[2017] IEHC 348
THE HIGH COURT
IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION
[2017 No. 537 S.S.]
STEPHEN MANNING
APPLICANT
AND
THE GOVERNOR OF CASTLEREA PRISON
RESPONDENT
EX TEMPORE JUDGMENT of Mr. Justice Richard Humphreys delivered on the 17th day of May, 2017
1.I am now dealing with an application for an inquiry under Article 40.4 of the Constitution which is sought by Ms. Marguerite Corbett and Ms. Noriko Manning in the name of Ms. Manning’s husband, Dr. Stephen Manning who is currently serving a two month sentence (imposed by the Circuit Court on appeal) for a public order offence. This is in fact the third Article 40 application arising out of the same custody. [I previously dealt with three judicial review applications seeking to prohibit the trial in question at District Court stage, 2016 Nos. 865 JR, 866 JR and 918 JR. The latter decision is currently the subject of an application for leave to appeal to the Supreme Court (2017/59).]
2.The first Article 40 application is the matter entitled Gilroy v. Governor of Castlerea Prison [2017 No. 507 S.S.] which is an application that was brought by Mr. Ben Gilroy on behalf of Dr. Manning. The title of those proceedings reflects an incorrect understanding by Mr. Gilroy as to the correct procedure. An Article 40 application must always be made in the name of the detainee even if it is in fact moved at the ex parte stage by a third party on their behalf (see Walsh v. Minister for Justice and Equality [2016] IEHC 323 para. 14). In each case the correct applicant is the detainee. The application moved by Mr. Gilroy was refused by order of Noonan J. on the 8th May, 2017, and no appeal has been brought in relation to that order.
3.The second application, Manning v. the Governor of Castlerea Prison [2017 No. 9 S.S.P.] was brought by Dr. Manning himself by way of an affidavit submitted to the Central Office (in accordance with the prisoner application procedure) sworn on the 11th May, 2017 and filed on the 16th May, 2017. That matter was assigned to Binchy J. and is currently under consideration by him.
4.The third application then is the present one, Manning v. Governor of Castlerea Prison [2017 No. 537 S.S.]. An affidavit of Noriko Manning was filed on the 16th May, 2017, and Ms. Corbett and Ms. Manning appeared before me at 4 pm on the 16th May, 2017. I adjourned the matter to 17th May, 2017 to clarify the situation with the earlier applications.
5.Ms. Corbett very helpfully says that she last spoke to Dr. Manning the night before he went into custody, which appears to have commenced on or shortly after the 4th May, 2017, according to Dr. Manning’s own Article 40 application. Since that discussion with Ms. Corbett he has brought his own Article 40 application. The concept of successive Article 40 ex parte applications, even to different judges, and at least on different grounds or on fresh evidence, is certainly an option that has existed historically. There is discussion of that historical situation at pp. 130 to 134 of Dr. Kevin Costello’s The Law of Habeas Corpus in Ireland (Four Courts Press, 2008). That facility to re-apply, at least on different grounds or on the same grounds with new evidence, has been reinforced by some jurisprudence since Costello’s book was published, particularly the decision of Hogan J. in Joyce v. Governor of Dóchas Centre [2012] IEHC 326 [2012] 2 I.R. 666; and see Lanigan v. Governor of Cloverhill Prison [2017] IEHC 23. However this case raises a different situation, namely where a previous Article 40 application relating to the same detention has not been determined and remains outstanding. Under those circumstances it is an inappropriate procedure to attempt to bring a further Article 40 application prior to the determination of that prior application. Costello at p. 134 refers to a case for which there is only a newspaper report citation, McGlinchy v. Governor of Portlaoise Prison, The Irish Times, 28th July, 1987, in which the Supreme Court propounded a formulation of this principle to the effect that it is not possible to initiate a complaint under Article 40.4.2° about an issue which is already being investigated following a complaint earlier submitted to another judge of the High Court. So that is unfortunately the situation here. A complaint has been submitted. It is being investigated in the sense that the application for an inquiry is under consideration by another judge of the court; so under those circumstances it is not possible to enter into an examination of whether an inquiry should be ordered on foot of a yet further complaint about the same detention. So on that preliminary procedural ground I must dismiss the application.
Postscript
6.Ms. Corbett, following the delivery of the foregoing judgment, asked me whether I was prepared to accept liability or financial responsibility for economic loss to the family concerned as a result of the detention. Unfortunately it is clearly contemptuous to ask a question of that nature to any judge insofar as it implicitly embodies a prospect that an attempt to impose such spurious liability on a judge could be made. More generally, the theory that applicants are generally entitled to expressly or impliedly threaten to, or attempt to, impose a bogus requirement of personal liability on public servants or office-holders for simply doing their jobs is wholly unacceptable (see Z.K. v. Reception and Integration Agency [2016] IEHC 20 at para. 9). Ms. Corbett thereupon very prudently took the opportunity to withdraw the question thereby resolving the matter and I commend her in that regard and for her courteous submissions which were clearly motivated by humanitarian concerns for the applicant and his family.
