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Cite as: [1998] IEHC 176, [2000] 1 ILRM 136

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Bolger v. Garda Commissioner [1998] IEHC 176; [2000] 1 ILRM 136 (15th December, 1998)

THE HIGH COURT

PETER BOLGER

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SIOCHANA

THE CRIMINAL ASSETS BUREAU

THE LONDON METROPOLITAN POLICE COMMISSIONER

RESPONDENTS

JUDGMENT of Mr Justice O'Higgins delivered the 15th day of December 1998

1. This is an application by the first named Respondents to have a conditional order under Article 40 of the Constitution discharged. A conditional Order was made on the 20th October, 1998 by Mr. Justice O'Sullivan. At the time the Order was made the Applicant was being held in custody by members of the Garda Siochana on foot of extradition warrants issued on 25th June, 1998 by Bow Street Magistrates. The Applicant was admitted to bail pending the determination of the extradition proceedings on certain conditions including the condition that he surrender his passport. Later the Applicant was granted leave to seek judicial review of the proceedings pending in the District Court on the grounds that the matter pending in the District Court was res judicata . The grounds on which relief under Article 40 was sought were two fold.

1. That the proceedings were mala fides and as a result of a conspiracy against the Applicant and

2. That the matter was res judicata, extradition having been refused previously on the same charges.

2. Following an application by the Plaintiff for leave to travel outside the jurisdiction on business, the Court granted the Applicant leave to do so but required the sum of £50,000 to be placed as a bond. Mr. Forde for the Applicant sought leave for an abridgement of time by way of Notice of Motion dealing with the topic as to whether the Applicant is in custody now, because the Court did not make Order remanding him following the stay on proceedings occasioned by virtue of the leave to seek judicial review. I indicated that I was not prepared to deal with that matter at this stage, as I considered the point raised as entirely separate from the points at issue in the present inquiry although in the same extradition proceedings. Mr. Forde's application was for a date to deal with that particular matter and I advised him to go to the President of the High Court to look for a date.

3. The application for a discharge of the Conditional Order was based on a number of grounds. Firstly, it was contended that since the Applicant was not in custody he was not being detained and the habeus corpus procedure laid down by the Constitution does not apply, as he is on bail.

4. The second submission was that if it does apply to persons on bail the matters raised by the Applicant, namely, the alleged conspiracy and the res judicata are not proper matters to be determined on the Enquiry under Article 40. Article 40.4.2 reads:

"Upon a 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 every Judge thereof to whom the 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".

5. Mr. Barron submits that the words "detention" and "in whose custody he is detained" mean what they say, and, address the person in whose custody the Applicant is detained. Mr. Barron submits that the Applicant is not in custody. He referred me to a passage in the case of the Attorney General -v- Blennerhasset and Others 67 ILTR 136. In that case the applicants were returned for trial on bail, and, referring to a paragraph which stated that the applicants were advised by their Solicitor that they were technically in the custody of their sureties, O'Bryne J. said he did not consider that sufficient, and, in the absence of evidence that the applicants were actually in custody he would not make an Order. Counsel for the first named Respondent also cited a passage from the Judgment of Mr. Justice Gannon in the case of McGlinchey -v- The Governor of Portlaoise Prison 1998 IR 671 at page 692.

"Whether the Special Criminal Court exceeded its jurisdiction in ruling the return for trial valid and in entering upon the trial could have been put in issue upon an application for judicial review. In my view this is not a matter upon which can be based a ruling upon an Enquiry under Article 40 that the person in whose custody Dominic McGlinchey is alleged to be unlawfully detained has failed to justify the detention. The provision of the Constitution requires that such person must have been given an opportunity of justifying the detention. It seems to me that if contraverted questions of fact require to be resolved, recourse must be had to the regular legal process prescribed by the Constitution and established by law. In my opinion Article 40 Section 4 sub-section 2 cannot be properly used as an informal means of obtaining by application: "to The High Court or any and every Judge thereof" the resolution of disputed questions of fact or law previously ruled upon or pending determination under regular Court procedure. If the person detaining the Applicant can show justification for the detention by authority ostensibly lawful, a challenge to the lawfulness of that authority must be made and met by the 'authority'. There are regular Court procedures by which this can be done and I do not think the High Court or any Judge thereof would or should anticipate the result by releasing the applicant in advance of and without the assistance of the regular process."

6. Mr Barron argues that in this case the certificate from Sergeant O'Meara in the Bridewell was produced to Miss Justice Laffoy and she held that that was valid and an appeal was made from that ruling to the Supreme Court and the Supreme Court upheld the adequacy of the certificate. Mr Barron concedes that there are certain circumstances in which the Courts will look just beyond the warrant, but submits that what the Applicant in this case is attempting to go beyond questions that can be determined forthwith by the High Court, into questions that will require pleadings and discovery. He submits that it is apparent from the Constitution itself that the Article 40 procedure is not designed as a means for a plenary process, because if it were it would mean that anyone in detention who wanted judicial review on whatever basis would bring an application under Article 40 and could demand as a right that everything be done immediately. They could by-pass the ordinary requirement of showing that they had a statable case for judicial review and that it would gain priority.

7. Mr Forde argues that the central focus of the inquiry is whether at 11.20 am on the 20th of October, prior being to brought to the District Court, Mr Bolger was in unlawful detention. At that stage he had been detained by the Gardai under the Extradition Warrants. He argued that just because he had obtained bail he was not precluded from continuing with his proceedings. He cited the case of Launder -v- Governor of Brixton Prison [1998]

3 WLR 221 where is was held:-

"For the purposes of Section 6(4) of the UK Extradition Act, 1989, a person who was on bail was to be treated as 'kept in custody' notwithstanding the remand."

8. Simon Brown LJ. decided that the Section extended to people who were on bail and said at page 225:-

"It would seem illogical to put those who are bailed, therefore less likely to abscond, in a worse position than those having to be kept in custody less they abscond, worse in the sense that Section 6 protections would be available to the latter throughout the whole course of the Extradition proceedings but to the former only at the point of return".

9. And on the same page a few lines later:-

"It is well recognised in the context of Habeas Corpus proceedings generally that an applicant on bail is to be treated as if in custody."

10. Mance J. reached the same conclusion and in the course of his Judgment at page 235 said:-

"Nevertheless in the context of extradition at least it is clear that Habeas Corpus will lie although the person being sought to be extradited has been committed on bail rather than in custody".

11. In other contexts, too, Simon Brown LJ. has pointed out that there is authority that the bailing of a person seeking Habeas Corpus is no bar to the issue of the writ, although it seems likely in In Re. Amand (1940] 239:-

"that the grant of bail occurred after the application for Habeas Corpus so that the case is not directly comparable with the present."

12. Doctor Forde referred to in re. Amand [1941] 2KB and Caldecote CJ. said in the course of his Judgment:-

"He is now on bail but this makes no difference and we have to deal with the application as if he were still detained in custody."

13. Reference was also made to The State (Quinn) -v Ryan [1965] IR 170 and Application of Zwann [1981] IR 395. In both of those cases applications were heard by the Supreme Court in circumstances where the parties were out of the custody of the Respondents. However in the Quinn case no order was made under article 40 and in the Zwann case the issues on appeal were of wider application than the case itself, and the court felt that not to deal with the issue would be "declining to exercise its proper appellate jurisdiction" . Mr Forde also cited the case of Sheehan -v- Reilly [1993] 2 I.R. 81. That is authority for the proposition that an application under Article 40 must not be converted into any other form of procedure. In circumstances where a person might be longer in detention by virtue of that change procedure.

14. That is not the case here. I do not accept that the restriction on movement by virtue of the surrender of the passport constitutes detention for the purpose of an enquiry under article 40 of the constitution.

15. Finally Mr Forde submits that there is nothing to prevent an inquiry under Article 40 because conspiracy is alleged or res judicata is the issue, or because the case is complex. I agree with that.

16. Having carefully considered the matter in my view the Respondent is entitled to succeed. The conditional Order should be discharged for the following reasons:-

1. The Applicant is not in custody in respect of which the complaint is made.

17. The Enquiry was made in respect of the detention on foot of the Warrant on which he was held prior to being brought before the District Court. That Warrant was held to be valid on its face, both by the High Court and on appeal, by the Supreme Court. The Applicant is no longer in custody on that Warrant. That is not by virtue of him being granted bail, but by virtue of being remanded in the District Court. I do not mean to imply that the Applicant is barred from making complaints in the District Court or else where the proceedings are mala fides , but merely that for the purposes of this enquiry under Article 40, that detention is spent.

2. It seems to me that "regular Court procedures" referred to by Gannon J. in the passage in the McGlinchey case already cited are available to the Applicant in this case. He is entitled to raise the points in the proceedings in the District Court, and on that grounds, also I decline to continue the inquiry.

3. The following passage in the Judgment of finlay C.J. in the McGlinchey case at page 701 of the Report is of relevance:-

The Inquiry under Section 40 of the Constitution in of the most fundamentally important procedures created by the Constitution. It is an inquiry which permits a citizen or indeed some other person on his behalf in limited circumstances to apply to a Judge of the High Court and on appeal to this Court as to the legality of detention. It is not subject to any special procedures; it is not subject to any special rules and deals only with the question of the legality of the detention of the person who applies. It is given such a simple and uncomplicated procedure because it deals with an essential and vital matter, the liberty of the individual. It is therefore important that it should not be debased by being used for purposes for which it was not intended".

18. In my view, this application is essentially for the return of the Applicant's passport. Article 40 was not designed for that purpose. Alternatively it seems to me these proceedings are brought as a "fast track" way of dealing with the Extradition proceedings. Article 40 should not be used for that purpose.

4. It appears to me that a distinction can be made between the instant case and the Blennerhasset case insofar as in that case unlike the present it would appear that the person was on bail when the application was made. It seems to me to be reasonable that an inquiry under Article 40 of the Constitution should be normally refused in circumstances where at the time of the application the Applicant is on bail - though it is possible to envisage exceptional circumstances where this might not apply. However where a person is in custody, and an application for relief under Article 40 of the Constitution bail is granted, it does not necessarily follow that the inquiry should be discontinued. The English cases cited while of persuasive authority provided only a modicum of assistance.

The Launder case was clearly decided in the context of UK Extradition Law and in particular the provisions of Section 6 and the rule of speciality. Moreover, the reference to Habeas Corpus and/or bail in extradition proceedings must be taken in the context of the procedure of the UK procedures. The appeal from Extradition Orders in the UK is by way of Habeas Corpus proceedings. This is specifically provided for in Section 11(1) of the Extradition Act of 1989. the dictum in the Amand case:

"He is now on bail but that makes no difference we have to deal with the application as if he were in custody if and insofar as it purports to say that the fact of bail makes no difference in Habeas corpus proceedings."

- seems to me to be an over wide proposition to be applied to an inquiry under Article 40. It is indeed true that bail is no bar to a successful application in all circumstances, but it seems to me to be a material consideration, particularly in view of the fact that the Irish authorities have place great emphasis on the informal and speedy nature of the remedy. As I have already said the Sheehan case is authority only for the proposition that an inquiry under Article 40 is not to be transformed to Judicial Review proceedings if in so doing a person's detention in custody may be prolonged. In the factual situation of bail, the Court is entitled to see if the continuation of Article 40 proceedings is justified - or whether other relief would be more appropriate. This appears to me to be such a case - and on that basis too I decline to continue the inquiry.

19. In those circumstances, it seems to me, that the Order made should be

discharged.