Supreme Court of Ireland Decisions

1. This is an appeal by the Applicant, Stiofáin Breathnach, against the judgment and order of O’Neill J. made and delivered on the 23rd day of June 2000 whereby the learned

2. High Court judge refused the Applicant’s application for an inquiry under Article 40.4.2 of the Constitution of Ireland into the lawfulness of his current detention in Wheatfield Place of Detention.

3. The Applicant issued his application by means of a grounding affidavit and covering letter dated the 25th day of May 2000. In his grounding affidavit the Applicant states that he is presently detained in custody since the 15th November 1999 on foot of an original executed temporary order and warrant of committal on foot of a conviction in the Dublin Circuit Criminal Court dated 15th November 1999. He goes on to state that according to that temporary warrant, Circuit Judge Michael D. White on that date heard and determined an appeal from the District Court in a certain purported private prosecution entitled: Garda Fin bar Noel Brady p the Applicant and pursuant to his order had directed that the Applicant be imprisoned in Mountjoy Prison for a period of six months to commence on the legal termination of a sentence imposed by the Special Criminal Court on the 9th November 1993 and for a further period of six months to commence on the legal termination of the other six months. The Applicant then states that on November 15th 1999 he was arrested outside the Court and conveyed to Mountjoy Prison on foot of the temporary warrant. He was subsequently transferred to Wheatfield Place of Detention where he is at present held in custody. The Applicant claims that as a result his present detention in Wheatfield Place of Detention is contrary to law and is an infringement of his constitutional rights. In his affidavit he refers at some length to the cases of Angelo Fusco and Paul Dingus Magee .

4. The Applicant’s application was submitted to O’Neill J. for consideration and ruling. On 23rd June 2000 the learned High Court judge made the following order:-

5. In his judgment of the same date O’Neill J. drew attention to the fact that the Applicant was serving a term of imprisonment imposed by the Special Criminal Court on the 9th November 1993 and that the term of that imprisonment had not yet expired. On the 15th November 1999 the Applicant was sentenced to two sentences of six months imprisonment in respect of common assault. These terms of imprisonment were to commence on the legal termination of the sentence imposed upon the Applicant by the Special Criminal Court on the 9th November 1993.

6. He held that the term of imprisonment imposed by the Special Criminal Court upon the 9th November 1993 had not yet legally terminated and hence the Applicant was lawfully in custody serving that sentence. In the view of O’Neill J. the numerous and various complaints of the Applicant concerning the warrant which issued on foot of the order of the

7. Circuit Court on 15th November 1999 did not have any relevance or any bearing upon the legality of the Applicant’s current detention, that detention being on foot of the sentence imposed upon him by the Special Criminal Court on the 9th November 1993. Not until the legal termination of the term of imprisonment imposed by the Special Criminal Court on that date would the warrant issued on the 15th November 1999 be the basis of any further detention of the Applicant thereafter.

8. The learned High Court judge therefore held that the Applicant had not in his view advanced any grounds which vitiated the lawfulness of his current detention and accordingly he refused his application.

9. The Applicant has now appealed to this Court by way of a notice of appeal dated the 7th July 2000. He sets out 25 grounds of appeal. His main grounds of appeal are a criticism of the procedure under which his application was dealt with in the High Court, which he describes as being “in secret and on paper” and, in particular, in his absence. He alleges that this procedure was an infringement of his constitutional right of access to the Court.

10. The learned High Court judge dealt with the applicant’s application in accordance with an established procedure whereby the numerous ex-parte applications made by persons serving custodial sentences are in the first place considered by a judge of the High Court on the basis of the affidavits and other documentary materials put forward by the Applicant in question. If the evidence before the Court discloses prima facie or arguable grounds for the relief sought, the matter is listed for further hearing and an order is made directing that the Applicant be brought to Court for that hearing which, according to the nature of the original application, may take the form of judicial review, an inquiry under Article 40 of the Constitution, or other relevant proceedings.

11. If, however, the High Court judge holds that on the ex-parte application the Applicant has shown no arguable grounds for the relief sought, the judge proceeds to give judgment in open Court, setting out in writing his decision and making an order accordingly. There is no evidence before this Court to suggest that O’Neill J. in any way departed from this procedure. In his judgment he has clearly and succinctly set out the reasons for his decision, reasons which this Court expressly approves. The cases of Angelo Fusco and Paul Dingus Magee cited by the Applicant in his original affidavit and again raised by him in his notice of appeal have no relevance whatever to the Applicant’s case.

12. The procedure outlined above in which the preliminary inquiry is carried out in the absence of the person being held in custody has been specifically approved both by the High Court and this Court as being in accordance with the requirements of Article 40.4 of the Constitution. This provision “contains the essence of the principle and practice known as Habeas Corpus and familiar in Ireland (though with interruptions) since the 17th century.” (J.M. Kelly The Irish Constitution 3rd edition page 896-897).

13. The procedure is a flexible one, as it must be if the liberty of the individual is to be vindicated in the varied and sometimes urgent circumstances in which that may be required. Though the present application is a relatively formal one, complaints (to use the word of the Article) are received in circumstances of great informality where necessary and may be brought by third parties on behalf of the detained person.

14. In relation to applications by persons in prison pursuant to a warrant issued by a Court, the specific procedure described above has been adopted for some considerable time.

15. It was described by Murphy J. in Ryan v Governor of Limerick Prison [1988] IR 198 as follows:-

16. The decision to which Murphy J. referred is, at that stage of the proceedings, a decision based on the judge’s immediate inquiry into the complaint put before him. The mandatory nature of this inquiry appears in the words of Article 40.4.2 “ .. the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint ...”

17. On the inquiry, it may immediately appear that the application is without merit and that there is no need to take any further step other than to announce this decision. On the other hand it may appear to the judge of the High Court that he should, in the words of the article, “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...” Alternatively, the High Court judge may make further enquiries. In the words of Finlay C.J. in Sheehan v Reilly [1993] 2 IR 81:

18. The passage just cited also contains an apt description of the nature of the inquiry made by a High Court judge immediately on complaint to him: he is investigating whether or not “sufficient doubt as to the legality of the detention of the Applicant has been raised to warrant calling upon the jailer.... to show cause.”

19. It has long been held that a judge making such inquiry may call upon the person detaining the Applicant to “certify in writing the grounds of his detention by way of affording him ‘an opportunity for justifying his detention “‘ without being obliged to “order the production of the body of the person detained” In the State (M Woods v Kelly [1969] IR 269 at 272) O’Dálaigh C.J. held that:

20. This enabling power, which is discretionary, is contrasted with the mandatory requirement to require certification of the grounds of detention and to afford an opportunity of justifying the detention. In the same case it was held that the production of the body of the detained person to the Court is to be ordered only “ if the Court thinks it is necessary” (page 253).

21. In the instant case O’Neill J. held, in my view correctly, that the presence of the Applicant in Court was not necessary and was not required.

22. The Applicant in his notice of appeal cites his right of access to the Court.

23. The Applicant, in common with those who are at liberty, has a right of access to the Court. This right is guaranteed by the Constitution - see MacAuley v Minister for Posts and Telegraphs [1966] IR 345. This does not necessarily imply that in all circumstances the applicant has a right to be physically present in Court on the hearing of an application. The right of access to the Courts must be held in balance with the right of the community to prosecute offences and, where convicted, to punish the offender, if necessary by means of a custodial sentence. Under the present procedure all ex-parte applications by persons in custody are carefully considered and, if a prima facie ground for relief is disclosed, full facilities are provided for the applicant to attend in Court and to argue his case either in person or through his solicitor and counsel. This procedure, in my view, permits the applicant to have an appropriate right of access to the Court, bearing in mind that he is serving a sentence of imprisonment lawfully imposed. The fact that the judgment and order of the High Court Judge is pronounced in open court in these cases meets the requirements that justice shall be administered in public; it is essential that this procedure be followed in all cases.

24. The further grounds of appeal put forward by the applicant, many of which consist of personal attacks on the learned High Court judge, are either frivolous or vexatious.

25. I would dismiss the appeal and uphold the order of the High Court.