High Court of Ireland Decisions

1. On Monday last I dismissed the Applicant's application for an absolute Order of Habeas Corpus directed to the first named Respondent. I indicated that I would state my reasons for dismissing the application in a written judgment which I now deliver.

2. On the 17th December, 1996 Mr. Anthony Evans, a Stipendiary Magistrate for the Inner London area sitting at Highbury Corner Magistrates Court, issued a warrant for the arrest of the Applicant on a charge of murder. The murder in question was alleged to have occurred on the 25th September, 1996 within the jurisdiction of the Central Criminal Court for England and Wales. On the 5th November, 1998 an Assistant Commissioner of the Garda authorised the execution of the warrant in this State. The Applicant was duly arrested and brought before the District Court.

3. On the 23rd November, 1998 application was made to this Court for bail pending the determination of the extradition proceedings in the District Court and that application was refused. The case next came before the Dublin District Court on the 27th November, 1998.

4. The hearing in the District Court on the 27th November, 1998 was presided over by Judge James Paul McDonnell. An application was made to him for a recommendation that the Applicant's costs of the extradition hearing be paid under the provisions of the Attorney General's Scheme because the Applicant had no means. The District Judge indicated that he would not make an Order under the Scheme because he had been advised by Senior Counsel that the Scheme as such did not extend to or operate in the District Court. He expressed himself as being of the view that it followed that any proposed recommendation which he might make would be ultra vires and he could not be a party to the making of a bad Order. Despite the assurances from the Solicitor appearing on behalf of the Attorney General that the Scheme did apply, the District Judge indicated that he was not satisfied that such was the case. The application was then adjourned to later in the day.

5. By the time the case came on later in the day, Counsel had been instructed to appear on behalf of the Attorney General. He told the District Judge that he was instructed to communicate to him (the Judge) the Attorney General's personal assurance that the Attorney General's Scheme did apply to extradition cases in the District Court and in particular would apply to the instant case. The response of the District Judge was to inform Counsel that he had been informed in a different context, namely, family law proceedings, that the Attorney General's Scheme did not apply in the District Court. There was apparently some exchange by way of legal argument between Counsel for both parties and the Judge which culminated in the Judge giving a written ruling which is exhibited in the Affidavit evidence put before me.

6. The ruling is as follows:-

7. Following this ruling, a further legal argument took place before the District Judge. The Affidavit sworn on behalf of the Applicant by his solicitor indicates that the following propositions were put to the District Judge:-

8. The District Judge indicated that he had made his decision and could do nothing more.

9. Counsel on behalf of the Attorney General then pointed out that the undertaking which had been proffered to the Court was to pay the costs and fees in accordance with the Scheme and that as matters stood that could not be implemented because of the refusal of the District Judge to make the necessary recommendation under the Scheme. Counsel on behalf of the Attorney General then requested a week's adjournment so that he could take further instructions in the matter in the light of the Judge's ruling. That application was acceded to and the case was then adjourned to the 4th December, 1998.

10. The Affidavit evidence makes it clear that two days prior to that adjourned date, the Attorney General gave instructions that on the 4th December 1998 Counsel should inform the District Court that in the circumstances of the case the undertaking to apply the Scheme would take effect notwithstanding the absence of a recommendation from the Court.

11. On the 3rd December, 1998 application was made to this Court (Kearns J.) who made an Order under Article 40 of the Constitution. On the following day Kearns J. discharged that Order and in lieu made an Order pursuant to the Habeas Corpus Act of 1782 requiring the production of the body of the Applicant before the Court together with a certificate in writing of the grounds of his detention. The making of those Orders by this Court rather overtook events in the District Court and the position which obtained before me on Monday last was that the Applicant was remanded in custody on foot of two Orders. One of these was an Order of the District Court remanding him until the 18th December 1998. The second was the Order of Kearns J. of the 4th December, 1998 remanding him in custody pending the determination of these proceedings or further Order.

12. On Monday last, having dismissed the Applicant's claim, I remanded him in custody to be dealt with by the District Court on the next adjourned date of the extradition proceedings namely the 18th December, 1998.

13. The Applicant contends that he is not in a position to afford legal representation in the extradition proceedings before the District Court. He says that there is no effective Scheme in place for the payment by the State of legal representation for him. As a result of this he contends that his detention is unlawful.

14. This latter proposition is indeed a far-reaching one but it is not one that I have to address in these proceedings because I am quite satisfied that the factual foundation upon which this argument is built is without substance.

15. The genesis for this Scheme is to be found in a statement made to the Supreme Court by Counsel instructed for the Attorney General in the case of Re: Woods [1970] IR 154. In the course of his judgment O'Dalaigh C.J. said:-

16. Subsequently this offer was put into a written form ("the Scheme") and notified to, inter alia, the Registrars of the Superior Courts, the authorities in the Law Library and the Law Society.

17. Judicial notice of the Scheme has been taken since its inception and it has operated successfully. In a few moments I will consider the legal status of the Scheme particularly in the light of the submissions which were made to the District Judge at the hearing on the 27th November, 1998. Before doing so I ought to reproduce the terms of the Scheme. It reads as follows:-

18. That is the Scheme as published in March 1989 and again in 1992. It is clear from its terms that it deals only with the High Court and the Supreme Court. Notwithstanding that, the evidence given on behalf of the Attorney General is to the effect that the Scheme has been applied to extradition proceedings in the District Court for upwards of 15 years. Evidence has been placed before me demonstrating that in a booklet issued under the provisions of the Freedom of Information Act, 1997 the Attorney General's Scheme is set forth at page 11 thereof. Having reproduced the Scheme in the form in which I have just set it out in this judgment, the booklet goes on to provide that some important points about the Scheme should be noted. The relevant point which is made by the booklet is to the effect that:-

19. While this statement is not included in the original Scheme as promulgated, it nonetheless gives expression to the factual position which I am told has obtained for upwards of 15 years, namely that the Scheme has been applied in practice to extradition proceedings in the District Court.

20. The Scheme in question has no statutory basis. It is not to be construed as a Statute or Statutory Instrument.

21. Neither does the Scheme have any contractual basis. It is not therefore to be construed as though it were a contract.

22. The Scheme constitutes a voluntary assurance made by the Attorney General to the Courts that in certain types of litigation needy persons will have their legal representation paid from funds at his disposal. The Scheme came about as a result of the assurance given to the Supreme Court in the Woods case and the Attorney General's assurances in that regard have been accepted by the Courts ever since.

23. The Scheme is purely administrative and is operated by the Attorney General. As it has been created and administered by him, so may it be expanded or contracted as he thinks fit.

24. The Attorney General is a constitutional officer. Under Article 30 of the Constitution it is provided:-

25. In addition to his constitutional status, he is also the leader of the Bar.

26. It is clear from the passage which I have cited from the judgment of O'Dalaigh C.J. in the Woods case that the assurance given to the Supreme Court by Counsel on behalf of the Attorney General in that litigation was accepted by the Supreme Court without question. I am of opinion that that is the general approach which the Courts ought to adopt to assurances given to them by Counsel instructed on behalf of the Attorney General in relation to matters of the type which were dealt with by the District Court in the instant case.

27. An assurance expressly given by Counsel upon the instructions of the Attorney General on a matter of the type in suit here ought to be accepted without question save in truly exceptional cases of which this was not one.

28. In the light of these observations I turn now to consider what took place in the District Court on the 27th November, 1998.

29. At this hearing Judge McDonnell indicated that he was not satisfied that the Scheme applied in the District Court. This was so despite assurances given to him by the solicitor who appeared on behalf of the Attorney General.

30. One can understand the District Judge's apprehensions in this regard because the Scheme in the form notified to the relevant authorities does not encompass District Court hearings of any sort being covered by it. It is however a little surprising that the issue arose at all in circumstances where apparently the Scheme has been applied without question in the District Court to cases of this type for upwards of 15 years. Nonetheless it seems to me that the District Judge was entitled to raise the issue because of the apparent lacuna in the Scheme as notified.

31. By the time this hearing had got underway, Counsel had been instructed on behalf of the Attorney General. He gave to the District Judge the Attorney General's personal assurance that the Scheme did apply to extradition cases in the District Court and in particular would apply to the instant case. That, in my view, ought to have been an end of the matter. The District Judge apparently indicated that he had been informed in a different context, namely family law proceedings, that the Attorney General's Scheme did not apply in the District Court. That argument ought not to have taken place. Rather the District Judge ought to have accepted the personal assurance of the Attorney General as communicated through Counsel. It must be borne in mind that this Scheme is a voluntary extra statutory one which is administered exclusively by the Attorney General and is within his gift. If he indicated (as he did) that it was to apply to cases of the type in suit, that alone was sufficient to expand the Scheme (should it have required such expansion).

32. The assurance which the District Judge got was no different in status to that proffered and accepted by the Supreme Court in the Woods case. In this case, however, the District Judge indicated that as far as he was concerned, the Attorney General's assurance and undertaking would apply only to the instant case. That is not the form in which the assurance was proffered and it does not appear to me to have been open to the District Judge to adopt the course which he did in the absence of exceptional circumstances.

33. What then occurred is even more curious. Having accepted that the Scheme did apply to the instant case, the District Judge refused to make a recommendation concerning the payment of the fees. It is clear that if the Scheme is to result in payment to the Applicant's legal representatives, a recommendation to that effect would have to issue from the Court. In the present case it is clear that the District Judge did not embark upon any inquiry concerning the means of the Applicant but simply refused to make a recommendation under the Scheme in circumstances where he accepted that the Scheme did apply, at least insofar as the present case was concerned. I cannot understand the logic behind this course which was adopted by the District Judge. This part of his ruling must be of dubious legality but that is not a matter which falls to be determined in these proceedings. It could, however, have formed the basis for an application for Judicial Review by the Applicant rather than for an Order of Habeas Corpus.

34. Had the District Judge addressed his mind to the question of the means of the Applicant, it seems almost inevitable that he would have made a recommendation for payment. That is precisely the Order that was made by this Court in respect of the unsuccessful bail application which was brought before it by the Applicant. However, as I have already pointed out, this aspect of the matter does not fall to be determined in this application.

35. Earlier in this judgment I have set out the six propositions which were put to the District Court on the second hearing which took place on the 27th November, 1998. I will deal with each in turn:-

36. This proposition represents a misunderstanding of the nature of the Attorney General's Scheme. It does not require to be proved in Court. It is a voluntary assurance given to the Courts and accepted by them. Judicial notice has been taken of the Attorney General's assurance from the Supreme Court downwards for many years. That is as it should be and there can be no question of the Attorney General being asked to do anything other than to give his assurance to the Court. Once given, it ought, save in exceptional circumstances, to be accepted.

37. Again this argument proceeds on a fallacious basis. The Scheme is nothing more than an assurance given to the Courts by the Attorney General. The fact that it has been reproduced in a written form and notified to the interested parties does not mean that it is to be read as though it were a Statute. In the present case the Attorney General gave an assurance through Counsel that the Scheme would apply. This was a perfectly proper assurance for him to give and one which he could honour and I have no doubt would honour.

38. The view of the Scheme which appears to underline this and indeed many other submissions made was that the Scheme was in some way to be limited in scope to the precise wording of it as notified and could not at the discretion of the Attorney General be expanded. That is an incorrect view of the Scheme and an incorrect view of the Attorney General's entitlements in relation to it.

39. I have already held that the assurance of the Attorney General meant that the Scheme did apply in the present case. The only thing which prevented the Scheme from operating was the refusal of the District Judge to make a recommendation for the payment of fees under it. It is true that that would be a bar to the Attorney General making payment under the Scheme unless he was prepared (as indeed he was in this case) to undertake to apply the Scheme notwithstanding the absence of a recommendation.

40. The Attorney General never got the opportunity to put that proposition to the District Court on the 4th December, 1998 because this application supervened. Given the view which I take of the Scheme and the entitlements of the Attorney General in relation to it, he was, in my view, perfectly entitled to, in effect, vary the Scheme by excluding the necessity to have a recommendation from the District Court before making payment to a Solicitor and Counsel under it. I am therefore of the view that this argument is also without merit.

41. At whatever time it was decided by the Attorney General that the Scheme should apply generally to extradition proceedings in the District Court (at least 15 years ago), it would undoubtedly have been desirable that that decision would have been communicated to the relevant authorities in a form of written notification. That would have solved all of the difficulties which have occurred in this case. Nonetheless, the fact that this was not done should not have resulted in what has occurred here once the assurance of the Attorney General was proffered to the District Court. In any event, this administrative lacuna could not possibly render unlawful the detention of the Applicant.

42. This application is not concerned with what happened in any other case. I am quite satisfied that there could be no question of the Applicant being lawfully released as a result of what occurred in the District Court on the 27th November, 1998.

43. It is a matter entirely for the Solicitor and Counsel whether they choose to withdraw from representing Mr. Byrne by reason of any uncertainty that they may feel concerning the question of payment of fees. Such uncertainty, in my view, is ill-founded. Had they waited until the matter was back before the District Court on the 4th December, 1998, the further assurance from the Attorney General ought to have removed even their ill-founded lingering doubts. However, they decided to prosecute this application instead.

44. In my view this application for Habeas Corpus was both premature and unnecessary. Had the Applicant waited until the 4th December, 1998 the position would have been clarified even further. In my view, the only application that ought to have been made to this Court was one seeking to judicially review the refusal by Judge McDonnell to make a recommendation under the Scheme. There certainly was not, to my mind, any justification for seeking an Order of Habeas Corpus. Such an application for Judicial Review would have dealt with the matter adequately rendering an application for Habeas Corpus quite unnecessary.

45. For these reasons, I took the view that the Applicant was in lawful detention when he appeared before me on Monday last and I therefore dismissed his application for Habeas Corpus.