of this fact on the 8th November, 1996 by Mr. Hogan who appeared on behalf of the Director. He told the Court as follows:-

20. Counsel for the Applicant reserved his position in that regard. Mr. Mill-Arden submits that the charging procedure had taken place on the preceding day and that that was the time that the Court ought to have been told of the substitution. But he has a more fundamental argument to make under this heading. He says you cannot substitute one charge for another which is extant before the Court.

21. In order to examine this contention, it is necessary to look at what happened before the Special Criminal Court on the 7th and 8th November, 1996. It is clear from a consideration of the transcript of the 7th November, 1996 that the Special Criminal Court on that occasion was fully conscious of the circumstances in which Mr. Cully came before it. It had already dealt with the other prisoners from Portlaoise who had in the words of the presiding Judge "been brought here and have been before the Court, who have been rearrested in relation to the same charges on which they are being held in custody and that is being done in your (Mr. Cully's) case I understand as well". In the case of the other prisoners it had been made abundantly clear to the Court by Counsel appearing on behalf of the Director of Public Prosecutions that the new charges were in substitution for the old. Whilst those words may not have been explicitly used in the case of Mr. Cully on the 7th November, 1996, I think it is inescapable that the members of the Special Criminal Court could have been under no other impression but that the same procedure was being followed in Mr. Cully's case as had occurred in the case of the other Applicants. Had there been any doubt in that regard, it was put to flight by the clear statement made to the Court on the following day by Mr. Hogan.

22. I have not the slightest doubt that had the Special Criminal Court, comprised as it was by Barr and Johnson J.J., and District Judge Smithwick, been under any different impression, they would have made their views in that regard known very quickly indeed. The whole procedure which took place before the Special Criminal Court on the 7th November in this case appears to me to have been no different to that which took place in respect of the other prisoners and that Court was of that view. I am of opinion that the mere fact that it was not said in express terms on the 7th November, 1996 that the new charges were in substitution for the older charges is of no consequence.

23. I am furthermore of opinion that it was perfectly lawful for the Director of Public Prosecutions and the Special Criminal Court to proceed to deal with the new charges as they did.

24. As part of that control it appears to me that it was open to it to permit these new charges to be made. I am fortified in that view by the decision of the Court of Criminal Appeal in The People (DPP) v. Patrick McCann (1981) 1 Frewen 57. At page 90 of the judgment of the Court of Criminal Appeal, O'Higgins C.J. says this:-

25. In my view that dictum has considerable significance for this case. First, it is clear that in the present case the Special Criminal Court permitted the procedure which took place to be carried on before it. Secondly, it is clear that it had jurisdiction to allow a charge substitution and that is what it did. Thirdly, the charges in this case were identical to the old charges. And finally, I cannot see that any injustice, disadvantage or prejudice occurred to the Applicant in this case no more than was the case in McCann. I am of opinion that what took place before the Special Criminal Court on the 7th and 8th November, 1996 was intra vires that Court, lawful and regular. There is here no suggestion of any abuse of the process of that Court by what took place before it on the two dates in question. Had there been, I have little doubt but that the members of that Court would not have permitted it and certainly this Court would not. But there was no abuse and in my view the Applicant has no legitimate complaint to make about what occurred.

26. Finally I must deal with the delay which occurred in the release of Mr. Cully. I am satisfied from a consideration of the evidence in that regard that whilst he ought to have been released at the same time as the other applicants who have been dealt with by the Court, the failure to do so in his case was through inadvertence. Mr. Mill-Arden quite properly makes no allegation of any conspiracy or intentional wrongdoing on the part of the authorities in this regard. He does contend that the continued deprivation of the Applicant's liberty amounted to a conscious and deliberate violation of his constitutional rights. He says that this came about by an omission to have Mr. Cully's name included on a list of prisoners for release. I do not accept that this case is made out. What happened occurred through inadvertence and was not in any sense deliberate or conscious. Furthermore, insofar as any delay occurred, it is to be noted that the Applicant was dealt with in the same sittings of the Special Criminal Court as dealt with the other prisoners who had been released earlier on the 7th November, 1996. In my view, the Applicant's right to liberty was vindicated in the same way as was found to be in order both by the Divisional Court and by myself in the earlier judgments to which I have referred.

27. In these circumstances I am satisfied that the Applicant is not entitled to an order for his release pursuant to Article 40 of the Constitution nor is he entitled to any of the reliefs which he seeks in the judicial review proceedings against any of the Respondents. Consequently his application for release under Article 40 is dismissed. I furthermore dismiss the applications for prohibition against both the Special Criminal Court and the Director of Public Prosecutions and I refuse to quash the remand orders made by the Special Criminal Court on the 7th and 8th November, 1996.