High Court of Ireland Decisions

1. On the 2nd May 1997 the Applicant was convicted at the District Court for Limerick City on charges relating to Section 7 of the Forgery Act, 1913 and Section 13 of the Criminal Justice Act, 1984 and was sentenced to two concurrent periods of imprisonment of 10 months and 3 months. The Applicant lodged an Appeal against this Order and having entered into a recognisance to prosecute this Appeal was released on bail. On the 7th October 1997 the Appeal came on for hearing before Limerick Circuit Court. The Applicant did not appear and the Appeal was struck out and the Order of the District Court affirmed.

2. On the 31st October 1997 two warrants for the committal of the Applicant to prison were signed by a Judge of the District Court and directed to the Superintendent of An Garda Siochána at Henry Street Garda Station Limerick. These warrants were stamped,

3. It has not been argued before this Court that the two warrants for the committal of the Applicant to prison were spent on the 11th May 2000 and that accordingly the terms of imprisonment to which they relate could not have been validly enforced. If the warrants were reissued on the 4th May 2000 the validity of the reissue of the warrants has not been challenged and accordingly as execution of the warrants was effected on the 11th May 2000 it cannot be said that the execution was excessively delayed, ( State (Flynn) -v- The Governor of Mountjoy Prison, (above cited), per Barron J., at page 659).

4. Photocopies of the warrants dated 31st October 1997, (the originals of which were not before the Court and could not be furnished on the hearing of this Application), were put into evidence before the Court at the hearing of this Application at Exhibit, “B” in the Affidavit of the Applicant sworn on the 18th July 2000 and at Exhibit, “A” in the Certificate of the Governor of Cork Prison as to the Grounds for the Detention

5. At paragraph 4 of the Affidavit of Garda Eileen McCarthy filed herein on behalf of the Respondent and sworn on the 2nd of August 2000, the Deponent swears that:-

6. Neither Garda McCarthy nor Sergeant Nolan, (whose Affidavit filed on behalf of the Respondent was sworn on 2nd August 2000), refer to any further or other reissue of either of the warrants by a District Judge.

7. At paragraph 5 of his Affidavit to Ground this Application, sworn on the 18th July 2000 the Applicant swears as follows:-

8. In view of the foregoing, I am compelled to regard what is stated in this paragraph as to the reissue of the warrants, “on a number of occasions”, “or at least two occasions for periods of six months and most recently on the 4th May 2000” as no more than groundless speculation by whoever drafted this Affidavit and that everything in this paragraph as to the reissue of the warrants must be taken as prefixed by the words, “ it may be that ”, as they appear in the final sentence of the paragraph.

9. In the circumstances, the only issue which I am entitled to address in this Application is whether the delay in executing the warrants between the 18th June 1998 and the 11th May 2000 was excessive and impermissible and consequently an infringement of the Applicant’s constitutional rights.

10. Garda McCarthy avers that she and Garda Jim Sullivan endeavoured on three occasions in November 1997 to execute the warrants at the Applicant’s known address, stated on the warrants to be, 9 Gerard Street, Limerick. On two such occasions they received no reply and on the third occasion were informed by a woman, whose identity they either did not ascertain or have chosen not to disclose to the Court, that the Applicant no longer resided at that address and that she was unable to provide any forwarding address for him. The Applicant swears that he went to Cork, he recalls in December 1997 having resided at 9 Gerard Street Limerick prior to that date. Having regard to the evidence on Affidavit of Garda McCarthy in my Judgment it is more likely that the Applicant left Limerick for Cork sometime in November 1997. The Applicant remained in Cork until January 1999 during which time he resided at three different addresses, namely, 49 Cushing Place, Faranree, 32 Watercourse Road, and Lower Road. In January 1999 he swears that he returned to Limerick and resided at 3 Mayorstone Court, Old Cratloe Road until his arrest there on the 11th May 2000.

11. At paragraph 8 of his Affidavit the Applicant swears that because he had made a Statement in a murder investigation in September 1997, (and this seems confirmed by Sergeant Nolan at paragraph 2 of his Affidavit ), and was a witness for the State in that case:-

12. In my Judgment it is significant that the Applicant does not point to a single instance of any such contact with a member of An Garda Siochána during this period nor to any document or event which would substantiate such contact in this period between November 1997 and August 1999. At paragraph 7 and again at paragraph 14 of this Affidavit the Applicant swears that members of An Garda Siochána at Henry Street Garda Station were aware of his whereabouts between September 1997 and May 2000 and could have executed the warrants had they so chosen. At paragraph 4 of her Affidavit Garda McCarthy swears that neither she nor Garda Sullivan, whom it seems were appointed by the Superintendent at Henry Street Limerick Garda Station to execute the warrants, were aware that the Applicant was in Cork between December 1997 and January 1999, or that he had returned to Limerick in January 1999.

13. Sergeant Nolan admits, at paragraph 2 of his Affidavit that he interviewed the Applicant, at what he describes as the residence of the Applicant’s sister, 3 Mayorstone Court in October 1999. He further states that prior to this he had not seen the Applicant since September 1997. It appears from paragraph 4 of the Affidavit of Garda McCarthy that Sergeant Nolan is a member of what she describes as, “the Crime Office in Henry Street”. It further appears from this paragraph of the Affidavit of Garda McCarthy that Sergeant Nolan did not, nor did any other member of the Crime Office advise her or Garda Jim Sullivan or other unnamed members of An Garda Siochána stationed at Henry Street Limerick Garda Station of the involvement of the Applicant in the murder enquiry being carried out by the Crime Office, or of the presence of the Applicant in Limerick in October 1999. At paragraph

14. The Affidavit evidence of Garda McCarthy is that none of this activity was known either to her or to Garda Sullivan. At paragraph three of his Affidavit Sergeant Nolan swears that at the time he expressly asked the Applicant if there were any warrants in existence in respect of him and that the Applicant empathetically denied that there were any such warrants.

15. I believe it to be significant that the Applicant offers no explanation for his departure from Limerick in November 1997; for his choice of Cork as a place of residence; for his several changes of address in Cork; or for his return to Limerick. He provides no information regarding his activities in Cork, or how he maintained himself while there. He does not say why he left no forwarding address at 9 Gerard Street, Limerick. He does not state that he told Sergeant Nolan or any other named or identifiable member of An Garda Siochána of his departure to Cork, of his changes of address while in Cork, or of his return to Limerick. He does not say whether he maintained contact with anyone, in particular a girlfriend or a family member in Limerick, who might have been in a position to inform him that members of An Garda Siochána where trying to contact him, or as to the position with regard to his Appeal. He gives no information concerning any contact with anyone regarding this Appeal betweent the 2nd September 1997 and 11th May 2000. In my Judgment, it appears more than somewhat incredible that if, as he says, he remained in contact with members of An Garda Siochána at Henry Street Limerick Garda Station, during this period that he never once heard from or enquired from any of them about his Appeal.

16. I have come to the conclusion that in respect of the period between November 1997 and some time in July 1999 the delay in execution of these warrants where due solely or overwhelmingly to the Applicants' own conduct. I have decided upon the July 2000 date because the Applicant swears at paragraph 11 of his Affidavit, and this is not contradicted, that around either August or September 1999 while he was residing at 3 Mayorstone Court, Limerick, he was served with a subpoena to attend as a witness at the Central Criminal Court in Dublin, on either the 16th or the 26th October 1999 for the Trial of the person accused of the murder. Assuming in favour of the Applicant that the date was sometime in August 1999, then it is fair for the Court to infer that some member of An Garda Siochána at Henry Street Limerick Garda Station was aware during the course of July 1999 that the Applicant was in actual residence at 3 Mayorstone Court, Limerick.

17. I am satisfied from the Affidavit evidence before the Court in this Application that the only reason why the warrants were not executed in the period from August or September 1999 to 11th May 2000 was due to what I believe I may fairly describe as a serious and prolonged administrative or communications breakdown within Henry Street Limerick Garda Station. It is a lamentable fact as appears from the Affidavit evidence before the Court that while the Applicant was fully and openly in communication with and assisting and been assisted by "the Crime Office" in that Garda Station another Section or other Sections of An Garda Siochána within that Station, which included Garda Eileen McCarthy and Garda Jim Sullivan, the members of An Garda Siochána apparently appointed to execute the warrants by the Superintendent to whom the warrants were addressed, where altogether unaware of these matters and even unaware of the Applicant’s return to Limerick. If the Applicant had not misinformed Sergeant Nolan in April 2000 as regards the non-existence of warrants perhaps the warrants might have been executed a month or so earlier than when they were executed on the 11th May 2000. I have to express my amazement and concern that Sergeant Nolan was seeking this important information from the Applicant and not from his colleagues at Henry Street Limerick Garda Station or from the clerk of the District Court, and was prepared to and did in fact accept the statement of the Applicant that there were no warrants in existence in respect of him.

18. I must consider whether these events which occurred in Henry Street Limerick Garda Station amount to a sufficient explanation so as to excuse the delay in executing the warrants during this period of between nine months, (if one includes the month of August 1999 and the month of April 2000), and seven months. I do not consider what was stated by Lynch J., in the case of O'Driscoll -v- The Governor of Cork Prison , (above cited), at page 242, that:-

19. As establishing or intended to establish any general principle that only such delay in the execution of warrants for the committal of persons to prison is impermissible as is found on the evidence to have been motivated by an intention or a desire to make the imprisonment bare more harshly on the convicted person, or by some other malicious purpose.

20. In accordance with the Judgment of Egan, J., in the case of Cunningham -v- The Governor of Mountjoy Prison , (above cited), where he held that each case of alleged excessive delay in the execution of such warrants must be judged on its own merits, Lynch, J., on the evidence before him in O'Driscoll -v- The Governor of Cork Prison was clearly satisfied that an explanation of, "administrative rearrangements", was sufficient to enable the Court in the particular circumstances of that case to find that there was no unfairness to the Applicant in a delay of three months in the execution of the warrant, absent any improper intent or purpose which would have rendered invalid what was otherwise in the Judgment of the Court a valid and sufficient explanation for the delay.

21. In the present case the administrative or communications failure, as I have described it, within Henry Street Limerick Garda Station, continued of a period between seven and nine months. Explanations apart, it is clear from the authorities already cited in this Judgment that for a such a period to elapse during which a warrant for the committal of a person to prison remains unexecuted prima facie amounts to an excessive and impermissible delay. In my Judgment administrative or communications failures must occur from time to time in connection with the execution of warrants: the system of enforcement of Court Orders is sufficiently complex to admit of such mishaps. However, in considering whether it amounts to a satisfactory explanation for delay, the duration of any such failure must be a critical factor to be taken into account. There must come a time in each case, depending upon the particular circumstances of that case, when delay if occasioned by such a failure passes from being reasonable explicable and not unfair to the convicted person to being no longer reasonable or capable of satisfactory explanation and manifestly unfair to the convicted person. Notwithstanding that the Applicant in the present Application was at liberty throughout this entire period of seven or nine months, in my Judgment a delay of this magnitude occasioned by such a failure was altogether excessive and accordingly impermissible, was unfair to the Applicant, and constituted a denial of his right to fair procedures guaranteed by the Constitution of Ireland. The Court will therefore grant the relief sought by the Applicant.