Supreme Court of Ireland Decisions

Judgment Title: Oladapo -v- The Governor of Cloverhill Prison

Neutral Citation: [2009] IESC 42

Supreme Court Record Number: 52/09

High Court Record Number: 2009 246 SS

Date of Delivery: 20 May 2009

Court: Supreme Court

THE SUPREME COURT

Murray C.J. 52/09
Denham J.
Fennelly J.


Between
COLLINS B. OLADAPO

JUDGMENT of Murray C.J. delivered on the 20th day of May 2009

This is an appeal from the order of the High Court which refused an application by the appellant, pursuant to Article 40.4 of the Constitution, for his release from Cloverhill Prison where he was detained in the custody of the respondent.

At a hearing before this Court on the 26th day of March 2009, the appeal was allowed and an Order made directing the release of the appellant pursuant to Article 40.4 of the Constitution. It was stated that the reasons for that decision would be given later. In this judgment I set out the reasons why I considered that the appeal be allowed and the order pursuant to Article 40.4 made.

The appellant was detained by the respondent on foot of a detention order made by Garda Philip McGovern on the 15th February 2009 pursuant to s. 5(2) of the Immigration Act 2003. The detention order was made on the grounds that the appellant had been refused permission to enter the State and he was detained pending the making of arrangements for his removal from the State.

Background Facts

The grounds upon which the appellant claims that his detention was unlawful are referred to later. First of all I wish to summarise the most relevant background facts.

The appellant is a Nigerian national. He first came to Ireland in August 2002. He resided in Dundalk, Co. Louth, with his wife and a daughter who was born in Ireland in February 2002. Since then they have had two further children born in Ireland in 2003 and 2008. Both the appellant and his wife applied for asylum on their arrival in Ireland. Both withdrew their applications for asylum and instead made separate applications for residency pursuant to the “Irish Born Child Scheme” put in place by the Minister. The appellant’s wife was granted residency under that scheme (IBC 05) in March 2005. The application made by the appellant, who had returned to Nigeria for a period, was made after the deadline for the submission of such applications under the scheme and could not be considered. Since the time of his first arrival in the State the appellant has left the State on a number of occasions including returns to Nigeria as well as leaving the State to go to Northern Ireland from time to time. When in Nigeria in 2007 he wrote to the notice party confirming that he had “settled down permanently in Nigeria and [was] currently engaged in business”. The most recent period which he spent in Nigeria was from Summer 2007 until November 2008. During the latter month he returned to Ireland via Northern Ireland and took up residence again with his wife and children. On February 13th 2009 the appellant had made a submission to the notice party pursuant to s. 3 of the Immigration Act, 1999 as to why he should be permitted to remain in the State.

For present purposes it is sufficient to state that since his return to Ireland in 2008 he has been, and remains, by virtue of s. 5(2) of the Immigration Act 2004, unlawfully present in the State as a non-national without a permission given to him by or on behalf of the Minister to be in the State.

On the 14th February 2008 the appellant left the State by crossing the border and going to Northern Ireland for the purpose of doing some shopping. Having completed his shopping he re-entered the State, driving his own car, with the intention of returning to his home in Dundalk. His car was stopped in a housing estate in Dundalk by Garda Philip McGovern to whom the appellant admitted that he had been in Northern Ireland shopping. Garda McGovern requested the appellant to produce a valid passport and visa and, with regard to his entry into the State that day, to produce a Garda National Immigration Bureau card. The applicant failed to produce either a passport or a Garda National Immigration card.

The garda member then arrested the appellant pursuant to s. 13 of the Immigration Act 2004 and took him to Dundalk garda station. Some time later he was denied permission to land by Garda McGovern who for the purpose of the Immigration Acts was also an immigration officer. That refusal was made pursuant to s. 4(3)(e) and (g) of the Immigration Act 2004. A “permission” to land is an authorisation to a non-national to land or be in the State and such permission may be given to the non-national in a document or placed on his or her passport or other equivalent document with an inscription authorising the person to land. (See s. 4(1) of the Immigration Act 2004).

Following upon the refusal to grant permission to land to the appellant Garda McGovern arrested him in the garda station pursuant to s. 5(2) of the Immigration Act 2003 as amended by s. 16 of the Immigration Act 2004.

The appellant was detained overnight in the garda station at Dundalk and on the following day, 15th February 2009, Garda McGovern issued a warrant pursuant to the aforesaid provisions for the detention of the appellant in Cloverhill Prison pending the making of arrangements for his removal from the State. Since then he had been detained in Cloverhill Prison on foot of that warrant.

The appellant having applied to the High Court for an inquiry into the lawfulness of his detention pursuant to Article 40.4 of the Constitution the respondent justified the lawfulness of the appellant’s detention by producing and relying on the warrant issued by Garda McGovern. In the High Court the learned trial judge found, contrary to the submissions of the appellant, that he was lawfully detained by the respondent pursuant to the warrant issued by Garda McGovern and that the lawfulness of that detention was not affected by the Court’s finding that the period of the appellant’s detention in Dundalk garda station prior to his arrest pursuant to s. 5 of the Immigration Act 2003, following the refusal of permission to land, was unlawful.

It will be necessary, for the purposes of addressing the issues raised by the appellant in this appeal, to refer in greater detail to the evidence and facts concerning the initial arrest of the appellant in the course of his detention in Dundalk garda station. Before referring to these matters I wish to refer to the grounds relied upon by the appellant for his contention that his detention was unlawful and to the relevant statutory provisions.

Grounds

The first ground of appeal argued on behalf of the appellant is that the initial arrest of the appellant by Garda McGovern pursuant to s. 13 of the Act of 2004 was unlawful because it was not made for the purpose of charging the appellant with the offence for which he was arrested but for the ulterior purpose of bringing him to the garda station in Dundalk and then formally denying him permission to land and arresting him pursuant to s. 5(2) of the Immigration Act 2003 so as to enable arrangements to be made for his removal from the State. Consequently both the arrest under s. 13 and his subsequent detention were unlawful. Accordingly the appellant was in unlawful custody when the warrant was issued by Garda McGovern on February 15th directing his detention in Cloverhill Prison. In these circumstances the decision to issue a warrant for the appellant’s detention in Cloverhill Prison, even if it would have been otherwise lawful, was tainted by the unlawfulness of the initial arrest and/or the appellant’s subsequent period of unlawful detention by reason of which that warrant for his detention was itself unlawful.

There were other grounds relied upon by the appellant in the appeal concerning the lawfulness of the decision of the Garda member to refuse the appellant permission to land as well as issues concerning the interpretation of the relevant statutory provisions as they apply to a person who has crossed a land frontier in contrast to those arriving by sea or air.

In the light of the conclusion I have come to on the first ground of appeal it is not necessary to consider the other grounds.

Relevant Statutory Provisions

Section 5(1) – (3) of the Immigration Act 2003 (as amended by s. 16) of the Immigration Act 2004:

5.—(1) Subject to section 5 of the Refugee Act 1996 and section 4 of the Criminal Justice (United Nations Convention against Torture) Act 2000, this section applies to-

(a) a non-national to whom leave to land has been refused under Article 5(2) of the Aliens Order 1946 (SR&O 1946 No. 395) (“the Order”),


(b) a non-national who has failed to comply with Article 5(1) of the Order,

(c) a non-national who has entered the State in contravention of Article 6 of the Order,

(d) a non-national deemed to be a person to whom leave to land has been refused under the Order,

whom an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects has been unlawfully in the State for a continuous period of less than 3 months.

(2) (a) Subject to paragraph (b), a person to whom this section applies may be arrested by an immigration officer or a member of the Garda Síochána and detained under warrant of that officer or member in a prescribed place and in the custody of the officer of the Minister or member of the Garda Síochána for the time being in charge of that place.

(b) …

(c)…

(d) …

(3) (a) A person arrested and detained under this section may, subject to subsection (4), be detained only until such time (being as soon as practicable) as he or she is removed from the State in accordance with this section but, in any event, may not be detained for a period exceeding 8 weeks in aggregate.

…

Immigration Act 2004:

5.—(1) No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given under this Act after such passing, by or on behalf of the Minister.

(2) A non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully present in the State.

12.—(1) Every non-national shall produce on demand, unless he or she gives a satisfactory explanation of the circumstances which prevent him or her from so doing—

(a) a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and

(b) in case he or she is registered or deemed to be registered under this Act, his or her registration certificate.

(2) A non-national who contravenes this section shall be guilty of an offence.

13.—(1) A person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both.

(2) A member of the Garda Síochána may arrest without warrant a person whom he or she reasonably suspects to have committed an offence under this Act (other than section 10 ) or section 2(1) of the Employment Permits Act 2003 .


The Purpose of the Arrest

The actual purpose for which Garda McGovern arrested the appellant pursuant to s. 13 of the Act of 2004 is of particular pertinence to the first ground of appeal relied upon by the appellant namely, the lawfulness of the initial arrest and ensuing detention and if these were unlawful, the implications for the lawfulness of the warrant issued for his current detention in Cloverhill Prison.

Garda McGovern gave evidence at the hearing in the High Court. It is not in issue that he had prior knowledge of the appellant’s departure from the State for the purpose of going shopping in Northern Ireland so that when he stopped the appellant in his motor car on his return to Dundalk this was not a chance event. Again, it is not in issue that prior to the arrest Garda McGovern knew, at least from a statement made by the appellant’s wife, that the appellant had been refused permission to reside in the State under the IBC 05 Scheme and that having been away in Nigeria for over one year had returned to the State in late 2008 via Great Britain and Northern Ireland. He also had been made aware, at least in the statement made by his wife, that he had recently submitted to the Minister for Justice, Equality and Law Reform an application for leave to remain.

It was in that context that he stopped the appellant following his entry into the State from Northern Ireland on February 14th 2009.

It was also his uncontroversial evidence that he at all times dealt with the appellant on the basis of a “first time entry” to the State on that date. At one point he said to the learned trial judge, “Yes, judge, I was treating him as a ‘first time entry’ in every respect.” That was quite a logical approach since the appellant at no stage had a right to enter or be in the State and having left the State on 14th February he had no entitlement to subsequently enter the State. He was in no different position in circumstances where he entered the State on that occasion without a visa or other authorisation, from when he entered the State for the first time.

Garda McGovern made it clear in his evidence that his ostensible purpose for arresting the appellant arose from his failure to produce documents, such as a valid passport or other equivalent document, in contravention of s. 12(1) and (2) of the Immigration Act 2004. According to his evidence before the High Court, Garda McGovern arrested the appellant pursuant to the powers conferred on him by s. 13(1) of the Act of 2004 for an offence contrary to s. 12 of that Act. According to his evidence Garda McGovern served two notices on the appellant in the garda station which he described as E and G. They were served after he had refused the appellant leave to land while in the garda station. He said they referred to the appellant having no passport and having no valid visa. These notices were, according to his evidence in the High Court, notices of “why he has been in custody”.

Garda McGovern was questioned extensively concerning the true purpose of his arrest of the appellant pursuant to s. 13. I think it is necessary to set out in some detail relevant extracts from the evidence given by Garda McGovern in answer to these questions.

The following are extracts from Garda McGovern’s evidence in that particular respect: (with emphasis added):

Q. “So why did you arrest him?

A. For having no documents.

Q. What power did you exercise to arrest him?

A. Section 13 of the Immigration Act 2004.

Q. And for what particular reason?

A. Failure to produce documents.

Q. And what was your intent having arrested him?

A. It was to eventually refuse him permission to land, judge.

Q. So you arrested him under s. 13 of the Immigration Act 2004, with a view to eventually refusing him leave to land. So you had an intention at that scene when you arrested him to ultimately refuse him leave to land? Is that what you’re saying?

A. It wasn’t there and then at the time, judge, but it arrived soon afterwards when we arrived back to the station.”

Q. JUDGE: “While you were arresting him on the side of the road, what did you say?

A. I told him he was being taken into custody for having no documents.

Q. You didn’t tell him that you were triggering the power of arrest under s. 13 of the Immigration Act?

A. Not there and then, judge.

Q. Okay. So you’d taken him into custody for having no documents?

A. Yes.

Q. And your intention was eventually to refuse him leave to land?

A. Yes, judge.”

Q. I’m asking you why you arrested him, and you say that at that juncture you had made up your mind eventually to refuse him leave to land?

A. Yes, judge.

…..

In the course of cross-examination by counsel for the appellant he gave the following responses:

Q. So when you invoked that section of that particular Act, I have to put it to you that the only matter that you could validly have in contemplation was to charge him with an offence under that Act; would you accept that?

A. Now I do.”

Q. In respect then to the power to detain, in the interval between the arrest and the refusal of leave to land, would you care to say what statutory or other provision you were allowing for?

A. I cannot, judge.

Q. The fact is, there was no power to detain; isn’t that the situation?

A. Well, I believe so now.

Q. That’s very fair of you. And in relation to any ..

JUDGE: That might or might not be right. It’s all right, you can go on.

Q. Okay. Were you relying on any power to detain him?

A. The power of refusing leave to land.

Q. Okay, but which wasn’t to happen for two hours?

A. Well, which was the intention, but it was never ..

Q. So I suppose I should ask: Whilst you may or may not have had a power .. I would want to put to you that you didn’t .. but what specific power did you utilise or pronounce or indicate, if you so indicated, you were relying upon for the detention of the applicant in between half four and half six on 14th February?

A. The only power I had was I had arrested him under section 13 of the ..

Q. Okay. But you have conceded that there’s no power to detain a person arrested under that offence; is that right?

A. That has been pointed out to me, yes.

Q. We’ve already outlined the maximum .. there’s no power to detain under section 4 of the Criminal Justice Act to that effect; isn’t that right?

A. Yes.

Q. In any event, you have conceded that the real reason you detained him was that you contemplated that ultimately you might refuse him leave to land, which you did, and thereafter you ..

A. Yes.

Q. In relation to that, I think then, having detained him for the purposes of facilitating your intention, and then having put your intention into practice by arresting him, he was detained overnight in the garda station; is that right?

A. That’s correct.”

At page 48 of the transcript the witness was questioned by the learned trial judge with the following responses:-
Q. JUDGE:I just want to be clear about this now. You arrested him under section 13 and he told you he hadn’t got the relevant documents?

A. That’s it, judge.

Q. JUDGE: And you exercised your power of arrest under that section?

A. That’s yes, judge.

Q. JUDGE: And you told him you were arresting him for that reason?

A. Yes, judge.

Q. JUDGE: And what was the purpose of that arrest?

A. The purpose of that arrest, because I knew at that stage that he hadn’t ..

Q. JUDGE: Documents?

A. ..documents.

Q. JUDGE: Because he had told you that before you arrested him?

A. Yes. And that he’d been across the border as well.

Q. JUDGE: So what had you in your mind at that stage, when you arrested him? What were you using to arrest him?

A. I was going to refuse him leave to land.

Q. JUDGE: Okay. You were using that as one of your powers to defend that ultimately?

A. Ultimately, yes, judge.

Q. JUDGE: And then in the garda station did you tell him at some juncture that you were refusing him leave to land?

A. Yes, judge.

Conclusions from that Evidence

Having considered that evidence I think it is impossible to escape the conclusion that when Sergeant McGovern arrested the appellant under s. 13 not only did he not tell him that he was arresting him under that section but that at the time of the arrest he had no intention of charging him with any offence for which he had allegedly been arrested and that the true intention was to take him into custody so that he could be brought to the garda station and then refused leave to land so that Garda McGovern could then issue a warrant pursuant to s. 5(2) of the Act of 2003 that would enable arrangements to be made for his removal from the State.

It is true that at one point in his evidence Garda McGovern seemed to say that at the time of the initial arrest in the housing estate he did not at that point have an intention to exercise his powers to refuse the appellant leave to land and thus bring into play the operation of s. 5 of the Act of 2003 but that this was something which he decided to do afterwards. However when the matter was explored further Garda McGovern quite frankly and fairly explained that he had initially detained the appellant for the purposes of facilitating his intention to exercise later his powers to refuse him permission to land and then have him detained for the purpose of ensuring his removal from the State.

If Garda McGovern had initially arrested and detained the appellant pursuant to s. 13 of the Act of 2003 for the commission of an offence contrary to that Act he would have been bound to inform the appellant of the reason for the arrest and to charge him and bring him before a court as soon as practicable. None of this of course happened and it is clear the reason that it did not happen is because Garda McGovern at no stage really intended that this course would be followed.

It may be said that if Garda McGovern had indeed arrested the appellant pursuant to s. 13 for the specific purpose of charging him with an offence and bringing him before the courts that would not have prevented him from, at a later stage, after perhaps a review of all the circumstances of the case or possibly consulting his superiors, dealing with the matter by subsequently arresting the appellant pursuant to s. 5 and issuing a warrant for his detention pending his removal from the State. The evidence does not however, support any conclusion that this is what occurred and indeed Garda McGovern acknowledged, in retrospect, that in the circumstances he ought not to have arrested the appellant pursuant to s. 13.

The High Court Decision

In his decision the learned High Court judge, when considering the arrest made by the Garda member pursuant to s. 13(2) of the Act of 2004 observed “…any power of arrest of this type is for the purpose of securing the person for the purpose of charging him or bringing him before a court of competent jurisdiction… having effected that arrest, he did not charge the applicant with an offence pursuant to the Act, nor did he, obviously bring him before a court of competent jurisdiction as soon as practicable, and for that reason alone, it seems to me that his custody pursuant to that arrest became lawful. It is further arguable that – he gave evidence explicitly to the effect that he arrested him pursuant to the section for the purpose of refusing him leave to land and removing him from the jurisdiction. In other words, for a purpose other than that contemplated by the section, I am completely satisfied that he did this bona fide.” “…I do not have to decide whether or not an arrest in that context is lawful. In the particular circumstances of this case and under that provision, I have to say that I would have thought it is not. In any event, when he was in unlawful custody in the garda station, he was detained pursuant to the provisions, the relevant provisions of the Immigration Act, and informed that he was being refused leave to land, and informed of the facts, the basis of his arrest and what was contemplated in respect of his future, so to speak. I am satisfied on the evidence that this was done on reasonable grounds, that the power was exercisable, and that he had been in the State for less than three months …”. The learned trial judge went on to conclude in the light of the foregoing observations that although the appellant had been in unlawful custody at the time of his subsequent arrest and detention pursuant to s. 5(2) of the Immigration Act 2003 there had been no obligation to release the appellant from the unlawful custody prior to the second arrest since the Garda member was acting bona fide. In particular he emphasised there was no obligation on the Gardaí to release him and give him “a sporting chance” as he put it of removing himself from the clutches of the Gardaí once released for that reason. Moreover, he added that neither were the Gardaí required to release him in a sort of charade and re-arrest him once released. It might be otherwise, he observed, if there was an abuse of process by the State but in this case the Garda member was acting bona fide. Accordingly he held that the warrant for his detention was valid.

Decision

Although the learned trial judge’s express finding (he having considered it unnecessary to make an express finding on the lawfulness of the initial arrest) of illegality was confined to the period of detention subsequent to the first arrest and preceding the second arrest pursuant to s. 5(2) of the Act of 2003 the facts and circumstances outlined above lead me ineluctably to the conclusion that the initial arrest pursuant to s. 13 was itself unlawful. It was not made for the purpose of charging the appellant with the offence for which he was purportedly arrested. A person may only be lawfully arrested on a criminal charge, where, apart from other criteria, there is a bona fide intention of charging that person with that offence. There are of course powers of arrest for the purpose of investigation of certain offences as provided by s. 4 of the Criminal Justice Act, 1984 but that is an entirely separate matter.

That unlawful arrest and the consequential unlawful detention are the dominant circumstances in this case. Even though the later arrest and detention pursuant to s. 5(2) of the Act of 2003 might otherwise have been lawful, that arrest and subsequent detention is dominated by the fact that it was deliberately facilitated and achieved by bringing the appellant into unlawful custody for that specific and ulterior purpose. This is not simply a question of an otherwise lawful arrest being potentially tainted by an unlawful period of detention because in this case the dominating factor which brought about the arrest under s. 5(2) was the deliberate unlawful arrest and detention under s. 13. What occurred in this case was a fundamental breach of the due process of law. This is not to suggest that there was malice or dishonesty on the part of Garda McGovern. Although his actions were conscious and deliberate he appears to have considered that he was properly endeavouring to apply the provisions of the Immigration Acts to a person who was unlawfully present in the State by virtue of s. 5(2) of the Act of 2004. That however does not alter the position in law, namely that he deliberately effected an unlawful arrest and detention.

In The People v. Madden [1977] I.R. 336 at 347 O’Higgins C.J., delivering the judgment of the Court of Criminal Appeal, stated as follows:-

“What was done or permitted by Inspector Butler and his colleagues may have been done or permitted for the best of motives and in the interests of due investigation of the crime. However, it was done or permitted without regard to the right to liberty guaranteed to this defendant by Article 40 of the Constitution and to the State’s obligation under that Article to defend and vindicate that right. This lack of regard for and failure to vindicate the defendant’s constitutional right to liberty may not have induced or brought about the making of this statement but it was the dominating circumstance surrounding its making. In the view of this Court this fact cannot be ignored.”
The Court of Criminal Appeal proceeded to exclude that statement by reason of which the conviction of the accused in that case was set aside.

In my view the principle reflected in that passage applies, at least by analogy, to the circumstances of this case where the re-arrest of the applicant pursuant to s. 5(2) of the Act of 2003 even if it would otherwise have been lawful, was dominated and brought about by the initial unlawful deprivation of liberty. If the gardaí had legitimate grounds for arresting the applicant pursuant to s. 5(2) of the Act of 2003 he ought, in the circumstances referred to, have been freed from his unlawful custody before any such step under the law was taken.

There may be circumstances where, following a lawful arrest, some factor affecting the circumstances of the detention may intervene so as to render it unlawful which may be cured by restoring the lawful conditions for detention without necessitating the release of the individual although other consequences may arise. Such was the position for example in The People (DPP) v. O’Brien [2005] 2 IR 206 where a period of unlawful detention was considered to arise when the detained accused had been wrongfully denied access to a solicitor but, as this Court concluded, the accused, without having been released, “was in lawful detention … subsequent to the arrival of his solicitor …”.

In the State (McDonagh) v Frawley, [1978] I.R. 131 at 136, O'Higgins CJ stated:

"The stipulation in Article 40, s. 4, sub-s. 1, of the Constitution 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.
While that case was concerned with a convicted prisoner the same considerations are relevant here. As I have already stated I consider that the initial unlawful arrest in this case did constitute a fundamental breach of the due process of the law.

It is well established in the Court’s case-law that a person released from unlawful custody, including a person unconditionally released pursuant to an order under Article 40 of the Constitution, is not thereafter exempt from the due process of law (see for example The People (Director of Public Prosecutions) v. Pringle [198]1 (2 Frewen). The release of an unlawfully arrested person from unlawful custody in circumstances such as the present case is not a mere formality even if such a release were to be immediately followed by a lawful arrest or re-arrest. The release marks in a substantive manner the termination of that which has been unlawful in a fundamental way from its inception. It is then for a garda member effecting a subsequent arrest, if any, to justify that deprivation of liberty in accordance with law.

In my view therefore, having regard to the fact that the applicant was, from the very beginning, unlawfully arrested and detained pursuant to s. 13 of the Act of 2003 for the ulterior purpose of subsequently arresting and detaining him pursuant to s. 5(2) of the Act of 2003 that latter arrest and detention cannot be considered lawful. The respondent sought to justify the detention of the applicant in issue in these proceedings by producing the warrant issued by Garda McGovern pursuant to s. 5(2) of the Immigration Act 2003. For these reasons that warrant was not valid and an Order for the appellant’s release pursuant to Article 40.4 of the Constitution was made.