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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Stephens v. Governor of Castlerea Prison [2002] IEHC 169 (20 September 2002)
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Cite as: [2002] IEHC 169
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2002 No. 1846SS
BETWEEN
APPLICANT
RESPONDENT
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on 20th September 2002.
On this inquiry under Article 40.4 of the Constitution, the respondent contends that the applicant is being detained in Castlerea Prison pursuant to a remand warrant which at the date of the certificate issued by the respondent was issued on 16th August, 2002 and at the date of the hearing was issued on 30* August, 2002. Each remand warrant is in similar form and relates to offences on charge sheets nos. 81315,81314 and 74644. No challenge is made to the legality of such remand warrants.
The applicant contends that his current detention is not in accordance with law having regard to what he asserts to have been a fundamental flaw at an earlier stage in the process which, he asserts, ultimately resulted in his current detention under the above remand warrants.
The chronology of events which led to the applicant's current detention are complex and may be summarised as follows:
• On 4th December, 1996 the applicant was charged with an offence of criminal damage alleged to have occurred on the 22nd June, 1996 being damage to one glass window shop front valued at £256.66. He was also charged on the same date with a public order offence contrary to s. 6 of the Criminal Justice (Public Order) Act, 1994 alleged to have occurred on the 22nd June, 1996.
• On the 4th December, 1996 the applicant pleaded guilty to both the said charges and was remanded on bail to 18th December, 1996 to allow a probation report to be prepared and to consider payment of compensation.
• The applicant was further remanded from time to time until 2nd April, 1997 on which date he failed to appear and a bench warrant issued for his arrest which was executed on 30th July, 1997. The applicant was brought before Athlone District Court and re-admitted to bail. The case was adjourned to Ballinasloe on the 3rd September, 1997.
• On the 3rd September, 1997 the applicant failed to appear at Ballinasloe District Court and a bench warrant issued.
• On the 19th August, 1997 the death took place of John Kennedy, a murder investigation was opened and the applicant was a suspect in relation to the matter.
• In the middle of 1999 An Garda Sfochana received information that the applicant was in the United Kingdom.
• On 21st July, 1999 a warrant was issued by Judge O'Sullivan in Ballinasloe District Court to the Superintendent of the Garda Siochana at Ballinasloe garda station to arrest the applicant as a person remanded on bail and failing to appear.
• On the 14th May, 2002 the applicant was arrested in England on foot of an extradition request from Ireland. That request was grounded on the warrant of Judge O'Sullivan of 21st July, 1999.
• On 15th May, 2002 an order for the extradition of the applicant was made on consent by Bow Street Magistrates Court in London.
• On the 6th June, 2002 the applicant was delivered up by the United Kingdom authorities and was brought before Mountbellew District
Court where he was charged with the offence of criminal damage on the 22nd June, 1996 and remanded in custody until the 12th June.
• On the 6th June, 2002 a certificate of waiver of specialty, consenting to the applicant being restricted in his personal freedom or otherwise dealt with in the investigation by members of the Garda Siochana into the allegation that the applicant murdered John Kennedy on or about 22nd June, 1997 and on the same date stole money the property of John Kennedy was issued by David Blunkett M.P., Secretary of State for the Home Department.
• On the 10th June, 2002 the above certificate was cancelled by Mr. Blunkett M.P. and a new certificate waiving speciality and consenting to the applicant being otherwise restricted in his personal freedom or otherwise dealt with in the investigation by members of the Garda Siochana into the allegations that the applicant murdered John Kennedy on or about the 19th August, 1997 and on the same date stole money the property of John Kennedy was issued by Mr. Blunkett.
• On the 11th June, 2002 a warrant was obtained from the District Court pursuant to s. 42 of the Criminal Justice Act, 1999 permitting the arrest of the applicant at Castlerea Prison and his detention under s. 4 of the Criminal Justice Act, 1984.
• On the 19th June, 2002 a further certificate of waiver of specialty was issued by Mr. Blunkett consenting to the applicant being proceeded against, sentenced, imprisoned or detained with a view to carrying out sentences or orders for the detention in respect of the following offences:
1. "For that you Alan Stephens on or about the 19th August, 1997 at the amusement arcade at the Main Street, Ballinasloe, Co. Galway in the District Court area of Ballinalsoe District No. 8 did murder John Kennedy contrary to common law and s. 4 of the Criminal Justice Act, 1964.
2. For that you Alan Stephens on or about the 19th August, 1997 at the amusement arcade Main Street, Ballinasloe, Co. Galway in the District Court area of the District No. 8 did steal a sum of money to the amount of £1,887 the property of Timothy McAteer contrary to s. 2 of the Larceny Act, 1916."
• On the 20th June, 2002 the applicant was charged with each of the above offences and was remanded in custody on these and the criminal damage
offence.
• Since the 20th June, 2002 the applicant has been remanded from time to time in custody on all three offences.
Counsel for the applicant makes two quite separate challenges to the legality of the current detention of the applicant. Firstly, he contends that the warrant of the 21st July, 1999 was an invalid or stale warrant and such a fundamental flaw in the process leading to the current detention as to make it unlawful.
Secondly and quite separately he contends that the real purpose of the request to the authorities in the United Kingdom for the extradition of the applicant was to investigate the alleged unlawful killing of John Kennedy and that the request for extradition on the criminal damage charge was a colourable device to procure the return of the applicant to this jurisdiction for the purpose of investigating the alleged unlawful killing.
No argument is made against the validity of any step taken in this jurisdiction since the applicant's return on the 6th June, 2002. It is accepted that the applicant has been charged with each of the offences in respect of which he is now remanded in custody. Further, it is accepted by counsel for the applicant that the order for extradition made by Bow Street Magistrates Court is not reviewable by this Court.
Alleged invalidity of warrant of July. 1999
This being an Article 40 inquiry, it is not sufficient to establish a defect in the warrant such that it would be considered to be technically invalid but rather there must be a fundamental default such that his present detention may be said to be illegal. In The State (McDonagh) v. Frawley [1978] I.R. 131 O'Higgins CJ. delivering the judgment of the Court said at p. 136:
"The stipulation in Article 40, s. 4, sub-s. 1 ... that a citizen may not be deprived of his liberty save 'in accordance with law' does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded."
The unchallenged evidence before me was that the applicant consented to the order for extradition made by Bow Streets Magistrates Court. No evidence was adduced of the documents served on the applicant in the English extradition proceedings. The response of both counsel to an inquiry from me in the course of the hearing as to whether the applicant had been served with the warrant of July, 1999 indicates that there is a dispute as to whether or not he was so served.
Counsel for the applicant confirmed that the applicant knew at the time he consented to the extradition order that the charge in respect of which his extradition was sought was the criminal damage offence of 1996 and that the applicant was aware that a bench warrant had issued on his failure to turn up in Court in connection with that charge in September, 1997.
Counsel for the applicant submitted that if I now found the warrant of July, 1999 to be invalid then such invalidity was a fundamental default in the process which lead to the applicant's current detention such that his current detention must be said to be wanting in due process of law and the applicant is entitled to be released. Counsel for the respondent, without conceding any invalidity in the warrant of July, 1999 submitted that that in the particular circumstances of this extradition in the absence of fraud or mala fides by the Garda Siochana in obtaining the July 1999 warrant that, any defect attaching to same was not of such an order as would warrant a finding by this Court that there had been a default of fundamental requirements in the process which lead to the applicant's current detention.
I do not accept that the applicant must establish fraud or mala fides by the gardai. However, in circumstances where the applicant was aware of the offence for which his extradition was sought; was aware of the 1997 bench warrant and consented to his extradition, I consider he must establish that the District Judge had no jurisdiction in July 1999 to issue a warrant for his arrest to appear in relation to the criminal damage charge. It is not sufficient to establish that the warrant actually issued was defective on its face.
The evidence is that the warrant of July, 1999 was sought and obtained in the following circumstances. The applicant having pleaded guilty to the criminal damage and public order charge in December, 1996 was remanded on bail. In April, 1997 he failed to appear and a bench warrant was issued for his arrest which was executed on the 30th July, 1997. He was then re-admitted to bail and was to appear in Ballinasloe District Court on the 3rd September, 1997. When he failed to appear on that date a bench warrant issued which referred both to the criminal damage offence and the public order offence. When the Garda Siochana received information in mid 1999 that the applicant was in the United Kingdom Inspector Kearney states that they applied to the District Court for a warrant to arrest the applicant on foot of the original criminal damage offence. The reason given for this application is that the bench warrant of September, 1997 referred to the public order offence for which extradition could not be sought and hence that warrant could not back a request for extradition.
The warrant of 21st July, 1999 is in the form of warrant provided for under 0.22 of the District Court Rules, 1997 where an accused fails to appear. It correctly recites the criminal damage offence with which the applicant was charged and the admission to bail by recognisance conditioned that he would appear at Ballinasloe District Court on the 3r September, 1997 and his failure to so appear. It then continues
"... and whereas the recognisance has on this day been produced to me at a sitting of the Court before which the accused was bound to appear."
It is accepted on behalf of the respondent that the applicant was not bound to appear in Ballinasloe District Court on 21st July, 1999. Further counsel for the applicant submits that the evidence is that the relevant recognisance was not produced to the District Judge on 21st July, 1999. A copy of a letter dated September, 2002 from Margaret Heavy, District Court Clerk, Ballinasloe District Court, to the applicant's solicitors was put into evidence in which it was stated "the Court has no records on file regarding the documentation necessary to ground an application for warrant of arrest issued for the above named in the District Court on 21sl July, 1999."
Counsel for the applicant contends that by reason of above that the warrant of 21st July, 1999 is on its face invalid. I accept that the above recital in the warrant is not accurate as the accused was not bound to appear on 21st July.
Counsel for the applicant further submits that the District Judge had no jurisdiction under the District Court Rules, 1997 to issue a bench warrant pursuant to 0.22 of the District Court Rules, 1997 on that day. He relies upon the provisions of 0. 22, r. 2(b) which provides:
"2. Where-
(b) an accused person is before the Court in connection with an offence and, on being remanded, is admitted to bail by recognisance for his or her appearance before a subsequent sitting of the Court (either in the same or another place), and that person, having entered into the recognisance, fails to appear at a time on a date and at a place at or on which he or she was bound by the recognisance to appear, the Judge then and there sitting may, on production of the recognisance to him or her, issue a warrant, in the Form 22.3, Schedule B, for the arrest of that person."
It is common case that the applicant had entered into recognisance to appear in Ballinasloe District Court on 3rd September, 1997 and having failed to appear that the recognisance was produced to the Court on that day. Counsel for the applicant submits that the words "the Judge then and there sitting" in 0.22 confines the issuing of a warrant to the sitting of the Court at which the accused was bound to appear and the recognisances were produced.
Counsel for the respondent submits that this is too narrow an interpretation of 0. 22 and that once an accused having entered into a recognisance fails to appear at a time on a date and place at which he was bound to appear and that the recognisance was on that date produced to the judge that the judge may at a subsequent sitting of the District Court issue or re-issue a warrant for arrest by reason of the prior failure to appear.
The jurisdiction of the District Court to issue a bench warrant is not based on 0. 22 above but appears to be part of the inherent jurisdiction of the Court which flows from the jurisdiction to try the offences in question and also to release an accused on bail by recognisance to appear before a subsequent sitting of the Court. I find support for this proposition in the judgment of Gavan Duffy P. in The State (Attorney General) v. Judge Roe [1951] I.R. 172 where at p. 193 he stated:-
"If a defendant, duly summoned, does not appear, I think he can be arrested on a bench warrant issued by the Circuit Court Judge.
Mr. Serjeant Hawkins says:- 'Also it seems clear, that wherever a statute gives to any one justice of the peace a jurisdiction over any offence... it impliedly gives a power to every such justice to make out a warrant to bring before him any person accused of such offence ... for it cannot but be intended, that a statute giving a person jurisdiction over an offence, doth mean also to give him the power incident to all courts, of compelling the party to come before him' (Hawk. P.C., 8th ed., vol. 2, book 2, c. 13, s. 15). Chitty's Criminal Law, 2nd ed., 1826, vol. 1, c. 8, pp. 337-8, says:-' Wherever the king grants an authority of oyer and terminer, the power to issue process is incidentally given; for as there can be no inquiry respecting offences, without the presence of the party, wherever the power is entrusted of determining the former, there must also be authority to compel the latter. For the same reason, justices of the peace, whenever they are authorised to inquire, hear, and determine, may thus compel the defendant to appear; and, indeed, this is expressly declared by the words of their commission. The same observations apply, of course, to all magistrates whatsoever, who are invested with the power to try offenders.'"
Davitt P. in The State (Attorney General) v. Judge Fawsitt [1955] I.R. 39 at p. 52 considered that the above passages "contain a clear recognition and acceptance of the principle that where a statute confers upon a Court a substantive jurisdiction to try a person charged with a criminal offence it impliedly confers likewise the adjective or ancillary jurisdiction necessary to compel that person to attend the Court to take his trial."
I would respectfully agree with the above statements of principle. Order 22 is not, in my view, intended to limit such inherent jurisdiction. Hence I consider that a District Judge having issued a bench warrant under 0. 22, r. 2 which includes a reference to both an extraditable and non-extraditable offence has an inherent jurisdiction to issue a warrant referring only to the extraditable offence,upon being informed that the accused may be in another country. If he did not he would have no way of compelling the attendance of an accused to face trial for an extraditable offence.
Accordingly, I conclude that District Judge O'Sullivan did have jurisdiction on 21st July, 1999 to issue a warrant for the arrest of the applicant referring only to the criminal damage charge. Further that any defects in the recitals to the warrant issued are not of such fundamental nature on the particular facts of this case to justify a finding of illegality of the current detention of the applicant.
Counsel for the applicant also sought to argue that at the time of the request for extradition the 1999 warrant was stale. In circumstances where the applicant has failed to appear in 1997 and subsequently consented to his extradition from the United Kingdom knowing the charge in respect of which his extradition was sought, the date upon which such offence was alleged to have been committed and also the date upon which he failed to turn up in Ballinasloe District Court it does not appear to me open to him to successfully challenge his current detention under Article 40 upon an allegation of staleness of the warrant which backed the extradition request.
Colourable device
The applicant separately challenges the legality of this current detention upon the ground that the real purpose of the request for extradition was to have the applicant brought back into this jurisdiction in order that he could be questioned about the alleged unlawful killing of John Kennedy on 19th August, 1997 and that the request for extradition on the criminal damage charge was a colourable device to achieve this purpose.
Counsel for the respondent does not dispute that there may have been at the time of the request for extradition an intention to question the applicant, if he was returned to this jurisdiction about the alleged unlawful killing of John Kennedy. Rather she submits that the relevant test is whether there was a bonafide intention by the Garda Siochana to pursue the criminal damage charge and in particular submits that in circumstances where a bench warrant had issued by reason of the failure of the applicant to appear on a due date that there was an obligation on the gardai, once they became aware of the whereabouts of the applicant to seek his extradition.
On the evidence before me I am satisfied that at the time of the request for extradition it was genuinely the intention of the gardai to discharge their obligation to execute the bench warrant and pursue the criminal damage offence. Inspector Kearney has stated on affidavit that it is their intention to dispose of that charge at the first available opportunity. The applicant is currently remanded in custody inter aha on the criminal damage charge. It is clear from the affidavit sworn on the applicant's behalf by his solicitor that his solicitor has objected to the disposal of the criminal damage charge in advance of the other charges.
I am also satisfied that at the time of the request for extradition, as a matter of probability, the gardai also intended, if the applicant was returned to the State and a certificate of waiver of specialty obtained, to question him about the alleged unlawful killing of John Kennedy. Inspector Kearney does not dispute this allegation in the affidavit sworn. It is also clear that by the date upon which the applicant was delivered up to the State that a request had been made to the Secretary of State for the Home Department for a waiver of specialty. The first (and subsequently cancelled) certificate of waiver was issued on the 6th June, 2002 the date upon which the applicant was delivered up by the authorities in the United Kingdom to the State.
As already stated, counsel for the respondent submits that the dual intention is permissible provided there is the bonafide intention to pursue the charge for which the extradition is sought. In making this argument she relies on decisions relating to arrests under s. 30 of the Offences Against the State Act, 1939 and in particular the judgments of the Supreme Court in The People (D.P. P.) v. QuilHgan [1986] I.R. 495 and The People (D.P.P.) v. Walsh [1986] I.R. 722. In each of those cases the appellant was arrested under subs. 1 of s. 30 of the Offences Against the State Act, 1939 on suspicion of having committed a scheduled offence and was interrogated in relation to an non-scheduled offence of murder. In each case the scheduled offence was an offence of malicious damage and a much lesser offence than the non-scheduled offence of murder. In The People (D.P.P.) v. Quilligan Walsh J. stated at p. 512
"In the present case, the learned trial judge was perfectly satisfied that in arresting the defendants in respect of the scheduled offence of malicious damage that the Gardai were acting bonafide and that they had a valid suspicion that each of the accused had committed a scheduled offence. Even though the scheduled offence in question faded into relative insignificance when compared with the homicide with which it was directly connected there was a genuine case of malicious damage. That means the judge has held that the motive for the arrest was not simply that of having an opportunity to ask questions about the murder, but that the arrest was a genuine one for malicious damage even though it would provide an occasion whereby questions could also be asked about the murder. Apart from the statutory obligation imposed on the accused to furnish their names and addresses under s. 30 and the power to put the questions authorised by s. 52 the Gardai had no other particular power to interrogate them which was any greater than the power they have to ask questions of persons in custody if the provisions of the Offences Against the State Act had never been invoked. It did however give the Gardai the advantage of having persons whom they wished to question in a position where such persons could not walk away from them. Apart from that factor, all the other safeguards envisaged by the law and already referred to were applicable and there has been no evidence that any of those safeguards were violated. Accordingly the arrest under s. 30 was lawful."
It may be considered that in circumstances where the extradition of a person such as the applicant is obtained that the advantage to the gardai is greater than that envisaged by Walsh J. in the above extract. However, I accept that the correct principle is one analogous to that established by the above judgments in relation to s. 30 of the Offences Against the State Act, 1939. The restriction on interrogating and charging extradited persons and the system of a potential waiver of speciality provided for in s. 39 of the Extradition Act, 1965 as amended by art. 6 of the Extradition (Rule of Speciality and Re-extradition for the purposes of Part III of the Extradition Act, 1965) Order, 1994 clearly envisages the possibility that a person whose extradition is sought for one particular offence may also be interrogated or charged with other offences upon his return to the State. It is a matter for the extraditing authority, in this instance the authority in the United Kingdom, as to whether the Irish authorities will ultimately be permitted to restrict a person, who has been extradited, in his personal freedom or otherwise for the purpose of the investigation and/or prosecution of a criminal charge for which he has not been extradited. There is nothing in s. 39 which suggests that an application for a certificate of speciality may only be made where an intention to interrogate or prosecute is formed subsequent to the extradition taking place.
Accordingly, provided there is at the time of the request for the extradition a bonafide intention to pursue the criminal charge in respect of which the extradition is sought, the fact that the gardai may also have an intention of interrogating or prosecuting in relation to another offence does not appear to me to affect the validity of the request for extradition.
The facts of this case appear to me distinguishable from the facts of both The State (Bowes) v. Superintendent Fitzpatrick [1978] I.L.R.M. 195 and The State (Trimbole) v. Tlie Governor of Mounljoy Prison [1985] I.R. 550 sought to be relied on by counsel for the applicant In the Bowes case it was determined that in reality the purpose of the arrest under s. 30 of the Offence Against the State Act, 1939 was the interrogation of the alleged murder which was a non-scheduled offence. In the Trimbole case there was a finding that there was no genuine suspicion of which would justify the arrest of Mr. Trimbole under s. 30 of the Offences Against the State Act, 1939. In this case I am satisfied on the affidavit of Inspector Kearney that there was a genuine and bonafide intention on the part of the gardai to execute the bench warrant and pursue the criminal damage charge.
Accordingly I refuse the present application.